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COMMONWEALTH PENNSYLVANIA v. BARRY CHARLES GORDON (09/26/86)

decided: September 26, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
BARRY CHARLES GORDON, APPELLEE



Appeal from the Order of the Superior court, Dated March 15, 1985, at No. 1630, Philadelphia, 1983, Reversing the Judgment of Sentence of the Court of Common Pleas of Delaware County, at No. 2739 of 1983, Dated May 23 1983. 342 Pa. Superior Ct. 480, Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., concurs in the result. Zappala, J., files a dissenting opinion in which Nix, C.j., joins.

Author: Papadakos

[ 511 Pa. Page 482]

Opinion OF THE COURT

This is an appeal by the Commonwealth of Pennsylvania (Appellant) from the March 15, 1985, Order of the Superior Court reversing the judgment of sentence of the Court of Common Pleas of Delaware County and discharging Barry Charles Gordon (Appellee).*fn1

On July 15, 1982, Appellee, a licensed pharmacist, sold a prescription drug to Mr. Cawley, a criminal informant, without a prescription. The drug sold by Appellee was

[ 511 Pa. Page 483]

Dilaudid, a Schedule II opiate derivative drug. The sale took place at a motel in Springfield Township, Delaware County. The arrangement was that Mr. Cawley was to purchase two bottles, each containing one hundred pills, at a price of eight hundred ($800.00) dollars per bottle. Additionally, Mr. Cawley was to procure both a prostitute and a motel room for Appellee's use. Mr. Cawley signed a consent form manifesting his willingness to have his conversation with Appellee intercepted and recorded, and he was wearing a "body wire," an electrical surveillance device, while consummating the transaction with Appellee.

When Appellee brought two bottles of Dilaudid with him, Mr. Cawley explained that he could "scrounge up" only eight hundred ($800.00) dollars, and was, therefore, only able to purchase one bottle of pills. Appellee agreed to the sale of a single bottle at that time, and a subsequent sale the next day, when Mr. Cawley would be able to acquire an additional eight hundred ($800.00) dollars for that purchase. Mr. Cawley neither possessed a prescription for Dilaudid, nor did Appellee request Mr. Cawley to provide him with one. Upon a transfer of possession of the pills from Appellee to Mr. Cawley, Appellee was immediately arrested and charged with violating subdivisions 13(a)(16) and 13(a)(30) of the Controlled Substance, Drug, Device and Cosmetic Act (CSDDCA).*fn2

[ 511 Pa. Page 484]

On November 12, 1982, Appellee waived his right to a jury trial and a non-jury trial commenced before the Honorable Charles C. Keeler of the Court of Common Pleas of Delaware County. The uncontroverted evidence at trial showed that Appellee was a pharmacist licensed by the State Board of Pharmacy. At the conclusion of the Commonwealth's case, Appellee 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 with which the Commonwealth had charged him. Appellee 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 both motions and, on November 15, 1982, found Appellee guilty of the offenses charged. Post-verdict motions were denied and Appellee was sentenced on May 23, 1983, to pay costs and fines in the amount of two thousand five hundred ($2,500.00) dollars, and to undergo imprisonment in the Delaware County Prison for a minimum of eleven (11) months to a maximum of twenty-three (23) months, less one day.

Appellee filed a timely appeal to the Superior Court, which held that he could not be convicted under Sections 13(a)(16) and (30) because those sections specifically exempt licensed pharmacists. Superior Court, therefore, reversed Appellee's conviction and discharged him. We then granted the Commonwealth's Petition for Allowance of Appeal to determine the interesting question of whether a pharmacist licensed to distribute drugs in the course of his professional conduct, who sells drugs outside the course of his profession in exchange for money and the use of a prostitute, is exempt from prosecution under 35 Pa.S. § 780-113(a)(16) and (30) of the CSDDCA. Appellee maintains, and, indeed, the Superior Court held, that his status as a licensed pharmacist precludes prosecution under these sections of the Act, and that once one obtains a license as a physician,

[ 511 Pa. Page 485]

    pharmacist, etc., he attains the status of "practitioner" and can be prosecuted, if at all, only under 35 Pa.S. § 780-113(a)(14),*fn3 when he engages in illegal deliveries of drugs, regardless of the place, method, nature or circumstances of the delivery.

The Commonwealth, on the other hand, maintains that these three sections are not "status" controlled, but, rather, pertain to the manner, nature and guise of the delivery or transaction. Under the Act, the ...


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