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[U] Commonwealth v. Wagman

Superior Court of Pennsylvania

February 19, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
PHILIP WAGMAN, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order entered May 24, 2013, in the Court of Common Pleas of Lawrence County, Criminal Division, at No(s): CP-37-CR-0001236-2004.

BEFORE: BOWES, ALLEN, and MUSMANNO, JJ.

MEMORANDUM

ALLEN, J.

Philip Wagman ("Appellant") appeals pro se from the order denying his first petition for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. sections 9541-46. We affirm.

The pertinent facts and protracted procedural history are as follows:

Appellant was charged with nineteen violations of the [Controlled Substance, Drug, Device and Cosmetic Act, ("Act")], eleven counts of Fraud and Abuse Control Provider Prohibited Acts, one count of criminal conspiracy, and [one] count of flight to avoid apprehension. Appellant, a physician who is board certified in nuclear medicine, was charged with prescribing controlled substances in violation of 35 P.S. § 780-113(a)(14)(iii) with respect to nineteen of his patients. That section prohibits:
(14) The administration, dispensing, delivery, gift or prescription of any controlled substance by any practitioner or professional assistant under the practitioner's direction and supervision unless done (i) in good faith in the course of his professional practice; (ii) within the scope of the patient relationship; (iii) in accordance with the treatment principles accepted by a responsible segment of the medical profession.
On April 19, 2006, Appellant and his co-defendant Thomas Wilkins, a chiropractor, proceeded to a jury trial. On May 9, 2006, Appellant was acquitted of the fraud charges but convicted of the remaining twenty-one counts. In June, the Commonwealth sent notice that it intended to seek mandatory minimum sentences imposed under the Act based on the weight of drugs, as found by the jury, and on July 20, 2006, Appellant was sentenced to [an aggregate term of] nineteen to forty-five years [of] imprisonment and fined $850, 000.

Commonwealth v. Wagman, 964 A.2d 447 (Pa.Super. 2008), unpublished memorandum at 1-2.[1]

Appellant filed a timely appeal to this Court. Among the issues raised by Appellant was a claim that the trial court erred in refusing to address Appellant's appellate issues due to Appellant's violation of Pa.R.A.P. 1925(b), relating to his concise statement of issues raised on appeal, as well as Pa.R.A.P. 1911(a), relating the ordering and payment for transcripts. Upon review, we agreed with Appellant, and remanded the case for the trial court to prepare a supplemental opinion to address the remaining issues Appellant raised on appeal. See generally, Commonwealth v. Wagman, A.2d ___ (Pa.Super. 2007).

After receiving the trial court's supplemental opinion, we considered Appellant's claims as follows: 1) whether Appellant's conviction violated the federal and state constitution because "it was based on a subjective standard determined by the Commonwealth's expert witness who practiced in a different field of medicine, had falsified his qualifications, was not provided with all of the patient records used by [Appellant], and had never spoken to any of [Appellant's] patients;" 2) whether the evidence was sufficient to convict Appellant; 3) whether the trial court abused its discretion in permitting the Commonwealth's expert to testify; 4) whether the trial court erred in failing to charge the jury with the "good faith" charge as requested by Appellant, because Appellant "had presented evidence that [he] was acting in good faith in treating his patients" and thus negating the element of intent; and 5) whether it was a violation of Appellant's rights to use the aggregate weights of each pill "when convicting and setencing, " when a portion of many pills included a non-controlled substance. See Wagman, supra, unpublished memorandum at 25-26.

Finding no merit to these claims, we affirmed Appellant's judgment of sentence. Id. at 49. On June 17, 2009, our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Wagman, 973 A.2d 1006 (Pa. 2009).

On September 24, 2009, Appellant filed a timely pro se PCRA petition, and the PCRA court appointed PCRA counsel. PCRA counsel represented Appellant at the PCRA hearing on August 3, 2010. At the conclusion of the PCRA hearing, the PCRA court gave PCRA counsel sixty days to file a brief in support of Appellant's PCRA petition. On September 28, 2011, the PCRA court allowed PCRA counsel to withdraw because she had accepted new employment. That same day, the PCRA appointed new counsel to represent Appellant. After successfully seeking three extensions, counsel filed Appellant's brief on February 13, 2012.

On March 14, 2012, counsel petitioned to withdraw, citing a breakdown in the attorney-client relationship. That same day, the PCRA court granted counsel's petition. The PCRA court neither appointed another (third) counsel for Appellant, nor conducted a Grazier[2] hearing. On May 24, 2012, the PCRA court dismissed Appellant's PCRA petition.

Appellant filed a timely pro se appeal to this Court.[3] On March 20, 2013, we vacated the PCRA court's order and remanded "for the PCRA court to conduct an on-the-record colloquy in accordance with Grazier and [Pa.R.Crim.P.] 121(A)." Commonwealth v. Wagman, 69 A.3d 1298 (Pa.Super. 2013), unpublished memorandum at 5.

Following remand, the PCRA court held a Grazier hearing and determined that Appellant voluntarily and knowingly chose to proceed pro se. Appellant raises the following issues:

I. DID THE PCRA COURT ERR IN FINDING THAT THE ABSENCE OF [APPELLANT'S] LETTERS TO THE STATE NARCOTICS OFFICE, FEDERAL D.E.A. AND LAWRENCE COUNTY [DISTRICT] ATTORNEY ASKING FOR ASSISTANCE AND INFORMATION ABOUT A FEDERAL DOCTOR-ADVOCATE PRESCRIPTION MONITORING GRANT AWARD PROGRAM FROM TRIAL CONSTITUTE NEITHER A [Brady] VIOLATION NOR INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL?
II. DID THE PCRA COURT ERR IN FINDING THAT THERE WAS NO CONFLICT OF INTEREST ON THE PART OF THE ATTORNEY GENERAL'S OFFICE MANAGEMENT OF A FEDERAL GRANT AWARD PROGRAM MANDATING ASSISTANCE TO DOCTORS AND PROSECUTION OF APPELLANT, AND WAS ...

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