J-S21028-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES MILLER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2554 EDA 2018

Appeal from the Judgment of Sentence Entered July 31, 2018

In the Court of Common Pleas of Delaware County Criminal Division at 

No(s): CP-23-CR-0002973-2018

BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.: FILED MAY 06, 2019

James Miller (Appellant) appeals from the judgment of sentence 

imposed after the trial court found him guilty of possession of an instrument 

of crime (PIC) and furnishing drug-free urine.1 Upon review, we affirm. 

The trial court recounted the factual and procedural background as 

follows: 

On July 11, 2018, Appellant was before this [c]ourt for a 

non-jury trial. The Commonwealth proceeded with Count 1: [PIC] 

and count 2: Furnishing Drug-Free Urine. Counsel for the 

Commonwealth and Counsel for Appellant stipulated that the facts 

contained within the Affidavit of Probable Cause would serve as 

the factual basis for the trial. Counsel also stipulated that if called 

to testify, Parole Officer George Buckley, of Delaware County Adult 

Probation and Parole, would testify that he [was waiting] by the 

bathroom while Appellant was giving a urine screen and that he 

noticed and heard furtive mo[v]ments from him, and that he did 

not hear the distinct sound of urine actually hitting the cup which 

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1 18 Pa.C.S.A. §§ 907, 7509. 
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he would testify that he normally would hear. In addition, if called 

to testify, Ms. Joy Brosman, of Delaware County Adult Probation 

and Parole, would testify that after receiving the urine sample, the 

cup and the urine had no temperature reading which is odd and 

not during the normal process of someone who is giving an actual 

sample of urine. In addition, the affidavit of probable cause states 

that Appellant admitted to Officer Buckley that he had used a 

PediaSure bottle to bring in drug-free urine. No further evidence 

was presented. 

Counsel for Appellant argued that PIC was not applicable to 

the facts at bar because the rules of statutory construction would 

prohibit such an application, specifically that the Furnishing DrugFree Urine statute was enacted after the PIC statute and that 

because all of the elements of PIC are subsumed within the crime 

of Furnishing False Urine, that Appellant could not be found guilty 

of both. In support, counsel for Appellant argued that it would be 

implied that urine has to come in some container or packaging to 

be submitted. On the contrary, counsel for the Commonwealth 

argued that the crime of Furnishing Drug-Free Urine could 

certainly be committed without the use of a container, citing for 

example, if another person was in the bathroom with the 

individual giving the sample and they urinated into the cup instead 

of the person who was supposed to be giving the sample. In 

support of distinguishing between the two crimes, counsel for the 

Commonwealth cited the jury instruction for PIC which states, that 

in order for a person to be guilty of PIC, the following elements 

must be met: First, the individual possessed the item, [s]econd, 

that the item is an instrument of crime which is defined as 

anything specifically made for criminal use, anything especially 

adapted for criminal use, and or anything that is used for criminal 

purposes and [t]hird, the item was possessed by the defendant at 

the time of the alleged offense under circumstances not manifestly 

appropriate for lawful use. Therefore, because Appellant 

possessed the PediaSure Bottle and used it to facilitate the 

commission of the underlying offense, the charge of PIC is not the 

same as the charge of Furnishing Drug-Free Urine. 

This [c]ourt took the matter under advisement. After 

careful review, this [c]ourt agreed with counsel for the 

Commonwealth and found Appellant guilty of both Count 1: PIC 

and Count 2: Furnishing Drug-Free Urine. Appellant was 

sentenced on July 31, 2018, as follows: Count 2: Furnishing DrugFree Urine- Time served to 12 months and on Count 1: PIC- 1 
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year of probation consecutive to Count 2. No post-sentence 

motions were filed. 

On August 29, 2018, counsel for Appellant filed a timely 

Notice of Appeal and a timely 1925(b) Statement raising the issue

mentioned above. 

Trial Court Opinion, 10/10/18, at 1-3 (citation to notes of testimony and 

footnotes omitted). 

Appellant presents a single issue on appeal: 

The trial court erred in convicting [Appellant] of both 

Possessing an Instrument of Crime, a crime of general application, 

along with Furnishing Drug-Free Urine, a specific offense which 

subsumes the Possession of an Instrument of Crime offense. 

Appellant’s Brief at 5.2

As Appellant’s sole issue is “one of statutory interpretation and is 

therefore a question of law; our standard of review is de novo, and our scope 

of review is plenary.” Commonwealth v. Giulian, 141 A.3d 1262, 1266 (Pa. 

2016) (citation omitted). “Consequently, we are not bound by the lower 

court’s conclusions regarding the proper meaning of the applicable provisions 

of this statute. See Commonwealth v. Kyle, [] 874 A.2d 12, 17 ([Pa.] 2005) 

(holding that our Court owes no duty of deference to the legal conclusions of 

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2 Appellant’s Rule 1925(b) statement also challenged whether the PediaSure 

bottle qualified as an instrument of crime under 18 Pa.C.S.A. § 907. See Rule 

1925(b) Statement, 9/26/18, at 1. However, because Appellant abandoned 

this claim in his brief, we will not address it. See Appellant’s Brief at 5; see 

also Commonwealth v. Briggs, 12 A.3d 291, 310 n.19 (Pa. 2011), cert. 

denied, 132 S.Ct. 267 (2011) (refusing to address claim appellant raised with 

trial court but subsequently abandoned in appellate brief). 
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lower courts regarding an issue of statutory construction.).” Commonwealth 

v. Devries, 112 A.3d 663, 670 (Pa. Super. 2015). Additionally, 

Our review is further governed by the Statutory Construction Act, 

1 Pa.C.S.A. § 1501 et seq., under which our paramount 

interpretative task is to give effect to the intent of our General 

Assembly in enacting the particular legislation under review. See 

1 Pa.C.S.A. § 1921(a) (“The object of all interpretation and 

construction of statutes is to ascertain and effectuate the intention 

of the General Assembly. Every statute shall be construed, if 

possible, to give effect to all its provisions.”)[.] Generally, the 

best indication of the General Assembly’s intent may be found in 

the plain language of the statute. In this regard, it is not for the 

courts to add, by interpretation, to a statute, a requirement which 

the legislature did not see fit to include. Consequently, as a 

matter of statutory interpretation, although one is admonished to 

listen to what a statute says; one must also listen attentively to 

what it does not say. 

Id. (citing Commonwealth v. Wright, 14 A.3d 798, 814 (Pa. 2011) (some 

citations omitted). 

Appellant argues that the trial court erred in convicting him “of the 

offenses of [PIC], an offense of general applicability graded as a first degree 

misdemeanor [] and furnishing drug-free urine, an offense of more specific 

applicability to the facts at hand graded as [a third-degree misdemeanor].” 

Appellant’s Brief at 9. Citing 1 Pa.C.S.A. § 1933, Appellant avers that “[t]he 

rules of statutory construction of a penal statute as applied by courts in the 

Commonwealth of Pennsylvania require that a specific statute prevails and 

subsumes the applicability of a more general statute.” Id. at 9, 11. 

Section 1933 reads:

Whenever a general provision in a statute shall be in conflict with 

a special provision in the same or another statute, the two shall 
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be construed, if possible, so that effect may be given to both. If 

the conflict between the two provisions is irreconcilable, the 

special provisions shall prevail and shall be construed as an 

exception to the general provision, unless the general provision 

shall be enacted later and it shall be the manifest intention of the 

General Assembly that such general provision shall prevail. 

1 Pa.C.S.A. § 1933. 

In its brief, the Commonwealth contends that Appellant’s sole issue is 

frivolous because the “rule of statutory interpretation he relies upon has been 

abrogated by statute.” Commonwealth Brief at 3. In the alternative, the 

Commonwealth argues that the statutes under which Appellant was convicted 

do not conflict. Id. We agree. 

While making his argument, Appellant fails to address Section 1933’s 

abrogation. See Appellant’s Brief at 11-17. In Commonwealth v. Kreigler, 

127 A.3d 840 (Pa. Super. 2015), this Court specifically held that the 

“‘general/specific’ rule of statutory construction in the context of criminal 

prosecutions has been abrogated.” Id. at 844 (citing Commonwealth v. 

Karetny, 880 A.2d 505 (Pa. 2005) and In re N.W., 6 A.3d 1020 (Pa. Super. 

2010)). Section 9303, effective February 7, 2003, provides: 

Notwithstanding the provisions of 1 Pa.C.S. § 1933 (relating to 

particular controls general) or any other statute to the contrary, 

where the same conduct of a defendant violates more than 

one criminal statute, the defendant may be prosecuted 

under all available statutory criminal provisions without 

regard to the generality or specificity of the statutes. 

42 Pa.C.S.A. § 9303 (emphasis added). 

As our holding in Kriegler explains, Section 1933 has been abrogated 

with respect to criminal provisions by the enactment of Section 9303. 
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Accordingly, Appellant’s reliance on Section 1933 is erroneous. Kriegler, 127 

A.3d at 844. The trial court therefore did not err in convicting Appellant of 

both PIC and furnishing drug-free urine.

Further, even if Section 1933 was not abrogated by Section 9303, we 

find that Sections 907 and 7509 do not “irreconcilably conflict.” 1 Pa.C.S.A. 

§ 1933 (“If the conflict between the two provisions is irreconcilable, the special 

provisions shall prevail and shall be construed as an exception to the general 

provision[.]”). See Karetny, 880 A.2d 520 (“[O]nly if the conflict between 

the general and specific provisions is irreconcilable does the special provision 

prevail and act as an exception to the general provision under [Section] 

1933.”) (citation omitted); see also Kriegler, 127 A.3d at 844.

The PIC statute provides: “A person commits a misdemeanor of the first 

degree if he possesses any instrument of crime with intent to employ it 

criminally.” 18 Pa.C.S.A. § 907. Further, Section 907 defines “instrument of 

crime” as anything specially made or specially adapted for criminal use, or 

anything used for criminal purposes and possessed by the actor under 

circumstances not manifestly appropriate for lawful uses it may have. Id. 

Section 7509 of the Crimes Code states: 

(a) Unlawful sale or attempt.--A person commits a 

misdemeanor of the third degree if he offers for sale, sells, causes 

to be sold or gives drug-free urine for the purpose of or with the 

intent or knowledge that the urine will be used for evading or 

causing deceitful results in test for the presence of drugs. 

(b) Use or attempt.--A person commits a misdemeanor of the 

third degree if he uses or attempts to use drug-free urine as 
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provided in subsection (a) for the purpose of evading or causing 

deceitful results in a test for the presence of drugs. 

18 Pa.C.S.A. § 7509. 

Upon review of Sections 907 and 7509, we conclude that they do not 

irreconcilably conflict. When a defendant uses an instrument of crime to 

transport drug-free urine to a drug test for the purpose of evading or causing 

deceitful results, as Appellant did here, his conduct violates both Section 907 

and 7509. As stated by this Court, a single course of conduct may constitute 

a violation of more than one statutory provision. Kriegler, 127 A.3d at 844 

(citing In re N.W., 6 A.3d at 1026 n.4). And while there may be instances 

where a defendant possesses an instrument of crime with the intent to use it 

to furnish drug-free urine,

3 Section 7509 does not require that an instrument 

of crime be employed. 

Similarly, as evidenced by Pennsylvania case law, a defendant can be

convicted of PIC in factual scenarios that do not also involve a violation of 

Section 7509. See e.g., Commonwealth v. Dix, --- A.3d ----, 2019 WL 

1434237 (Pa. Super. 2019) (affirming judgment of sentence for convictions of 

PIC and possession of a controlled substance with the intent to deliver); 

Commonwealth v. Leaner, --- A.3d ----, 2019 WL 124382 (Pa. Super. 2019) 

(affirming judgment of sentence for convictions of PIC, second-degree 

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3 “It may well be that the same underlying conduct here can be argued to 

satisfy both provisions. But that is not unusual under the Crimes Code nor 

does it mean that separate provisions of the Code should be said to be in 

facial, irreconcilable conflict with each other.” Karetny, 880 A.2d at 542. 
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murder, and robbery); and Commonwealth v. Ligon, --- A.3d ----, 2019 WL 

1109515 (Pa. Super. 2019) (affirming order dismissing Post Conviction Relief 

Act petition of defendant who was convicted of PIC, aggravated assault, 

carrying a firearm without a license, carrying a firearm on a public street in 

Philadelphia, criminal conspiracy, and persons not to possess a firearm).

The instant case is also distinguishable from our holding in 

Commonwealth v. Tisdale, 100 A.3d 216 (Pa. Super. 2014), as Sections 

907 and 7509 do not belong to a “graduated system of prosecution and 

punishment.” Id. at 221 (holding the defendant’s conviction of a small 

amount of marijuana, as a specific statute, subsumed the more general 

statute of possession of marijuana, as both belonged to a graduated system 

of prosecution and punishment for marijuana possession). In such scenario, 

“there is a palpable decrease in punishment consonant with lesser degrees of 

culpability.” Kriegler, 127 A.3d at 845. Here, there is nothing in the Crimes 

Code which suggests that the General Assembly intended to punish less 

severely those who do not use an instrument of crime in violating Section 

7509, than those who violate Section 7509 while possessing an instrument of 

crime. Id. Thus—even if Section 1933 was applicable—Sections 907 and 

7509 would not irreconcilably conflict.

In sum, Section 1933 was abrogated by the General Assembly’s 

enactment of Section 9303, and is inapplicable to Appellant’s case. However, 

even if Section 1933 applied, Sections 907 and 7509 do not irreconcilably 
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conflict as required for Section 7509 to subsume Section 907. The 

Commonwealth properly prosecuted Appellant under both Sections 907 and 

7509 of the Crimes Code, and the trial court did not err in convicting Appellant 

of both crimes. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/6/19