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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

VAN EDWARD SCOTT, : No. 1987 WDA 2013

:

 Appellant :

Appeal from the Judgment of Sentence, October 29, 2013,

in the Court of Common Pleas of Lawrence County

Criminal Division at No. CP-37-CR-0000255-2013

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

VAN EDWARD SCOTT, : No. 1988 WDA 2013

:

 Appellant :

Appeal from the Judgment of Sentence, October 29, 2013,

in the Court of Common Pleas of Lawrence County

Criminal Division at No. CP-37-CR-0000516-2010

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND ALLEN, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 06, 2015

In these two consolidated appeals, appellant challenges the judgment 

of sentence imposed following his several convictions relating, in one part, to 

the improper prescribing of narcotic drugs, and in the other part, to 
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disposing of frozen or seized assets. Finding no merit in the issues on 

appeal, we affirm.

Appellant is a medical doctor who ostensibly engaged in a pain 

management practice. As a central part of that practice, appellant 

prescribed large dosages of narcotic opiate drugs to his patients. During 

appellant’s trial, the Commonwealth presented testimony from some of 

appellant’s patients who typically described office visits as lasting five 

minutes or less and consisting of a brief, perfunctory examination, followed 

by the prescribing of large dosages of controlled substances. (Notes of 

testimony, 6/12/13 at 179; 6/13/13 at 103, 171, 174.)

One of these patients, Kelly Tritt, testified that she agreed to help 

narcotics agents investigate appellant after she was arrested for selling 

some of the controlled substances she was prescribed to her ex-husband. 

(Notes of testimony, 6/13/13 at 181-183.) Thereafter, Tritt took a recording 

device with her when she had office visits with appellant. (Id. at 184.) Tritt 

also admitted that she fabricated accounts of injuries, presumably to induce 

appellant to augment her prescription. (Id. at 195-197.) While Tritt denied 

that the narcotics agents working with her made up the fabrications

themselves, she did testify she “made up some things” . . . “[u]nder the 

advisement and direct from the agents.” (Id. at 196; notes of testimony, 

6/18/13 at 23.)
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The Commonwealth also presented expert medical testimony to the 

effect that appellant’s prescribing of controlled substances was outside of 

accepted treatment principles. (Notes of testimony, 6/17/13 at 158-159.)

Finally, the Commonwealth presented the testimony of 

Ronald Thurner, a Senior Deputy Attorney General in the Asset Forfeiture 

Division. Essentially, Thurner testified that certain bank and investment 

accounts belonging to appellant were seized or frozen during the 

investigation of this case. Thurner testified appellant’s counsel was informed 

as to which accounts were affected. (Notes of testimony, 6/12/13 at 127-

128.) During this time, appellant was personally served with a petition for 

forfeiture, and appellant personally signed the receipt. (Id. at 137.) 

Thurner went on to relate that appellant subsequently liquidated some of the 

accounts that were listed in the petition. (Id. at 138-143.)

On June 24, 2013, a jury convicted appellant of six counts of 

prescribing controlled substances not in good faith, six counts of prescribing 

controlled substances outside of accepted treatment principles, and one 

count of prescribing controlled substances to a drug dependent person.1 

Appellant was also convicted of dealing in proceeds of unlawful activities, 

tampering with or fabricating physical evidence, and obstructing 

administration of law or other governmental function.2 On October 29, 

 

1 35 P.S. §§ 780-113(a)(14)(i), (a)(14)(iii), and (a)(13), respectively.

2 18 Pa.C.S.A. §§ 5111(a)(2), 4910(1), and 5101, respectively.
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2013, appellant was sentenced to an aggregate term of 9 to 18 years’ 

imprisonment. This timely appeal followed.

Appellant raises the following issues on appeal:

I. DID THE LOWER COURT ABUSE ITS 

DISCRETION WHEN IT FAILED TO INSTRUCT 

THE JURY CONCERNING ENTRAPMENT, UPON 

DR. SCOTT’S REQUEST, WHERE EVIDENCE 

ADDUCED AT TRIAL SUPPORTED THE 

INSTRUCTION?

II. DID THE LOWER COURT ABUSE ITS 

DISCRETION BY DENYING DR. SCOTT’S 

MOTION FOR DIRECTED VERDICT IN CASE 

NO. 255 OF 2013 WHERE THE 

COMMONWEALTH FAILED TO ADDUCE ANY 

EVIDENCE AT TRIAL THAT DR. SCOTT HAD 

THE REQUISITE INTENT NECESSARY TO 

SUPPORT A FINDING OF GUILT ON ANY OF 

THE CHARGES?

III. DID THE LOWER COURT ABUSE ITS 

DISCRETION BY DENYING DR. SCOTT’S 

MOTION TO DISMISS AND MOTION FOR 

DIRECTED VERDICT IN CASE NO. 516 OF 2010 

WHERE THE STATUTE CHARGING HIM WITH 

PROVIDING CONTROLLED SUBSTANCES TO A 

DRUG DEPENDENT PERSON IS 

CONSTITUTIONALLY OVERBROAD AND VOID 

FOR VAGUENESS, AND FAILED TO PROVIDE 

SUFFICIENT NOTICE OF THE CRIMINAL 

ACTIVITY THAT IS PROHIBITED?

IV. DID THE LOWER COURT ABUSE ITS 

DISCRETION IN PERMITTING 

LEWIS COLOSIMO TO TESTIFY AS AN EXPERT 

WITNESS WHERE HIS TESTIMONY WAS 

GENERIC, CUMULATIVE, OFFERED WITHOUT 

ANY KNOWLEDGE OF THE FACTS OR 

CIRCUMSTANCES OF THE CASE, AND WAS SO 

PREJUDICIAL AS TO DENY DR. SCOTT’S 
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CONSTITUTIONAL RIGHT TO DUE PROCESS 

AND FAIR TRIAL?

Appellant’s brief at 5.

The trial court failed to review Issue I in its opinion filed pursuant to 

Pa.R.A.P., Rule 1925(a), 42 Pa.C.S.A.; consequently, we will address this 

issue in full. Otherwise, we find no error with the trial court’s holdings. 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinions of the trial court, it is our 

determination that there is no merit to the other questions raised on appeal. 

The trial court’s thorough, 28-page opinion, dated June 17 2014, 

comprehensively discusses and properly disposes of Issues II and IV. 

Furthermore, a second 12-page opinion, dated February 17, 2012, properly 

disposes of Issue III. We will adopt those opinions as our own and affirm on 

their bases with the following additional analysis.

As to Issue II, pertaining to appellant’s intent in regard to his 

liquidation of certain frozen bank accounts, appellant’s argument attempts to 

shift the blame to the banks for not fulfilling their legal duty to the 

Commonwealth by releasing the funds. (Appellant’s brief at 40.) We find 

the banks’ failure to preserve the subject funds to be completely irrelevant 

to either appellant’s intent or guilt.

We also find it to be of no moment that some accounts that were 

initially frozen were subsequently released. (Appellant’s brief at 39.) This 

argument suggests that appellant may have unwittingly requested the 
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release of funds from an account that he believed had been unfrozen but 

was not. Appellant was aware that the accounts listed in the forfeiture 

petition were frozen yet nonetheless sought and obtained the funds from 

some of those accounts. Appellant is fully culpable.

As for Issue III, pertaining to the trial court’s decision not to enter a 

directed verdict as to the prescription offenses on the basis that the statute 

is unconstitutionally overbroad and vague, we note that the trial court relies 

largely upon this court’s decision in Commonwealth v. Possinger, 399 

A.2d 1077 (Pa.Super. 1979). In Possinger, this court found that the 

prescription statute was not unconstitutionally vague. On appeal, appellant 

argues that the trial court’s reliance on Possinger is misplaced because in 

Possinger, unlike here, the physician prescribed controlled substances to a 

patient without ever seeing the patient. (Appellant’s brief at 48-49.)

It appears that appellant has selectively read Possinger. In 

Possinger, three narcotics agents sought prescriptions for controlled 

substances from Possinger. Agent Robert Bongard contacted Possinger’s 

office on seven occasions. Bongard met face-to-face with appellant on the 

first five of these appointments, and Possinger performed perfunctory 

medical examinations on two of these occasions. Bongard obtained 

prescriptions on only the final two appointments without meeting Possinger. 

Agents Raymond Stackhouse and Richard Jumper contacted Possinger with 

Bongard during Bongard’s fifth visit and met face-to-face with Possinger. 
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Possinger wrote prescriptions for Stackhouse and Jumper after performing 

perfunctory medical examinations on them. Again, it was only on Bongard’s 

final two visits at Possinger’s office that he obtained prescriptions for 

himself, Stackhouse, and Jumper without actually seeing Possinger.

Clearly, Possinger is on point with the facts of this case. Possinger

was not a situation where the physician wrote prescriptions without ever 

seeing the patient. Possinger met and gave perfunctory medical 

examinations to each of the agents for whom he wrote prescriptions. This is 

very similar to what the evidence in this case revealed as to appellant’s 

conduct. We find appellant’s attempt to distinguish Possinger to be 

meritless and that the trial court properly relied on this decision.

We now turn to our review of Issue I. Therein, appellant claims that 

the trial court erred in failing to give an entrapment instruction to the jury 

based upon Kelly Tritt’s attempt to induce appellant to prescribe her 

controlled substances based upon fabricated injuries where Tritt was 

directed to make such fabrications by state narcotics officers. We may 

quickly dispose of this issue.

Preliminarily, we note our standard of review pertaining to jury 

instructions:

[W]hen evaluating the propriety of jury instructions, 

this Court will look to the instructions as a whole, 

and not simply isolated portions, to determine if the 

instructions were improper. We further note that, it 

is an unquestionable maxim of law in this 

Commonwealth that a trial court has broad discretion 
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in phrasing its instructions, and may choose its own 

wording so long as the law is clearly, adequately, 

and accurately presented to the jury for its 

consideration. Only where there is an abuse of 

discretion or an inaccurate statement of the law is 

there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super. 2014), 

appeal denied, 95 A.3d 275 (Pa. 2014), quoting Commonwealth v. 

Trippett, 932 A.2d 188, 200 (Pa.Super.2007).

Pennsylvania’s criminal statutes provide that a defendant shall be 

acquitted if he or she can show by a preponderance of the evidence that the 

defendant was entrapped:

(a) General rule.--A public law enforcement 

official or a person acting in cooperation with 

such an official perpetrates an entrapment if 

for the purpose of obtaining evidence of the 

commission of an offense, he induces or 

encourages another person to engage in 

conduct constituting such offense by either:

(1) making knowingly false 

representations designed to induce 

the belief that such conduct is not 

prohibited; or 

(2) employing methods of persuasion 

or inducement which create a 

substantial risk that such an 

offense will be committed by 

persons other than those who are 

ready to commit it. 

(b) Burden of proof.--Except as provided in 

subsection (c) of this section, a person 

prosecuted for an offense shall be acquitted if 

he proves by a preponderance of evidence that 
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his conduct occurred in response to an 

entrapment.

18 Pa.C.S.A. § 313(a) and (b).

As noted by the Commonwealth, even if Tritt’s behavior constituted 

entrapment and the instruction should have been given, appellant was not 

prejudiced because he was acquitted on all charges related to Tritt. We 

agree.

Appellant argues in his reply brief that the taint of Tritt’s entrapment 

somehow extends to all of his other convictions. Appellant argues that 

Tritt’s testimony was critical not just to her claims but to every other 

allegation against appellant. First, Tritt’s testimony itself does not constitute 

an inducement to commit a crime. Second, there is no transitive effect from 

Tritt’s original false inducements. False information supplied by Tritt as to 

her own drug needs would not cause appellant to illegally prescribe 

controlled substances to another patient. Appellant’s convictions rest wholly 

upon prescriptions he wrote for patients other than Tritt. Appellant was 

convicted of no crime as a result of any false inducement by Tritt. There is 

no merit here.

Accordingly, we will affirm the judgment of sentence.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/6/2015
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FEBRUARY 171 2012 

OPINION 

Kevin P. Byers, Esq., pro hoc vice 

Kevin P. Byers co., L.P.A. 

529 East Town Street, suite 200 

Columbus, OH 43215 

Eric D. Levin, Esq. 

Rishor Simone 

101 E. Diamond street, Suite 208 

Butler. PA 16001 

APPEARANCES 

Kristine M. Ricketts, Esq. 

PA office of the Attorney General 

105 Independence Drive 

Butler, PA 16001 

IN THE COURT OF COMMON PLEAS 

LAWRENCE COUNTY, PENNSYLVANIA 

NO. 516 OF 2010, CR. 

OTN: T040710-5 

MOTTO, P.J. 

For the Defendant: 

For the commonwealth: 

vs. 

VAN EDWARD SCOTT 

COMMONWEALTH OF PENNSYLVANIA 

Before the court for disposition is the Defendant's Motion 

to Dismiss the criminal information charging twenty-one counts 

of unlawful Prescription of a Controlled substance by a 

Practitioner, an unclassified felony, in violation of §13(a)(14) 

of the controlled substance, Drug Device and cosmetic Act (35 

P.S. §780-113(a)(l4)) and seven counts of Unlawful Prescription 

to a Drug Dependent Individual. an unclassified misdemeanor, in 

violation of §13(a)(13) of the controlled substance, Drug Device 

and cosmetic Act (35 P.S. §780-113(a)(13)). Defendant's motion 

contends that the aforesaid charging statutes are 

unconsti tuti ona 11 y vague, c ttiup,~ xont r-aven i ng Defendant's right to 

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Due Process under the Fourteenth Amendment to the United States 

constitution. Defendant argues that the statutes fail to 

adequately and meaningfully inform physicians of what conduct is 

proscribed. 

Pursuant to the controlled substance, Drug Device and 

cosmetic Act, §13(a)(14) prohibits the following: 

(14) The ... prescription of any controlled substance by 

any practitioner ... 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. 

Section 13(a)(13) of the controlled substance, Drug Device 

and Cosmetic Act prohibits the following: 

(13) The ... prescription ... by any practitioner 

otherwise authorized by law to do so of any controlled 

substance to any person known to such practitioner to 

be or whom such practitioner has reason to know is a 

drug dependent person, unless said drug is 

prescribed, ... for the cure or treatment of some malady 

other than drug dependency ... 

The Superior court has considered the argument that 

§13(a)(14) of the act is unconstitutionally vague in violation 

of the Due Process Clause of the Fourteenth Amendment of the 

United States Constitution, and has refuted such contention, 

finding the statute to be constitutional in commonwealth v. 

Possinger, 264 Pa.Super. 332, 399 A.2d 1077 (1979). 

In Possinger, the defendant physician was convicted of 

violating the above statute under circumstances similar to the 

case at bar, where the defendant is accused of prescribing high 

amounts of controlled substances to patients where visits would 

last a couple of minutes, exams did not include the taking of 

vital signs, little, if1 a11y,-:·ph~sical examinations, selfLAWRENCE COUNTY 

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reporting of physical conditions with requested increases of 

medication, providing patients with requested prescriptions 

without a medical basis to do so and providing prescriptions to 

patients who were known to sell drugs obtained with the 

defendant's prescriptions and to others who were known addicts 

who fed their habit with drugs obtained from the defendant. 

Possinger found the statute to be constitutional both on its 

face and as applied to the facts of the case. 

The manifest purpose of the statute, as noted 1n Possinger, 

is to limit the dispensing of controlled substances by a 

physician to the bounds of his professional practice, and to 

prevent "drug-pushing" by doctors. 

The terms of a penal statute creating an offense must be 

sufficiently explicit to inform those who are subject to it of 

the conduct on their part which would render them liable to its 

penalties. Connally v. General construction co., 269 u.s. 385, 

46 s.ct. 126 (1926). A statute which either forbids or requires 

the doing of an act in terms so vague that men of common 

intelligence must necessarily guess at its meaning and differ as 

to its application, violates the first essential of due process 

of law. In order to survive a vagueness challenge, the statute 

in question must give adequate notice of what is criminally 

proscribed. Lansetta v. State of New Jersey, 306 U.S. 451, 59 

S.Ct. 618 (1939). In order to survive a vagueness challenge, a 

court must determine that the statute gives a person of ordinary 

intelligence a reasonable opportunity to know what is prohibited 

and that the law provides, ex.pJ:i.c;:J:~ .st anda rds for those who apply 

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it. chatin v. Coombe, 186 F.3d 82, 87 (2nd Cir. 1999); Unit~g 

states v. Handakas, 286 F.3d 92, 111 (2nd cir. 2002). 

Relative to the first two subdivisions of §13(a)(14), 

specifically subsections (i) and (ii) the Possinger court stated 

the following: 

That the first two subdivisions of this statute meet 

the requirements of due process should not be doubted. 

congress has passed provisions similar to §780- 

113(a)(14), See 21 u.s.c. §802(20), 829(a)(b) and 

841(a)(1)(1972), which federal courts have repeatedly 

upheld under attacks based on the Fourteenth 

Amendment. In United States v. Jobe, 487 F.2d 268 

(10th cir. 1973), cert. Denied 416 U.S. 955 94 s.ct. 

1968, 40 L.Ed.2d 305 (1974), a physician, under facts 

almost identical to the facts here, was convicted 

under the federal statutes. on appeal, the court held 

that the conviction was valid, and that the 

Defendant's due process rights were not violated 

because the federal statutes proscribed the 

prescription of contra 11 ed substances un 1 ess for "a 

legitimate medical purpose" and "in the usual course 

of (the doctor's) professional practice. united 

States v. Jobe, supra at 269. see also united States 

v. collier, 478 F.2d 268 (5th cir. 1973); United 

states v. Rosenberg, 515 F.2d 190 (9th cir.) cert. 

Denied 423 U.S. 1031, 96 S.Ct. 562, 46 L.Ed.2d 404 

(1975); Annot., 33 A.L.R. (Fed.) 220, 223-34 (1977). 

(The term "in the course of professional practice" is 

not vague because it has been subject to frequent 

judicial construction). 

Possinger, at 1079, 1080. 

Possinger then went on to consider the constitutionality of 

§13(a)(14) in connection with the third subsection, (iii) 

requiring that the dispensing of controlled substances be "in 

accordance with treatment principles accepted by a responsible 

segment of the medical profession." Possinger cited 

commonwealth v. Steffan, 228 Pa.super. 127, 323 A.2d 318 (1974) 

for the proposition that this statutory provision was specific 

enough to provide a standard, o~conduct to which physicians 

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could be held legally accountable. In Steffan, the court was 

interpreting §13(a)(14) of the Controlled substance, Drug Device 

and cosmetic Act (35 P.S. §780-113(a)(14)), as it read prior to 

its amendment in 1974, which prohibited prescription of a 

controlled substance except after a physical or visual 

examination or except where the practitioner 1s satisfied by 

evidence that the person is not a drug dependent person. 

stoffin held that evidence of what treatment principles are 

accepted by a responsible segment of the medical profession 

would indicate what a practitioner generally must do in order to 

obtain sufficient information to form an opinion that the 

patient is not drug dependent, and that by considering what the 

practitioner has done in particular circumstances, and by 

comparing his conduct with what a reasonable segment of the 

medical profession would say should have been done, a 

determination may be made whether a physical or visual 

examination was conducted. Possinger, citing and relying on 

stoffin, concluded that the clause ''in accordance with treatment 

principles accepted by a responsible segment of the medical 

profession" was specific enough to provide a standard of conduct 

to which physicians could be held legally accountable. 

Possinger concluded that the fact that the clause when 

interpreted by Stoffan, was found 1n a different section of the 

Controlled substance, Drug Device and cosmetic Act and was not 

added to section (a)(14) until 1974, after Stoffin was decided, 

did not make the clause less specific. Possinger, at 1080. 

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Defendant also asserts a vagueness challenge as applied to 

the facts of this case. In United States v. Mazurie, 419 U.S. 

544, 95 s.ct. 710, the united States supreme Court held that 

vagueness challenges to statutes which do not involve First 

Amendment freedoms must be examined in light of the facts of the 

case at hand. 

The court here concludes that even utilizing the factspecific review of the statute, the statute, §13(a)(14) of the 

Controlled substance, Drug Device and Cosmetic Act is not 

unconstitutionally vague as applied to this case because the 

statute is sufficiently detailed to put a person liable 

thereunder on notice of the proscribed conduct, including the 

conduct complained of here. As stated in Connally v. General 

construction co., 269 u.s. at 391, 46 s.ct. at 126, "It will be 

enough for present purposes to say generally that the decisions 

of the court upholding statutes as sufficiently certain, rested 

upon the conclusion that they employed words or phrases having a 

technical or other special meaning, well enough known to enable 

those within their reach to correctly apply them. Here, 

applying the reasoning of Possinger, the statute provides an 

adequate description of the conduct that is not permissible, and 

clearly health care professionals are able to understand the 

parameters of the statute. Although the Defendant here asserts 

that the statute is too vague to give him reasonable notice that 

the conduct alleged this case was illegal; nonetheless, 

Possinger stands for the proposition that a statute affecting 

medical practice will! O'B1;'cPi~c~e,emed unconstitutionally vague 

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Here, 1n addition to the factors above set forth upon which 

the commonwealth relies, the Commonwealth has obtained an expert 

opinion that the Defendant's conduct was not in accordance with 

treatment principles accepted by a responsible segment of the 

medical profession. The expert opinion reviews the medical 

records of the each of the patients of the defendant doctor and 

points out how the prescribing of the controlled substance in 

each case fell below the accepted standard of medical practice, 

and how the prescribing of the controlled substance was not in 

accordance with treatment principles accepted by a responsible 

segment of the medical profession. As to each patient, expert 

opinion details what is shown in the records, and what would 

have been required to be shown or done by the doctor in order to 

justify the prescribing of the contraband in accordance with 

accepted medical principles. Although this evidence has yet to 

be presented to the fact ftti~i:r1,~~I; i is referenced at this 

1080. 

commonwealth v. Possinger, 264 Pa.Super. at 335, 399 A.2d at 

because it "need not delineate the precise circumstances 

constituting the bounds of permissible practice''. united States 

v. collier, Supra, at 272. As the Po~singer court stated: 

Even though doubts as to the applicability of §780- 

113(a)(14) in marginally fact situations can be 

conceived, in more doubtful cases than the one 

presented here the courts have confirmed convictions 

recognizing that the law is full of instances where a 

man's fate depends on his estimating rightly, that is, 

as a jury subsequently estimates it, some matter of 

degree. commonwealth v. Heinbaugh, 467 Pa. 1, 7, 354 

A.2d 244, 247 (1976) citing United states v. Powell, 

423 u.s. 87, 93, 96 s.ct. 316 (1975). see also 

Commonwealth v. Hughes, 468 Pa. 502, 363 A.2d 306 

(1976). [F.N.3]. 

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Relative to Defendant's argument that §13(a)(13) of the 

controlled substance, Drug Device and Cosmetic Act, which 

prohibits prescribing a controlled substance to an individual 

when the Defendant knew or had reason to know that the 

individual was a drug dependent person, the court notes that the 

statute which was reviewed in commonwealth v. Steffan, supra, 

which in turn was relied upon by commonwealth v. Possinger, 

Supra, in addressing the constitutionality issue addressed a 

statute that was a predecessor to the current version of 

13(a)C14) of the controlled substance, Drug Device and cosmetic 

Act, which prohibited the prescription of a controlled substance 

except after a physical or visual examination or except where a 

practitioner is satisfied by evidence that the person is not a 

drug dependent person. The court held that the commonwealth had 

the burden of proving that the practitioner was not satisfied by 

evidence that the person was not a drug dependent person and 

that this element was a subjective standard. However, the use 

of this subjective standard did not bar the introduction of 

expert testimony. Evidence of minimum standards in medical 

practice should have been allowed, and was wrongfully excluded 

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juncture of the case only as it relates to Defendant's argument 

as to the constitutionality of the statute as applied to the 

facts of this case, to demonstrate that at this point in the 

case there is no basis, in accordance with Possinqg~, to 

conclude that the statute is unconstitutionally vague as applied 

to this case, where it is found to be constitutional on its 

face. 

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by the trial judge, relative to the commonwealth's burden to 

prove that the practitioner was not satisfied by evidence that 

the person was not a drug dependent person. Thus, for purposes 

of that statute, prohibiting prescription of any controlled 

substance except after a physical or visual examination or 

except where the practitioner is satisfied by evidence that the 

person is not a drug dependent person, the commonwealth may meet 

its burden of proof with evidence of treatment principles 

accepted by a responsible segment of the medical profession that 

would indicate what a practitioner must do in order to obtain 

sufficient information to form an opinion that the patient is 

not drug dependent. Steffan further stated that by considering 

what the practitioner has done in the particular circumstances 

and by comparing his conduct with what a reasonable segment of 

the medical profession would say should have been done, a 

determination may be made whether a physical or visual 

examination was conducted. Although Steffan itself did not 

specifically address an argument as to the constitutionality of 

the statute based on vagueness, Possinger relied upon the 

analysis in Staffon to address the constitutionality argument 

with respect to 13(a)(14). Thus, the conclusion here is that it 

is not a violation of due process to rely upon a standard 

consisting of treatment principles accepted by a responsible 

segment of the medical profession in defining what constitutes 

the unlawful prescribing of a controlled substance to a drug 

dependent individual. 

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The court concludes that the Defendant's argument must fail 

because it is not the guideline that defines criminal conduct 

but, rather, the criminal statute, §13(a)(13). Irrespective of 

what the guidelines announce as being the normal consequences of 

sustained use of opioid analgesics, the statute is clear as to 

what a doctor cannoL~r_dA1 fx11.11, .Ji ght of the ho 1 dings of Stoffan and 

§17. 

Defendant specifically argues that a lack of notice exists 

because the commonwealth Board Guidelines expressly direct that 

"physicians should recognize that tolerance and physical 

dependence are normal consequences of sustained use of opioid 

analgesics and are not synonymous with addiction; that counts 

22-28 allege that Dr. Scott prescribed medications to "drug 

dependent" patients and that the defi ni ti on of "druq dependent" 

contained in §2 of the Act (35 P.S. §780-102) means a person who 

is both a "drug addict" and who is "drug dependent". Defendant 

argues that the guidelines encourage pain management physicians 

to consider the signs behind drug tolerance and dependency and 

to continue treatment of patients with opioids even if tolerance 

and dependence are apparent; however, the statutes §13(a)(13) 

and §2 criminalize prescribing to a "drug dependent" person. 

Therefore, Defendant argues that the physician is essentially 

caught ,n a trap that is violative of due process, since one 

branch of government expressly encourages conduct which another 

branch criminalizes and prosecutes. Defendant also asserts 

violations of the Commonwealth's constitution, §9 due process 

and the constitutional prohibition against ex post facto laws 1n 

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Possinger. Irrespective of the guideline, the doctor cannot 

prescribe a controlled substance to a person known to a 

practitioner to be or whom such practitioner has reason to know 

is a drug dependent person. A drug dependent person is defined 

as a person using a drug, controlled substance or alcohol, and 

who is in a state of psychic or physical dependence, or both, 

arising from the administration of that drug, controlled 

substance or alcohol on a continuing basis. The definition goes 

on to state that such dependence is characterized by behavioral 

and other responses which include a strong compulsion to take 

the drug, controlled substance or alcohol on a continuous basis 

in order to experience is psychic affects or to avoid the 

discomfort of its absence, the definition to include persons 

commonly known as "drug addicts". Simply put, the statute 

criminalizes the prescribing of a drug to a person who is in a 

state of psychic or physical dependence on that controlled 

substance. The only exception in the statute which would allow 

the prescribing of a controlled substance to an individual who 

is drug dependent would be if the drug is prescribed for the 

cure or treatment for some malady other than drug dependency. 

If the physical dependency meets the definition contained in §2, 

and the dependency is known or the practitioner has reason to 

know of the dependencyt and if the prescribing of the medication 

is not for the cure or treatment of some malady other than drug 

dependency, then the drug cannot be prescribed without violating 

§13 of the controlled substance, Drug Device and cosmetic Act. 

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For the reasons above set forth, Defendant's Motion to 

Dismiss shall be denied by separate order of court. 

CONCLUSION 

determined at this juncture. 

Any interpretation of the referenced guideline must give way to 

the directive of the criminal statute. 

Defendant also argues that the counts premised upon a 

violation of §13(a)(13) of the act should be dismissed because 

the statute itself provides Defendant with an exemption from its 

application. The statute is not violated if the drug is 

prescribed for the cure or the treatment of some malady other 

than drug dependency. Defendant asserts that there can be no 

evidence that Defendant was undertaking to treat patients who 

were "drug dependent,, as he was treating them for subjective 

reports of pain as verified by objective clinical data. The 

difficulty with Defendant's argument is that it does not address 

the constitutionality of the statute but rather raises a factual 

issue as to whether the statute has been violated. This factual 

issue must be reserved for the trial of this case and cannot be 

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substance, Drug Device and cosmetic Act; six counts of 

Following a jury trial, the Defendant was convicted at case 

No. 516 of 2010, er. of six counts each of Prescribing outside 

Accepted Treatment Principles, an unclassified felony, ,n 

violation of 35 Pa.C.S.A. §7B0-113(a)(14) of the controlled 

The Defendant having filed an appeal to the superior court 

from the Judgment of sentence issued in each of the above 

captioned consolidated cases, and the court being in receipt of 

Defendant's concise Statement of Matters complained of on 

Appeal, this opinion is issued in conformity with ra.R.A.P. 

1925(a). 

JUNE 17, 2014 

Mono, P.J 

For Defendant: 

G reqo ry J • c; i llli"t t I c , E sc.J . 

Dc>puLy At t ornr-y c,c:11c1·~l 

n rfi CC! 0 F the I\ l l ornoy Genera 1 

/\PP•"als anrl I e1~nl services ser t ion 

5611 1 o rbe s Avenue, 6 L.h rl oar 

Pittsburgh, PA 15219 

Mark K. McCulloch, Esq. Brownstone, P.A. 

201 N. New York Avenue, suite 200 

P.O. Box 2047 

Winter Park, Florida 32790 

OPINION 

For Commonwealth: 

APPEARANCES 

IN THE COURT OF COMMON PLEAS 

LAWRENCE COUNTY, PENNSYLVANIA 

NO. 516 OF 2010, CR. 

OTN: 5058963-2 

NO. 255 OF 2013, CR. 

CTN~ T296671-4 

COMMONWEALTH OF PENNSYLVANIA 

vs. 

VAN EDWARD SCOTf 

LAWRF"Nt-l COlJN,..Y 

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case No. 516 of 2010, er. adding thereto a term of imprisonment 

of not less than 1 year nor more than 2 years, the Defendant's 

total aggregate sentence of imprisonment in both cases therefore 

amounting to a total sentence of not less than 9 years nor more 

than 18 years. 

Prescribing Not in Good Faith in course of Professional 

Practice, an unclassified felony, in violation of 35 Pa.C.S.A. 

§780-113(a)(14) of the controlled substance, Drug Device and 

cosmetic Act; and one count of Prescribing to a orug Dependent 

Person, an unclassified misdemeanor, in violation of 35 

Pa.c.s.A. §780-113(a)(13) of the controlled substance, Drug 

Device and cosmetic Act. Defendant received an aggravated 

sentence of imprisonment of not less than 8 years nor more than 

16 years. 

At case No. 255 of 2013, er., Defendant was convicted of 

and sentenced following a jury verdict on charges ot Dealing in 

unlawful Proceeds, a felony of the 1st degree, in violation of 

18 Pa.c.s.A. §Slll(a)(2) of the crimes code; Tampering 

With/Fabricate Physical Evidence, a misdemeanor of the 2nd 

degree. in violation of 18 pa.C.S.A. §4910(1) of the crimes 

code; and obstructing Administration of Law or Other 

Governmental Functions1 a misdemeanor of the 2nd degree, in 

violation of 18 Pa.c.s.A. §5101 of the crimes code. The 

sentences at case No. 255 of 2013, Cr. were ordered to be served 

concurrent with each other but consecutive to the sentences at 

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516 of 2010, er. where the statute charging Defendant-Appellant 

with Providing controlled substances to a Drug Dependent Person 

is constitutionally overbroad and void for vagueness, and where 

the charging document fails to provide sufficient notice to the 

Defendant of the criminal activity that is prohibited. 

The Court finds that this issue was specifically addressed 

in the Opinion and order of court dated February 17, 2012, which 

found the charging statutes at case No. 516 of 2010, er. to be 

constitutional and denied the Defendant's Motion to Dismiss the 

criminal information on the basis that the charging statutes 

were overly broad and void for vagueness and otherwise denying 

Defendant's constitutional attack on the charging statutes 

applicable to the case at No. 516 of 2010, er. The aforesaid 

Opinion of the court dated February 17, 2012 is incorporated 

herein by reference and satisfies the requirements of Pa.R.A.P. 

1925(a) relative to this assignment of error. 

In Paragraph A of Defendant's concise statement of Matters 

complained of on Appeal the Defendant asserts that the court 

erred and abused its discretion by denying Defendant-Appellant's 

Motion to Dismiss and Motion for Directed Verdict in case No. 

A. Ft rnr in_!:)£1JW-11.f2lnt1on_ '~o IJic,11.Li~_ncl Mot ion 

.fnr_Qj_r·pc·tccl Vl:!l'Cill~ n r Cd!.-l1 Mo. _il{i 9L_)()lQ-J. [.f·- 

.!l.!l..l>CJSi!i rh,11 c.l1r11:.!J·1119 ·,t.il'l/lCl is constitution~Jly 

u.Y.£..CJ.v;o.,d and vo i <L.f o r v illJJI., n l.'.!i ·~ ;rn~I wit~ tr. 

Ch cl l'fl rnu__dD.£ llllleJ.!..! <:, f a ·j I ',_ l U_ t,J I_VC! s ll ff i Ci 011 t nQ. t l£_g 

to D"ft.rndc1111 of_!.,_1'i111.inal activity rha t !'· 11.r_ohilli~d. 

In the concise Statement of Matters co~plained of on 

Appeal, Defendant raises seven assignments of error, each one of 

which shall be addressed separately in this Opinion. 

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B, I rrlJr in Per·1,,itti11g ll!WI~ c:,9loc:.,_11nCJ_t.~cLIPSlify 

cl', , 11 EX(it~rj 'd f I n1.'r. Ill 11 t Vl' r s l(J_!l Or 

(Oil t.[Q..11 (!(I S11l rs l'r1JlCt?$ 

In Assignment B Defendant asserts that the Court erred and 

abused its discretion in permitting Lewis Colosimo to testify as 

an expert witness where he was unqualified pursuant to the 

Pennsylvania Rules of Evidence, offered testimony that was, at 

best, generic and cumulative, offered such opinion testimony 

without any knowledge of the facts or circumstances of the 

instant litigation, and whose testimony was so prejudicial as to 

deny Defendant-Appellant's constitutional right to due process 

and fair trial. 

Lewis Colosimo was proffered by the commonwealth as an 

expert in controlled substances and diversion. He is employed 

as a diversion investigator for the United states Drug 

Enforcement Administration in Pittsburgh. As a diversion 

investigator, he is tasked with investigatingl preventing, 

detecting the diversion or illegal distribution of 

pharmaceutical controlled substances. After a review of his 

experience and education, he was offered for voir dire as to 

qualifications. counsel for Defendant conducted a voir dire of 

Mr. Colosimo as to his qualifications. Following the voir dire 

by counsel for Defendant, counsel at page 157 of the transcript 

of the trial testimony of June 11, 2013 stated "he is obviously 

an expert, ... " Thus, Defendant has waived any objection to the 

qualifications of Lewis Colosimo as an expert in the proffered 

field. 

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As to Defendant's argument that the testimony of Mr. 

Colosimo was generic, cumulative, offered without knowledge of 

the facts or circumstances of the instant case, and prejudicial 

as to deny Defendant-Appellant's constitutional right to due 

process and fair trial, the court finds that the testimony of 

Mr. colosi1110 was merely background information designed to give 

the jury an understanding of the process by which the 

distribution of drugs are controlled so that drugs having an 

accepted rnedi cal use may be provided to 1 awfu l consumers but 

preventing the diversion of drugs that have no medical use, or 

having drugs with an accepted medical use from being unlawfully 

diverted to persons having no lawful right to possess or use the 

same. Essentially the purpose of Mr. Colosimo's testimony was 

to explain to the jury the topics. definitions and concepts 

related to drug diversion such as how the scheduling of 

different drugs is determined, how the law provides for a closed 

system of distribution and how a physician must be licensed in 

order to be authorized to prescribe controlled substances and 

that diversion can occur where a physician is not prescribing 

for a legitimate medical reason. 

Defendant cannot argue that Mr. colosimo's testimony was 

prejudicial as he presented no testimony that was specific to 

any conduct of Defendant, nor was he offered for any purpose 

relating directly to any specific conduct of the Defendant. The 

testimony was relevant only for the purpose of giving the jury 

an understanding of the process to prevenl the illegal diversion 

of controlled substances. The assignment of error does not 

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identify why Defendant believes the testimony was prejudicial. 

The evidence was relevant because it aided the understanding of 

the jury as to the process for controlling the distribution of 

drugs and preventing the illegal distribution of drugs, a 

process that the Defendant was subject to and by which he was 

controlled. 

Probative value of evidence exists if there is any tendency 

to make the existence of a material fact more or less probable 

than it would be without the evidence. Any probative value can 

make evidence relevant. when the relevant evidence is 

challenged under Pa.R.E. 403, the extent of its probativi value 

must be considered and balanced against the possibilities of 

inviting resolution on an improper basis or wasting courtroom 

resources, including judicial time and juror patience, and 

against the danger of unfair prejudice or confusion. ~prague v. 

Walter. 441 Pa.Super. 1, 39; 656 A.2d 890, 909 (Pa.super. 1995), 

app.denied, 543 Pa. 695; 670 A.2d 142 (1996). 

Nothing about Mr. colosimo's testimony was inflammatory or 

such that would cause the jury to put the Defendant unfairly in 

a bad light. Even without expert testimony, the average person 

would understand that drugs are controlled and in general 

unavailable with~ut a prescription from a medical doctor. 

Providing a jury with more background information on the process 

for determining how drugs are scheduled, the basis for 

determining different schedules for certain drugs, including the 

drugs that the Defendant was accused of unlawfully prescribing, 

would aid the jury in understanding the evidence that would be 

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c. Admissibility of Data summary 

In Paragraph c of his concise Statement the Defendant 

states that the court erred and abused its discretion in 

admitting into evidence an inaccurate, incomplete, and highly 

prejudicial data summary. 

commonwealth Exhibits 30 through 37 consisted of a summary 

of prescriptions for Schedule II substances written by the 

Defendant relative to the specific patients who were alleged to 

have been illegally prescribed these substances by or. Scott. 

The exhibits constitute a summary of voluminous information 

compiled from other sources. The summary identified the 

pa ti ent, the prescriptions issued to the patient, the date of 

the prescription and the specific drug for which the 

prescription was issued, the date of an office visit, the 

subsequently presented as to the illegal activity of the 

Defendant. The witness clearly acknowledged that he had no 

information as to any illegal activity of the Defendant, but was 

explaining a process relative to which Defendant was subject. 

Essentially, Mr. Colosimo educated the jury on the concept that 

the medications that were the subject of this case were in fact 

controlled substances and not obtainable without a valid 

prescription issued by a licensed physician for a legitimate 

medical purpose. Defendant did not set forth any specific 

reason at trial as to why such testimony should be considered to 

be prejudicial to him. 

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As lon~ us <,Ulll111i11 y chilt L~ 111ec-1. l hi· Ir, 1 ·1uwi119 rrqL1ir~n1C·?tltS. 

they .ir e i.Jthni~,ible: (l) Thi? undr-r l v i n« doc:u1111~11t~ must be 

adm i ~ ":> i IJ IL', »vvn if· t Irey ,ff<• never· ad111 i r t ,,,1; (2) 1 lw 

unrh-r ly111q tlr,ct1111r111r .. , 111lJ~t IJ0 Lou volw11inou", l or umvi:>ni,:111 

in r ou r r n·viPw; (3) llw r h.rr t s n1u51 ~1r1ur,Hl!IY ~~u111rnnf'i~e 

th11 umlerlyi11q dor.11111P11Ls; r'1) Lhr.• ,111111nr1t y 1 har r.s .111cJ th,~ 

pharmacy at which the prescription or p rescri pti ons were fil 1 ed, 

and the dosage unit as in quantity of pills. 

This information was compiled from patient profiles 

obtained from the pharmacy, original prescriptions and the 

patient file maintained by Defendant. Each chart or exhibit 

related to a separate patient. 

The information contained in the summary was clearly 

relevant as it showed exactly the pattern of prescribing that 

Defendant utilized relative to each of the patients that were 

involved in this criminal proceeding. obviously, what the 

doctor prescribed, how often and under what circumstances, was 

the basis for the charges of overprescribing or prescribing not 

in accordance with accepted ~edical criteria themselves. The 

question therefore becomes one of authentication which is 

specifically governed by Pa.R.E. 1006. That rule provides in 

its entirety as follows: 

n.u I~ JOQ_G...~ t.:,LJm.rnar i es tQ pr eve c:.011 ~en i . 

The p r oponen t 111,1,y u~e a summarv , chart, or catcut at ton to 

prove the corvron r ol vu.luminous wr i t i nqs , recordings or 

rhc,Logr.iph!> 1 hnt r.muo t be conveniently examined in court. 

rue p roponeu t rnu ... t tr1t-1l<e the originals or duplicates 

ava i l ah l e for PX,rn1i11t1t1on or copying or both, by other 

part i o s ~H ,1 ,·e~l .011Jhle time and place. And the court may 

o rtle r the p1·c;porrc1nt 10 produce them in court. 

Pa.R.E. 1006 is identical to Federal Rule of Evidence 1006 which 

was analyzed by Judge Lechner of the Federal District court of 

New Jersey as follows: 

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~nited States v. Aertoli, 854 F.supp. 975, 1051 (D.N.J.), Aff'd. 

in part, rev'd in part on other grounds, 40 F.3d 1384 (3d Cir. 

1994). 

F.R.E. 1006 ''recognizes that it often takes a great deal of 

court time to introduce a legion of documents to establish a 

single point". Bertoli, 854 F.Supp. at 1050. "rn addition, 

courts cannot rationally expect an average jury to compile 

summaries and to create sophisticated flow charts to reveal 

patterns that provide important references ... " 

In Pennuor v. Anio~n~t_. co., 666 A.2d 753 (Pa.Commw. 

1995), a summary of spread sheets itemizing the elements of a 

bid, together with the total estimate for a project was held 

admissible. The court noted that the prerequisite for 

admissibility was the testimony of the individual who had 

developed the estimate, who was available for cross examination, 

and who had reconstructed the bid on the spreadsheets, 

sumrnari zing the same vo 1 umi nous i nformati on from which the 

original bid was constructed. rn Keller v. P9rta. 172 Pa.super. 

651; 94 A.2d 140 (1943), records available for a defendant's 

examination but not placed into evidence were appropriately the 

subject of a summary admitted into evidence. 

The court finds that the requirements of Pa.R.E. 1006 have 

been met. All of the information was obtained either from the 

pharmacy patient profiles, the original prescriptions issued by 

the Defendant, and information obtained from the Defendant's own 

underlying documents must have been made available at a 

reasonable time and place for inspection by the opposing 

side; and (5) the person who prepared the charts must have 

been made available for cross-examination. 

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files relating to the subject patients, and the exhibits 

constituted a summary of voluminous information. (Notes of 

Testimony, June 11, 2013, p. 104). It is undisputed that the 

majority of the data in the charts was made available through 

discovery at least three years before trial, including patient 

visits and the dates of the visits. The existence of original 

prescriptions that were confiscated from pharmacies was also 

given in discovery. Defense counsel had also been advised that 

any piece of evidence in the custody of the Commonwealth could 

be examined by making arrangements to come to the office and 

review physical evidence. Pharmacy profiles were referenced in 

search warrants that were disclosed in discovery and pharmacy 

profiles were attached to the reports of the investigating agent 

that were disclosed in discovery. counsel for Defendant at 

trial agreed that there was no issue regarding pharmacy profiles 

stating "vie don't have any problems with pharmacy profiles. 

They are what they are." (Notes of Testimony, June 11, 2013, p. 

104, 105). Furthermore, the patient profiles themselves were 

admitted into evidence without objection. The patients' files 

are marked commonwealth Exhibits 4 through 11. Exhibits 22 

through 28 are patient profiles taken from specific pharmacies. 

Commonwealth Exhibits 13 through 21 are original prescriptions. 

These original prescriptions were admitted over obJection that 

there was not sufficient authentication of the handwriting; 

however, the prescriptions themselves which were included within 

the summary were nevertheless available for inspection by 

Defendant and counsel for oefandant. At trial, Defendant's 

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In subsection D of the concise Statement of Matters 

complained of, the Defendant contends that the court erred and 

abused its discretion in permitting a lay witness, James Embree, 

with no basis and knowledge or fact, to authenticate handwriting 

on certain prescriptions that were supposedly written by the 

Defendant-Appellant. 

comwonwealth agents, including Agent Embree, utilizing 

search warrants, had seized from various pharmacies 

prescriptions that were represented to be the original 

prescriptions on record with the pharmacies written by 

D. /\U tli~nt i ca tJ_ori_Q._l _ _t ldt1, fwr ! t· i rm 011 r>r·1• sc r i Pll.9..M 

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counsel argued that the summary was incomplete because 

prescriptions that were deemed suspect were not included in the 

chart. However, the ones that were ·included in the chart were 

the originnl prescriptions that could be corroborated by the 

doctor's own patient files. To exclude those that could not be 

corroborated worked only to the Defendant's advantage and, to 

the extent that Defendant wished to point out the perceived 

inaccuracy or incompleteness of the chart, he was free to do so 

on cross-examination. The authentication of these prescriptions 

is discussed in section o, infra. However, the court's 

conclusion here is that the summaries were made from admissible 

and original documents that were available to the Defendant for 

inspection prior to and at trial, and which were voluminous, 

therefore meeting the requirements of Pa.R.E.P. 1006. 

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The prosecution of this case was based upon eight patients 

of Defendant. Introduced into evidence were the eight patient 

files of the Defendant, all of which containing entries as to 

summary". 

Defendant. After testimony had already been introduced 

establishing that these were original prescriptions filtered to 

be only ones prescribed by Defendant, Agent Embree corroborated 

that determination by testifying that he had compared all of the 

signatures on these prescriptions and stated that they all 

appeared to be written by the same individual and that they were 

di sti ncti ve because he observed a very di sti net ''capita 1 V" for 

the beginning of his name "Van Scott" and that all of the 

signatures looked sim1lar. 

Although Defendant characterizes the testimony of Agent 

Embree as authentication of Defendant's handwriting, in reality 

the agent was making an observation as a lay person that all of 

the signatures appeared to be similar, an observation that could 

have made just as easily hy the trier of fact. Agent Embree did 

not propose to have any special expertise nor any particular 

familiarity with Defendant's signature other than the fact that 

all of the signatures on prescriptions that were seized and 

provided to him as being Defendant's prescriptions were all 

similar in appearance. 

The real question regarding this issue is whether the 

prescriptions identified as those being of the Defendant were 

properly authenticated, which prescriptions were ultimately 

summarized in the exhibits above referred to as the "data 

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what or. Scott prescribed. In addition, patient profiles from 

each pharmacy utilized by the eight patients were seized. 

Patient profiles are maintained by a specific pharmacy and 

gathers data about any prescription that a patient would have 

filled at that pharmacy. unobjected to testimony of Agent 

Embree established that the pharmacy keeps the data for their 

own business use and that data can be searched for the benefit 

of the agent using filters that allow a search by patient and by 

specific nedications. This data is used to provide statutory 

requirements as to distribution of schedule II drugs by the 

pharmacy. Agent Embree collected patient profiles for the eight 

patients identified in the patient files that were introduced 

into evidence as Exhibits 4 through 11. ne requested patient 

profiles from April 6, 2005 through April 61 2010 relative to 

Defendant, or. van Edward Scott, narrowed to schedule II 

substances. Independent exhibits were offered into evidence for 

I approximately ten pharmacies. Exhibit No. 21 was the patient 

I 

profile received from College Hill Pharmacy relative to patient 

Barbara I7otic, notarized. It showed the prescriptions filled 

for patient Barbara Izotic at College Hill Pharmacy for 

prescriptions written by defendant for the period April of 2005 

through April 2010. This process was repeated for other 

patients for Exhibits 23 through 29, which showed prescriptions 

written by Defendant for the patients who were the subject of 

this criminal prosecution. 

In addition, Agent Embree and other dgents working under 

his supervision seized original scripts from the pharmacies. 

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without objection, these original scripts were identified 

without objection as being original prescriptions seized from 

the various pharmacies by the agents. Notes of Testimony, July 

11, 2013, p. 89, 90 and 91. 

All of these prescriptions which formed commonwealth's 

Exhibits 13 through 21 were identified as being original 

prescriptions written by Defendant for the various patients 

involved in these proceedings with testimony that they had been 

filtered for only ones prescribed by van Scott, all of this 

testimony coming in without objection. An objection came only 

when Agent Embree made the observation that all of the 

signatures on these prescriptions were similar. The only 

prescriptions utilized were prescriptions that matched with the 

pharmacy profiles. 

Pa.R.E. 901(a) provides that to satisfy the requirement of 

authenticating or identifying an item of evidence, the proponent 

must produce evidence sufficient to support a finding that the 

item is what the proponent claims it is. The authenticity of a 

writing offered as evidence is always a preliminary matter for 

the court to determine. ~renner v. Lesher, 332 Pa. 522, 525; 2 

A.2d 731, 733 (1938). The preliminary question for judicial 

determination is whether the testimony, if believed by the jury, 

would establish the identity of the documents or exhibits 

offered. only the trier of fact way decide whether the evidence 

is worthy of any credence. ~ommonwealth v. Brooks, 352 

~3.... Pa.Super. 394, 401, 508 A. 2d 316, 320 (1986) . 

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Here there is sufficient evidence to authenticate the 

original prescriptions as having been issued under the signature 

When the proposed evidence is a document, "the existence of 

some connection between that writing and a particular 

individual'' will have to be shown. The showing depends on "what 

standards are to be applied in determining whether the 

connection has been made to appear. comm_onwea l th v. Harri son, 

290 Pa. 389, 397-98; 434 A.2d 808, 812 (1981) quoting McCormick, 

Law of Evidence, section 218 at 543 (2d Ed. 1972). In 

commonwealth v. Brooks, supra, one of a series of letters 

written by a defendant to the witness was held authenticated by 

the appearance, contents and surrounding events. 

Additionally, a lay person is able to recognize signatures 

or handwriting with which they are familiar. A document can be 

identified under Pa.R.E. 901(b)(2) through the opinion testimony 

of lay witnesses who are familiar with the handwriting or 

signature that appears thereon. The signature on the document 

may provide a basis for identification and admission of the 

document into evidence. Neither expert testimony nor comparison 

to specimens are involved in this method. The identification of 

handwriting is "one of the few instances in which law accepts 

from witnesses belief in facts, instead of facts themselves". 

Travis v. B ,·own, 43 Pa. 9, 12 (1862). The kn owl edge of the 

witness as to the handwriting must have been acquired for some 

purpose other than testifying in the litigatlon. Morgan v. 

First Pennsv1vania sank, 373 Pa. 408, 413-14; 541 A.2d 380, 383 

(1988). 

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In Paragraph E of Defendant's concise Statement Defendant 

alleges that the court erred and abused its discretion by 

denying Defendant-Appellant's Motion for a Directed verdict in 

case No. 255 of 2013, er. or the commonwealth failed to 

introduce any evidence at trial that Defendant-Appellant had the 

of the Defendant. The unchallenged testimony of Agent Embree 

was that these were the original prescriptions of or. Scott 

provided to him by the pharmacies as the result of a warrant 

procedure, which were in fact maintained by the pharmacies. 

These prescriptions matched up with the patient profiles 

maintained by the pharmacies as required by law, and with the 

information contained in the patient files that were in fact the 

patient files maintained by Defendant Scott. In addition, the 

agent testified that all the signatures looked similar and had 

the distinctive characteristic of the "c ap i t a l v" as the 

beginning of Defendant's names and the agent would have been 

familiar with the signature as there were prescriptions that the 

agent received directly from cooperating witnesses who procured 

the prescriptions from or. Scott but instead of processing them, 

gave them directly to the agent. Prescriptions obtained from 

the pharmacies that were not consistent with the patient 

profiles or the patient files were not utilized as evidence, nor 

was information fro~ them utilized in the data summary. All of 

these factors cause the court to conclude that the prescriptions 

were properly authenticated in accordance with Pa.R.E. 901(a). 

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requisite intent necessary to support d finding of guilt on any 

of the charges. 

At case No. 255 of 2013, Cr. Defendant was convicted of and 

sentenced on charges of Dealing in Unlawful Proceeds, a felony 

of the 1st degree, in violation of §Slll(a)(2) of the crimes 

code; Tampering With/Fabricate Physical Evidence, a misdemeanor 

of the 2nd degree, in violation of §4910(1) ot the crimes code; 

and obstructing Administration of Law of other Government 

Functions, a misdemeanor of 2nd dPgree, in violation of §5101 of 

the CriMes code. 

All of these charges related to the actions of Defendant in 

liquidating various financial accounts owned by him after said 

accounts had been seized as the result of forfe·iture proceedings 

arising out of the consolidated case at No. 516 of 2010, er. 

Defendant was arrested on the underlying criminal charges 

at case No. 516 of 2010, er. on Apri ·1 8, 2010. and received a 

copy of grand jury Presentment No. 4 and was provided with 

notice that his financial accounts had been seized and frozen. 

on November 29, 2010, senior Deputy Attorney General Ronald 

Thurner filed a petition for forfeiture and condemnation 

regarding the seized property. The pet·irion was delivered by 

certified mail to Defendant and on December 7, 2010 Scott 

accepted delivery and s1gned the domestic return receipt. As to 

each of the counts in question, the Commonwealth presented 

evidence at trial that Defendant, with knowledge of the seizure, 

took specific action to liquidate the financial accounts in 

question. For example, on August 4, 20)0, Defendant submitted 

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from constructively seized and frozen accounts. 

on January 4, 2013, a search warrant and grand jury 

subpoena was served at Fifth Third Bank at Gulf Tower, 

Pittsburgh, Allegheny county, Pennsylvania for Defendant's 

account records. The records revealed that the account was 

empty and that recent activity included a cashier's check for 

$25,000.00 issued on August 30, 2012 to Defendant's medical 

expert for the criminal trial. The records also snow the 

October 1, 2012 personal check written by Defendant to Blue 

Island LLC for $150,000.00 and a cashier's check to Sharon F. 

two "Requests for Disbursement/Systematic Withdrawal" forms to 

OM Financial Life Insurance company requesting full surrender of 

a cash surrender value of the account. 

on January 31 2010, Defendant submitted an "Annuity 

Distribution Request" for the Lincoln Financial Group requesting 

a total surrender of the policy. 

on August 3, 20101 Defendant submitted a "Request for 

Withdrawal" form to symetra Financial requesting a total 

withdrawal of the entire amount from the annuity account. 

on October 1, 2012, an "in camera motion hearing was 

conducted before the undersigned judge wherein the court was 

advised by the commonwealth that the Defendant was suspected of 

liquidating seized accounts. The court scheduled a hearing on 

the motion for October 151 2012. on the same day that this 

court was advised of the suspected theft. Defendant issued a 

check for $150,000.00 to slue Island LLC from his account at 

Fifth Third Bank that contained monies that had been transferred 

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Scott for $27,243.22 on October 10, 2012 that effectively 

emptied the account. 

The commonwealth evidence showed that Defendant's actions 

,n liquidating seized and frozen accounts was intentional and 

knowing, and done after he had been served with notice that the 

accounts were seized and frozen. To the extent that the 

Defendant offered explanations suggesting that he did not 

understand that he was prohibited from having access to these 

monies, and therefore did not have the requisite intent, such 

evidence was for the jury to evaluate, and for the jury to 

accept or reject. As a matter of law, there was sufficient 

evidence of record for the jury to conclude that the Defendant 

acted with the requisite intent. 

The offense of dealing and proceeds of unlawful activities 

in violation of §Slll(a)(2) of the Crimes code requires evidence 

that a person conducted a financial transaction with knowledge 

that the property involved represents the proceeds of unlawful 

activity and that the transactions designed in whole or in part 

to conceal or disguise the nature, location, source, ownership 

or control of the proceeds of unlawful activity. Ample evidence 

was presented that Defendant made large amounts of money by 

unlawfully dispensing controlled substance, and that the actions 

complained of relative to these proceeds constituted financial 

transactions, engaged in by liquidating the accounts in question 

and converting them to his own use, and that in so doing he 

concealed and disguised the nature, location, source, ownership 

and control of these proceeds. The evidence shows that he 

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engaged in the financial tractions knowingly and intentionally, 

that he knew that he was dealing with assets that were frozen 

and forfeited, and he certainly knew that the assets represented 

proceeds of his unlawful activity as he himself engaged in this 

activity and controlled his own finances. 

As to the offense of Tampering With/Fabricate Physical 

Evidence, in violation of §4910(1) of the crimes code, the 

elements are that Cl) the Defendant knew that an official 

proceeding or investigation was pending or about to be 

instituted; (2) the Defendant altered, destroyed, concealed or 

removed an item; and (3) the Defendant did so with the intent to 

impair the verity or availability of the item to the proceeding 

or investigation. commonwealth y, Yasinour, 957 A.2d 734 

(Pa.Super. 2008), appeal denied 980 A.2d 111, 602 Pa. 658. 

Thus, in commonwealth v. Neckeraue.r., 617 A.2d 421, 1281 

Pa.super. 255 (1992), evidence presented at a preliminary 

hearing was sufficient to establish a prima facie case that the 

Defendant unlawfully tampered with physical evidence, based upon 

his conduct in removing a motorhome that was the focus of a 

police investigation. It could be inferred from testimony 

presented that the defendant intended to conceal the motorhome 

and impair its availability in the police investigation. Here, 

the fact finder could infer that the Defendant intended to 

remove the proceeds of his illegal activities in order to 

conceal their whereabouts and impair the availability of these 

proceeds as they related to the criminal investigation and 

prosecution against him. 

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Following the gui1ty verdicts entered June 10. 2013, the 

Defendant filed a Petition in the Interest of Justice by the 

Request for a Mistrial. Defendant asserted that a mistrial was 

warranted due to allegations relative to Juror No. 12 who 

In Paragraph G of Defendant's concise Statement, Defendant 

alleges that the court erred and abused its discretion in 

failing to grant Defendant-Appellant's post-trial motion for 

mistrial. 

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The offense of Obstructing the Administration of Law or 

Other Governmental Function, a violation of §5101 of the Crimes 

code, occurs where a person intentionally obstructs, impairs or 

perverse the administration of law or other government function 

by any unlawful act. The facts of this case are very similar to 

Commonwealth v. Neckerauer, supra, where a prima facie case was 

established on evidence that the defendant took a motorhome to 

another state for storage after being informed that police were 

investigating the disappearance of a person believed to be using 

the motorhome. Here, as in Neckerauer, Defendant was engaged in 

concealing assets that were the focus of a police investigation 

and a part of a prosecution against him. The evidence presented 

show that he knowingly liquidated these assets, effectively 

removing them from the reach of the commonwealth. thereby 

obstructing the commonwealth's efforts to obtain the forfeiture 

of the same. 

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allegedly should not have been seated as a juror. Defendant 

alleged that following the verdict, defense counsel received a 

call from Stanely T. Booker, Esq., a defense attorney practicing 

in Lawrence County and who ·is the ex-husband of Juror No. 12, 

Chastity Booker, who related that Juror No. 12 was not 

forthright in her answers to voir dire questions and that this 

was done in an effort to guarantee herself being chosen as a 

juror. It is further alleged that Juror No. 12 failed to stand 

and resrond to the question "Do you or anyone close to you ever 

been charged with a crime, other than a traffic violation?"; 

that the juror has a brother with criminal history which she 

failed to disclose as well as him having a continuing addiction 

to opiates, in particular, oxycodone, leaving the juror with a 

''profound negative opinion regarding prescribing prescription 

medication''; that the juror failed to stand and respond in the 

affirmative to the question: "Have you or anyone close to you 

ever worked in law enforcement of the justice system?" when her 

ex-husband is a criminal defense attorney who practices in 

Lawrence county; that the juror failed to stand and respond to 

the question ''Do any of you know the Defendant, van Edward 

Scott?''; that the juror had reason to know of or. Scott and 

issues surrounding Or. Scott's prescribing practices based upon 

Attorney Booker's representation of the oefendan~ in the matter 

of commonwealth v. Jeffrey Hogue, No. 562 of 2007, er.; and 

finally, that the juror has a built-in bias against prescription 

medication and the prescribing of said medication that is of 

such a personal nature that it can only be discussed in court to 

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protect the identity and sanctity of the outside parties 

involved. Defendant contends that had the juror been forthright 

and honest to any of the questions posed to her, the Defendant 

would have used a prcemptory challenge which would certainly had 

been granted by the court. 

Based upon the foregoing petition, the court scheduled a 

hearing at which both Attorney Booker and the juror, chastity 

Williams, testified. In addition, the notes of testimony of the 

voir dire proceedings relative to Juror No. 12 were transcribed. 

Following a hearing, the court specifically found the following 

facts: 

The notes of testimony of the voir dire proceedings 

established that Juror No. 12 specifically disclosed that her 

brother is a heroin addict; that he is in prison; that her exhusband is a defense attorney; that her aunt is an attorney 

general; that she checked "yes" to Question ~o. 6 of the Juror 

Information Questionnaire which read 'Have you or anyone close 

to you ever been an eyewitness to a crime?' because he brother 

is a heroin addict and she had heard stories; that she can keep 

an open mind and that the aforesaid experiences in her life 

would not influence her vote in favor of the commonwealth or the 

defense; that the fact that her brother is a heroin addict would 

not affect her ability to be a fair an~ impartial juror in the 

case. The court further found that although the juror did not 

reveal that she had received a summary citation for retail theft 

approximately twenty years ago, the juror had never been 

arrested and the summary citation had been expunged causing her 

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Jn its October 24, 2013 order deny;ng the petition, the 

court found that the matter is governed by the standard set 

forth in McDonough Power Equipment Inc. v. Greenwood, 464 u.s. 

548, 104 s.ct. 845, 78 L.Ed.2d 663 (1984), such case holding 

that, in order to grant a new trial, the burden is on the 

defendant to demonstrate that the juror failed to answer 

honestly a material question on voir dire, and then further show 

that a correct response would have provided a valid basis for a 

challenge for cause. In McDonouqh1 a products liability action 

resulted in a judgment entered upon a jury verdict for the 

The court found based upon the testimony presented that the 

juror harbors no bias against prescription drugs or doctors that 

prescribe them and that the defense failed to prove that the 

juror had any prior knowledge of Defendant or his prescribing 

practices. The court also found that the juror had no prior 

knowledge of trial witness Shawn Thompkins, an issue which was 

raised by the defense at the hearing. 

In general, the court found that the defense failed to 

prove a basis to challenge Juror No. 12 for cause or that she 

had otherwise failed to answer all of the questions put to her 

honestly and in a forthright manner and that there was no basis 

for a mistrial. 

to believe that it was not required to be disclosed. The court 

found that the juror honestly believed that she was not required 

to disclose a summary conviction and that if it had been 

<lisclosed it would not have provided a valid basis for challenge 

for cause. 

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The court further stated that a touchstone of a fair trial is an 

impartial trier of fact, "A jury capable and wi Tl i nq to decide 

the case solely on the evidence before it." Citing Smith v. 

t>hi I I Ir,',, 455 l,.S. 209, 217, 102 s.ct. 940, 946, 71 L.Ed.2d 78 

r1~8~1. The supreme court further stated that a voir dire 

plaintiff. Defendants moved for a new trial on the basis that a 

juror failed to respond affirmatively to a question on voir dire 

seeking to illicit information about previous injuries to 

me~bers of the jurors' immediate family. During voir dire, 

prospective jurors were asked whether they or any members of 

their immediate families had sustained any severe injury due to 

an accident. Ronald Payton, who eventually became a juror, did 

not respond to the question. After trial I defendants filed a 

motion that asserted that information was received that Mr. 

Payton's son may have been injured at one time, a fact which had 

not been revealed during voir dire. Following the motion, an 

affidavit was produced by a Navy recruiter, which asserted that 

Mr. Payton's son had been injured in the explosion of a truck 

tire. communication with Juror Payton revealed that his son had 

received a broken leg as the result of an exploding tire and 

that this accident had no effect on him as accidents are a part 

of life and he did not regard the broken leg as a severe injury. 

In upholding the order of trial court which had denied 

relief, the supre~e court noted that it has long held that a 

litigant "is entitled to a fair trial but not a perfect one, for 

there are no perfect trials." Brown v. uniteg_states, 411 U.S. 

223, 231-232, 93 S.Ct. 1565, 1570-1571, 36 L.Ed.2d 208 (1973). 

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McDonough, 464 U.S. at 556, 104 S.Ct. at 850. 

Here, the proof at the hearing on the mistrial motion fell 

far short of the allegations made by the Defendant. The record 

of the voir dire proceeding clearly showed the juror had 

disclosed the inforrration regarding the juror's brother being an 

examination serves to protect that right by exposing possible 

biases, both known and unknown, on the part of potential jurors; 

demonstrated bias in the responses to questions on voir dire may 

result in a juror being excused for cause; hints of bias not 

sufficient to warrant challenge for cause may assist parties in 

exercising their peremptory challenges. The necessity of 

truthful answer by prospective jurors if this process is to 

serve its purpose is obvious. In denying the defendant's 

requested relief, the court held that to invalidate the result 

of a lengthy trial because of a juror1s mistaken, though honest 

response to a question, is to insist on something closer to 

perfection than our judicial system can be expected to give. 

The court stated that "it ill serves the important end of 

finality to wipe the slate clean simply to recreate the 

peremptory challenge process because counsel lacked an item of 

information which objectively he should have obtained from a 

juror on voir dire examination." The supreme court then went on 

the specifically hold as Follows: 

We hold that to obtain a new trial in such a situation, 

rl f)dl ty mus r first tJe1111:.H1Slt~c1tC Lll,\t' cl jtWOI' failed to 

~11..,wer hurH.!SLIV ., me r e r ia l uues r ton on vo i r dire, and 

L1111n ru, U,c, •.hnw I hat ,1 t nr rv«, l r,~-;puns~ wou l d have 

111·ov1clPd t\ v.r l i rl uas i s rm· .. 1 c.h,ill~nyr for c ause . The 

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addict, having been involved in the criminal justice system and 

having been addicted to heroin and that not only her ex-husband 

but also her aunt were attorneys. virtually all of the matters 

raised by the Defendant were accurately addressed on the record 

with the juror and no evidence was presented as ta her having 

any bias or impartiality regarding any issue in this case or any 

specific l<nowl edge of Defendant or any witness. Thus, the 

Defendant failed to prove virtually all of his allegations 

relative to this juror. 

The only arguable issue raised by the Defendant was that 

the juror did not disclose a summary citation for retail theft 

received approximately twenty years ago. However, the juror's 

explanation was adequate. She had never been arrested and the 

summary citation had been expunged causing her to believe that 

it was not required to be disclosed. The court specifically 

found that this juror honestly believed that she was not 

required to disclose a summary conviction and that if it had 

been disclosed it would not have provided a valid basis for 

challenge for cause. Thus, the McDonough standard for a new 

trial in this circumstance was not met. Defendant has failed to 

prove that the juror failed to answer honestly a material 

question on voir dire. The expunged twenty-year-old citation 

was clearly not material to her ability to be impartial in this 

case. The juror felt that she had answered honestly because of 

the expungement and lack of arrest. Furthermore, a response 

that would have disclosed the summary citation would not have 

provided a valid basis for a challenge for cause. 

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The court here concludes that under the Mcoonougb standard, 

Defendant is not entitled to a new trial based upon any 

information or lack of information given by Juror No. 12. 

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