No. 1711 October Term, 1977, Appeal from the Judgment of Sentence Imposed on April 25, 1977, Court of Common Pleas, Criminal Division of Lycoming County, at No. 76-10, 647.
Gregory V. Smith, Williamsport, for appellant.
Robert F. Banks, First Assistant District Attorney, Williamsport, for Com., appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 261 Pa. Super. Page 248]
This case involves a medical practitioner who was convicted of thirty-five counts of violation of the Controlled Substance, Drug, Device and Cosmetic Act of 1972, April 14, P.L. 233, § 13(a)(12) 35 P.S. § 780-113(a)(12).*fn1 He was sentenced to three to seven years imprisonment, and ordered to pay a fine of fifteen hundred dollars. The defendant, Stanley Q. West, now appeals to this court, alleging seven areas of error. He contends: first, that Section 13(a)(12) of the Controlled Substances Act does not apply to medical practitioners; second, that the information should have been quashed because of pre-arrest delay; third, that an application for suppression of evidence should have been granted; fourth, that appellant was not given a fair trial because of prosecutorial misconduct; fifth, that the trial judge erred in permitting inquiry into appellant's record-keeping of controlled substances dispensed for a two year period; sixth, that evidence of other possible crimes and cross-examination of appellant regarding those incidents should have been excluded; and finally, that the sentence imposed was illegal in that it exceeded the statutory maximum. We disagree
[ 261 Pa. Super. Page 249]
with appellant's first six contentions; we do, however, agree that the sentence was illegal, and we therefore reverse the judgment and remand for resentencing purposes only.
The prosecution of appellant arose from the filling of some thirty-five*fn2 prescriptions for methaqualone (commonly known as quaaludes) over a six month period. A licensed physician, appellant had written the prescriptions in the names of local patients, but had personally presented them at Lehman's Pharmacy in Jersey Shore, where appellant practiced. The pharmacists filled each prescription under the assumption that appellant would deliver the drugs to the named patients. As a professional courtesy, appellant was able to purchase the drugs at cost.
At trial, testimony of local mail carriers, voter registrars, and tax clerks established that thirty-two of the thirty-five named patients did not exist in Lycoming County. The other three individuals did reside in the area, but had never received the prescribed drugs from appellant.
Other pertinent facts adduced at trial concerned appellant's professional career. He began practicing medicine in 1953, and moved to Lycoming County in 1969. His first office in Jersey Shore was destroyed in the 1972 flood. Subsequently, he has had offices in a camper parked in a friend's driveway, an old motorcycle showroom, and his mobile home.
Appellant's first argument questions the applicability of Section 13(a)(12) of the Controlled Substance, Drug, Device and Cosmetic Act [hereinafter referred to as Act] to practitioners. Appellant contends that because they are allowed by statute to possess and distribute controlled substances, the subsection in question was not meant to apply to physicians. We find this argument untenable.
[ 261 Pa. Super. Page 250]
The purpose of any statute such as the one in issue here is to regulate the distribution of drugs, avoid abuse, and insure proper medical use. Throughout the statute, the word "practitioner" is used, and is defined to mean:
A physician, osteopath, dentist, veterinarian, pharmacist, podiatrist, nurse, scientific investigator, or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance, other drug or device in the course of ...