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Commonwealth v. Paolino12/2/2003
e defendant made some people pain free, maybe free of just about every sensation, but that was not good or proper medical practice, but evidently it did make for satisfied customers who were willing to come back and pay to get more prescriptions.
N.T., 6/20/02, at 68-70.
21 Finally, the court stated reasons for the length of sentence:
I perceive that if this defendant is not incarcerated, there is no good reason to believe that he will not find some way to harm others if it is in his interest to do so.
Further, any less sentence that I impose in this case would deprecate the terrible seriousness of the damage which this defendant has done by his conduct, whether intended or not.
Finally, the sentence I am going to impose is intended to be a deterrent. Let me observe that I don't believe as a general matter that sentences either imposed by a judge in a particular case or mandatory sentences enacted as laws serve as deterrents. Most criminals are impulsive, with little ability to foresee the consequences of their actions, and most harbor a generally stupid belief that they won't get caught.
In this case however, the defendant was a practicing physician. He committed his crimes as a physician. His professional position enabled him to deliver drugs or see to it that they were delivered with an expectation of impunity. He has the gall to this day to claim that his conduct was within the scope of legitimate professional judgment, and it took an investigation of vast extent to prove to the satisfaction of a jury that his conduct was not within the scope of legitimate medical judgment but constituted criminal conduct.
N.T., 6/20/02, at 71-72.
22 We have held that "did not consider" or "failed to consider" arguments do not merit grant of review. Commonwealth v. Montalvo, 641 A.2d 1176 (Pa. Super. 1994). A fortiori, they lack substantive merit. A sentence outside the guidelines may be affirmed if the departure is reasonable. Commonwealth v. Johnakin, 502 A.2d 620 (Pa. Super. 1985); Commonwealth v. Darden, 531 A.2d 1144 (Pa. Super. 1987). The standard we apply is whether the court's sentence outside the guidelines is unreasonable. 42 Pa.C.S.A. §9781(c); Commonwealth v. Rooney, 442 A.2d 773 (Pa. Super. 1982); Commonwealth v. Capellini, 690 A.2d 1220 (Pa. Super. 1997).
23 After a careful review of the record and the unique circumstances as presented in this case, we conclude that the sentence imposed is not impermissibly excessive.
24 Finally, it is argued that appellant was improperly charged with distribution under the general provision of §780-113(30) rather than the more specific §780-113(13) & (14) which relate to practitioners or professionals. Appellant relies on Commonwealth v. Brown, 29 A.2d 793 (19432). The Commonwealth cogently argues that Brown involved two statutes whereas presently we have distinct provisions under a single statute. As Paolino was unlicensed, he could be charged with delivering under the general provision (30) which specifically references unregistered or unlicensed distributors. He was also exposed to prosecution under (13) and (14) under the theory that he acted as an accomplice to his co-defendant, a licensed practitioner. There is no merit to appellant's final argument which also appears to be waived as not contained in the issues sought to be raised on appeal. Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998).
25 Judgment of sentence affirmed.
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