J-A09034-16

                                  2016 PA Super 154



COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

ERIC JOHN STINE,

                            Appellant                   No. 1124 MDA 2015


            Appeal from the Judgment of Sentence February 5, 2015
                in the Court of Common Pleas of Centre County
               Criminal Division at No.: CP-14-CR-0000308-2013


BEFORE: FORD ELLIOTT, P.J.E., JENKINS, J., and PLATT, J.*

OPINION BY PLATT, J.:
                                                     FILED JULY 18, 2016
        Appellant, Eric John Stine, appeals from the judgment of sentence

imposed on February 5, 2015, following his non-jury conviction of three

counts of driving under the influence (DUI).1              On appeal, Appellant

challenges the admissibility of the amphetamine test results.           For the

reasons discussed below, we affirm.

        We take the underlying facts and procedural history in this matter

from the December 3, 2014 notes of testimony and our independent review

of the certified record.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S.A. §§ 3802(d)(1)(i), (ii) and (iii).
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      On September 14, 2012, Bellefonte Borough Police Officer Andy Berry

noticed that Appellant’s vehicle had an expired registration. (See N.T. Trial,

12/03/14, at 5-6).     When making contact with Appellant, Officer Berry

observed that his pupils were dilated, he kept clenching his jaw, and there

was a brown substance in his nostril. (See id. 7). An experienced police

officer with special training in the detection of impaired drivers, Officer Berry

believed that Appellant was driving under the influence. (See id. at 5-7).

      Because Appellant performed poorly on field sobriety tests, Officer

Berry transported him for an evaluation by a drug recognition expert, State

College Police Officer Robert Keen. (See id. at 8-9). After performing an

evaluation of Appellant, Officer Keen believed that Appellant was under the

influence of narcotics and recommended that Officer Berry transport him to

Mount Nittany Medical Center for a blood draw.       (See id. at 28-29).     The

results of the blood test showed that Appellant was under the influence of

various narcotics. (See id. at 44-46).

      On April 30, 2013, Appellant filed a motion to suppress claiming that

the police lacked reasonable suspicion for the traffic stop and that any

statements to the police were made in violation of the United States

Supreme Court ruling in Miranda v. Arizona, 384 U.S. 436 (1966). (See

Appellant’s Omnibus Pre-Trial Motion, 4/30/13, at 2-4).         The trial court

denied the motion on June 25, 2013.




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      At trial, Appellant objected to any testimony about, and the admission

of, amphetamine testing and its results. (See N.T. Trial, 12/03/14, at 42-

43). The trial court overruled the objection. (See id. at 44). Following the

bench trial, on December 3, 2014, the trial court found Appellant guilty of

driving under the influence. On February 5, 2015, the trial court sentenced

Appellant to a term of incarceration of not less than seventy-two hours nor

more than six months.        Appellant filed a post-sentence motion that same

day. The trial court denied the motion on June 2, 2015. The instant, timely

appeal followed. On July 8, 2015, the trial court ordered Appellant to file a

concise statement of errors complained of on appeal.           See Pa.R.A.P.

1925(b). Appellant filed a timely Rule 1925(b) statement on July 16, 2015.

The trial court issued an opinion on August 17, 2015.          See Pa.R.A.P.

1925(a).

      On appeal, Appellant raises the following question for our review:

      1. [Was it] legal error for the [t]rial [c]ourt to admit the
         amphetamine test results as the testing for them was done
         using liquid chromatography and liquid chromatography
         [tests] are not statutorily approved[?]

(Appellant’s Brief, at 1).

      On appeal, Appellant contends that the trial court erred in admitting

the results of the liquid chromatography test. (See id. at 3).   Specifically,

Appellant maintains that this test is not one that is approved for use in the

Pennsylvania Code. (See id. at 5-6). We disagree.




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J-A09034-16


      Our standard of review is well-settled; we may only reverse a trial

court’s ruling regarding the admissibility of evidence if the trial court abused

its discretion.   See Commonwealth v. O’Brien, 836 A.2d 966, 968 (Pa.

Super. 2003), appeal denied, 845 A.2d 817 (Pa. 2004). However, we note

that interpreting the meaning of a statute raises a pure question of law,

therefore our standard of review is de novo and our scope of review is

plenary. See Commonwealth v. Burwell, 58 A.3d 790, 793 (Pa. Super.

2012), appeal denied, 69 A.3d 242 (Pa. 2013). Further, we acknowledge:

             Our task is guided by the sound and settled principles set
      forth in the Statutory Construction Act, including the primary
      maxim that the object of statutory construction is to ascertain
      and effectuate legislative intent. 1 Pa.C.S.[A.] § 1921(a). In
      pursuing that end, we are mindful that “[w]hen 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). Indeed, “[a]s a general rule, the best
      indication of legislative intent is the plain language of a statute.”
      In reading the plain language, “[w]ords and phrases shall be
      construed according to rules of grammar and according to their
      common and approved usage,” while any words or phrases that
      have acquired a “peculiar and appropriate meaning” must be
      construed according to that meaning. 1 Pa.C.S.[A. §] 1903(a).
      However, when interpreting non-explicit statutory text,
      legislative intent may be gleaned from a variety of factors,
      including, inter alia: the occasion and necessity for the statute;
      the mischief to be remedied; the object to be attained; the
      consequences of a particular interpretation; and the
      contemporaneous legislative history. 1 Pa.C.S.[A.] § 1921(c).
      Moreover, while statutes generally should be construed liberally,
      penal statutes are always to be construed strictly, 1 Pa.C.S.[A] §
      1928(b)(1), and any ambiguity in a penal statute should be
      interpreted in favor of the defendant.

            Notwithstanding the primacy of the plain meaning doctrine
      as best representative of legislative intent, the rules of
      construction offer several important qualifying precepts. For

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J-A09034-16


        instance, the Statutory Construction Act also states that, in
        ascertaining legislative intent, courts may apply, inter alia, the
        following presumptions: that the legislature does not intend a
        result that is absurd, impossible of execution, or unreasonable;
        and that the legislature intends the entire statute to be effective
        and certain. 1 Pa.C.S.[A.] § 1922(1),(2). Most importantly, the
        General Assembly has made clear that the rules of construction
        are not to be applied where they would result in a construction
        inconsistent with the manifest intent of the General Assembly. 1
        Pa.C.S.[A.] § 1901.

Commonwealth v. Wilson, 111 A.3d 747, 751 (Pa. Super. 2015), appeal

denied, 128 A.3d 221 (Pa. 2015) (case citation omitted).

        Here, Appellant argues that 75 Pa.C.S.A. § 1547(c)2 governs this case.

(See Appellant’s       Brief, at 3).           He   maintains that   75   Pa.C.S.A. §

1547(c)(2)(i)3 has three requirements with respect to admissibility of

laboratory tests for drug and alcohol:

____________________________________________


2
    Section 1547(c) provides that:

        (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, blood or urine, which
        tests were conducted by qualified persons using approved
        equipment, shall be admissible in evidence.

75 Pa.C.S.A. § 1547(c).
3
    Subsection (c)(2)(i) provides that:

        (2)(i) Chemical tests of blood or urine, if conducted by a facility
        located in this Commonwealth, shall be performed by a clinical
        laboratory licensed and approved by the Department of Health
(Footnote Continued Next Page)


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J-A09034-16


       1. [The test must be p]erformed in a lab licensed and approved
          by the Dept. of Health;

       2. The test must be done using a procedure prescribed by the
          Dept. of Health;

       3. The test must be done on equipment prescribed by the Dept.
          of Health.

(Appellant’s Brief, at 4). Appellant concedes that the Department of Health

approved the laboratory used in the instant matter for drug and alcohol

testing, but claims that the test does not meet the second and third criteria.

(See id. at 4-5). Specifically, he argues that the test used must be on the

list   of   tests   approved      in   the   Pennsylvania   Code   and   that   liquid

chromatography is not on the approved list. (See id. at 5-6). We disagree.

       The sections of the Code relied upon by Appellant are found at 28 Pa.

Code 5.101-5.104. Section 5.101 states:

       The purpose of §§ 5.101—5.104 (relating to equipment to
       determine blood alcohol content under the Vehicle Code and the
       Fish and Boat Code) is to satisfy the requirements of 75
       Pa.C.S.[A.] § 1547(c) and (k) and 30 Pa.C.S.[A.] § 5125(c) and
       (k) (relating to chemical testing to determine amount of alcohol
       or controlled substance).

28 Pa. Code § 5.101. Section 5.103 states in pertinent part:
                       _______________________
(Footnote Continued)

       for this purpose using procedures and equipment prescribed by
       the Department of Health or by a Pennsylvania State Police
       criminal laboratory. For purposes of blood and urine testing,
       qualified person means an individual who is authorized to
       perform those chemical tests under the act of September 26,
       1951 (P.L. 1539, No. 389), known as The Clinical Laboratory Act.

75 Pa.C.S.A. § 1547(c)(2)(i) (footnote omitted).



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J-A09034-16



                 Blood tests for blood alcohol content.

     Equipment used for blood analysis to determine the amount
     of alcohol in a person’s blood which performs the analysis by
     means of gas chromatography, enzymatic procedures, distillation
     procedures or diffusion procedures is approved by the
     Department . . .

28 Pa. Code § 5103 (emphasis added). The language in this section of the

Code is explicit, therefore, we look to the plain meaning of language, see

Wilson, supra at 751.

     Here, the Code specifically and clearly states this is the equipment

and/or tests a laboratory may use to test for blood alcohol content. See 28

Pa. Code § 5103. There is nothing in the plain language of this section of

the Code with respect to controlled substance testing and nothing to suggest

that the General Assembly intended this list to apply to controlled substance

testing. Had the drafters wanted to include controlled substance testing in

the Section, they could have added the phrases “controlled substance” or

the “amount of alcohol or a controlled substance in a person’s blood,” as

they did in Section 5.101. They chose not to do so and we have no basis for

reading such phrases into the explicit language of the Code. See Wilson,

supra at 751.

     Moreover, as noted above, Appellant concedes that the Department of

Health approved the laboratory in question. (See Appellant’s Brief, at 4-5).

The Pennsylvania Code specifically states that in order to receive approval

from the Department of Health, a laboratory must provide, in pertinent part:

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J-A09034-16


         (4) A list of the major laboratory equipment to be utilized,
      including the manufacturer's name and model number, and other
      pertinent specifications as may be required on the application
      form.

         (5) The tests to be performed in the clinical laboratory.

        (6) The internal and external quality control systems to be
      employed in the clinical laboratory.

28 Pa. Code § 5.11(c)(4), (5) and (6). Thus, by granting the laboratory its

permit, the Department of Health knew that it would be using a liquid

chromatograph and knew what tests it would be performing and approved

its use. Accordingly, we conclude that Section 5.103, particularly when read

in combination with Section 5.11(c), does not bar this equipment for

controlled substance testing.

      In any event, Appellant has not provided any legal support for his

interpretation of Section 5.103, which flies in the face of the explicit

language of the Code.    In addition, albeit on different grounds, this Court

has upheld a driving under the influence conviction based upon the evidence

resulting from a liquid chromatography test.        See Commonwealth v.

Weaver, 76 A.3d 562, 570-71 (Pa. Super. 2013), aff’d per curiam, 105 A.3d

656 (Pa. 2014). In sum, Appellant has not shown that his reading of Section

5.103 is correct.   Thus, the trial court neither made an error of law nor

abused its discretion in admitting the liquid chromatography tests results.

See O’Brien, supra at 968.




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J-A09034-16


     Accordingly, for the reasons discussed above, we affirm the judgment

of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/18/2016




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