COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WAYNE RICHARD GLENN, :
:
Appellant : No. 1595 WDA 2019
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
BEFORE: SHOGAN, J., MURRAY, J. and STRASSBURGER, J.*
CONCURRING OPINION BY STRASSBURGER, J.: FILED MAY 29, 2020
Were this Court to reach the various canons of statutory construction,
I would agree with the Majority’s analysis. However, I would not reach
those canons because I find that the statutory language is not ambiguous.
See A.S. v. Pennsylvania State Police,
(Pa. 2016) (“It
is only when statutory text is determined to be ambiguous that we may go
beyond the text and look to other considerations to discern legislative
intent.”).
Briefly, subsection 3802(d) provides 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),1 known as
The Controlled Substance, Drug, Device and
Cosmetic Act;
___________________
* Retired Senior Judge assigned to the Superior Court.
J-A09029-20
(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).
75 Pa.C.S. § 3802(d) (emphasis added).
Unlike subparagraphs (i) and (ii), subparagraph (iii) does not reference
Schedule I, II, or III substances when proscribing the existence of
metabolites in an individual’s blood. Rather, subparagraph (iii) specifically
references subparagraphs (i) and (ii), the latter of which includes an
exception for medically prescribed Schedule II and III substances.
Therefore, the plain language of the statute provides for the exception set
forth in subparagraph (ii) to carry through to subparagraph (iii), thereby
excepting metabolites of medically prescribed Schedule II and III
substances.
Thus, I agree with the Majority that Appellant’s conviction for DUI-
metabolite was unlawful because the metabolite existed in his blood only as
a result of a medically prescribed Schedule II substance, which I conclude is
not illegal pursuant to the plain language of 75 Pa.C.S. § 3802(d).
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