J-S50034-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RICHARD R. RUTH

Appellant No. 2628 EDA 2014

Appeal from the Judgment of Sentence June 5, 2014

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0008015-2011

BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 23, 2015

Appellant Richard R. Ruth appeals from the judgment of sentence 

entered in the Montgomery County Court of Common Pleas on June 5, 2014 

following his jury trial convictions for nine counts of prescribing a controlled 

substance to a drug dependent person,1ten counts of unlawful prescription 

of a controlled substance by a practitioner,2and one count each of insurance 

____________________________________________

1 35 Pa.C.S. § 780-113(a)(13).

2 35 Pa.C.S. § 780-113(a)(14).
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fraud,3identity theft,4conspiracy to commit insurance fraud and identity 

theft,5corrupt organizations,6and dealing in unlawful proceeds.7 We affirm.

The trial court set forth the following factual and procedural history:

Over a nearly two-year period beginning in early 2010, 

[Appellant], a then practicing physician, unlawfully 

prescribed tens of thousands of pills from his office in 

Souderton, Montgomery County, acting as a source of 

Oxycodone and Adderall for drug-addicted patients. 

[Appellant] committed identity theft during this period, as 

well, by agreeing to write prescriptions in the name of a 

patient’s wife for insurance purposes and engaged in 

insurance fraud by billing insurance companies for medical 

care he did not provide. He also dealt in the proceeds of 

unlawful activity and participated in a corrupt organization 

with his son/co-defendant, Michael Ruth, who served as his 

father’s office manager.

A jury found [Appellant] guilty on November 22, 2013, of 

nine counts of prescribing a controlled substance to a drug 

dependent person, 10 counts of unlawful prescription of a 

controlled substance by a practitioner, insurance fraud, 

identity theft, conspiracy to commit insurance fraud and 

identity theft, corrupt organizations and dealing in unlawful 

proceeds. Prior to sentencing, one of [Appellant’s] 

attorneys, Gregory Noonan,9 was charged in Montgomery 

County with possession of a controlled substance with 

intent to deliver and related offenses. 

____________________________________________

3 18 Pa.C.S. § 4117(a)(2).

4 18 Pa.C.S. § 4120(a).

5 18 Pa.C.S. § 903.

6 18 Pa.C.S. § 911(b)(2).

7 18 Pa.C.S. § 5111(a)(1).
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9 [Appellant] also was represented by John L. 

Walfish, Esq.

[Appellant] appeared at sentencing with new counsel.[8] 

[The trial court] sentenced [Appellant] to consecutive 

terms of five to [ten] years in prison on three of the 

convictions for unlawful prescription of a controlled 

substance by a practitioner. The total sentence imposed 

aggregated to 15 to 30 years in prison.[9] No further 

penalty was entered on the remaining 22 convictions. 

[Appellant] filed a post-sentence motion. He asserted his 

sentence was excessive under the circumstances, the 

prosecutor violated a duty to disclose that Noonan had 

been under investigation at or around the time of trial and 

he was denied the effective assistance of counsel because 

Noonan had an alleged conflict of interest. [The trial court] 

denied the motion without a hearing[.] 

Pa.R.A.P. 1925(a) Opinion, 11/13/14 (“Opinion”), at 1-3 (most internal 

footnotes omitted). Appellant filed a timely notice of appeal. Both he and 

the trial court complied with Pennsylvania Rule of Appellate Procedure 1925.

Appellant raises the following issues on appeal:

Did the [t]rial [c]ourt err in denying [Appellant’s] [p]ost[-

s]entence [m]otion for an [e]videntiary [h]earing (in 

support of the [p]ost[-s]entence [m]otion for a [n]ew 

____________________________________________

8 On June 5, 2014, the day of sentencing, new counsel filed a motion for 

extraordinary relief, seeking a new trial because Noonan was being 

investigated for drug-related offenses at the time of Appellant’s trial. 

Defendant’s Motion for Extraordinary Relief, filed June 5, 2014. On June 6, 

2014, the trial court denied this motion. Order, 6/6/2014.

At sentencing and on appeal, Appellant and his son are both represented by 

Francis J. Genovese, Esq. of Mullaney & Mullaney.

9 Appellant filed a motion to preclude the imposition of mandatory minimum 

sentence, which the trial court granted. N.T., 6/5/2015, at 5-6. The trial 

court, therefore, did not impose a mandatory minimum sentence. Id.
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[t]rial), where his request for [p]ost[-s]entence [r]elief 

had at least arguable merit, on its face, thus necessitating

that a hearing be held to more fully develop the record 

with respect to the violation of [Appellant’s] Due Process 

rights as guaranteed by the Fourteenth Amendment to the 

United States Constitution?

Did the Trial Court err in denying [Appellant’s] [p]ost[-

s]entence [m]otion for a [n]ew [t]rial, where the 

Commonwealth violated [Appellant’s] Due Process rights 

as guaranteed by the Fourteenth Amendment to the United 

States Constitution, when it failed to disclose to the Court 

that the District Attorney’s Office was actively investigating 

[t]rial [c]ounsel for his involvement in the illegal 

distribution of narcotics while he was representing 

[Appellant] at the trial in the above-captioned matter?

Did the [t]rial [c]ourt abuse its discretion in sentencing 

[Appellant] to three consecutive terms of five (5) to ten 

(10) years of incarceration in a [s]tate [c]orrectional 

[i]nstitution, each of which constituted a sentence in the 

aggravated range of the Sentencing Guidelines, where the 

charges to which he was found guilty were not separate 

and distinct incidents of criminality, but rather one episodic 

and continuing course of criminal conduct?

Appellant’s Brief at 4.

Appellant’s first two issues are based on the same underlying claim, 

that the Commonwealth violated Appellant’s due process rights under the 

Fourteenth Amendment to the United States Constitution when it failed to 

inform the trial court and Appellant that the District Attorney’s Office was 

investigating Noonan, [Appellant’s] attorney, for distribution of narcotics. 

Appellant’s Brief at 16-17, 21-22, 24-25, 29-31. Appellant claims the trial 

court erred when it denied his post-sentence motion raising the due process 

claim and erred in failing to hold an evidentiary hearing on the claim. Id. at 

24-25, 31.
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We review a trial court’s denial of a post-sentence motion requesting a 

new trial for abuse of discretion. Commonwealth v. Brooker, 103 A.3d 

325, 332 (Pa.Super.2014). Similarly, the trial court has discretion as to 

whether to conduct a hearing on a post-sentence motion. See Pa.R.Cr.P. 

720(b)(2)(B) (“The judge shall also determine whether a hearing or 

argument on the motion is required, and if so, shall schedule a date or dates 

certain for one or both.”). An abuse of discretion “is not merely an error of 

judgment, but if in reaching a conclusion the law is overridden or 

misapplied, or the judgment exercised is manifestly unreasonable, or the 

result of partiality, prejudice, bias or ill-will . . . discretion is abused.” 

Brooker, 103 A.3d at 332 (quoting Commonwealth v. Fortenbaugh, 69 

A.3d 191, 193 (Pa.2013)).

“To constitute a due process violation, the prosecutorial misconduct 

must be of sufficient significance to result in the denial of the defendant’s 

right to a fair trial.” Commonwealth v. Busanet, 54 A.3d 35, 64 

(Pa.2012) (quoting Commonwealth v. Hanible, 30 A.3d 426, 465 

(Pa.Super.2011)).

Appellant claims the Commonwealth had a duty to disclose to the trial 

court and/or Appellant that Noonan, Appellant’s trial counsel, was under 

investigation for involvement in illegal drug trafficking. Appellant’s Brief at 

29-30. He notes that the crimes for which Noonan was charged occurred on 

November 23, 2013, the day after a jury convicted Appellant of the aforementioned charges, and on December 20, 2013, and claims the investigation 
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began before or during Appellant’s trial. Id. at 7. He maintains that, 

because Noonan was under investigation during Appellant’s trial for illegal 

activities similar to the crimes for which Appellant was charged, Noonan had 

a conflict of interest, and the Commonwealth had a duty to disclose this 

conflict. Id. at 16-17, 21-22, 24-25, 30-31. He maintains the 

Commonwealth’s failure to disclose the conflict prevented Appellant from 

receiving a fair trial. Id. We disagree.

The trial court found: Appellant did not cite any case law imposing a 

duty on a prosecutor to inform the court that a defendant’s attorney was 

under investigation for narcotics distribution; the Pennsylvania Rules of 

Professional Conduct and the American Bar Association’s Standards on 

Prosecutorial Investigations were not controlling when determining whether 

a constitutional violation occurred; and a prosecutor was not constitutionally 

required to disclose an attorney’s potential conflict of interest. Opinion, at 

4-5.10 

____________________________________________

10

 Appellant maintains the Commonwealth violated his due process right to 

a fair trial because it did not inform him or the trial court of a criminal 

investigation of his attorney’s conduct, which, he alleged, the 

Commonwealth was required to do because the investigation created a 

conflict of interest. Because we find that, under the circumstances present 

here, the prosecutor had no duty to disclose the criminal investigation, we 

need not determine whether a conflict of interest existed. We note, 

however, that, unlike United States v. Fulton, 5 F.3d 605 (2nd Cir. 1993), 

relied upon by Appellant, no trial witness implicated Noonan in illegal 

activity. Further, there is no suggestion that Noonan and Appellant were 

engaged in criminal activity together, or that they were a part of the same 

conspiracy. See Commonwealth v. Duffy, 394 A.2d 965, 968 (Pa.1978) 

(Footnote Continued Next Page)
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The trial court acted within its discretion in denying the motion for a 

new trial. The Commonwealth did not violate Appellant’s Fourteenth 

Amendment due process right to a fair trial when it failed to disclose to the 

trial court or Appellant that Appellant’s attorney was under criminal 

investigation, particularly because no trial witness possessed information 

relevant to the investigation of Appellant’s attorney, the investigation did not 

implicate Appellant, and the Commonwealth had not yet established whether 

Appellant’s counsel had engaged in any illegal activity. See, e.g., United 

States v. Morelli, 169 F.3d 798, 812 (3d Cir.1999) (prosecutor’s failure to 

inform court of conflict does not require reversal); United States v. Cerro, 

872 F.2d 780, 787 (7th Cir.1989) (prosecutor not constitutionally required to 

advise court of potential conflict of interest).

Further, the trial court acted within its discretion in denying Appellant’s 

request for an evidentiary hearing. The trial court concluded:

Here, disposition of the post-sentence motion did not 

necessitate a hearing. As discussed more fully below, 

[Appellant] presented no controlling authority for his claim 

that the prosecution had an obligation to disclose an 

investigation into Noonan.10 Similarly, the motion did not 

present a meritorious basis for [the trial court] to upset 

the sentence imposed. [The trial court], therefore, did not 

abuse its discretion in disposing of the post-sentence 

motion without a hearing.11

(Footnote Continued) _______________________

(conflict existed where witness claimed trial counsel and prosecutor knew 

Commonwealth witness claimed counsel was to be paid for his legal services 

with stolen guns, which were “fruits of the crime” ).
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10

 Because [Appellant] failed to present any 

controlling authority for his contention that the 

prosecution owed a duty to disclose the 

investigation, [the trial court] did not consider the 

affidavit and other exhibits attached to the 

Commonwealth’s answer to the post-sentence 

motion.

11 [Appellant] also included in his post-sentence 

motion a claim that Noonan was ineffective due to an 

alleged conflict of interest. The reasons this court 

disposed of that claim without a hearing included the 

premise that a challenge to counsel’s ineffectiveness 

generally must await collateral review. See, e.g., 

Commonwealth v. Britt, 83 A.3d 198, 203-204 

(Pa.Super.2013) (stating that direct appeal

consideration of ineffectiveness claims not warranted 

where, as here, the issue involves non-record based 

claims and the defendant has not waived further 

post-conviction review). It also bears mentioning 

that [Appellant] did not allege a connection between 

his criminality and Noonan’s misconduct, such that a 

conflict existed, nor did he cite to any instance in the 

trial record where he believes Noonan’s performance 

was affected by a conflict of interest. Moreover, 

defendant also was actively represented at trial by 

John L . Walfish, Esq. In any event, [Appellant] has 

not included a challenge to Noonan’s effectiveness in 

his concise statement; thus, it is waived. See Pa. 

R.A.P. 1925(b)(4)(vii) (stating that issues not 

included in concise statement are waived).

Opinion, at 4 (internal footnotes omitted). We find no abuse of discretion 

with the trial court’s determination. 

Appellant’s third claim challenges the discretionary aspects of his 

sentence. 

“Challenges to the discretionary aspects of sentencing do not entitle a 

petitioner to review as of right.” Commonwealth v. Allen, 24 A.3d 1058, 

1064 (Pa.Super.2011) (citing Commonwealth v. Sierra, 752 A.2d 910, 
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912 (Pa.Super.2000)). Before this Court can address a discretionary 

challenge, we must engage in a four-part analysis to determine: 

(1) whether the appeal is timely; (2) whether Appellant 

preserved his issue; (3) whether Appellant’s brief includes 

a concise statement of the reasons relied upon for 

allowance of appeal with respect to the discretionary

aspects of sentence; and (4) whether the concise 

statement raises a substantial question that the sentence

is appropriate under the sentencing code. 

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super.2013) (quoting 

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super.2006)); see 

also Allen, 24 A.3d at 1064.

Appellant timely filed his notice of appeal and included a concise 

statement of reasons in his appellate brief. Further, he raised an 

excessiveness claim in his post-sentence motion. His post-sentence motion, 

however, did not raise a claim that the trial court failed to consider 

mitigating factors or Appellant’s rehabilitative needs. 

Appellant’s brief contains a statement of reasons relied upon for 

allowance of appeal pursuant to Pennsylvania Rule of Appellate Procedure 

2119(f). Appellant’s Brief at 13-15. Appellant maintains the trial court 

failed to properly consider the information contained in the pre-sentence 

investigation report, including Appellant’s history and characteristics and his 

rehabilitative needs. Id. at 14. He notes the trial court sentenced Appellant 

to three consecutive, aggravated range sentences, for a total aggregate 

sentence of not less than 15 nor more than 30 years’ imprisonment. Id. at 

15. He argues the sentence was “manifestly unreasonable, unduly excessive 
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and extremely vindictive; considering that the charges to which [Appellant] 

was found guilty were not separate and distinct incidents of criminality, but 

rather one episodic and continuing course of criminal conduct.” Id. at 15.

Although Appellant’s post-sentence motion and Pa.R.A.P. 1925(b) 

statement challenge the sentence as excessive, they do not allege the trial 

court failed to consider mitigating circumstances. See Concise Statement of 

Matters Complained of on Appeal (“Did the Trial Court abuse its discretion in 

sentencing [Appellant] to three consecutive terms of five (5) to ten (10) 

years of incarceration; each of which constituted a sentence in the 

aggravated range of the Sentencing Guidelines, where the charges to which 

he was found guilty were not separate and distinct incidents of criminality, 

but rather one episodic and continuing course of criminal conduct?”); 

Appellant’s Post-Sentence Motion for Relief (arguing: imposition of 

consecutive sentences in aggravated range was excessive and unreasonable; 

sentence cruel and unusual due to age, lack of prior history and conviction 

for non-violent offense; and weighing of the factors favors a lesser 

sentence). Appellant, therefore, waived his argument that the trial court 

failed to consider mitigating factor or his rehabilitative needs.

We next must address whether Appellant’s claim the trial court abused 

its discretion when it imposed consecutive, aggravated range sentences 

raises a substantial question. “The determination of whether a particular 

issue raises a substantial question is to be evaluated on a case-by-case 

basis.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.Super.2011) 
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(quoting Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa.Super.2005)). 

A substantial question exists where a defendant raises a plausible argument 

that the sentence violates a provision of the sentencing code or is contrary 

to the fundamental norms of the sentencing process. Commonwealth v. 

Naranjo, 53 A.3d 66, 72 (Pa.Super.2012) (quoting Commonwealth v. 

Crump, 995 A.2d 1280, 1282 (Pa.Super.2010)).

A claim of excessiveness based on the imposition of consecutive 

sentences does not raise a substantial question, unless the imposition of 

consecutive sentences raises the “aggregate sentence to, what appears upon 

its face to be, an excessive level in light of the criminal conduct at issue in 

the case.” Commonwealth v. Mastromarino, 2 A.3d 581, 587 

(Pa.Super.2010).11 Because the aggregate sentence imposed, 15-30 years’ 

imprisonment, does not facially appear excessive in light of the criminal 

conduct for which Appellant was convicted, Appellant’s claim that the trial 

court abused its discretion by imposing consecutive sentences in the 

____________________________________________

11 An excessiveness claim or challenge to consecutive sentences may raise a 

substantial question when raised in conjunction with a claim that the court 

failed to consider mitigating factors or rehabilitative needs. See 

Commonwealth v. Caldwell, --- A.3d ---, 2015 WL 3444594, at *4 

(Pa.Super. May 29, 2015) (challenge to consecutive sentences as unduly 

excessive, together with claim court failed to consider rehabilitative needs 

raised substantial question); Commonwealth v. Raven, 97 A.3d 1244, 

1253 (Pa.Super.2014) (excessiveness claim, together with claim court failed 

to consider mitigating factors, raised substantial question). 
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aggravated range of the sentencing guidelines does not raise a substantial 

question. 

Further, even if we were to address the merits of the sentencing claim, 

the claim fails. “Sentencing is a matter vested within the discretion of the 

trial court and will not be disturbed absent a manifest abuse of discretion.” 

Crump, 995 A.2d at 1282 (citing Commonwealth v. Johnson, 967 A.2d 

1001 (Pa.Super.2009)). “An abuse of discretion requires the trial court to 

have acted with manifest unreasonableness, or partiality, prejudice, bias, or 

ill-will, or such lack of support so as to be clearly erroneous.” Id. (citing 

Commonwealth v. Walls, 926 A.2d 957 (Pa.2007)). 

“A sentencing court need not undertake a lengthy discourse for its 

reasons for imposing a sentence or specifically reference the statute in 

question, but the record as a whole must reflect the sentencing court’s 

consideration of the facts of the crime and character of the offender.” 

Crump, 995 A.2d at 1283 (citing Commonwealth v. Malovich, 903 A.2d 

1247 (Pa.Super.2006)). Further, “where the trial court is informed by a presentence report, it is presumed that the court is aware of all appropriate 

sentencing factors and considerations.” Commonwealth v. Ventura, 975 

A.2d 1128, 1134 (Pa.Super.2009) (citing Commonwealth v. Devers, 519 

Pa. 88, 101–102, 546 A.2d 12, 18–19 (1988)).

The trial court found:

As for the imposition of consecutive sentences, the 

aggregate sentence is not excessive given the harm 

inflicted by [Appellant] upon numerous individuals, families 
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and the community as a whole. While [the trial court] 

considered [Appellant’s] age, along with a number of other 

factors, a lesser sentence would have depreciated the 

seriousness of his devastating crimes. [Appellant’s] 

suggestion that his crimes were not separate episodes that 

piled more and more harm upon his patients demonstrates 

his continued lack of remorse for his actions and a selfserving characterization of the ample trial evidence to the 

contrary. In any event, even had [Appellant] raised a 

substantial question regarding his sentence, he is not 

entitled to relief.

[The trial court] amply set forth on the record the bases 

for the sentence imposed. In particular, [the trial court] 

stated at the sentencing hearing:

You are a danger to society if I have ever met [one]. 

You are more dangerous than a common criminal

because you do act like and are, in fact, the 

quintessential old country doctor.

And even though I have never lived in Souderton, 

I’m not exactly from the inner city. Okay? You are 

the old country doctor. You are perfect at that. 

There [are] two of you. There must be. Because the 

person I saw in here when pressed on crossexamination, you just didn’t have the answers.

An intelligent person like you, who is a physician, 

has to look at the amount of prescriptions you have 

written for the amount of pills that were given out 

for the times these people came to you that were 

obvious junkies. You heard them in the courtroom. 

You saw them.

Doc, you got to give me another script because the 

dog ate the script. My kid put the script in his 

mouth. I need another one. So you just write 

another one, write another one, write another one. 

It was business as usual.

You and Michael, you were a criminal enterprise. 

These people weren’t making it up. You are not the 

victim. You are just making money off the suffering 

of others.
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* * *

You perpetuate the agony of these people that come 

in my courtroom. They’re destroying our society 

because you keep the wheel turning. You are the 

supplier. And that is what I find so baffling.

You know what it is like? The DA said it or alluded to 

it. What you do by feeding this and fueling this 

disease, these diseased people, and they commit 

crime, it is like throwing a stone in a lake and you 

see the ripple effect. It is generational, the 

destruction it causes a family.

That one kid that came in here talking about his 

mom, he came to get pills for his mom and you guys 

wrote him the script. He is living in a car, he had to 

give [up] his pets, this little boy, because his mom 

was a junkie.

And where did she get her pills from? Dr. Ruth. 

(N.T. 6/5/ 14, pp. 50-53).

The [trial court] also stated on the record that he had the 

benefit of a pre-sentence investigation report, considered 

the information [Appellant] gave about himself during his 

trial testimony and allocution and noted the [trial court’s] 

familiarity with the circumstances of the case, having been 

the trial judge. (Id. at 53)

[The trial court] court further stated that it sentenced 

[Appellant] in the aggravated range because there were 

multiple convictions, the crimes involved drug trafficking, 

[Appellant] demonstrated no remorse, there were multiple 

victims and the victims were in [Appellant’s] care. (Id. at 

54) [Appellant’s] claim, therefore, that [the trial court] 

erred in fashioning its sentence is without merit.

Opinion, at 8-9. After a thorough review of the sentencing transcript, we 

find the trial court did not abuse its discretion in sentencing Appellant to 

consecutive, aggravated range sentences.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/23/2015