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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, Nos. 387, 391, and 592 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 Clarence D. Neish, Assistant District Attorney, and 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 507]

Appellant, an osteopath, was convicted by a jury on six counts of violation of the Drug, Device and Cosmetic Act,*fn1 and was sentenced to a total of 1 1/2 to 3 years in prison. The charges arose out of two sales of diet pills, each sale resulting in three counts: (1) sale, outside of the regular course of his profession or duties, by a practitioner licensed by law to prescribe drugs;*fn2 dispensing drugs without keeping proper records;*fn3 and (3) dispensing

[ 232 Pa. Super. Page 508]

    drugs without proper labeling and instructions as to use.*fn4

The first of the two sales was on April 28, 1972, in appellant's office. Appellant sold 2,000 pills in two containers of 1,000 pills each (1,000 pills of 10 mg. amphetamine sulfate and 16.2 mg. phenobarbitol, and 1,000 pills of 10 mg. amphetamine sulfate) to two troopers of the Pennsylvania State Police dressed in civilian clothes. The troopers had been introduced to appellant by one James Presto, who had served the State police as an informer and who was present when the sale was made. The sale was a straight sale; no doctor-patient relationship was established; neither of the troopers sought any medical advice, and appellant neither examined them nor made any inquiry about their health. Each of the containers had only manufacturer's label attached. There was no label to indicate who had dispensed the pills, to whom, and on what date, or in what manner they were to be administered. The second sale was on May 9, 1972, when the two troopers, again in appellant's office, purchased 2,000 pills (10 mg. amphetamine sulfate) from appellant; this time the troopers acted on their own, without Presto's aid. Again it was a straight sale, unaccompanied by any doctor-patient relationship, and again the container was not properly labeled. There is no record, either of the sale of April 28 or the sale of May 9, in appellant's office journal of drugs dispensed.

[ 232 Pa. Super. Page 509]

Appellant raises four issues on this appeal, but only one of these is properly before us. Two of the issues, the propriety of the execution of the arrest and search warrants and an alleged violation of the sequestration order, were not raised in post-trial motions. A third relates to the propriety of a certain comment by the prosecutor, but the comment was neither objected to at trial nor raised in post-trial motions. Appellant is thus estopped to raise these issues on direct appeal. Commonwealth v. Page 509} Williams, 458 Pa. 319, 326 A.2d 300 (1974); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

The issue properly before us involves Presto, the informant and an eyewitness to the first sale. The facts giving rise to this issue may be stated as follows. Presto's name was brought up for the first time by appellant's attorney during the suppression hearing. At the close of the hearing the assistant district attorney stated on the record that James R. Presto of Ambridge, Beaver County, was the man who had introduced the troopers to appellant, that the Commonwealth would not call Presto as a witness at the trial, and that he was being identified so that he could be called as a witness for the defense if appellant so desired. At the trial the Commonwealth did not call Presto, but the defense did; indeed, he was the only witness called by the defense. Defense counsel asked Presto his name and address, and whether he was familiar with appellant and the events of April 28, 1972. Presto answered these questions. Defense counsel then said the following: "Do you recall a period of time prior to April 28, 1972, in which you had in your possession approximately 2,000 -- and before you answer this question, let me finish it completely and when I tell you to answer you can answer -- approximately 2,000 amphetamine sulfate tablets in a bottle similar to the one in front of you? Before you answer, I must advise you or ask the Court to advise you that you have a right to remain silent and anything you ...


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