Opinion
J. A01009/15 No. 1987 WDA 2013 No. 1988 WDA 2013
04-06-2015
COMMONWEALTH OF PENNSYLVANIA v. VAN EDWARD SCOTT, Appellant COMMONWEALTH OF PENNSYLVANIA v. VAN EDWARD SCOTT, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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
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.:
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 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.)
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. 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. On October 29, 2013, appellant was sentenced to an aggregate term of 9 to 18 years' imprisonment. This timely appeal followed.
35 P.S. §§ 780-113(a)(14)(i), (a)(14)(iii), and (a)(13), respectively.
18 Pa.C.S.A. §§ 5111(a)(2), 4910(1), and 5101, respectively.
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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
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 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. 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
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
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. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2015
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