A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

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The Superior Court of Pennsylvania has decided the matter of COMMONWEALTH of Pennsylvania v. Richard A. BROWN, Appellant, 2012 WL 3025112, 2012 PA Super 150, 1319 EDA 2011 (July 25, 2012). This was an appeal from a Judgment of Sentence of Judge Nagle of the Court of Common Pleas of Chester County, Criminal Division, CP–15–CR–0001655–2008. The panel was composed of JudgesBOWESDONOHUE, and COLVILLE. Judge Bowes wrote the Opinion for all three judges.

Appellant was tried on 16 counts of violating the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780–113(a)(14). According to the Commonwealth, Appellant was engaged in a scripts-for-cash scheme conducted from his home, which served as his office. He provided prescription drugs to six patients between June 1, 2002 and June 30, 2004 while he was a licensed practicing physician. Judge Nagle sentenced Brown to a term of eight to sixteen years imprisonment.

Judge Bowes ruled that the trial court had erred in allowing the introduction of evidence of bad acts occurring in and before 1984 under the common lawres gestae exception, and therefore reversed and remanded for a new trial.

Based on the pertinent statute of limitations, the court had dismissed pretrial all charges related to Appellant’s alleged procurement of his medical license through fraud. However, the Commonwealth argued that in the late 1970’s and early 1980’s, Appellant fraudulently obtained his medical degree and license. It asserted that this evidence was part of the history and chain of events of the case at bar, and was necessary to prove that Appellant either prescribed drugs in bad faith in the course of his professional practice or did not act in accordance with treatment principles accepted by a responsible segment of the medical profession. The trial court agreed and authorized the introduction of the evidence as to how Appellant obtained his medical degree and license.

The central theme of the prosecution’s opening statement, significant portions of its case, and closing argument revolved around Appellant’s alleged improper receipt of his medical degree in the late 1970’s and early 1980’s, as well as his submission of forged or altered documents to obtain his medical license.

On appeal, the Appellant contended that the trial court had erred in permitting this evidence regarding allegations of fraud by Appellant in obtaining his medical license and testimony regarding his alleged altering of academic records relating to his attainment of his medical degree in the late 1970’s and early 1980’s. The trial court had permitted the introduction of the evidence pursuant to the common law res gestae exception.

Admission of distinct crimes may be proper where it is part of the history or natural development of the case, i.e., the res gestae exception. Here, the Appellant asserted that the Commonwealth’s presentation of evidence for the first two and one-half days of trial respecting his alleged submission of forged or altered medical school transcripts, after charges related to these actions were dismissed, was irrelevant to the charges on which Appellant was being tried. While acknowledging that prior bad acts may be admitted under the res gestae exception, Appellant argued that this principle is applicable only where the evidence completes the story of the crime by proving its immediate context of happenings near in time and place. Appellant also maintained that even if the evidence is relevant, its prejudicial nature far outweighed its probative value. In this respect, Appellant avered that the Commonwealth did not need this evidence to prove that decades after the alleged bad acts, he improperly prescribed prescription medications to six patients. Moreover, Appellant highlighted that the drug charges did not grow out of nor were they caused by his purported forgery of medical transcripts and records.

Since the alleged forged medical transcripts and related records did not provide context near in time or place respecting Appellant’s treatment of patients in 2002 through 2004, the evidence was improperly admitted. As a general rule, evidence of participation in another independent and distinct crime cannot be received simply for the purpose of proving his commission of the offence for which he is on trial. It cannot be received to impeach his general character, nor merely to prove a disposition to commit crime. Yet under some circumstances, evidence of another offence by the defendant may be given, such as to establish identity; to show the act charged was intentional and willful, not accidental; to prove motive; to show guilty knowledge and purpose, and to rebut any inference of mistake; in case of death by poison, to prove the defendant knew the substance administered, to be poison; to show him to be one of an organization banded together to commit crimes of the kind charged; and to connect the other offence with the one charged, as part of the same transaction.

The history of the res gestae exception demonstrates that it is properly invoked when the bad acts are part of the same transaction involving the charged crime. There is no case where the sole exception to allowing the bad acts evidence was theres gestae/ natural development exception and the evidence was not close in time and place from the acts charged. Judge Bowes wrote that it stretches theres gestae exception beyond its breaking point to consider Appellant’s acts, in and before 1984, related to gaining a medical degree and license, as part of the natural sequence of events that led to Appellant allegedly dealing prescription drugs illegally from 2002 through 2004. The alleged bad acts were so far removed from the charged crimes that it strains credulity to consider them as a natural part of the history, chain, or sequence of events in the case when considering the exception in light of its history. The bad acts do not establish Appellant’s relationship with his patients, nor are they part of the same transaction or interwoven in such a manner that failing to elucidate the jury to the information would render the case unintelligible. The prior alleged crimes are dissimilar in kind and purpose to the drug crimes and have no direct connection to the events that transpired in 2002 through 2004.

Even if the bad acts evidence fell within the scope of the res gestae /history exception, the probative value of the evidence was outweighed by its prejudicial nature. The crimes were not similar and the time lapse between the crimes was extensive. Furthermore, the need for the prior bad acts evidence was questionable where the Commonwealth presented expert testimony regarding Appellant’s actual treatment of the patients involved and the testimony of the patients themselves. Allegations of fraud permeated the entire trial, consuming much of the prosecution’s opening statement and almost three days of testimony. Therefore, the trial court abused its discretion in admitting the bad acts evidence and the Appellant was granted a new trial.

The Law Firm of Lamb McErlane of West Chester represented the Appellant.

The Free Student Research Center is now OPEN. It will be open on Mondays, Wednesdays and Fridays, from 9AM to 3PM. The Free Student Research Center is available for use by attorneys who are current members of the Philadelphia Bar Association’s Criminal Justice Section and who are court-appointed to the case for which they seek research (either state or CJA!). The Free Student Research Center is located in the Jack Myers Memorial Lounge on the Third Floor of the CJC.

You may make a research request in person or via the Criminal Justice Section website at http://www.philadelphiabar.org/page/CJResearch?appNum=1

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