J-S36022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WILLIAM MANGINO, II, M.D.


                            Appellant                No. 1623 WDA 2014


                Appeal from the PCRA Order September 8, 2014
               in the Court of Common Pleas of Lawrence County
              Criminal Division at No(s): CP-37-CR-0001181-2004


BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.:                             FILED JULY 10, 2015

        William Mangino, II (“Appellant”), appeals from the order dismissing

his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. After careful review, we affirm.

        Appellant was arrested following an investigation conducted by the

Pennsylvania Office of the Attorney General into “what amounted to a sham

medical practice that regularly distributed prescriptions for controlled

substances such as OxyContin and Percocet to patients regardless of medical

need.”     Commonwealth v. Mangino, 539 WDA 2008, June 11, 2009

(unpublished memorandum), p. 2. On July 5, 2007, a jury convicted him of

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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five counts of unlawful prescription in violation of the Controlled Substance,

Drug, Device and Cosmetic Act (“the Drug Act”),1 three counts of violating

the Medicare Fraud and Abuse Control Act,2 and one count of criminal

conspiracy.3 On September 14, 2007, the trial court sentenced Appellant to

an aggregate term of 7 to 15 years’ incarceration. Appellant filed a timely

post-sentence motion, which the trial court denied on February 21, 2008.

        Appellant timely appealed, and this Court affirmed the judgment of

sentence on June 11, 2009. On February 18, 2010, the Supreme Court of

Pennsylvania denied Appellant’s petition for allowance of appeal. Thereafter,

Appellant filed a petition for writ of certiorari with the Supreme Court of the

United States, which the Supreme Court denied on October 4, 2010.

        Appellant timely filed his PCRA petition on October 5, 2011.4, 5 The
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1
    35 P.S. § 780-113(a)(14).
2
    62 Pa.C.S. § 1407(a)(6).
3
    18. Pa.C.S. § 903.
4
  Appellant had one year from the October 4, 2010 denial of his Supreme
Court of the United States certiorari petition in which to file his PCRA
petition. Appellant was incarcerated at the time the Lawrence County Clerk
of Courts docketed the petition on October 5, 2011. Accordingly, Appellant
must have mailed his PCRA petition on or before October 4, 2011, and we
deem the petition to have been timely filed.
5
  We note that, prior to filing his PCRA petition, Appellant also filed a petition
for writ of habeas corpus in the United States District Court for the Western
District of Pennsylvania, which the District Court denied on August 15, 2011.
The Third Circuit Court of Appeals denied Appellant a certificate of
appealability on February 21, 2013.



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PCRA court conducted multiple hearings6 and eventually denied Appellant’s

PCRA petition on September 8, 2014.              Appellant timely filed his notice of

appeal on September 22, 2014, and a timely Pa.R.A.P. 1925(b) statement of

matters complained of on appeal on October 6, 2014.

       Appellant raises the following issue for review:

       I.) Whether the PCRA court abused its discretion in not finding
       that [Appellant’s] trial attorney was constitutionally ineffective
       for failing to request [] instruction that [the] Commonwealth’s
       burden of proof was to show that [Appellant] did not “physically”
       or “visually” examine patients in order to be “satisfied” that they
       were not drug dependent: an element of the crime of unlawful
       prescription?

Appellant’s Brief, p. vi (all capitals removed).

       Our well-settled standard of review for orders denying PCRA relief is

“to determine whether the determination of the PCRA court is supported by

the evidence of record and is free of legal error. The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record.”      Commonwealth v. Barndt, 74 A.3d 185, 191-192

(Pa.Super.2013) (internal quotations and citations omitted).




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6
  On his request, and following a Grazier hearing, Appellant litigated his
PCRA petition pro se. By appointment of the PCRA court, William M. Panella,
Esquire, of the Lawrence County Public Defender’s Office, acted as standby
counsel throughout. Attorney Panella is not a relation of the Honorable Jack
A. Panella.



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       Pennsylvania courts apply the Pierce7 test to review PCRA claims of

ineffective assistance of counsel:

       When a petitioner alleges trial counsel’s ineffectiveness in a
       PCRA petition, he must prove by a preponderance of the
       evidence that his conviction or sentence resulted from ineffective
       assistance of counsel which, in the circumstances of the
       particular case, so undermined the truth-determining process
       that no reliable adjudication of guilt or innocence could have
       taken place. We have interpreted this provision in the PCRA to
       mean that the petitioner must show: (1) that his claim of
       counsel’s ineffectiveness has merit; (2) that counsel had no
       reasonable strategic basis for his action or inaction; and (3) that
       the error of counsel prejudiced the petitioner-i.e., that there is a
       reasonable probability that, but for the error of counsel, the
       outcome of the proceeding would have been different. We
       presume that counsel is effective, and it is the burden of
       Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal

citations and quotations omitted).             The petitioner bears the burden of

proving all three prongs of this test.         Commonwealth v. Meadows, 787

A.2d 312, 319-320 (Pa.2001).               “If an appellant fails to prove by a

preponderance of the evidence any of the Pierce prongs, the Court need not

address the remaining prongs of the test.” Commonwealth v. Fitzgerald,

979 A.2d 908, 911 (Pa.2010) (citation omitted).

       Appellant claims that trial counsel provided ineffective assistance by

failing to request a jury instruction based on the holding of Commonwealth



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7
    Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).



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v. Stoffan.8 See Appellant’s Brief, pp. 1-19. We disagree.

        This Court decided Stoffan in 1974.         At that time, the Drug Act

prohibited the “prescription [of a 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.”

Stoffan, 323 A.2d at 321 (internal quotations omitted).           In Stoffan, we

interpreted this statutory language as describing not defenses available to a

defendant, but rather “necessary elements of the crime of unlawful

prescription which the Commonwealth had to prove.” Id. at 322.

        Our Legislature subsequently amended the Drug Act, however,

changing the elements of the crime of unlawful prescription.          The current

form of Drug Act Subsection 780-113(a)(14), which is the same as the

version in effect at the time of Appellant’s crimes, prohibits unlawful

prescription as follows:

        The administration, dispensing, delivery, gift or prescription of
        any controlled substance by any practitioner or professional
        assistant under the practitioner’s direction and supervision
        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.

35 Pa.C.S. § 780-113(a)(14).9


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8
    323 A.2d 318 (Pa.Super.1974).




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      Simply stated, by the time of Appellant’s crimes in 2003 (and

therefore by his trial in 2007), the Legislature had changed the elements of

the crime of unlawful prescription. The Commonwealth was not required to

prove that Appellant prescribed controlled substances without conducting a

physical or visual examination or without being satisfied by evidence that the

person was not drug dependent.             Instead, the Drug Act required that the

Commonwealth prove beyond a reasonable doubt that Appellant was writing

prescriptions in a manner which violated one or more of the three standards

found in 35 P.S. § 780-113(a)(14). See Commonwealth v. Salameh, 617

A.2d 1314, 1315 (Pa.Super.1992). Accordingly, a request by trial counsel

for a Stoffan-based jury charge would have been futile. “Counsel will not

be held ineffective for failing to request an instruction to which his client was

not entitled.” Commonwealth v. Spotz, 18 A.3d 244, 299-300 (Pa.2011).
                       _______________________
(Footnote Continued)
9
  This current version of Subsection 780-113(a)(14) effectively criminalizes
non-compliance with the standard contained in 35 Pa.C.S. § 780-111(d),
which governs the prescription, administration, and dispensing of controlled
substances and provides:

      A practitioner may prescribe, administer, or dispense a
      controlled substance or other drug or device only (i) in good
      faith in the course of his professional practice, (ii) within the
      scope of the patient relationship, and (iii) in accordance with
      treatment principles accepted by a responsible segment of the
      medical profession. A practitioner may cause a controlled
      substance, other drug or device or drug to be administered by a
      professional assistant under his direction and supervision.

35 Pa.C.S. § 780-111(d).




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     Because Appellant’s claim that trial counsel provided ineffective

assistance of counsel by failing to request a jury instruction based on

Stoffan lacks merit, the PCRA court did not err in denying his PCRA petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2015




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