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COMMONWEALTH v. STOFFAN (06/21/74)

decided: June 21, 1974.

COMMONWEALTH
v.
STOFFAN, APPELLANT



Appeal from judgments of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Jan. T., 1973, No. 627A, in case of Commonwealth of Pennsylvania v. Stephen Stoffan.

COUNSEL

Richard H. Martin, with him Harold Gondelman, and Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, for appellant.

D. Michael Fisher, Assistant District Attorney, with him Robert L. Eberhardt, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Spaeth, J.

Author: Spaeth

[ 228 Pa. Super. Page 131]

Appellant is a licensed medical doctor. He was indicted on six counts of violating § 13 (a) (14) of The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P. L. 233, No. 64, 35 P.S. § 780-113 (a) (14), which prohibits the "prescription by any practitioner otherwise authorized by law so to do of any controlled substance except after a physical or visual examination of the person . . . for whom said drugs are intended, said examination to be made at the time said prescription order is issued . . ., or except where the practitioner is satisfied by evidence that the person is not a drug dependent person."

The trial judge sitting without a jury found appellant not guilty on Count I and guilty on Counts II through VI. He fined appellant $10,000 and sentenced him to two separate and consecutive one year terms of imprisonment.

I.

The facts surrounding the charges were developed exclusively in the testimony of Thomas L. Short, a detective of the Pittsburgh Police Department assigned to the Narcotics Bureau of the Organized Crime Division. Each count in the indictment stems from a visit Detective Short made to appellant's office.

Count I. On Wednesday, August 30, 1972, Detective Short, posing as a prospective patient, went to appellant's

[ 228 Pa. Super. Page 132]

    office. It was his first visit. After a forty minute wait, he was called into the examining room. He described the room as being bright because of fluorescent lighting and daylight filtering through the windows. Appellant took a seat behind a desk; Short took a seat on the other side of the desk not more than an arm's length from appellant. Short told appellant that he was working two jobs and needed something to keep him "up" or "high." After recording Short's name, address and telephone number on an index card, appellant took Short's weight, checked his blood pressure, and used a stethoscope on his chest. Appellant made the following notation on the index card: "Depressive state -- obesity -- 194 lbs."*fn1 He then wrote two prescriptions, each for 12 capsules of Biphetamine 20 Dexedrine Sulfate, which is classified as an amphetamine under Schedule II of § 4 of the Controlled Substances Act, 35 P.S. § 780-104 (a).*fn2 One prescription was dated "8-29-71" [ sic ] and the other, "31 August, 1972." Appellant told Short that he could take two or three a day to get high, and that his fees were $10 for the first prescription, and $7 for any thereafter. Short gave appellant $17. Appellant warned Short not to present the prescriptions together and told him that if he were questioned he should reply that he was overweight. Appellant informed Short that he could return on Friday or Saturday for "something stronger." Short then left.

Count II. Short made his second visit to appellant on Friday, September 8, 1972. He arrived at 9:30 p.m. The doorway and hallway were occupied by people. Short stepped inside the door and stood in the hallway,

[ 228 Pa. Super. Page 133]

    which was well lighted with fluorescent fixtures. Shortly thereafter, appellant emerged from his examining room, saw Short, and asked him if he wanted the same or "a couple of doubles." Short said he wanted the doubles. At this time appellant and Short were about three feet from each other. Five minutes later, appellant handed Short two prescriptions and told him that the price would be $28. Short inadvertently gave appellant a $20 bill and two $10 bills. Appellant gave Short $2 and returned the extra ten. The prescriptions were each for twenty-four capsules of Biphetamine 20. One was dated "9-6-72" and the other, "9-9-72."

Count III. On Friday, September 15, 1972, Short arrived at appellant's office at 1:20 p.m. A man and a woman were on the porch when he arrived. A sign on the outer door stated that appellant would return at 7:00. Appellant, however, soon opened the door and chastised the three persons standing on his porch, saying they should have been there at 12:30. After they had entered the waiting room, appellant stated, ". . . you people know that I take care of the group on 12:30 on Mondays, Wednesdays and Fridays. . . ." Fifteen minutes later appellant was called into the examining room. Appellant sat at his desk and Short sat in the nearby chair just as he had during his first visit. Appellant wrote two prescriptions, each for twenty-four tablets of Desoxyn, 15 milligrams. Desoxyn is classified under Schedule II as an amphetamine. The prescriptions were dated "9-13-72" and "9-16-72." Appellant gave Short the prescriptions in return for $28 and reminded Short that he was not to present them at the same time and place. He told Short that he could return for more on Wednesday.

Count IV. On Wednesday, September 20, 1972, Short arrived at appellant's office at 12:55 p.m. After a wait of forty-five minutes, Short went into the examining room and as before sat down in the chair opposite

[ 228 Pa. Super. Page 134]

    appellant, who was seated at the desk. Short asked for "a couple of doubles." Appellant wrote two prescriptions, one dated "9-19-72," the other, "9-22-72," each for twenty-four capsules of Bipetamine 20. Appellant told Short that he was not to return until the following week. After saying, ". . . legally I can only write three days in advance, but if you want another double I'll write it, but be careful," appellant wrote a third prescription, dated "9-29-72," for "20 caps" of Biphetamine 20. Short gave appellant $42. Appellant instructed Short to "take the most recent dated prescription of the three and keep it handy. Take the other two and put them somewhere else on yourself." Appellant explained: "[I]n case a narcotics agent grabs you or follows you he'll think you have the one legitimate prescription with you."

Count V. On Wednesday, September 27, 1972, Short arrived at appellant's office at 12:45 p.m. and ten minutes later was admitted into the examining room. Appellant asked Short what he was doing with the pills and appellant replied that he was using them at the rate of two or three a day. Appellant asked Short if he was giving some to his wife and Short replied that he was. Appellant said perhaps a prescription could be put in her name but decided against doing so. Appellant wrote two prescriptions, each reading, "capsules Biphetamine 20, 20 caps." One was dated "9-27-72" and the other, "9-29-72." Short paid appellant $28. As Short was leaving, appellant said he hoped Short was not selling the drugs. Short assured him that he was not. Appellant told him he could come back on Friday.

Count VI. Short paid his final visit to appellant's office on Monday, October 9, 1972. He arrived at 12:45 p.m. and two hours and ten minutes later was admitted into the examining room. Short and appellant occupied their usual seats at the desk. Appellant stated that he

[ 228 Pa. Super. Page 135]

    would not write prescriptions in advance. Instead he wrote three prescriptions, each for "caps Biphetamine 20, 20 caps," dated September 3rd, 6th, and 9th. Short paid appellant $42.

At no time material to this case was Short taking or addicted to a narcotic drug, nor did he feign any symptoms of drug use. He never complained of any physical or emotional ailments, nor was he asked by appellant if any existed. None of the prescriptions appellant gave him was ever filled.

II.

The first question that must be considered is how to define the crime with which appellant was charged.

It will be recalled that § 13 (a) (14) of the Controlled Substances Act -- the provision that appellant was convicted of violating -- prohibits prescription "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." Apparently the trial judge (and the attorneys for appellant and the Commonwealth) construed these two clauses as stating "exemptions or exceptions." The importance of this conclusion is that Section 21 of the Controlled Substances Act, 35 P.S. § 780-121, provides: "In any prosecution under this act, it shall not be necessary to negate any of the exemptions or exceptions of ...


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