Appeal from Order granting defendant's Motion in Arrest of Judgment of the Court of Common Pleas of Judgment of the Court of Common Pleas of Bucks County, Criminal Division entered on December 30, 1975 at No. 2664 of 1974 Sessions.
Peter F. Schenck, Assistant District Attorney, with him Stephen B. Harris, First Assistant District Attorney, Warrington, for appellant.
R. Wasserbly, with him Richard R. Fink, Chief Public Defender, Doylestown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 248 Pa. Super. Page 220]
This is an appeal from the Court of Common Pleas of Bucks County, Criminal Division, where the court granted appellee's motion in arrest of judgment after a jury returned a verdict of guilty against appellee on a charge of attempting to obtain possession of a controlled substance. The Commonwealth then took this direct appeal and the appeal is proper as it involves a question of law.
Appellee, Shawn Cunningham, was found guilty after a trial by jury on February 6, 1975. The evidence at trial established that on August 22, 1974 a pharmacist received a phone call from someone who said that he was a Dr. Kidroff
[ 248 Pa. Super. Page 221]
telling him that a codeine cough medicine had been prescribed for one Ed Johnson and that the patient would be in to pick it up. This type of medicine is available by prescription only. Later that day the defendant came into the pharmacy and requested the prescription for Ed Johnson. A check with Dr. Kidroff revealed that he had made no such call nor did he have any such patient. Appellee testified that another party had asked him to pick up the prescription, that he never represented himself as "Ed Johnson" nor ever asked for a specific prescription while in the pharmacy. The court below granted appellee's motion in arrest of judgment for attempting to possess the controlled substances because an attempt to possess a controlled substance was never specifically made a crime under the Act of 1972, April 14, P.L. 233, No. 64, § 13, 35 P.S. § 780-113(a)(12) which was the Act under which appellee was charged. The jury had found him not guilty of possession since he never actually gained possession of the controlled substance.
Appellee was indicted under 35 P.S. § 780-113(a)(12) (The Drug, Device and Cosmetic Act) which proscribes:
"The acquisition or obtaining of possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge".
he issue is whether an attempt to commit such crime is an offense punishable under the penal laws of the Commonwealth of Pennsylvania.
In Commonwealth v. White, 232 Pa. Super. 176, 335 A.2d 436 (1975) we upheld a conviction for attempted indecent assault even though the defendant had been indicted only on the crime of indecent assault. White held that "an accused is guilty of attempt when, 'with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime'". See also 18 Pa.C.S. § 901 (1973). There it is clear that a person indicted for a specific crime may be found guilty of an attempt to commit that crime under ...