HomeMy WebLinkAboutCP-21-CR-1217-2007COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CHARGES: (1) OBTAINING DRUGS BY
V. FRAUD
(2) UNLAWFUL PROCUREMENT
OF PRESCRIPTION DRUGS
TARA M. HARVEY
OTN: K321586-6 : CP -21-1217-2007
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., September 15, 2008.
In this criminal case, Defendant was found guilty by a jury of obtaining
drugs by fraud under the Controlled Substance, Drug, Device and Cosmetic Act,'
an ungraded felony,2 and procuring or attempting to procure drugs by forgery or
alteration under the Pharmacy Act,3 an ungraded misdemeanor .4 The charges arose
out of her alteration of a prescription for Vicodin so as to obtain 140 pills rather
than the 40 prescribed.
Defendant was sentenced with respect to the felony charge to undergo a
period of imprisonment in the Cumberland County Prison of not less than 14 days
nor more than 23 months.5 She was sentenced on the misdemeanor charge to
undergo a consecutive period of probation of 12 months .6
From the judgment of sentence, Defendant has filed a direct appeal to the
Pennsylvania Superior Court.' The sole basis for the appeal has been expressed in
Defendant's statement of matters complained of on appeal as follows:
'Act of April 14, 1972, P.L. 233, §13(a)(12), as amended, 35 P.S. §780-113(a)(12) (2008 Supp.).
2 Act of April 14, 1972, P.L. 233, §13(f)(2), as amended, 35 P.S. §780-113(f)(2) (2008 Supp.).
'Act of September 27, 1961, P.L. 1700, §8(13)(11), as amended, 63 P.S. §390-8(13)(11).
4 Act of September 27, 1961, P.L. 1700, §8(15), as amended, 63 P.S. §390-8(15).
s Order of Court, July 8, 2008.
6 Order of Court, July 8, 2008.
Defendant's Notice of Appeal, filed August 22, 2008.
The evidence, presented by the Commonwealth, at trial was not
sufficient to sustain convictions on the above -captioned offenses. The
evidence did not establish beyond a reasonable doubt that Ms. Harvey
intended to obtain drugs by fraud or unlawfully procure drugs.'
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
As the result of an incident occurring in December of 2006, Defendant was
charged with (a) obtaining drugs by fraud and (b) procuring or attempting to
procure drugs by forgery or alteration.9 A jury trial was held in the case on April 9
and April 10, 2008.
At trial, the Commonwealth called the affiant, the physician from whom
Defendant obtained a prescription which she was accused of altering, and the
pharmacist who filled the prescription as witnesses. Defendant called herself as a
witness.
The evidence adduced at trial, viewed in the light most favorable to the
Commonwealth,10 may be summarized as follows: On December 21, 2006,
Defendant attempted to obtain a prescription from her physician for 120 pills (a
three-month supply) of Vicodin,11 which was a Schedule III Controlled Substance
under Pennsylvania's Controlled Substance, Drug, Device and Cosmetic Act 12
and
a drug requiring a prescription for purposes of Pennsylvania's Pharmacy Act, 13
among other medications. 14 One reason for requesting the extended supply was
s Defendant's Amended Concise Statement of the Errors Complained of on Appeal, filed
September 10, 2008.
9 Criminal Complaint, filed January 17, 2007; Information, filed July 2, 2007; Order of Court,
March 4, 2008 (permitting amendment of Information).
10 See Commonwealth v. Lippert, 2005 PA Super 399, ¶7, 887 A.2d 1277, 1279.
" N.T. 13, 18, 29, 51, Trial, April 9-10, 2008 (hereinafter N.T. �.
12 N.T. 13.
13 N.T. 13.
14 N.T. 13.
2
that her insurance coverage was about to lapse. 15 However, with respect to the
Vicodin the prescription she received was for only 40 pills. 16
Subsequently, Defendant, using her own pen, traced over each letter and
number on the prescription and, in addition, added a "1" before the number "40,"
so as to alter the script to prescribe 140 Vicodin pills. 17 On Wednesday,
December 27, 2006, at 11:00 p.m., when it was too late for a pharmacist to contact
the physician's office,18 Defendant, who lived in Perry County,19 appeared at an
all-night20 Rite Aid pharmacy in Lemoyne, Cumberland County,21 Pennsylvania,
and presented the prescription to the on -duty pharmacist.22
The pharmacist, noticing that the writing on the prescription had been
"overwritten," initially refused to fill the prescription. 23 He did not notice that the
CCF in "140" had been added rather than overwritten .24 To allay his concern about
the validity of the prescription, Defendant stated falsely that the overwriting had
been done by the physician's office .25 She also claimed to be out of the
medication .26 Ultimately, concerned about Defendant's welfare in terms of
withdrawal if she did not receive the drug,27 the pharmacist gave "her the benefit
" N.T. 48.
16 N.T.
36.
17 N.T.
12, 24, 28, 36, 51.
" N.T.
11, 12.
19 N.T.
42.
20 N.T.
10-11.
21 N.T.
10-11.
22 N.T.
12.
23 N.T.
12.
24 N.T.
15.
2s N.T.
12.
26 N.T.
14.
27 N.T.
12.
3
of the doubt"28 and furnished the 140 Vicodin pills, as well as some of the other
medicines included on the script. 29
Testifying on her own behalf at the trial, Defendant admitted that she had
written over the prescription with her own pen 30 and that she had lied to the
pharmacist when she told him that the physician's office had done it.31 She
explained her appearance at the pharmacy at such a late hour as being the result of
experiencing anxiety in the presence of other people.32
She claimed that she had written over the prescription because a question
had arisen during a prior attempt to have the prescription filled as to whether an
unrelated amendment to the script had been made with a pen different from that
originally used and she wished to eliminate that issue on her next attempt to have
it filled.33 She attributed her addition of a "1" to the number of "40" on the script
to a misinterpretation of a "smudge" on the paper as a "1.„34 However, she
conceded that she could not now see evidence on the script of such a smudge.35
She claimed that she did not notice that the "140” figure did not match the figure
of 120 Vicodin pills which she had requested from the physician.36
At the conclusion of the trial, the jury found Defendant guilty of both
charges.37 Her appeal from the judgment of sentence was filed on August 22,
2008.38
2s N.T. 14.
29 N.T. 18-19.
so N.T. 48.
31 N.T. 48, 50.
12 N.T. 43.
" N.T. 47.
34 N.T. 51.
"N.T. 51.
36 N.T. 51.
37 N.T. 74-75.
" Defendant's Notice of Appeal, filed August 22, 2008.
11
DISCUSSION
Statement of law. On a challenge to the sufficiency of the evidence in a
criminal case, the proper test is "whether, viewing the evidence admitted at trial in
the light most favorable to the Commonwealth and drawing all reasonable
inferences in the Commonwealth's favor, there is sufficient evidence to enable the
trier of fact to find every element of the [crime] charged beyond a reasonable
doubt." Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d 1353, 1354
(1996), quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d
1286, 1288 (1984). A challenge to the sufficiency of the evidence does not
implicate the weight of the evidence. Commonwealth v. Butler, 2004 PA Super
294, ¶9, 856 A.2d 131, 135.
Furthermore, the trier -of -fact in a criminal case is "free to believe all, part
or none of the evidence." Commonwealth v. Petaccio, 2000 PA Super 284, ¶5, 764
A.2d 582, 585, quoting Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d
1256, 1257 (1986).
Under Section 13(a)(12) of Pennsylvania's Controlled Substance, Drug,
Device and Cosmetic Act, the following conduct is proscribed: "[t]he acquisition
or obtaining of possession of a controlled substance by misrepresentation, fraud,
forgery, deception or subterfuge." Act of April 14, 1972, P. L. 233, §13(a)(12), as
amended, 35 P.S. §780-113(a)(12) (2008 Supp.). Under Section 8(13)(11) of
Pennsylvania's Pharmacy Act, it is unlawful for "[a]ny person by himself or
through another to procure or attempt to procure for himself or another any
drug ... by the forgery or alteration of a prescription or any written order." Act of
September 27, 1961, P.L. 1700, §8, as amended, 63 P.S. 390-8(13)(11).
In the present case, a number of factors tended to support the jury's
conclusion that Defendant had, beyond a reasonable doubt, deliberately altered the
prescription she had received to inflate the number of Vicodin pills authorized by
her physician and thereby facilitated their procurement, violating in the process
each of the above statutes. These factors included (a) the fact that, by her own
E
admission, she committed the basic act of adding a "1" before "40" on the script,
inflating the number of prescribed Vicodin pills by 100, (b) the fact that it had
been Defendant's desire in the first place to obtain a greater number of Vicodin
pills than 40, as indicated by her initial request for a three-month supply, (c) the
fact that a financial motive existed for Defendant to inflate the number prescribed
in that her insurance would not cover a subsequent prescription, (d) the fact that
the device of overwriting which she employed rendered the addition of "1" to the
script relatively undetectable to the eye, (e) the fact that no "smudge" to which the
addition might be attributed was evident on the script after the fact, (f) the fact that
she lied to the pharmacist as to the source of the overwriting, and (g) the fact that
she chose a time to submit the prescription when its authenticity could not be
checked by contact with the prescribing physician. The jury, as noted above, was
not required to find believable Defendant's exculpatory explanation for her
conduct.
For the foregoing reasons, it is believed that the evidence was sufficient to
support the jury's conclusion that Defendant committed the offenses of which she
was accused beyond a reasonable doubt.
BY THE COURT,
J. Wesley Oler, Jr., J.
Michele H. Sibert, Esq.
Cumberland County District Attorney's Office
For the Commonwealth
Arla M. Waller, Esq.
Cumberland County Public Defender's Office
For the Defendant
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