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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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
J. A01009/15


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.)




                                    -2-
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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.


                                            -3-
J. A01009/15


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



                                   -4-
J. A01009/15


                    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


                                         -5-
J. A01009/15


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.



                                     -6-
J. A01009/15


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


                                          -7-
J. A01009/15


           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



                                   -8-
J. A01009/15


                  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.




                                      -9-
J. A01009/15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/6/2015




                          - 10 -
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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
    DISTRICT             unconsti tuti ona 11 y vague, c ttiup,~xont r-aven i ng Defendant's right to

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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
     DISTRICT

                       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
    JUOICIA    L
    DISTRICT
                      and that the law provides, ex.pJ:i.c;:J:~ .st anda rds for those who apply
                                                            ,   [' i I /    U f\   I - • •     • •



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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
    JUOICIA    L
    DISTRICT           enough to provide a standard, o~conduct                               to which physicians
                                                          I   JI Lii '        I        .


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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.
    JUDICIAL
    DISTRICT
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                                                                           5
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                                                                                                             Circulated 03/27/2015 03:36 PM



                             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
    JUDICIAL
    DISTRICT
                     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
   DISTRICT
                   be presented to the fact           ftti~i:r1,~~I;   i   is referenced        at this
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   PENNSYLVANIA




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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
    JUOICIA    L
    DISTRICT         practice   should   have been allowed,                              and was wrongfully excluded
                                                                   ~. ',.,. I
                                                   ...... - ,.
                                                            .) . I - "'.'
_AWFUIIICE  COUNTY
                                                                                     r
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                                               ,.., 1·"E": ' I -,
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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.
    JUDICIAl.
    OISTRI:::,




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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

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                                                      .
                                                      I   r
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                          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




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                                                            Il
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                     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




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  PENNSYt.VANIA

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                            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

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                                     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 <L.f o r v illJJI., n l.'.!i ·~ ;rn~I wit~ tr.
                                           Ch cl l'fl rnu__dD.£ llllleJ.!..! <:, f a ·j I ',_ l U_ t,J I_VC! s ll ff i Ci 011 t nQ. t l£_g
                                            to D"ft.rndc1111      of_!.,_1'i111.inal          activity rha t !'· 11.r_ohilli~d.
                                    In Paragraph            A of Defendant's concise statement of Matters
                          complained of on Appeal                      the Defendant             asserts that the court
                          erred and abused its discretion                               by denying         Defendant-Appellant's
                          Motion         to Dismiss         and Motion for Directed Verdict in case No.
                          516 of 2010, er. where the statute charging Defendant-Appellant
                          with Providing controlled                        substances           to a Drug Dependent Person
                          is constitutionally                  overbroad          and void for vagueness, and where
                          the charging document fails to provide sufficient                                             notice to the
                          Defendant         of the criminal                activity that is prohibited.
                                    The Court        finds that this issue was specifically                                    addressed
                          in the Opinion             and order of court dated February 17, 2012, which
                          found the charging statutes at case No. 516 of 2010,                                                er. to be
                          constitutional             and denied the Defendant's Motion                                to Dismiss the
                          criminal information on the basis                               that the charging                statutes
                          were overly          broad and void for vagueness                           and otherwise denying
                          Defendant's          constitutional               attack on the charging statutes
                          applicable         to the case at No. 516 of 2010,                              er.      The aforesaid
                          Opinion        of the court dated February 17,                            2012 is incorporated
                          herein by reference and satisfies                              the requirements                of Pa.R.A.P.
          !.lRO
       JUOtC:IA    I.     1925(a)        relative        to this assignment                 of error.
       OC~TRICT




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                                                    B,     I rrlJr      in     Per·1,,itti11g          ll!WI~     c:,9loc:.,_11nCJ_t.~cLIPSlify
                                                                      cl',    , 11 EX(it~rj     'd f I n1.'r. Ill        11 t Vl'   r s l(J_!l   Or
                                                                             (Oil t.[Q..11 (!(I S11l rs l'r1JlCt?$

                                              In Assignment          B Defendant                asserts that the Court erred and
                                      abused its discretion                  in permitting Lewis Colosimo                                 to testify        as
                                      an expert witness where he was unqualified                                       pursuant to the
                                      Pennsylvania Rules of Evidence,                               offered      testimony that was, at
                                     best, generic and cumulative,                         offered            such opinion                testimony
                                     without     any knowledge               of the facts or circumstances                                  of the
                                     instant litigation,             and whose testimony was so prejudicial                                              as to
                                     deny Defendant-Appellant's                      constitutional                 right to due process
                                     and fair trial.
                                              Lewis Colosimo was proffered by the commonwealth                                                   as an
                                     expert in controlled               substances              and diversion.                      He is employed
                                     as a diversion        investigator                for the United states Drug
                                     Enforcement Administration                      in Pittsburgh.                   As a diversion
                                     investigator, he is tasked with investigatingl                                            preventing,
                                     detecting     the diversion               or illegal distribution                              of
                                     pharmaceutical controlled                     substances.                  After a review of his
                                     experience     and education,                 he was offered for voir dire as to
                                     qualifications.          counsel            for Defendant conducted a voir dire of
                                     Mr. Colosimo as to his qualifications.                                      Following            the voir dire
                                     by counsel     for Defendant,                 counsel at page 157 of the transcript
                                     of the trial        testimony of June 11, 2013 stated "he is obviously
                                     an expert, ... "        Thus,           Defendant              has waived any objection to the
                                     qualifications        of Lewis Colosimo                        as an expert in the proffered
             •,]P1n                  field.
        JU:,  ICII\ t.
        DI!: I Jot tC"l'



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                                      As to Defendant's argument that the testimony of Mr.
                              Colosimo was generic,           cumulative,      offered without knowledge of
                              the facts or circumstances of the instant case,                    and prejudicial
                              as to deny Defendant-Appellant's                constitutional     right to due
                              process and fair trial,             the court finds that the testimony of
                             Mr.     colosi1110     was merely background information          designed to give
                              the jury an understanding            of the process     by which      the
                             distribution of drugs are controlled so that drugs having an
                             accepted rnedi cal use may be provided to 1 awfu l consumers                      but
                             preventing the diversion of drugs that have no medical use, or
                             having drugs with an accepted medical use from being unlawfully
                             diverted to persons having             no lawful     right to possess or use the
                             same.       Essentially the purpose of Mr. Colosimo's                testimony was
                             to explain           to the jury the topics. definitions          and concepts
                             related      to drug diversion such as how the scheduling                   of
                             different drugs is determined,             how the law provides           for a closed
                             system of distribution           and how a physician       must be licensed in
                             order to be authorized           to prescribe      controlled     substances       and
                             that diversion           can occur where a physician       is not prescribing
                             for a legitimate           medical reason.
                                     Defendant cannot argue that Mr. colosimo's                 testimony       was
                             prejudicial          as he presented no testimony that was specific to
                             any conduct of Defendant,             nor was he offered for any purpose
                             relating      directly      to any specific      conduct of the Defendant.               The
                             testimony was relevant only for the purpose                 of giving the jury
          ':,110             an understanding of the process               to prevenl the illegal          diversion
      JUUIC:IA     I.
      Cl"TlltCl
                             of controlled          substances.    The assignment of error does not

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                             identify why Defendant believes             the testimony    was prejudicial.
                             The evidence was relevant        because it aided the understanding of
                             the jury as to the process for controlling             the distribution              of
                             drugs and preventing      the illegal       distribution of drugs, a
                             process that the Defendant was subject to and by which he was
                             controlled.
                                  Probative value of evidence exists if there is any tendency
                             to make the existence      of a material fact more or less probable
                            than it would be without the evidence.               Any probative value can
                            make evidence relevant.        when the relevant evidence               is
                            challenged     under Pa.R.E. 403, the extent of its probativi value
                            must be considered and balanced against the possibilities                        of
                            inviting resolution on an improper             basis or wasting courtroom
                            resources,     including   judicial   time and juror patience, and
                            against the danger of unfair prejudice or confusion.                         ~prague v.
                            Walter. 441 Pa.Super. 1,       39; 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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                                 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



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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<e the originals or duplicates
                                            ava i l ah l e for PX,rn1i11t1t1on    or copying or both, by other
                                            part i o s ~H ,1 ,·e~l .011Jhle time and place.      And the court may
                                            o rtle r the p1·c;porrc1nt 10 produce them in court.
                                      Pa.R.E.    1006 is identical to Federal Rule of Evidence 1006 which
                                      was analyzed by Judge Lechner of the Federal District court of
                                      New Jersey       as follows:
                                            As   lon~ us <,Ulll111i11 y chilt L~ 111ec-1. l hi· Ir, 1 ·1uwi119 rrqL1ir~n1C·?tltS.
                                            they .ir e i.Jthni~,ible:               (l) Thi? undr-r l v i n« doc:u1111~11t~       must be
                                            adm i ~ ":> 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

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                                           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.


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                                                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

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                                                                 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.

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                                                                                                                    Circulated 03/27/2015 03:36 PM




                                             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
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                                    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
        ..>IS1"FIICT



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                               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

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                                                                                                     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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                                        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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                                                 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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                                         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.


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                                         In Paragraph G of Defendant's concise Statement, Defendant
                                   alleges       that the court erred and abused its discretion                         in
                                   failing       to grant Defendant-Appellant's                post-trial      motion for
                                   mistrial.
                                         Following            the gui1ty verdicts entered June 10. 2013,                     the
                                   Defendant filed a Petition in the Interest of Justice by the
           r;-lRU
                                   Request for a Mistrial.                 Defendant asserted that a mistrial was
        J\J'OtC1J\    1..

        C,IST"      IC I           warranted due to allegations relative to Juror No.                            12 who

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                               allegedly should not have been seated as a juror.                            Defendant
                               alleged that following          the verdict,         defense counsel          received      a
                               call   from Stanely       T. Booker,      Esq.,     a defense attorney practicing
                               in Lawrence County and who ·is the ex-husband of Juror No. 12,
                               Chastity     Booker,     who related      that Juror No. 12 was not
                               forthright     in her answers to voir dire questions                      and that this
                              was done in an effort to guarantee                   herself     being     chosen as a
                              juror.      It is further alleged           that Juror No. 12 failed to stand
                              and resrond to the question              "Do you or anyone close to you ever
                              been charged with a crime, other                   than a traffic        violation?";
                              that the juror          has a brother with criminal              history     which she
                              failed to disclose          as well as him having              a continuing      addiction
                              to opiates,      in particular,         oxycodone,      leaving     the juror       with    a
                              ''profound negative         opinion     regarding      prescribing         prescription
                              medication'';     that the juror failed to stand and respond in the
                              affirmative      to the question:          "Have you or anyone close to you
                              ever worked in law enforcement               of the justice         system?" when her
                              ex-husband      is a criminal     defense      attorney who practices               in
                              Lawrence county; that the juror failed                   to stand and respond to
                              the question      ''Do any of you know the Defendant,                    van Edward
                              Scott?''; that the juror had reason to know of or. Scott and
                              issues surrounding         Or. Scott's prescribing              practices      based upon
                              Attorney Booker's         representation       of the oefendan~            in the matter
                              of commonwealth v.         Jeffrey Hogue, No.           562 of 2007, er.;           and
                              finally,     that the juror has a built-in               bias against prescription
           e.3nc ...          medication      and the prescribing         of said medication that is of
        ,uo,c1A1..
       L>JllTRIC: 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
                                     <lisclosed     it would not have provided a valid             basis for challenge
                                     for cause.
                                             The court     found based upon the testimony           presented that the
                                    juror harbors no bias against               prescription     drugs or doctors that
                                    prescribe      them and that the defense             failed to prove that the
                                    juror      had any prior knowledge of Defendant or his                  prescribing
                                    practices.        The court also found that the juror              had no prior
                                    knowledge of trial          witness Shawn Thompkins,          an issue which was
                                    raised      by the defense at the hearing.
                                             In general,       the court found that the defense failed to
                                    prove a basis to challenge              Juror No. 12 for cause or that she
                                    had otherwise failed to answer all of the questions put to her
                                    honestly and in a forthright manner and that there was no basis
                                    for a mistrial.
                                             Jn its October      24,    2013 order deny;ng the petition,             the
                                    court found that the matter is governed by the standard set
                                    forth in McDonough Power Equipment                 Inc. v. Greenwood,       464 u.s.
                                    548, 104 s.ct.         845, 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

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                                    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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                                 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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                                   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     l<nowl edge of Defendant             or any witness.           Thus,     the
                                   Defendant     failed to prove virtually                  all of his allegations
                                   relative     to this juror.
                                           The only   arguable issue raised                 by the Defendant           was that
                                   the juror did not disclose a summary citation for retail theft
                                   received approximately               twenty years ago.           However,      the juror's
                                   explanation     was adequate.               She had never been arrested               and the
                                   summary citation had been expunged causing her to believe                                   that
                                   it   was not required to be disclosed.                      The court specifically
                                   found that     this juror           honestly     believed     that she was not
                                   required to disclose               a summary conviction and that if it had
                                   been disclosed         it    would not have provided a valid                 basis     for
                                   challenge     for cause.           Thus,     the McDonough standard            for a new
                                   trial in this      circumstance             was not met.       Defendant       has failed to
                                   prove that the juror failed                  to answer      honestly     a material
                                   question on voir dire.                The expunged twenty-year-old                  citation
                                   was clearly not material               to her ability to be impartial                  in this
                                   case.      The juror        felt   that she had answered           honestly because of
                                   the expungement and lack of arrest.                      Furthermore,        a response
               53HO
                                   that would have disclosed                  the summary      citation would          not have
        JUOICl.1\.1.
        DISTRICT                   provided a valid basis for a challenge                       for cause.

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                                      The court here concludes   that under the Mcoonougb standard,
                                  Defendant is not entitled to a new trial based upon any
                                  information or lack of information    given   by   Juror No. 12.




          ''"D
      J..JCICIAL
      OISTR ICT



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