COMMONWEALTH OF PENNSYLVANIA v. WAYNE RICHARD GLENN
No. 1595 WDA 2019
IN THE SUPERIOR COURT OF PENNSYLVANIA
MAY 29, 2020
2020 PA Super 128
BEFORE: SHOGAN, J., MURRAY, J., and STRASSBURGER, J.*
J-A09029-20; Appeal from the Judgment of Sentence Entered October 4, 2019; In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0000158-2019
OPINION BY MURRAY, J.: FILED MAY 29, 2020
The trial court set forth the relevant facts as follows:
On the evening of [November 15, 2018], police were dispatched in response to a call from Appellant‘s father, who had found Appellant‘s vehicle parked in the driveway of the father‘s home but could not find Appellant. Upon the arrival of the police, Appellant was observed climbing up a steep hill that he had previously fallen down.
Appellant stated that he had crossed the road at the bottom of the driveway leading to his parents’ home, intending to retrieve their mail from their rural mailbox on the other side of the road. Behind the mailbox was a steep embankment, and in the process of getting the mail, he fell down [the] embankment and struggled at length to climb back up the steep, slippery embankment.
Appellant showed significant signs of impairment and was eventually arrested by the police and taken [to] a local hospital for a voluntary blood draw. Appellant‘s blood contained alcohol, Fentanyl, and Norfentanyl, which is a metabolite of Fentanyl.3 As explained by Appellant, he [] had a surgical procedure [performed] on his back the previous day and had been prescribed a Fentanyl patch that was placed on his arm.4 Appellant stated that he had been wearing the Fentanyl patch the entire day of his arrest.5
[Laboratory testing of Appellant‘s blood revealed that he had a blood alcohol
content] of .23%. Appellant testified [at trial] that he arrived at his parents’ home long before his vehicle was discovered, and during the intervening period of time, he drank copious amounts of beer in his parents’ garage without anybody‘s knowledge. Appellant explained that he wanted to build up his courage before informing his parents that his father had incurable cancer.
Trial Court Opinion, 12/7/19, at 2 (footnotes added).
The Commonwealth charged Appellant with DUI-metabolite, as well as two additional DUI counts under separate statutory sections, and three summary offenses. The matter proceeded to a non-jury trial, at the close of which the trial court found Appellant guilty of DUI-metabolite, but acquitted him of the remaining charges.6
On October 4, 2019, the trial court sentenced Appellant to serve 90 days to 1 year in a county correctional facility, followed by two years of probation. The court also imposed a fine of $1,000 and ordered Appellant to pay court costs. Appellant filed a timely notice of appeal, followed by a court-ordered Pennsylvania Rule of Appellate Procedure 1925(b) concise statement.
Appellant now presents one question for our review: “Should
Appellant‘s issue requires us to engage in statutory interpretation; accordingly, “we must interpret the relevant statutory provisions to ascertain the legislative intent. Because we are addressing a question of law, our standard of review is de novo and our scope is plenary.” Commonwealth v. Griffith, 32 A.3d 1231, 1235 (Pa. 2011); see also
The applicable statute reads:
(d) Controlled substances. – An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:
(1) There is in the individual‘s blood any amount of a:
(i) Schedule I controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act;
(ii) Schedule II or Schedule III controlled substance, as defined in the Controlled Substance, Drug, Device and Cosmetic Act, which has not been medically prescribed for the individual; or
(iii) metabolite of a substance under subparagraph (i) or (ii).
In this case, the trial court held that under the plain language of subsection (d)(1)(iii), supra, it is per se illegal for an individual to operate a motor vehicle with
The legislature expressly chose to include in subparagraph [(d)(1)](ii) the language, “which has not been medically prescribed,” but the legislature chose not to include that same language in subparagraph (iii) when prohibiting metabolites of Schedules I, II, or III controlled substances. … Also, the legislature‘s use of the disjunctive “or” between subparagraphs (ii) and (iii), and the legislature‘s decision to structure the statute so that there are alternative subparagraphs, shows an intent that they stand alone to the extent possible.
Id. (paragraph break omitted).
At the outset, we recognize the directive of the Pennsylvania Supreme Court in ascertaining legislative intent:
In general, the best indication of legislative intent is the plain language of the statute. Commonwealth v. Fithian, 599 Pa. 180, 961 A.2d 66, 74 (Pa. 2008). “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”
1 Pa.C.S. § 1921(b) . When the statutory text is not explicit, we may consider, inter alia, the mischief to be remedied by the statute, the object to be attained, and the consequences of a particular interpretation.1 Pa.C.S. § 1921(c) . We may not add words or phrases in construing a statute unless the added words are necessary for a proper interpretation, do not conflict with the obvious intent of the statute, and do not in any way affect its scope and operation.1 Pa.C.S. § 1923(c) ; [Commonwealth v.] Hoke, [962 A.2d 664,] 667 [(Pa. 2009)]. … Finally, we presume that the General Assembly does not intend a result that is absurd or unreasonable.1 Pa.C.S. § 1922(1) ; Commonwealth v. Bavusa, 574 Pa. 620, 832 A.2d 1042, 1050 (Pa. 2003).
Commonwealth v. Segida, 985 A.2d 871, 874-75 (Pa. 2009). Additionally, “every portion of statutory language is to be read together and in conjunction with the remaining statutory language, and construed with reference to the entire statute as a whole.” Commonwealth v. Office of Open Records, 103 A.3d 1276, 1285 (Pa. 2014) (citations omitted).
Appellant emphasizes that when he was arrested, he had on his person a lawfully-obtained prescription for the Fentanyl patch, which caused Norfentanyl to be released into his bloodstream while he was metabolizing the Fentanyl. See Appellant‘s Brief at 9. Appellant asserts:
The trial court constrained to read section 3802(d)(1)(iii) to proscribe driving while any amount of a metabolite of a prescribed drug is in [a d]efendant‘s blood, a reading which would appear to be inconsonant with the legislature‘s intent not to criminalize driving with the prescribed controlled substance itself [in the motorist‘s blood, i.e., in reference to section (d)(1)(ii)].
Id.; see also
Upon review, we conclude that the trial court‘s interpretation of subsection 3802(d)(1)(iii) leads to an absurd and unreasonable result, which we presume the legislature did not intend. See
We are cognizant that “it is not for the courts to add, by interpretation, to a statute, a requirement[, or an exception,] which the legislature did not see fit to include.” Commonwealth v. Wright, 14 A.3d 798, 814 (Pa. 2011) (citation omitted). However, the language of subsection 3802(d)(1)(iii) must be read in conjunction with the remainder of the statute, including the language in subsection 3802(d)(1)(ii), which provides an exception when the Schedule II or III controlled substance is medically prescribed. See Office of Open Records, supra. Further, we are unpersuaded by the trial court‘s reasoning that the legislature‘s use of the disjunctive “or” between subsections 3802(d)(1)(ii) and (iii) compels an opposite result. See id.
Finally, Appellant is correct that “under the rule of lenity, penal statutes must be strictly construed in favor of the defendant.” Commonwealth v. Smith, 221 A.3d 631, 636 (Pa. 2019); see also Commonwealth v. Giulian, 141 A.3d 1262, 1265 (Pa. 2016) (stating that if an ambiguity exists in a penal statute, it must be interpreted in a light
Consistent with the foregoing, Appellant‘s conviction of DUI-metabolite was unlawful, and for this reason, we vacate the judgment of sentence.
Judgment of sentence vacated. Appellant discharged. Commonwealth‘s application for relief granted.
Judge Shogan joins the Opinion.
Judge Strassburger files a Concurring Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/29/2020