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COMMONWEALTH PENNSYLVANIA v. JAMES PHILIP MCGOUGH (07/12/78)

decided: July 12, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES PHILIP MCGOUGH, APPELLANT



No. 146 April Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Blair County, at No. C.A. 227 (A-1, A-2) of 1975.

COUNSEL

Oliver E. Mattas, Jr., Assistant Public Defender, Altoona, for appellant.

William J. Haberstroh, Assistant District Attorney, Altoona, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. An Opinion Per Curiam in Support of Affirmance is filed in which Jacobs, President Judge, and Price and Van der Voort, JJ., join. Spaeth, J., files an opinion in support of reversal in which Hoffman and Cercone, JJ., join. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 257 Pa. Super. Page 237]

The six Judges who decided this appeal being equally divided, the judgment of sentence is affirmed.

[ 257 Pa. Super. Page 238]

OPINION IN SUPPORT OF AFFIRMANCE

Per Curiam:

The defendant, James Philip McGough, pled guilty on July 22, 1975 to two counts of violating Section 8(13) of the Pharmacy Act, 1961, September 27, P.L. 1700, Section 8, 63 P.S. 390-8(13) in the Court of Common Pleas of Blair County. The two charges to which he pled guilty arose out of two separate indictments for attempting to obtain drugs with forged prescriptions. The indictments concerned two separate attempts to obtain drugs with forged prescriptions, the incidents occurring approximately one month apart.

The court below sentenced the defendant to pay costs, to pay a fine of $200 and to undergo imprisonment for a period of not less than six months nor more than one year on the charge in one indictment and to pay costs, to pay a fine of $300 and to undergo imprisonment for a period of not less than one year, nor more than two years, to be served consecutively to the sentence previously imposed, on the second indictment. Defendant now appeals the sentence claiming that it was excessive.

The sentencing provision of Section 8 of the Pharmacy Act, 63 P.S. 390-8(15) provides that:

"(15) Any person who violates any of the provisions of this section 8 is guilty of a misdemeanor, and upon conviction thereof, shall be sentenced to undergo imprisonment for not more than one year or pay a fine of not more than $5,000, or both, and for each subsequent offense, shall be sentenced to undergo imprisonment of not ...


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