Commonwealth v. Glenn, 052920 PASUP, 1595 WDA 2019

Docket Nº:1595 WDA 2019
Opinion Judge:MURRAY, J.
Judge Panel:BEFORE: SHOGAN, J., MURRAY, J., and STRASSBURGER, J. Judge Shogan joins the Opinion. STRASSBURGER, J.
Case Date:May 29, 2020
Court:Superior Court of Pennsylvania

2020 PA Super 128




No. 1595 WDA 2019

Superior Court of Pennsylvania

May 29, 2020

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




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 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 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.

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...

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