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COMMONWEALTH PENNSYLVANIA v. KENNETH STEIN (05/26/87)

filed: May 26, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
KENNETH STEIN



Appeal from Order, dated November 6, 1985 Court of Common Pleas, Philadelphia Co., Criminal Div., No. 486, 487, 488 December Term, 1983.

COUNSEL

Ronald T. Williamson, Deputy Attorney General, Norristown, for Com., appellant.

Richard M. Bockol, Philadelphia, for appellee.

Cavanaugh, Montemuro and Beck, JJ. Beck, J., files a concurring statement.

Author: Cavanaugh

[ 363 Pa. Super. Page 412]

This action began in 1983 when appellee, a licensed podiatrist, was charged with over 99 counts of Medicaid fraud.*fn1 The Commonwealth charged appellee with billing the Department of Public Welfare for several podiatric office visits for the sum of Six Dollars ($6.00) each, when in fact the patient had never visited appellee's office. The disputed billings in this case involved renewals of prescriptions, over the telephone, for orthopedic shoes for the children of three qualified medical assistance recipients.*fn2 Prior to trial, appellee filed a motion entitled "Motion for Accelerated Rehabilitative Disposition and/or Motion to Strike Information" which the trial court treated as a motion to quash. The trial court granted in part appellee's motion dismissing 27 of 99 counts against him. The Commonwealth proceeded to trial on the remaining counts. At the conclusion of the Commonwealth's case, the lower court sustained appellee's demurrer to 60 counts against him. The court later found appellee not guilty on the remaining 12 counts.

The Commonwealth appealed the lower court's orders quashing 27 counts (3015 Phl, 85) and sustaining appellee's demurrer to 60 counts (3016 Phl, 85). These appeals were consolidated. The Commonwealth later discontinued its appeal at 3016 Phl, 85 following the U.S. Supreme Court's decision in Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986). In Smalis, the U.S. Supreme Court held that a grant of a demurrer to an accused cannot be appealed where reversal would lead to further trial proceedings thereby implicating the double jeopardy clause. Thus, appellant brings one issue before this court: whether

[ 363 Pa. Super. Page 413]

    the lower court committed reversible error in granting appellee's motion to quash 27 counts against him. We reverse.

The Commonwealth argues that the lower court abused its discretion when it granted in part appellee's motion to quash. It argues that the informations in question were not facially defective and were not otherwise defective so as to prohibit prosecution. Appellant further argues that the lower court legally erred when it granted the motion as it based its decision on an assessment of the evidence against appellee and not upon a determination of the per se validity of the informations.

We first recognize that the decision to grant or deny a motion to quash is within the sound discretion of the trial judge whose decision will be reversed on appeal only where there has been a clear abuse of discretion. Commonwealth v. Niemetz, 282 Pa. Super. 431, 422 A.2d 1369 (1980); see also Commonwealth v. Hackney, 117 Pa. Super. 519, 178 A. 417 (1935). We have also stated:

A Motion to Quash may be used to raise defects apparent on the face of the information or other defects that would prohibit prosecution. A Motion to Quash an information is neither a guilt determining procedure nor a pre-trial means for determining the sufficiency of ...


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