J-A06039-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NICHOLAUS ALLEN HANEY :
:
Appellant : No. 510 WDA 2021
Appeal from the Judgment of Sentence Entered April 6, 2021
In the Court of Common Pleas of Armstrong County Criminal Division at
No: CP-03-CR-0000307-2020
BEFORE: MURRAY, J., SULLIVAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: JUNE 28, 2022
Appellant, Nicholaus Allen Haney, appeals from the aggregate judgment
of sentence of 30 days to six months of confinement, which was imposed after
his non-jury trial conviction for driving under the influence (DUI) of a
controlled substance and operation of a vehicle without official certificate of
inspection.1 We affirm.
The facts underlying this appeal are as follows.
On January 10, 2020, Pennsylvania State Police Trooper Codi
Walker was traveling on Butler Rd. in Kittanning when she drove
past a Black Chevy Tahoe lacking a visible inspection sticker.
Trooper Walker was traveling in the opposite direction of the
Tahoe so she turned around, pursued, and initiated a traffic stop.
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. §§ 3802(d)(1)(i), 3802(d)(1)(iii), and 4703, respectively.
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The Tahoe came to a stop on Kittanning Citizens Bridge in the
right-hand lane if driving eastbound toward the courthouse.
Trooper Walker approached the driver’s side door of the Tahoe
and noted there was one occupant, identified at trial as Nicholaus
Allen Haney. She asked him standard questions such as whether
he had any weapons, drugs, had been drinking, was under the
influence of any drugs, or if he was taking any prescriptions.
Appellant replied that he had a prescription for medical marijuana,
and that he uses it most nights, including the previous one.
Trooper Walker noticed that Appellant appeared to be fidgety and
nervous, and asked him to lean back and close his eyes. At this
point Trooper Walker observed that Appellant’s eyes were
“bouncing around,” which, based on her experience as a law
enforcement officer, she identified as a side effect of marijuana
use. She then asked Appellant to step out of the vehicle to
perform Standard Field Sobriety Tests.
Trooper Walker found Appellant’s performance on these tests
dissatisfactory enough to place him under arrest for suspicion of
driving under the influence. He was transported to Armstrong
County Memorial Hospital for a blood draw, to which he consented.
The toxicology report found that, at the time of testing, Haney had
1.2 nanograms of Delta-9 THC (“THC”) per milliliter of blood, with
a margin of error of 0.2 nanograms per milliliter, and 5.4
nanograms per milliliter of Delta-9 Carboxy-THC (“Carboxy THC”),
with a margin of error of 1 nanogram per milliliter. THC is the
principle psychoactive element in marijuana, and Carboxy-THC is
the inactive metabolite of THC, which is present in the
bloodstream after marijuana use.
Trial Court Opinion (TCO), at 2-3.
Appellant was charged by criminal complaint on February 18, 2020 with
two counts of DUI, careless driving, 75 Pa.C.S. § 3714(a), general lighting
requirements, 75 Pa.C.S. § 4303(b), and operation of a vehicle without official
certificate of inspection. Appellant proceeded to a non-jury trial on January
14, 2021 and on January 20, 2021 the trial court found Appellant guilty of
both counts of DUI and of operation of a vehicle without an official certificate
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of inspection. Order, 1/20/21.2 The trial court sentenced Appellant on April
6, 2021. Order, 4/6/21.
On April 20, 2021, Appellant filed this timely notice of appeal.3 Appellant
presents the following issues for our review:
1. Was there insufficient evidence to find the Defendant guilty
of violation of 75 Pa.C.S. section 3802(d)(1)(i) and
3802(d)(1)(iii) beyond a reasonable doubt where the
evidence did not establish that the substance(s) in the
Defendant’s blood were either a Schedule I controlled
substance or a metabolite of a Schedule I controlled
substance, in that medical marijuana is not a Schedule I
controlled substance under the Pennsylvania Controlled
Substance Act.
2. Does the interplay between the [Medical Marijuana Act] and
75 Pa.C.S. Sections 3802(d)(1)(i) and 3802(d)(1)(iii) result
in ambiguousness and uncertainty to the extent that
prosecution of a medical marijuana patient under these
sections violate the Rule of Lenity?
3. Does 35 P.S. Section 10231.2103(a) make medical
marijuana patients immune from prosecution under the “per
se” provisions of 75 Pa.C.S. Sections 3802(d)(1)(i) and
3802(d)(1)(iii) which criminalize any amount of marijuana
and its metabolites in a person’s bloodstream at the time of
driving.
4. Are 75 Pa.C.S. Sections 3802(d)(1)(i) and 3802(d)(1)(iii),
and 35 PS Section 780-104(1)(iv) unconstitutionally vague
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2 The trial court held the verdict under advisement for Appellant to provide it
with case law, Commonwealth v. Jezzi 208 A.3d 1105 (Pa. Super. 2019),
for the trial court to review. N.T., 1/14/21, at 46-47. On January 20, 2021,
the trial court filed its verdict and memorandum in support thereof.
3On April 21, 2021, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b)
statement. Order, 4/21/21. Appellant filed a timely Rule 1925(b) statement
on May 11, 2021. Rule 1925(b) statement, 5/11/21. The trial court filed its
Rule 1925(a) opinion on June 16, 2021.
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and overbroad, and thereby in violation of the Defendant’s
right to due process under the 14th Amendment of the
United States Constitution and Article I, Section 1 of the
Pennsylvania Constitution?
5. Does the application of 75 Pa.C.S. Sections 3802(d)(1)(i)
and 3802(d)(1)(iii) to medical marijuana patients (including
the Defendant) covered under the Medical Marijuana Act, 35
P.S. Sections 10231.101-10231.2110 (MMA) violate the
principles of Equal Protection under the 14th Amendment of
the United States Constitution and Article I, Section 1 of the
Pennsylvania Constitution, thereby making the specified
DUI statues unconstitutional as applied to the Defendant.
6. Does the application of 75 Pa.C.S. Sections 3802(d)(1)(i)
and 3802(d)(1)(iii) to medical marijuana patients create an
improper irrebuttable presumption in violation of the
Irrebuttable Presumption Doctrine and thus violate the due
process protections of the 14th Amendment of the United
States Constitution and Article I, Section 1 of the
Pennsylvania Constitution?
Appellant’s Brief, at 2-3 (suggested answers omitted) (reordered for ease of
discussion).
Appellant argues that the Commonwealth presented insufficient
evidence to establish that he had a Schedule I substance or the metabolite of
a Schedule I substance in his blood, because “medical marijuana” is not a
Schedule I controlled substance in Pennsylvania within the meaning of those
provisions. Appellant’s Brief, at 11.
Our standard when reviewing the sufficiency of the evidence is
whether the evidence at trial, and all reasonable inferences
derived therefrom, when viewed in the light most favorable to the
Commonwealth as verdict-winner, are sufficient to establish all
elements of the offense beyond a reasonable doubt. We may not
weigh the evidence or substitute our judgment for that of the fact-
finder. Additionally, the evidence at trial need not preclude every
possibility of innocence, and the fact-finder is free to resolve any
doubts regarding a defendant's guilt unless the evidence is so
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weak and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. When
evaluating the credibility and weight of the evidence, the fact-
finder is free to believe all, part or none of the evidence. For
purposes of our review under these principles, we must review the
entire record and consider all of the evidence introduced.
Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014) (citation
omitted).
The relevant portion of the DUI statute states as follows:
(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 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;
...
(iii) metabolite of a substance under subparagraph (i) or (ii).
75 Pa.C.S. § 3802(d)(1)(i), (iii).
Section 3802(d)(1) does not require that a driver be impaired;
rather, it prohibits the operation of a motor vehicle by any driver
who has any amount of specifically enumerated controlled
substances in his blood, regardless of impairment.
Commonwealth v. Etchison, 916 A.2d 1169, 1174 (Pa. Super. 2007).
During the pendency of this appeal, this Court decided the question of
whether medical marijuana is a Schedule I controlled substance under
Pennsylvania law and determined,
at the present time, the Schedule I designation for marijuana,
which includes medical marijuana, remains in place in the
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Commonwealth of Pennsylvania pending further legislative
action.
Commonwealth v. Stone, __ A.3d __, __, 2022 PA Super 65, at *7 (filed
April 12, 2022) (en banc) (citations omitted); See, Commonwealth v.
Dabney, __ A.3d __, __, 2022 PA Super 82, at *6 (filed May 5, 2022)
(“[M]edical marijuana remains a Schedule I controlled substance for purposes
of Section 3802(d)(1).”). This Court noted that
[t]he MMA anticipates the removal of marijuana from Schedule I
(see 35 P.S. § 10231.2108), but our General Assembly has not
done so. . . . To date, the General Assembly has not enacted
legislation amending the MMA, CSA, or the DUI statutes to remove
marijuana from its Schedule I designation under state law.
Stone, __ A.3d at __, slip op. at *7 (quotation marks, footnote, and citations
omitted).4
At trial, the Commonwealth admitted into evidence a copy of the
laboratory report containing the results of the blood draw from Appellant on
the night he was arrested. N.T., 1/14/21, at 14. The report indicated that
Appellant had 5.4 nanograms per milliliter of Delta-9 carboxy THC, plus or
minus 1.0, in his blood. Id., at 15; Commonwealth Exhibit, 1. The report
indicated that Delta-9 Carboxy is the inactive metabolite of THC, the major
active component of marijuana. Commonwealth Exhibit, 1. The report also
____________________________________________
4 We note there is proposed legislation at 2021 PA S.B. 473 to amend Chapter
75 (Vehicles) and Chapter 35 (Health and Safety) so that marijuana is not
considered a Schedule I controlled substance. As of the date of this
memorandum, the legislation has been assigned to the committee on law and
justice. See 2021 Pennsylvania Senate Bill No. 473, Pennsylvania Two
Hundred Fifth General Assembly - 2021-2022.
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indicated that Appellant had 1.2 nanograms per milliliter of Delta-9 THC, plus
or minus 0.2. N.T., 1/14/21, at 15; Commonwealth Exhibit, 1. Appellant
testified that he ingested medical marijuana, through vaporization, at
approximately 11:00 or 11:30 the night before he drove. N.T., 1/14/21, at
31.
Marijuana, including medical marijuana, is a Schedule I controlled
substance. See Stone, __ A.3d at __, slip op. at *7 (citations omitted); See
also, Dabney, __ A.3d at __, slip op. at *6. We find the Commonwealth
provided sufficient evidence to support Appellant’s conviction for Section
3802(d)(1)(i) and (iii). Therefore, Appellant’s sufficiency claim fails.
Next, Appellant argues that “the prosecution of Appellant and medical
marijuana patients for violation of 75 Pa.C.S. Sections 3802(d)(1)(i) & (iii)
violates the rule of lenity.” Appellant’s Brief, at 30. Appellant argues that the
“interplay between the MMA [35 P.S. Section 10231.2103(a)] and the DUI
statutes [75 Pa.C.S. Sections 3802(d)(1)(i) & (iii)] creates an ambiguity which
must be decided in favor of defendants . . . to treat medical marijuana as a
prescription drug, and not a Schedule I drug, and to apply the DUI provisions
dealing with actual impairment against medical marijuana patients.” Id., at
32-35.
Appellant argues that the statutes are ambiguous. Our standard of
review regarding statutory construction follows.
When, as here, the appellant raises a question
of statutory construction, “our standard of review is de novo, and
our scope of review is plenary.”
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Commonwealth v. Ford, 175 A.3d 985, 991 (Pa. Super. 2017) (citation
omitted). “[U]nder the rule of lenity, penal statutes must be strictly construed
in favor of the defendant.” Commonwealth v. Smith, 221 A.3d 631, 636
(Pa. 2019) (citation omitted). “The touchstone of the rule of lenity is statutory
ambiguity.” Bifulco v. United States, 447 US 382, 387 (1980) (citation
omitted).
The relevant law regarding statutory interpretation follows.
1 Pa.C.S. 1921. Legislative intent controls
(a) object and scope of construction of statutes. - - The
object of all interpretation and construction of statutes 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.
(b) unambiguous words control construction.- - 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. § 1921 (emphasis added).
When the words of a statute are clear and unambiguous, there is
no need to look beyond the plain meaning of the statute under the
pretext of pursuing its spirit. . . . Only when the words of the
statute are not explicit may a court resort to the rules of statutory
construction, including those provided in 1 Pa.C.S. § 1921(c). . .
. A statute is ambiguous when there are at least two reasonable
interpretations of the text under review. Moreover, statutes in
pari materia shall be construed together, if possible, as one
statute. . . . Finally, it is presumed that the General Assembly
does not intend a result that is absurd, impossible of execution or
unreasonable.
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Warrantech Consumer Prod. Servs., Inc. v. Reliance Ins. Co. in
Liquidation, 96 A.3d 346, 354–55 (Pa. 2014) (internal citations, brackets,
and footnote omitted). “A statute's plain language generally provides the best
indication of legislative intent. . . . In construing the language, however, and
giving it effect, ‘we should not interpret statutory words in isolation, but must
read them with reference to the context in which they appear.’” Ford, 175
A.3d at 991–92 (citation omitted).
Additionally, with regard to statutory interpretation, we are guided by
the following.
(a) Statutes or parts of statutes are in pari materia when they
relate to the same persons or things or to the same class of
persons or things.
(b) Statutes in pari materia shall be construed together, if
possible, as one statute.
1 Pa.C.S. § 1932.
The DUI statutes, 75 Pa.C.S. §§ 3802(d)(1)(i) & (iii), are not
ambiguous. It is illegal to drive with a Schedule I controlled substance, or a
metabolite thereof, in your blood. 75 Pa.C.S. § 3802(d)(1)(i), (iii). Marijuana,
including medical marijuana, remains a Schedule I controlled substance. See
Stone, __ A.3d at __, slip op. at *7; See also, Dabney, __ A.3d at __, slip
op. at *6.
The relevant portion of the MMA, 35 P.S. § 10231.2103(a), follows.
(a) Licensure.--None of the following shall be subject to arrest,
prosecution or penalty in any manner, or denied any right or
privilege, including civil penalty or disciplinary action by a
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Commonwealth licensing board or commission, solely for lawful
use of medical marijuana or manufacture or sale or dispensing of
medical marijuana, or for any other action taken in accordance
with this act:
(1) A patient.
35 P.S. § 10231.2103(a).
First, considering the statute in context, we find that there is no
ambiguity in 35 P.S. § 10231.2103(a). 35 P.S. Section 10231.2103(a) is titled
“protections for patients and caregivers,” and stated another way says, “a
patient . . . shall not be denied . . . any . . . privilege . . . solely for lawful
use of medical marijuana.” See id.
Within the context of the MMA, “lawful use of marijuana” is defined as,
(a) General rule.--Notwithstanding any provision of law to the
contrary, use or possession of medical marijuana as set forth in
this act is lawful within this Commonwealth.
35 P.S. § 10231.303. Additionally, the MMA discusses “unlawful use of
marijuana” as follows,
(a) General rule.--Except as provided in section 303, section
704, Chapter 19 or Chapter 20,[] the use of medical marijuana is
unlawful and shall, in addition to any other penalty provided by
law, be deemed a violation of the act of April 14, 1972 (P.L. 233,
No. 64),[] known as The Controlled Substance, Drug, Device and
Cosmetic Act.
35 P.S. § 10231.304.5 As related to any conflict with the CSA, the MMA states,
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535 P.S. § 10231.704 pertains to independent laboratories for testing medical
marijuana produced by the grower/processor. See 35 P.S. § 10231.704.
(Footnote Continued Next Page)
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The growth, processing, manufacture, acquisition, transportation,
sale, dispensing, distribution, possession and consumption of
medical marijuana permitted under this act shall not be deemed
to be a violation of the act of April 14, 1972 (P.L. 233, No.
64),[] known as The Controlled Substance, Drug, Device and
Cosmetic Act. If a provision of the Controlled Substance, Drug,
Device and Cosmetic Act relating to marijuana conflicts with a
provision of this act, this act shall take precedence.
35 P.S. § 10231.2101.
Construing the statutes together, 35 P.S. § 10231.2103(a) is not
ambiguous. See 1 Pa.C.S. § 1932 (Statutes in pari materia shall be construed
together, if possible, as one statute). Appellant was not denied any privilege
solely for “lawful use of medical marijuana.” Driving after using medical
marijuana, a Schedule I controlled substance, is not included in “lawful use of
medical marijuana” under the MMA.
This Court has recently discussed the interplay between the MMA, CSA
and DUI statutes and has held that the statutes can be read in harmony. See
Dabney, __ A.3d at __, slip op. at *6. The Court expounded,
Section 3802(d)(1)(i) prohibits driving with marijuana in one's
blood, notwithstanding the MMA. The MMA takes precedence over
the CSA related to “[t]he growth, processing, manufacture,
acquisition, transportation, sale, dispensing, distribution,
possession and consumption of medical marijuana permitted
under” the MMA. 35 P.S. § 10231.2101. Therefore, “compliance
with the MMA will not constitute a crime under the CSA.” . . .
However, what Section 3802(d)(1) prohibits is not “growth,
processing, manufacture, acquisition, transportation, sale,
dispensing, distribution, possession [or] consumption of medical
marijuana” but rather driving with a controlled substance in
____________________________________________
Chapter 19 pertains to research programs and Chapter 20 with academic
clinical research centers and clinical registrants. See 35 P.S. §§ 10231.1901-
1908, and §§ 1231.2000-2004.
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one's blood. . . . The MMA does not take precedence over
laws not specified in 35 P.S. § 10231.2101. See 35 P.S. §
10231.1309(1) (allowing civil and criminal penalties for
negligently undertaking tasks under the influence of medical
marijuana). As such, [appellant] is not “facing a criminal
conviction for the legal use of his medical marijuana.”
[Appellant’s] Brief at 19. He was prosecuted for driving after
such use. As in Jezzi and Stone, we find that the MMA, CSA, and
Vehicle Code can be read in harmony.
Dabney, __ A.3d at __, slip op. at *6-7 (some internal citations and internal
footnotes omitted). We, too, find that there is no ambiguity in the interplay
of the MMA 35 P.S. § 10231.2103(a) and the DUI statutes at 75 Pa.C.S.
Sections 3802(d)(1)(i) & (iii). Because the statues at issue are not
ambiguous, the rule of lenity does not apply. See United States v. Hayes,
555 US 415, 429 (2009). Therefore, Appellant’s argument fails.
In his next issue, Appellant argues that Section 10231.2103(a) of the
MMA entitles patients to immunity from prosecution under the “per se”
provisions of Section 3802(d)(1)(i) and Section 3802(d)(1)(iii), which
criminalize any amount of marijuana and its metabolites in a person’s
bloodstream. Specifically, Appellant argues that Section 10231.2103(a)
contains an immunity provision, therefore, Appellant, as a patient under MMA
is entitled to immunity from penalty merely for the lawful use of marijuana.
Appellant’s Brief, at 35.
This Court recently addressed whether a person can be prosecuted
under Section 3802(d)(1) for driving with medical marijuana in his system
and concluded the following,
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[b]ecause [appellant] drove with marijuana in his blood, and
because all marijuana, including medical marijuana, remains a
Schedule I controlled substance for purposes not prohibited by the
MMA, we hold that [appellant] could be charged and prosecuted
under Section 3802(d)(1)(i) and (iii).
Dabney, __ A.3d at __, slip op. at *7. The Court reasoned,
[a]fter careful consideration, we find that medical marijuana
remains a Schedule I controlled substance for purposes of Section
3802(d)(1). Contrary to [appellant’s] argument, no conflict exists
between the MMA and the Vehicle Code. The Vehicle Code and
the CSA render it illegal to drive with any amount of a Schedule I
controlled substance in one's blood. 75 Pa.C.S.A. § 3802(d)(1)(i).
Id., slip op. at *6.
Similarly, Appellant drove with marijuana in his blood. Marijuana,
including medical marijuana remains a Schedule I controlled substance for
purposes not prohibited by the MMA. Appellant argues that he was lawfully
using medical marijuana and, therefore, should be immune from prosecution.
However, Appellant was not prosecuted for “lawful use of medical marijuana;”
he was prosecuted for driving after such use. Appellant’s argument fails. Id.,
slip op. at *6-7.
Lastly, Appellant raises a number of issues relating to the
constitutionality of the relevant statutes, specifically that they are either
vague, overbroad, and/or violative of his rights to equal protection and due
process. Appellant’s Brief, at 2-3. Appellant did not raise these constitutional
issues before the trial court in a pre-trial or post-trial motion, therefore, his
remaining issues are waived. See Pa.R.A.P. 302(a) (“Issues not raised in the
trial court are waived and cannot be raised for the first time on appeal.”); See
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also, Commonwealth v. Lawrence, 99 A.3d 116 (Pa. Super. 2014)
(discussing waiver of constitutional issues where the issues are not first
presented the trial court).
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2022
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