1106 Philadelphia 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas, Montgomery County, Criminal Division, at No. 1139-81.
Irwin Paul, Philadelphia, for appellant.
Scott Breidenbach, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Montemuro, Watkins and Cercone, JJ.
[ 324 Pa. Super. Page 373]
On November 6, 1981, the appellant, Francis Sanders, was found guilty after a jury trial, on one count each of criminal conspiracy,*fn1 theft by receiving stolen property,*fn2 violation of the Pharmacy Act,*fn3 and criminal attempt to violate the Pharmacy Act.*fn4 He was also found guilty on two counts of forgery.*fn5 The charges arose out of an incident wherein the appellant allegedly attempted to procure prescribed drugs by means of a forged prescription slip stolen from the office of Dr. Anthony J. Giaimo.
The appellant filed post-verdict motions in arrest of judgment and for a new trial, which were denied by the trial court. He was subsequently sentenced to one (1) to five (5) years imprisonment on the criminal conspiracy charge. Sentence was suspended on all other charges. This appeal followed.
[ 324 Pa. Super. Page 374]
Two issues are raised for our consideration; however, because we find only one of them to be meritorious, we need only discuss that issue, to wit: the trial court erred in commenting on the appellant's post-arrest silence. After reviewing the trial transcript in light of the relevant law, we agree that a prejudicial error was committed and consequently vacate the judgment of sentence and remand the case for a new trial.
In order to understand the appellant's contention, it is necessary to establish the factual context. The appellant was a chronic alcoholic who suffered from an internal disorder called pancreatitis. For a period of twelve (12) to fifteen (15) months he was being treated for this disorder by Dr. Anthony J. Giaimo. Dr. Giaimo's treatment was principally to prescribe for the appellant Tylenol with Codeine # 4 for pain, and sometimes another drug, Doriden, when the appellant complained of insomnia.
On April 10, 1981, the appellant visited Dr. Giaimo. Dr. Giaimo testified that on that occasion he prescribed only Tylenol with Codeine for the appellant. On April 12, 1981, the appellant, along with two female companions, drove to Ralph's Pharmacy in Whitemarsh Township. The appellant presented two prescription slips to Ralph Tucci, the proprietor and pharmacist. One of the slips was for Tylenol with Codeine, and the other was for Doriden; both were putatively signed and stamped by Dr. Anthony J. Giaimo.
The pharmacist, Mr. Tucci, had filled prescriptions for the appellant previously, but on this occasion he discerned a difference between the signatures on the two prescription slips. Mr. Tucci told the appellant that he would have to verify the prescriptions with Dr. Giaimo. Mr. Tucci called Dr. Giaimo who said that he would notify the police and also come to the pharmacy himself. Dr. Giaimo testified that he was suspicious because several of his prescription slips had been stolen recently.
Soon thereafter, a Whitemarsh Township police officer arrived, conversed with Mr. Tucci, and compared the signatures
[ 324 Pa. Super. Page 375]
on the prescription slips. Dr. Giaimo then arrived, and after examining the prescription slips, disclaimed writing the prescription for Doriden. He also identified the appellant and the two females as patients of his. At that point, the police officer placed the appellant under arrest. A search of the vehicle turned up sixteen (16) other prescription slips made out for either Francis Sanders or Patricia Parker Goronski [one of the females].
The appellant testified that on April 10, 1981, he visited Dr. Giaimo and received prescriptions for both Tylenol and Doriden. After cross-examination and redirect examination, the ...