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COMMONWEALTH PENNSYLVANIA v. LYNN H. POSSINGER (03/16/79)

decided: March 16, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
LYNN H. POSSINGER, APPELLANT



No. 2074 October Term 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Div., Criminal Sect., imposed on Bills of Information Nos. 1812 to 1818, May Term, 1976.

COUNSEL

Louis Lipschitz, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision in this case.

Author: Spaeth

[ 264 Pa. Super. Page 334]

Following a non-jury trial, appellant, a physician, was convicted on seven counts of feloniously dispensing a controlled substance.*fn1 The evidence viewed in the light most favorable to the Commonwealth establishes the following facts.

COUNT I. On June 9, 1975, Robert Bongard, an undercover agent for the Philadelphia Police Department who weighs 160 pounds and is 6 feet 1 inch tall, went to appellant's office. After paying $8.00, appellant's usual fee for an office visit, Bongard told appellant that he wanted to go on a diet and asked for a prescription. After taking Bongard's blood pressure, appellant asked him whether he had any allergies and which type of drug he preferred. At first Bongard stated that he had no drug preference, but after appellant repeated his question, Bongard said he wanted dexedrine, a controlled substance. Appellant then told Bongard that dexedrine came in three different doses -- 5, 10, and 15 milligram -- and that he should choose one. When

[ 264 Pa. Super. Page 335]

Bongard again stated no preference, appellant said he would give him "tens" and that if they were not strong enough, he would give him something stronger. Appellant then wrote a prescription for 30 dexedrine. During the visit, appellant asked no other questions concerning Bongard's medical history, nor did he give Bongard instructions concerning a diet.

COUNT II. Bongard returned to appellant's office on July 1, 1975. After he was weighed by appellant, Bongard asked if he could come back sooner on his next visit. After giving Bongard a prescription for 30 dexedrine, 15 milligram strength, appellant indicated that Bongard could return in 2 1/2 weeks instead of 3 weeks. On this visit, which lasted only 2-3 minutes, appellant did not take a medical history, check Bongard's blood pressure, or recommend a diet regimen.

COUNT III. On July 24, 1975, Bongard returned to appellant's office and obtained another prescription for 30 dexedrine, 15 milligram strength. Appellant indicated that he would be on vacation during the first week in August and that Bongard could return in 2 weeks if he wished. Aside from taking Bongard's blood pressure and weighing him, no other medical tests were performed, nor was a medical history taken. This visit also lasted only 2-3 minutes.

COUNT IV. After Bongard returned for a fourth visit on August 14, 1975, and paid his $8.00 fee, he told appellant that he was not consuming the pills himself, but was selling some and giving others away to friends. In response, appellant told Bongard that "if it was a couple of years ago I could have probably done something for you but, like, things are tight now and, like, the Federal Government watches us . . . . [T]he best thing I can do, if you have some friends, get some friends to come in here. If they only come here once they could sign a card, a file card, and you could come back for them after that with just notes from them and I could give ...


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