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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NON-PRECEDENTIAL DECISION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 as a schedule III controlled substance as authorized by 35 P.S. § 780-103?

Commonwealth's Brief at 3.

It is undisputed that Controlled Substance, Drug, Device, and Cosmetic Act ("the Act") classifies buprenorphine as a Schedule V substance. 35 P.S. § 780-104(5)(ii). It is also undisputed that the Pennsylvania Administrative Code classifies buprenorphine as a Schedule III drug. 25 Pa. Code § 25.72(d)(10). If buprenorphine constitutes a Schedule III substance, Appellees are subject to felony PWID charges. 35 P.S. § 780-113(f)(2). However, if buprenorphine constitutes a Schedule V drug, Appellees are only subject to misdemeanor charges. 35 P.S. § 780-113(f)(4).

The General Assembly has delegated to the Secretary of Health ("the Secretary") the authority to add substances to the schedules, through properly adopted regulations, after seeking the advice of the Pennsylvania Drug, Device and Cosmetic Board ("the Board").[4] 35 P.S. § 780-103(a). The statute also permits the Secretary to reschedule a substance with the Board's express authorization.[5] 35 P.S. § 780-103(c). The statute states:

(a) The secretary shall control all substances listed in Schedules I through V of this act1 and may, by regulation, upon his own motion or on the petition of any interested party, add a substance as a controlled substance.2 Such regulations shall be adopted in accordance with the act of July 31, 1968 (P.L. 769, No. 240), 3 known as the "Commonwealth Documents Law." Before so doing, the secretary shall request the advice in writing from the board whether a substance should be added as a controlled substance. Such advice shall be rendered to the secretary within a reasonable time. The secretary shall consider with respect to each substance hereafter controlled:
(1) Its actual or relative potential for abuse;
(2) Scientific evidence of its pharmacological effect, if known;
(3) State of current scientific knowledge regarding the substance;
(4) Its history and current pattern of abuse;
(5) The scope, duration, and significance of abuse;
(6) The risk there is to the public health;
(7) Its psychic or physiological dependence liability;
(8) Whether the substance is controlled under Federal law; and
(9) Whether the substance is an immediate precursor of a substance already controlled under this section. After considering the above factors, the secretary shall make findings with respect thereto and shall issue a regulation controlling the substance if he finds that the substance has a potential for abuse.
(b) If the secretary designates a substance as an immediate precursor, substances which are precursors of the controlled precursor shall not be subject to control solely because they are precursors of the controlled precursor.
(c) The secretary shall not remove any substance from control under this act unless specifically authorized by the General Assembly to do so. The secretary shall not reschedule any controlled substance unless specifically authorized by the board to do so.
1 35 P.S. § 780-104.
2 See 28 Pa. Code § 25.72 for schedules of controlled substances including those added by the Secretary of Health.
3 45 P.S. § 1102 et seq.

35 P.S. § 780-103. At a December 12, 2002 meeting, the Board authorized moving buprenorphine from Schedule V to Schedule III. 33 Pa. Bull. 2169. The Secretary then officially rescheduled the drug in 2004. 34 Pa. Bull. 2711.

The trial court concluded that buprenorphine is a Schedule V substance. T.C.O. at 2. The court recognized that the Pennsylvania Administrative Code lists buprenorphine as Schedule III pursuant to the Secretary's above-mentioned rescheduling with Board approval. Id. at 3. However, the trial court noted that, since that rescheduling, the General Assembly amended the Act in 2011, but that the amendment did not reschedule buprenorphine. Based upon this apparent conflict, the trial court found that, because it did not change the classification, the General Assembly intended buprenorphine to remain a Schedule V drug. Id. at 4.

The Commonwealth argues that the trial court's reliance upon the General Assembly's failure to include buprenorphine in its 2011 amendments to the Act was misplaced. The Commonwealth contends that those 2011 amendments were intended only to add specific substances, and that there was no clear legislative intent to keep buprenorphine as a Schedule V drug. Id. at 13. Because the Secretary had already acted to reschedule the drug, the General Assembly did not need to address buprenorphine in its 2011 amendments. Id. at 14. The Commonwealth asserts that it is clear that the General Assembly intended to delegate drug re-scheduling to the Secretary, and that the Secretary acted within that authority when he rescheduled buprenorphine to Schedule III. Id. at 14-15.

Appellees argue that the Secretary only is authorized to add substances to the schedules, not to reschedule a substance. Appellees' Brief at 10 (citing 35 P.S. § 780-103(a)). Appellees contend that the language of the statute is plain and that the statute's language cannot be construed to mean reschedule. Id. at 13. However, Appellees fail to explain why 35 P.S. § 780-103(c), which by implication authorizes the Secretary to reschedule drugs with Board approval, does not apply.

We previously addressed a similar issue in Commonwealth v. Tabas, 454 A.2d 12 (Pa.Super. 1982). There, the appellant challenged the sufficiency of the evidence for his PWID conviction where the substance he was convicted of possessing was not listed in the Act. 454 A.2d at 15. Instead, the substance only was listed in the Code. It was added on August 21, 1976 at the direction of the Secretary. Id. We determined that the inclusion of the substance in the Code was sufficient to find that the appellant possessed a controlled substance. Id.; see 35 P.S. § 780-104. While Tabas involved adding a substance, we find that it adequately addresses the present situation when a substance is re-scheduled pursuant to the Secretary's authority. Tabas validates the Commonwealth's position that the Secretary has the authority to amend the schedules, which are then effective without further amendment by the General Assembly.

The plain language of 35 P.S. § 780-103(c) authorizes the Secretary to re-schedule a drug, as long as the Board approves. Nothing in the language of the statute requires the General Assembly to re-affirm that decision in subsequent legislation. Section 780-103(c) and Tabas demonstrate that, when the Secretary exercises the power delegated to him or her, the drug is re-scheduled without further required action.

Based upon the foregoing discussion, we reverse the trial court's order quashing the felony charges and remand for further proceedings in accordance with this memorandum.

Order reversed.

Jurisdiction relinquished.

Judgment Entered.


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