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COMMONWEALTH PENNSYLVANIA v. BARRY CHARLES GORDON (03/15/85)

filed: March 15, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
BARRY CHARLES GORDON, APPELLANT



No. 01630 Philadelphia 1983, APPEAL FROM THE JUDGMENT OF SENTENCE MAY 23, 1983 IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, CRIMINAL NO. 2739 OF 1982

COUNSEL

H. Robert Fiebach, Philadelphia, for appellant.

Sandra L. Elias, Deputy District Attorney, Media, for Commonwealth, appellee.

Cirillo, Olszewski and Montgomery, JJ. Olszewski, J., files a concurring statement.

Author: Per Curiam

[ 342 Pa. Super. Page 482]

This is an appeal from the judgment of sentence issued by the Honorable Charles C. Keeler on May 23, 1983 in the Court of Common Pleas of Delaware County.

On July 15, 1982 Barry Gordon, a licensed pharmacist and appellant in this case, sold a prescription drug to a criminal

[ 342 Pa. Super. Page 483]

    informant without a prescription. The drug sold by appellant was dilaudid, a Schedule II opiate derivative drug. The sale of the dilaudid took place at a motel in Springfield Township. Appellant was immediately arrested by police following the $800 sale to the informant, and was charged with violating subdivisions 13(a)(16) and (30) of the Controlled Substance, Drug, Device, and Cosmetic Act, Act of April 14, 1972, P.L. 233, No. 64 (as amended), 35 P.S. § 780-113(a)(16) and (30).

On November 12, 1982, the appellant waived his right to a jury trial and a bench trial commenced before the Honorable Charles C. Keeler. The uncontroverted evidence at trial showed that Mr. Gordon was a pharmacist licensed by the State Board of Pharmacy. At the conclusion of the Commonwealth's case the appellant demurred to the evidence and at the conclusion of his own case moved for a directed verdict of acquittal, contending that as a licensed pharmacist he could not be found guilty of violating the sections the Commonwealth had charged him with. Appellant maintained that subdivisions 13(a)(16) and (30) of the CSDDCA by their very terms did not apply to practitioners which included licensed pharmacists. The trial court denied these motions and on November 15, 1982 found the appellant guilty of the offenses charged. The trial court also denied the appellant's post-verdict motions for a new trial and in arrest of judgment. This appeal followed.

Appellant raises three contentions on appeal: 1) that appellant, a pharmacist licensed with the State Board of Pharmacy, cannot be convicted under Sections 13(a)(16) and (30) of the CSDDCA because these sections exempt "practitioners"; 2) that the Commonwealth withheld exculpatory evidence requested by appellant; and 3) that the Commonwealth violated the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5701-5726.

We agree with appellant's contention that because he is a licensed pharmacist he cannot be found guilty of violating two statutory provisions of the CSDDCA which by their very terms ...


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