Com. v. Schifano, R.

2024 Pa. Super. 21, 310 A.3d 769

• Court: Superior Court of Pennsylvania
• Decided: February 9, 2024
• Docket: 264 WDA 2023
• Status: Published

Opinion

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.

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* 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

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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

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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.

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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,

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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.

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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).

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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.

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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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