Com. v. Schaeffer, A. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ASHLEY MARIE SCHAEFFER : No. 485 MDA 2018
Appeal from the Order Entered March 7, 2018
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000168-2017
BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED MAY 10, 2019
The Commonwealth of Pennsylvania (Commonwealth), appeals from the
order entered on March 7, 2018, granting a motion to suppress filed by Ashley
Marie Schaeffer (Schaeffer) that precluded the admissibility of blood tests
regarding two chemical compounds, Buprenorphine and Norbuprenorphine,1
allegedly found in her bloodstream following a motor vehicle accident.2 Upon
review, we affirm.
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1 “Buprenorphine is a substance similar to methadone in that both are
prescribed and administered for the treatment, maintenance or detoxification
of persons[.]” Airport Professional Office Center 100 Condominium
Ass'n v. Zoning Hearing Bd. of Moon Tp., 20 A.3d 649, 651 (Pa. Cmwlth.
2011). Buprenorphine is also known as “suboxone” and is classified as a
Schedule III controlled substance. See 35 P.S. § 780-104(3)(i)(11).
Norbuprenorphine is a metabolite of Buprenorphine.
2 Our Rules of Appellate Procedure permit the Commonwealth to take an
interlocutory appeal as of right when the Commonwealth certifies that the
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We briefly summarize the facts of this case, as set forth in the affidavit
of probable cause. The Commonwealth charged Schaeffer with one count of
driving under the influence (DUI) of a combination of controlled substances –
Xanax, Buprenorphine, and Norbuprenorphine, as well as, three counts each
of endangering the welfare of children and recklessly endangering a person.3
The charges stemmed from an incident on July 15, 2016, wherein police
responded to a one-car accident on Hastings Street in Lycoming County.
When a police officer arrived, he allegedly found Schaeffer standing next to a
car that had struck a fire hydrant. When asked if there were additional
passengers, Schaeffer purportedly told the officer that her twin daughters and
their friend were in the vehicle during the accident, but she had taken the
three minor girls to a nearby apartment after the crash. Schaeffer could not
identify the woman with whom she left the children, but the officer located
her and confirmed that the children were safe. During the investigation, the
officer observed two prescription pill bottles in Schaeffer’s opened purse. The
officer, however, could not identify the prescriptions. Schaeffer claimed that
she had a prescription for Xanax to treat anxiety. Schaeffer ultimately
consented to perform field sobriety tests and the investigating officer
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order will “terminate or substantially handicap the prosecution.” Pa.R.A.P.
311(d). The Commonwealth did so in this case and, thus, we have jurisdiction
to hear the appeal.
3 75 Pa.C.S.A. §§ 3802(d)(2), 18 Pa.C.S.A. § 4304, and 18 Pa.C.S.A. § 2705,
respectively.
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determined that the results indicated that Schaeffer was under the influence
of narcotics and not capable of safe driving.
As the trial court states, the case progressed as follows:
After being taken into custody, [Schaeffer] was transported to
Williamsport [H]ospital for a blood draw. Once at the hospital and
after being read [her rights regarding consent, Schaeffer] agreed
to submit to a blood draw. The blood test results were positive
for, among other things,[4] Buprenorphine and Norbuprenorphine.
Buprenorphine is a Schedule III controlled substance.[5]
Norbuprenorphine is a metabolite of Buprenorphine. According to
the blood test results, the amount of Buprenorphine found in
[Schaeffer’s] blood was 1.8 ng/ml. The amount of
Norbuprenorphine found in [Schaeffer’s] blood was 1.3 ng/ml.
Trial Court Opinion, 3/7/2018, at 1.
Prior to trial, Schaeffer filed an omnibus pre-trial motion pursuant to 75
Pa.C.S.A. § 1547(c) seeking, inter alia, to preclude the admissibility of the
blood test results pertaining, specifically, to Buprenorphine and
Norbuprenorphine. Section 1547 states, in pertinent part:
§ 1547. Chemical testing to determine amount of alcohol or
controlled substance
(a) General rule.--Any person who drives, operates or is in
actual physical control of the movement of a vehicle in this
Commonwealth shall be deemed to have given consent to
one or more chemical tests of breath or blood for the
purpose of determining the alcoholic content of blood or the
presence of a controlled substance if a police officer has
reasonable grounds to believe the person to have been
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4 The test results also revealed the presence of 61 ng/ml of Xanax in
Schaeffer’s bloodstream. That result is not at issue herein.
5 Schaeffer concedes that she did not have a prescription for Buprenorphine
or Norbuprenorphine. N.T., 2/27/2018, at 13.
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driving, operating or in actual physical control of the
movement of a vehicle in violation of section 1543(b)(1.1)
(relating to driving while operating privilege is suspended or
revoked), 3802 (relating to driving under influence of
alcohol or controlled substance) or 3808(a)(2) (relating to
illegally operating a motor vehicle not equipped with ignition
interlock).
* * *
(c) Test results admissible in evidence.--In any summary
proceeding or criminal proceeding in which the defendant is
charged with a violation of section 3802 or any other
violation of this title arising out of the same action, the
amount of alcohol or controlled substance in the defendant's
blood, as shown by chemical testing of the person's breath
or blood, which tests were conducted by qualified persons
using approved equipment, shall be admissible in evidence.
* * *
(4) For purposes of blood testing to determine the amount
of a Schedule I or nonprescribed Schedule II or III controlled
substance or a metabolite of such a substance, the
Department of Health shall prescribe minimum levels
of these substances which must be present in a
person's blood in order for the test results to be
admissible in a prosecution for a violation of section
1543(b)(1.1), 3802(d)(1), (2) or (3) or 3808(a)(2).
75 Pa.C.S.A. § 1547 (emphasis added).
The trial court held a suppression hearing on February 27, 2018. It
summarized the arguments presented therein as follows:
The parties concede[d] that the Pennsylvania Department of
Health ha[d] not prescribed minimum levels of these substances
which must be present in a person’s blood in order for the tests to
be admissible in a prosecution for a violation of 75 Pa.C.S.A.
§ 3802(d)(2), driving under the influence of a controlled
substance (impaired ability to safely drive).
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[Schaeffer] argue[d] that pursuant to 75 Pa.C.S.A. § 1547(c)(4)
for the purposes of blood testing to determine the amount of a
non-prescribed Schedule II or Schedule III controlled substance
or metabolite of such a substance, the Department of Health shall
prescribe minimum levels of these substances which must be
present in a person’s blood in order for the test results to be
admissible in a prosecution for a violation of, among other
sections, § 3802(d)(2).
The Commonwealth argue[d] that pursuant to 75 Pa.C.S.A.
§ 1547(c)(4), the Department of Health published a notice of the
minimum levels of, among other things, non-prescribed Schedule
II and non-prescribed Schedule III controlled substances or their
metabolites in 45 Pa. Bulletin 3638. This Pennsylvania Bulletin
was published on Saturday, July 4, 2015. While it [did] not list a
schedule or the minimum quantitation limits in terms of
nanograms/millimeter of Buprenorphine or Norbuprenorphine, it
does note the following language:
The Department recognizes that testing may be
conducted for controlled substances and metabolites
not listed in this notice. When testing is necessary,
interested parties should contact the laboratory
performing the test to inquire as to that laboratory’s
specific method of testing, the equipment used and
any policies or procedures employed by that
laboratory to ensure that the test results are valid. In
subsequent notices, the Department will revise, as
needed, the minimum levels of controlled substances
or metabolites already included in this notice and add
new controlled substances or metabolites when
warranted.
Trial Court Opinion, 3/7/2018, at 2-3.
The trial court determined that there was no ambiguity in the language
of the statute at issue. More specifically, it opined that the clear language of
75 Pa.C.S.A. § 1547(c)(4) required the Health Department to set minimum
levels for non-prescribed Schedule II and III controlled substances and
metabolites in order for blood test results to be admissible in prosecutions for
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DUI - controlled substances under 75 Pa.C.S.A. § 3802(d)(2). The parties
conceded that Buprenorphine is a Schedule III narcotic, Norbuprenorphine is
its metabolite, and that the Health Department had not set minimum levels
for those substances. Accordingly, the trial court determined that the test
results showing levels of Buprenorphine and Norbuprenorphine in Schaeffer’s
bloodstream were not admissible under Section 1547(c)(4) in a prosecution
for DUI pursuant to 75 Pa.C.S.A. § 3802(d)(2). As such, it granted Schaeffer’s
request for suppression by order and opinion entered on March 7, 2018. This
timely appeal resulted.6
On appeal, the Commonwealth presents the following issue for our
review:
I. Whether the suppression court erred in suppressing blood test
evidence showing the presence of the controlled substance,
Buprenorphine, and its metabolite, Norbuprenorphine, because
the Department of Health did not specifically publish the
minimum level of those substances which must be present for
the test to be admissible in the Pennsylvania Bulletin, according
to 75 Pa.C.S.A. § 1547(c)(4)?
Commonwealth’s Brief at 10.
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6 The Commonwealth filed a notice of appeal on March 19, 2018. In its notice
of appeal, the Commonwealth certified that the order terminated or
substantially handicapped the prosecution pursuant to Pa.R.A.P. 311(d). On
March 20, 2018, the trial court directed the Commonwealth to file a concise
statement of errors complained of on appeal under Pa.R.A.P. 1925(b). The
Commonwealth complied timely on April 5, 2018. On May 30, 2018, the trial
court filed an opinion in accordance with Pa.R.A.P. 1925(a), relying upon its
earlier decision issued on March 7, 2018.
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Our standard of review regarding the grant of a suppression motion is
well settled:
When the Commonwealth appeals from a suppression order, we
follow a clearly defined standard of review and consider only the
evidence from the defendant's witnesses together with the
evidence of the prosecution that, when read in the context of the
entire record, remains uncontradicted. The suppression court's
findings of fact bind an appellate court if the record supports those
findings. The suppression court's conclusions of law, however, are
not binding on an appellate court, whose duty is to determine if
the suppression court properly applied the law to the facts.
Our standard of review is restricted to establishing whether the
record supports the suppression court's factual findings; however,
we maintain de novo review over the suppression court's legal
conclusions.
Commonwealth v. Korn, 139 A.3d 249, 252–253 (Pa. Super. 2016) (internal
citations and quotations omitted).
Moreover,
[b]ecause this is a matter of statutory interpretation, our scope of
review is plenary and the standard of review is de novo. As
always, when interpreting statutory provisions, [reviewing courts]
aim to ascertain and effectuate the intent of the General
Assembly. 1 Pa.C.S.A. § 1921(a). The best indication of the
General Assembly's intent may be found in the plain language of
the statute. “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.A. § 1921(b).
Commonwealth v. Popielarcheck, 190 A.3d 1137, 1140 (Pa. 2018)
(internal case citations omitted).
Furthermore:
We presume “that the General Assembly intends the entire statute
to be effective and certain,” and thus construe a statute to give
effect to all of its provisions. 1 Pa.C.S.A. § 1922(2). […]
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Furthermore, where general and specific statutory provisions
conflict, we attempt to construe the two provisions to give effect
to both provisions. 1 Pa.C.S.A. § 1933. It is only when two
provisions irreconcilably conflict that “the special provisions shall
prevail and shall be construed as an exception to the general
provision, unless the general provision shall be enacted later and
it shall be the manifest intention of the General Assembly that
such general provision shall prevail.” Id.
In Interest of R.A.F., 149 A.3d 63, 67 (Pa. Super. 2016).
On appeal, the Commonwealth argues that the trial court erred by
viewing Section 1547(c)(4) in isolation rather than viewing Section 1547(c) in
its entirety. Commonwealth’s Brief at 17. More specifically, it argues:
As the language of the statute indicates, the introductory
paragraph of the section indicates that chemical tests for blood
undertaken by qualified persons with approved equipment “shall”
be admitted into evidence, while (c)(4) says that the Department
[of Health] “shall” prescribe minimum levels of the substances in
order [for] the test results to be admissible into evidence. Thus,
to follow the suppression court, the unambiguous intent of the
General Assembly was that chemical test evidence for blood shall
be admitted if tested by qualified persons with approved
equipment, but that the requirements must take a back seat and
that evidence must be precluded from admission at trial, because
the Department [of Health] did not publish the minimum level of
the controlled substance. Therefore, such interpretation rises to
level of an ambiguity as it relates to the preclusion of the evidence
at trial for that sole purpose.
Id. at 21-22 (emphasis in original).
While the Commonwealth concedes that there are “no reported cases
interpreting § 1547(c)(4),” it relies upon this Court’s decision in
Commonwealth v. Williamson, 962 A.2d 1200 (Pa. Super. 2008) “which []
interpreted § 1547(c) as a whole” in support of its position that the trial court
erred. Commonwealth’s Brief at 23. The Commonwealth contends that in
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Williamson, “a panel of the Superior Court interpreted § 1547(c) after a trial
court suppressed a report of a urine test, which indicated a positive presence
of a controlled substance, when that report did not indicate the amount of a
controlled substance present, although § 1547(c) is explicit that the amount
of alcohol or controlled substance obtained through chemical testing shall be
admissible in evidence.” Id. at 23-24. The Commonwealth maintains that
the Williamson Court determined:
Merely because section 1547(c) states that a report containing the
amount of alcohol or controlled substance in a defendant's blood
is admissible as evidence in a section 3802 prosecution does not
mean that a report without an amount is inadmissible. This is
especially significant here where: subsection 1547(c) is intended
to outline the proper approved procedures and equipment to be
utilized so that such test results can be deemed admissible in
summary and criminal proceedings, and (2) the specific criminal
charge for which Williamson was charged, 75 Pa.C.S.A.
§ 3802(d)(2), does not require any specific amount of a drug
(prescription or otherwise) for a conviction.
Commonwealth’s Brief at 24, citing Williamson, 962 A.2d at 1202. The
Williamson Court stated that the purpose behind Section 1547 is to outline
the necessary regulations and procedures that have been approved for
chemical test results to be admissible in legal proceedings. Id. The
Commonwealth argues that preclusion of blood test results is not warranted,
however, when the laboratory is approved by the Department of Health and
the procedure and accuracy of the test is not at issue. Id. at 26-27. As such,
the Commonwealth argues that it is, therefore, reasonable to interpret Section
1547(c) to mean that “a test which has a level of a controlled substance below
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the prescribed minimum level should be precluded, but that if a minimum level
has not been set on a specific controlled substance or its metabolite, such
evidence should not be precluded unless a defendant can raise issues of
accuracy on procedural irregularity.” Id. at 27.
Finally, in arguing that the statute is ambiguous, the Commonwealth
points to provisions of the Department of Health’s bulletin to explain the
General Assembly’s intent in enacting Section 1547(c). The Commonwealth
posits:
As explained by the Department [of Health], the setting of the
minimum level [of a controlled substance or metabolite] is entirely
dependent on how each individual laboratory, already approved
by the Department [of Health] to conduct blood testing for
controlled substances, processes the blood test to confirm the
presence of a controlled substance and that laboratories are not
required to actually test at a minimum level. While the
Department lists certain controlled substances and metabolites,
when the specific controlled substance is not listed, an interested
party should contact the laboratory for the specific method of
testing, equipment, and any policies or procedures to ensure that
the results are valid. Thus, those interested to contact the
laboratory provides a more appropriate minimum level for the test
for that specific laboratory, which complies with the stated
purpose of the statute.
Id. at 29.
In this case, the trial court concluded:
[It] did not see any ambiguity in the statutory provision as
enacted. [Schaeffer] is charged with driving under the influence
of controlled substances in violation of 75 Pa.C.S.A. § 3802(d)(2).
The Department [of Health] is required to prescribe minimum
levels of non-prescribed Schedule II and Schedule III controlled
substances or metabolites of such substances which must be
present in a person’s blood in order for the test results to be
admissible in a prosecution for the offense to which [Schaeffer]
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stands charged. The parties agreed that Buprenorphine is a
non-prescribed Schedule III controlled substance and
Norbuprenorphine is a metabolite of Buprenorphine. The
Department [of Health] has not prescribed minimum levels for
these controlled substances. Accordingly, the test results are not
admissible pursuant to the clear and unambiguous language of 75
Pa.C.S.A. § 1547(c)(4).
The Commonwealth’s reliance on the Pennsylvania Bulletin is
misplaced. The statute does not give the Department of Health
the authority to not list controlled substances or metabolites and
refer the “interested” party to the lab for further information.
There is nothing in the statute that permits the Department of
Health to delegate its statutory duties to the laboratory or facility
conducting the test.[7]
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7 As we set forth above, the best indication of the General Assembly's intent
is found in the plain language of the statute. Here, the Commonwealth relies
almost exclusively on the Department of Health’s interpretation of Section
1547 as set forth in the Pennsylvania Bulletin. It is only when the words of a
statute are not explicit that the intention of the General Assembly may be
ascertained by considering: the occasion of and necessity for the statute, the
circumstances under which it was enacted, the mischief to be remedied, the
object to be attained, the former law (including other statutes upon the same
or similar subjects), the consequences of a particular interpretation, the
contemporaneous legislative history, and legislative and administrative
interpretations of the statute. See 1 Pa.C.S.A. § 1921(c). When ascertaining
the General Assembly's intent with regard to ambiguous statutory language,
courts are to give strong deference to an administrative agency's
interpretation of a statute that the agency is charged to enforce. Velocity
Express v. Pennsylvania Human Relations Com'n, 853 A.2d 1182, 1185
(Pa. Cmwlth. 2004); see also 1 Pa.C.S.A. § 1921(c)(8). However,
[courts] need not give deference to an agency where its
construction of a statute frustrates legislative intent. Therefore,
although courts often defer to an agency's interpretation of the
statutes it administers, where ... the meaning of the statute is a
question of law for the court, when convinced that the agency's
interpretation is unwise or erroneous, that deference is
unwarranted.
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Trial Court Opinion, 3/7/2018, at 4.
Upon review, we agree with the trial court’s assessment. Section
1547(c) permits the admission of chemical blood tests for narcotics and
alcohol in a prosecution for any DUI violation pursuant to Section 3802.
Section 1547(c) is a general provision. Whereas, Section 1547(c)(4) is a more
specific provision. It applies to Schedule I or non-prescribed Schedule II or
III controlled substances or metabolites and only to DUI cases involving
violations of 75 Pa.C.S.A § 1543(b)(1.1), 75 Pa.C.S.A § 3802(d)(1), (2) or (3)
or 75 Pa.C.S.A. § 3808(a)(2). As such, the trial court properly construed
Section 1547(c)(4), as an exception to the general provision found at Section
1547(c). The plain language of Section 1547(c)(4) requires the Department
of Health to prescribe minimum levels of Schedule III controlled substances
and metabolites in order for the test results to be admissible.8 There is no
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Id. As discussed below, we find no ambiguity in the statutory language at
issue and, therefore, we need not give deference to an administrative
interpretation of Section 1547.
8 We note that a prior panel of this Court reached a different conclusion in an
unpublished memorandum. See Commonwealth v. McCall, 2016 WL
5853259 (Pa. Super. 2016). However, that panel did not engage in any
analysis regarding the plain language of the statute. Instead, without first
finding an ambiguity, the panel looked only at the General Assembly’s
intentions in enacting the legislation. We, however, are not bound by a prior
unpublished Superior Court memorandum. See Coleman v. Wyeth
Pharmaceuticals, Inc., 6 A.3d 502, 522 n.11 (Pa. Super. 2010); see also
Commonwealth v. Swinson, 626 A.2d 627, 629 (Pa. Super. 1993) (“[A]n
unpublished memorandum opinion [] cannot be relied upon nor cited for
precedential value.”).
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dispute that the Department of Health did not prescribe minimum levels of
Buprenorphine and Norbuprenorphine. Thus, the test results showing specific
quantities of Buprenorphine and Norbuprenorphine found in Schaeffer’s
bloodstream were properly precluded from trial.9 Accordingly, we conclude
that the trial court did not err as a matter of law in granting Schaeffer’s request
for suppression.
Order affirmed.
Musmanno, J. joins the memorandum.
Shogan, J. files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/10/2019
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9 Having determined that Section 1547(c)(4) is a more specific statutory
provision than Section 1547(c), we conclude that the Commonwealth’s
reliance on Williamson is misplaced. Our decision, however, does not
address whether a report indicating the mere presence of Buprenorphine and
Norbuprenorphine, without reference to the actual levels found in a
defendant’s bloodstream, would be admissible at trial. That issue was not
argued before the trial court and is not presently before us since the report at
issue clearly set forth specific amounts of Buprenorphine and
Norbuprenorphine detected in Schaeffer’s blood sample.
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