Com. v. Jezzi, T. , 208 A.3d 1105 ( 2019 )

J-A05010-19
2019 PA Super 132COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TONY JEZZI :
:
Appellant : No. 992 WDA 2017
Appeal from the Judgment of Sentence June 8, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013563-2014
BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.
OPINION BY GANTMAN, P.J.E.: FILED APRIL 26, 2019
Appellant, Tony Jezzi, appeals from the judgment of sentence entered
in the Allegheny County Court of Common Pleas, following his bench trial
convictions for two counts of possession with intent to deliver marijuana
(“PWID”), and one count each of possession of marijuana and possession of
drug paraphernalia.1 We affirm.
The relevant facts and procedural history of this case are as follows. In
2014, a confidential informant (“CI”) informed Officer William Churilla and
Detective David Honick that Appellant was packaging and distributing
marijuana from his home. The CI accompanied police to Appellant’s residence
and identified Appellant’s home and vehicle. The police proceeded to pull
Appellant’s trash and found a large quantity of marijuana residue in one bag
____________________________________________
1 35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32), respectively.
J-A05010-19
and loose marijuana in another bag. Based on the information received from
the CI and derived from the trash pull, the police obtained a search warrant
for Appellant’s home, vehicle, and cell phone. On May 16, 2014, police
conducted a search of Appellant’s residence and recovered a cannabis grow
with approximately 40 plants.2 The Commonwealth charged Appellant with
PWID and related offenses. On July 29, 2015, Appellant filed a motion to
suppress, arguing the affidavit of probable cause lacked any reference to the
reliability of the CI or the CI’s information.
On April 17, 2016, the General Assembly enacted the Medical Marijuana
Act (“MMA”) at 35 P.S. § 10231.101 et seq., which went into effect on May
17, 2016. Appellant filed two supplemental pre-trial motions on October 11,
2016, including a motion to produce the CI and a motion challenging the
continued classification of marijuana as a Schedule I substance under the CSA,
following passage of the MMA. In his motion disputing the Schedule I
classification of marijuana, Appellant argued that classification is
unconstitutional because it denies substantive due process and is not
rationally related to a legitimate government interest. Further, Appellant
suggested the Schedule I classification of marijuana denies Pennsylvania
citizens equal protection under the law because the CSA states marijuana has
no medical use for Pennsylvania citizens generally but the MMA sets up a
____________________________________________
2Marijuana appears as a Schedule I substance in the Controlled Substance,
Drug, Device, and Cosmetic Act (“CSA”), at 35 P.S. 780-104(1)(iv).
-2-
J-A05010-19
medical marijuana production, distribution, and certification program for
Pennsylvania citizens who are medical patients or medical patient caregivers.
On October 13, 2016, the trial court denied Appellant’s motion to
produce the CI and the motion to suppress based on the search warrant
challenge. That same day, however, the court granted reconsideration of the
denial of the motion to produce the CI and scheduled a hearing. Following
the April 18, 2017 hearing, the court denied Appellant’s motion to produce the
CI and Appellant’s motion challenging the Schedule I classification of
marijuana under the CSA. On April 20, 2017, Appellant filled a petition for
permission to file an interlocutory appeal, which the court denied on April 27,
2017.
After a stipulated bench trial on June 8, 2017, the court convicted
Appellant of two counts of PWID and one count each of possession of
marijuana and possession of drug paraphernalia. That same day, the court
sentenced Appellant to an aggregate term of two years’ probation. Appellant
filed a timely notice of appeal on July 6, 2017. On August 21, 2017, the court
ordered Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on August 29,
2017.
Appellant raises the following issue for our review:
DID THE TRIAL COURT ERR WHEN IT DENIED APPELLANT’S
MOTION CHALLENGING MARIJUANA’S SCHEDULE I
CLASSIFICATION WHEN THE PENNSYLVANIA LEGISLATURE
ENACTED A COMPREHENSIVE MEDICAL MARIJUANA
-3-
J-A05010-19
PROGRAM, WHERE MARIJUANA OTHERWISE DOES NOT
MEET THE CRITERIA FOR A SCHEDULE I CONTROLLED
SUBSTANCE, AND WHERE MARIJUANA’S SCHEDULE I
CLASSIFICATION [IS] OTHERWISE UNCONSTITUTIONAL
ON ITS FACE?
(Appellant’s Brief at 4).
Appellant argues the criminal prohibition of marijuana as a Schedule I
controlled substance in the CSA is irreconcilable with the MMA. Appellant
contends the General Assembly found marijuana has medical value when it
passed the MMA in 2016. Because marijuana is now accepted for its medical
value, Appellant asserts it no longer fits within the definition of a Schedule I
controlled substance under the CSA, which defines Schedule I substances as
having a high potential for abuse, no currently accepted medical use in the
United States, and a lack of accepted safety for use under medical supervision.
Appellant reasons the MMA is the more recent legislation and takes
precedence over the CSA because the two statutes are in conflict.
Further, Appellant maintains that the criminal prohibition of marijuana
per the CSA, as a Schedule I controlled substance, denies individuals
substantive due process and equal protection of the law. Appellant submits
the CSA Schedule I classification of marijuana is not rationally related to a
legitimate government interest because the prohibition was based on racial
animus and bias. Appellant complains the CSA Schedule I classification of
marijuana is arbitrary and capricious without evidence that marijuana ever
met the CSA criteria for Schedule I classification; instead, the prohibition
-4-
J-A05010-19
proceeded in accordance with political agendas. Appellant concludes this
Court should declassify marijuana as a Schedule I controlled substance.3 We
cannot agree.
Preliminarily, we observe that appellate briefs must conform in all
material respects to the briefing requirements set forth in the Pennsylvania
Rules of Appellate Procedure. Pa.R.A.P. 2101. See also Pa.R.A.P. 2114-2119
(addressing specific requirements of each subsection of brief on appeal).
Regarding the argument section of an appellate brief, Rule 2119(a) provides:
Rule 2119. Argument
(a) General rule.—The argument shall be divided into
as many parts as there are questions to be argued; and shall
have at the head of each part—in distinctive type or in type
distinctively displayed—the particular point treated therein,
followed by such discussion and citation of authorities as are
deemed pertinent.
Pa.R.A.P. 2119(a). “[I]t is an appellant’s duty to present arguments that are
sufficiently developed for our review. The brief must support the claims with
pertinent discussion, with references to the record and with citations to legal
authorities.” Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.Super.
2007), appeal denied, 596 Pa. 703, 940 A.2d 362 (2008) (internal citations
omitted). “This Court will not act as counsel and will not develop arguments
on behalf of an appellant.” Id. If a deficient brief hinders this Court’s ability
____________________________________________
3 We can only presume Appellant would also want us to reverse his
convictions, although he did not ask for that relief.
-5-
J-A05010-19
to address any issue on review, we shall consider the issue waived.
Commonwealth v. Gould, 912 A.2d 869, 873 (Pa.Super. 2006) (holding
appellant waived issue on appeal where he failed to support claim with
relevant citations to case law and record). See also In re R.D., 44 A.3d 657(Pa.Super. 2012), appeal denied, 618 Pa. 677, 56 A.3d 398 (2012) (holding
appellant waived issue, where argument portion of appellant’s brief lacked
meaningful discussion of, or citation to, relevant legal authority regarding
issue generally or specifically; appellant’s lack of analysis precluded
meaningful appellate review).
Instantly, the substantive due process section of Appellant’s argument
is underdeveloped and lacks specificity on which of Appellant’s constitutional
rights is violated by the Schedule I classification of marijuana. Appellant
broadly sets forth the law applicable to substantive due process challenges,
but he does not identify the specific constitutional right deprived. See
Pa.R.A.P. 2119(a). Instead, Appellant generally claims the Schedule I
classification of marijuana “denies due process of law.” We decline to make
Appellant’s argument for him. See Hardy, supra. Accordingly, Appellant
waived his claim regarding the deprivation of substantive due process.4 See
In re R.D., supra; Gould, supra.____________________________________________
4 Appellant also failed to develop his claim regarding the deprivation of
substantive due process in his pretrial motion, so he waived the claim on that
ground as well.
-6-
J-A05010-19
Appellant’s remaining constitutional arguments, concerning the
proposed conflict between the CSA and the MMA and the alleged violation of
equal protection, implicate the following principles:
[D]uly enacted legislation carries with it a strong
presumption of constitutionality. A presumption exists that
the General Assembly does not intend to violate the
Constitution of the United States or of this Commonwealth
when promulgating legislation.
In conducting our review, we are guided by the
principle that acts passed by the General Assembly
are strongly presumed to be constitutional, including
the manner in which they were passed. Thus, a
statute will not be found unconstitutional unless it
clearly, palpably, and plainly violates the Constitution.
If there is any doubt as to whether a challenger has
met this high burden, then we will resolve that doubt
in favor of the statute's constitutionality.
As the constitutionality of a statute presents a pure question
of law, our standard of review is de novo and our scope of
review is plenary.
Commonwealth v. Brooker, 103 A.3d 325, 334 (Pa.Super. 2014) (internal
citations and quotation marks omitted).
The power of judicial review must not be used as a
means by which the courts might substitute its [sic]
judgment as to public policy for that of the legislature.
The role of the judiciary is not to question the wisdom
of the action of [the] legislative body, but only to see
that it passes constitutional muster.
Therefore, in assessing a punishment selected by a
democratically elected legislature against the constitutional
measure, we presume its validity…. [A] heavy burden rests
on those who would attack the judgment of the
representatives of the people.
Commonwealth v. Yasipour, 957 A.2d 734, 741 (Pa.Super. 2008), appeal
-7-
J-A05010-19
denied, 602 Pa. 658, 980 A.2d 111 (2009) (internal citations and quotation
marks omitted).
This appeal involves the interplay of two public safety statutes; the first
statute is the CSA, which describes five schedules of controlled substances.
35 P.S. § 780-104. In outlining the Schedule I substances, the Act states:
§ 780-104. Schedules of controlled substances
(1) Schedule I—In determining that a substance comes
within this schedule, the secretary shall find: a high
potential for abuse, no currently accepted medical use in the
United States, and a lack of accepted safety for use under
medical supervision. The following controlled substances
are included in this schedule:
* * *
(iv) Marihuana.
35 P.S. § 780-104(1)(iv) (effective June 14, 1972).5
The second statute is the MMA, which states in its declaration of policy:
§ 10231.102. Declaration of policy
The General Assembly finds and declares as follows:
(1) Scientific evidence suggests that medical
marijuana is one potential therapy that may mitigate
suffering in some patients and also enhance quality of life.
(2) The Commonwealth is committed to patient safety.
Carefully regulating the program which allows access to
medical marijuana will enhance patient safety while
research into its effectiveness continues.
____________________________________________
5 This Section of the CSA has undergone several revisions, which do not
change the relevant language of the statute or apply to the present case.
-8-
J-A05010-19
(3) It is the intent of the General Assembly to:
(i) Provide a program of access to medical
marijuana which balances the need of patients to have
access to the latest treatments with the need to promote
patient safety.
(ii) Provide a safe and effective method of delivery
of medical marijuana to patients.
(iii) Promote high quality research into the
effectiveness and utility of medical marijuana.
(4) It is the further intention of the General Assembly
that any Commonwealth-based program to provide access
to medical marijuana serve as a temporary measure,
pending Federal approval of and access to medical
marijuana through traditional medical and pharmaceutical
avenues.
35 P.S. § 10231.102(1)-(4) (emphasis added). In essence, the MMA creates
a temporary program for qualified persons to access medical marijuana, for
the safe and effective delivery of medical marijuana, and for research into the
effectiveness and utility of medical marijuana. Id.; 35 P.S. § 10231.301.
Significantly, the MMA does not declare that marijuana is safe and effective
for medical use; instead, the MMA is a temporary vehicle to access the
substance pending research into its medical efficacy and utility. 35 P.S. §
10231.102(1)-(4).
Section 10231.303 of the MMA allows for the limited lawful use of
medical marijuana, and pertinent to this case, Section 10231.304 emphasizes
the unlawful use of medical marijuana:
§ 10231.304. Unlawful use of medical marijuana
-9-
J-A05010-19
(a) General rule.—Except as provided in section 303,
section 704, Chapter 19 or Chapter 20,1 the use of medical
marijuana is unlawful and shall, in addition to any other
penalty provided by law, be deemed a violation of the
[CSA].2
(b) Unlawful use described.—It is unlawful to:
(1) Smoke medical marijuana.
(2) Except as provided under subsection (c),
incorporate medical marijuana into edible form.
(3) Grow medical marijuana unless the
grower/processor has received a permit from the
department under this act.
(4) Grow or dispense medical marijuana unless
authorized as a healthy medical marijuana organization
under Chapter 19.
(5) Dispense medical marijuana unless the
dispensary has received a permit from the department
under this act.
(c) Edible medical marijuana.—Nothing in this act
shall be construed to preclude the incorporation of medical
marijuana into edible form by a patient or a caregiver in
order to aid ingestion of the medical marijuana by the
patient.
1 35 P.S. §§ 10231.303, 10231.704, 10231.1901 et seq.,
10231.2001 et seq.
2 35 P.S. 780.101 et seq.
35 P.S. § 10231.304. Further, the MMA states: “The growth, processing,
distribution, possession and consumption of medical marijuana permitted
under [the MMA] shall not be deemed a violation of the [CSA]” and “[i]f a
provision of the [CSA] relating to marijuana conflicts with a provision of [the
- 10 -
J-A05010-19
MMA], [the MMA] shall take precedence.” 35 P.S. § 10231.2101. In other
words, compliance with the MMA will not constitute a crime under the CSA.
Id.
“The essence of the constitutional principle of equal protection under the
law is that like persons in like circumstances will be treated similarly.”
Commonwealth v. Bullock, 868 A.2d 516, 524 (Pa.Super. 2005), affirmed,
590 Pa. 480, 913 A.2d 207 (2006), cert. denied, 550 U.S. 941, 127 S.Ct.
2262, 167 L.Ed.2d 1103 (2007).
However, the principle does not absolutely prohibit the
Commonwealth from classifying individuals for the purpose
of receiving different treatment, …and does not require
equal treatment of people having different needs. Indeed,
the Commonwealth may create legislative classifications so
long as the classifications rest upon some ground of
difference which justifies the classification and [have] a fair
and substantial relationship to the object of the legislation.
Id. (internal citations and quotation marks omitted). Thus, the Equal
Protection Clause does not confer uniform protection to all persons under any
circumstances or “obligate the government to treat all persons identically.”
Commonwealth v. Shawver, 18 A.3d 1190, 1194 (Pa.Super. 2011).
Equal protection analysis recognizes three types of
governmental classification, each of which calls for a
different standard of scrutiny. The appropriate standard…is
determined by examining the nature of the classification and
the rights thereby affected. In the first type of case, where
the classification relates to who may exercise a fundamental
right or is based on a suspect trait such as race or national
origin, strict scrutiny is required. When strict scrutiny is
employed, a classification will be invalid unless it is found to
be necessary to the achievement of a compelling state
interest.
- 11 -
J-A05010-19
The second type of case involves a classification which,
although not suspect, is either sensitive or important but
not fundamental. Such a classification must serve an
important governmental interest and be substantially
related to the achievement of that objective.
The third type of situation involves classifications which are
neither suspect nor sensitive or rights which are neither
fundamental nor important. Such classifications will be valid
as long as they are rationally related to a legitimate
governmental interest.
Id. (quoting Commonwealth v. Bell, 512 Pa. 334, 344–45, 516 A.2d 1172,
1177–78 (1986)).
Courts generally consider constitutional challenges involving criminal
statutes, which create different groups of offenders or various sentencing
categories going to the duration of confinement, as type-three classifications.
Shawver, supra. A particular criminal statute will be deemed consistent with
the Equal Protection Clause if the statute is rationally related to a legitimate
government interest. Small v. Horn, 554 Pa. 600, 615, 722 A.2d 664, 672
(1998). “[U]nder the rational basis test, if any state of facts can be envisioned
to sustain the classification, equal protection is satisfied.” Commonwealth
v. Albert, 563 Pa. 133, 141, 758 A.2d 1149, 1153 (2000). “Moreover, courts
are free to hypothesize reasons why the legislature created the particular
classification at issue and if some reason for it exists, it cannot be struck down,
even if the soundness or wisdom in creating the distinction is questioned.” Id.Prior to the enactment of the MMA, this Court considered a related
challenge to CSA and its Schedule I classification of marijuana. See
- 12 -
J-A05010-19
Commonwealth v. Waddell, 61 A.3d 198 (Pa.Super. 2012). The Waddell
Court rejected the argument that marijuana no longer qualified as a Schedule
I substance because of its demonstrated medicinal value, stating:
Appellant’s interpretation would require that each of the
Schedule I substances listed under 35 P.S. § 780–104(1)
continuously meet the conditions that there be “a high
potential for abuse, no currently accepted medical use in the
United States, and a lack of accepted safety for use under
medical supervision.” [35 P.S. § 780–104]. Apart from the
fact that it is not a rational reading of the plain text, that
interpretation is perceptibly untenable with respect to many
of the substances listed under the statute. For instance,
heroin,18 listed as a Schedule I substance under 35 P.S. §
780–104(1)(ii)(10), is incredibly effective in the treatment
of severe pain associated with heart attacks, severe physical
injury, and certain terminal illnesses.19 This is true of many
of the opiates and opiate derivatives also listed under 35
P.S. § 780–104(1)(i) and (ii) as Schedule I substances. The
inclusion of heroin as a Schedule I substance under Federal
Law is the reason it lacks an accepted medical use in the
United States.20
18“Heroin” is a term used for “diacetylmorphine” when
that substance is used as a street drug.
19 [omitted]
20 Ultimately, our Commonwealth may criminalize the
possession, manufacture, and distribution of marijuana
and other intoxicating substances, independent of their
medical utility, as a function of the police power, and the
reasonableness of such measures is largely at the
discretion of the legislature. However, the police power
is not unlimited. See Commonwealth v. Bonadio, 490
Pa. 91, 415 A.2d 47, 49 (1980). Apart from such
limitations, however, it is primarily for the citizens of
Pennsylvania to decide, through their elected
representatives, if the moral prerogatives of the citizenry
justify the staggering social and economic costs of
enforcing the prohibition on the medical and recreational
use of marijuana.
- 13 -
J-A05010-19
Id. at 206-207. The Waddell Court upheld the constitutionality of the
Schedule I classification of marijuana, stating: “Regardless of whether there
are accepted medical uses for marijuana in the United States, marijuana
remains a Schedule I substance under the [CSA].” Id. at 207.
Instantly, after receiving information from a CI and a legitimate trash
pull, police obtained a search warrant and conducted a search of Appellant’s
residence on May 16, 2014, where police found a marijuana grow of roughly
40 plants. The Commonwealth charged Appellant with PWID and related
offenses under the CSA.
The MMA became effective on May 17, 2016. Appellant filed a pretrial
motion on October 11, 2016, challenging the constitutionality of the Schedule
I classification of marijuana under the CSA. The court held a hearing on April
18, 2017, and denied Appellant’s pre-trial motion. Following a stipulated
bench trial on June 8, 2017, the court convicted Appellant of two counts of
PWID, and one count each of possession of marijuana and possession of drug
paraphernalia and sentenced him that day to an aggregate term of two years’
probation.
Here, Appellant calls upon us to abrogate the Schedule I classification
of marijuana under the CSA, in light of the passage of the MMA, based on an
equal protection argument. Initially, Appellant’s statutory “irreconcilable
differences” argument lacks merit, where the MMA simply establishes a
scheme for the lawful use of medical marijuana. See 35 P.S. §§
- 14 -
J-A05010-19
10231.102(3), 10231.102(1) (stating scientific evidence suggests medical
marijuana is one potential therapy that may have therapeutic benefits). The
usage of language like “suggests,” “potential,” and “may” does not
conclusively demonstrate the General Assembly found marijuana to have
accepted medical use other than for its palliative or analgesic effects. Rather,
the statutory language illustrates the General Assembly’s intent to create legal
avenues for research into the use of medical marijuana while providing
pathways to potential relief for certain categories of patients. See id.
Furthermore, the temporary nature of the MMA serves as an
acknowledgement of the General Assembly that more research into the
medical value of marijuana is necessary. See 35 P.S. § 10231.102(4). The
MMA established a medical marijuana program to serve as a stopgap measure,
“pending Federal approval of and access to medical marijuana through
traditional medical and pharmaceutical avenues.” See id. The plain text of
the MMA acknowledges the potential therapeutic value of medical marijuana,
but it does not declare that marijuana has accepted medical use. See 35 P.S.
§ 10231.102(1), (3); Waddell, supra. Instead, the MMA intends to be “a
temporary measure, pending Federal approval of and access to medical
marijuana through traditional medical and pharmaceutical avenues.” See 35
P.S. § 10231.102(4). Therefore, the MMA and the CSA Schedule I
classification of marijuana do not conflict on the ground of “currently accepted
medical use.” Instead, the General Assembly allows for the use of medical
- 15 -
J-A05010-19
marijuana under very specific guidelines which, when followed, will not lead
to criminal punishment. See 35 P.S. § 10231.2101. Appellant did not meet
any criteria under the MMA to merit its protection directly or indirectly. In
short, the MMA is not relevant to Appellant’s case in any form.
Regarding Appellant’s equal protection challenge, we first observe that
medical marijuana is not listed in the CSA as a Schedule I substance, only
marijuana is listed. The MMA provides a very limited and controlled vehicle
for the legal use of medical marijuana by persons qualified under the MMA.
See 35 P.S. § 10231.102(3). Outside the MMA, marijuana remains a
prohibited Schedule I controlled substance for the general citizenry who are
unqualified under the MMA. See 35 P.S. § 10231.304.
The CSA is social legislation that falls within the purview of the General
Assembly. See Shawver, supra. The CSA furthers the legitimate
government interest of public safety by protecting the public from unfettered
access to unsafe substances. As a public safety statute, the CSA is rationally
related to the governmental objective of public protection. See id. Further,
we reject Appellant’s bare and misleading observation that the CSA is arbitrary
or capricious legislation, based on racial animus or bias. To the contrary, a
genuine public safety purpose existed when the General Assembly passed the
CSA, and Appellant failed to prove the Schedule I classification of marijuana
is no longer rationally related to that legitimate government interest. See
Albert, supra. Therefore, the continued classification of marijuana as a
- 16 -
J-A05010-19
Schedule I substance under the CSA does not violate the equal protection
clause as claimed. See id. Thus, we refuse to use the power of judicial review
to undercut the legislative collective wisdom on public policy in this regard.
See Yasipour, supra.
Based upon the foregoing, we hold that the CSA and the MMA can be
read in harmony and given full effect, where the MMA was not intended to
remove marijuana from the list of Schedule I substances under the CSA; the
MMA was intended to provide a controlled program for lawful access to medical
marijuana under specific circumstances and criteria for special medical needs.
Further, we hold Appellant waived his substantive due process claim for failure
to develop it before the trial court or on appeal. We also hold the CSA
Schedule I classification of marijuana does not violate equal protection on the
ground that it treats similarly situated citizens disparately. Accordingly, we
affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/2019
- 17 -