Com. v. Schaeffer, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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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

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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

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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.

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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]

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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

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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

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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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