J-S41008-23
2024 PA Super 21
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT AUGUST SCHIFANO :
:
Appellant : No. 264 WDA 2023
Appeal from the Judgment of Sentence Entered February 3, 2023
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0003941-2020
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
OPINION BY PANELLA, P.J.: FILED: February 9, 2024
Robert Schifano was charged with several summary traffic offenses and
Driving Under the Influence of Alcohol or a Controlled Substance (“DUI”), 75
Pa. C.S.A. § 3802(d)(1), after being pulled over for a traffic stop and admitting
he had ingested medical marijuana that day. A jury ultimately convicted
Schifano of the DUI charge. On appeal, Schifano argues the evidence was
insufficient to support the DUI conviction because, according to Schifano,
medical marijuana is not a Schedule I controlled substance for purposes of
Section 3802(d)(1). He also asserts the court abused its discretion by refusing
to charge the jury to that effect. In addition, Schifano contends the court erred
by requiring him to pay the costs of the Commonwealth’s expert witness as
part of his sentence. We affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S41008-23
As an initial matter, we note that the certified record does not contain
either the transcript from the jury trial or Schifano’s sentencing hearing. And,
as discussed more fully below, our Prothonotary was unable to supplement
the record to include those transcripts upon informal inquiry. Although the
appeal could arguably be dismissed in its entirety in light of these
circumstances, we decline to do so. Instead, we find we can ultimately reach
the merits of Schifano’s issues despite the deficient record and to the extent
they are based on undisputed facts. We agree with the trial court that these
issues merit no relief.
The trial court summarized the facts underlying Schifano’s conviction.
See Trial Court Opinion, 4/20/2023, at 1-4. Of course, despite our confidence
in the trial court’s review, without the transcripts, we are unable to
independently verify that the record supports that summary. However, the
facts relevant to this appeal are largely undisputed. In brief, the trial court
recounted that Schifano was pulled over for a traffic stop. During the stop,
Schifano admitted to the trooper who pulled him over that earlier in the day
he had ingested medical marijuana prescribed to him with a valid medical
marijuana card. Schifano consented to a blood test, which was confirmed to
contain three substances related to marijuana, including the metabolite Delta-
9 THC.
Based on this incident, the Commonwealth charged Schifano with
several summary traffic offenses. It also charged Schifano with DUI pursuant
-2-
J-S41008-23
to Section 3802(d)(1), which prohibits a person from driving if there is any
amount of a Schedule I controlled substance, as defined by the Controlled
Substance, Drug, Device and Cosmetic Act, 35 P.S.A. § 780-101 et seq.
(“CSA”), or a metabolite of that substance, in their blood. See 75 Pa.C.S.A. §
3802(d)(1)(i),(iii).
The matter proceeded to a jury trial, and the jury convicted Schifano of
the DUI offense. The trial court held a bench trial on the summary offenses,
after which it found Schifano guilty of the summary offense of obedience to
traffic control devices. Following a sentencing hearing, the court sentenced
Schifano to serve five years of probation with restrictive conditions of home
electronic monitoring for 90 days. The court also ordered Schifano to pay,
inter alia, $2,500 for the Commonwealth’s expert witness fees.
Schifano filed a timely notice of appeal. Along with the notice of appeal,
Schifano attached a document stating that a notice of appeal had been filed
and that the complete transcript had been lodged of record. Schifano complied
with the court’s order to file a Pa.R.A.P. 1925(b) statement. In response, the
court issued a Rule 1925(a) opinion thoroughly considering each of the issues
raised by Schifano and explaining why none of those issued entitled him to
relief. Schifano now raises the following three issues in his appeal:
I. Whether the evidence was insufficient to sustain a guilty verdict
for driving under the influence of a controlled substance since
the Commonwealth failed to prove beyond a reasonable doubt
that [Schifano] had any amount of a controlled substance in
his blood, when [Schifano] consumed medical marijuana
pursuant to a valid medical marijuana identification card thus
-3-
J-S41008-23
removing it from the definition of a Schedule I controlled
substance as defined by the [CSA]?
II. Whether the lower court erred in granting the proposed jury
instruction as submitted by the Commonwealth and erred in its
denial of [Schifano’s] requested jury instruction regarding
medical marijuana?
III. Whether the lower court erred in its imposition of restitution
upon the defendant to pay for the appearance of a
Commonwealth witness when there is no statutory authority
permitting this type of restitution, thus resulting in the
[imposition] of an illegal sentence?
Appellant’s Brief at 9, 13, 15.
Before we can consider the merits of these claims, we must first address
the fact that the certified record does not contain the transcript from either
the jury trial or the sentencing hearing. Upon informal inquiry by our
Prothonotary, the Westmoreland County’s clerk of courts informed the
Prothonotary that no transcripts had been filed with their office in this case,
as counsel had failed to properly submit a request for the transcripts. As such,
the clerk of courts did not have any transcripts that could be made a part of
the certified record and forwarded to this Court.
Our review of the certified record supports the representation that
counsel did not properly request the transcripts to be filed and made a part of
the record. Although counsel averred that the complete transcript had been
lodged of record, we fail to see any request for transcripts that complies with
our Rules of Appellate Procedure in the record that was sent to us. See
Pa.R.A.P. 1911(c); Pa.R.A.P. 1921; Pa.R.A.P. 1922.
-4-
J-S41008-23
Of course, it is the appellant’s burden to ensure that the certified record
contains that which is necessary for this Court to properly resolve the issues
raised on appeal, including any transcripts. See Commonwealth v. Midgley,
289 A.3d 1111, 1120 (Pa. Super. 2023). When the appellant fails to take the
proper steps required for the preparation of transcripts, our Rules of Appellate
Procedure allow for this Court to take any appropriate action, including
dismissing the appeal in its entirety. See Pa.R.A.P. 1911(d). However, as
noted above, we decline to order such a dismissal as the circumstances
presented by this appeal allow for us to reach the merits of Schifano’s claims
to the extent they are based on undisputed facts and present a legal question.
In his first claim, Schifano argues the evidence was insufficient to
support his DUI conviction. Importantly, and as his statement of the issue
makes clear, Schifano does not dispute that he had marijuana in his system
when he was pulled over for a traffic stop. Nor does he dispute that marijuana
is listed as a Schedule I controlled substance under the CSA. He contends,
however, that the marijuana in his system was medical marijuana ingested
pursuant to a valid medical marijuana card issued to him under the Medical
Marijuana Act. According to Schifano, there is a legal distinction between
medical marijuana and illegal marijuana, and he urges us to find that medical
marijuana consumed in compliance with the Medical Marijuana Act is not a
Schedule I controlled substance for purposes of Section 3802(d)(1). To the
extent Schifano’s argument raises a legal question based on undisputed facts,
-5-
J-S41008-23
we are able to reach the merits of that question even in the absence of the
transcripts. We find no error in the trial court’s conclusion that this claim does
not warrant any relief.
As noted above, Section 3802(d)(1)(i) of the Vehicle Code prohibits an
individual from operating a motor vehicle when there is any amount of a
Schedule I controlled substance in their blood. See 75 Pa. C.S.A. §
3802(d)(1)(i). Accordingly, to sustain a conviction for DUI under Section
3802(d)(1)(i), the Commonwealth need only prove that the driver operated a
motor vehicle when there was any amount of a Schedule I controlled
substance in their blood. See Commonwealth v. Watts, 283 A.3d 1252,
1256 (Pa. Super. 2022). It need not prove that there was any specific amount
of the controlled substance in the driver’s blood or that the driver was
impaired. See Commonwealth v. Etchison,
916 A.2d 1169, 1174 (Pa.
Super. 2007).
Marijuana is listed as a Schedule I controlled substance under the CSA.
See 35 P.S.A. § 780-104(1)(iv). This Court has specifically held that medical
marijuana is included in that schedule designation for purposes of Section
3802(d)(1)(i), and that there is no distinction between illegal and medical
marijuana for purposes of prosecuting a person under that section. See
Watts, 283 A.3d at 1256 (rejecting the appellant’s argument that medical
marijuana is not a Schedule I controlled substance for purposes of Section
3802(d)(1)(i)); Commonwealth v. Dabney, 274 A.3d 1283, 1291 (Pa.
-6-
J-S41008-23
Super. 2022) (stating that all marijuana, medical or otherwise, remains a
Schedule I controlled substance). A petition for allowance of appeal from our
opinion in Dabney was denied by the Pennsylvania Supreme Court on October
25, 2022. See Commonwealth v. Dabney, 286 A.3d 1233 (Pa.
2022)(Table).1 As such, this Court has held that Section 3802(d)(1)(i)
prohibits one from driving with any amount of marijuana, medical or not, in
one’s blood. See
id.
Based on Watts and Dabney, as well as a string of non-precedential
decisions by this Court concluding that medical marijuana is a Schedule I
controlled substance and Section 3802(d)(1)(i) therefore prohibits driving
with any amount of medical marijuana in one’s blood, the trial court concluded
there was no merit to Schifano’s claim that the evidence was insufficient to
support his DUI conviction because it was medical marijuana in his blood. See
Trial Court Opinion, 4/20/2023, at 6-8.
We discern no error in the court’s conclusion, as it is clearly supported
by our caselaw. Therefore, even if this claim were waived on the basis of the
deficient record, no relief would be due.
____________________________________________
1 Furthermore, the Dabney decision was followed and adopted by the Superior
Court in Commonwealth v. Nunemaker, 289 A.3d 88 (Pa. Super.
2022)(unpublished memorandum). We note that the Supreme Court of
Pennsylvania denied a petition for allowance of appeal in Nunemaker on May
23, 2023. See Commonwealth v. Nunemaker,
298 A.3d 379 (Pa.
2023)(Table).
-7-
J-S41008-23
In his second issue, Schifano complains the trial court erred by refusing
to instruct the jury that medical marijuana is not a Schedule I controlled
substance. Again, to the extent we can review the merits of this issue, we find
no error in the court’s conclusion that the issue is baseless.
As an initial matter, the trial court found Schifano had waived this issue.
The court noted that there had been argument from both counsel regarding
the proper charge to be given to the jury on medical marijuana during the
conference charge, with Schifano generally proposing the court instruct the
jury that medical marijuana is not a Schedule I controlled substance and the
Commonwealth generally proposing the court instruct the jury that it is still
listed in the statute as a Schedule I controlled substance. The court ultimately
decided it would read the Commonwealth’s proposed charge.
The trial court explained that after the court gave the instructions to the
jury, including the Commonwealth’s proposed charge on medical marijuana,
counsel did not lodge an objection to the medical marijuana charge when the
court asked counsel if there were any concerns with the instructions before
the jury was sent to deliberate. The trial court found Schifano had waived any
challenge to the medical marijuana charge on that basis. The court
nonetheless went on to state that, based on its discussion of the caselaw when
disposing of Schifano’s first issue, it was clear the court had not erred in
declining to charge the jury that medical marijuana is not a Schedule I
controlled substance.
-8-
J-S41008-23
Schifano takes issue with the court’s finding of waiver because he
contends he raised a specific objection to the Commonwealth’s proposed
instruction on medical marijuana at the charging conference and this action
preserved the issue for appeal. Given our inability to review the transcript,
however, we are unable to properly assess Schifano’s claim. Accordingly,
Schifano has not provided us with any basis on which we can disturb the trial
court’s conclusion on waiver. However, even if the issue had not been waived,
we agree with the trial court’s conclusion that based upon the caselaw
discussed in Schifano’s first issue “there is no support in the law for
[Schifano’s] proposed instruction that medical marijuana is not a Schedule I
controlled substance.” Trial Court Opinion, 4/20/2023, at 12. Therefore, even
if not waived, the issue would not have entitled Schifano to any relief.
In his third and final claim, Schifano argues the trial court erred by
sentencing him to pay $2,500 in restitution for the Commonwealth’s expert
witness fees. This final claim is also meritless.
In support of his claim, Schifano explains he is classifying the payment
as restitution given that the sentencing order specifically states that he is to
pay restitution to the Westmoreland County district attorney’s office in the
amount of $2,500. Although Schifano does not attempt to explain the
significance of classifying the payment as restitution, we note this Court has
stated:
It is well-established that the Commonwealth is not a victim
entitled to restitution. However, what the Commonwealth is
-9-
J-S41008-23
statutorily authorized to receive are costs of prosecution. See 18
Pa. C.S.A. § 9728(g) (“any … costs associated with the
prosecution[ ]shall be borne by the defendant[.]”); 16 P.S.A. §
7708 (“[T]he expenses of the district attorney in connection with
[the] prosecution, shall be considered a part of the costs of the
case [ ] and be paid by the defendant.”).
Commonwealth v. Baney, 187 A.3d 1020, 1024 (Pa. Super. 2018).
The Commonwealth points out that, although Schifano refers to the
payment of the expert witness fees at issue here as restitution, those fees
were specifically characterized throughout the sentencing hearing as “costs of
prosecution.” See Commonwealth’s Brief at 20. Schifano acknowledges this
in his brief. See Appellant’s Brief at 15. Schifano also acknowledges that the
trial court specifically explained that “although [Schifano] references this
payment as “restitution,” this Court ordered the assessment as costs of
prosecution.” Trial Court Opinion, 4/20/2023, at 13 n.8; Appellant’s Brief at
15. Given that Schifano does not dispute that the expert witness fees were
treated as costs of prosecution by the court at the sentencing hearing, our
inability to review the sentencing hearing transcript does not prevent us from
reaching the merits of his claim.
Schifano argues, in essence, that there is no statutory authority to
support the trial court’s order that he pay the costs associated with the
appearance of the Commonwealth’s expert witness at trial. This claim fails.
In ordering Schifano to pay the costs for the Commonwealth’s expert
witness, the trial court relied on, inter alia, 16 P.S.A. § 4403, which governs
- 10 -
J-S41008-23
expenses incurred by the district attorney in second class counties. Section
4403 provides in relevant part:
In any case where a defendant is convicted and sentenced to pay
the costs of prosecution and trial, the expenses of the district
attorney in connection with such prosecution shall be considered
a part of the costs of the case and be paid by the defendant.
16 P.S.A. § 4403.
In arguing this statute is inapplicable to expert witness costs such as
the ones he was ordered to pay, Schifano summarily asserts that “the statute
does not even mention expert witness costs, but rather expenses.” Appellant’s
Brief at 16. However, this Court has held that costs of prosecution “include,
but are not limited to, the costs of convening an investigating grand jury,
expert witness fees, clerk costs, ‘buy money,’ and other expert witness costs
to investigate these crimes.” Baney, 187 A.3d 1020, 1024 (Pa. Super. 2018).
While it is true Baney involved 16 P.S.A. § 7708, which involves expenses
incurred by district attorneys in counties of the first class, the relevant
language in both statutes is identical in all material aspects. We are therefore
not persuaded that the trial court erred by ordering Schifano to pay the expert
witness fees as costs of prosecution.
Accordingly, even if this issue were not waived because of the failure to
provide this Court with the sentencing hearing transcript, we see no error in
the trial court’s conclusion that the claim lacks merit. No relief is due.
Judgment of sentence affirmed.
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J-S41008-23
DATE: 02/09/2024
- 12 -
J-S41008-23
2024 PA Super 21
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT AUGUST SCHIFANO :
:
Appellant : No. 264 WDA 2023
Appeal from the Judgment of Sentence Entered February 3, 2023
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0003941-2020
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
OPINION BY PANELLA, P.J.: FILED: February 9, 2024
Robert Schifano was charged with several summary traffic offenses and
Driving Under the Influence of Alcohol or a Controlled Substance (“DUI”), 75
Pa. C.S.A. § 3802(d)(1), after being pulled over for a traffic stop and admitting
he had ingested medical marijuana that day. A jury ultimately convicted
Schifano of the DUI charge. On appeal, Schifano argues the evidence was
insufficient to support the DUI conviction because, according to Schifano,
medical marijuana is not a Schedule I controlled substance for purposes of
Section 3802(d)(1). He also asserts the court abused its discretion by refusing
to charge the jury to that effect. In addition, Schifano contends the court erred
by requiring him to pay the costs of the Commonwealth’s expert witness as
part of his sentence. We affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S41008-23
As an initial matter, we note that the certified record does not contain
either the transcript from the jury trial or Schifano’s sentencing hearing. And,
as discussed more fully below, our Prothonotary was unable to supplement
the record to include those transcripts upon informal inquiry. Although the
appeal could arguably be dismissed in its entirety in light of these
circumstances, we decline to do so. Instead, we find we can ultimately reach
the merits of Schifano’s issues despite the deficient record and to the extent
they are based on undisputed facts. We agree with the trial court that these
issues merit no relief.
The trial court summarized the facts underlying Schifano’s conviction.
See Trial Court Opinion, 4/20/2023, at 1-4. Of course, despite our confidence
in the trial court’s review, without the transcripts, we are unable to
independently verify that the record supports that summary. However, the
facts relevant to this appeal are largely undisputed. In brief, the trial court
recounted that Schifano was pulled over for a traffic stop. During the stop,
Schifano admitted to the trooper who pulled him over that earlier in the day
he had ingested medical marijuana prescribed to him with a valid medical
marijuana card. Schifano consented to a blood test, which was confirmed to
contain three substances related to marijuana, including the metabolite Delta-
9 THC.
Based on this incident, the Commonwealth charged Schifano with
several summary traffic offenses. It also charged Schifano with DUI pursuant
-2-
J-S41008-23
to Section 3802(d)(1), which prohibits a person from driving if there is any
amount of a Schedule I controlled substance, as defined by the Controlled
Substance, Drug, Device and Cosmetic Act, 35 P.S.A. § 780-101 et seq.
(“CSA”), or a metabolite of that substance, in their blood. See 75 Pa.C.S.A. §
3802(d)(1)(i),(iii).
The matter proceeded to a jury trial, and the jury convicted Schifano of
the DUI offense. The trial court held a bench trial on the summary offenses,
after which it found Schifano guilty of the summary offense of obedience to
traffic control devices. Following a sentencing hearing, the court sentenced
Schifano to serve five years of probation with restrictive conditions of home
electronic monitoring for 90 days. The court also ordered Schifano to pay,
inter alia, $2,500 for the Commonwealth’s expert witness fees.
Schifano filed a timely notice of appeal. Along with the notice of appeal,
Schifano attached a document stating that a notice of appeal had been filed
and that the complete transcript had been lodged of record. Schifano complied
with the court’s order to file a Pa.R.A.P. 1925(b) statement. In response, the
court issued a Rule 1925(a) opinion thoroughly considering each of the issues
raised by Schifano and explaining why none of those issued entitled him to
relief. Schifano now raises the following three issues in his appeal:
I. Whether the evidence was insufficient to sustain a guilty verdict
for driving under the influence of a controlled substance since
the Commonwealth failed to prove beyond a reasonable doubt
that [Schifano] had any amount of a controlled substance in
his blood, when [Schifano] consumed medical marijuana
pursuant to a valid medical marijuana identification card thus
-3-
J-S41008-23
removing it from the definition of a Schedule I controlled
substance as defined by the [CSA]?
II. Whether the lower court erred in granting the proposed jury
instruction as submitted by the Commonwealth and erred in its
denial of [Schifano’s] requested jury instruction regarding
medical marijuana?
III. Whether the lower court erred in its imposition of restitution
upon the defendant to pay for the appearance of a
Commonwealth witness when there is no statutory authority
permitting this type of restitution, thus resulting in the
[imposition] of an illegal sentence?
Appellant’s Brief at 9, 13, 15.
Before we can consider the merits of these claims, we must first address
the fact that the certified record does not contain the transcript from either
the jury trial or the sentencing hearing. Upon informal inquiry by our
Prothonotary, the Westmoreland County’s clerk of courts informed the
Prothonotary that no transcripts had been filed with their office in this case,
as counsel had failed to properly submit a request for the transcripts. As such,
the clerk of courts did not have any transcripts that could be made a part of
the certified record and forwarded to this Court.
Our review of the certified record supports the representation that
counsel did not properly request the transcripts to be filed and made a part of
the record. Although counsel averred that the complete transcript had been
lodged of record, we fail to see any request for transcripts that complies with
our Rules of Appellate Procedure in the record that was sent to us. See
Pa.R.A.P. 1911(c); Pa.R.A.P. 1921; Pa.R.A.P. 1922.
-4-
J-S41008-23
Of course, it is the appellant’s burden to ensure that the certified record
contains that which is necessary for this Court to properly resolve the issues
raised on appeal, including any transcripts. See Commonwealth v. Midgley,
289 A.3d 1111, 1120 (Pa. Super. 2023). When the appellant fails to take the
proper steps required for the preparation of transcripts, our Rules of Appellate
Procedure allow for this Court to take any appropriate action, including
dismissing the appeal in its entirety. See Pa.R.A.P. 1911(d). However, as
noted above, we decline to order such a dismissal as the circumstances
presented by this appeal allow for us to reach the merits of Schifano’s claims
to the extent they are based on undisputed facts and present a legal question.
In his first claim, Schifano argues the evidence was insufficient to
support his DUI conviction. Importantly, and as his statement of the issue
makes clear, Schifano does not dispute that he had marijuana in his system
when he was pulled over for a traffic stop. Nor does he dispute that marijuana
is listed as a Schedule I controlled substance under the CSA. He contends,
however, that the marijuana in his system was medical marijuana ingested
pursuant to a valid medical marijuana card issued to him under the Medical
Marijuana Act. According to Schifano, there is a legal distinction between
medical marijuana and illegal marijuana, and he urges us to find that medical
marijuana consumed in compliance with the Medical Marijuana Act is not a
Schedule I controlled substance for purposes of Section 3802(d)(1). To the
extent Schifano’s argument raises a legal question based on undisputed facts,
-5-
J-S41008-23
we are able to reach the merits of that question even in the absence of the
transcripts. We find no error in the trial court’s conclusion that this claim does
not warrant any relief.
As noted above, Section 3802(d)(1)(i) of the Vehicle Code prohibits an
individual from operating a motor vehicle when there is any amount of a
Schedule I controlled substance in their blood. See 75 Pa. C.S.A. §
3802(d)(1)(i). Accordingly, to sustain a conviction for DUI under Section
3802(d)(1)(i), the Commonwealth need only prove that the driver operated a
motor vehicle when there was any amount of a Schedule I controlled
substance in their blood. See Commonwealth v. Watts, 283 A.3d 1252,
1256 (Pa. Super. 2022). It need not prove that there was any specific amount
of the controlled substance in the driver’s blood or that the driver was
impaired. See Commonwealth v. Etchison,
916 A.2d 1169, 1174 (Pa.
Super. 2007).
Marijuana is listed as a Schedule I controlled substance under the CSA.
See 35 P.S.A. § 780-104(1)(iv). This Court has specifically held that medical
marijuana is included in that schedule designation for purposes of Section
3802(d)(1)(i), and that there is no distinction between illegal and medical
marijuana for purposes of prosecuting a person under that section. See
Watts, 283 A.3d at 1256 (rejecting the appellant’s argument that medical
marijuana is not a Schedule I controlled substance for purposes of Section
3802(d)(1)(i)); Commonwealth v. Dabney,
274 A.3d 1283, 1291 (Pa.
-6-
J-S41008-23
Super. 2022) (stating that all marijuana, medical or otherwise, remains a
Schedule I controlled substance). A petition for allowance of appeal from our
opinion in Dabney was denied by the Pennsylvania Supreme Court on October
25, 2022. See Commonwealth v. Dabney, 286 A.3d 1233 (Pa.
2022)(Table).1 As such, this Court has held that Section 3802(d)(1)(i)
prohibits one from driving with any amount of marijuana, medical or not, in
one’s blood. See
id.
Based on Watts and Dabney, as well as a string of non-precedential
decisions by this Court concluding that medical marijuana is a Schedule I
controlled substance and Section 3802(d)(1)(i) therefore prohibits driving
with any amount of medical marijuana in one’s blood, the trial court concluded
there was no merit to Schifano’s claim that the evidence was insufficient to
support his DUI conviction because it was medical marijuana in his blood. See
Trial Court Opinion, 4/20/2023, at 6-8.
We discern no error in the court’s conclusion, as it is clearly supported
by our caselaw. Therefore, even if this claim were waived on the basis of the
deficient record, no relief would be due.
____________________________________________
1 Furthermore, the Dabney decision was followed and adopted by the Superior
Court in Commonwealth v. Nunemaker, 289 A.3d 88 (Pa. Super.
2022)(unpublished memorandum). We note that the Supreme Court of
Pennsylvania denied a petition for allowance of appeal in Nunemaker on May
23, 2023. See Commonwealth v. Nunemaker,
298 A.3d 379 (Pa.
2023)(Table).
-7-
J-S41008-23
In his second issue, Schifano complains the trial court erred by refusing
to instruct the jury that medical marijuana is not a Schedule I controlled
substance. Again, to the extent we can review the merits of this issue, we find
no error in the court’s conclusion that the issue is baseless.
As an initial matter, the trial court found Schifano had waived this issue.
The court noted that there had been argument from both counsel regarding
the proper charge to be given to the jury on medical marijuana during the
conference charge, with Schifano generally proposing the court instruct the
jury that medical marijuana is not a Schedule I controlled substance and the
Commonwealth generally proposing the court instruct the jury that it is still
listed in the statute as a Schedule I controlled substance. The court ultimately
decided it would read the Commonwealth’s proposed charge.
The trial court explained that after the court gave the instructions to the
jury, including the Commonwealth’s proposed charge on medical marijuana,
counsel did not lodge an objection to the medical marijuana charge when the
court asked counsel if there were any concerns with the instructions before
the jury was sent to deliberate. The trial court found Schifano had waived any
challenge to the medical marijuana charge on that basis. The court
nonetheless went on to state that, based on its discussion of the caselaw when
disposing of Schifano’s first issue, it was clear the court had not erred in
declining to charge the jury that medical marijuana is not a Schedule I
controlled substance.
-8-
J-S41008-23
Schifano takes issue with the court’s finding of waiver because he
contends he raised a specific objection to the Commonwealth’s proposed
instruction on medical marijuana at the charging conference and this action
preserved the issue for appeal. Given our inability to review the transcript,
however, we are unable to properly assess Schifano’s claim. Accordingly,
Schifano has not provided us with any basis on which we can disturb the trial
court’s conclusion on waiver. However, even if the issue had not been waived,
we agree with the trial court’s conclusion that based upon the caselaw
discussed in Schifano’s first issue “there is no support in the law for
[Schifano’s] proposed instruction that medical marijuana is not a Schedule I
controlled substance.” Trial Court Opinion, 4/20/2023, at 12. Therefore, even
if not waived, the issue would not have entitled Schifano to any relief.
In his third and final claim, Schifano argues the trial court erred by
sentencing him to pay $2,500 in restitution for the Commonwealth’s expert
witness fees. This final claim is also meritless.
In support of his claim, Schifano explains he is classifying the payment
as restitution given that the sentencing order specifically states that he is to
pay restitution to the Westmoreland County district attorney’s office in the
amount of $2,500. Although Schifano does not attempt to explain the
significance of classifying the payment as restitution, we note this Court has
stated:
It is well-established that the Commonwealth is not a victim
entitled to restitution. However, what the Commonwealth is
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statutorily authorized to receive are costs of prosecution. See 18
Pa. C.S.A. § 9728(g) (“any … costs associated with the
prosecution[ ]shall be borne by the defendant[.]”); 16 P.S.A. §
7708 (“[T]he expenses of the district attorney in connection with
[the] prosecution, shall be considered a part of the costs of the
case [ ] and be paid by the defendant.”).
Commonwealth v. Baney, 187 A.3d 1020, 1024 (Pa. Super. 2018).
The Commonwealth points out that, although Schifano refers to the
payment of the expert witness fees at issue here as restitution, those fees
were specifically characterized throughout the sentencing hearing as “costs of
prosecution.” See Commonwealth’s Brief at 20. Schifano acknowledges this
in his brief. See Appellant’s Brief at 15. Schifano also acknowledges that the
trial court specifically explained that “although [Schifano] references this
payment as “restitution,” this Court ordered the assessment as costs of
prosecution.” Trial Court Opinion, 4/20/2023, at 13 n.8; Appellant’s Brief at
15. Given that Schifano does not dispute that the expert witness fees were
treated as costs of prosecution by the court at the sentencing hearing, our
inability to review the sentencing hearing transcript does not prevent us from
reaching the merits of his claim.
Schifano argues, in essence, that there is no statutory authority to
support the trial court’s order that he pay the costs associated with the
appearance of the Commonwealth’s expert witness at trial. This claim fails.
In ordering Schifano to pay the costs for the Commonwealth’s expert
witness, the trial court relied on, inter alia, 16 P.S.A. § 4403, which governs
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expenses incurred by the district attorney in second class counties. Section
4403 provides in relevant part:
In any case where a defendant is convicted and sentenced to pay
the costs of prosecution and trial, the expenses of the district
attorney in connection with such prosecution shall be considered
a part of the costs of the case and be paid by the defendant.
16 P.S.A. § 4403.
In arguing this statute is inapplicable to expert witness costs such as
the ones he was ordered to pay, Schifano summarily asserts that “the statute
does not even mention expert witness costs, but rather expenses.” Appellant’s
Brief at 16. However, this Court has held that costs of prosecution “include,
but are not limited to, the costs of convening an investigating grand jury,
expert witness fees, clerk costs, ‘buy money,’ and other expert witness costs
to investigate these crimes.” Baney, 187 A.3d 1020, 1024 (Pa. Super. 2018).
While it is true Baney involved 16 P.S.A. § 7708, which involves expenses
incurred by district attorneys in counties of the first class, the relevant
language in both statutes is identical in all material aspects. We are therefore
not persuaded that the trial court erred by ordering Schifano to pay the expert
witness fees as costs of prosecution.
Accordingly, even if this issue were not waived because of the failure to
provide this Court with the sentencing hearing transcript, we see no error in
the trial court’s conclusion that the claim lacks merit. No relief is due.
Judgment of sentence affirmed.
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DATE: 02/09/2024
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