Com. v. Wean, L. ( 2018 )

J-A29023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
LAWRENCE P. WEAN,
Appellant No. 1165 EDA 2016
Appeal from the Judgment of Sentence December 9, 2015
in the Court of Common Pleas of Delaware County
Criminal Division at No.: CP-23-CR-0000850-2015
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
LAWRENCE P. WEAN,
Appellant No. 1167 EDA 2016
Appeal from the Judgment of Sentence December 9, 2015
in the Court of Common Pleas of Delaware County
Criminal Division at No.: CP-23-CR-0004420-2015
BEFORE: LAZARUS, J., PLATT, J.,* and STRASSBURGER, J.*
MEMORANDUM BY PLATT, J.: FILED JANUARY 26, 2018
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A29023-17
Appellant, Lawrence P. Wean, M.D., appeals from the judgment of
sentence imposed in this matter pursuant to his conviction of twelve counts
of unlawful prescribing of a controlled substance by practitioner, and three
counts of insurance fraud,1 at docket number CP-23-CR-850-15; and seventy-
seven counts of unlawful prescribing of a controlled substance by practitioner
at docket number CP-23-CR-4420-15.2 We affirm.
The above charges relate to Appellant’s providing nine of his patients
and two undercover detectives with prescriptions for thousands of controlled
substances such as Oxycodone, Xanax, Percocet, Vicodin, Restoril, and
Adderall, for a fee, with little or no physical examination or related illnesses,
and then billing their insurance.
On December 17, 2014, police officers executed a search warrant at
Appellant’s office in Media, PA. Dr. Eric Lipnack, DO, a licensed physician for
forensic analysis, examined approximately thirty random files seized from the
office. During trial, Dr. Lipnack testified as an expert in the areas of physical
medicine, rehab, pain management and prescribing controlled substances. He
relied, in part, and over defense objection, on the Pennsylvania Minimum
Standards of Practice as related to the proper prescribing of medications.
(See N.T. Trial, 9/24/15 Vol. II, at 277-79).
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1 35 P.S. § 780-113(a)(14) and 18 Pa.C.S.A. § 4117(a)(2), respectively.
2 We consolidated the appeals sua sponte on June 1, 2016.
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On October 2, 2015, the jury convicted Appellant of the previously
mentioned crimes. The court sentenced him on December 9, 2015 to an
aggregate term of imprisonment of not less than ten nor more than 20 years,
fines, forfeiture of $837.00 seized as derivative contraband, and $62,141.19
payable to the Delaware County District Attorney’s Office for the cost of
prosecution. The court denied Appellant’s post-sentence motions on March
17, 2016. Appellant timely appealed.3
Appellant raises four questions for this Court’s review:
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3 On May 5, 2016, the trial court ordered Appellant to file a Rule 1925(b)
statement of errors complained of on appeal within twenty-one days. See
Pa.R.A.P. 1925(b). Appellant filed an untimely statement on May 31, 2016.
See id. The trial court filed an opinion on October 18, 2016, in which it
addressed the issues raised in the untimely statement. Therefore, because
the court addressed the untimely filing, we will not find waiver. See
Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (Holding
that, “if there has been an untimely filing, this Court may decide the appeal
on the merits if the trial court had adequate opportunity to prepare an opinion
addressing the issues being raised on appeal.”) (citation omitted).
We also note that, on December 1, 2016, Attorney Richard Joseph
Blasetti entered his appearance in this Court on Appellant’s behalf. Since his
appearance, he has filed four requests for an extension of time to file a brief,
with each successive request filed on or after the previously extended date.
This Court warned each time we granted an extension that no further request
would be entertained. In spite of our admonitions, on July 28, 2017, four days
past the latest extended deadline, counsel filed another application for an
extension of time to file Appellant’s brief. He filed an untimely brief the same
day. Because the Commonwealth has not moved to dismiss this appeal on
this basis, we will not do so. However, we caution counsel that “[i]f an
appellant fails to file his . . . brief . . . within the time prescribed by these
rules, or within the time as extended, an appellee may move for dismissal of
the matter.” Pa.R.A.P. 2188.
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[1.] Whether the restitution order in the amount of $62,141.19
in favor of the Delaware County District Attorney’s Office was
proper because the District Attorney’s Office is not a victim under
the Crime Victims Act, and if improper did the order upset the
sentencing scheme?
[2.] Whether the trial court erred in failing to rule 35 [P.S.4 §]
780-111(d) unconstitutional? This is not a void for vagueness
argument. This subsection violates [Appellant’s] 5th, 6th and 14th
Amendment rights under the United States Constitution and his
Article I, Section 9 rights under the Pennsylvania Constitution. In
re Winship, 397 U.S. 358 (1970), and Apprendi v. New Jersey,
530 U.S. 466 (2000), require proof of every element beyond a
reasonable doubt and this statute neglects the culpability element.
18 Pa.C.S. [§] 302(c) substitutes the civil levels “intentionally,
knowingly or recklessly,” as the if [sic] mens rea necessary in such
a statute, violating [Appellant’s] rights under Morissette v.
United States, 342 U.S. 246 (1952).
[3.] Whether the trial court erred in failing to grant the defense
request for a jury instruction charging that a mere finding that
[Appellant] deviated from the civil Pennsylvania Minimum
Standards of Practice introduced by the Commonwealth, without
more, called for a finding of not guilty on the Drug Act charges[?]
The jury asked to see the standards while deliberating, raising the
inference that it based its verdict on the civil standards.
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4 35 Pa.C.S. § 780-111(d) does not exist. Pursuant to 35 P.S. 780-111(d):
A practitioner may prescribe, administer, or dispense a controlled
substance or other drug or device only (i) in good faith in the
course of his professional practice, (ii) within the scope of the
patient relationship, and (iii) in accordance with treatment
principles accepted by a responsible segment of the medical
profession. A practitioner may cause a controlled substance,
other drug or device or drug to be administered by a professional
assistant under his direction and supervision.
35 P.S. § 780-111(d).
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[4.] Whether the trial court erred in charging that the
Pennsylvania Minimum Standards of Practice, Commonwealth
exhibit C-77, were in evidence “only to the extent that such
evidence may be helpful to you in determining whether or not the
Commonwealth proved each criminal offense charged in this case
beyond a reasonable doubt. To be clear on this issue, [Appellant]
cannot be convicted for unlawfully prescribing a controlled
substance merely upon a showing that the medical care rendered
was beneath a minimum standard of practice which was
introduced as an exhibit in this case[]?” The court gave conflicting
instructions by charging that the Pennsylvania Minimum
Standards of Practice “may be helpful” in determining whether
reasonable doubt arose.
(Appellant’s Brief, at 9-11) (unnecessary capitalization omitted; some case
citation formatting provided; some citations omitted).5
In his first issue, Appellant argues that the court erred in ordering him
to pay restitution to the Delaware County District Attorney’s Office. (See id.
at 16-18). Specifically, he maintains that “[t]he restitution order in the
amount of $62,141.19 in favor of the Delaware County District Attorney’s
Office was improper because the District Attorney’s Office is not a victim under
the Crime Victims Act, and the order upset the sentencing scheme.” (Id. at
16) (citation omitted). This issue lacks merit.6
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5 Appellant’s statement of questions involved violates the requirement of Rule
2116, which provides, in part, “The statement of the questions involved must
state concisely the issues to be resolved, expressed in the terms and
circumstances of the case but without unnecessary detail.” Pa.R.A.P.
2116(a) (emphases added).
6 Appellant did not challenge the trial court’s alleged grant of restitution at
trial or in his Rule 1925(b) statement. (See Statement of Errors Complained
of on Appeal, 5/31/16, at unnumbered pages 1-3). Generally, an appellant’s
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Our standard of review of this matter is well-established:
If no statutory authorization exists for a particular sentence,
that sentence is illegal and subject to correction. An illegal
sentence must be vacated. In evaluating a trial court’s application
of a statute, our standard of review is plenary and is limited to
determining whether the trial court committed an error of law.
Commonwealth v. Hall, 994 A.2d 1141, 1144 (Pa. Super. 2010), affirmed
on other grounds, 80 A.3d 1204 (Pa. 2013) (citation omitted).
Section 4403 of The Second Class County Code provides, in pertinent
part, “[i]n any case where a defendant is convicted and sentenced to pay the
costs of prosecution and trial, the expenses of the district attorney in
connection with such prosecution shall be considered a part of the costs of the
case and be paid by the defendant.” 16 P.S. § 4403.
Here, as admitted by defense counsel at sentencing, the Commonwealth
moved for “[t]he costs that were paid . . . to the expert . . . in the amount of
$62,141.19.” (N.T. Sentencing, 12/09/15, at 8). Although the trial court
initially called this money restitution, it agreed that it had misspoken and that
____________________________________________
failure to raise an issue at trial or include it in a Rule 1925(b) statement waives
the issue for our review. See Pa.R.A.P. 302(a); 1925(b)(4)(vii). However,
because this claim challenges the legality of Appellant’s sentence, we will
address its merits. See Commonwealth v. Stradley, 50 A.3d 769, 771-72
(Pa. Super. 2012) (“An appeal from an order of restitution based upon a claim
that a restitution order is unsupported by the record challenges the legality,
rather than the discretionary aspects, of sentencing.”) (citation omitted);
Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008), affirmed,
17 A.3d 332 (Pa. 2011) (noting “[legality of sentence] claim is not [] waived
by a party’s failure to include it in a Pa.R.A.P.1925(b) statement.”) (citation
omitted).
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it was a “[c]ost of prosecution, not restitution.” (Id. at 58; see id. at 5-8,
11-12, 57-58).
Accordingly, the record belies Appellant’s claim that the trial court erred
in sentencing him to pay restitution to the District Attorney’s Office. Moreover,
section 4403 provided the court with statutory authorization to sentence
Appellant to remit the costs of the Commonwealth’s expert witness to the
District Attorney’s Office. See 16 P.S. § 4403; Commonwealth v. Gill, 432
A.2d 1001, 1005 (Pa. Super. 1981) (observing that section 4403 authorizes
district attorney’s fees to be assessed against defendant as costs). Appellant’s
first issue lacks merit. See Hall, supra at 1144.
In his second issue, Appellant maintains that “[t]he absence of a
requirement for proof of intent renders 35 Pa.C.S. § 780-111(d)
unconstitutional.” (Appellant’s Brief, at 25). However, a review of the record
reveals that the Commonwealth charged Appellant pursuant to section 780-
113(a)(14) of the Drug Act, not section 780-111(d). (See Information,
3/11/15, at 1-5). Therefore, this challenge is frivolous.
Moreover, although Appellant’s brief does cite the statute under which
he was convicted, 35 P.S. § 780-113(a)(14), (see Appellant’s Brief, at 25),
he did not challenge it in his Rule 1925(b) statement, thus waiving the claim
for our review. (See Statement of Errors, at unnumbered page 1)
(complaining, “[t]he [t]rial [c]ourt erred in failing to rule 35 [P.S. §] 780-
111(d) unconstitutional.”) (emphasis added); see also Commonwealth v.
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Johnson, 51 A.3d 237, 246 (Pa. Super. 2015), appeal denied, 63 A.3d 1245(Pa. 2013) (“Any issues not raised in a Pa.R.A.P. 1925(b) statement will be
deemed waived.”) (citation omitted); Pa.R.A.P. 1925(b)(4)(vii). Therefore,
Appellant’s second issue is waived.
Moreover, we briefly note that, the issue would not merit relief. “When,
as here, the appellant raises a question of statutory construction, ‘our
standard of review is de novo, and our scope of review is plenary.’”
Commonwealth v. Ford, ___ A.3d ___, 2017 WL 5379813, at *4 (Pa. Super.
filed Nov. 14, 2017) (citation omitted).
Here, while section 780-113(a)(14) does not provide an express mens
rea, this does not render it unconstitutional. It is well-settled that,
“[r]egarding the level of mens rea required to sustain a conviction . . . [the
Pennsylvania Supreme Court has] repeatedly held § 302 provides the default
level of culpability where a criminal statute does not include an express mens
rea.” Commonwealth v. Moran, 104 A.3d 1136, 1149 (Pa. 2014) (citations
omitted). In fact, at trial, all counsel properly recognized that the mens rea
was knowing and intentional, pursuant to 18 Pa.C.S.A. § 302(c). (See N.T.
Trial, 9/29/15, at 127-28); see also 18 Pa.C.S.A. § 302(c). Appellant’s
frivolous argument appears to confuse the Commonwealth’s burden of proof
(beyond a reasonable doubt) with the mens rea (knowing and intentional)
required for a conviction of illegally prescribing of a medication by a physician.
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(See Appellant’s Brief, at 25).7 Therefore, this claim would not merit relief.
See Ford, supra at *4.
Appellant’s third and fourth issues raise challenges related to the court’s
jury instructions, so we will address them together. (See Appellant’s Brief, at
19-24). Specifically, in his third issue, Appellant argues that the trial court
erred in failing to grant his “request for a jury instruction charging that a mere
finding that [Appellant] deviated from the civil Pennsylvania Minimum
Standards of Practice introduced by the Commonwealth, without more, called
for a finding of not guilty on the Drug Act charges.” (Id. at 19).8 In his fourth
claim, Appellant challenges the jury instruction actually given regarding the
standards of practice. (See id.). These issues are waived and would lack
merit.
It is well-settled that the failure to object to a jury charge before the
jury retires to deliberate waives that issue for appeal. See Commonwealth
v. Hunzer, 868 A.2d 498, 513 (Pa. Super. 2005), appeal denied, 880 A.2d
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7 To the extent Appellant attempts to challenge the trial court’s jury instruction
on the mens rea required for a conviction of illegally prescribing medication
by a practitioner, he waived this issue by failing to object to the charge at
trial. See Hunzer, infra at 513.
8 Any claim that the trial court erred in allowing the admission of the civil
standards will not be considered where it was not raised in Appellant’s Rule
1925(b) standard or statement of questions involved. (See Appellant’s Brief,
at 23); see also Pa.R.A.P. 1925(b)(4)(vii); Pa.R.A.P. 2116(a) (“No question
will be considered unless it is stated in the statement of questions involved or
is fairly suggested thereby.”).
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1237 (Pa. 2005). Here, the Commonwealth introduced the minimum
standards of practice at trial, and the trial court allowed the parties to submit
proposed instructions regarding how they should be treated, which they
discussed thoroughly with the court. (See N.T. Trial, 9/29/15, at 165-80).
Based on the parties’ submissions, the court read them the cautionary charge
it proposed to give, asking them if it was acceptable. (See id. at 180).
Defense counsel responded, “Okay. . . . We think that addresses the issue.
We think it would be addressed better with the addition of the next sentence.
So, that’s the only exception we have to it.” (Id. at 180-81). The following
day, the court instructed the jury consistent with what it had discussed with
the parties, and Appellant did not object. (See N.T. Trial, 9/30/15, at 22-23,
28-32). Therefore, any issues regarding the instruction as actually given, or
the court’s failure to charge the jury in accordance with Appellant’s proposed
instruction, are waived. See Hunzer, supra at 513. Moreover, they would
not merit relief.
In reviewing a challenge to the trial court’s refusal to give a
specific jury instruction, it is the function of this Court to
determine whether the record supports the trial court’s decision.
In examining the propriety of the instructions a trial court presents
to a jury, our scope of review is to determine whether the trial
court committed a clear abuse of discretion or an error of law
which controlled the outcome of the case. A jury charge will be
deemed erroneous only if the charge as a whole is inadequate, not
clear or has a tendency to mislead or confuse, rather than clarify,
a material issue. A charge is considered adequate unless the jury
was palpably misled by what the trial judge said or there is an
omission which is tantamount to fundamental error.
Consequently, the trial court has wide discretion in fashioning jury
instructions. The trial court is not required to give every charge
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that is requested by the parties and its refusal to give a requested
charge does not require reversal unless the Appellant was
prejudiced by that refusal.
Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013) (citation
omitted).
Here, the trial court denied defense counsel’s request that, in its
cautionary instruction regarding the minimum standards of practice, it include
the language, “if you find merely that [Appellant fell] below that standard of
care i.e. only that he may have committed medical malpractice, you must find
him not guilty.” (N.T. Trial, 9/29/15, at 172). The court explained it did not
“want[] to interject [] malpractice into [the case]” because it would confuse
the issues for the jury. (Id.).
The next day, the trial court cautioned the jury that:
Ladies and gentlemen, you have heard witnesses in this case
sometimes refer to the minimum standards of practice. These
minimum standards of practice are not the law in this case. You
have been instructed in the law. And as I mentioned, I will provide
you with a portion of my instructions on these elements to assist
you in your deliberations. During trial I permitted evidence
relating to the minimum standards of practice only to the extent
that such evidence may be helpful to you in determining whether
or not the Commonwealth proved each criminal offense charged
in this case beyond a reasonable doubt. To be clear on this issue,
a [d]efendant cannot be convicted of unlawfully prescribing a
controlled substance merely upon a showing that the medical care
rendered was beneath a minimum standard of practice which was
introduced as an exhibit in this case. . . .
(N.T. Trial, 9/30/15, at 22-23).
In reviewing the above charge, as well as the trial court’s instruction to
the jury as a whole, particularly regarding the Commonwealth’s burden of
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proof and the necessary elements it was required to prove beyond a
reasonable doubt, we conclude that the jury instruction was adequate and
clear. (See id.; see also id. at 21-22) (describing elements Commonwealth
must prove beyond reasonable doubt to establish crime of unlawfully
prescribing controlled substance). Additionally, Appellant has utterly failed to
prove that the court’s denial of his proposed sentence prejudiced him.9 (See
Appellant’s Brief, at 20). Hence, Appellant’s third and fourth issues lack merit.
See Sandusky, supra at 667.10
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/26/18
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9 Appellant’s argument that “[u]ndue prejudice ensued because the court and
the [C]ommonwealth told the jury that a piece of Pennsylvania law outside of
the indictment helped make [him] guilty[,]” lacks merit. (Appellant’s Brief, at
20). The court expressly advised the jury that the standards were not the law
of the case and that “a [d]efendant cannot be convicted of unlawfully
prescribing a controlled substance merely upon a showing that the medical
care rendered was beneath the minimum standard of practice which was
introduced as an exhibit in this case.” (N.T. Trial, 9/30/15, at 23; see id. at
22). This argument lacks merit.
10 We deny Appellant’s motion for remand as moot.
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