J-S32038-16
2016 PA Super 115
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSE RODRIGUEZ,
Appellant No. 2403 EDA 2015
Appeal from the Judgment of Sentence July 2, 2015
in the Court of Common Pleas of Delaware County
Criminal Division at No.: CP-23-CR-0001250-2015
BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*
OPINION BY PLATT, J.: FILED JUNE 06, 2016
Appellant, Jose Rodriguez, appeals from the judgment of sentence
imposed on July 2, 2015, following his non-jury trial conviction of furnishing
drug-free urine, use or attempt.1 Appellant challenges the sufficiency of the
evidence. We affirm.
We take the factual and procedural history in this matter from the trial
court’s September 25, 2015 opinion and our review of the certified record.
On October 31, 2014, Appellant arrived for a parole supervision appointment
and was directed to provide Pennsylvania State Parole Board Agent Zane
McGowan with a urine sample. Appellant entered the bathroom to provide
the sample. He then walked approximately six feet to the interview room
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 7509(b).
J-S32038-16
where Agent McGowan was waiting for him, and handed him a urine sample
cup filled with liquid.
Agent McGowan observed that the urine sample cup looked as if it was
filled with water and the cup’s temperature indicator showed a temperature
of approximately seventy degrees, whereas the cup indicator typically shows
a ninety-degree temperature reading for urine. He noted that the liquid in
the cup did not smell like urine. He tested the sample and it came up
negative for narcotics or controlled substances. Agent McGowan did not test
the sample to determine whether the liquid contained within was urine.
After the first cup tested negative, Agent McGowan asked Appellant to
provide a second sample. He did so and when Agent McGowan tested the
second sample it indicated a positive result for Tetrahydrocannabinol (THC),
the active drug compound in marijuana. Appellant then admitted to
marijuana use. He was arrested and charged with furnishing drug-free
urine, use or attempt.2 See 18 Pa.C.S.A. § 7509(b).
On July 2, 2015, [the trial c]ourt held a non-jury trial.
Counsel for the Commonwealth and counsel for Appellant
stipulated that the notes of testimony from the preliminary
hearing conducted on February 24, 2015 would serve as the
testimony for the non-jury trial and that, if called to testify,
[Agent McGowan] would testify consistently with his testimony
at the preliminary hearing. [The trial c]ourt conducted a []
colloquy of Appellant’s waiver of right to a jury trial and his
decision not to testify[.]
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2
Appellant was also charged separately with a parole violation for THC use.
(See N.T. Trial, 7/02/15, at 10-12).
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(Trial Court Opinion, 9/25/15, at 2) (record citations omitted).
The trial court found Appellant guilty of furnishing drug-free urine, use
or attempt, and sentenced him to no further penalty. (See N.T. Trial,
7/02/15, at 15). This timely appeal followed.3
Appellant raises one question on appeal:
[I.] Whether the evidence is insufficient to support the bench
trial guilty finding on [f]urnishing drug-free urine because the
[C]ommonwealth did not prove beyond a reasonable doubt that
[Appellant] gave drug-free urine for the purpose of or with the
intent or knowledge that the urine will be used for evading or
causing deceitful results in a test for the presence of drugs?
(Appellant’s Brief, at 5).
In his sole issue on appeal, Appellant claims that the evidence offered
by the Commonwealth was insufficient to support his conviction of furnishing
drug-free urine, use or attempt, because it did not establish that the liquid
he provided was urine. (See id. at 9-11). Specifically, he contends that
“[t]he evidence shows that the substance at issue was a liquid, but at that
point proof beyond a reasonable doubt that it was urine vaporized.” (Id. at
7). We disagree.4
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3
Appellant filed a notice of appeal on July 31, 2015. Pursuant to the trial
court’s order, he filed a concise statement of errors complained of on appeal
on September 16, 2015. See Pa.R.A.P. 1925(b). The trial court issued its
opinion on September 25, 2015. See Pa.R.A.P. 1925(a).
4
We note that Appellant’s statement of errors complained of on appeal,
which simply stated “[t]he evidence was insufficient to sustain the guilty
verdict in a bench trial because the Commonwealth failed to prove beyond a
reasonable doubt that Appellant used or attempted to use drug-free urine in
(Footnote Continued Next Page)
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Our standard of review for sufficiency of the evidence claims is well
settled:
We must determine whether the evidence admitted at trial,
and all reasonable inferences drawn therefrom, when viewed in a
light most favorable to the Commonwealth as verdict winner,
support the conviction beyond a reasonable doubt. Where there
is sufficient evidence to enable the trier of fact to find every
element of the crime has been established beyond a reasonable
doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute
our judgment for that of the fact-finder. The Commonwealth’s
burden may be met by wholly circumstantial evidence and any
doubt about the defendant’s guilt is to be resolved by the fact[-
]finder unless the evidence is so weak and inconclusive that, as
a matter of law, no probability of fact can be drawn from the
combined circumstances.
Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citation
omitted).
The trial court convicted Appellant of violating section (b) of 18
Pa.C.S.A. § 7509, which provides in full:
_______________________
(Footnote Continued)
its prosecution per 18 Pa.C.S.[A. §] 7509(b),” was vague and failed to
specify how the evidence presented at trial was insufficient. (Statement of
Errors Complained of on Appeal, 9/16/15, at 1); see Commonwealth v.
Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008) (finding sufficiency issue
waived where 1925(b) statement was not specific). Nevertheless, the trial
court was able to discern Appellant’s argument, and addressed his claim in
its opinion. (See Trial Ct. Op., at 1, 3). Therefore, although Appellant did
not comply with our appellate rules, we find that it has not inhibited our
ability to review his claim, and decline to find waiver on that basis. See
Commonwealth v. Andre, 17 A.3d 951, 962 n.12 (Pa. Super. 2011).
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(a) Unlawful sale or attempt.—A person commits a
misdemeanor of the third degree if he offers for sale, sells,
causes to be sold or gives drug-free urine for the purpose of or
with the intent or knowledge that the urine will be used for
evading or causing deceitful results in a test for the presence of
drugs.
(b) Use or attempt.—A person commits a misdemeanor
of the third degree if he uses or attempts to use drug-free urine
as provided in subsection (a) for the purpose of evading or
causing deceitful results in a test for the presence of drugs.
18 Pa.C.S.A. § 7509.
As a preliminary matter, we observe that an analysis of the evidence
needed to support a conviction under subsection (b) is an issue of first
impression in this Court. Our review of caselaw has revealed no case in
either the Pennsylvania Superior or Supreme Court that has specifically
addressed the sufficiency of evidence needed to support a conviction of
furnishing drug-free urine under 18 Pa.C.S.A. § 7509(b). Nonetheless, we
are guided by well-settled precedent in determining the appropriate
interpretation of the applicable statutory law. We are mindful of our
Statutory Construction Act of 1972, 1 Pa.C.S.A. §§ 1501-1991.
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. Mohamud, 15 A.3d 80, 85–86 (Pa. Super. 2010)
(quotation marks and citations omitted). “When the words of the statute are
not explicit, the intention of the General Assembly may be ascertained by
considering, among other matters: . . . [t]he object to be attained[, and] . .
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. [t]he consequences of a particular interpretation.” 1 Pa.C.S.A. §
1921(c)(4), (6).
We conclude that the General Assembly intended the phrase “drug-
free urine” to include any liquid that an offender presents, which he claims is
his own urine, in an attempt to achieve a negative result on a drug test. 18
Pa.C.S.A. § 7509(b); see 1 Pa.C.S.A. § 1921(c)(4), (6). Appellant’s
argument, that the statute requires the Commonwealth to prove that the
liquid is urine, would create an absurd result wherein it would not be a
violation of the statute for a person to submit a sample of water, diluted
urine, or other substance, in an attempt to “evad[e] or caus[e] deceitful
results in a test for the presence of drugs.” 18 Pa.C.S.A. § 7509(b); see 1
Pa.C.S.A. § 1922 (“In ascertaining the intention of the General Assembly in
the enactment of a statute the following presumptions, among others, may
be used: (1) That the General Assembly does not intend a result that is
absurd, impossible of execution or unreasonable.”).
Here, the evidence stipulated to at trial established that after being
directed to provide a sample of urine, Appellant gave Agent McGowan a
urine sample cup filled with liquid that tested negative for controlled
substances. (See N.T. Hearing, 2/24/15, at 5-6, 13). Agent McGowan
testified that the urine cup was filled with a clear liquid that looked like water
and that the temperature gauge on the back of the cup showed a
temperature in the seventy-degree range, whereas urine samples are
typically in a ninety-degree range of temperatures. (See id. at 5-6, 9, 11-
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12). The evidence also showed that within a half-hour of providing the first
sample Appellant provided a second sample, which tested positive for THC.
(See id. at 14).
Upon review, we agree with the trial court that the Commonwealth
produced sufficient evidence to prove beyond a reasonable doubt that
Appellant used a drug-free liquid to evade or cause deceitful results in a test
for the presence of drugs. Viewing the evidence in the light most favorable
to the Commonwealth as verdict winner, we find that that when asked to
provide a urine sample, Appellant presented a sample cup of liquid, which
tested negative for controlled substances. When he presented a second
sample, his own urine tested positive. We have no hesitation in concluding
that Appellant attempted to pass off the first sample as drug-free urine
within the meaning of section 7509. See 18 Pa.C.S.A. § 7509(b).
Accordingly, Appellant’s issue does not merit relief. See Tarrach, supra at
345; Williams, supra at 1257.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2016
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