J-S04039-26
2026 PA Super 47
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
EDWARD E. WALSH, JR. : No. 1012 EDA 2025
Appeal from the Order Entered March 13, 2025
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0000351-2024
BEFORE: LAZARUS, P.J., STABILE, J., and NEUMAN, J.
OPINION BY NEUMAN, J.: FILED MARCH 16, 2026
The Commonwealth, as the appellant, appeals from the trial court’s
March 13, 2025 order granting Edward E. Walsh, Jr.’s (“Walsh”) motion to
dismiss a charge of driving under the influence (DUI) under 18 Pa.C.S. §
3802(d)(2). After careful review, we reverse in part, affirm in part, and
remand for further proceedings.
Walsh was charged with the above-stated DUI offense, as well as several
summary traffic violations, based on a traffic stop conducted in October of
2023. At Walsh’s preliminary hearing on January 18, 2024,
the arresting police officer, James Kelso, testified concerning his
encounter with [Walsh] around 9:10 PM on October 11, 2023. He
observed an automobile occupying two lanes of travel and later
swerving back-and-forth across a single lane. After stopping the
vehicle, Officer Kelso noted the driver’s ([Walsh’s]) constricted
pupils (despite the prevailing low light environment), episodic
displays of irritability and agitation, exaggerated reflexes[,] as
well as [Walsh’s] difficulty in speaking. [Walsh] denied the
[o]fficer’s request that he participate in field sobriety testing.
Officer Kelso believed [Walsh] was using drugs which affected his
driving and arrested [Walsh] for DUI. While it is not clear as to
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the order of events, the officer also testified that he found
“numerous bottles of kratom, some open, some unopened, as well
as a liquid on the driver’s side floorboard consistent with the
kratom in the bottle,” [N.T. Preliminary Hearing,] 1/18/24[,] at 8.
[Walsh] was taken to a local hospital where he submitted to
chemical blood testing. The argument for maintaining the DUI
charge rested upon [Walsh’s] use of kratom2 and caffeine and the
effect these substances had on his ability to safely operate a motor
vehicle.
2 “Kratom” commonly refers to an herbal substance that can
produce opioid- and stimulant-like effects. See
https://nida.nih.gov/research-topics/kratom (last visited
4/25/25).
The test results, according to the [o]fficer, revealed the presence
of mitragynine[1] and caffeine. A lab analysis was presented at
the preliminary hearing; however, those documents were not
presented to this court for consideration.[2] Officer Kelso offered
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1 Mitragynine is “the principal psychoactive indole alkaloid C
23H30N2O4 that is
found in kratom and that binds as an agonist to certain opioid receptors to
produce effects (such as analgesia) similar to that of opioids.” Mitragynine,
Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/mitragynine (last visited Feb. 13, 2026).
2 The Honorable Deborah A. Krull of the Court of Common Pleas of Delaware
County noted, at the outset of her opinion, that Walsh’s case was
before [her] after a local reassignment of jurists to different
divisions. Previously, the pending [m]otion [to dismiss] … was
submitted to [the Honorable] Anthony D. Scanlon. He was
provided a copy of the transcript from the preliminary hearing and
scheduled a hearing where only argument was presented. These
materials were passed along as the record. We recognize that our
handling of this [h]abeas [m]otion is as a court de novo. For that
reason, the Commonwealth and defense counsel were given an
opportunity to agree to submission of whatever portions of the
previous record they wished and/or present such evidence as was
deemed appropriate. Upon reassignment, the Notes of Testimony
from both the preliminary hearing and the argument before Judge
Scanlon formed the basis for decision-making.
Trial Court Opinion (TCO), 5/29/25, at 1.
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significant information regarding kratom at the preliminary
hearing. However, we note that he was not qualified to testify as
an expert witness or even as an officer with specialized training or
experience with what our legislature has defined (and what is
referenced infra) as “drugs” at the preliminary hearing.
TCO at 2.
At the close of the preliminary hearing, the magisterial district judge
found the Commonwealth had established a prima facie case and bound all
charges to the Court of Common Pleas. See N.T. Preliminary Hearing at 17.
On December 13, 2024, Walsh filed a “Motion to Quash the Bills of
Information.” Therein, he averred:
4. The Commonwealth failed to establish a prima facie case on the
charges in this matter. According to the notes of testimony from
the preliminary hearing held on January 18, 2024, a blood draw
was performed wherein the only substances found in [Walsh’s]
blood were caffeine and kratom, neither of which are a controlled
substance. See N.T. [Preliminary Hearing] at … 8, 11-12. A copy
of the preliminary hearing transcript from January 18, 2024 …
shall be provided to this Honorable Court and the Commonwealth
separate from this motion.
5. To establish a prima facie case for DUI as charged, the
Commonwealth must show three elements: “1) that the defendant
drove; 2) while under the influence of a controlled substance;
and 3) to a degree that impairs the defendant’s ability to drive
safely.” Commonwealth v. Spence, [290 A.3d 301, 309 (Pa.
Super. 2023)] (citing Commonwealth v. Griffith, … 32 A.3d
1231, 1238 ([Pa.] 2011))1 (emphasis added).2
1 Although both the Spence and Griffith Courts are
addressing separate appeals post-trial, the elements of the
offense remain the same whether the burden is prima facie
or beyond a reasonable doubt and is thus applicable to the
instant matter.
2 Counsel for [Walsh] notes that the statute in question[,]
75 Pa.C.S. § 3802(d)(2)[,] as written states[,] “[t]he
individual is under the influence of a drug or combination of
drugs to a degree which impairs the individual’s ability to
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safely drive, operate or be in actual physical control of the
movement of the vehicle.” However, the Spence and
Griffith Courts specifically describe the elements of the
offense to include the Commonwealth’s need to show that
the substance in question is a controlled substance,
apparently recognizing the severe implications of charging
those individuals under the influence of non-controlled
substances with DUI. It is undisputed through the
testimony and lab results provided at the preliminary
hearing on January 18, 2024[,] that [Walsh] was not under
the influence of a controlled substance. As such, the
Commonwealth has not sustained [its] burden and the
current case before this Honorable Court must be quashed
and dismissed.
6. The charges against [Walsh] should be quashed and dismissed
as no evidence was presented at the preliminary hearing
necessary to establish a prima facie case and hold [Walsh] for
trial.
7. [Walsh] respectfully requests that this Honorable Court quash
the bills of information against him and dismiss all charges.
Motion to Quash, 12/13/24, at 1-2 (unnumbered; unnecessary capitalization
and italicized emphasis omitted; some bolded emphasis in original, some
added).
On February 19, 2025,3 Judge Scanlon conducted a hearing at which the
parties presented arguments on Walsh’s motion. First, Walsh reiterated his
arguments that Spence and Griffith specifically declared “the Commonwealth
has to show that the [d]efendant is under the influence of a controlled
substance” for a DUI conviction under section 3802(d)(2). N.T. Hearing,
2/19/25, at 4. Although Walsh conceded “kratom is a drug,” he stressed it is
not a controlled substance. Id. at 5 (emphasis added). Thus, Walsh
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3 The transcript states the date as February 19, 2024, which is apparently a
typo.
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insisted the Commonwealth had failed to present a prima facie case he was
“under the influence of a controlled substance” and his DUI charge must be
quashed. Id. at 6.
In response, the Commonwealth contended the Legislature had
“differentiated between controlled substances and … drugs” in the statute,
thus indicating it had “allowed for DUIs based on the effects of both of those
things.” Id. at 6-7. In support, the Commonwealth cited Commonwealth
v. Roser, 914 A.2d 447 (Pa. Super. 2006), where we upheld the trial court’s
instructing the jury, before it deliberated on DUI charges under 75 Pa.C.S. §
3802(d)(2) and (d)(3), that “‘drugs’ are ‘any substance, other than food, that
is intended to affect the function of the human body[,]’” and did not, therefore,
limit the definition of “drugs” to only controlled substances. Id. at 455; see
also N.T. Hearing at 7. According to the Commonwealth, “the notes of
testimony are clear that the drugs that were in [Walsh’s] system had an effect
on his ability to drive a vehicle, which is all that is needed under [section
3802](d)(2) [of the] statute.” N.T. Hearing at 7. Therefore, the
Commonwealth maintained it had satisfied its burden of proving a prima facie
case at the preliminary hearing, and the court should deny Walsh’s motion.
Id.
At the close of the hearing, Judge Scanlon took Walsh’s motion under
advisement. On March 13, 2025, he issued an order granting Walsh’s motion
and dismissing his DUI charge under section 3802(d)(2), as well as Walsh’s
charge of public drunkenness under 18 Pa.C.S. § 5505. See Order, 3/13/25,
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at 1 (single page). Judge Scanlon did not issue an opinion, or provide any
reasons in the order for his decision.
On March 18, 2025, the Commonwealth filed a motion for
reconsideration of Judge Scanlon’s order. At that point, Walsh’s case had been
reassigned to Judge Krull. On March 25, 2025, Judge Krull issued an order
denying the Commonwealth’s motion for reconsideration. On April 11, 2025,
the Commonwealth filed a timely notice of appeal, certifying the March 13,
2025 order will terminate or substantially handicap the prosecution of its case
pursuant to Pa.R.A.P. 311(d). It does not appear from the record that Judge
Krull ordered the Commonwealth to file a Pa.R.A.P. 1925(b) concise statement
of errors complained of on appeal. However, on May 29, 2025, Judge Krull
filed a Rule 1925(a) opinion. Herein, the Commonwealth states one issue for
our review:
Whether the trial court erred in granting [Walsh’s] motion to
quash where the evidence presented by the Commonwealth
established a prima facie case that [Walsh] was driving under the
influence of a drug or combination of drugs to a degree which
impaired his ability to safely drive, operate or be in actual physical
control of the movement of the vehicle?
Commonwealth’s Brief at 3.
Initially, we note Walsh incorrectly styled his motion as a “Motion to
Quash Bills of Information,” when “the proper means for testing the finding
that the Commonwealth has sufficient evidence to establish a prima facie case
is to petition the trial court for a writ of habeas corpus.” Commonwealth v.
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Morman, 541 A.2d 356, 357 (Pa. Super. 1988) (citing Commonwealth v.
Hetherington,
331 A.2d 205 (Pa. 1975)). However,
[i]n … Hetherington, supra, our Supreme Court held that a
petition labeled a “Motion to Quash” was in fact a writ of habeas
corpus attacking the magistrate’s finding that the Commonwealth
at the preliminary hearing had established a prima facie case.
When the substance of the “Motion to Quash” is identical to that
of a writ of habeas corpus, the reviewing court undertakes an
identical inquiry in disposing of the issue asserted[,] and the relief
sought is the same, there is no reason why an error in label should
prevent a court from seeing that justice is done.
Commonwealth v. Orman, 408 A.2d 518, 520 (Pa. Super. 1979). Here, the
substance of Walsh’s motion to quash was identical to a writ of habeas corpus
and Judge Scanlon assessed it as such. Thus, we will treat Walsh’s motion as
a petition for writ of habeas corpus.
In reviewing Judge Scanlon’s order granting Walsh’s petition,
we must generally consider whether the record supports the trial
court’s findings, and whether the inferences and legal conclusions
drawn from those findings are free from error. A trial court may
grant a defendant’s petition for writ habeas corpus after a
preliminary hearing where the Commonwealth has failed to
present a prima facie case against the defendant.
The basic principles of law regarding the establishment of a prima
facie case at a preliminary hearing are well settled. The
preliminary hearing is not a trial. The principal function of a
preliminary hearing is to protect an individual’s right against an
unlawful arrest and detention. At this hearing the Commonwealth
bears the burden of establishing at least a prima facie case that a
crime has been committed and that the accused is probably the
one who committed it.
At the pre-trial stage of a criminal prosecution, it is not necessary
for the Commonwealth to prove the defendant’s guilt beyond a
reasonable doubt. A prima facie case exists when the
Commonwealth produces evidence of each of the material
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elements of the crime charged and establishes probable cause to
warrant the belief that the accused committed the offense.
Further, the evidence must be considered in the light most
favorable to the Commonwealth so that inferences that would
support a guilty verdict are given effect.
In addition, the evidence should be such that if presented at trial,
and accepted as true, the judge would be warranted in allowing
the case to go to the jury. The standard clearly does not require
that the Commonwealth prove the accused’s guilt beyond a
reasonable doubt at this stage. Most significant in this appeal, the
weight and credibility of the evidence is not a factor at this stage.
Commonwealth v. Hilliard, 172 A.3d 5, 10 (Pa. Super. 2017) (cleaned up;
emphasis and unnecessary capitalization omitted).
In this case, the Commonwealth argues Judge Scanlon erred by granting
Walsh’s habeas petition regarding his DUI charge. According to the
Commonwealth, Judge Scanlon incorrectly concluded section 3802(d)(2)
requires a defendant to be under the influence of a controlled substance. It
insists “[t]he [L]egislature’s intent to differentiate between a drug and a
controlled substance is evident from its deliberate use of distinct terms and
its creation of two subsections.” Commonwealth’s Brief at 15. In support, the
Commonwealth points to the language of section 3802(d)(1) and (2), which
state:
(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;
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(ii) Schedule II or Schedule III controlled substance, as
defined in The Controlled Substance, Drug, Device and
Cosmetic Act, which has not been medically prescribed for
the individual; or
(iii) metabolite of a substance under subparagraph (i) or (ii).
(2) The 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)(1), (2) (footnote omitted). The Commonwealth insists,
[h]ad the legislature intended to limit the statute’s applicability
solely to controlled substances, it would have used that specific
term consistently throughout [the statute]. It did not. Instead,
by using both “drug” and “controlled substance” in separate
provisions, the legislature demonstrated its intent to encompass
a broader range of substances under the term “drug” in (d)(2)
than the controlled substances listed in a schedule specified in
(d)(1).
Commonwealth’s Brief at 15.
The Commonwealth further avers,
[t]hat difference between a drug and a controlled substance is
further evidenced in the Controlled Substances Act, 35 P.S. § 780-
101, which provides two separate and distinct definitions for the
terms. Pursuant to the Act, “controlled substance” means a drug,
substance, or immediate precursor included in Schedules I
through V of the Act, while “drug” means:
(i) substances recognized in the official United States
Pharmacopeia, or official National Formulary, or any
supplement to either of them; and (ii) substances intended
for use in the diagnosis, cure, mitigation, treatment or
prevention of disease in man or other animals; and (iii)
substances (other than food) intended to affect the
structure or any function of the human body or other animal
body; and (iv) substances intended for use as a component
of any article specified in clause (i), (ii) or (iii), but not
including devices or their components, parts or
accessories.[]
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See 35 P.S. § 780-102([b])….
Id. (formatting altered).
In support of its interpretation of the statute, the Commonwealth
reiterates the argument, presented before Judge Scanlon at the habeas
hearing, that Roser supports a conclusion section 3802(d)(2) covers drugs
which are not necessarily controlled substances. In that case, Roser was
arrested for DUI under section 3802(a)(1); however, as a defense at trial,
Roser “testified … he was not under the influence of alcohol when he was
pulled-over but had, rather, ingested gasoline and bug and tar remover
several hours before driving in an attempt to commit suicide.” Roser, 914
A.2d at 450-51. After the close of testimony, the trial court permitted the
Commonwealth to amend the information to include DUI charges under
sections 3802(d)(2) and (d)(3).4
Id. at 452. Ultimately, the jury acquitted
Roser of the section 3802(d)(2) charge, but convicted him of the charge under
section 3802(d)(3).
Id.
On appeal, Roser challenged, inter alia, the trial court’s advising “the
jury that ‘drugs’ are ‘any substance, other than food, that is intended to affect
the function of the human body.’” Id. at 455. Roser insisted
the “intention” referred to in this definition is not the intention of
the defendant but, rather, refers to “causation.” In other words,
[Roser] argue[d] that a substance is a drug if it causes changes
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4 Section 3802(d)(3) states an individual may not drive if he or she is “under
the combined influence of alcohol and 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)(3).
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in the bodily function of a human being, and that this is a question
of law that must be established by expert testimony where the
drug is not a controlled substance, as here.
Id. (cleaned up). In disagreeing, the Roser panel explained:
[Roser] provided the evidence, through his own testimony, to
establish that gasoline and bug and tar remover are drugs under
the circumstances of this case. [Roser] stated that he ingested
these substances in an effort to commit suicide. He stated that,
prior to drinking the bug and tar remover, he “turned the label
around and … looked at the bottom and … saw it said [‘]Harmful,
fatal if swallowed,[’]” and he wanted to “do [his] best to make this
fatal.” Moreover, he testified that, after he ingested gasoline and
bug and tar remover, he experienced loss of consciousness and
his mind was “racing uncontrollably.” Given this evidence, the
jury could properly infer that [Roser’s] consumption of the
gasoline and bug and tar remover resulted in these symptoms or
“changes in the bodily function” of [Roser]. Accordingly, the trial
court did not err in its instruction to the jury.
Id. at 455-56 (citations to the record omitted).
In the case sub judice, the Commonwealth stresses the trial court in
Roser “provided the jury with the definition of a drug as defined by the
[C]ontrolled [S]ubstances [A]ct. On appeal, this Court affirmed the use of the
instruction, [noting] that the term was properly defined.” Commonwealth’s
Brief at 17 (citing Roser, 914 A.2d at 456) (footnote omitted).5
Consequently, the Commonwealth maintains Roser supports its interpretation
____________________________________________
5 The Commonwealth also notes that the fact Roser was acquitted of the
section 3802(d)(2) charge “is irrelevant to the issue at hand, as the case
stands for the broader legal principle regarding the definition of the drug” and
“[t]he factual distinction” of Roser’s acquittal “does not undermine the case’s
applicability to the legal question before this Court.”
Id. at 17 n.2.
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of section 3802(d)(2) as being applicable to drugs, such as kratom, which are
not controlled substances.
In response, Walsh reiterates his argument that,
[t]o establish a prima facie case for DUI under [section]
3802(d)(2), the Commonwealth must establish three elements:
“1) that the defendant drove; 2) while under the influence of a
controlled substance; and 3) to a degree that impairs the
defendant’s ability to drive safely.” … Spence, 290 A. 3d [at] 309
… (citing … Griffith, 32 A. 3d [at] 1239…) (emphasis added).
In this case, on the face of the elements themselves, which is the
standard for a prima facie case, the Commonwealth simply cannot
sustain its burden as it cannot establish the second element of
DUI under [section] 3802(d)(2). The indisputable fact that is
central to this appeal is that kratom and caffeine are both not
controlled substances. Viewing this fact in the light most
favorable to the Commonwealth does not change that. It only
highlights that the Commonwealth cannot, under any
circumstances, meet [its] burden.
Walsh’s Brief at 9-10 (footnote omitted).
Walsh also insists Roser does not control because Spence and Griffith
were decided after Roser, “thereby taking into consideration the holding of
Roser and still outlining the need for a controlled substance under [section]
3802(d)(2) in their analysis of the elements of the statute.” Id. at 10
(footnote omitted). Walsh further avers:
[Section] 3802(d) begins with the heading reading “Controlled
Substances” before delving into the subsections. Pursuant to 1
Pa.C.S. § 1924, the heading of a subsection “shall not be
considered to control but may be used to aid in the construction”
of the statute. The [L]egislature listing [section] 3802(d)(2)
under the “Controlled Substances” heading shows its intent to not
apply non-controlled substances in a finding of DUI. If, as the
Commonwealth suggests, the [L]egislature intended to
differentiate between the two, it would make significantly more
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sense for the heading to be something more expansive, such as
“Drugs,” as opposed to a more constricted “Controlled
Substances.”
Id. at 11-12 (footnote omitted).
After carefully reviewing the statutory language, as well as the cases
cited by both parties, we agree with the Commonwealth’s interpretation of
section 3802(d)(2). We begin by recognizing:
Statutory interpretation implicates a question of law. Thus, our
scope of review is plenary, and our standard of review is de novo.
Commonwealth v. El, 933 A.2d 657, 662 (Pa. Super. 2007).
Pennsylvania’s Statutory Construction Act informs our analysis,
establishing, “The object of all interpretation and construction is
to ascertain and effectuate the intention of the General Assembly.”
1 Pa.C.S.[] § 1921(a). “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(b).
Finally, if the General Assembly supplies definitions of the words
comprising a statute, those definitions are binding.
Commonwealth v. Kimmel, … 565 A.2d 426, 428 ([Pa.] 1989)
(“A court must construe each statute, therefore, according to its
internal definition.”).
Commonwealth v. Van Aulen, 952 A.2d 1183, 1184–85 (Pa. Super. 2008).
Presently, we discern no ambiguity in the words of the DUI statute. The
Legislature chose to use the term “controlled substance” in section
3802(d)(1), and the different term “drug” in section (d)(2). Both terms are
separately defined in The Controlled Substance, Drug, Device and Cosmetic
Act. See 35 P.S. § 780-102(b). If the Legislature intended section 3802(d)(2)
to be limited to controlled substances, it would have used that term as it did
in the preceding section. Thus, we conclude the Legislature intended section
3802(d)(1) to be limited to “controlled substances,” while section (d)(2)
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covers a broader range of “drugs,” as defined by section 780-102(b). See
Commonwealth v. Collins, 286 A.3d 767, 774 (Pa. Super. 2022) (“When ‘a
section of a statute contains a given word, the omission of such word from a
similar section of the statute shows a different legislative intent.’”) (quoting
Commonwealth v. Berryman,
649 A.2d 961, 965 (Pa. Super. 1994) (en
banc)).
We also agree with the Commonwealth that our decision in Roser
supports this interpretation. We recognize the Roser panel did not specifically
address whether section 3802(d)(2) is limited to controlled substances.
However, we explicitly found the evidence “establish[ed] that gasoline and
bug and tar remover are drugs” under the DUI statute. Roser, 914 A.2d at
455. We also held the trial court’s utilizing the “definition [of ‘drugs’] derived
directly from 35 P.S. § 780-102” in instructing the jury was an accurate and
adequate instruction. Id. at 455-56. Thus, the Roser decision bolsters our
interpretation of section 3802(d)(2) as covering drugs beyond those listed as
controlled substances.
Moreover, Walsh’s argument that Griffith and Spence overruled Roser
is unconvincing. We concede that in Spence, this Court stated to sustain a
conviction under section 3802(d)(2), the Commonwealth must establish an
individual drove “while under the influence of a controlled substance.”
Spence, 290 A.3d at 309 (citing Griffith,
32 A.3d at 1239). Although the
Spence panel cited Griffith to support this statement, at no point in Griffith
did our Supreme Court limit the scope of section 3802(d)(2) to controlled
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substances. In fact, in the following portion of the Griffith decision cited by
Spence, the Court referred only to “drugs” when discussing the distinction
between the various subsections of the DUI statute:
[S]ubsection 3802(d)(1) prohibits one from driving if there is any
amount of a Schedule I controlled substance, any amount of a
Schedule II or Schedule III controlled substance that has not been
medically prescribed for the individual, or any amount of a
metabolite of a controlled substance in one’s blood. Analogously
to subsections 3802(a)(2), (b), and (c) for alcohol intoxication,
subsection 3802(d)(1) requires a measurement to determine if
any amount of a Schedule I, II, or III controlled substance is
detectable in the defendant’s blood. Second, and analogously to
subsection 3802(a)(1) for alcohol intoxication, subsection
3802(d)(2) prohibits driving if one is “under the influence of a
drug or combination of drugs to a degree which impairs [one’s]
ability to safely drive.” This provision by its plain text does not
require that a drug be measured in the defendant’s blood, nor
does it specify any particular manner by which the Commonwealth
is required to prove that the defendant was under the influence of
a drug. Like subsection 3802(a)(1), subsection 3802(d)(2) does
not limit, constrain, or specify the type of evidence that the
Commonwealth can proffer to prove its case.
Griffith, 32 A.3d at 1239 (internal citation omitted; some emphasis omitted;
other emphasis added). The Court then discussed section 3802(d)(2)’s
“requirement for expert testimony[,]” which was the precise issue upon which
the Court had granted the Commonwealth’s petition for allowance of appeal.
See id.; see also
id. at 1235. Notably, in its analysis of section 3802(d)(2),
the Griffith Court never once referred to a controlled substance; it only used
that term when discussing section 3802(d)(1). When discussing section
3802(d)(2), the Griffith Court used the term “drug.” See
id. at 1240 (“The
only question here is whether the evidence was sufficient to establish that
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[Griffith’s] inability to drive safely was the result of the influence of a drug or
combination of drugs.”) (emphasis added); id. (“We hold that the above-
summarized evidence was sufficient to establish that [Griffith] was under the
influence of a drug or combination of drugs to a degree that impaired her
ability to safely drive.”) (emphasis added).
Moreover, although this Court in Spence stated section 3802(d)(2)
required proof the defendant was under the influence of a controlled
substance, the appellant there was challenging whether the Commonwealth
had presented sufficient evidence establishing he was under the influence of
marijuana “to a degree that impaired his ability to safely drive, operate, or
be in actual physical control of the movement of his vehicle.” Spence, 290
A.3d at 310. As marijuana is clearly a controlled substance, the question of
whether a drug that is not a controlled substance can satisfy section
3802(d)(2) was not at all relevant to our analysis or holding in Spence. The
same was true in Griffith, where Griffith’s blood test showed she had
Diazepam and Nordiazepam in her bloodstream, both of which are controlled
substances. Griffith,
32 A.3d at 1234.
In sum, the Spence panel was not tasked with deciding whether section
3802(d)(2)’s reference to “drugs” extended beyond controlled substances, as
marijuana was the substance at issue in that case. Moreover, Griffith does
not hold section 3802(d)(2) is limited to controlled substances. Indeed, the
Griffith Court referred only to “drugs” when discussing the elements of the
statute and the sufficiency of the evidence to support Griffith’s conviction
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under it. Accordingly, Roser is more on point to the issue at hand, where we
assessed the adequacy of a jury instruction on the definition of “drugs” set
forth in section 3802(d)(2); the appellant had ingested gasoline and bug and
tar remover, both of which are not controlled substances; and this Court
concluded the definition of “drugs” provided by the trial court, which tracked
the language of 35 P.S. § 780-102, was a proper instruction under section
3802(d)(2). Accordingly, we conclude the term “drugs” as used in section
3802(d)(2) is not limited to controlled substances.
Given this decision, we conclude Judge Scanlon erred by granting
Walsh’s petition for writ of habeas corpus regarding his DUI charge. Walsh
only argued in his habeas petition that his charges must be dismissed because
kratom and caffeine are not controlled substances, and he conceded at the
habeas hearing that both substances meet the definition of a “drug.” See
N.T. Hearing at 5 (Walsh’s counsel’s stating, “So the only way that the
Commonwealth can show their case is through [proving a] drug or
combination of drugs, which again, by the definition of drug or
combination of drugs, kratom is a drug, caffeine is a drug.”) (emphasis
added). Because Walsh conceded this element of section 3802(d)(2) was
satisfied, and he presented no other challenge to the sufficiency of the
Commonwealth’s evidence to prove a prima facie case for any other element
of this offense, his habeas petition should have been denied regarding his DUI
charge under 75 Pa.C.S. § 3802(d)(2). Accordingly, we reverse the portion
of Judge Scanlon’s order dismissing that charge. However, Judge Scanlon also
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dismissed Walsh’s charge for public drunkenness under 18 Pa.C.S. § 5505,
and the Commonwealth raises no challenge to that determination herein.
Accordingly, the Commonwealth has waived any such issue for our review,
and we affirm Judge Scanlon’s order dismissing Walsh’s charge under section
5505.
Before concluding, we briefly address the analysis Judge Krull set forth
in her opinion, suggesting we affirm Judge Scanlon’s order granting Walsh’s
habeas petition. It appears Judge Krull concluded section 3802(d)(2) is not
limited to controlled substances and, thus, Walsh’s use of kratom satisfies the
statute. See TCO at unnumbered 14 (court’s stating, “kratom is not a
controlled substance and must be evaluated as a ‘drug’ under the DUI
statute”). Nevertheless, Judge Krull stated we should affirm Judge Scanlon’s
order granting Walsh’s habeas petition on two alternative grounds.
First, Judge Krull found Officer Kelso’s testimony was insufficient to
establish a “causal connection between [Walsh’s] conduct [of erratic driving]
and kratom (and/or caffeine)[,]” as there was no testimony regarding the
“officer’s knowledge, experience or even the length of his police service.” Id.
at unnumbered 5. The judge elaborated:
The record before this court reflects testimony of a police officer
without any reference to his years of service; any specialized
education or drug interdiction experience; any expert testimony
(or even the lab test results presented at the preliminary hearing)
to substantiate kratom’s (or caffeine’s) effects or threshold levels
of chemical activity. In short, evidence of kratom’s use has been
established, but the critical link establishing that kratom caused
deficient driving is missing.
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Id. at unnumbered 8. Ultimately, Judge Krull determined “the unknowns
presented by the record regarding Officer Kelso and his experience and
knowledge negate any prospect the court could credit his testimony
relevant to kratom’s effect.” Id. at unnumbered 15 (emphasis added).
As set forth above, weight and credibility of the evidence are not factors
in assessing whether the Commonwealth sustained its burden of establishing
a prima facie case at the preliminary hearing. See Hilliard, 172 A.3d at 10.
Moreover, in Walsh’s petition for writ of habeas corpus, he did not raise any
claim that Officer Kelso’s testimony was insufficient to establish a causal link
between Walsh’s use of kratom (and/or caffeine) and his deficient driving.
Walsh also did not raise any such argument at the habeas hearing before
Judge Scanlon. Thus, we decline to affirm on this alternative basis, which was
not raised or argued below. See Commonwealth v. Little,
305 A.3d 38, 49
(Pa. Super. 2023) (finding an issue not raised before the trial court when
deciding a petition for writ of habeas corpus is waived) (citation omitted).
Second, Judge Krull reasoned we should affirm Judge Scanlon’s order
because the DUI statute is unconstitutional, as it “fails to meet due process
requirements under a void for vagueness analysis….” TCO at unnumbered 14
(citation omitted). Judge Krull reasoned “the pertinent section of the DUI
statute does not include a mens rea (‘bad act’) component.” Id. at
unnumbered 10. She also found “a person of ordinary intelligence would not
necessarily know that kratom’s use would implicate a possible prosecution for
DUI” and, thus, “neither proper notice nor the inference of an understanding
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of wrongdoing have been demonstrated.” Id. at unnumbered 14.
Additionally, Judge Krull seemingly concluded the statute is unconstitutional
as applied in this case, reasoning that
[s]ubjecting [Walsh] to DUI prosecution based on the purported
use of kratom, especially where the connection of its ingestion
cannot be specifically tied to the errant driving behaviors and the
absence of a clear standard opens the door to unchecked
discretion in subjecting this individual to criminal penalties[,]
defies due process.
Id.
Again, Walsh never raised any constitutional challenge to the statute in
his habeas petition, or at the hearing before Judge Scanlon. “An appellate
court should not address constitutional issues unnecessarily or when they are
not properly presented and preserved in the trial court for our appellate
review.” Berryman, 649 A.2d at 973. “Furthermore, this [C]ourt may not
raise a constitutional issue sua sponte.”
Id. Accordingly, we decline to sua
sponte examine the constitutionality of section 3802(d)(2) as an alternative
basis for affirming Judge Scanlon’s order.
Based on the foregoing, we reverse the order granting Walsh’s petition
for writ of habeas corpus to the extent it dismissed his charge of DUI under
75 Pa.C.S. § 3802(d)(2), and we affirm the order to the extent it dismissed
Walsh’s charge for public intoxication under 18 Pa.C.S. § 5505. We remand
Walsh’s case for further proceedings.
Order affirmed in part, reversed in part. Case remanded for further
proceedings. Jurisdiction relinquished.
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Date: 3/16/2026
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