J-S21028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES MILLER                               :
                                               :
                       Appellant               :   No. 2554 EDA 2018

          Appeal from the Judgment of Sentence Entered July 31, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                        No(s): CP-23-CR-0002973-2018


BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                                   FILED MAY 06, 2019

        James Miller (Appellant) appeals from the judgment of sentence

imposed after the trial court found him guilty of possession of an instrument

of crime (PIC) and furnishing drug-free urine.1 Upon review, we affirm.

        The trial court recounted the factual and procedural background as

follows:

               On July 11, 2018, Appellant was before this [c]ourt for a
        non-jury trial. The Commonwealth proceeded with Count 1: [PIC]
        and count 2: Furnishing Drug-Free Urine.            Counsel for the
        Commonwealth and Counsel for Appellant stipulated that the facts
        contained within the Affidavit of Probable Cause would serve as
        the factual basis for the trial. Counsel also stipulated that if called
        to testify, Parole Officer George Buckley, of Delaware County Adult
        Probation and Parole, would testify that he [was waiting] by the
        bathroom while Appellant was giving a urine screen and that he
        noticed and heard furtive mo[v]ments from him, and that he did
        not hear the distinct sound of urine actually hitting the cup which
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1   18 Pa.C.S.A. §§ 907, 7509.
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     he would testify that he normally would hear. In addition, if called
     to testify, Ms. Joy Brosman, of Delaware County Adult Probation
     and Parole, would testify that after receiving the urine sample, the
     cup and the urine had no temperature reading which is odd and
     not during the normal process of someone who is giving an actual
     sample of urine. In addition, the affidavit of probable cause states
     that Appellant admitted to Officer Buckley that he had used a
     PediaSure bottle to bring in drug-free urine. No further evidence
     was presented.

            Counsel for Appellant argued that PIC was not applicable to
     the facts at bar because the rules of statutory construction would
     prohibit such an application, specifically that the Furnishing Drug-
     Free Urine statute was enacted after the PIC statute and that
     because all of the elements of PIC are subsumed within the crime
     of Furnishing False Urine, that Appellant could not be found guilty
     of both. In support, counsel for Appellant argued that it would be
     implied that urine has to come in some container or packaging to
     be submitted. On the contrary, counsel for the Commonwealth
     argued that the crime of Furnishing Drug-Free Urine could
     certainly be committed without the use of a container, citing for
     example, if another person was in the bathroom with the
     individual giving the sample and they urinated into the cup instead
     of the person who was supposed to be giving the sample. In
     support of distinguishing between the two crimes, counsel for the
     Commonwealth cited the jury instruction for PIC which states, that
     in order for a person to be guilty of PIC, the following elements
     must be met: First, the individual possessed the item, [s]econd,
     that the item is an instrument of crime which is defined as
     anything specifically made for criminal use, anything especially
     adapted for criminal use, and or anything that is used for criminal
     purposes and [t]hird, the item was possessed by the defendant at
     the time of the alleged offense under circumstances not manifestly
     appropriate for lawful use.        Therefore, because Appellant
     possessed the PediaSure Bottle and used it to facilitate the
     commission of the underlying offense, the charge of PIC is not the
     same as the charge of Furnishing Drug-Free Urine.

           This [c]ourt took the matter under advisement. After
     careful review, this [c]ourt agreed with counsel for the
     Commonwealth and found Appellant guilty of both Count 1: PIC
     and Count 2: Furnishing Drug-Free Urine.           Appellant was
     sentenced on July 31, 2018, as follows: Count 2: Furnishing Drug-
     Free Urine- Time served to 12 months and on Count 1: PIC- 1

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       year of probation consecutive to Count 2.       No post-sentence
       motions were filed.

             On August 29, 2018, counsel for Appellant filed a timely
       Notice of Appeal and a timely 1925(b) Statement raising the issue
       mentioned above.

Trial Court Opinion, 10/10/18, at 1-3 (citation to notes of testimony and

footnotes omitted).

       Appellant presents a single issue on appeal:

             The trial court erred in convicting [Appellant] of both
       Possessing an Instrument of Crime, a crime of general application,
       along with Furnishing Drug-Free Urine, a specific offense which
       subsumes the Possession of an Instrument of Crime offense.

Appellant’s Brief at 5.2

       As Appellant’s sole issue is “one of statutory interpretation and is

therefore a question of law; our standard of review is de novo, and our scope

of review is plenary.” Commonwealth v. Giulian, 141 A.3d 1262, 1266 (Pa.

2016) (citation omitted).        “Consequently, we are not bound by the lower

court’s conclusions regarding the proper meaning of the applicable provisions

of this statute. See Commonwealth v. Kyle, [] 874 A.2d 12, 17 ([Pa.] 2005)

(holding that our Court owes no duty of deference to the legal conclusions of




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2 Appellant’s Rule 1925(b) statement also challenged whether the PediaSure
bottle qualified as an instrument of crime under 18 Pa.C.S.A. § 907. See Rule
1925(b) Statement, 9/26/18, at 1. However, because Appellant abandoned
this claim in his brief, we will not address it. See Appellant’s Brief at 5; see
also Commonwealth v. Briggs, 12 A.3d 291, 310 n.19 (Pa. 2011), cert.
denied, 132 S.Ct. 267 (2011) (refusing to address claim appellant raised with
trial court but subsequently abandoned in appellate brief).

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lower courts regarding an issue of statutory construction.).” Commonwealth

v. Devries, 112 A.3d 663, 670 (Pa. Super. 2015). Additionally,

      Our review is further governed by the Statutory Construction Act,
      1 Pa.C.S.A. § 1501 et seq., under which our paramount
      interpretative task is to give effect to the intent of our General
      Assembly in enacting the particular legislation under review. See
      1 Pa.C.S.A. § 1921(a) (“The object of all interpretation and
      construction of statutes is to ascertain and effectuate the intention
      of the General Assembly. Every statute shall be construed, if
      possible, to give effect to all its provisions.”)[.] Generally, the
      best indication of the General Assembly’s intent may be found in
      the plain language of the statute. In this regard, it is not for the
      courts to add, by interpretation, to a statute, a requirement which
      the legislature did not see fit to include. Consequently, as a
      matter of statutory interpretation, although one is admonished to
      listen to what a statute says; one must also listen attentively to
      what it does not say.

Id. (citing Commonwealth v. Wright, 14 A.3d 798, 814 (Pa. 2011) (some

citations omitted).

      Appellant argues that the trial court erred in convicting him “of the

offenses of [PIC], an offense of general applicability graded as a first degree

misdemeanor [] and furnishing drug-free urine, an offense of more specific

applicability to the facts at hand graded as [a third-degree misdemeanor].”

Appellant’s Brief at 9. Citing 1 Pa.C.S.A. § 1933, Appellant avers that “[t]he

rules of statutory construction of a penal statute as applied by courts in the

Commonwealth of Pennsylvania require that a specific statute prevails and

subsumes the applicability of a more general statute.” Id. at 9, 11.

      Section 1933 reads:

      Whenever a general provision in a statute shall be in conflict with
      a special provision in the same or another statute, the two shall

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      be construed, if possible, so that effect may be given to both. If
      the conflict between the two provisions is irreconcilable, 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.

1 Pa.C.S.A. § 1933.

      In its brief, the Commonwealth contends that Appellant’s sole issue is

frivolous because the “rule of statutory interpretation he relies upon has been

abrogated by statute.”   Commonwealth Brief at 3.       In the alternative, the

Commonwealth argues that the statutes under which Appellant was convicted

do not conflict. Id. We agree.

      While making his argument, Appellant fails to address Section 1933’s

abrogation. See Appellant’s Brief at 11-17. In Commonwealth v. Kreigler,

127 A.3d 840 (Pa. Super. 2015), this Court specifically held that the

“‘general/specific’ rule of statutory construction in the context of criminal

prosecutions has been abrogated.”      Id. at 844 (citing Commonwealth v.

Karetny, 880 A.2d 505 (Pa. 2005) and In re N.W., 6 A.3d 1020 (Pa. Super.

2010)). Section 9303, effective February 7, 2003, provides:

      Notwithstanding the provisions of 1 Pa.C.S. § 1933 (relating to
      particular controls general) or any other statute to the contrary,
      where the same conduct of a defendant violates more than
      one criminal statute, the defendant may be prosecuted
      under all available statutory criminal provisions without
      regard to the generality or specificity of the statutes.

42 Pa.C.S.A. § 9303 (emphasis added).

      As our holding in Kriegler explains, Section 1933 has been abrogated

with respect to criminal provisions by the enactment of Section 9303.

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Accordingly, Appellant’s reliance on Section 1933 is erroneous. Kriegler, 127

A.3d at 844. The trial court therefore did not err in convicting Appellant of

both PIC and furnishing drug-free urine.

      Further, even if Section 1933 was not abrogated by Section 9303, we

find that Sections 907 and 7509 do not “irreconcilably conflict.” 1 Pa.C.S.A.

§ 1933 (“If the conflict between the two provisions is irreconcilable, the special

provisions shall prevail and shall be construed as an exception to the general

provision[.]”). See Karetny, 880 A.2d 520 (“[O]nly if the conflict between

the general and specific provisions is irreconcilable does the special provision

prevail and act as an exception to the general provision under [Section]

1933.”) (citation omitted); see also Kriegler, 127 A.3d at 844.

      The PIC statute provides: “A person commits a misdemeanor of the first

degree if he possesses any instrument of crime with intent to employ it

criminally.” 18 Pa.C.S.A. § 907. Further, Section 907 defines “instrument of

crime” as anything specially made or specially adapted for criminal use, or

anything used for criminal purposes and possessed by the actor under

circumstances not manifestly appropriate for lawful uses it may have. Id.

      Section 7509 of the Crimes Code states:

      (a) Unlawful sale or attempt.--A person commits a
      misdemeanor of the third degree if he offers for sale, sells, causes
      to be sold or gives drug-free urine for the purpose of or with the
      intent or knowledge that the urine will be used for evading or
      causing deceitful results in test for the presence of drugs.

      (b) Use or attempt.--A person commits a misdemeanor of the
      third degree if he uses or attempts to use drug-free urine as


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       provided in subsection (a) for the purpose of evading or causing
       deceitful results in a test for the presence of drugs.

18 Pa.C.S.A. § 7509.

       Upon review of Sections 907 and 7509, we conclude that they do not

irreconcilably conflict.    When a defendant uses an instrument of crime to

transport drug-free urine to a drug test for the purpose of evading or causing

deceitful results, as Appellant did here, his conduct violates both Section 907

and 7509. As stated by this Court, a single course of conduct may constitute

a violation of more than one statutory provision. Kriegler, 127 A.3d at 844

(citing In re N.W., 6 A.3d at 1026 n.4). And while there may be instances

where a defendant possesses an instrument of crime with the intent to use it

to furnish drug-free urine,3 Section 7509 does not require that an instrument

of crime be employed.

       Similarly, as evidenced by Pennsylvania case law, a defendant can be

convicted of PIC in factual scenarios that do not also involve a violation of

Section 7509. See e.g., Commonwealth v. Dix, --- A.3d ----, 2019 WL

1434237 (Pa. Super. 2019) (affirming judgment of sentence for convictions of

PIC and possession of a controlled substance with the intent to deliver);

Commonwealth v. Leaner, --- A.3d ----, 2019 WL 124382 (Pa. Super. 2019)

(affirming judgment of sentence for convictions of PIC, second-degree

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3 “It may well be that the same underlying conduct here can be argued to
satisfy both provisions. But that is not unusual under the Crimes Code nor
does it mean that separate provisions of the Code should be said to be in
facial, irreconcilable conflict with each other.” Karetny, 880 A.2d at 542.

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murder, and robbery); and Commonwealth v. Ligon, --- A.3d ----, 2019 WL

1109515 (Pa. Super. 2019) (affirming order dismissing Post Conviction Relief

Act petition of defendant who was convicted of PIC, aggravated assault,

carrying a firearm without a license, carrying a firearm on a public street in

Philadelphia, criminal conspiracy, and persons not to possess a firearm).

      The    instant   case   is   also   distinguishable   from   our   holding   in

Commonwealth v. Tisdale, 100 A.3d 216 (Pa. Super. 2014), as Sections

907 and 7509 do not belong to a “graduated system of prosecution and

punishment.”     Id. at 221 (holding the defendant’s conviction of a small

amount of marijuana, as a specific statute, subsumed the more general

statute of possession of marijuana, as both belonged to a graduated system

of prosecution and punishment for marijuana possession). In such scenario,

“there is a palpable decrease in punishment consonant with lesser degrees of

culpability.” Kriegler, 127 A.3d at 845. Here, there is nothing in the Crimes

Code which suggests that the General Assembly intended to punish less

severely those who do not use an instrument of crime in violating Section

7509, than those who violate Section 7509 while possessing an instrument of

crime. Id.     Thus—even if Section 1933 was applicable—Sections 907 and

7509 would not irreconcilably conflict.

      In sum, Section 1933 was abrogated by the General Assembly’s

enactment of Section 9303, and is inapplicable to Appellant’s case. However,

even if Section 1933 applied, Sections 907 and 7509 do not irreconcilably


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conflict as required for Section 7509 to subsume Section 907.               The

Commonwealth properly prosecuted Appellant under both Sections 907 and

7509 of the Crimes Code, and the trial court did not err in convicting Appellant

of both crimes.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/19




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