J-A18023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

CODY ELLEN ALTERIO

                            Appellant                  No. 2147 MDA 2013


        Appeal from the Judgment of Sentence of November 12, 2013
               In the Court of Common Pleas of Centre County
             Criminal Division at No.: CP-14-CR-0001903-2012


BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.:                              FILED AUGUST 29, 2014

       Cody Alterio appeals her November 12, 2013 judgment of sentence.

We affirm.

       On September 10, 2012, Margie Schreffler called the Bellefonte Police

                                               ving around snorting bath salts[1]

and saying something about not letting the bitch out of her trunk until she




eventually spotted her exiting a silver Nissan Altima, which was parked in



____________________________________________


1

contain synthetic cathinones such as mephedrone.          See 35 P.S. §§ 780
104(1)(iii)(17) (25), (vii)(1) (8), (viii)(1) (9).
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                                                 Id. at 9.   Alterio admitted to

Officer A

this encounter, that she had recently tried bath salts. Alterio stated that her

estranged boyfriend had been sneaking another woman into the trunk of her

vehicle.     Convinced that someone was hiding in her vehicle, Alterio

requested that Corporal Igoe search her trunk.



Berry, found two small clear plastic bags that are commonly used to package

illegal drugs. Thereafter, Alterio consented to a search of her entire vehicle.

During that search, Officer Berry and Corporal Igoe discovered fifty-seven



vehicle. Six of those stamp bags contained residue that tested positive for

heroin. Additionally, Officer Berry and Corporal Igoe found a small zip-top



       Alterio failed a standard field sobriety test and subsequently was

arrested and charged with two counts of driving under the influence of a

controlled substance and one count of possession of drug paraphernalia. 2 A

drug recognition expert evaluated Alterio and concluded that she was under

the influence of bath salts and heroin. Alterio also consented to a blood test,

____________________________________________


2
     75 Pa.C.S. §§ 3802(D)(1)(iii), 3802(D)(2), and 35 P.S. § 780-
113(A)(32), respectively.



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which revealed the presence of morphine3

forty-eight nanograms per milliliter.

       Alterio proceeded to a non-jury trial on June 17, 2013.       During that

                                                         toxicology report, which

she contended was inadmissible pursuant to 75 Pa.C.S. § 1547(c)(4). N.T.

at 45. Specifically, Alterio argued that the report was inadmissible because



                      4
he                        Id. The trial court admitted the toxicology report into
____________________________________________


3
      Morphine is both a schedule II controlled substance and a metabolite
of heroin, which is a schedule I controlled substance. See 35 P.S. §§ 780-
101, et seq.
4

                          -related DUI context as follows:

       [Blood s]erum is acquired after a whole blood sample is
       centrifuged, which separates the blood cells and fibrin, the
                                                  the clear liquid is the
       blood serum. When blood serum is tested the results will show a
       blood alcohol content which can range from between [ten] to
       [twenty] percent higher than a test performed on whole blood.
       The reason for this is because the denser components of whole
       blood, the fibrin and corpuscles, have been separated and
       removed from the whole blood, leaving the less dense serum
       upon which the alcohol level test is performed. The value of the
       blood alcohol content in the serum is then determined. Because
       the serum is less dense than whole blood, the weight per volume
       of the alcohol in the serum will be greater than the weight per
       volume in the whole blood. Thus, an appropriate conversion
       factor is required to cal[c]ulate the corresponding alcohol
       content in the original whole blood sample.

Commonwealth v. Michuck, 686 A.2d 403, 405 06 (Pa. Super. 1996)
(internal citations, quotation marks, and footnotes omitted).



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two counts of driving under the influence of a controlled substance and one

count of possession of drug paraphernalia.5 On September 6, 2013, the trial



       On November 27, 2013, Alterio filed a timely notice of appeal. 6     On

December 2, 2013, Alterio filed a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b).         On January 15, 2014, the trial

court issued an opinion pursuant to Rule. 1925(a).

       Alterio presents the following issue for our consideration:

       Because 75 Pa.C.S. §1547(c)(4) specifically requires the
       Department of Health to establish minimum levels of a schedule
       I, non-prescribed schedule II, and non-prescribed schedule III
       substances or their metabolites in blood in order for the test
       results to be admissible, and case law clearly defines blood as
       whole blood, the trial court erred as a matter of law in admitting


       m
       the testimony clearly showed what went into the chromatograph
       for testing was not whole blood, and no conversion factor was
       testified to that gave a whole blood equivalent test result.


____________________________________________


5
      On June 17, 2013, the Commonwealth withdrew one count of DUI (75
Pa.C.S. § 3802(d)(2)), and replaced it with a charge under a different
subsection (75 Pa.C.S. § 3802(d)(1)(ii)).
6
     On September 13, 2013, Alterio timely filed a motion to modify her
sentence, which the trial court granted on November 7, 2013. On November
                                                  e to run concurrently to

27, 2013 notice of appeal was timely filed. See Pa.R.A.P. 903.



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Brief for Alterio at 1 (minor modifications for clarity).

      Alterio principally argues that the trial court erred in admitting the

results of her blood test because the Commonwealth conducted that test on

                                                             e. The admission

of evidence is within the sound discretion of the trial court and will not be

reversed absent an abuse of discretion. Commonwealth v. Priest, 18 A.3d

1235, 1240 41 (Pa. Super. 2011). An abuse of discretion occurs when the

trial court mi

unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown

                                    Commonwealth v. Borovichka, 18 A.3d

1242, 1253 (Pa. Super. 2011) (citation omitted).

      Alterio was convicted under DUI subsections 3802(d)(1)(iii) and

3802(d)(1)(ii), which provide as follows:

      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)                                      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).



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75 Pa.C.S. § 3802(d) (footnote omitted; emphasis added).

       The admissibility of chemical testing in DUI cases is governed by 75

Pa.C.S. § 1547(c). In pertinent part, that provision states:

       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


       blood or urine, 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

               blood in order for the test results to be admissible in a
               prosecution for a violation of [sub]section 1543(b)(1.1),
               3802(d)(1), (2) or (3) or 3808(a)(2).

75   Pa.C.S.    §   1547(c)     (footnote      omitted).   Pursuant   to   subsection

1547(c)(4), the Pennsylvania Department of Health has set the minimum

detection level for morphine at five nanograms per milliliter.7            See 42 Pa.

Bull. 110 (Jan. 7, 2012).

                                                    report indicated that her blood

contained forty-eight nanograms per milliliter of morphine, a level well
____________________________________________


7
     In 2014, the Department of Health decreased the threshold amount of
morphine required to be present in an admissible blood sample to two
nanograms per milliliter. See 44 Pa. Bull. 132 (Jan. 4, 2014). Nevertheless,

was five nanograms per milliliter.



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however, takes issue with the fact that only her blood serum, rather than

her w

subsection 1547(c)(4) requires that the Commonwealth establish that the



(rather than blood serum) exceeded the Department

detection level. Hence, we must determine whether section 1547 imposes

such a requirement.

     The interpretation of a statute presents a question of law, as to which

our standard of review is de novo.    Commonwealth v. Van Aulen, 952

A.2d 1183, 1184 (Pa. Super. 2008).

     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. Steffy, 36 A.3d 1109, 1111 (Pa. Super. 2012) (quoting

Commonwealth v. Sarapa, 13 A.3d 961, 964 (Pa. Super. 2011)).

     Although 75 Pa.C.S. § 1547(c) indicates that the results of blood tests

are admissible in DUI proceedings, and grants to the Department of Health

the authority to regulate the procedures and equipment used to conduct

those tests, the statute does not dictate any particular form of blood that

must be tested.   Instead, the statute merely refers to the generic term




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J-A18023-14



Vehicle Code.8

component parts, we find the term to be ambiguous. See Commonwealth

v. Dagnon

question that both whole blood and blood serum may be utilized to analyze a



       In Commonwealth v. Dagnon, 605 A.2d 360 (Pa. Super. 1992), we




case, Dagnon, a motorist who had been involved in a fatal vehicle accident,

was charged with, inter alia, DUI.             In its prosecution, the Commonwealth

                                                        -accident blood alcohol test,


____________________________________________


8
       The General Assembly has defined other related phrases that are


       [a]nalysis performed on a biological material, including but not
       limited to breath, blood or urine, to determine the identity or
       concentration or both of particular constituents such as alcohol
       or controlled substances. Test procedures may rely on one
       or more physical or chemical properties of the constituent
       and utilize instrumental or chemical analysis techniques
       to accomplish the determination.

75 Pa.C.S. § 102 (emphasis added).                Similarly, our Motor Vehicle Code

intended to be used and is maintained or operated for the purpose of
transporting blood or blood products                                 Id.
(emphasis added). The language used by the General Assembly in defining
these terms does not demonstrate any clear intent to distinguish between
whole blood and blood serum.



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      Dagnon filed a pretrial motion to suppress the blood serum test

results, arguing that they were inadmissible pursuant to subsection 1547(c).

See




blood alcohol tests to be conducted on whole blood in order to be admissible

in DUI prosecutions.




      the Department, in performance of its regulatory function under
      75 Pa.C.S. § 1547(c), published a list covering the year in which
      the within incident occurred that approved various laboratories
      to conduct blood alcohol tests utilizing both whole blood and
      blood serum.     See 20 Pa.Bull. 306.       Consequently, it has
      interpreted the term to include blood in either of those forms.
      Since the interpretation that an administrative agency gives to a
      statutory provision that it is charged with applying is entitled to
      deference, see Masland v. Bachman, 374 A.2d 517 (Pa.
      1977), and since we find the Department
      reasonable, we adopt it as being in conformity with legislative
      intent.

Dagnon, 605 A.2d at 362 (citations modified).

      Since our decision in Dagnon, the General Assembly has made

substantive   amendments     to   section   1547,   including   the   addition   of

subsection 1547(c)(4), which directs the Department of Health to establish

minimum levels of controlled substances required to be present in admissible

test results. Moreover, our DUI statute has also undergone major revisions



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post-Dagnon.       See 75 Pa.C.S. § 3731 (repealed by 2003, Sept. 30, P.L.



to re-examine section 1547.

      It is well-settled that our task in construing a statute is to ascertain

and effectuate the intent of the General Assembly. Steffy, supra. In order



examine:     (1)   the   occasion   and   necessity   for   the   statute;   (2)   the

circumstances under which it was enacted; (3) the mischief to be remedied;

(4) the object to be attained; (5) the former law, if any, including other

statutes upon the same or similar subjects; (6) the consequences of a

particular interpretation; (7) the contemporaneous legislative history; and

(8) legislative and administrative interpretations of such statute. 1 Pa.C.S.

§ 1921(c).     In this instance, we base our analysis primarily upon the

                                     ation of section 1547 as demonstrated by

the pervasive regulatory framework that the Department has set forth.

      As we noted in Dagnon, the Department of Health, as is required by

section 1547, has issued extensive regulations relating to the screening of

blood for the presence of alcohol and controlled substances and the

procedures and equipment to be used to conduct such tests. See e.g., 28

Pa. Code 5.1 5.104. For example, the Department has complied with the

dictates of subsection 1547(c)(2)(ii), which provides as follows:

      (ii) For purposes of blood and urine testing to determine blood
           alcohol or controlled substance content levels, the
           procedures and equipment prescribed by the Department of

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J-A18023-14


            Health shall be reviewed within 120 days of the effective
            date of this subparagraph and at least every two years
            thereafter to ensure that consideration is given to scientific
            and technological advances so that testing conducted in
            accordance with the prescribed procedures utilizing the
            prescribed equipment will be as accurate and reliable as
            science and technology permit.

75 Pa.C.S. § 1547(c)(2)(ii).

       Pursuant to subsection 1547(c)(2)(ii), the Department has published a

list of laboratories that are approved to conduct testing for alcohol and/or

controlled substances. See 42 Pa. Bull. 86 (Jan. 7, 2012). That bulletin is

                                                                     Blood and/or

Serum                                                                            Id.

(emphasis added).         Therein, the Department clearly states that some



                                          9
                                               Id.   Again, subsection 1547(c)(2)(ii)

gives the Department of Health the authority to prescribe the procedures




whole blood or blood serum.             It is well-settled that great weight and

deference should be afforded to the interpretation of a statute by an


____________________________________________


9
       It is undisputed that the Department of Health has licensed NMS Labs,

serum. 42 Pa. Bull. 86 (Jan. 7, 2012).



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administrative agency that is charged with executing and applying it.

Dagnon, 605 A.2d at 362 (citing Masland v. Bachman, 374 A.2d 517 (Pa.

1977)); 1 Pa.C.S. § 1921(c)(8).

      Alterio also argues that the Department of Health, in setting minimum

quantitation limits for various controlled substances, necessarily intended

that blood testing be conducted only on whole blood. Brief for Alterio at 13-

                                                 s January 7, 2012 bulletin,

which sets the minimum detection levels for controlled substances, describes

the purpose of such minimum levels as follows:

      The minimum quantitation limits listed for each controlled
      substance or metabolite are the lowest concentrations that one
      or more of the laboratories with the least sensitive procedures in

      testing services specified they can reliably determine. . . .
      Confirmatory analyses employed to substantiate the presence of
      a drug or drug metabolite generally focus on identifying and
      quantitatively determining the concentration of the parent drug
      or a primary metabolite if extensive biotransformation occurs.
      The detection limits listed were developed by reviewing the
      minimum reportable concentrations for confirmatory analyses

      they could measure. The concentrations listed are the highest
      [limits of quantitation] that any of the laboratories approved by
      the Department to test blood for controlled substance content
      specify they can reliably determine.

42 Pa. Bull. 110 (Jan. 7, 2012).



quantitation limits are to ensure the reliability of blood testing for

controlled substances.   The Department sets these minimum quantitation

limits based upon the equipment and procedures, which are used at the

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least sensitive laboratory licensed to conduct such testing. At the time that

       s blood was analyzed, the least sensitive laboratory licensed by the

Department of Health was capable of reliably detecting blood levels of



effort to distinguish between whole blood and blood serum, in this context, is



could reliably detect five nanograms of morphine per milliliter of whole

blood, so too could the laboratory reliably detect five nanograms of

morphine per milliliter of blood serum.

       Finally, Alterio relies upon Commonwealth v. Wanner, 605 A.2d 805



                                                                           or

Alterio at 10.   In Wanner

sufficiency of the evidence supporting his conviction for an alcohol related

DUI.   605 A.2d at 807.    Alterio misunderstands our holding in Wanner,

                                  e our statutes do not dictate in what form

blood must be tested, only evidence of the amount of alcohol by weight in



                 Wanner, 605 A.2d at 808 (citing Commonwealth v.

Bartolacci, 598 A.2d 287, 288 (Pa. Super. 1991)). Indeed, it is well-settled

that evidence of blood serum or plasma testing, without conversion to a

whole blood result, is insufficient to sustain a conviction for an alcohol-

related DUI. See Wanner, 605 A.2d at 809; Bartolacci, 598 A.2d at 288.

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       The whole blood requirement espoused in Wanner was not based
                                                   10
                                                        Rather, our holding

                                                    -related offenses, which

require

percentage range. Wanner, 605 A.2d at 809; see 75 Pa.C.S. §§ 3802(a)-

(c). Unlike alcohol-related offenses, the DUI controlled substance subsection

at issue in the case sub judice, prohibits any amount of a controlled

                                                        3802(d)(1).   For this

reason, the distinction between whole blood and blood serum is immaterial

for purposes of a conviction under subsection 3802(d)(1). Commonwealth

v. Hutchins

of non-whole blood to whole blood test results is unnecessary because

                                                              -alcohol related

DUI cases). Alterio was not charged with an alcohol-related DUI, nor does

she present a challenge to the sufficiency of the evidence.        Therefore,

                           Wanner is misplaced.

       For the foregoing reasons, we are unconvinced that either the General

Assembly or the Department of Health

strictly confined to whole blood without any of its constituent parts removed.


____________________________________________


10
      In fact, one month after our decision in Wanner
as used in a prior version of section 1547, encompassed both whole blood
and blood serum. Dagnon, 605 A.2d at 362.



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blood test into evidence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2014




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