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COMMONWEALTH PENNSYLVANIA v. BODENHEIMER LEE SHELHORSE (12/28/77)

decided: December 28, 1977.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
BODENHEIMER LEE SHELHORSE, APPELLANT



No. 516 April Term 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Div., at No. 3358A Sept. Term, 1974.

COUNSEL

William F. Cercone, Jr., Pittsburgh, for appellant.

Kim W. Riester, Assistant District Attorney, Pittsburgh, with him Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Price, Van der Voort and Spaeth, JJ. Cercone, J., did not participate in the consideration or decision of this case. Watkins, President Judge, joins in this opinion. Van der Voort, J., files a concurring opinion in which Watkins, President Judge, and Price, J., join.

Author: Spaeth

[ 252 Pa. Super. Page 477]

This is an appeal from a judgment of sentence under the Controlled Substance, Drug, Device and Cosmetic Act, Act

[ 252 Pa. Super. Page 478]

    of April 14, 1972, P.L. 233, No. 64, § 1 et seq., 35 P.S. § 780-101 et seq.

Appellant, an osteopathic physician, was the subject of an undercover investigation; on nineteen occasions between November 13, 1972, and September 13, 1973, police officers visited his office and obtained prescriptions for controlled substances. This investigation culminated in a search of appellant's office during which appellant's file box of patient information cards was seized. Appellant was charged with dispensing controlled substances without proper physical examinations, in violation of § 780-113(a)(14) of the above Act.*fn1 He was tried on the charge, but the trial ended when the court granted appellant's demurrer on the ground that the evidence was insufficient. The Commonwealth then initiated this prosecution, charging appellant with violation of §§ 780-113(a)(21) and 113(a)(28) of the Act, which require the keeping of certain records.*fn2 No new investigation was made, the Commonwealth introducing into evidence against appellant the same patient information cards seized in the earlier search of his office.

Appellant was fined $1000 and placed on probation for six months for violating § 780-113(a)(21), and fined $2000 and

[ 252 Pa. Super. Page 479]

    placed on probation for two years, consecutive to the first probationary period, for violating § 780-113(a)(28).

1a

Appellant argues that the second prosecution was a violation of Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854 (1974), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974), and of the Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 110, under which certain prosecutions are barred by prior prosecutions for a different offense.

Campana, supra, parallels the Double Jeopardy Clause, which reads, "[N]or shall any persons be subject for the offense to be twice put in jeopardy of life or limb." The clause serves at least two purposes. First, it ensures that "the State with all its resources and power [will] not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity . . . ." Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). Second, the Clause "responds as well to the increasingly widespread recognition that the consolidation in one lawsuit of all issues arising out of a single transaction or occurrence best promotes justice, economy, and convenience." Ashe v. Swenson, 397 U.S. 436, 454, 90 S.Ct. 1189, 1199, 25 L.Ed.2d 469 (1970).

Following the first Campana opinion, the legislature passed § 110 of the Crimes Code, supra. Section 110, the Supreme Court said in the second Campana ...


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