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[U] Commonwealth v. Burrell

Superior Court of Pennsylvania

February 25, 2014

COMMONWEALTH OF PENNSYLVANIA Appellant
v.
WALTER BURRELL Appellee COMMONWEALTH OF PENNSYLVANIA Appellant
v.
WILLIE SPARROW Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered on May 22, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at Nos.: CP-51-CR-0013610-2011, CP-51-CR-0001225-2012

BEFORE: DONOHUE, J., WECHT, J., and STRASSBURGER, J. [*]

MEMORANDUM

WECHT, J.

In these consolidated cases, the Commonwealth appeals from the trial court's May 22, 2012 orders.[1] In those orders, the trial court determined that Suboxone (generically known as buprenorphine) was a Schedule V substance, and quashed the felony charges against Walter Burrell ("Burrell") and Willie Sparrow ("Sparrow") (collectively "Appellees"), which were based upon the substance being a Schedule III controlled substance. After careful consideration, we reverse and remand for further proceedings.

The trial court set forth the factual and procedural history of each case as follows:

[Burrell] was arrested on August 4, 2011 and charged with Possession with Intent to Deliver a Controlled Substance ("PWID") and Intentional Possession of a Controlled Substance ("K&I")[2] on bill of information CP-51-CR-0013610-2011. On December 1, 2011, following a preliminary hearing, Burrell was held for court on all charges. On February 14, 2012, Burrell filed a motion to quash which this court held under advisement. On May 15, 2012, this court made the determination that, according to the express terms of the statute, [b]uprenorphine was a Schedule V substance, thereby quashing the felony grade PWID charge, and subsequently filed an Order with this determination on May 22, 2012.

Burrell Trial Court Opinion, ("T.C.O."), 2/19/2013, at 1-2.[3]

[Sparrow] was arrested on August 9, 2011 and charged with Possession with Intent to Deliver a Controlled Substance ("PWID") and Intentional Possession of a Controlled Substance ("K&I") on bill of information CP-51-CR-0001225-2012. On January 30, 2012, following a preliminary hearing, Sparrow was held for court on all charges. On May 3, 2012, Sparrow filed a motion to quash which this court held under advisement. On May 15, 2012, this court made the determination that, according to the express terms of the statute, [b]uprenorphine was a Schedule V substance, thereby quashing the felony grade PWID charge, and subsequently filed an Order with this determination on May 22, 2012.

Sparrow Trial Court Opinion, 2/19/2013, at 1-2.

On June 12, 2012, the Commonwealth filed notices of appeal in each case. Therein, the Commonwealth certified that the May 22 orders terminated or substantially handicapped its prosecution of both cases pursuant to Pa.R.A.P. 311(d). On the same day, although not ordered, the Commonwealth filed concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court then filed its Rule 1925(a) opinions.

The Commonwealth presents one issue on appeal:
Did the lower court err in quashing felony drug charges correctly classifying buprenorphine (suboxone) as a schedule III controlled substance, and substituting misdemeanor charges incorrectly deeming buprenorphine a schedule V substance, where the Secretary of Health, in 2004, had reclassified buprenorphine ...

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