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COMMONWEALTH PENNSYLVANIA v. PATRICK FRANK (10/09/86)

filed: October 9, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
PATRICK FRANK, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lebanon County, No. 2, 1985.

COUNSEL

Arthur L. Goldberg, Harrisburg, for appellant.

John E. Feather, Jr., Assistant District Attorney, Lebanon, for Com.

Wieand, Beck and Watkins, JJ.

Author: Wieand

[ 357 Pa. Super. Page 443]

Dr. Patrick J. Frank was tried by jury and was found guilty on three counts of unlawfully dispensing a controlled substance. On direct appeal from the judgment of sentence, he argues (1) that he was entrapped as a matter of law and (2) that the trial court should have suppressed electronic recordings of conversations between him and the undercover agent to whom the drugs were dispensed. These arguments are lacking in merit; therefore, we affirm the judgment of sentence.*fn1

On July 20, 1984, Jeanne R. Berlin, an undercover agent employed by the Bureau of Narcotic Investigation and Drug Control,*fn2 arrived at the office of Dr. Frank pursuant to appointment. Using the name Diane Winters, she told Dr.

[ 357 Pa. Super. Page 444]

Frank that she wanted to lose weight. After conducting a physical examination, Dr. Frank dispensed medication. One type was to be used during the day and another type was intended for use at night.

On August 24, 1984, Agent Berlin again went to Dr. Frank's office. She told Dr. Frank that she had not been taking the nighttime medicine because she had not needed it. She said that her boyfriend had taken this medication and liked it. Berlin asked Dr. Frank for a supply of medication for her boyfriend. Dr. Frank responded that he could not lawfully prescribe medication for her boyfriend without examining him physically, but that he could prescribe medication for her and she could give it to her boyfriend. He then gave her additional medication.

On September 14, 1984, Agent Berlin again went to Dr. Frank's office. This time she was wearing an electronic device which enabled her conversation with Dr. Frank to be recorded. Once again she told Dr. Frank that she was not using the nighttime medicine but that her boyfriend was continuing to take it. Dr. Frank again responded that he could get into trouble if he dispensed medication for his patient's boyfriend, but that he would continue to provide medication for her and she could give it to her boyfriend. He gave her additional medicine.

Again, on October 2, 1984, Berlin went to Dr. Frank's office while wearing a recording device. She told Dr. Frank that she wanted more of the nighttime medication for her boyfriend and asked him if he could make the medication stronger. Dr. Frank responded that he would not give the medication to her boyfriend but he would give it to her and she could give it to anyone she wanted to give it to. He gave her a different kind of medication.

On October 12, 1984, still posing as Diane Winters, Agent Berlin went to Dr. Frank's office for the last time. She told Dr. Frank that she had not come to discuss weight control, but only to get more nighttime medication for her boyfriend. Again Dr. Frank suggested that he ...


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