J-S50034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RICHARD R. RUTH

                            Appellant                No. 2628 EDA 2014


              Appeal from the Judgment of Sentence June 5, 2014
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0008015-2011


BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                     FILED SEPTEMBER 23, 2015

        Appellant Richard R. Ruth appeals from the judgment of sentence

entered in the Montgomery County Court of Common Pleas on June 5, 2014

following his jury trial convictions for nine counts of prescribing a controlled

substance to a drug dependent person,1 ten counts of unlawful prescription

of a controlled substance by a practitioner,2 and one count each of insurance




____________________________________________


1
    35 Pa.C.S. § 780-113(a)(13).
2
    35 Pa.C.S. § 780-113(a)(14).
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fraud,3 identity theft,4 conspiracy to commit insurance fraud and identity

theft,5 corrupt organizations,6 and dealing in unlawful proceeds.7 We affirm.

        The trial court set forth the following factual and procedural history:

           Over a nearly two-year period beginning in early 2010,
           [Appellant], a then practicing physician, unlawfully
           prescribed tens of thousands of pills from his office in
           Souderton, Montgomery County, acting as a source of
           Oxycodone and Adderall for drug-addicted patients.
           [Appellant] committed identity theft during this period, as
           well, by agreeing to write prescriptions in the name of a
           patient’s wife for insurance purposes and engaged in
           insurance fraud by billing insurance companies for medical
           care he did not provide. He also dealt in the proceeds of
           unlawful activity and participated in a corrupt organization
           with his son/co-defendant, Michael Ruth, who served as his
           father’s office manager.

           A jury found [Appellant] guilty on November 22, 2013, of
           nine counts of prescribing a controlled substance to a drug
           dependent person, 10 counts of unlawful prescription of a
           controlled substance by a practitioner, insurance fraud,
           identity theft, conspiracy to commit insurance fraud and
           identity theft, corrupt organizations and dealing in unlawful
           proceeds.      Prior to sentencing, one of [Appellant’s]
           attorneys, Gregory Noonan,9 was charged in Montgomery
           County with possession of a controlled substance with
           intent to deliver and related offenses.
____________________________________________


3
    18 Pa.C.S. § 4117(a)(2).
4
    18 Pa.C.S. § 4120(a).
5
    18 Pa.C.S. § 903.
6
    18 Pa.C.S. § 911(b)(2).
7
    18 Pa.C.S. § 5111(a)(1).




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              9
                 [Appellant] also was represented by John L.
              Walfish, Esq.

          [Appellant] appeared at sentencing with new counsel.[8]
          [The trial court] sentenced [Appellant] to consecutive
          terms of five to [ten] years in prison on three of the
          convictions for unlawful prescription of a controlled
          substance by a practitioner. The total sentence imposed
          aggregated to 15 to 30 years in prison.[9] No further
          penalty was entered on the remaining 22 convictions.
          [Appellant] filed a post-sentence motion. He asserted his
          sentence was excessive under the circumstances, the
          prosecutor violated a duty to disclose that Noonan had
          been under investigation at or around the time of trial and
          he was denied the effective assistance of counsel because
          Noonan had an alleged conflict of interest. [The trial court]
          denied the motion without a hearing[.]

Pa.R.A.P. 1925(a) Opinion, 11/13/14 (“Opinion”), at 1-3 (most internal

footnotes omitted). Appellant filed a timely notice of appeal. Both he and

the trial court complied with Pennsylvania Rule of Appellate Procedure 1925.

       Appellant raises the following issues on appeal:

          Did the [t]rial [c]ourt err in denying [Appellant’s] [p]ost[-
          s]entence [m]otion for an [e]videntiary [h]earing (in
          support of the [p]ost[-s]entence [m]otion for a [n]ew
____________________________________________


8
  On June 5, 2014, the day of sentencing, new counsel filed a motion for
extraordinary relief, seeking a new trial because Noonan was being
investigated for drug-related offenses at the time of Appellant’s trial.
Defendant’s Motion for Extraordinary Relief, filed June 5, 2014. On June 6,
2014, the trial court denied this motion. Order, 6/6/2014.

At sentencing and on appeal, Appellant and his son are both represented by
Francis J. Genovese, Esq. of Mullaney & Mullaney.
9
  Appellant filed a motion to preclude the imposition of mandatory minimum
sentence, which the trial court granted. N.T., 6/5/2015, at 5-6. The trial
court, therefore, did not impose a mandatory minimum sentence. Id.



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         [t]rial), where his request for [p]ost[-s]entence [r]elief
         had at least arguable merit, on its face, thus necessitating
         that a hearing be held to more fully develop the record
         with respect to the violation of [Appellant’s] Due Process
         rights as guaranteed by the Fourteenth Amendment to the
         United States Constitution?

         Did the Trial Court err in denying [Appellant’s] [p]ost[-
         s]entence [m]otion for a [n]ew [t]rial, where the
         Commonwealth violated [Appellant’s] Due Process rights
         as guaranteed by the Fourteenth Amendment to the United
         States Constitution, when it failed to disclose to the Court
         that the District Attorney’s Office was actively investigating
         [t]rial [c]ounsel for his involvement in the illegal
         distribution of narcotics while he was representing
         [Appellant] at the trial in the above-captioned matter?

         Did the [t]rial [c]ourt abuse its discretion in sentencing
         [Appellant] to three consecutive terms of five (5) to ten
         (10) years of incarceration in a [s]tate [c]orrectional
         [i]nstitution, each of which constituted a sentence in the
         aggravated range of the Sentencing Guidelines, where the
         charges to which he was found guilty were not separate
         and distinct incidents of criminality, but rather one episodic
         and continuing course of criminal conduct?

Appellant’s Brief at 4.

      Appellant’s first two issues are based on the same underlying claim,

that the Commonwealth violated Appellant’s due process rights under the

Fourteenth Amendment to the United States Constitution when it failed to

inform the trial court and Appellant that the District Attorney’s Office was

investigating Noonan, [Appellant’s] attorney, for distribution of narcotics.

Appellant’s Brief at 16-17, 21-22, 24-25, 29-31. Appellant claims the trial

court erred when it denied his post-sentence motion raising the due process

claim and erred in failing to hold an evidentiary hearing on the claim. Id. at

24-25, 31.


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      We review a trial court’s denial of a post-sentence motion requesting a

new trial for abuse of discretion.   Commonwealth v. Brooker, 103 A.3d

325, 332 (Pa.Super.2014).     Similarly, the trial court has discretion as to

whether to conduct a hearing on a post-sentence motion.        See Pa.R.Cr.P.

720(b)(2)(B) (“The judge shall also determine whether a hearing or

argument on the motion is required, and if so, shall schedule a date or dates

certain for one or both.”). An abuse of discretion “is not merely an error of

judgment, but if in reaching a conclusion the law is overridden or

misapplied, or the judgment exercised is manifestly unreasonable, or the

result of partiality, prejudice, bias or ill-will . . . discretion is abused.”

Brooker, 103 A.3d at 332 (quoting Commonwealth v. Fortenbaugh, 69

A.3d 191, 193 (Pa.2013)).

      “To constitute a due process violation, the prosecutorial misconduct

must be of sufficient significance to result in the denial of the defendant’s

right to a fair trial.”   Commonwealth v. Busanet, 54 A.3d 35, 64

(Pa.2012) (quoting Commonwealth v. Hanible, 30 A.3d 426, 465

(Pa.Super.2011)).

      Appellant claims the Commonwealth had a duty to disclose to the trial

court and/or Appellant that Noonan, Appellant’s trial counsel, was under

investigation for involvement in illegal drug trafficking. Appellant’s Brief at

29-30. He notes that the crimes for which Noonan was charged occurred on

November 23, 2013, the day after a jury convicted Appellant of the afore-

mentioned charges, and on December 20, 2013, and claims the investigation

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began before or during Appellant’s trial.               Id. at 7.   He maintains that,

because Noonan was under investigation during Appellant’s trial for illegal

activities similar to the crimes for which Appellant was charged, Noonan had

a conflict of interest, and the Commonwealth had a duty to disclose this

conflict.     Id.   at   16-17,    21-22,      24-25,    30-31.     He   maintains   the

Commonwealth’s failure to disclose the conflict prevented Appellant from

receiving a fair trial. Id. We disagree.

         The trial court found: Appellant did not cite any case law imposing a

duty on a prosecutor to inform the court that a defendant’s attorney was

under investigation for narcotics distribution; the Pennsylvania Rules of

Professional Conduct and the American Bar Association’s Standards on

Prosecutorial Investigations were not controlling when determining whether

a constitutional violation occurred; and a prosecutor was not constitutionally

required to disclose an attorney’s potential conflict of interest. Opinion, at

4-5.10
____________________________________________


10
    Appellant maintains the Commonwealth violated his due process right to
a fair trial because it did not inform him or the trial court of a criminal
investigation of his attorney’s conduct, which, he alleged, the
Commonwealth was required to do because the investigation created a
conflict of interest. Because we find that, under the circumstances present
here, the prosecutor had no duty to disclose the criminal investigation, we
need not determine whether a conflict of interest existed.         We note,
however, that, unlike United States v. Fulton, 5 F.3d 605 (2nd Cir. 1993),
relied upon by Appellant, no trial witness implicated Noonan in illegal
activity. Further, there is no suggestion that Noonan and Appellant were
engaged in criminal activity together, or that they were a part of the same
conspiracy. See Commonwealth v. Duffy, 394 A.2d 965, 968 (Pa.1978)
(Footnote Continued Next Page)


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      The trial court acted within its discretion in denying the motion for a

new trial.       The Commonwealth did not violate Appellant’s Fourteenth

Amendment due process right to a fair trial when it failed to disclose to the

trial court or Appellant that Appellant’s attorney was under criminal

investigation,    particularly because no trial witness possessed information

relevant to the investigation of Appellant’s attorney, the investigation did not

implicate Appellant, and the Commonwealth had not yet established whether

Appellant’s counsel had engaged in any illegal activity.     See, e.g., United

States v. Morelli, 169 F.3d 798, 812 (3d Cir.1999) (prosecutor’s failure to

inform court of conflict does not require reversal); United States v. Cerro,

872 F.2d 780, 787 (7th Cir.1989) (prosecutor not constitutionally required to

advise court of potential conflict of interest).

      Further, the trial court acted within its discretion in denying Appellant’s

request for an evidentiary hearing. The trial court concluded:

          Here, disposition of the post-sentence motion did not
          necessitate a hearing. As discussed more fully below,
          [Appellant] presented no controlling authority for his claim
          that the prosecution had an obligation to disclose an
          investigation into Noonan.10 Similarly, the motion did not
          present a meritorious basis for [the trial court] to upset
          the sentence imposed. [The trial court], therefore, did not
          abuse its discretion in disposing of the post-sentence
          motion without a hearing.11
                       _______________________
(Footnote Continued)

(conflict existed where witness claimed trial counsel and prosecutor knew
Commonwealth witness claimed counsel was to be paid for his legal services
with stolen guns, which were “fruits of the crime” ).




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            10
                  Because [Appellant] failed to present any
            controlling authority for his contention that the
            prosecution    owed     a   duty   to   disclose  the
            investigation, [the trial court] did not consider the
            affidavit and other exhibits attached to the
            Commonwealth’s answer to the post-sentence
            motion.
            11
                  [Appellant] also included in his post-sentence
            motion a claim that Noonan was ineffective due to an
            alleged conflict of interest. The reasons this court
            disposed of that claim without a hearing included the
            premise that a challenge to counsel’s ineffectiveness
            generally must await collateral review. See, e.g.,
            Commonwealth v. Britt, 83 A.3d 198, 203-204
            (Pa.Super.2013)      (stating    that   direct   appeal
            consideration of ineffectiveness claims not warranted
            where, as here, the issue involves non-record based
            claims and the defendant has not waived further
            post-conviction review). It also bears mentioning
            that [Appellant] did not allege a connection between
            his criminality and Noonan’s misconduct, such that a
            conflict existed, nor did he cite to any instance in the
            trial record where he believes Noonan’s performance
            was affected by a conflict of interest. Moreover,
            defendant also was actively represented at trial by
            John L . Walfish, Esq. In any event, [Appellant] has
            not included a challenge to Noonan’s effectiveness in
            his concise statement; thus, it is waived. See Pa.
            R.A.P. 1925(b)(4)(vii) (stating that issues not
            included in concise statement are waived).

Opinion, at 4 (internal footnotes omitted). We find no abuse of discretion

with the trial court’s determination.

      Appellant’s third claim challenges the discretionary aspects of his

sentence.

      “Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super.2011) (citing Commonwealth v. Sierra, 752 A.2d 910,

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912 (Pa.Super.2000)).       Before this Court can address a discretionary

challenge, we must engage in a four-part analysis to determine:

           (1) whether the appeal is timely; (2) whether Appellant
           preserved his issue; (3) whether Appellant’s brief includes
           a concise statement of the reasons relied upon for
           allowance of appeal with respect to the discretionary
           aspects of sentence; and (4) whether the concise
           statement raises a substantial question that the sentence
           is appropriate under the sentencing code.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super.2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super.2006)); see

also Allen, 24 A.3d at 1064.

      Appellant timely filed his notice of appeal and included a concise

statement of reasons in his appellate brief.              Further, he raised an

excessiveness claim in his post-sentence motion. His post-sentence motion,

however, did not raise a claim that the trial court failed to consider

mitigating factors or Appellant’s rehabilitative needs.

      Appellant’s brief contains a statement of reasons relied upon for

allowance of appeal pursuant to Pennsylvania Rule of Appellate Procedure

2119(f).    Appellant’s Brief at 13-15.     Appellant maintains the trial court

failed to properly consider the information contained in the pre-sentence

investigation report, including Appellant’s history and characteristics and his

rehabilitative needs. Id. at 14. He notes the trial court sentenced Appellant

to three consecutive, aggravated range sentences, for a total aggregate

sentence of not less than 15 nor more than 30 years’ imprisonment. Id. at

15. He argues the sentence was “manifestly unreasonable, unduly excessive

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and extremely vindictive; considering that the charges to which [Appellant]

was found guilty were not separate and distinct incidents of criminality, but

rather one episodic and continuing course of criminal conduct.” Id. at 15.

      Although Appellant’s post-sentence motion and Pa.R.A.P. 1925(b)

statement challenge the sentence as excessive, they do not allege the trial

court failed to consider mitigating circumstances. See Concise Statement of

Matters Complained of on Appeal (“Did the Trial Court abuse its discretion in

sentencing [Appellant] to three consecutive terms of five (5) to ten (10)

years of incarceration; each of which constituted a sentence in the

aggravated range of the Sentencing Guidelines, where the charges to which

he was found guilty were not separate and distinct incidents of criminality,

but rather one episodic and continuing course of criminal conduct?”);

Appellant’s   Post-Sentence    Motion   for   Relief   (arguing:    imposition   of

consecutive sentences in aggravated range was excessive and unreasonable;

sentence cruel and unusual due to age, lack of prior history and conviction

for non-violent offense; and weighing of the factors favors a lesser

sentence).    Appellant, therefore, waived his argument that the trial court

failed to consider mitigating factor or his rehabilitative needs.

      We next must address whether Appellant’s claim the trial court abused

its discretion when it imposed consecutive, aggravated range sentences

raises a substantial question.    “The determination of whether a particular

issue raises a substantial question is to be evaluated on a case-by-case

basis.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.Super.2011)

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(quoting Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa.Super.2005)).

A substantial question exists where a defendant raises a plausible argument

that the sentence violates a provision of the sentencing code or is contrary

to the fundamental norms of the sentencing process.            Commonwealth v.

Naranjo, 53 A.3d 66, 72 (Pa.Super.2012) (quoting Commonwealth v.

Crump, 995 A.2d 1280, 1282 (Pa.Super.2010)).

       A claim of excessiveness based on the imposition of consecutive

sentences does not raise a substantial question, unless the imposition of

consecutive sentences raises the “aggregate sentence to, what appears upon

its face to be, an excessive level in light of the criminal conduct at issue in

the   case.”    Commonwealth           v.      Mastromarino,   2   A.3d   581,   587

(Pa.Super.2010).11 Because the aggregate sentence imposed, 15-30 years’

imprisonment, does not facially appear excessive in light of the criminal

conduct for which Appellant was convicted, Appellant’s claim that the trial

court abused its discretion by imposing consecutive sentences in the




____________________________________________


11
   An excessiveness claim or challenge to consecutive sentences may raise a
substantial question when raised in conjunction with a claim that the court
failed to consider mitigating factors or rehabilitative needs.           See
Commonwealth v. Caldwell, --- A.3d ---, 2015 WL 3444594, at *4
(Pa.Super. May 29, 2015) (challenge to consecutive sentences as unduly
excessive, together with claim court failed to consider rehabilitative needs
raised substantial question); Commonwealth v. Raven, 97 A.3d 1244,
1253 (Pa.Super.2014) (excessiveness claim, together with claim court failed
to consider mitigating factors, raised substantial question).



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aggravated range of the sentencing guidelines does not raise a substantial

question.

     Further, even if we were to address the merits of the sentencing claim,

the claim fails. “Sentencing is a matter vested within the discretion of the

trial court and will not be disturbed absent a manifest abuse of discretion.”

Crump, 995 A.2d at 1282 (citing Commonwealth v. Johnson, 967 A.2d

1001 (Pa.Super.2009)). “An abuse of discretion requires the trial court to

have acted with manifest unreasonableness, or partiality, prejudice, bias, or

ill-will, or such lack of support so as to be clearly erroneous.”   Id. (citing

Commonwealth v. Walls, 926 A.2d 957 (Pa.2007)).

     “A sentencing court need not undertake a lengthy discourse for its

reasons for imposing a sentence or specifically reference the statute in

question, but the record as a whole must reflect the sentencing court’s

consideration of the facts of the crime and character of the offender.”

Crump, 995 A.2d at 1283 (citing Commonwealth v. Malovich, 903 A.2d

1247 (Pa.Super.2006)). Further, “where the trial court is informed by a pre-

sentence report, it is presumed that the court is aware of all appropriate

sentencing factors and considerations.” Commonwealth v. Ventura, 975

A.2d 1128, 1134 (Pa.Super.2009) (citing Commonwealth v. Devers, 519

Pa. 88, 101–102, 546 A.2d 12, 18–19 (1988)).

     The trial court found:

        As for the imposition of consecutive sentences, the
        aggregate sentence is not excessive given the harm
        inflicted by [Appellant] upon numerous individuals, families

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       and the community as a whole. While [the trial court]
       considered [Appellant’s] age, along with a number of other
       factors, a lesser sentence would have depreciated the
       seriousness of his devastating crimes. [Appellant’s]
       suggestion that his crimes were not separate episodes that
       piled more and more harm upon his patients demonstrates
       his continued lack of remorse for his actions and a self-
       serving characterization of the ample trial evidence to the
       contrary. In any event, even had [Appellant] raised a
       substantial question regarding his sentence, he is not
       entitled to relief.

       [The trial court] amply set forth on the record the bases
       for the sentence imposed. In particular, [the trial court]
       stated at the sentencing hearing:

          You are a danger to society if I have ever met [one].
          You are more dangerous than a common criminal
          because you do act like and are, in fact, the
          quintessential old country doctor.

          And even though I have never lived in Souderton,
          I’m not exactly from the inner city. Okay? You are
          the old country doctor. You are perfect at that.
          There [are] two of you. There must be. Because the
          person I saw in here when pressed on cross-
          examination, you just didn’t have the answers.

          An intelligent person like you, who is a physician,
          has to look at the amount of prescriptions you have
          written for the amount of pills that were given out
          for the times these people came to you that were
          obvious junkies. You heard them in the courtroom.
          You saw them.

          Doc, you got to give me another script because the
          dog ate the script. My kid put the script in his
          mouth. I need another one. So you just write
          another one, write another one, write another one.
          It was business as usual.

          You and Michael, you were a criminal enterprise.
          These people weren’t making it up. You are not the
          victim. You are just making money off the suffering
          of others.


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                                     ***

           You perpetuate the agony of these people that come
           in my courtroom. They’re destroying our society
           because you keep the wheel turning. You are the
           supplier. And that is what I find so baffling.

           You know what it is like? The DA said it or alluded to
           it. What you do by feeding this and fueling this
           disease, these diseased people, and they commit
           crime, it is like throwing a stone in a lake and you
           see the ripple effect.       It is generational, the
           destruction it causes a family.

           That one kid that came in here talking about his
           mom, he came to get pills for his mom and you guys
           wrote him the script. He is living in a car, he had to
           give [up] his pets, this little boy, because his mom
           was a junkie.

           And where did she get her pills from? Dr. Ruth.

        (N.T. 6/5/ 14, pp. 50-53).

        The [trial court] also stated on the record that he had the
        benefit of a pre-sentence investigation report, considered
        the information [Appellant] gave about himself during his
        trial testimony and allocution and noted the [trial court’s]
        familiarity with the circumstances of the case, having been
        the trial judge. (Id. at 53)

        [The trial court] court further stated that it sentenced
        [Appellant] in the aggravated range because there were
        multiple convictions, the crimes involved drug trafficking,
        [Appellant] demonstrated no remorse, there were multiple
        victims and the victims were in [Appellant’s] care. (Id. at
        54) [Appellant’s] claim, therefore, that [the trial court]
        erred in fashioning its sentence is without merit.

Opinion, at 8-9.   After a thorough review of the sentencing transcript, we

find the trial court did not abuse its discretion in sentencing Appellant to

consecutive, aggravated range sentences.

     Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/23/2015




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