J-A09029-20

                                   2020 PA Super 128

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WAYNE RICHARD GLENN                        :
                                               :
                       Appellant               :   No. 1595 WDA 2019

         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


BEFORE:       SHOGAN, J., MURRAY, J., and STRASSBURGER, J.*

OPINION BY MURRAY, J.:                                     FILED MAY 29, 2020

        Wayne Richard Glenn (Appellant) appeals from the judgment of

sentence imposed after the trial court convicted him of driving under the

influence of metabolites of a controlled substance (DUI-metabolite).1 After

careful consideration, we vacate the judgment of sentence and discharge

Appellant.2

        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
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S.A. § 3802(d)(1)(iii).

2The Commonwealth initially filed a brief advocating for affirmance; however,
on April 20, 2020, the Commonwealth filed an application requesting to
withdraw its brief based on its subsequent determination that it agreed with
Appellant. We grant the application.
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       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
____________________________________________


3 It is undisputed that Norfentanyl is a metabolite of Fentanyl, the latter of
which is classified as a Schedule II controlled substance. See 35 P.S. § 780-
104(2)(ii)(6). The term “metabolite” is not defined by statute. However, the
term is commonly defined as “any substance produced in the process of
metabolism.” SCHMIDT’S ATTORNEY’S DICTIONARY OF MEDICINE M-157 (2004);
accord Vereen v. Pa. Bd. of Prob. & Parole, 515 A.2d 637, 639 n.4 (Pa.
Commw. 1986) (explaining that a controlled substance “metabolite” is the
substance produced by the body while it is metabolizing the “parent”
controlled substance). In the human body’s process of metabolizing – or
breaking down – Fentanyl, Norfentanyl is produced.

4 The Commonwealth does not dispute that Appellant had a medical
prescription for the Fentanyl patch.

5Appellant does not dispute that he had Fentanyl and Norfentanyl in his blood
at the time of his arrest.




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       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 75

Pa.C.S.A. § 3802(d)(1)(iii) be read so as to not criminalize driving with the

metabolite of a medically prescribed controlled substance, since the legislature

did not criminalize driving under the influence of the prescribed controlled

substance itself?” Appellant’s Brief at 7.


____________________________________________


6 The trial court found reasonable doubt as to when and where Appellant had
consumed alcohol, and when he had last driven his car. It also found that
there was no evidence to establish that Appellant had driven recklessly or was
unlawfully intoxicated in public.

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       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 1 Pa.C.S.A. § 1921(a).

       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).

75 Pa.C.S.A. § 3802(d)(1).7

       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


____________________________________________


7 We note pending legislation proposing an amendment to 75 Pa.C.S.A. §
3802(d)(1)(i) to include the following language at the end of that subsection:
“EXCEPT MARIJUANA USED LAWFULLY IN ACCORDANCE WITH THE ACT OF
APRIL 17, 2016 (P.L. 84, NO. 16), KNOWN AS THE MEDICAL MARIJUANA
ACT[.]” H.B. 2337 (introduced March 10, 2020) (capitalization in original).

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J-A09029-20


motor vehicle with any amount of the metabolite Norfentanyl in the

individual’s blood, even if, as here, that metabolite is produced from medically

prescribed Fentanyl. See Trial Court Opinion, 12/7/2019, at 5. The court

stated:


      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).




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J-A09029-20


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 75 Pa.C.S.A. § 3802(d)(1)(ii) (providing that an individual

cannot be convicted of driving under the influence of a Schedule II or III

controlled substance if such substance had “been medically prescribed for the

individual”).   Appellant argues that the trial court’s interpretation of the

statute produces an absurd result which was not intended by the legislature.

See Appellant’s Brief at 10. He further contends that the trial court erred in

failing to (1) read the statute as a whole; and (2) construe any ambiguities of

the penal statute in his favor as the accused. See id. at 9. We agree.

      Upon review, we conclude that the trial court’s interpretation of

subsection 3802(d)(1)(iii) leads to an absurd and unreasonable result, which

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we presume the legislature did not intend. See 1 Pa.C.S.A. § 1922(1); see

also In re Buchanan, 823 A.2d 147, 150 (Pa. Super. 2003) (emphasizing

that a court “may consider [the] practical consequences of [a] particular

interpretation of [a] statute in order to effectuate the most sensible

construction possible.”).   If an individual has a medical prescription for a

controlled substance such as Fentanyl, it follows that the individual may

lawfully have metabolites produced by the controlled substance in their

bloodstream while their body is metabolizing the Fentanyl. We do not perceive

a sensible reading of the entirety of the text of section 3802(d)(1) to support

the construction of subsection (d)(1)(iii) as applied by the trial court. See

Commonwealth v. Duncan, 321 A.2d 917, 919 (Pa. 1974) (explaining that

although criminal statutes must be strictly construed, this “does not require

that the words of a criminal statute be given their narrowest meaning,” and

stating that “courts have a duty to see to it that the legislative intent is not

thwarted by a construction which is unreasonably rigid and inflexible”). We

cannot conclude that the legislature intended to permit an individual to

lawfully operate a motor vehicle while a medically prescribed “parent”

Schedule II or III controlled substance is in their bloodstream (i.e., under

subsection (d)(1)(ii)), but simultaneously prohibit this same individual from

lawfully operating a vehicle while a metabolite of the same substance is in

their bloodstream (i.e., under subsection (d)(1)(iii)).




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J-A09029-20


      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 most favorable to the accused, and

where doubt exists, the accused should receive the benefit of the doubt).

      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.


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J-A09029-20


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/2020




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