J-S18022-25
2025 PA Super 180
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HEATHER LYNN WHITCOMB :
:
Appellant : No. 1502 WDA 2024
Appeal from the Judgment of Sentence Entered November 21, 2024
In the Court of Common Pleas of Armstrong County Criminal Division at
No(s): CP-03-CR-0000822-2023
BEFORE: DUBOW, J., NICHOLS, J., and STEVENS, P.J.E.*
OPINION BY NICHOLS, J.: FILED: August 20, 2025
Appellant Heather Lynn Whitcomb appeals from the judgment of
sentence imposed after she was found guilty of driving under the influence
(DUI).1 Appellant contends that the trial court erred by failing to recognize
involuntary intoxication as a cognizable affirmative defense to DUI under 75
Pa.C.S. § 3802(d)(2). After careful review, we affirm.
The trial court set forth the following factual and procedural history:
This case arises from an August 11, 2023 incident in which
[Appellant] exhibited unusual behavior at a gas station on U.S.
Route 422. A gas station employee noticed that [Appellant] was
standing by the gas pumps for approximately 20 minutes.
Another gas station employee noticed that [Appellant] was
swaying, and that she was not pumping gas or checking on her
child, who was sitting in the back seat of her vehicle. Concerned
for the child, the gas station manager had another employee call
9-1-1. Pennsylvania State Police (PSP) Trooper Patrick Carlson
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* Former Justice specially assigned to the Superior Court.
1 75 Pa.C.S. § 3802(d)(2).
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responded and conducted field sobriety tests, which showed signs
of impairment. Trooper Carlson transported [Appellant] to the
PSP barracks, where [Appellant] was evaluated by a Drug
Recognition Expert (DRE). A blood draw showed the presence of
one controlled substance and several prescribed medications. As
a result, [Appellant] was charged with [DUI under 75 Pa.C.S. §§
3802(d)(2), (d)(1)(ii), and (d)(1)(iii) as well as careless driving
under 75 Pa.C.S. § 3714(a)].
[The trial court] conducted a bench trial on August 29, 2024
[where it] acquitted [Appellant] of [careless driving and DUI
under sections 3802(d)(1)(ii) and (iii) but] convicted her of [DUI
under section 3802(d)(2).2]
Trial Ct. Op., 1/13/25, at 1-2.
On November 21, 2024, the trial court sentenced Appellant to seventy-
two hours to six months’ incarceration. Appellant filed a timely notice of
appeal and a court-ordered Pa.R.A.P. 1925(b) statement. The trial court
issued a Rule 1925(a) statement addressing Appellant’s claims.3
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2 Section 3802(d)(2) states “[a]n individual may not drive, operate or be in
actual physical control of the movement of a vehicle” if “[t]he individual is
under the influence of a drug or combination of drugs to a degree which
impairs the individual's ability to safely drive, operate or be in actual physical
control of the movement of the vehicle.” 75 Pa.C.S. § 3802(d)(2).
3 We note that Appellant filed a notice of appeal on December 2, 2024. The
following day, the trial court ordered Appellant to file a concise statement of
errors pursuant to Pa.R.A.P. 1925(b) within twenty-one days of the order.
Appellant filed her statement of errors on January 8, 2025, which was fifteen
days late.
While the trial court noted that Appellant’s claim was waived for failing to file
a timely statement of errors, it addressed the merits of Appellant’s claim in its
1925(a) opinion. See Trial Ct. Op. at 2-3. Accordingly, we address the merits
of Appellant’s claim on appeal. See Commonwealth v. Brown, 145 A.3d
184, 186 (Pa. Super. 2016) (stating that “where the trial court addresses the
issues raised in an untimely Rule 1925(b) statement, we need not remand but
(Footnote Continued Next Page)
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Appellant’s sole issue for our review is as follows:
Did the trial court err in failing to recognize involuntary
intoxication as a cognizable affirmative defense to DUI in
Pennsylvania?
Appellant’s Brief at 4 (some formatting altered).
Appellant argues that involuntary intoxication is a cognizable defense to
criminal conduct because 18 Pa.C.S. § 308, which “specifically stat[es]
voluntary intoxication is not a defense to criminal activity, gives rise to the
notion that involuntary intoxication may constitute a defense.” Id. at 10
(emphases omitted). Additionally, Appellant argues that our decision in
Commonwealth v. Smith, 831 A.2d 636 (Pa. Super. 2003), “left the status
of involuntary intoxication open-ended as it relates to DUIs.” Id. at 10-11.
Appellant’s claim requires us to interpret 18 Pa.C.S. § 308, which raises
a question of law. See Commonwealth v. Rushing, 99 A.3d 416, 420 (Pa.
2014). When interpreting a statute, our standard of review is de novo and
our scope of review is plenary. See
id.
Our Supreme Court has stated that in construing a statute, we rely on
the Statutory Construction Act, 1 Pa.C.S. §§ 1501-1991. See id. at 423.
Additionally:
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may address the issues on their merits” (citation omitted)); Commonwealth
v. Andrews, 213 A.3d 1004, 1010 (Pa. Super. 2019) (explaining that this
Court declined to find waiver where the trial court addressed the defendant’s
issues despite counsel’s failure to file a timely statement of errors as that
failure is per se ineffective assistance).
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The objective of all interpretation and construction of statutes is
to ascertain and effectuate the intention of the General Assembly.
[1 Pa.C.S.] § 1921(a). The best indication of the legislature’s
intent is the plain language of the statute. When considering
statutory language, “[w]ords and phrases shall be construed
according to rules of grammar and according to their common and
approved usage.” Id. § 1903(a). Further, when the words of a
statute are clear and unambiguous, there is no need to go beyond
the plain meaning of the language of the statute “under the
pretext of pursuing its spirit.” Id. § 1921(b). Thus, only when
the words of a statute are ambiguous, should a reviewing court
seek to ascertain the intent of the General Assembly through
considerations of the various factors found in Section 1921(c).[4]
Id. (some citations omitted).
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4 Section 1921(c) states:
(c) When the words of the statute are not explicit, the intention of
the General Assembly may be ascertained by considering, among
other matters:
(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.
(8) Legislative and administrative interpretations of such
statute.
1 Pa.C.S. § 1921(c).
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When reviewing a statute, “we may not render language superfluous or
assume language to be mere surplusage.” Commonwealth v. Durso, 86
A.3d 865, 867 (Pa. Super. 2013) (citation omitted and some formatting
changed). Further, we “apply the statute as it is written” and “should not
insert words into a statute that are plainly not there.” Commonwealth v.
Rivera,
312 A.3d 366, 373 (Pa. Super. 2024) (citation omitted).
18 Pa.C.S. § 308 limits the defense of voluntary intoxication in this
Commonwealth, and states:
Neither voluntary intoxication nor voluntary drugged condition
is a defense to a criminal charge, nor may evidence of such
conditions be introduced to negative the element of intent of the
offense, except that evidence of such intoxication or drugged
condition of the defendant may be offered by the defendant
whenever it is relevant to reduce murder from a higher degree to
a lower degree of murder.
18 Pa.C.S. § 308 (emphases added).
Here, Appellant asks us to infer from Section 308 that involuntary
intoxication is an available defense to DUI in Pennsylvania. See Appellant’s
Brief at 10. However, the statute is completely silent as to the defense of
involuntary intoxication. Accordingly, in order to infer that involuntary
intoxication is a defense from the plain language of the statute, we would be
required to “insert words into [the] statute that are plainly not there.” Rivera,
312 A.3d at 373 (citation omitted). Therefore, we conclude that Section 308’s
silence regarding involuntary intoxication does not inferentially create the
defense of involuntary intoxication. Further, Appellant does not provide any
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other statutory authority creating that defense. Accordingly, we conclude that
there is no statutory support for the defense of involuntary intoxication in
Pennsylvania.
Additionally, having concluded that there is no statutory support for the
defense, we analyze whether a common law defense of involuntary
intoxication, if it exists, would be applicable to DUI under 75 Pa.C.S. §
3802(d)(2).5
In her brief, Appellant relies on Smith to argue that this Court has left
open the possibility of an involuntary intoxication defense to DUI. See
Appellant’s Brief at 11.
In Smith, the defendant was convicted of DUI and a related offense.
Smith, 831 A.2d at 637. On appeal, Smith argued that “she established the
affirmative defense of ‘involuntary intoxication’ thereby negating the state of
mind necessary to support a conviction of DUI.”
Id. In support, the defendant
claimed that she did not know the newly increased strength of her prescription
medication would heighten the effects of alcohol she voluntarily consumed.
Id. at 638-39. The Smith Court stated that the availability of an involuntary
intoxication defense to DUI in Pennsylvania is unclear but that, if it existed,
____________________________________________
5 We note that multiple other jurisdictions have recognized a common law
involuntary intoxication defense to various crimes. See Dorsey v. State,
480
P.3d 1211, 1219 (Alaska Ct. App. 2021) (stating “[t]he defense of involuntary
intoxication is not codified in Alaska law, but both the Alaska Supreme Court
and [the Alaska Court of Appeals] have recognized it as a common law
defense”); People v. Spears,
13 N.W.3d 20, 35 (Mich. Ct. App. 2023)
(explaining “[c]ommon-law affirmative defenses to murder include[, inter
alia,] . . . involuntary intoxication” (citations omitted)).
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the burden of proof would be on the defendant. Id. at 639 (citing
Commonwealth v. Collins,
810 A.2d 698, 700 (Pa. Super. 2002)). The
Smith Court explained that “[g]enerally speaking, many of the other
jurisdictions that permit” an involuntary intoxication defense “do so premised
upon the notion that [the accused] was temporarily rendered legally insane at
the time he or she committed the offense.”
Id. The Court also noted that the
involuntary intoxication defense functions similarly to the insanity defense in
that a defendant “is excused from criminality because intoxication affects the
ability to distinguish between right and wrong.”
Id. at 639 n.2 (citations
omitted).
The Smith Court summarized four situations in which other jurisdictions
allow for an involuntary intoxication defense, which included, inter alia, “where
unexpected intoxication results from a medically prescribed drug.” Id. at 639
(citation omitted). The Court concluded that, even if the defense existed in
this Commonwealth, Smith had voluntarily consumed alcohol with her
prescriptions and was, therefore, unable to establish the defense. Id. at 640.
Further, the Court concluded that, without expert testimony explaining that
the combination of prescription medication and alcohol could cause extreme
intoxication, Smith’s “self-serving statements” that she was unaware of the
possible interaction was insufficient to establish the defense. Id. at 641.
The Smith Court’s brief description of the law of other jurisdictions is
accurate. Jurisdictions recognizing an involuntary intoxication defense do so
when the involuntary intoxicant renders a person unable to understand that
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“his conduct was wrong or [he] was incapable of conforming his conduct to
the requirements of the law he allegedly violated.” Brown v. State, 290
S.W.3d 247, 250 (Tex. App. 2009) (citation omitted); see also State v.
Gurule,
252 P.3d 823, 828 (N.M. Ct. App. 2011) (stating “involuntary
intoxication is only a defense in New Mexico when the defendant's intent . . .
is negated by the intoxication to the extent that the defendant did not
understand the consequences of the action or did not know the act was
wrong”); State v. Hammond,
571 A.2d 942, 946 (N.J. 1990) (stating that
involuntary intoxication is only a defense if it renders defendant unable “to
appreciate [the] wrongfulness [of his conduct] or to conform his conduct to
the requirement of law”); Dorsey,
480 P.3d at 1219-21 (explaining there are
several situations where involuntary intoxication may form a defense in Alaska
including where it negates the mens rea, where it negates the actus reus by
making defendant’s acts involuntary,6 and where it places the defendant in a
state of legal insanity); City of Minneapolis v. Altimus,
238 N.W.2d. 851,
855 (Minn. 1976) (explaining that at common law involuntary intoxication was
treated separately from voluntary intoxication and became a defense to
criminal liability only when it caused “the defendant to become temporarily
insane”).
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6 We have previously held that the requirement for a voluntary act under 18
Pa.C.S. § 301 is not applicable to our state’s DUI laws under Title 75. See
Collins,
810 A.2d at 702-03.
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Additionally, the suggested standard jury instruction for involuntary
intoxication published by the Pennsylvania Bar Institute suggests that the
defense, should it exist in this Commonwealth, would follow the same contours
as other jurisdictions where involuntary intoxication mirrors the jurisdiction’s
test for legal insanity. Compare Pa. SSJI (Crim) § 8.308C(2) (stating
“involuntary intoxication is available . . . if at the time of committing an act,
the person's faculties were so impaired as the result of involuntary intoxication
that the person was unable to understand the nature and quality of his or her
act or to distinguish between right and wrong”) with 18 Pa.C.S. § 315(b)
(defining “legally insane” as meaning “that, at the time of the commission of
the offense, the actor was laboring under such a defect of reason, from disease
of the mind, as not to know the nature and quality of the act he was doing or,
if the actor did know the quality of the act, that he did not know that what he
was doing was wrong”).
Under the test Pennsylvania employs for legal insanity, there are two
prongs: the cognitive incapacity prong and the moral incapacity prong.
Commonwealth v. Andre, 17 A.3d 951, 959 (Pa. Super. 2011). We have
previously explained that “[w]here the defendant alleges that he did not know
what he was doing, he is presenting a cognitive incapacity insanity defense.
On the other hand, if the defendant submits that he did not understand that
what he was doing was wrong, he is advancing a moral incapacity defense.”
Id. Further, “cognitive incapacity[] render[s] a person incapable of forming
criminal intent[,]” and moral incapacity “override[s] the element of mens rea
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where the defendant proves the moral incapacity aspect of his defense by a
preponderance of the evidence.” Id. at 961 (footnote omitted). In other
words, both prongs of the insanity defense in Pennsylvania implicate a
defendant’s mens rea. See
id.
Because the defense of involuntary intoxication implicates the ability to
form a requisite mens rea, other jurisdictions have held that it is inapplicable
to their strict liability DUI offenses, which do not require a culpable mental
state. See Brown v. State, 290 S.W.3d at 250-51; Gurule,
252 P.3d at
828-29; Hammond,
571 A.2d at 946-47; see also State v. Weller,
208
P.3d 834, 836 (Mont. 2009) (stating the trial court did not abuse its discretion
by failing to give an involuntary intoxication instruction because it was
unnecessary where the DUI statue was a strict liability offense). We have
previously held that 75 Pa.C.S. § 3802(d)(2) is a strict liability statue with no
mens rea element that does not require the establishment of criminal
culpability. See Commonwealth v. Macik,
319 A.3d 529, 535-36 (Pa.
Super. 2024), appeal denied,
332 A.3d 770 (Pa. 2025).
Accordingly, the defense of involuntary intoxication, if it exists in this
Commonwealth, would either render a defendant incapable of forming a mens
rea or would override the defendant’s mens rea. See Andre, 17 A.3d at 961;
Pa.SSJI (Crim) § 8.308C(2). However, Section 3802(d)(2) does not require
a culpable mental state for a finding of guilt. See Macik,
319 A.3d at 535-
36. Therefore, an involuntary intoxication defense is inapplicable to Section
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3802(d)(2) as DUI under that section does not require any culpable mental
state.
Because we do not find support in either the statutory or common law
in this Commonwealth, we hold that involuntary intoxication, should it exist
as a defense, does not apply to 75 Pa.C.S. § 3802(d)(2). Accordingly, the
trial court did not err by failing to recognize this defense. No relief is due.
Judgment of sentence affirmed. Jurisdiction relinquished.
DATE: 08/20/2025
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