J-S41008-23

2024 PA Super 21

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT AUGUST SCHIFANO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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.
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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 Delta9 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.

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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