J-A08019-19

                             2019 PA Super 201



COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                    OF PENNSYLVANIA
                         Appellee

                    v.

MICHAEL PRENTICE HANDLEY

                         Appellant                  No. 932 WDA 2018


        Appeal from the Judgment of Sentence Entered May 30, 2018
              In the Court of Common Pleas of Beaver County
              Criminal Division at No: CP-04-CR-001321-2016


BEFORE: PANELLA, P.J., STABILE, and McLAUGHLIN, JJ.

OPINION BY STABILE, J.:                              FILED JUNE 28, 2019

     Appellant, Michael Prentice Handley, appeals from the May 30, 2018

judgment of sentence imposing five years of probation for one count of

possession with intent to deliver (“PWID”) a controlled substance. We affirm.

     The trial court recited the pertinent facts in its opinion of January 16,

2018:

           On August 27, 2015 [Detective Gregory Carney, of the New
     Sewickley Township Police Department], responded to a report
     from an employee of PennEnergy. The employee advised that he
     was at 1100 Blank Road clearing land to install a natural gas well
     pad when he was approached by [Appellant] and an argument
     ensued regarding the property line. The employee further advised
     that [Appellant] threatened to get his gun and then went into his
     residence. The employee then heard four or five gunshots, left
     the area and called the police. Det. Carney, accompanied by
     Patrolman [Thomas] Liberty and Patrolman [Timothy] Sovich,
     went to [Appellant’s] residence; Det. Carney testified that at that
     time it was only his intention to speak with [Appellant] about this
     incident.
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            Det. Carney immediately observed a strong odor of
      marijuana at [Appellant’s] residence. Ptlm. Liberty and Det.
      Carney knocked on the door and received no response. From the
      home’s front porch Det. Carney could observe a firearm lying on
      the table inside the home. By looking through the home and
      looking through a sliding glass door leading to the side of the
      home he could also observe a [sic] two garbage bags sitting
      outside. One bag had a green marijuana stem protruding from
      the side and dried marijuana leaves on top; the other bag had a
      green marijuana stem on top of it. Det. Carney could immediately
      observe the marijuana leaves from this vantage point on the
      porch; as he walked around the outside of the residence he could
      more clearly observe the bags and the marijuana stems. Det.
      Carney made these observations without opening the bags. Det.
      Carney applied for and was issued a search warrant for the home.
      Upon executing the warrant, Det. Carney, accompanied by four
      other officers, found 33 marijuana plants and numerous jars
      containing marijuana. [Appellant and his wife] arrived at the
      residence while the officers were searching and were arrested.

Trial Court Opinion, 1/16/18, at 2-3.

      Appellant filed a pre-trial motion to suppress the evidence gathered

during the execution of the search warrant, arguing that the supporting

affidavit failed to establish probable cause. The trial court denied that motion

on January 16, 2018. The case proceeded to a bench trial on stipulated facts,

at the conclusion of which the trial court found Appellant guilty of PWID and

imposed sentence as set forth above. This timely appeal followed.

      Appellant presents two questions four our review:

      Did the trial court err when it denied Appellant’s motion to
      suppress where the evidence presented demonstrates that law
      enforcement lacked probable cause to obtain a search warrant of
      the residence?

      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


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      marijuana program, where marijuana otherwise does not meet
      the criteria for a Schedule I controlled substance, and were
      marijuana’s Schedule I classification other otherwise [sic]
      unconstitutional on its face?

Appellant’s Brief at 5. We will consider these issues in turn.

      The scope of our review of an order denying suppression of evidence is

limited to the suppression court’s factual findings and legal conclusions. In

re L.J., 79 A.3d 1073, 1080 (Pa. 2013). “As for the record, we are limited to

considering only the evidence of the prevailing party, and so much of the

evidence of the non-prevailing party as remains uncontradicted when read in

the context of the record as a whole.” Id. A reviewing court cannot look

beyond the evidentiary record created at the pre-trial suppression hearing.

Id. at 1087. Probable cause exists when “the facts and circumstances which

are within the knowledge of the officer at the time of the arrest, and of which

he has reasonably trustworthy information, are sufficient to warrant a man of

reasonable caution in the belief that the suspect has committed or is

committing a crime.” Commonwealth v. Thompson, 985 A.2d 928, 931

(Pa. 2009). In discerning whether probable cause exists, the issuing authority

cannot consider evidence outside        the four corners of the affidavit.

Commonwealth v. Ryerson, 817 A.2d 510, 513 (Pa. Super. 2003).

            Pursuant to the ‘totality of the circumstances’ test set forth
      by the United States Supreme Court in [Illinois v. Gates, 462
      U.S. 213 (1983)] the task of an issuing authority is simply to make
      a practical, common-sense decision whether, given all of the
      circumstances set forth in the affidavit before him, including the
      veracity and basis of knowledge of persons supplying hearsay
      information, there is a fair probability that contraband or evidence

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       of a crime will be found in a particular place…. It is the duty of a
       court reviewing an issuing authority’s probable cause
       determination to ensure that the magistrate had a substantial
       basis for concluding that probable cause existed. In so doing, the
       reviewing court must accord deference to the issuing authority’s
       probable cause determination, and must view the information
       offered to establish probable cause in a common-sense, non-
       technical manner.

             [Further,] a reviewing court [is] not to conduct a de novo
       review of the issuing authority’s probable cause determination,
       but [is] simply to determine whether or not there is substantial
       evidence in the record supporting the decision to issue the
       warrant.

Commonwealth v. Jones, 988 A.2d 649, 655 (Pa. 2010). “A grudging or

negative attitude by reviewing courts towards warrants ... is inconsistent with

the Fourth Amendment’s strong preference for searches conducted pursuant

to a warrant; courts should not invalidate warrants by interpreting affidavits

in a hypertechnical, rather than a commonsense, manner.” Id. at 655–56

(quoting Gates, 462 U.S. at 236).

       The affidavit of probable cause stated that Detective Carney noted a

strong odor of marijuana when he approached Appellant’s house to speak to

him about his aggressive behavior toward the PennEnergy employee. N.T.

Hearing, 8/1/17, at 21-22; Commonwealth’s Exhibit 3.1         The affidavit also

stated that Detective Carney observed marijuana leaves and stems protruding

from holes in a garbage bag outside the residence. Id. Closer inspection of

the trash bag revealed multiple stems and leaves from marijuana plants. Id.

____________________________________________


1 Detective Carney read the contents of the probable cause affidavit into the
record at the suppression hearing.

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at 22.   Detective Carney requested a warrant to search the residence,

outbuildings, curtilage, and a camper. Id.

      A strong smell of marijuana emanating from a residence creates

probable cause to procure a search warrant. Commonwealth v. Johnson,

68 A.3d 990, 936 (Pa. Super. 2013) (“Having detected the strong smell of

marijuana emanating from [the defendant’s] trailer, [the investigating

officers] had probable cause to obtain a search warrant]); Commonwealth

v. Waddell, 61 A.3d 198, 215 (Pa. Super. 2012) (“The evidence certainly

surpassed the threshold necessary to establish probable cause after [the

investigating officer] detected the smell of marijuana emanating from [the

defendant’s] house.”).

      Thus, the odor of marijuana, in and of itself, was sufficient to support

issuance of a warrant.        Additionally, Detective Carney described his

observation of numerous marijuana stems and leaves in a trash bag outside

of Appellant’s home.     Appellant argues the affidavit is deficient because

Detective Carney did not explain how he was able to recognize the odor of

marijuana or the appearance of the plants. But Appellant fails to cite any law

holding that the affidavit could not support a finding of probable cause without

that information. Appellant also challenges the breadth of the search, arguing

that the affidavit provided no basis for a search of outbuildings and camper.

Appellant fails to develop this argument legally, and he does not specify what

evidence, if any, police recovered from the camper or out buildings. Detective


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Carney’s testimony describes contraband recovered from Appellant’s house,

but not from any other structure. N.T. Hearing, 8/8/17, at 23-24. Based on

all of the foregoing, we conclude that the record contains substantial evidence

supporting the issuance of the search warrant.

       In his second argument, Appellant claims that Schedule I of the

Controlled Substance, Drug, Device and Cosmetic Act is unconstitutional

insofar as it includes marijuana. 35 P.S. § 780-104(1)(iv)2. Pennsylvania’s

Medical Marijuana Act (“MMA”) took effect on May 17, 2016.                 35 P.S.

§ 10231.101, et seq. Pursuant to that Act, the General Assembly found that

“[s]cientific evidence suggests that medical marijuana is one potential therapy

that may mitigate suffering in some patients and also enhance quality of life.”

35 P.S. § 10231.102(1).            Appellant argues that Schedule I limits its

applicability to substances with no currently accepted medical use, and

because MMA is now in effect, Appellant argues that marijuana cannot

constitutionally remain on Schedule I.           He offers a lengthy history of the

criminalization of marijuana and claims that Pennsylvania’s current statutory

framework is untenable, given an irreconcilable conflict, as to marijuana,

between Schedule I and the MMA. This Court addressed similar arguments in

Waddell and Commonwealth v. Jezzi, ___ A.3d ___, 2019 WL 1870750

(Pa. Super. April 26, 2019).


____________________________________________


2 1972 P.L. 233, No. 64 § 4, as amended. A newly amended Schedule I, with
revisions not pertinent this matter, will go into effect on October 23, 2019.

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      First, Appellant addresses the statutory construction of Schedule I in

light of the MMA. Appellant’s Brief at 18-21. This Court offered a statutory

construction of Schedule I in Waddell in response to an argument very similar

to Appellant’s. Waddell argued that marijuana’s inclusion in Schedule I was

invalid because, as of that time, several other states recognized medical uses

of marijuana:

            [Waddell] claims that principles of due process demand that
      prosecution under the provisions of the [CSA] which prohibit
      various activities relating to controlled substances (in this case the
      possession and the possession with intent to deliver controlled
      substances), is barred with respect to marijuana as marijuana
      ostensibly has ceased to qualify as a Schedule I controlled
      substance under the Drug Act.

Waddell, 61 A.3d at 200, 203.

      The   Waddell     Court     explained   our   standard   for   reviewing   the

constitutionality of a statute:

            It is axiomatic that: [A]ny party challenging the
      constitutionality of a statute must meet a heavy burden, for we
      presume legislation to be constitutional absent a demonstration
      that the statute clearly, palpably, and plainly violates the
      Constitution. The presumption that legislative enactments are
      constitutional is strong. All doubts are to be resolved in favor of
      finding that the legislative enactment passes constitutional
      muster.    Moreover, statutes are to be construed whenever
      possible to uphold their constitutionality.

Id. at 202 (internal citations and quotation marks omitted) (quoting DePaul

v. Commonwealth, 969 A.2d 536, 545-46 (Pa. 2009)).

      The Waddell Court went on to construe the pertinent language of

Schedule I, which provides in relevant part:



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     (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).

     Waddell held that the two sentences of § 780-104(1) are to be read

independently.   The first sentence applies prospectively, governing the

conditions for adding a substance to Schedule I. Waddell, 61 A.3d at 206.

“The second sentence of 35 P.S. § 780–104(1) is most logically read to act

independently of the first, establishing a list of Schedule I controlled

substances that are not dependent on the criteria set forth allowing additions

to Schedule I by “the secretary” that is set forth in the first sentence.” Id.

Therefore, the substances originally listed in Schedule I were included

regardless of their compliance with the conditions specified in the first

sentence of § 780-104(1).    Id.   Moreover, substances listed in Schedule I

need not remain in continuous compliance with that sentence. Id.

           It is clear that a narrow reading of the express and plain
     meaning of the statute indicates that there is no requirement that
     the Schedule I substances listed under 35 P.S. § 780–104
     continuously conform to the standard 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(1).       Accordingly, we reject
     [a]ppellant’s suggested interpretation and conclude that his due
     process claim lacks merit. Regardless of whether there are
     accepted medical uses for marijuana in the United States,


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       marijuana remains a Schedule I substance under the Drug
       Act.

Id. at 207 (emphasis added).           This Court rejected Waddell’s due process

argument because it rested on a faulty interpretation of the CSA. Id.

       Given the foregoing, we also cannot accept Appellant’s argument that

Waddell is distinguishable because it predates the MMA.          In Waddell, as

here, the appellant argued that mounting evidence of marijuana’s medicinal

value renders Schedule I constitutionally invalid insofar as it includes

marijuana.      Waddell rejected that argument, holding that Schedule I

controlled substances need not continuously conform to the first sentence of

§ 780-104(1).3 Thus, there is no conflict between Schedule I, as construed in

Waddell, and the MMA. In essence, Appellant invites this Court to construe

Schedule I in precisely the way the Waddell Court rejected. Appellant’s Brief

at 18-21. We decline to do so, as we believe the enactment of the MMA does

not affect the Waddell Court’s construction of § 780-104(1).

       Appellant also raises substantive due process and equal protection

arguments.      We will consider these arguments in turn.        The Fourteenth

Amendment to the United States Constitution provides that no state shall


____________________________________________


3 The MMA anticipates the removal of marijuana from Schedule I (see 35 P.S.
§ 10231.2108), but our General Assembly has not done so. Appellant does
not cite § 10231.2108 in support of his argument. In any event, Marijuana
remains a Schedule I controlled substance after an amendment to § 780-104
set to take effect on October 24, 2019. 2018 Pa. Laws 662. Likewise,
Pennsylvania House Bill 616, introduced on February 28, 2019, does not
address the classification of marijuana. 2019 PA H.B. 616.

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“deprive any person of life, liberty, or property, without due process of law

[.]” U.S. CONST. amend. XIV, § 1. Similarly, the Pennsylvania Constitution

provides: “All men are born equally free and independent, and have certain

inherent and indefeasible rights, among which are those of enjoying and

defending life and liberty, of acquiring, possessing and protecting property

and reputation, and of pursuing their own happiness.” PA CONST. art. I, § 1.

      The government, through its police power, may enact laws that limit the

enjoyment of personal liberty and property. Commonwealth v. Gambone,

101 A.2d 634, 636 (Pa. 1954). The government’s police power is, however,

subject to constitutional restrictions and judicial review. Id.

             The constitutional analysis applied to the laws that impede
      upon these inalienable rights is a means-end review, legally
      referred to as a substantive due process analysis. Under that
      analysis, courts must weigh the rights infringed upon by the law
      against the interest sought to be achieved by it, and also scrutinize
      the relationship between the law (the means) and that interest
      (the end). Where laws infringe upon certain rights considered
      fundamental, such as the right to privacy, the right to marry, and
      the right to procreate, courts apply a strict scrutiny test. Under
      that test, a law may only be deemed constitutional if it is narrowly
      tailored to a compelling state interest.

            Alternatively, where laws restrict the other rights protected
      under Article 1, section 1, which are undeniably important, but not
      fundamental, Pennsylvania courts apply a rational basis test.
      According to that test, which was defined by this Court almost a
      century ago, a law must not be unreasonable, unduly oppressive
      or patently beyond the necessities of the case, and the means
      which it employs must have a real and substantial relation to the
      objects sought to be attained.

Nixon v. Commonwealth, 839 A.2d 277, 287 n.15 (Pa. 2003) (internal

citations and quotation marks omitted).


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      Instantly, Appellant requests rational basis review. The Pennsylvania

Supreme Court has written that the substantive due process guarantees under

the Pennsylvania Constitution are “substantially coextensive” with those of the

Fourteenth Amendment, but that “a more restrictive rational basis test is

applied under [the Pennsylvania] Constitution.” Nixon v. Commonwealth,

839 A.2d 277, 287 n.15 (Pa. 2003). Appellant relies on Nixon in his brief but

he does not acknowledge the distinction between the federal and state rational

basis tests.   Because we conclude that Appellant’s argument fails under

Pennsylvania law, it necessarily fails under the less restrictive federal test.

      Our Supreme Court recently described the rational basis analysis in

detail:

             Under the guise of protecting the public interests the
      legislature may not arbitrarily interfere with private business or
      impose unusual and unnecessary restrictions upon lawful
      occupations.     The question whether any particular statutory
      provision is so related to the public good and so reasonable in the
      means it prescribes as to justify the exercise of the police power,
      is one for the judgment, in the first instance, of the law-making
      branch of the government, but its final determination is for the
      courts.

             Thus, under our state charter, we must assess whether the
      challenged law has a real and substantial relation to the public
      interests it seeks to advance, and is neither patently oppressive
      nor unnecessary to these ends. Nevertheless, we bear in mind
      that, although whether a law is rationally related to a legitimate
      public policy is a question for the courts, the wisdom of a public
      policy is one for the legislature, and the General Assembly’s
      enactments are entitled to a strong presumption of
      constitutionality rebuttable only by a demonstration that they
      clearly, plainly, and palpably violate constitutional requirements.




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Shoul v. Commonwealth, Dep't of Transp., Bureau of Driver Licensing,

173 A.3d 669, 677-78 (Pa. 2017).

      Appellant claims the Commonwealth violated substantive due process

by prosecuting for possession with intent to deliver a Schedule I substance

that has accepted medical use.        This is, by and large, the due process

argument raised in Waddell.         Nonetheless, we are cognizant that the

Waddell Court did not find a need to address the law of due process because

it rejected the argument on statutory construction grounds.        Instantly, we

conclude that Appellant’s argument fares no better under the law of

substantive due process, regardless of the subsequent enactment of the MMA.

      Most importantly, Appellant fails to identify the nature of the right

implicated here. In Nixon and Shoul, for example, the defendants argued

that the laws in question were unconstitutional because they improperly

restricted the defendants’ right to pursue a lawful occupation.       We cannot

write a similar summary of Appellant’s argument, as it is unclear what would

follow the word “because.” In other words, it is clear that Appellant believes

marijuana’s continued Schedule I classification is unconstitutional, but it is not

clear which right Appellant believes is unnecessarily restricted by that

classification. His brief contains a history of the criminalization of marijuana,

in which he purports to demonstrate that marijuana’s inclusion on the federal

Schedule I was, in large part, the product of the Nixon administration’s animus

toward some of its most common users, including racial minorities and


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J-A08019-19


persons opposed to the Vietnam War. Appellant’s Brief at 21-26. Appellant

thus argues that criminalization of the possession and distribution of

marijuana under Pennsylvania’s Schedule I, which largely tracks the federal

version, is arbitrary. Even if we were to assume that Appellant’s historical

account is accurate (we need not and do not opine on the matter), that

assumption would not lead to the conclusion that the Commonwealth is

powerless to regulate marijuana in the way that it has. Appellant’s historical

argument does not preclude the possibility of a rational basis for including

marijuana on Schedule I.

      In asking for rational basis review, Appellant has disavowed the violation

of any fundamental right. Thus, Appellant must assert the impingement of a

right that is important, but not fundamental. He does not do so. Appellant

relies in part on Nixon, but growing and distributing recreational marijuana is

not a lawful occupation. Appellant therefore cannot be asserting an unusual

and unnecessary restriction on the right to pursue a lawful occupation, as were

the litigants in Shoul and Nixon. Appellant develops no legal argument with

regard to any other important right.

      Likewise, Appellant does not argue that regulation of marijuana bears

no real and substantial relation to a public interest. Appellant does not argue,

for example, that marijuana should be removed from the list of controlled

substances because the Commonwealth has no valid interest in regulating it.

Appellant does not deny that marijuana is a psychoactive drug that causes


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J-A08019-19


impairment to its users.4 He simply argues that marijuana cannot remain on

Schedule I because it has accepted medical use, and his conviction should fall

on that basis.       We observe, nonetheless, that the five-year statutory

maximum punishment applicable to possession with intent to deliver

marijuana (as well as many other Schedule I drugs) applies to Schedule II

and Schedule III substances. 35 P.S. § 780-113(f)(2). Thus, a reclassification

of marijuana to Schedule II or III—both of which include drugs with accepted

medical use—would not alter the potential punishment for possession with

intent to deliver it.

       In summary, Appellant’s argument that marijuana’s Schedule I

classification violates substantive due process is patently insufficient to

overcome the strong presumption of constitutionality that a legislative

enactment enjoys.        In Jezzi, this Court considered an apparently similar

argument from Appellant’s counsel and rejected it because Jezzi failed to

explain the right involved. Jezzi, 2019 WL 1870750 at *3. Likewise, the

Waddell Court held, as a matter of statutory construction, that the medical



____________________________________________


4 We note our agreement with the panels in Jezzi and Waddell that proper
regulation of marijuana, with the ongoing scientific study of the potential
benefits and hazards of its various components, is a matter best left to our
General Assembly. Jezzi, 2019 WL 1870750, at *8; Waddell, 61 A.3d at 207
n.20. See, e.g., Moises Velasquez-Manoff, Can CBD Really Do All That?, N.Y.
TIMES, May 14, 2019, magazine; Gruber, et. al, The Grass Might Be Greener:
Medical Marijuana Patients Exhibit Altered Brain Activity and Improved
Executive Function after 3 Months of Treatment, FRONTIERS IN PHARMACOLOGY,
Volume 8, Article 983 (January 17, 2018).

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value of marijuana does not create a due process problem with regard to the

continued classification of marijuana as a Schedule I controlled substance. For

the reasons explained above, we reach the same conclusion, in accord with

both Jezzi and Waddell.

      Finally, we consider Appellant’s argument that marijuana’s continued

Schedule I classification violates his right to equal protection.    “Appellant

contends   that   making   marijuana    available   as   a   medicine   through

Pennsylvania’s medical cannabis law denies anyone who is not a registered

patient equal protection by prosecuting that individual for possession of a

Schedule I controlled substance.” Appellant’s Brief at 32.

      The applicable law is well settled. “The essence of the constitutional

principle of equal protection under the law is that like persons in like

circumstances will be treated similarly.”     Jezzi, 2019 WL 1870750 at *5

(quoting Commonwealth v. Bullock, 868 A.2d 516, 524 (Pa. Super. 2005),

affirmed, 913 A.2d 207 (Pa. 2006), cert. denied, 550 U.S. 941 (2007)).

The law recognizes three levels of scrutiny, depending upon the nature of the

right involved. Id. Appellant concedes that the lowest level of scrutiny—that

the law be rationally related to a legitimate governmental interest—applies

here. “Under the rational basis test, if any state of facts can be envisioned to

sustain the classification, equal protection is satisfied.”       Id. (quoting

Commonwealth v. Albert, 758 A.2d 1149, 1153 (Pa. 2000)).




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      The Jezzi Court considered the same argument presently before us.

First, the Jezzi Court noted the Waddell Court’s conclusion, i.e., that

marijuana could remain on Schedule I regardless of its accepted medical uses.

Id. at *6. Thus, the Jezzi Court found no conflict between the CSA and the

MMA as concerns any currently accepted medical use for marijuana. Id. at

*7. This Court concluded that the CSA is “social legislation that falls within

the purview of the General Assembly,” and that it “furthers the legitimate

government interest of public safety by protecting the public from unfettered

access to unsafe substances.” Id. “[A] genuine safety purpose existed when

the General Assembly passed the CSA, and [a]ppellant failed to prove the

Schedule I classification of marijuana is no longer rationally related to that

legitimate government interest.”    Id.   Accordingly, Jezzi’s equal protection

argument failed.

      In summary, the Jezzi Court concluded that the continued classification

of marijuana as a Schedule I controlled substance after enactment of the MMA

does not offend constitutional equal protection. That holding is directly on

point and controlling here. We further observe that Appellant’s argument,

quoted above, appears to assert that persons who wish to possess or use

marijuana without a valid medical reason are denied equal protection as

compared to persons who qualify for use and possession under the MMA. This

argument, as Appellant phrases it, would call into question the constitutional

validity of all prescription medication. To accept it, we would have to conclude


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that the Commonwealth has no rational basis for permitting medical

prescriptions of controlled substances but denying those substances to

persons who want them for recreational purposes. To state that proposition

is to refute it.

      For all of the foregoing reasons, we conclude that Appellant’s arguments

lack merit.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/2019




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