J-S32038-16

                                  2016 PA Super 115

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOSE RODRIGUEZ,

                            Appellant                 No. 2403 EDA 2015


              Appeal from the Judgment of Sentence July 2, 2015
               in the Court of Common Pleas of Delaware County
               Criminal Division at No.: CP-23-CR-0001250-2015


BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*

OPINION BY PLATT, J.:                                   FILED JUNE 06, 2016

        Appellant, Jose Rodriguez, appeals from the judgment of sentence

imposed on July 2, 2015, following his non-jury trial conviction of furnishing

drug-free urine, use or attempt.1 Appellant challenges the sufficiency of the

evidence. We affirm.

        We take the factual and procedural history in this matter from the trial

court’s September 25, 2015 opinion and our review of the certified record.

On October 31, 2014, Appellant arrived for a parole supervision appointment

and was directed to provide Pennsylvania State Parole Board Agent Zane

McGowan with a urine sample. Appellant entered the bathroom to provide

the sample. He then walked approximately six feet to the interview room
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 7509(b).
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where Agent McGowan was waiting for him, and handed him a urine sample

cup filled with liquid.

       Agent McGowan observed that the urine sample cup looked as if it was

filled with water and the cup’s temperature indicator showed a temperature

of approximately seventy degrees, whereas the cup indicator typically shows

a ninety-degree temperature reading for urine. He noted that the liquid in

the cup did not smell like urine.          He tested the sample and it came up

negative for narcotics or controlled substances. Agent McGowan did not test

the sample to determine whether the liquid contained within was urine.

       After the first cup tested negative, Agent McGowan asked Appellant to

provide a second sample. He did so and when Agent McGowan tested the

second sample it indicated a positive result for Tetrahydrocannabinol (THC),

the active drug compound in marijuana.              Appellant then admitted to

marijuana use.       He was arrested and charged with furnishing drug-free

urine, use or attempt.2 See 18 Pa.C.S.A. § 7509(b).

             On July 2, 2015, [the trial c]ourt held a non-jury trial.
       Counsel for the Commonwealth and counsel for Appellant
       stipulated that the notes of testimony from the preliminary
       hearing conducted on February 24, 2015 would serve as the
       testimony for the non-jury trial and that, if called to testify,
       [Agent McGowan] would testify consistently with his testimony
       at the preliminary hearing. [The trial c]ourt conducted a []
       colloquy of Appellant’s waiver of right to a jury trial and his
       decision not to testify[.]
____________________________________________


2
  Appellant was also charged separately with a parole violation for THC use.
(See N.T. Trial, 7/02/15, at 10-12).



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J-S32038-16



(Trial Court Opinion, 9/25/15, at 2) (record citations omitted).

       The trial court found Appellant guilty of furnishing drug-free urine, use

or attempt, and sentenced him to no further penalty.            (See N.T. Trial,

7/02/15, at 15). This timely appeal followed.3

       Appellant raises one question on appeal:

       [I.] Whether the evidence is insufficient to support the bench
       trial guilty finding on [f]urnishing drug-free urine because the
       [C]ommonwealth did not prove beyond a reasonable doubt that
       [Appellant] gave 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 a test for the presence of drugs?

(Appellant’s Brief, at 5).

       In his sole issue on appeal, Appellant claims that the evidence offered

by the Commonwealth was insufficient to support his conviction of furnishing

drug-free urine, use or attempt, because it did not establish that the liquid

he provided was urine.        (See id. at 9-11).   Specifically, he contends that

“[t]he evidence shows that the substance at issue was a liquid, but at that

point proof beyond a reasonable doubt that it was urine vaporized.” (Id. at

7). We disagree.4
____________________________________________


3
  Appellant filed a notice of appeal on July 31, 2015. Pursuant to the trial
court’s order, he filed a concise statement of errors complained of on appeal
on September 16, 2015. See Pa.R.A.P. 1925(b). The trial court issued its
opinion on September 25, 2015. See Pa.R.A.P. 1925(a).
4
  We note that Appellant’s statement of errors complained of on appeal,
which simply stated “[t]he evidence was insufficient to sustain the guilty
verdict in a bench trial because the Commonwealth failed to prove beyond a
reasonable doubt that Appellant used or attempted to use drug-free urine in
(Footnote Continued Next Page)


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      Our standard of review for sufficiency of the evidence claims is well

settled:

            We must determine whether the evidence admitted at trial,
      and all reasonable inferences drawn therefrom, when viewed in a
      light most favorable to the Commonwealth as verdict winner,
      support the conviction beyond a reasonable doubt. Where there
      is sufficient evidence to enable the trier of fact to find every
      element of the crime has been established beyond a reasonable
      doubt, the sufficiency of the evidence claim must fail.

            The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute
      our judgment for that of the fact-finder. The Commonwealth’s
      burden may be met by wholly circumstantial evidence and any
      doubt about the defendant’s guilt is to be resolved by the fact[-
      ]finder unless the evidence is so weak and inconclusive that, as
      a matter of law, no probability of fact can be drawn from the
      combined circumstances.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citation

omitted).

      The trial court convicted Appellant of violating section (b) of 18

Pa.C.S.A. § 7509, which provides in full:

                       _______________________
(Footnote Continued)

its prosecution per 18 Pa.C.S.[A. §] 7509(b),” was vague and failed to
specify how the evidence presented at trial was insufficient. (Statement of
Errors Complained of on Appeal, 9/16/15, at 1); see Commonwealth v.
Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008) (finding sufficiency issue
waived where 1925(b) statement was not specific). Nevertheless, the trial
court was able to discern Appellant’s argument, and addressed his claim in
its opinion. (See Trial Ct. Op., at 1, 3). Therefore, although Appellant did
not comply with our appellate rules, we find that it has not inhibited our
ability to review his claim, and decline to find waiver on that basis. See
Commonwealth v. Andre, 17 A.3d 951, 962 n.12 (Pa. Super. 2011).



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J-S32038-16


            (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 a 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 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.

      As a preliminary matter, we observe that an analysis of the evidence

needed to support a conviction under subsection (b) is an issue of first

impression in this Court.   Our review of caselaw has revealed no case in

either the Pennsylvania Superior or Supreme Court that has specifically

addressed the sufficiency of evidence needed to support a conviction of

furnishing drug-free urine under 18 Pa.C.S.A. § 7509(b). Nonetheless, we

are guided by well-settled precedent in determining the appropriate

interpretation of the applicable statutory law.      We are mindful of our

Statutory Construction Act of 1972, 1 Pa.C.S.A. §§ 1501-1991.

      Our task in construing a statute 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. 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.

Commonwealth v. Mohamud, 15 A.3d 80, 85–86 (Pa. Super. 2010)

(quotation marks and citations omitted). “When the words of the statute are

not explicit, the intention of the General Assembly may be ascertained by

considering, among other matters: . . . [t]he object to be attained[, and] . .

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J-S32038-16



. [t]he consequences of a particular interpretation.”            1 Pa.C.S.A. §

1921(c)(4), (6).

      We conclude that the General Assembly intended the phrase “drug-

free urine” to include any liquid that an offender presents, which he claims is

his own urine, in an attempt to achieve a negative result on a drug test. 18

Pa.C.S.A. § 7509(b); see 1 Pa.C.S.A. § 1921(c)(4), (6).               Appellant’s

argument, that the statute requires the Commonwealth to prove that the

liquid is urine, would create an absurd result wherein it would not be a

violation of the statute for a person to submit a sample of water, diluted

urine, or other substance, in an attempt to “evad[e] or caus[e] deceitful

results in a test for the presence of drugs.” 18 Pa.C.S.A. § 7509(b); see 1

Pa.C.S.A. § 1922 (“In ascertaining the intention of the General Assembly in

the enactment of a statute the following presumptions, among others, may

be used: (1) That the General Assembly does not intend a result that is

absurd, impossible of execution or unreasonable.”).

      Here, the evidence stipulated to at trial established that after being

directed to provide a sample of urine, Appellant gave Agent McGowan a

urine sample cup filled with liquid that tested negative for controlled

substances.    (See N.T. Hearing, 2/24/15, at 5-6, 13).         Agent McGowan

testified that the urine cup was filled with a clear liquid that looked like water

and that the temperature gauge on the back of the cup showed a

temperature in the seventy-degree range, whereas urine samples are

typically in a ninety-degree range of temperatures. (See id. at 5-6, 9, 11-

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J-S32038-16



12). The evidence also showed that within a half-hour of providing the first

sample Appellant provided a second sample, which tested positive for THC.

(See id. at 14).

      Upon review, we agree with the trial court that the Commonwealth

produced sufficient evidence to prove beyond a reasonable doubt that

Appellant used a drug-free liquid to evade or cause deceitful results in a test

for the presence of drugs. Viewing the evidence in the light most favorable

to the Commonwealth as verdict winner, we find that that when asked to

provide a urine sample, Appellant presented a sample cup of liquid, which

tested negative for controlled substances.     When he presented a second

sample, his own urine tested positive. We have no hesitation in concluding

that Appellant attempted to pass off the first sample as drug-free urine

within the meaning of section 7509.          See 18 Pa.C.S.A. § 7509(b).

Accordingly, Appellant’s issue does not merit relief. See Tarrach, supra at

345; Williams, supra at 1257.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/2016




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