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COMMONWEALTH v. KAYE (02/27/75)

decided: February 27, 1975.

COMMONWEALTH
v.
KAYE, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Beaver County, No. 258 of 1972, in case of Commonwealth of Pennsylvania v. Maurice L. Kaye.

COUNSEL

George E. Goldstein, with him Robert M. Rosenblum and William J. Honig, and Goldstein and Rosenblum, for appellant.

Joseph M. Stanichak, Assistant District Attorney, with him Joseph S. Walko, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J.

Author: Spaeth

[ 232 Pa. Super. Page 514]

Appellant, an osteopath, was convicted after a trial by jury of three offenses under the Drug, Device and Cosmetic Act:*fn1 trafficking in dangerous or narcotic drugs;*fn2 prescription to a person known to be a habitual user;*fn3 and prescription without a physical examination.*fn4

On July 13, 1971, George Gariti went to appellant's office in Coraopolis, Allegheny County, and asked appellant to issue a prescription for Numorphan. This was a very potent pain killer, usually only prescribed for use by terminal cancer patients. Appellant refused to write the prescription unless Gariti could supply the name of such a patient. Gariti called a friend, Kathy Markvan, whom he knew to have a relative whose name he could use. She gave him the name of her aunt. He wrote the name on a piece of paper, which he handed to appellant, and appellant wrote out the prescription and handed it to him. Gariti and Markvan then went to have the prescription filled in Ellwood City, where the aunt lived.

[ 232 Pa. Super. Page 515]

They got lost, however, and ended up trying to have the prescription filled at a pharmacy in Zelienople. Markvan went in to get the prescription filled while Gariti waited in the car. The pharmacist noticed that the prescription lacked the proper registration number from the Bureau of Narcotics and Dangerous Drugs. His suspicions were further aroused by the fact that the production of Numorphan had been halted six months before by the government, although pharmacists were permitted to sell any they still had in stock. He alerted an off-duty policeman who happened to be in the pharmacy, and Markvan and Gariti were taken into custody. The Commonwealth proved these events by the testimony of all of the persons involved (except appellant).

Albert D'Amico, a regional supervisor with the Pennsylvania Bureau of Narcotics and Drug Control, supervised the investigation of appellant. Acting on information he received from Gariti and Ron Lupinacci, he dispatched Agents Burke and Roy to various pharmacies in the general area of Ambridge, Beaver County, to inspect and search for prescriptions written by appellant and issued to Gariti and Lupinacci, in both their actual names and their several aliases. This investigation yielded at least thirty-seven illegal prescriptions written over a period of about sixteen months: two for Numorphan (the second having been issued in the name of a dead man), twenty-six for Desoxyn, three for Nembutal, four for Desbutal, one for Dilaudid, and one for Quaalude.*fn5 D'Amico, Burke, and Roy testified as to the manner in which the investigation and inspection were conducted,

[ 232 Pa. Super. Page 516]

    and they identified the prescriptions and the pharmacies from which they were seized. In addition, the pharmacists who filled or supervised the filling of the various prescriptions identified the prescriptions; and some of the pharmacists also testified as to the manner in which the inspection was conducted.

Gariti, Lupinacci, and Dennis Maher had all bought prescriptions for various drugs, principally Desoxyn, from appellant at his office in Ambridge. Lupinacci and Maher testified about a time span beginning in 1968; Gariti testified that he bought prescriptions continuously from February, 1971. Each said he paid $5.00 or $6.00 for each prescription, and that appellant never gave a physical examination in connection with any of the prescriptions. Lupinacci testified that during one period he was buying as many as six or seven prescriptions a week; Gariti testified that sometimes he would buy as many as three or four a week. ...


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