Com. v. Scott, V.

J. A01009/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
VAN EDWARD SCOTT, : No. 1987 WDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, October 29, 2013,
in the Court of Common Pleas of Lawrence County
Criminal Division at No. CP-37-CR-0000255-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
VAN EDWARD SCOTT, : No. 1988 WDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, October 29, 2013,
in the Court of Common Pleas of Lawrence County
Criminal Division at No. CP-37-CR-0000516-2010
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND ALLEN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 06, 2015
In these two consolidated appeals, appellant challenges the judgment
of sentence imposed following his several convictions relating, in one part, to
the improper prescribing of narcotic drugs, and in the other part, to
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disposing of frozen or seized assets. Finding no merit in the issues on
appeal, we affirm.
Appellant is a medical doctor who ostensibly engaged in a pain
management practice. As a central part of that practice, appellant
prescribed large dosages of narcotic opiate drugs to his patients. During
appellant’s trial, the Commonwealth presented testimony from some of
appellant’s patients who typically described office visits as lasting five
minutes or less and consisting of a brief, perfunctory examination, followed
by the prescribing of large dosages of controlled substances. (Notes of
testimony, 6/12/13 at 179; 6/13/13 at 103, 171, 174.)
One of these patients, Kelly Tritt, testified that she agreed to help
narcotics agents investigate appellant after she was arrested for selling
some of the controlled substances she was prescribed to her ex-husband.
(Notes of testimony, 6/13/13 at 181-183.) Thereafter, Tritt took a recording
device with her when she had office visits with appellant. (Id. at 184.) Tritt
also admitted that she fabricated accounts of injuries, presumably to induce
appellant to augment her prescription. (Id. at 195-197.) While Tritt denied
that the narcotics agents working with her made up the fabrications
themselves, she did testify she “made up some things” . . . “[u]nder the
advisement and direct from the agents.” (Id. at 196; notes of testimony,
6/18/13 at 23.)
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The Commonwealth also presented expert medical testimony to the
effect that appellant’s prescribing of controlled substances was outside of
accepted treatment principles. (Notes of testimony, 6/17/13 at 158-159.)
Finally, the Commonwealth presented the testimony of
Ronald Thurner, a Senior Deputy Attorney General in the Asset Forfeiture
Division. Essentially, Thurner testified that certain bank and investment
accounts belonging to appellant were seized or frozen during the
investigation of this case. Thurner testified appellant’s counsel was informed
as to which accounts were affected. (Notes of testimony, 6/12/13 at 127-
128.) During this time, appellant was personally served with a petition for
forfeiture, and appellant personally signed the receipt. (Id. at 137.)
Thurner went on to relate that appellant subsequently liquidated some of the
accounts that were listed in the petition. (Id. at 138-143.)
On June 24, 2013, a jury convicted appellant of six counts of
prescribing controlled substances not in good faith, six counts of prescribing
controlled substances outside of accepted treatment principles, and one
count of prescribing controlled substances to a drug dependent person.1
Appellant was also convicted of dealing in proceeds of unlawful activities,
tampering with or fabricating physical evidence, and obstructing
administration of law or other governmental function.2 On October 29,
1
35 P.S. §§ 780-113(a)(14)(i), (a)(14)(iii), and (a)(13), respectively.
2
18 Pa.C.S.A. §§ 5111(a)(2), 4910(1), and 5101, respectively.
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2013, appellant was sentenced to an aggregate term of 9 to 18 years’
imprisonment. This timely appeal followed.
Appellant raises the following issues on appeal:
I. DID THE LOWER COURT ABUSE ITS
DISCRETION WHEN IT FAILED TO INSTRUCT
THE JURY CONCERNING ENTRAPMENT, UPON
DR. SCOTT’S REQUEST, WHERE EVIDENCE
ADDUCED AT TRIAL SUPPORTED THE
INSTRUCTION?
II. DID THE LOWER COURT ABUSE ITS
DISCRETION BY DENYING DR. SCOTT’S
MOTION FOR DIRECTED VERDICT IN CASE
NO. 255 OF 2013 WHERE THE
COMMONWEALTH FAILED TO ADDUCE ANY
EVIDENCE AT TRIAL THAT DR. SCOTT HAD
THE REQUISITE INTENT NECESSARY TO
SUPPORT A FINDING OF GUILT ON ANY OF
THE CHARGES?
III. DID THE LOWER COURT ABUSE ITS
DISCRETION BY DENYING DR. SCOTT’S
MOTION TO DISMISS AND MOTION FOR
DIRECTED VERDICT IN CASE NO. 516 OF 2010
WHERE THE STATUTE CHARGING HIM WITH
PROVIDING CONTROLLED SUBSTANCES TO A
DRUG DEPENDENT PERSON IS
CONSTITUTIONALLY OVERBROAD AND VOID
FOR VAGUENESS, AND FAILED TO PROVIDE
SUFFICIENT NOTICE OF THE CRIMINAL
ACTIVITY THAT IS PROHIBITED?
IV. DID THE LOWER COURT ABUSE ITS
DISCRETION IN PERMITTING
LEWIS COLOSIMO TO TESTIFY AS AN EXPERT
WITNESS WHERE HIS TESTIMONY WAS
GENERIC, CUMULATIVE, OFFERED WITHOUT
ANY KNOWLEDGE OF THE FACTS OR
CIRCUMSTANCES OF THE CASE, AND WAS SO
PREJUDICIAL AS TO DENY DR. SCOTT’S
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CONSTITUTIONAL RIGHT TO DUE PROCESS
AND FAIR TRIAL?
Appellant’s brief at 5.
The trial court failed to review Issue I in its opinion filed pursuant to
Pa.R.A.P., Rule 1925(a), 42 Pa.C.S.A.; consequently, we will address this
issue in full. Otherwise, we find no error with the trial court’s holdings.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinions of the trial court, it is our
determination that there is no merit to the other questions raised on appeal.
The trial court’s thorough, 28-page opinion, dated June 17 2014,
comprehensively discusses and properly disposes of Issues II and IV.
Furthermore, a second 12-page opinion, dated February 17, 2012, properly
disposes of Issue III. We will adopt those opinions as our own and affirm on
their bases with the following additional analysis.
As to Issue II, pertaining to appellant’s intent in regard to his
liquidation of certain frozen bank accounts, appellant’s argument attempts to
shift the blame to the banks for not fulfilling their legal duty to the
Commonwealth by releasing the funds. (Appellant’s brief at 40.) We find
the banks’ failure to preserve the subject funds to be completely irrelevant
to either appellant’s intent or guilt.
We also find it to be of no moment that some accounts that were
initially frozen were subsequently released. (Appellant’s brief at 39.) This
argument suggests that appellant may have unwittingly requested the
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release of funds from an account that he believed had been unfrozen but
was not. Appellant was aware that the accounts listed in the forfeiture
petition were frozen yet nonetheless sought and obtained the funds from
some of those accounts. Appellant is fully culpable.
As for Issue III, pertaining to the trial court’s decision not to enter a
directed verdict as to the prescription offenses on the basis that the statute
is unconstitutionally overbroad and vague, we note that the trial court relies
largely upon this court’s decision in Commonwealth v. Possinger, 399
A.2d 1077 (Pa.Super. 1979). In Possinger, this court found that the
prescription statute was not unconstitutionally vague. On appeal, appellant
argues that the trial court’s reliance on Possinger is misplaced because in
Possinger, unlike here, the physician prescribed controlled substances to a
patient without ever seeing the patient. (Appellant’s brief at 48-49.)
It appears that appellant has selectively read Possinger. In
Possinger, three narcotics agents sought prescriptions for controlled
substances from Possinger. Agent Robert Bongard contacted Possinger’s
office on seven occasions. Bongard met face-to-face with appellant on the
first five of these appointments, and Possinger performed perfunctory
medical examinations on two of these occasions. Bongard obtained
prescriptions on only the final two appointments without meeting Possinger.
Agents Raymond Stackhouse and Richard Jumper contacted Possinger with
Bongard during Bongard’s fifth visit and met face-to-face with Possinger.
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Possinger wrote prescriptions for Stackhouse and Jumper after performing
perfunctory medical examinations on them. Again, it was only on Bongard’s
final two visits at Possinger’s office that he obtained prescriptions for
himself, Stackhouse, and Jumper without actually seeing Possinger.
Clearly, Possinger is on point with the facts of this case. Possinger
was not a situation where the physician wrote prescriptions without ever
seeing the patient. Possinger met and gave perfunctory medical
examinations to each of the agents for whom he wrote prescriptions. This is
very similar to what the evidence in this case revealed as to appellant’s
conduct. We find appellant’s attempt to distinguish Possinger to be
meritless and that the trial court properly relied on this decision.
We now turn to our review of Issue I. Therein, appellant claims that
the trial court erred in failing to give an entrapment instruction to the jury
based upon Kelly Tritt’s attempt to induce appellant to prescribe her
controlled substances based upon fabricated injuries where Tritt was
directed to make such fabrications by state narcotics officers. We may
quickly dispose of this issue.
Preliminarily, we note our standard of review pertaining to jury
instructions:
[W]hen evaluating the propriety of jury instructions,
this Court will look to the instructions as a whole,
and not simply isolated portions, to determine if the
instructions were improper. We further note that, it
is an unquestionable maxim of law in this
Commonwealth that a trial court has broad discretion
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in phrasing its instructions, and may choose its own
wording so long as the law is clearly, adequately,
and accurately presented to the jury for its
consideration. Only where there is an abuse of
discretion or an inaccurate statement of the law is
there reversible error.
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super. 2014),
appeal denied, 95 A.3d 275 (Pa. 2014), quoting Commonwealth v.
Trippett, 932 A.2d 188, 200 (Pa.Super.2007).
Pennsylvania’s criminal statutes provide that a defendant shall be
acquitted if he or she can show by a preponderance of the evidence that the
defendant was entrapped:
(a) General rule.--A public law enforcement
official or a person acting in cooperation with
such an official perpetrates an entrapment if
for the purpose of obtaining evidence of the
commission of an offense, he induces or
encourages another person to engage in
conduct constituting such offense by either:
(1) making knowingly false
representations designed to induce
the belief that such conduct is not
prohibited; or
(2) employing methods of persuasion
or inducement which create a
substantial risk that such an
offense will be committed by
persons other than those who are
ready to commit it.
(b) Burden of proof.--Except as provided in
subsection (c) of this section, a person
prosecuted for an offense shall be acquitted if
he proves by a preponderance of evidence that
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his conduct occurred in response to an
entrapment.
18 Pa.C.S.A. § 313(a) and (b).
As noted by the Commonwealth, even if Tritt’s behavior constituted
entrapment and the instruction should have been given, appellant was not
prejudiced because he was acquitted on all charges related to Tritt. We
agree.
Appellant argues in his reply brief that the taint of Tritt’s entrapment
somehow extends to all of his other convictions. Appellant argues that
Tritt’s testimony was critical not just to her claims but to every other
allegation against appellant. First, Tritt’s testimony itself does not constitute
an inducement to commit a crime. Second, there is no transitive effect from
Tritt’s original false inducements. False information supplied by Tritt as to
her own drug needs would not cause appellant to illegally prescribe
controlled substances to another patient. Appellant’s convictions rest wholly
upon prescriptions he wrote for patients other than Tritt. Appellant was
convicted of no crime as a result of any false inducement by Tritt. There is
no merit here.
Accordingly, we will affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2015
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COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS
vs. LAWRENCE COUNTY, PENNSYLVANIA
VAN EDWARD SCOTT NO. 516 OF 2010, CR.
OTN: T040710-5
APPEARANCES
For the commonwealth: Kristine M. Ricketts, Esq.
PA office of the Attorney General
105 Independence Drive
Butler, PA 16001
For the Defendant: Eric D. Levin, Esq.
Rishor Simone
101 E. Diamond street, Suite 208
Butler. PA 16001
Kevin P. Byers, Esq., pro hoc vice
Kevin P. Byers co., L.P.A.
529 East Town Street, suite 200
Columbus, OH 43215
OPINION
MOTTO, P.J. FEBRUARY 17 1 2012
Before the court for disposition is the Defendant's Motion
to Dismiss the criminal information charging twenty-one counts
of unlawful Prescription of a Controlled substance by a
Practitioner, an unclassified felony, in violation of §13(a)(14)
of the controlled substance, Drug Device and cosmetic Act (35
P.S. §780-113(a)(l4)) and seven counts of Unlawful Prescription
to a Drug Dependent Individual. an unclassified misdemeanor, in
violation of §13(a)(13) of the controlled substance, Drug Device
and cosmetic Act (35 P.S. §780-113(a)(13)). Defendant's motion
53FtD
contends that the aforesaid charging statutes are
JUDICIAL
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Due Process under the Fourteenth Amendment to the United States
constitution. Defendant argues that the statutes fail to
adequately and meaningfully inform physicians of what conduct is
proscribed.
Pursuant to the controlled substance, Drug Device and
cosmetic Act, §13(a)(14) prohibits the following:
(14) The ... prescription of any controlled substance by
any practitioner ... unless done (i) in good faith in
the course of his professional practice; (ii) within
the scope of the patient relationship; (iii) in
accordance with treatment principles accepted by a
responsible segment of the medical profession.
Section 13(a)(13) of the controlled substance, Drug Device
and Cosmetic Act prohibits the following:
(13) The ... prescription ... by any practitioner
otherwise authorized by law to do so of any controlled
substance to any person known to such practitioner to
be or whom such practitioner has reason to know is a
drug dependent person, unless said drug is
prescribed, ... for the cure or treatment of some malady
other than drug dependency ...
The Superior court has considered the argument that
§13(a)(14) of the act is unconstitutionally vague in violation
of the Due Process Clause of the Fourteenth Amendment of the
United States Constitution, and has refuted such contention,
finding the statute to be constitutional in commonwealth v.
Possinger, 264 Pa.Super. 332, 399 A.2d 1077 (1979).
In Possinger, the defendant physician was convicted of
violating the above statute under circumstances similar to the
case at bar, where the defendant is accused of prescribing high
amounts of controlled substances to patients where visits would
53RD
JUDICIAL last a couple of minutes, exams did not include the taking of
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vital signs, little, if1 a11y,-:·ph~sical examinations, self-
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reporting of physical conditions with requested increases of
medication, providing patients with requested prescriptions
without a medical basis to do so and providing prescriptions to
patients who were known to sell drugs obtained with the
defendant's prescriptions and to others who were known addicts
who fed their habit with drugs obtained from the defendant.
Possinger found the statute to be constitutional both on its
face and as applied to the facts of the case.
The manifest purpose of the statute, as noted 1n Possinger,
is to limit the dispensing of controlled substances by a
physician to the bounds of his professional practice, and to
prevent "drug-pushing" by doctors.
The terms of a penal statute creating an offense must be
sufficiently explicit to inform those who are subject to it of
the conduct on their part which would render them liable to its
penalties. Connally v. General construction co., 269 u.s. 385,
46 s.ct. 126 (1926). A statute which either forbids or requires
the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as
to its application, violates the first essential of due process
of law. In order to survive a vagueness challenge, the statute
in question must give adequate notice of what is criminally
proscribed. Lansetta v. State of New Jersey, 306 U.S. 451, 59
S. Ct. 618 (1939). In order to survive a vagueness challenge, a
court must determine that the statute gives a person of ordinary
53RO intelligence a reasonable opportunity to know what is prohibited
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and that the law provides, ex.pJ:i.c;:J:~ .st anda rds for those who apply
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it. chatin v. Coombe, 186 F.3d 82, 87 (2nd Cir. 1999); Unit~g
states v. Handakas, 286 F.3d 92, 111 (2nd cir. 2002).
Relative to the first two subdivisions of §13(a)(14),
specifically subsections (i) and (ii) the Possinger court stated
the following:
That the first two subdivisions of this statute meet
the requirements of due process should not be doubted.
congress has passed provisions similar to §780-
113(a)(14), See 21 u.s.c. §802(20), 829(a)(b) and
841(a)(1)(1972), which federal courts have repeatedly
upheld under attacks based on the Fourteenth
Amendment. In United States v. Jobe, 487 F.2d 268
(10th cir. 1973), cert. Denied 416 U.S. 955 94 s.ct.
1968, 40 L. Ed. 2d 305 (1974), a physician, under facts
almost identical to the facts here, was convicted
under the federal statutes. on appeal, the court held
that the conviction was valid, and that the
Defendant's due process rights were not violated
because the federal statutes proscribed the
prescription of contra 11 ed substances un 1 ess for "a
legitimate medical purpose" and "in the usual course
of (the doctor's) professional practice. united
States v. Jobe, supra at 269. see also united States
v. collier, 478 F.2d 268 (5th cir. 1973); United
states v. Rosenberg, 515 F.2d 190 (9th cir.) cert.
Denied 423 U.S. 1031, 96 S. Ct. 562, 46 L. Ed. 2d 404
(1975); Annot., 33 A.L.R. (Fed.) 220, 223-34 (1977).
(The term "in the course of professional practice" is
not vague because it has been subject to frequent
judicial construction).
Possinger, at 1079, 1080.
Possinger then went on to consider the constitutionality of
§13(a)(14) in connection with the third subsection, (iii)
requiring that the dispensing of controlled substances be "in
accordance with treatment principles accepted by a responsible
segment of the medical profession." Possinger cited
commonwealth v. Steffan, 228 Pa.super. 127, 323 A.2d 318 (1974)
5.HfO
for the proposition that this statutory provision was specific
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could be held legally accountable. In Steffan, the court was
interpreting §13(a)(14) of the Controlled substance, Drug Device
and cosmetic Act (35 P.S. §780-113(a)(14)), as it read prior to
its amendment in 1974, which prohibited prescription of a
controlled substance except after a physical or visual
examination or except where the practitioner 1s satisfied by
evidence that the person is not a drug dependent person.
stoffin held that evidence of what treatment principles are
accepted by a responsible segment of the medical profession
would indicate what a practitioner generally must do in order to
obtain sufficient information to form an opinion that the
patient is not drug dependent, and that by considering what the
practitioner has done in particular circumstances, and by
comparing his conduct with what a reasonable segment of the
medical profession would say should have been done, a
determination may be made whether a physical or visual
examination was conducted. Possinger, citing and relying on
stoffin, concluded that the clause ''in accordance with treatment
principles accepted by a responsible segment of the medical
profession" was specific enough to provide a standard of conduct
to which physicians could be held legally accountable.
Possinger concluded that the fact that the clause when
interpreted by Stoffan, was found 1n a different section of the
Controlled substance, Drug Device and cosmetic Act and was not
added to section (a)(14) until 1974, after Stoffin was decided,
53RO did not make the clause less specific. Possinger, at 1080.
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Defendant also asserts a vagueness challenge as applied to
the facts of this case. In United States v. Mazurie, 419 U.S.
544, 95 s.ct. 710, the united States supreme Court held that
vagueness challenges to statutes which do not involve First
Amendment freedoms must be examined in light of the facts of the
case at hand.
The court here concludes that even utilizing the fact-
specific review of the statute, the statute, §13(a)(14) of the
Controlled substance, Drug Device and Cosmetic Act is not
unconstitutionally vague as applied to this case because the
statute is sufficiently detailed to put a person liable
thereunder on notice of the proscribed conduct, including the
conduct complained of here. As stated in Connally v. General
construction co., 269 u.s. at 391, 46 s.ct. at 126, "It will be
enough for present purposes to say generally that the decisions
of the court upholding statutes as sufficiently certain, rested
upon the conclusion that they employed words or phrases having a
technical or other special meaning, well enough known to enable
those within their reach to correctly apply them. Here,
applying the reasoning of Possinger, the statute provides an
adequate description of the conduct that is not permissible, and
clearly health care professionals are able to understand the
parameters of the statute. Although the Defendant here asserts
that the statute is too vague to give him reasonable notice that
the conduct alleged this case was illegal; nonetheless,
53RO Possinger stands for the proposition that a statute affecting
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medical practice will! O'B1;'cPi~c~e,emed unconstitutionally vague
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because it "need not delineate the precise circumstances
constituting the bounds of permissible practice''. united States
v. collier, Supra, at 272. As the Po~singer court stated:
Even though doubts as to the applicability of §780-
113(a)(14) in marginally fact situations can be
conceived, in more doubtful cases than the one
presented here the courts have confirmed convictions
recognizing that the law is full of instances where a
man's fate depends on his estimating rightly, that is,
as a jury subsequently estimates it, some matter of
degree. commonwealth v. Heinbaugh, 467 Pa. 1, 7, 354
A.2d 244, 247 (1976) citing United states v. Powell,
423 u.s. 87, 93, 96 s.ct. 316 (1975). see also
Commonwealth v. Hughes, 468 Pa. 502, 363 A.2d 306
(1976). [F.N.3].
commonwealth v. Possinger, 264 Pa.Super. at 335, 399 A.2d at
1080.
Here, 1n addition to the factors above set forth upon which
the commonwealth relies, the Commonwealth has obtained an expert
opinion that the Defendant's conduct was not in accordance with
treatment principles accepted by a responsible segment of the
medical profession. The expert opinion reviews the medical
records of the each of the patients of the defendant doctor and
points out how the prescribing of the controlled substance in
each case fell below the accepted standard of medical practice,
and how the prescribing of the controlled substance was not in
accordance with treatment principles accepted by a responsible
segment of the medical profession. As to each patient, expert
opinion details what is shown in the records, and what would
have been required to be shown or done by the doctor in order to
justify the prescribing of the contraband in accordance with
53f>Cl
JUOICI.C '- accepted medical principles. Although this evidence has yet to
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juncture of the case only as it relates to Defendant's argument
as to the constitutionality of the statute as applied to the
facts of this case, to demonstrate that at this point in the
case there is no basis, in accordance with Possinqg~, to
conclude that the statute is unconstitutionally vague as applied
to this case, where it is found to be constitutional on its
face.
Relative to Defendant's argument that §13(a)(13) of the
controlled substance, Drug Device and Cosmetic Act, which
prohibits prescribing a controlled substance to an individual
when the Defendant knew or had reason to know that the
individual was a drug dependent person, the court notes that the
statute which was reviewed in commonwealth v. Steffan, supra,
which in turn was relied upon by commonwealth v. Possinger,
Supra, in addressing the constitutionality issue addressed a
statute that was a predecessor to the current version of
13(a)C14) of the controlled substance, Drug Device and cosmetic
Act, which prohibited the prescription of a controlled substance
except after a physical or visual examination or except where a
practitioner is satisfied by evidence that the person is not a
drug dependent person. The court held that the commonwealth had
the burden of proving that the practitioner was not satisfied by
evidence that the person was not a drug dependent person and
that this element was a subjective standard. However, the use
of this subjective standard did not bar the introduction of
Si RO
expert testimony. Evidence of minimum standards in medical
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by the trial judge, relative to the commonwealth's burden to
prove that the practitioner was not satisfied by evidence that
the person was not a drug dependent person. Thus, for purposes
of that statute, prohibiting prescription of any controlled
substance except after a physical or visual examination or
except where the practitioner is satisfied by evidence that the
person is not a drug dependent person, the commonwealth may meet
its burden of proof with evidence of treatment principles
accepted by a responsible segment of the medical profession that
would indicate what a practitioner must do in order to obtain
sufficient information to form an opinion that the patient is
not drug dependent. Steffan further stated that by considering
what the practitioner has done in the particular circumstances
and by comparing his conduct with what a reasonable segment of
the medical profession would say should have been done, a
determination may be made whether a physical or visual
examination was conducted. Although Steffan itself did not
specifically address an argument as to the constitutionality of
the statute based on vagueness, Possinger relied upon the
analysis in Staffon to address the constitutionality argument
with respect to 13(a)(14). Thus, the conclusion here is that it
is not a violation of due process to rely upon a standard
consisting of treatment principles accepted by a responsible
segment of the medical profession in defining what constitutes
the unlawful prescribing of a controlled substance to a drug
5:Ro
dependent individual.
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Defendant specifically argues that a lack of notice exists
because the commonwealth Board Guidelines expressly direct that
"physicians should recognize that tolerance and physical
dependence are normal consequences of sustained use of opioid
analgesics and are not synonymous with addiction; that counts
22-28 allege that Dr. Scott prescribed medications to "drug
dependent" patients and that the defi ni ti on of "druq dependent"
contained in §2 of the Act (35 P.S. §780-102) means a person who
is both a "drug addict" and who is "drug dependent". Defendant
argues that the guidelines encourage pain management physicians
to consider the signs behind drug tolerance and dependency and
to continue treatment of patients with opioids even if tolerance
and dependence are apparent; however, the statutes §13(a)(13)
and §2 criminalize prescribing to a "drug dependent" person.
Therefore, Defendant argues that the physician is essentially
caught ,n a trap that is violative of due process, since one
branch of government expressly encourages conduct which another
branch criminalizes and prosecutes. Defendant also asserts
violations of the Commonwealth's constitution, §9 due process
and the constitutional prohibition against ex post facto laws 1n
§17.
The court concludes that the Defendant's argument must fail
because it is not the guideline that defines criminal conduct
but, rather, the criminal statute, §13(a)(13). Irrespective of
what the guidelines announce as being the normal consequences of
53~0
sustained use of opioid analgesics, the statute is clear as to
JUDICIAL.
DISTRICT what a doctor cannoL~r_dA1fx11.11, .Ji ght of the ho 1 dings of Stoffan and
1.AINR£:NC£ COUNT,
r&:NNSVI.VANIA
.
I r
Circulated 03/27/2015 03:36 PM
Possinger. Irrespective of the guideline, the doctor cannot
prescribe a controlled substance to a person known to a
practitioner to be or whom such practitioner has reason to know
is a drug dependent person. A drug dependent person is defined
as a person using a drug, controlled substance or alcohol, and
who is in a state of psychic or physical dependence, or both,
arising from the administration of that drug, controlled
substance or alcohol on a continuing basis. The definition goes
on to state that such dependence is characterized by behavioral
and other responses which include a strong compulsion to take
the drug, controlled substance or alcohol on a continuous basis
in order to experience is psychic affects or to avoid the
discomfort of its absence, the definition to include persons
commonly known as "drug addicts". Simply put, the statute
criminalizes the prescribing of a drug to a person who is in a
state of psychic or physical dependence on that controlled
substance. The only exception in the statute which would allow
the prescribing of a controlled substance to an individual who
is drug dependent would be if the drug is prescribed for the
cure or treatment for some malady other than drug dependency.
If the physical dependency meets the definition contained in §2,
and the dependency is known or the practitioner has reason to
know of the dependencyt and if the prescribing of the medication
is not for the cure or treatment of some malady other than drug
dependency, then the drug cannot be prescribed without violating
53RO §13 of the controlled substance, Drug Device and cosmetic Act.
JUDICIAL
DISTRICT
LAWRENCE: COUNTY
PENNS Vt.VANIA
Il
Circulated 03/27/2015 03:36 PM
Any interpretation of the referenced guideline must give way to
the directive of the criminal statute.
Defendant also argues that the counts premised upon a
violation of §13(a)(13) of the act should be dismissed because
the statute itself provides Defendant with an exemption from its
application. The statute is not violated if the drug is
prescribed for the cure or the treatment of some malady other
than drug dependency. Defendant asserts that there can be no
evidence that Defendant was undertaking to treat patients who
were "drug dependent,, as he was treating them for subjective
reports of pain as verified by objective clinical data. The
difficulty with Defendant's argument is that it does not address
the constitutionality of the statute but rather raises a factual
issue as to whether the statute has been violated. This factual
issue must be reserved for the trial of this case and cannot be
determined at this juncture.
CONCLUSION
For the reasons above set forth, Defendant's Motion to
Dismiss shall be denied by separate order of court.
53RO
JUOICIA I..
DISTRICT
LAWRf"NCE COUNTV
PENNSYt.VANIA
12
Circulated 03/27/2015 03:36 PM
COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS
vs. LAWRENCE COUNTY, PENNSYLVANIA
VAN EDWARD SCOTf NO. 516 OF 2010, CR.
OTN: 5058963-2
NO. 255 OF 2013, CR.
CTN~ T296671-4
APPEARANCES
For Commonwealth: G reqory J • c; illli"t t I c , E sc.J .
Dc>puLy At t ornr-y c,c:11c1·~l
n rfi CC! 0 F the I\ l l ornoy Genera 1
/\PP•"als anrl I e1~nl services ser t ion
5611 1 o rbe s Avenue, 6 L.h rl oar
Pittsburgh, PA 15219
For Defendant: Mark K. McCulloch, Esq.
Brownstone, P.A.
201 N. New York Avenue, suite 200
P.O. Box 2047
Winter Park, Florida 32790
OPINION
JUNE 17, 2014
Mono, P.J
The Defendant having filed an appeal to the superior court
from the Judgment of sentence issued in each of the above
captioned consolidated cases, and the court being in receipt of
Defendant's concise Statement of Matters complained of on
Appeal, this opinion is issued in conformity with ra.R.A.P.
1925(a).
Following a jury trial, the Defendant was convicted at case
No. 516 of 2010, er. of six counts each of Prescribing outside
Accepted Treatment Principles, an unclassified felony, ,n
!i3no
violation of 35 Pa.C.S.A. §7B0-113(a)(14) of the controlled
JlJOtCIA L
OISTRICT substance, Drug Device and cosmetic Act; six counts of
LAWRF"Nt-l COlJN,..Y
PCN.-.SV1.,.\IANIA
Circulated 03/27/2015 03:36 PM
Prescribing Not in Good Faith in course of Professional
Practice, an unclassified felony, in violation of 35 Pa.C.S.A.
§780-113(a)(14) of the controlled substance, Drug Device and
cosmetic Act; and one count of Prescribing to a orug Dependent
Person, an unclassified misdemeanor, in violation of 35
Pa.c.s.A. §780-113(a)(13) of the controlled substance, Drug
Device and cosmetic Act. Defendant received an aggravated
sentence of imprisonment of not less than 8 years nor more than
16 years.
At case No. 255 of 2013, er., Defendant was convicted of
and sentenced following a jury verdict on charges ot Dealing in
unlawful Proceeds, a felony of the 1st degree, in violation of
18 Pa.c.s.A. §Slll(a)(2) of the crimes code; Tampering
With/Fabricate Physical Evidence, a misdemeanor of the 2nd
degree. in violation of 18 pa.C.S.A. §4910(1) of the crimes
code; and obstructing Administration of Law or Other
Governmental Functions1 a misdemeanor of the 2nd degree, in
violation of 18 Pa.c.s.A. §5101 of the crimes code. The
sentences at case No. 255 of 2013, Cr. were ordered to be served
concurrent with each other but consecutive to the sentences at
case No. 516 of 2010, er. adding thereto a term of imprisonment
of not less than 1 year nor more than 2 years, the Defendant's
total aggregate sentence of imprisonment in both cases therefore
amounting to a total sentence of not less than 9 years nor more
than 18 years.
'~,; I)
JUC•tr.JA L
O S'f"IC.T
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In the concise Statement of Matters co~plained of on
Appeal, Defendant raises seven assignments of error, each one of
which shall be addressed separately in this Opinion.
A. Ft rnr in_!:)£1JW-11.f2lnt1on_ '~o IJic,11.Li~_ncl Mot ion
.fnr_Qj_r·pc·tccl Vl:!l'Cill~ n r Cd!.-l1 Mo. _il{i 9L_)()lQ-J. [.f·-
.!l.!l..l>CJSi!i rh,11 c.l1r11:.!J·1119 ·,t.il'l/lCl is constitution~Jly
u.Y.£..CJ.v;o.,d and vo i 656 A.2d 890, 909 (Pa.super. 1995),
app.denied, 543 Pa. 695; 670 A.2d 142 (1996).
Nothing about Mr. colosimo's testimony was inflammatory or
such that would cause the jury to put the Defendant unfairly in
a bad light. Even without expert testimony, the average person
would understand that drugs are controlled and in general
unavailable with~ut a prescription from a medical doctor.
Providing a jury with more background information on the process
for determining how drugs are scheduled, the basis for
determining different schedules for certain drugs, including the
S311c drugs that the Defendant was accused of unlawfully prescribing,
JIJOICIAL
Ol~TrttCT would aid the jury in understanding the evidence that would be
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6
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subsequently presented as to the illegal activity of the
Defendant. The witness clearly acknowledged that he had no
information as to any illegal activity of the Defendant, but was
explaining a process relative to which Defendant was subject.
Essentially, Mr. Colosimo educated the jury on the concept that
the medications that were the subject of this case were in fact
controlled substances and not obtainable without a valid
prescription issued by a licensed physician for a legitimate
medical purpose. Defendant did not set forth any specific
reason at trial as to why such testimony should be considered to
be prejudicial to him.
c. Admissibility of Data summary
In Paragraph c of his concise Statement the Defendant
states that the court erred and abused its discretion in
admitting into evidence an inaccurate, incomplete, and highly
prejudicial data summary.
commonwealth Exhibits 30 through 37 consisted of a summary
of prescriptions for Schedule II substances written by the
Defendant relative to the specific patients who were alleged to
have been illegally prescribed these substances by or. Scott.
The exhibits constitute a summary of voluminous information
compiled from other sources. The summary identified the
pa ti ent, the prescriptions issued to the patient, the date of
the prescription and the specific drug for which the
53NlJ prescription was issued, the date of an office visit, the
JUDICIAL
DISTRICT
._ ... Wl'lt'4~C C<)U .. TII
~t.N~SY l,.VAlliA
7
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pharmacy at which the prescription or p rescri pti ons were fil 1 ed,
and the dosage unit as in quantity of pills.
This information was compiled from patient profiles
obtained from the pharmacy, original prescriptions and the
patient file maintained by Defendant. Each chart or exhibit
related to a separate patient.
The information contained in the summary was clearly
relevant as it showed exactly the pattern of prescribing that
Defendant utilized relative to each of the patients that were
involved in this criminal proceeding. obviously, what the
doctor prescribed, how often and under what circumstances, was
the basis for the charges of overprescribing or prescribing not
in accordance with accepted ~edical criteria themselves. The
question therefore becomes one of authentication which is
specifically governed by Pa.R.E. 1006. That rule provides in
its entirety as follows:
n.u I~ JOQ_G...~ t.:,LJm.rnar i es tQ pr eve c:.011 ~en i .
The p r oponen t 111,1,y u~e a summarv , chart, or catcut at ton to
prove the corvron r ol vu.luminous wr i t i nqs , recordings or
rhc,Logr.iph!> 1 hnt r.muo t be conveniently examined in court.
rue p roponeu t rnu ... t tr1t-1l i IJ IL', »vvn if· t Irey ,ff<• never· ad111 i r t ,,,1; (2) 1 lw
1wu1•:Jr,L.
unrh-r ly111q tlr,ct1111r111r .., 111lJ~t IJ0 Lou volw11inou", l or umvi:>ni,:111
o rr rr~,r':T in r ou r r n·viPw; (3) llw r h.rr t s n1u51 ~1r1ur,Hl!IY ~~u111rnnf'i~e
th11 umlerlyi11q dor.11111P11Ls; r'1) Lhr.• ,111111nr1t y 1 har r.s .111cJ th,~
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underlying documents must have been made available at a
reasonable time and place for inspection by the opposing
side; and (5) the person who prepared the charts must have
been made available for cross-examination.
~nited States v. Aertoli, 854 F.supp. 975, 1051 (D.N.J.), Aff'd.
in part, rev'd in part on other grounds, 40 F.3d 1384 (3d Cir.
1994).
F.R.E. 1006 ''recognizes that it often takes a great deal of
court time to introduce a legion of documents to establish a
single point". Bertoli, 854 F. Supp. at 1050. "rn addition,
courts cannot rationally expect an average jury to compile
summaries and to create sophisticated flow charts to reveal
patterns that provide important references ... "
In Pennuor v. Anio~n~t_. co., 666 A.2d 753 (Pa.Commw.
1995), a summary of spread sheets itemizing the elements of a
bid, together with the total estimate for a project was held
admissible. The court noted that the prerequisite for
admissibility was the testimony of the individual who had
developed the estimate, who was available for cross examination,
and who had reconstructed the bid on the spreadsheets,
sumrnari zing the same vo 1 umi nous i nformati on from which the
original bid was constructed. rn Keller v. P9rta. 172 Pa.super.
651; 94 A.2d 140 (1943), records available for a defendant's
examination but not placed into evidence were appropriately the
subject of a summary admitted into evidence.
The court finds that the requirements of Pa.R.E. 1006 have
been met. All of the information was obtained either from the
:i.s .. ,,
JIJC,ICIA L pharmacy patient profiles, the original prescriptions issued by
C,ISTRIC':"
the Defendant, and information obtained from the Defendant's own
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9
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files relating to the subject patients, and the exhibits
constituted a summary of voluminous information. (Notes of
Testimony, June 11, 2013, p. 104). It is undisputed that the
majority of the data in the charts was made available through
discovery at least three years before trial, including patient
visits and the dates of the visits. The existence of original
prescriptions that were confiscated from pharmacies was also
given in discovery. Defense counsel had also been advised that
any piece of evidence in the custody of the Commonwealth could
be examined by making arrangements to come to the office and
review physical evidence. Pharmacy profiles were referenced in
search warrants that were disclosed in discovery and pharmacy
profiles were attached to the reports of the investigating agent
that were disclosed in discovery. counsel for Defendant at
trial agreed that there was no issue regarding pharmacy profiles
stating "vie don't have any problems with pharmacy profiles.
They are what they are." (Notes of Testimony, June 11, 2013, p.
104, 105). Furthermore, the patient profiles themselves were
admitted into evidence without objection. The patients' files
are marked commonwealth Exhibits 4 through 11. Exhibits 22
through 28 are patient profiles taken from specific pharmacies.
Commonwealth Exhibits 13 through 21 are original prescriptions.
These original prescriptions were admitted over obJection that
there was not sufficient authentication of the handwriting;
however, the prescriptions themselves which were included within
53RC the summary were nevertheless available for inspection by
JUOICtAl.
DISTRICT
Defendant and counsel for oefandant. At trial, Defendant's
"r.~ c~v,, ,v
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Circulated 03/27/2015 03:36 PM
counsel argued that the summary was incomplete because
prescriptions that were deemed suspect were not included in the
chart. However, the ones that were ·included in the chart were
the originnl prescriptions that could be corroborated by the
doctor's own patient files. To exclude those that could not be
corroborated worked only to the Defendant's advantage and, to
the extent that Defendant wished to point out the perceived
inaccuracy or incompleteness of the chart, he was free to do so
on cross-examination. The authentication of these prescriptions
is discussed in section o, infra. However, the court's
conclusion here is that the summaries were made from admissible
and original documents that were available to the Defendant for
inspection prior to and at trial, and which were voluminous,
therefore meeting the requirements of Pa.R.E.P. 1006.
D. /\U tli~nt i ca tJ_ori_Q._l __t ldt1, fwr ! t· i rm 011 r>r·1• sc r i Pll.9..M
Wrilt.!; ...'1 by n« !"~t1d,1p t .
In subsection D of the concise Statement of Matters
complained of, the Defendant contends that the court erred and
abused its discretion in permitting a lay witness, James Embree,
with no basis and knowledge or fact, to authenticate handwriting
on certain prescriptions that were supposedly written by the
Defendant-Appellant.
comwonwealth agents, including Agent Embree, utilizing
search warrants, had seized from various pharmacies
$:lnn prescriptions that were represented to be the original
.J:.Jt.tClr\L
OIST~tc;T
prescriptions on record with the pharmacies written by
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Defendant. After testimony had already been introduced
establishing that these were original prescriptions filtered to
be only ones prescribed by Defendant, Agent Embree corroborated
that determination by testifying that he had compared all of the
signatures on these prescriptions and stated that they all
appeared to be written by the same individual and that they were
di sti ncti ve because he observed a very di sti net ''capita 1 V" for
the beginning of his name "Van Scott" and that all of the
signatures looked sim1lar.
Although Defendant characterizes the testimony of Agent
Embree as authentication of Defendant's handwriting, in reality
the agent was making an observation as a lay person that all of
the signatures appeared to be similar, an observation that could
have made just as easily hy the trier of fact. Agent Embree did
not propose to have any special expertise nor any particular
familiarity with Defendant's signature other than the fact that
all of the signatures on prescriptions that were seized and
provided to him as being Defendant's prescriptions were all
similar in appearance.
The real question regarding this issue is whether the
prescriptions identified as those being of the Defendant were
properly authenticated, which prescriptions were ultimately
summarized in the exhibits above referred to as the "data
summary".
The prosecution of this case was based upon eight patients
,.1-.c., of Defendant. Introduced into evidence were the eight patient
J'JOIC P. L
DISTRICT files of the Defendant, all of which containing entries as to
LAWr, ct. c• t"r),IIITY
t•r'iNE,'(LIIANIA
12
Circulated 03/27/2015 03:36 PM
what or. Scott prescribed. In addition, patient profiles from
each pharmacy utilized by the eight patients were seized.
Patient profiles are maintained by a specific pharmacy and
gathers data about any prescription that a patient would have
filled at that pharmacy. unobjected to testimony of Agent
Embree established that the pharmacy keeps the data for their
own business use and that data can be searched for the benefit
of the agent using filters that allow a search by patient and by
specific nedications. This data is used to provide statutory
requirements as to distribution of schedule II drugs by the
pharmacy. Agent Embree collected patient profiles for the eight
patients identified in the patient files that were introduced
into evidence as Exhibits 4 through 11. ne requested patient
profiles from April 6, 2005 through April 61 2010 relative to
Defendant, or. van Edward Scott, narrowed to schedule II
substances. Independent exhibits were offered into evidence for
I approximately
I
ten pharmacies. Exhibit No. 21 was the patient
profile received from College Hill Pharmacy relative to patient
Barbara I7otic, notarized. It showed the prescriptions filled
for patient Barbara Izotic at College Hill Pharmacy for
prescriptions written by defendant for the period April of 2005
through April 2010. This process was repeated for other
patients for Exhibits 23 through 29, which showed prescriptions
written by Defendant for the patients who were the subject of
this criminal prosecution.
In addition, Agent Embree and other dgents working under
,uorct" 1.
Of:HRICT his supervision seized original scripts from the pharmacies.
\..A•'v•,•~i. .::" t..:outrr,n"'
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without objection, these original scripts were identified
without objection as being original prescriptions seized from
the various pharmacies by the agents. Notes of Testimony, July
11, 2013, p. 89, 90 and 91.
All of these prescriptions which formed commonwealth's
Exhibits 13 through 21 were identified as being original
prescriptions written by Defendant for the various patients
involved in these proceedings with testimony that they had been
filtered for only ones prescribed by van Scott, all of this
testimony coming in without objection. An objection came only
when Agent Embree made the observation that all of the
signatures on these prescriptions were similar. The only
prescriptions utilized were prescriptions that matched with the
pharmacy profiles.
Pa.R.E. 901(a) provides that to satisfy the requirement of
authenticating or identifying an item of evidence, the proponent
must produce evidence sufficient to support a finding that the
item is what the proponent claims it is. The authenticity of a
writing offered as evidence is always a preliminary matter for
the court to determine. ~renner v. Lesher, 332 Pa. 522, 525; 2
A.2d 731, 733 (1938). The preliminary question for judicial
determination is whether the testimony, if believed by the jury,
would establish the identity of the documents or exhibits
offered. only the trier of fact way decide whether the evidence
is worthy of any credence. ~ommonwealth v. Brooks, 352
~3.. .
HIOICl/\l
Pa.Super. 394, 401, 508 A. 2d 316, 320 (1986) .
o,s,1;1;r
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When the proposed evidence is a document, "the existence of
some connection between that writing and a particular
individual'' will have to be shown. The showing depends on "what
standards are to be applied in determining whether the
connection has been made to appear. comm_onwea l th v. Harri son,
290 Pa. 389, 397-98; 434 A.2d 808, 812 (1981) quoting McCormick,
Law of Evidence, section 218 at 543 (2d Ed. 1972). In
commonwealth v. Brooks, supra, one of a series of letters
written by a defendant to the witness was held authenticated by
the appearance, contents and surrounding events.
Additionally, a lay person is able to recognize signatures
or handwriting with which they are familiar. A document can be
identified under Pa.R.E. 901(b)(2) through the opinion testimony
of lay witnesses who are familiar with the handwriting or
signature that appears thereon. The signature on the document
may provide a basis for identification and admission of the
document into evidence. Neither expert testimony nor comparison
to specimens are involved in this method. The identification of
handwriting is "one of the few instances in which law accepts
from witnesses belief in facts, instead of facts themselves".
Travis v. B ,·own, 43 Pa. 9, 12 (1862). The kn owl edge of the
witness as to the handwriting must have been acquired for some
purpose other than testifying in the litigatlon. Morgan v.
First Pennsv1vania sank, 373 Pa. 408, 413-14; 541 A.2d 380, 383
(1988).
5Juu
Here there is sufficient evidence to authenticate the
JUO LIAL
o,:y~ ICT original prescriptions as having been issued under the signature
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15
Circulated 03/27/2015 03:36 PM
of the Defendant. The unchallenged testimony of Agent Embree
was that these were the original prescriptions of or. Scott
provided to him by the pharmacies as the result of a warrant
procedure, which were in fact maintained by the pharmacies.
These prescriptions matched up with the patient profiles
maintained by the pharmacies as required by law, and with the
information contained in the patient files that were in fact the
patient files maintained by Defendant Scott. In addition, the
agent testified that all the signatures looked similar and had
the distinctive characteristic of the "c ap i t a l v" as the
beginning of Defendant's names and the agent would have been
familiar with the signature as there were prescriptions that the
agent received directly from cooperating witnesses who procured
the prescriptions from or. Scott but instead of processing them,
gave them directly to the agent. Prescriptions obtained from
the pharmacies that were not consistent with the patient
profiles or the patient files were not utilized as evidence, nor
was information fro~ them utilized in the data summary. All of
these factors cause the court to conclude that the prescriptions
were properly authenticated in accordance with Pa.R.E. 901(a).
E. Deni 11 _ol (lllotiQ.O !;91· 111.J:.(.'< lc'd verd n ~
,tL~ a·!..., No, ~5S nf ?01 i
In Paragraph E of Defendant's concise Statement Defendant
alleges that the court erred and abused its discretion by
denying Defendant-Appellant's Motion for a Directed verdict in
case No. 255 of 2013, er. or the commonwealth failed to
~Snn
JtJrl,CIAL introduce any evidence at trial that Defendant-Appellant had the
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16
Circulated 03/27/2015 03:36 PM
requisite intent necessary to support d finding of guilt on any
of the charges.
At case No. 255 of 2013, Cr. Defendant was convicted of and
sentenced on charges of Dealing in Unlawful Proceeds, a felony
of the 1st degree, in violation of §Slll(a)(2) of the crimes
code; Tampering With/Fabricate Physical Evidence, a misdemeanor
of the 2nd degree, in violation of §4910(1) ot the crimes code;
and obstructing Administration of Law of other Government
Functions, a misdemeanor of 2nd dPgree, in violation of §5101 of
the CriMes code.
All of these charges related to the actions of Defendant in
liquidating various financial accounts owned by him after said
accounts had been seized as the result of forfe·iture proceedings
arising out of the consolidated case at No. 516 of 2010, er.
Defendant was arrested on the underlying criminal charges
at case No. 516 of 2010, er. on Apri ·1 8, 2010. and received a
copy of grand jury Presentment No. 4 and was provided with
notice that his financial accounts had been seized and frozen.
on November 29, 2010, senior Deputy Attorney General Ronald
Thurner filed a petition for forfeiture and condemnation
regarding the seized property. The pet·irion was delivered by
certified mail to Defendant and on December 7, 2010 Scott
accepted delivery and s1gned the domestic return receipt. As to
each of the counts in question, the Commonwealth presented
evidence at trial that Defendant, with knowledge of the seizure,
'iJOiO took specific action to liquidate the financial accounts in
JUOIC.IA L
OICTn1cT question. For example, on August 4, 20)0, Defendant submitted
'"~"F.,-.-r c:ou,-1-yy
PINNS "(LV" "I"
17
Circulated 03/27/2015 03:36 PM
two "Requests for Disbursement/Systematic Withdrawal" forms to
OM Financial Life Insurance company requesting full surrender of
a cash surrender value of the account.
on January 31 2010, Defendant submitted an "Annuity
Distribution Request" for the Lincoln Financial Group requesting
a total surrender of the policy.
on August 3, 2010 1 Defendant submitted a "Request for
Withdrawal" form to symetra Financial requesting a total
withdrawal of the entire amount from the annuity account.
on October 1, 2012, an "in camera motion hearing was
conducted before the undersigned judge wherein the court was
advised by the commonwealth that the Defendant was suspected of
liquidating seized accounts. The court scheduled a hearing on
the motion for October 15 1 2012. on the same day that this
court was advised of the suspected theft. Defendant issued a
check for $150,000.00 to slue Island LLC from his account at
Fifth Third Bank that contained monies that had been transferred
from constructively seized and frozen accounts.
on January 4, 2013, a search warrant and grand jury
subpoena was served at Fifth Third Bank at Gulf Tower,
Pittsburgh, Allegheny county, Pennsylvania for Defendant's
account records. The records revealed that the account was
empty and that recent activity included a cashier's check for
$25,000.00 issued on August 30, 2012 to Defendant's medical
expert for the criminal trial. The records also snow the
5)RO
October 1, 2012 personal check written by Defendant to Blue
JUOICIA L
DISTRICT Island LLC for $150,000.00 and a cashier's check to Sharon F.
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J8
Circulated 03/27/2015 03:36 PM
Scott for $27,243.22 on October 10, 2012 that effectively
emptied the account.
The commonwealth evidence showed that Defendant's actions
,n liquidating seized and frozen accounts was intentional and
knowing, and done after he had been served with notice that the
accounts were seized and frozen. To the extent that the
Defendant offered explanations suggesting that he did not
understand that he was prohibited from having access to these
monies, and therefore did not have the requisite intent, such
evidence was for the jury to evaluate, and for the jury to
accept or reject. As a matter of law, there was sufficient
evidence of record for the jury to conclude that the Defendant
acted with the requisite intent.
The offense of dealing and proceeds of unlawful activities
in violation of §Slll(a)(2) of the Crimes code requires evidence
that a person conducted a financial transaction with knowledge
that the property involved represents the proceeds of unlawful
activity and that the transactions designed in whole or in part
to conceal or disguise the nature, location, source, ownership
or control of the proceeds of unlawful activity. Ample evidence
was presented that Defendant made large amounts of money by
unlawfully dispensing controlled substance, and that the actions
complained of relative to these proceeds constituted financial
transactions, engaged in by liquidating the accounts in question
and converting them to his own use, and that in so doing he
=>lt.rl concealed and disguised the nature, location, source, ownership
I I) C, 1,: .'\ I.
Cll~Tr,r-:-, and control of these proceeds. The evidence shows that he
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19
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engaged in the financial tractions knowingly and intentionally,
that he knew that he was dealing with assets that were frozen
and forfeited, and he certainly knew that the assets represented
proceeds of his unlawful activity as he himself engaged in this
activity and controlled his own finances.
As to the offense of Tampering With/Fabricate Physical
Evidence, in violation of §4910(1) of the crimes code, the
elements are that Cl) the Defendant knew that an official
proceeding or investigation was pending or about to be
instituted; (2) the Defendant altered, destroyed, concealed or
removed an item; and (3) the Defendant did so with the intent to
impair the verity or availability of the item to the proceeding
or investigation. commonwealth y, Yasinour, 957 A.2d 734
(Pa.Super. 2008), appeal denied 980 A.2d 111, 602 Pa. 658.
Thus, in commonwealth v. Neckeraue.r., 617 A.2d 421, 1281
Pa.super. 255 (1992), evidence presented at a preliminary
hearing was sufficient to establish a prima facie case that the
Defendant unlawfully tampered with physical evidence, based upon
his conduct in removing a motorhome that was the focus of a
police investigation. It could be inferred from testimony
presented that the defendant intended to conceal the motorhome
and impair its availability in the police investigation. Here,
the fact finder could infer that the Defendant intended to
remove the proceeds of his illegal activities in order to
conceal their whereabouts and impair the availability of these
6.3,,,. proceeds as they related to the criminal investigation and
JIJl)I(: IA l.
1'1$f/Ht:T prosecution against him.
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20
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The offense of Obstructing the Administration of Law or
Other Governmental Function, a violation of §5101 of the Crimes
code, occurs where a person intentionally obstructs, impairs or
perverse the administration of law or other government function
by any unlawful act. The facts of this case are very similar to
Commonwealth v. Neckerauer, supra, where a prima facie case was
established on evidence that the defendant took a motorhome to
another state for storage after being informed that police were
investigating the disappearance of a person believed to be using
the motorhome. Here, as in Neckerauer, Defendant was engaged in
concealing assets that were the focus of a police investigation
and a part of a prosecution against him. The evidence presented
show that he knowingly liquidated these assets, effectively
removing them from the reach of the commonwealth. thereby
obstructing the commonwealth's efforts to obtain the forfeiture
of the same.
G Qg11·ial of D.£1lend,1r,t's_e_~-1; ..i.ljun 1r1 Ll'ill_J:11ter1:?~LQr~stic.c
u_y _ l he JJllTRIC: I such a personal nature that it can only be discussed in court to
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protect the identity and sanctity of the outside parties
involved. Defendant contends that had the juror been forthright
and honest to any of the questions posed to her, the Defendant
would have used a prcemptory challenge which would certainly had
been granted by the court.
Based upon the foregoing petition, the court scheduled a
hearing at which both Attorney Booker and the juror, chastity
Williams, testified. In addition, the notes of testimony of the
voir dire proceedings relative to Juror No. 12 were transcribed.
Following a hearing, the court specifically found the following
facts:
The notes of testimony of the voir dire proceedings
established that Juror No. 12 specifically disclosed that her
brother is a heroin addict; that he is in prison; that her ex-
husband is a defense attorney; that her aunt is an attorney
general; that she checked "yes" to Question ~o. 6 of the Juror
Information Questionnaire which read 'Have you or anyone close
to you ever been an eyewitness to a crime?' because he brother
is a heroin addict and she had heard stories; that she can keep
an open mind and that the aforesaid experiences in her life
would not influence her vote in favor of the commonwealth or the
defense; that the fact that her brother is a heroin addict would
not affect her ability to be a fair an~ impartial juror in the
case. The court further found that although the juror did not
reveal that she had received a summary citation for retail theft
Slnp approximately twenty years ago, the juror had never been
JIJlllCII\ l.
ms r mc r arrested and the summary citation had been expunged causing her
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to believe that it was not required to be disclosed. The court
found that the juror honestly believed that she was not required
to disclose a summary conviction and that if it had been
78 L. Ed. 2d 663 (1984), such case holding
that, in order to grant a new trial, the burden is on the
defendant to demonstrate that the juror failed to answer
honestly a material question on voir dire, and then further show
that a correct response would have provided a valid basis for a
!>lltO challenge for cause. In McDonouqh1 a products liability action
.i•~•OICtA I..
OISTnlCT resulted in a judgment entered upon a jury verdict for the
1.A\\onl!"Nr COl,Nl .,.
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24
Circulated 03/27/2015 03:36 PM
plaintiff. Defendants moved for a new trial on the basis that a
juror failed to respond affirmatively to a question on voir dire
seeking to illicit information about previous injuries to
me~bers of the jurors' immediate family. During voir dire,
prospective jurors were asked whether they or any members of
their immediate families had sustained any severe injury due to
an accident. Ronald Payton, who eventually became a juror, did
not respond to the question. After trial I defendants filed a
motion that asserted that information was received that Mr.
Payton's son may have been injured at one time, a fact which had
not been revealed during voir dire. Following the motion, an
affidavit was produced by a Navy recruiter, which asserted that
Mr. Payton's son had been injured in the explosion of a truck
tire. communication with Juror Payton revealed that his son had
received a broken leg as the result of an exploding tire and
that this accident had no effect on him as accidents are a part
of life and he did not regard the broken leg as a severe injury.
In upholding the order of trial court which had denied
relief, the supre~e court noted that it has long held that a
litigant "is entitled to a fair trial but not a perfect one, for
there are no perfect trials." Brown v. uniteg_states, 411 U.S.
223, 231-232, 93 S. Ct. 1565, 1570-1571, 36 L. Ed. 2d 208 (1973).
The court further stated that a touchstone of a fair trial is an
impartial trier of fact, "A jury capable and wi Tl i nq to decide
the case solely on the evidence before it." Citing Smith v.
C>il"O t>hi I I Ir,',, 455 l,.S. 209, 217, 102 s.ct. 940, 946, 71 L. Ed. 2d 78
J)')ll:IAl
1,1~Tl'l'IC:-
r1~8~1. The supreme court further stated that a voir dire
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25
Circulated 03/27/2015 03:36 PM
examination serves to protect that right by exposing possible
biases, both known and unknown, on the part of potential jurors;
demonstrated bias in the responses to questions on voir dire may
result in a juror being excused for cause; hints of bias not
sufficient to warrant challenge for cause may assist parties in
exercising their peremptory challenges. The necessity of
truthful answer by prospective jurors if this process is to
serve its purpose is obvious. In denying the defendant's
requested relief, the court held that to invalidate the result
of a lengthy trial because of a juror s 1 mistaken, though honest
response to a question, is to insist on something closer to
perfection than our judicial system can be expected to give.
The court stated that "it ill serves the important end of
finality to wipe the slate clean simply to recreate the
peremptory challenge process because counsel lacked an item of
information which objectively he should have obtained from a
juror on voir dire examination." The supreme court then went on
the specifically hold as Follows:
We hold that to obtain a new trial in such a situation,
rl f)dl ty mus r first tJe1111:.H1Slt~c1tC Lll,\t' cl jtWOI' failed to
~11..,wer hurH.!SLIV ., me r e r ia l uues r ton on vo i r dire, and
L1111n ru, U,c, •.hnw I hat ,1 t nr rv«, l r,~-;puns~ wou l d have
111·ov1clPd t\ v.r l i rl uas i s rm· ..1 c.h,ill~nyr for c ause . The
111u1 i ve= for r_c11,L~,11 i11g i nf'o rme t i on irl«Y vn rv , but: only
1
tho sr- I r~clSltlh Lh,11 .i f rc•it il j urur •, 1111pn,~T i a r j l y C:dn
truly lw !),tic.I tc, ,JI r,,c I t he ruirnv,s o l a r.r l a'l,
McDonough, 464 U.S. at 556, 104 S.Ct. at 850.
Here, the proof at the hearing on the mistrial motion fell
far short of the allegations made by the Defendant. The record
!l!RO
JUDICIAL of the voir dire proceeding clearly showed the juror had
DISTRICT
disclosed the inforrration regarding the juror's brother being an
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26
Circulated 03/27/2015 03:36 PM
addict, having been involved in the criminal justice system and
having been addicted to heroin and that not only her ex-husband
but also her aunt were attorneys. virtually all of the matters
raised by the Defendant were accurately addressed on the record
with the juror and no evidence was presented as ta her having
any bias or impartiality regarding any issue in this case or any
specific lUNI,
Plt•r~&V 1...'1 •ttifA
28