Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

[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NON-PRECEDENTIAL DECISION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Commonwealth v. Wagman, 964 A.2d 447 (Pa.Super. 2008), unpublished memorandum at 1-2.[1]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 COUNSEL INEFFECTIVE IN FAILING TO INVESTIGATE AND RAISE THIS CLAIM?
III. DID THE PCRA COURT ERR IN FAILING TO STRIKE THE TESTIMONY OF THE COMMONWEALTH'S MEDICAL EXPERT WITNESS AS NEW EVIDENCE DOCUMENTS [THE] EXPERT'S PERJURY IN NOT DISCLOSING [THE] RAPE OF MINOR AGED BOY SCOUTS IN YEARS PRIOR TO APPELLANT'S TRIAL THROUGH DELIVERY OF SUBSTANCE ABUSE (ALCOHOL) NEGATING ANY KNOWLEDGE, TRAINING OR EXPERIENCE REQUIREMENT FOR ADDICTIONOLOGY QUALIFICATION AND DID SUCH PERJURY FORM A CRIMINI [sic] FALSI FRAUD UPON THE COURT AND STATE MEDICAL LICENSING BOARD?
IV. DID THE PCRA COURT ERR IN FINDING APPELLANT NOT ACTUALLY INNOCENT OF THE CHARGES AS 62 P.S. § 1407(a)(6), FRAUD AND ABUSE CONTROL PROVIDER PROHIBITED ACT IS A PREDICATE OFFENSE OF 35 P.S. § 780-113(a)(14) PRESCRIBING OFFENSE AS JURY ACQUITTAL OF FRAUD AND ABUSE STATUTE RENDERS CONVICTION VOID AS BOTH STATUTES CONTAIN THE SAME 49 Pa. Code § 16.92 MEDICAL PRACTICE PRESCRIBING STATUTORY ELEMENT?
V. DID THE PCRA COURT ERR IN NOT ADDRESSING APPELLANT'S CLAIM THAT JURY INSTRUCTIONS WERE PREJUDICIAL ERROR [sic] AND THAT COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE SUCH A CLAIM?
VI. DID THE PCRA COURT ERR IN NOT APPLYING THE OATH OF OFFICE TO Pa.R.P.C. [sic] RULE 3.7 WITNESS-ADVOCATE RULE AS COMMONWEALTH SUBMITTED WRITTEN TESTIMONY CONCERNING CONFLICT OF INTEREST GRANT AWARD PROGRAM [sic] AND SERVED BOTH AS WITNESS AND ADVOCATE AGAINST APPELLANT'S CLAIM?
VII. DID THE PCRA COURT ERR IN NOT REMOVING APPELLANT'S CASE TO FEDERAL COURT IN LIGHT OF AN INCURABLE CONFLICT OF INTEREST AS RAISED IN NUMBER II ABOVE?

Appellant's Brief at ix-x.

This Court may only overturn a PCRA court's dismissal of a PCRA petition based on an error of law or an abuse of discretion. Commonwealth v. Johnson, 841 A.2d 136, 140 (Pa.Super. 2003), appeal denied, 858 A.2d 109 (Pa. 2004). "Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record." Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa.Super. 2008), citing Commonwealth v. McClellan, 887 A.2d 291, 298 (Pa.Super. 2005), appeal denied, 897 A.2d 453 (Pa. 2006).

Although the PCRA court acknowledged that several of Appellant's issues raised trial court error and should have been raised in Appellant's direct appeal, "[Appellant's] Reply to Commonwealth's Response to [Appellant's PCRA] Brief appears to raise those issues in the context of ineffective assistance of counsel claims." PCRA Court Opinion, 5/24/12, at 7. Thus, the PCRA court chose to address the issues in the context of "ineffective assistance of counsel claims and the same were not waived by a previous failure to assert those claims." Id. at 7-8. We shall do the same.

To obtain relief under the PCRA premised on a claim that counsel was ineffective, a petitioner must establish by a preponderance of the evidence that counsel's ineffectiveness so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). "Generally, counsel's performance is presumed to be constitutionally adequate, and counsel will only be deemed ineffective upon a sufficient showing by the petitioner." Id. This requires the petitioner to demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) petitioner was prejudiced by counsel's act or omission. Id. at 533. A finding of "prejudice" requires the petitioner to show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. In assessing a claim of ineffectiveness, when it is clear that appellant has failed to meet the prejudice prong, the court may dispose of the claim on that basis alone, without a determination of whether the first two prongs have been met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995). Counsel cannot be deemed ineffective for failing to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa.Super. 2003) (en banc), appeal denied, 852 A.2d 311 (Pa. 2004).

Appellant first claims that trial counsel was ineffective for failing to "procure and introduce material documents Appellant submits would have put the case in a different light." Appellant's Brief at 3. These documents consisted of the Pennsylvania Prescription Monitoring Program, as well as prescription drug monitoring programs in other states. Appellant further argues that such a program "clearly and unequivocally stipulates assistance be given inquiring physicians, as healthcare providers, with publication of prescribing protocols to be followed in the Commonwealth and assistance in identifying diversionary patients so as to avoid prescribing to such individuals irregardless [sic] of any positive physical findings." Appellant's Brief at 3-4. According to Appellant, while he attempted to make such inquiries, he received no response and, in fact, despite the receipt of federal grants, Pennsylvania's Office of Attorney General ("OAG") did not establish the appropriate procedures and failed to communicate with him.

The PCRA court found no merit to Appellant's claim, and reasoned as follows:

[Appellant] contends that trial counsel should have obtained various documents regarding grants and statutes [sic] awarded to Pennsylvania and other states for prescription drug monitoring programs, discharge documents demonstrating that [Appellant] discharged patients who were convicted [for drug violations] and a document entitled "Components of a Strong Prescription Drug Monitoring Program" published by the National Alliance For Model State Drug Laws Prescription Drug Monitoring Program.
At the PCRA hearing, [Appellant] testified at length regarding the institution and necessity of a uniformed prescription drug monitoring program. In fact, the Court demonstrated great patience in allowing [Appellant] to explain in detail the research that he conducted and the manner in which other states are monitoring prescription pain medications. However, there was no explanation in [Appellant's] disorganized and, at times, incoherent dissertation as to the relevance of this program [to] his case and how that would have affected the outcome of his trial. [Appellant's] charges were based upon prescribing high doses of Schedule II narcotics to patients without conducting the proper testing and examination. It appears as though prescription drug monitoring programs, as explained by [Appellant], are designed to prevent drug addicts and dealers from receiving prescriptions for narcotics from multiple doctors, which has no bearing on [Appellant's] actions in the current matter. The Commonwealth focused on [Appellant's] practice of prescribing large amounts of Schedule II narcotics with very little examination of the patient. As such, the implementation of a strict drug monitoring program would not have prevented [Appellant] from violating 35 P.S. 780-113(a)(14)(iii) as the central issue of the trial was [Appellant] prescribing pain medications without proper examinations. Therefore, the documentation that [Appellant] sought would have been irrelevant and inadmissible at trial, which demonstrates that [Appellant] failed to establish the prejudice prong of the ineffective assistance of counsel analysis.

PCRA Court Opinion, 5/24/12, at 13-14.

Our review of the record supports the PCRA court's conclusion that Appellant failed to meet his burden of establishing trial counsel's ineffectiveness. "Evidence is admissible if it is relevant-that is, if it makes a fact at issue more or less probable, or supports a reasonable inference supporting a material fact." Commonwealth v. Wynn, 850 A.2d 730, 733 (Pa.Super. 2004) (citations omitted). "Typically, all relevant evidence . . . is admissible, subject to the prejudice/probative value weighing which attends all decisions upon admissibility." See Pa.R.E. 401; Pa.R.E. 402[.]" Commonwealth v. Dillon, 925 A.2d 131, 136-37 (Pa. 2007).

As noted by the PCRA court, the focus of the Commonwealth's case against Appellant was his prescribing Schedule II narcotics to patients without first conducting the proper medical examinations: "Appellant was convicted based upon the prescriptions he provided to his patients without proper examinations, which renders the actions of his patients irrelevant to the issues that were decided at trial." PCRA Court Opinion, 5/24/12, at 16. As we noted in Appellant's direct appeal, "three or four patients were scheduled every fifteen minutes, " a yearly computation in 2003 revealed that Appellant spent 6.7 minutes with each patient, and "[e]very one" left with a prescription. Wagman, supra, unpublished memorandum at 3 (citation omitted). Information concerning the state's failure to establish a prescription drug monitoring program has no relevance to Appellant's actions.

Moreover, as we noted in Appellant's direct appeal, the Commonwealth, via the testimony of Dr. David Evanko, introduced into evidence "the 1998-1999 guidelines for the use of controlled substances in the treatment of pain promulgated by the Pennsylvania Board of Medicine." Id., at 16. According to Dr. Evanko, all physicians received this document, which was promulgated to establish "acceptable standards of practice when evaluating the use of controlled substances for pain control." Id. (citation omitted). According to these guidelines, the "physician should first evaluate the patient by obtaining a complete medical history and performing a complete physical examination." Id.[4] Clearly, the evidence revealed that Appellant did not comply with these guidelines; even if Appellant later sought information on "diversionary patients, " the fact remains that he did not properly examine his patients prior to prescribing them Schedule II narcotics. Thus, Appellant's first ineffectiveness claim fails.[5]

In his second issue, Appellant asserts that trial counsel was ineffective for failing to investigate and raise the claim that a conflict of interest existed in having the Pennsylvania Attorney General's Office ("OAG") prosecute him. According to Appellant, "[t]here is conflictive relationship between Appellant and the OAG as the [OAG's] Office of Drug Diversion, as Appellant's prosecutors received Federal Grant Award Funds stipulating assistance be given inquiring practitioners, [such as] Appellant, on published Commonwealth prescribing protocols and in identifying diversionary patients so as not to run afoul of [the] prescribing statute 35 P.S. § 780-113(a)(14)." Appellant's Brief at xiii. Appellant asserts that since he "is a beneficiary of such funds managed by the OAG, an impermissible conflict exists divesting the OAG Of Subject Matter Jurisdiction." Id. Finally, Appellant contends that "[s]uch divesture required initial immediate removal to Federal Court and voids Appellant's conviction as the conflict was never cured." Id.

The PCRA court found that Appellant did not establish that a conflict of interest existed. It explained:

[Appellant] contends that his trial counsel was ineffective for failing to raise the argument that the [OAG] had a conflict of interest in prosecuting [Appellant's] case under 71 P.S. § 732-205(a)(8) and the case should have been removed to Federal District Court. [Appellant] claims a conflict of interest arises because the 2004 Pennsylvania Prescription Monitoring Program Grant states that the purpose of the grant is to "raise awareness of prescription drug diversion amongst medical health professionals and the public and local police so that the monitoring program serves both deterrence and investigative needs." That grant was provided to the [OAG] to create a prescription drug monitoring program, in which medical professionals could report prescription drug diversion practices to the [OAG]. [Appellant] claims this conflict arises from Rules of Professional Conduct, Rule 1.7(a), which states:
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
In the current matter, [Appellant] was not a client of nor represented by the [OAG]. [Appellant] was not required to report information to the [OAG], he chose to do so on his own volition. There is no evidence on record that the [OAG] actively represented conflicting interests. Conversely, the [OAG] merely collected data and information provided to it by medical healthcare professionals to aid in reducing prescription drug diversionary practices conducted by patients. Moreover, the language in the grant specifically states that the information provided by medical healthcare professionals was intended to be used for deterrence and investigative needs, indicating that the information provided by [Appellant] could be used in a criminal investigation. Again, this prescription monitoring program attempts to monitor actions taken by patients and prevent any attempts by patients to obtain multiple prescriptions used to abuse Schedule II prescription narcotics. In the case sub judice, the Commonwealth focused purely on [Appellant's] willingness to prescribe large amounts of Schedule II narcotics to patients without conducting proper examinations. Hence, [Appellant] has failed to establish that his trial counsel was ineffective for failing to raise this issue as it is without merit. Additionally, [Appellant] has failed to provide the Court with any reason that this case should have been removed to federal court.

PCRA Court Opinion, 5/24/12, at 16-18.

Our review of the record supports the PCRA court's conclusions. Put simply, there is no evidence in the record to support Appellant's claim that the OAG ever actively represented conflicting interests during Appellant's prosecution and trial. In rejecting Appellant's first issue, we have already concurred with the PCRA court's determination that evidence regarding Pennsylvania's prescription drug monitoring program was irrelevant to Appellant's charges. Therefore, because Appellant's underlying claim is meritless, trial counsel cannot be deemed ineffective for failing to pursue it.

Loner, supra.

In his third issue, Appellant contends that trial counsel was ineffective for not raising an argument with regard to the credibility of Dr. Evanko. He bases this claim on the fact that, years after Appellant's trial, Dr. Evanko was convicted of multiple sexual offenses involving male minors. According to Appellant, Dr. Evanko "never disclosed to either the State Medical Licensing Board nor the [trial court] his now convicted felonious sexual activities of raping numerous minor aged boy scouts through the delivery of alcohol as substance abuse in years prior to [Appellant's] trial." Appellant's Brief at xiv. Appellant then opines that Dr. Evanko's "failure to disclose such facts form [crimen falsi] fraud upon both the Court and State Medical Licensing Board concerning this [expert's] credentials in addictionology and good standing medical licensing certificate materially prejudicing Appellant's ability to impeach his qualifications and expert opinion at trial." Id.

The PCRA court found no merit to Appellant's claim:

In the case sub judice, [Appellant] contends his trial counsel was ineffective for failing to raise the argument that Dr. Evanko was not a responsible member of the medical community as he was subsequently charged with indecent assault on a person less than 16 years of age, unlawful contact with a minor, corruption of minors, endangering the welfare of children, institutional sexual assault and indecent sexual assault without consent. [Appellant's] trial commenced on April 18, 2006, and Dr. Evanko testified on May 1 through May 3, 2006; however, Dr. Evanko was not charged with the aforementioned crimes until March 31, 2009, and September 23, 2009, which was after [Appellant's] trial concluded. [Trial counsel] was not ineffective for his failure to discover that Dr. Evanko would be charged with crimes three years before charges were officially filed or for failing to impeach [Dr. Evanko] with criminal charges which were filed several years after the conclusion of [Appellant's] trial. Moreover, the crimes that Dr. Evanko [was] charged with are not classified as crimen falsi as they are crimes of violence and lack an element of falsehood or dishonesty. Thus, [Appellant's] trial counsel was not ineffective for failing to impeach Dr. Evanko regarding his criminal charges as the same were filed after the trial concluded and they lacked an element of falsehood or dishonesty required to be used for impeachment purposes.

PCRA Court Opinion, 5/24/12, at 18-19 (footnote omitted).

Once again, our review of the record supports the PCRA court's conclusion. See generally, Pa.R.E. 609. As noted by the PCRA court, at the time of Appellant's trial, there were no allegations made against Dr. Evanko. Appellant's claim, therefore, that Dr. Evanko perpetrated a fraud on the trial court and the Medical Licensing Board is specious. Thus, Appellant's claim of ineffectiveness fails.

In his fourth issue, Appellant claims that trial counsel was ineffective for failing to challenge the inconsistent verdict rendered in his case. He contends "he is actually innocent on the basis of inconsistent verdicts" because his acquittal on the fraud charges, which he opines is a predicate offense to the drug charges, renders his conviction on the latter charges unsustainable. Appellant's Brief at xiv.

The PCRA court found no merit to Appellant's claim:

In the current case, [Appellant] argues that his convictions for violations of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §780-113(a)(14)(iii), and acquittals on the charges arising from the violations of Fraud and Abuse Control Provider Prohibited Acts, 62 P.S. § 1407(a)(6), are inconsistent. 35 P.S. § 780-113(a)(14)(iii) prohibits, "The administration, dispensing, delivery, gift or prescription of any controlled substance by any practitioner or professional assistant under the practitioner's direct supervision unless done . . . (iii) in accordance with treatment principles accepted by a responsible segment of the medical profession." 62 P.S. § 1407(a)(6) states, "it shall be unlawful for any person to: . . . (6) Submit a claim or refer a recipient to another provider by referral, order or prescription, for services, supplies or equipment which are not documented in the record in the prescribed manner and are of little or no benefit to the recipient, are below the accepted medical treatment standards, or are unneeded by the recipient." Clearly, those charges do not contain the same elements and need not be proven by the same set of facts. In order to sustain a conviction under 35 P.S. § 780-113(a)(14)(iii), the Commonwealth must demonstrate that [Appellant] dispensed or prescribed a controlled substance in a manner that was not in accordance with the treatment principles accepted [by a] responsible segment of the medical community. However, to establish a violation of 62 P.S. § 1407(a)(6), the Commonwealth was required to establish that [Appellant] wrote a prescription which was not documented in the record and in the prescribed manner and was of little or no benefit to the recipient, below the accepted medical treatment standards, or unneeded by the recipient. Moreover, pursuant to 62 P.S. § 1407(a)(6), the Commonwealth was required to establish that [Appellant] submitted a claim or made a referral to another provider that was unneeded by the patients. As such, it is within the prerogative of the jury to exercise leniency regarding certain charges as long as those charged do not contain the same essential elements. It is apparent that the jury believed that [Appellant] prescribed a controlled substance to his patients in a manner that was not in accordance with the treatment principles accepted by a responsible segment of the medical profession. However, it is entirely possible that the jury determined that [Appellant] did not violate 62 P.S. § 1407(a)(6) because he documented prescriptions in the proper manner, which is an element not included in 35 P.S. § 780-113(a)(14)(iii). Additionally, the Commonwealth failed to present any evidence that [Appellant] submitted claims or made referrals that had little or no benefit to the recipient. Hence, the Court finds that there was no inconsistency in the verdicts rendered by the jury in [Appellant's] case as the Commonwealth presented sufficient evidence to establish [Appellant] violated 35 P.S. § 780-113(a)(14)(iii).

PCRA Court Opinion, 5/24/12, at 21-22.

Our review of the record, as well as the statutes at issue and the pertinent case law, supports the trial court's conclusion. Appellant provides no persuasive and/or controlling authority to support his argument that fraud and abuse charges are a "predicate offense" of the drug charges. To the extent Appellant claims that trial counsel was ineffective for not requesting a jury instruction regarding a "predicate offense, " Appellant's claim is equally meritless. Thus, Appellant's trial counsel cannot be deemed ineffective for failing to pursue these meritless claims. Loner, supra.

In his fifth issue, Appellant claims that trial counsel was ineffective for failing to object to prejudicial error in the jury instructions. Initially, we note that trial counsel did challenge the trial court's jury instructions insofar as the trial court refused to give Appellant's suggested jury instruction "that he had prescribed controlled substances in good faith in the course of medical treatment." Wagman, supra, unpublished memorandum at 45 (footnote omitted). We rejected Appellant's argument because "[t]he Commonwealth did not attempt to prove that Appellant's prescriptions were not administered in 'good faith, ' and Appellant's 'good faith' was not an issue at trial." Id. at 46.

Instead, this Court noted that the issue for jury instruction was whether "Appellant's prescription of controlled substances was not in accordance with treatment principles accepted by any reasonable segment of the [medical] profession." Wagman, supra, unpublished memorandum at 46. In his appellate brief, Appellant now takes issue with the instruction regarding "any reasonable segment, " as used in each statute with which Appellant was charged. While acknowledging the wording of the statutes, Appellant claims trial counsel should have objected because the trial court "failed to define for the jury the (HRPMP) program as a 'medical segment' and failed to define 'pharmacist' as a 'responsible medical segment.'" Appellant's Brief at 65. We disagree.

Our standard for reviewing such a challenge is well-settled:

In reviewing a challenged jury instruction, we must review the charge as a whole and not simply isolated portions, to ascertain whether it fairly conveys the required legal principles at issue. We are reminded, as well, that a trial court possesses broad discretion in phrasing its instructions to the jury and is not limited to using particular language provided that the law is clearly, adequately and accurately presented to the jury.

Commonwealth v. Bracey, 831 A.2d 678, 684 (Pa.Super. 2003) (citations omitted). "A jury instruction will be upheld if it clearly, adequately, and accurately reflects the law." Commonwealth v. Smith, 956 A.2d 1029, 1034-35 (Pa.Super. 2008) (en banc) (citation omitted). Upon review, we conclude that the trial court's instructions to the jury clearly, adequately, and accurately informed the jury of the law governing their factual determination. Thus, Appellant's claim of ineffectiveness based upon the trial court's jury instructions fails.

Appellant's sixth issue is nonsensical. Appellant contends that the Commonwealth violated Pennsylvania Rule of Professional Conduct 3.7, "the 'Witness-Advocate Rule, ' in its response to [Appellant's] PCRA brief submitted to the [PCRA court] for final determination." Appellant's Brief at 68. In short, Appellant claims that in responding to his argument regarding the alleged conflict of interest, the Commonwealth acted as both advocate and witness because it "put forth evidentiary 'witness' written statements" that Pennsylvania's prescription drug monitoring program owes no duty to healthcare practitioners in Pennsylvania." Id. Appellant fails to explain adequately how proper advocacy by the Commonwealth violates Rule 3.7 of the Pennsylvania Rules of Professional Conduct. We therefore will not consider this undeveloped claim further. See generally Commonwealth v. Tielsch, 934 A.2d 81, 93 (Pa.Super. 2007) (holding that undeveloped claims will not be considered on appeal).

In his seventh and final claim, Appellant asserts that the PCRA court erred in not removing his case to federal court "in light of an incurable conflict as raised" in his second issue. We have already determined that the trial court correctly rejected Appellant's claim of a conflict of interest, and that the OAG possessed jurisdiction to prosecute him. Thus, we need not discuss Appellant's final claim separately.

In sum, Appellant's claims of ineffectiveness are without merit. We therefore affirm the PCRA court's order denying post-conviction relief.

Order affirmed.

Judgment Entered.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.