Commonwealth v. Gordon
Commonwealth v. Gordon
Dissenting Opinion
dissenting.
I must dissent to yet another instance where, in the majority’s anxiety to sustain a conviction, the proper application of the law is ignored. In the instant case the majority chooses to apply a strained interpretation of the
Opinion of the Court
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).
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
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).
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,
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 definition of practitioner is provided by 35 Pa.S. § 780-102(b):
Practitioner means: (i) a physician, osteopath, dentist, veterinarian, pharmacist, podiatrist, nurse, scientific investigator, or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance, other drug or device IN THE COURSE OF PROFESSIONAL PRACTICE or research in the Commonwealth of Pennsylvania; (ii) a pharmacy, hospital, clinic or other institution licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance, other drug or device in the course of professional practice or research in the Commonwealth of Pennsylvania. (Emphasis added.)
While conceding that “practitioner” includes a licensed pharmacist distributing drugs in the course of his professional practice, the Commonwealth contends that the delivery made in the instant case was not a delivery made in the course of the Appellee’s professional practice, because he was not acting, nor did he purport to be acting, under the
We find the Commonwealth’s reasoning persuasive. There is no factual dispute in this case — the question is purely one of statutory construction. Appellee claims exemption from prosecution under §§ 780-113(a)(16) and (30) by virtue of his status as a “practitioner,” yet, at no time has he claimed that he was acting in the course of his professional practice. Nor would this record support such a claim. The learned trial judge, in his analysis of § 780-102(b), correctly noted that “to fall within the definition of practitioner, either individually as a pharmacist, or as a representative of a business entity such as a pharmacy, the party claiming the exemption must act within ‘the course of professional practice’.” 35 Pa.S. §§ 780-113(a)(16) and (30) provide exemption for “persons registered under the Act” or “practitioners licensed by the appropriate State board.” 35 Pa.S. § 780-106(a), entitled “Registration,” provides:
No person shall operate within this Commonwealth as a manufacturer, distributor or retailer of controlled substances, other drugs and devices nor sell, offer for sale nor solicit the purchase of controlled substances, other drugs and devices nor hold them for sale or resale until such person has registered under this act with the secretary. ...
(3) ... Nothing contained herein shall be construed to require the registration hereunder of any practitioner registered or licensed by the appropriate State board----
The definitional section of the Act defines registrant as “any one person registered under the laws of this Commonwealth to manufacture, dispense, distribute, administer or sell drugs.” 35 Pa.S. § 780-102. Thus, one who is otherwise registered or licensed by the Commonwealth or any of
Appellee has presented no evidence of a separate registration entitling him to the exemption afforded “persons registered under the Act.” Under the facts of this case, we cannot accept his assertion that his status as a licensed pharmacist qualifies him for the “practitioner” exemption without regard to the nature of the transaction involved. Our analysis of the entire Act compels the conclusion that the Legislature did not intend that an individual could, by obtaining a license as a pharmacist, then engage in conduct far from the trappings of the pharmacy and its business, which amounts to no more than an illicit, clandestine, street transaction, and then use the license as a shield to avoid prosecution for such conduct. In ascertaining legislative intent for purposes of construing a statute, the practical results of a particular interpretation may be considered. See, Lehigh Valley Co-Op Farmers v. Com., Bureau of Employment Sec. Dept. of Labor and Industry, 498 Pa. 521, 447 A.2d 948 (1982); 1 Pa.C.S. § 1921(c)(6). Appellee asserts our decision in Commonwealth v. Hill, 481 Pa. 37, 391 A.2d 1303 (1978), for the proposition that a basic tenet of statutory construction is that penal statutes must be strictly construed. However, strict construction does not require that the words of a criminal statute be given their narrowest meaning or that the Legislature’s evident intent be disregarded. Commonwealth v. Duncan, 456 Pa. 495, 321 A.2d 917 (1974). This is not a case where we are construing ambiguities, rather, we are merely interpreting the plain language of the Act in light of the definitions provided. Status as a licensee is only the beginning of the analysis of whether a person is a practitioner; it is not the end. It still remains to be determined whether the licensed party is acting in the course of his professional practice.
Appellee asserts that the Legislature has established a parallel system for regulating the possession and sale of controlled substances, and maintains that the system ap
We also reject the Superior Court’s determination that unauthorized transactions, such as in this case, should be prosecuted under 35 Pa.S. § 780-113(a)(14). That section is designed to prohibit the abuse of the practitioner’s privilege to distribute drugs under the cloak of his privilege. Appellee did not employ the cloak of his privilege in this transaction; his actions were the blatant transgressions of a common street pusher and the Commonwealth is entitled to prosecute him as such.
Accordingly, we reverse the Order of Superior Court which reversed Appellee’s conviction. This case is remanded to Superior Court to consider the issues not disposed of in their prior review.
. We hear this appeal pursuant to Section 2 of the Act of July 9, 1976, P.L. 586, No. 142, 42 Pa.C.S. § 724(a), as amended October 5, 1980, which provides:
§ 724. Allowance of appeals from Superior and Commonwealth Courts.
(a) General rule. — Except as provided by section 9781(f) (relating to limitation on additional appellate review), final orders of the Superior Court and final orders of the Commonwealth Court not appealable under section 723 (relating to appeals from Commonwealth Court) may be reviewed by the Supreme Court upon allowance of appeal by any two justices of the Supreme Court upon petition of any party to the matter. If the petition shall be granted, the Supreme Court shall have jurisdiction to review the order in the manner provided by section 5105(d)(1) (relating to scope of appeal).
. Act of Aprü 14, 1972, P.L. 233, No. 64 (as amended), 35 Pa.S. § 780-113(a) which provides:
35 P.S. § 780-113(a): The following acts and the causing thereof within the Commonwealth are hereby prohibited:
(16) knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act. (Emphasis added.)
(30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance. (Emphasis added.)
. 35 P.S. § 780-113(a): The following acts and the causing thereof within the Commonwealth are hereby prohibited:
(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 treatment principles accepted by a responsible segment of the medical profession. (Emphasis added.)
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellant, v. Barry Charles GORDON, Appellee
- Cited By
- 33 cases
- Status
- Published