Commonwealth v. Stone

273 A.3d 1163

COMMONWEALTH of Pennsylvania, Appellant

v.River Garrett STONE

No. 828 WDA 2020

Superior Court of Pennsylvania.

Argued November 30, 2021

Filed: April 12, 2022

Ryan P. Sayers, District Attorney, Clearfield, for Commonwealth, appellant.

Leanne R. Nedza, Assistant District Attorney, Clearfield, for Commonwealth, appellant.

Joshua S. Maines, Clearfield, for appellee.

Cheryl A. Brooks, Defender Association of Philadelphia, Philadelphia, amicus.

BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., OLSON, J., STABILE, J., KUNSELMAN, J., NICHOLS, J., KING, J., and McCAFFERY, J.

OPINION BY NICHOLS, J.:

The Commonwealth appeals from the July 24, 2020 order denying its challenge to the proposed jury instruction filed by Appellee River Garrett Stone. The Commonwealth argues that the trial court erred when it agreed to instruct the jury that (1) medical marijuana is not a Schedule I controlled substance under Pennsylvania law;¹ and (2) in order to convict Appellee of Driving Under the Influence (DUI) in violation of 75 Pa.C.S. § 3802(d)(1), the Commonwealth was required to prove that the source of the marijuana discovered in Appellee's bloodstream was non-medical marijuana as opposed to medical marijuana. For the reasons herein, we are constrained to conclude that the trial court's ruling constituted legal error, therefore we reverse and remand this matter for further proceedings.

The trial court summarized the relevant facts of this case as follows:

On May 25, 2019, Trooper Brian Elensky was on patrol monitoring traffic and running radar on State Route 322 in Lawrence Township, Clearfield County. At approximately 6:00 p.m., he observed a vehicle which appeared to be traveling at a high rate of speed in the posted 55 mph speed limit. The Trooper's radar gun showed the vehicle to be traveling 74 mph. The vehicle was stopped [by the Trooper,] and [the driver of the car was Appellee]. As the Trooper approached [Appellee,] he smelled an odor or burnt marijuana and noticed the driver's eyes appeared slightly bloodshot and watery.^{[2 ]} [Appellee] told Trooper Elensky [that] he had a medical marijuana card but indicated he did not have it in his possession. Upon further questioning[, Appellee] handed the Trooper a plastic bag containing a small amount of marijuana. Sobriety tests were then conducted and[, Appellee] was arrested for driving under the influence.

At the time of the preliminary hearing, [Appellee] was represented by counsel and executed a Waiver thereof. The Commonwealth filed an Information which contained various counts. Count [1] charged driving under the influence of controlled substance – 3rd offense under 75 Pa.C.S. § 3802(d)(1)(i) felony of the third degree and alleged that [Appellee] drove while there was any amount of a Schedule I controlled substance in his blood, namely marijuana. Count [2] also charged driving under the influence of controlled substance – metabolite – 3rd offense under 75 Pa.C.S. § 3802(d)(1)(iii) felony of the third degree and alleged that [Appellee] did operate the vehicle while there was any amount of a metabolite of a Schedule I controlled substance in his blood, again marijuana. Other charges listed in the information include driving under the influence of a drug or combination of drugs, 3rd offense ( Section 3802(d)(2) ) misdemeanor of the first degree; possession of a small amount of marijuana; use or possession of drug paraphernalia; and various traffic offenses including driving while operating privilege is suspended or revoked under [ 75 Pa.C.S. § 1543(a) ].

On or about January 23, 2020[, Appellee's] counsel[, Joshua S. Maines], Esq., filed a petition for writ of habeas corpus /motion to quash criminal information (omnibus motion) on behalf of [Appellee]. The motion indicated that [Appellee's] blood was tested by NMS Labs for drug impaired driving toxicology analysis with the results being that [Appellee's] blood contained amounts of substances relating to the use of marijuana, being THC. It was also alleged that at the time of the incident [Appellee] was approved for and possessed a valid license to utilize approved marijuana substances for medical purposes. [Appellee's] motion requested that counts [1 and 2] of the information be dismissed as marijuana has an accepted medical use in Pennsylvania pursuant to the Medical Marijuana Act^[3] (MMA) and that Pennsylvania's Controlled Substance Drug Device and Cosmetic Act^[4] [(CSA)] defined a Schedule I controlled substance as a substance having no accepted medical use.

It is not contested in this case that [Appellee] had approval for the use of medical marijuana at the time the traffic stop took place by Trooper Elensky. At the time of the hearing, [Appellee] presented evidence that consisted of a patient certificate showing [Appellee] had been diagnosed with post-traumatic stress disorder, being a serious medical condition under the MMA, and [he] was authorized as such to use medical marijuana. The patient certificate indicated different forms of medical marijuana could be recommended for patient's use.

These included boxes to check for medical marijuana in the following forms: vaporizer or nebulizer ; topical; liquid; oral; pill; and tincture. None of these boxes were checked, as it was recommended that the patient discuss the form of medical marijuana to be dispensed with a medical professional employed by the dispensary. The [c]ourt notes that marijuana in its plant form as commonly used illegally is not a form of medical marijuana. Therefore, if the substance provided by [Appellee] to the Trooper at the time of the vehicle stop was plant form of marijuana, it is illegal marijuana and does not qualify as a form of medical marijuana.^[5] In addition, to the best of this [c]ourt's knowledge and application of common sense, use of any of the forms of approved marijuana do not produce the smell caused by the burning of illegal marijuana.¹

¹ This would be an issue of proof at trial.

The [CSA] in 35 P.S. § 780-104 defines a Schedule I controlled substance as one that has "a high potential for abuse, no currently accepted medical use in the United States, and a lack of accepted safety for use under medical supervision." The Act lists marijuana as [a] Schedule I controlled substance. Pennsylvania's MMA became effective in May, 2016. 35 P.S. § 10231[.2110]. The MMA provides accepted medical use for marijuana for certain serious health conditions including post-traumatic stress syndrome. The MMA provides procedures for patients to apply for medical marijuana cards from the Pennsylvania Department of Health. Once a medical marijuana card is obtained, a patient possessing the card can legally purchase approved medical marijuana products at designated dispensaries and legally use the medical marijuana products. As noted, the medical marijuana products are limited in terms of consumption and in terms of form. The MMA provides that patients legally using medical marijuana shall not be subject to "arrest, prosecution or penalty in any manner" with respect to offenses under [CSA], 35 P.S. § 10231.2103.

[Appellee's] omnibus motion asks that counts [1 and 2] of the information be dismissed, "as marijuana has an accepted medical use pursuant to the MMA and Pennsylvania's [CSA] defines a Schedule I controlled substance as one having no such accepted medical use." [Appellee's] argument is that marijuana can no longer be listed as a Schedule I [controlled] substance in 35 P.S. [§] 780-104, and a person who legally uses "medical marijuana legitimately for chronic conditions, which is an accepted medical purpose, would be at risk for prosecution" for driving under the influence "at all times, regardless of level of impairment and the legitimacy of their use." Paragraph 22 of omnibus motion. As such, [Appellee] asks that the DUI charges set forth in counts [1 and 2] be dismissed.

Trial Ct. Op., 5/29/20, at 1-4 (some formatting altered).

On May 29, 2020, the trial court denied Appellee's omnibus motion, and the case was scheduled for a jury trial. On the morning of trial, Appellee submitted proposed jury instructions. One of the proposed points for charge included a specific instruction that medical marijuana and its metabolites are not Schedule I controlled substances for purposes of DUI under 75 Pa.C.S. § 3802(d)(1)(i). Specifically, the trial court explained:

[Appellee's] counsel filed proposed points for charge, which included a modified version of Pa. SSJI (Crim) 17.3802(d)(1). The following language (in part) was requested:

EXCEPTION — I hereby instruct you that Medical Marijuana (also Delta-9 THC) is NOT a Schedule I controlled substance. Likewise, Delta-9 Carboxy THC and 11-hydroxy Delta-9 THC are also metabolites of Medical Marijuana . To find [Appellee] guilty of DUI under this section, the Commonwealth must prove beyond a reasonable doubt that [Appellee] had in his blood at the time he drove Marijuana or a Metabolite of Marijuana and not Medical Marijuana.

"Medical Marijuana is not listed in the CSA [(Controlled Substance Act)] as a Schedule I substance, only marijuana is listed. The MMA [(Medical Marijuana Act)] provides a very limited and controlled vehicle for the legal use of medical marijuana by persons qualified under the MMA. Outside the MMA, marijuana remains a prohibited Schedule I controlled substance for the general citizenry who are unqualified under the MMA." Commonwealth v. Jezzi , 208 A.3d 1105, 1115 (Pa. Super. 2019) [(citations omitted)].

The [c]ourt indicated approval of this proposed charge, as it was consistent with the [c]ourt's pre-trial ruling making a distinction between illegal marijuana and legal marijuana products under the MMA. The District Attorney took exception to this ruling which the [c]ourt dismissed. The Commonwealth advised that an immediate appeal would be taken to the Superior Court. The [c]ourt disagreed with the Commonwealth's position but agreed it had the legal authority to appeal pretrial. The jury was then

...