J-S79019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


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


____________________________________________


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
____________________________________________


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.




____________________________________________


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]

____________________________________________


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

____________________________________________


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




____________________________________________


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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