Com. v. Grujich (memorandum)
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J-S75013-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. PETER A. GRUJICH, Appellant No. 97 WDA 2012 Appeal from the Judgment of Sentence November 30, 2011 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0016127-2010 BEFORE: STEVENS, P.J., MUNDY, J., and FITZGERALD, J.* MEMORANDUM BY STEVENS, P.J. Filed: January 15, 2013 This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Allegheny County after Appellant Peter A. Grujich was convicted of ten counts of Acquisition by Misrepresentation of a Controlled Substance,1 ten counts of Distribution by Practitioner in Bad Faith,2 and one count of Theft by Deception False Impression.3 Appellant claims his convictions were against the weight of the evidence. We affirm. The trial court aptly summarized the factual procedural history of this case as follows: ____________________________________________ * 1 2 3 Former Justice 35 Pa.C.S.A. § 35 Pa.C.S.A. § 18 Pa.C.S.A. § specially assigned to the Superior Court. 113(a)(12). 113(a)(14). 3922(a)(1). background and J-S75013-12 This matter arises out of the arrest of [Appellant] who, at the time of the occurrence, was a pharmacist employed by Rite Aid Pharmacy. The Commonwealth alleged that [Appellant] had acquired and distributed over 2,800 hydrocodone pills, a Schedule II controlled substance, from Rite Aid on 10 separate occasions between August 1, 2009 and January 4, 2010. At trial [Appellant] stipulated that the Commonwealth could proceed by proffer of the evidence, as the facts regarding [Appellant s] acquisition and distribution of the hydrocodone were not in dispute. Instead, [Appellant] intended to rely on an affirmative defense. The Commonwealth then proffered the testimony of Joel Edwards, a loss prevention manager for Rite Aid Pharmacy, who investigated 10 separate transactions or prescriptions dispensed by [Appellant]. It was determined that the 10 prescriptions, some in his own name and some in his wife s name, were never written or approved by a physician. Each of the fraudulent prescriptions purportedly originated from a local physician s office, however, it was confirmed that neither the physician nor anyone in his office ever authorized the prescriptions. In addition, Rite Aid was required to reimburse an insurance company $2,009.82 for the 2,840 hydrocodone pills fraudulently obtained and dispensed by [Appellant]. The Commonwealth further established that when Mr. Edwards confronted [Appellant] concerning his investigation, [Appellant] admitted that he had fraudulently filled the prescriptions under his name and his wife s name. [Appellant] prepared a written statement on July 23, 2010 in which he stated he obtained the prescriptions because his brother had undergone a double knee replacement and bypass surgery, was in severe pain, and had no prescription coverage for pain medication. [Appellant] contended that he wrote the prescriptions in order to obtain the medications for his brother until his brother s pain was relieved. The Commonwealth also proffered the testimony of Officer Albert Elway of the Ross Township Police Department who would testify that he responded to the Rite Aid Pharmacy on July 23, 2010 at which time he spoke with [Appellant] who indicated that he was willing to cooperate in the investigation. [Appellant] was given his Miranda warnings and executed a Miranda waiver form. At that time, [Appellant] wrote out a written statement ¦ in which he again stated that he had fraudulently obtained the prescriptions in order to assist his brother, who had knee replacement surgery and undergone quadruple bypass surgery -2- J-S75013-12 and was without insurance to purchase pain medications. [Appellant] stated he started filling the prescriptions in August of 2009 and originally was going to stop in November of 2009. However, his brother was in a motor vehicle accident in November of 2009, which aggravated the condition of his knees and, therefore, [Appellant] continued to fill the prescriptions for his brother until January of 2010 and then stopped. [Appellant] further indicated that he filled the prescriptions as phone in prescriptions as a doctor s signature was required. [Appellant] further contended that both his brother and wife were unaware of the fraudulent prescriptions and that [Appellant] never used or sold the medications. In his defense, [Appellant] asserted the affirmative defense of duress. [Appellant] testified, contrary to the statements given to the Rite Aid investigator and the Ross Township Police, that he, in fact, fraudulently obtained the prescriptions as a result of physical threats by an individual that he knew from prison, John McCleavey. As background, [Appellant] testified that he obtained his pharmacy degree in 1982 and then worked for various pharmacies in Pennsylvania, Virginia, and the District of Columbia. [Appellant] also claimed that during the summer of 1979, he was assaulted at knife point by five individuals who beat and raped him. As a result, he indicated that he suffered from severe and continuing post traumatic stress disorder (PTSD). [Appellant] testified that as a result of his PTSD, he was subject to flashbacks in certain circumstances, which led him to drink in excess. His excessive drinking led to six DUI convictions which resulted in his incarceration in SCI Houtsdale facility. [Appellant] testified that during his incarceration, he met another inmate, John McCleavey, with whom he developed an acquaintance. McCleavey was apparently serving a sentence for some type of aggravated assault. ¦ [Appellant] testified that in February 2001 ¦ he again became employed as a pharmacist. At an unspecified time thereafter, [Appellant] coincidentally met McCleavey while walking in Pittsburgh and the two spoke, at which time McCleavey asked [Appellant] for his phone number, which [Appellant] gave him. Sometime later in the summer of 2009, [Appellant] contends that McCleavey approached him unexpectedly outside [Appellant s] place of employment and told him that he needed money for an attorney, as he was facing charges for armed robbery, and ¦ McCleavey wanted [Appellant] to provide him the drugs. [Appellant] testified that at that time -3- J-S75013-12 he told McCleavey that he would not provide him with the drugs. However, McCleavey showed [Appellant] a gun and McCleavey, who knew about the prior alleged assault and rape of [Appellant], had arranged for others to assault [Appellant] in a similar manner. [Appellant] claimed that McCleavey also threated his wife, brothers, nieces, and nephews. [Appellant] testified he did not go to the police because of McCleavey s threats. However, it was only after a month or a month and a half that [Appellant] eventually relented and provided the drugs to McCleavey. [Appellant] acknowledged that the statements that he gave to the investigator and to the police were false, claiming that he was scared and did not want them to know that McCleavey was involved. [Appellant] claimed that he took a real live situation with my brother and his knee replacement and accident and twisted it to cover the prescriptions. On cross-examination, [Appellant] acknowledged that despite the fact that he knew of McCleavey s conviction for violent offenses, he willingly gave his cell phone number to McCleavey when he encountered him some years later. He again acknowledged that he never told the investigator or the police of McCleavey s involvement and lied about supplying the drugs to his brother. [Appellant] requested the Court take judicial notice of the prior criminal record of McCleavey, as well as a certified copy of a sentencing order indicating that McCleavey had been sentenced for an offense in Allegheny County on April 6, 2011, to 10 to 20 years [imprisonment]. ¦ After considering all the evidence, [Appellant] was found guilty on all counts. Trial Court Opinion, 7/12/12, at 2-5 (citations omitted). On November 30, 2011, the trial court sentenced Appellant to an inexplicably lenient sentence of seven years probation and ordered him to undergo evaluations for mental health issues and drug/alcohol abuse. On December 12, 2011, Appellant filed a timely post-sentence motion, which the trial court subsequently denied. This timely appeal followed. -4- J-S75013-12 Appellant s sole claim on appeal is that his convictions were against the weight of the evidence. When presented with a weight of the evidence claim, our standard of review is well established: the weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the lower court's verdict if it is so contrary to the evidence as to shock one's sense of justice. Moreover, where the trial court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim. Commonwealth v. Shaffer, 40 A.3d 1250, 1253 (Pa. Super. 2012) (quoting Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 409 (2003)). After reviewing the record, the parties briefs, and the relevant case law, we find Appellant s challenge to the weight of the evidence to be meritless. The trial court found Appellant s claim that he acted under duress was incredible and [was] directly contradicted by the evidence of his prior inconsistent statements as produced by the Commonwealth. Trial Court Opinion, 7/12/12, at 7-8. We agree with the trial court s thorough analysis in its July 12, 2012 opinion, which we adopt as our own for purposes of further appellate review. Accordingly, we find the trial court properly exercised its discretion in finding Appellant s convictions were supported by the weight of the evidence. -5- J-S75013-12 Judgment of sentence affirmed. -6-
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