No. 2473 October Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas of Clinton County, Trial Division, Criminal Section, No. 25 April Term, 1975
Charles R. Rosamilia, Jr., Specially Appointed Public Defender, Lock Haven, for appellant.
J. Michael Williamson, Specially Appointed District Attorney, Lock Haven, submitted a brief on behalf of Commonwealth, appellee.
Price, Gates*fn* and Dowling,*fn* JJ. Gates, J., files a concurring opinion.
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The appellant was originally indicted on fifty-four counts of unlawfully writing prescriptions in violation of § 13(a)(14) of The Controlled Substance, Drug, Device and Cosmetic Act of 1972, April 14, P.L. 233, No. 64 (35 P.S. § 780-113(a)(14)). On November 12, 1975, as the result of a negotiated plea, the appellant entered pleas of nolo contendere to Counts 2, 14, 26 and 47 in the aforesaid indictment and was subsequently sentenced in a manner consistent with the negotiated plea. By order of this court dated October 6, 1977, appellant was given leave to withdraw his nolo contendere pleas. Commonwealth v. West, 250 Pa. Super. 557, 378 A.2d 1289 (1977).
The Commonwealth at the time of the trial elected not to pursue the original fifty-four counts, and instead chose to try the appellant on the four counts to which he had previously pleaded nolo contendere. Following his conviction by a jury on all four counts, appellant filed applications
[ 270 Pa. Super. Page 305]
for post conviction relief, all of which were denied. Thereupon, appellant brought this appeal.
In acknowledgment of the thoroughness of the lower court's opinion, that opinion is adopted in large measure and its analysis is reflected in the discussion that follows:
At the trial it developed that the prosecution was a result of an investigation by two undercover narcotics agents. At various times beginning with January 29, 1975 and continuing through April 9, 1975, they appeared separately in the appellant's office and obtained written prescriptions from him, all of which formed separate prosecutions in the original fifty-four counts in the indictment. In most cases, the agents obtained a number of prescriptions on the same date. At the trial the Commonwealth was permitted, over objection, to introduce the testimony of the agents as to all of the prescriptions obtained during this time period. While generally the Commonwealth may not introduce evidence of other criminal activity in a prosecution for a separate offense, there are a number of applicable exceptions to the general rule of inadmissibility, on the authority of which the instant testimony was properly heard. The four prescriptions for which the appellant was tried were so interrelated to the other fifty prescriptions as to show a common scheme, plan, or design, in the commission of the offense. Commonwealth v. Bastone, 262 Pa. Super. 590, 396 A.2d 1327 (1978). Moreover, the appellant's state of mind, particularly his good faith in writing the illegal prescriptions, was an element of the offense charged. Accordingly, the Commonwealth was entitled to introduce evidence of other unlawful prescriptions written by appellant as part of the natural development of the facts. Commonwealth v. Fishel, 251 Pa. Super. 528, 380 A.2d 906 (1977).
Appellant's next contention involves an issue of statutory construction. Section 13(a)(14) of the Controlled Substance, Drug, Device and Cosmetic Act, 1972, April 14, P.L. 233, No. 64, Section 13, as amended, 35 P.S. § 780-113(a)(14) proscribes:
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"The . . . prescription of any controlled substance by any practitioner . . . unless done (i) in good faith in the course of his professional practice; (ii) within the scope of the patient relationship; (iii) in accordance with treatment principles accepted by a responsible segment of the medical profession."
Appellant challenges the constitutionality of this provision, claiming that it is void for vagueness in that it contains no ascertainable standard of conduct. Commonwealth v. Mack, 467 Pa. 613, 616-617, 359 A.2d 770, 772 (1976).
In construing statutes couched in similarly comprehensive language, this court has dealt with claims of ...