J-S58007-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


                       v.

AMRO AYMAN ELANSARI

                            Appellant                  No. 2235 MDA 2015


          Appeal from the Judgment of Sentence November 30, 2015
               In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-CR-0000408-2015


BEFORE: GANTMAN, P.J., BOWES AND PLATT,* JJ.

CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:

                                                    FILED OCTOBER 18, 2016

       I concur     with the      learned majority’s affirmance   of Appellant’s

judgment of sentence.        However, I respectfully dissent from its conclusion

that Appellant’s first four claims are not properly developed for our review.

       Amro Ayman Elansari appeals pro se1 from his judgment of sentence

entered on November 30, 2015, following his conviction of eight counts of

possession with intent to deliver a controlled substance (“PWID”), four

counts of possession of a controlled substance, one count of possession of


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1
 Appellant was allowed to proceed pro se herein after a hearing conducted
pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



* Retired Senior Judge assigned to the Superior Court.
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drug paraphernalia, and three counts of criminal use of a communication

facility.

       Appellant’s charges stem from three separate drug transactions

wherein he supplied a confidential informant (“CI”) with marijuana and

marijuana wax.2         Appellant arranged and facilitated these transactions

through his cellular telephone. On those occasions, he provided the CI with

one-half ounce of marijuana, one-half ounce of marijuana and .4 grams of

marijuana wax, and twenty-seven grams of marijuana and .8 grams of

marijuana wax, respectively. Utilizing information provided by the CI, State

College police executed a search warrant at Appellant’s residence. Officers

recovered 31.9 grams of marijuana, 13.2 grams of marijuana wax, $240.00

dollars,    including   $180.00      in   pre-recorded    bills,    various   marijuana

paraphernalia, and Appellant’s cellular telephone.

       Following Appellant’s conviction at a bench trial, the court sentenced

Appellant    to   ninety-five    days     to   twenty-three   and    one-half   months

incarceration, followed by three years probation.             Appellant filed a timely

post-sentence motion raising the claims at issue herein, which the trial court

denied. Subsequently, Appellant filed this timely appeal. The court did not


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2
  Marijuana wax is a mass of concentrated Tetrahydrocannabinol (“THC”)
similar in appearance to honey or butter, and containing extraordinarily high
levels of THC.



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direct Appellant to file a Rule 1925(b) concise statement of errors

complained of on appeal, nor did it author its own Rule 1925(a) opinion.

      Appellant raises five issues for our consideration:

   1. Are the statutes prohibiting marijuana unconstitutional because
      they violate due process?

   2. Are the statutes prohibiting marijuana subject to strict scrutiny
      because they burden the certain fundamental rights of ‘free
      exercise of religion’ and medical necessity?

   3. Do the statutes prohibiting marijuana fail to pass strict scrutiny
      because they lack (a) compelling government interest and (b)
      narrowly tailored and (c) utilize least intrusive means?

   4. Are the statutes prohibiting marijuana subject to rational basis at
      a minimum; and do the statutes prohibiting marijuana fail to
      pass rational basis because the statutes cannot conceivably (a)
      be in rational relation to the furtherance of (b) a legitimate
      government interest; the legitimate government interest being
      health and safety, but the statutes not rationally related to the
      furtherance thereof based on the statistics of (1) alcohol and
      tobacco, which are legal, killing a combined 500,000 people per
      year and (2) marijuana killing, if not zero people, much less than
      those?

   5. Did the court err in (1) convicting the [A]ppellant of the charges
      against him despite his constitutional and affirmative defenses
      presented at the omnibus pretrial motion hearing and (2) barring
      him from presenting further evidence at trial to support his
      defense; both of which were in violation of Appellant’s due
      process rights?

Appellant’s brief at 6-7.

      The   majority   affirmed   Appellant’s   judgment    of   sentence   after

concluding Appellant’s brief failed to properly develop his claims for review.

Majority Judgment Order at 2. The majority finds that Appellant’s brief falls



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“well below the minimum standards delineated in our Rules of Appellate

Procedure,” noting that Appellant provided minimal citation to the record,

and did not “cogently discuss” relevant legal authority. Id. at 3.                Further,

the   majority     observes      Appellant’s     brief     is   “rambling   and    nearly

unintelligible.” Id. Hence, it concludes these defects preclude meaningful

appellate review. Id. at 4. I disagree.

       Notwithstanding the defects present in Appellant’s brief, as it relates to

Appellant’s first four issues, I find that his brief is not so substantially infirm

as to impede effective appellate review.                 I preliminarily note that, the

Commonwealth did not object to the defects present in Appellant’s brief, but

rather, ably set forth its position in a fifteen page argument outlining the

relevant facts and law.         Although this does not salvage the deficiencies

apparent in Appellant’s brief, it does reveal that Appellant’s arguments were

discernible.

       Second, Appellant’s first position is abundantly clear, and need not be

framed as four separate issues.3 Stated simply, Appellant asserts that the

prohibition of the possession, use, manufacture, and distribution of




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3
  The argument section of Appellant’s brief is split into three distinct, albeit
intertwined, sections.




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marijuana violates substantive due process.4 In this vein, Appellant argues

that possession, use, manufacture, and distribution of marijuana is a

fundamental right, and thus, its prohibition is subject to strict scrutiny

review. Alternatively, Appellant maintains that the government can provide

no rational basis for prohibiting such activities.   Appellant cites to federal

and state case law in support of his position, and attempts to distinguish

controlling case law. Despite framing his first four issues separately, there is

a logical thread connecting each issue to the other. Hence, we are not in a

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4
  Indeed, laws decriminalizing the possession of small amounts of marijuana
have taken effect in Pennsylvania’s urban centers, and even in Centre
County, where this matter had its genesis. See, Laila Kerney, Pittsburgh to
Decriminalize      Small       Amounts       of       Marijuana,      Reuters
(December 21, 2015), http://reuters.com/article/us-pennsylvania-
marijuana-idUSKBN0U42O720151221;          Andres     Jauregui,   Philadelphia
Decriminalizes     Marijuana,     Huffington      Post     (October 2, 2014),
http://huffingtonpost.com/2014/10/02/philadelphia-decriminalizes-
marijuana_n_5919896.html;       Dan    Nephin,    Harrisburg   Decriminalizes
Marijuana, LancasterOnline (July 7, 2016), http://lancasteronline.com/news/
local/harrisburg-decriminalizes-marijuana/article_d7b0b19e-444b-11e6-
a01f-5f489465ae3d.html; Lizzy Hardison, State College Drops Marijuana
Penalties, But Not on Penn State Campus, PennLive (August 2, 2016),
Http://www.pennlive.com/news/2016/08/state_college_drops_marijuana.ht
ml.

      In addition, Pennsylvania’s Act 16, legalizing medical marijuana,
recently came into effect. See 35 P.S. § 10231.101, et seq. The United
States Supreme Court opined that it is “the judicial duty to base [decisions]
on principled reasons and neutral discussions,” in order to “[create] a
substantial body of law considering all sides of these issues.” Obergefell v.
Hodges, 135 S.Ct. 2584, 2597 (2015). Hence, I disagree with the learned
majority’s disposal of Appellant’s claim based on procedural grounds and
without availing ourselves of the opportunity to discuss the issues at hand.



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position where we would have to “formulate Appellant’s argument for him.”

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (citation

omitted) (wherein the court determined two of the appellant’s issues were

waived since the brief failed to provide any discussion of claims, failed to

reasonably develop the argument, and failed to include any citation to

authority).

       Turning to the merits of Appellant’s brief, Appellant in essence

contends that the prohibition of marijuana violates the due process clause of

the    Fourteenth      Amendment.              Presumably,   Appellant   assails   the

constitutionality of 35 P.S. § 780-113(a)(30),5 prohibiting the possession

with intent to deliver marijuana, and 35 P.S. § 780-113(a)(16),6 prohibiting

the possession of marijuana, as these sections formed the basis of his

conviction.

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5
  This section of the Controlled Substance, Drug, Device, and Cosmetic Act
prohibits “the manufacture, delivery, or possession with intent to
manufacture or deliver, a controlled substance by a person not registered
under this act, or a practitioner not registered or licensed by the appropriate
State board, or knowingly creating, delivering or possessing with intent to
deliver, a counterfeit controlled substance.” 35 P.S. § 780-113(a)(30).
6
  This section of the Controlled Substance, Drug, Device, and Cosmetic Act
prohibits "knowingly or intentionally possessing a controlled or counterfeit
substance by a person not registered under this act, or a practitioner not
registered or licensed by the appropriate State board, unless the substance
was obtained directly from, or pursuant to, a valid prescription order or
order of a practitioner, or except as otherwise authorized by this act.” 35
P.S. § 780-113(a)(16).



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      Issues raising the constitutionality of a statute present a pure

question of law, and therefore, 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).       In addition, we are guided by the following

standards:

      Any 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.

Commonwealth v. Waddell, 61 A.3d 198, 202 (Pa.Super. 2012) (citations

and quotation marks omitted).

      Appellant first contends that he uses marijuana “religiously,” and that

his practicing faith, Islam, is supplemented by other religious ideologies.

Appellant’s brief at 21-22. Appellant baldly asserts that activities involving

religious beliefs are subject to strict scrutiny. In addition, he claims his use

of marijuana is a medical necessity since he is a cancer patient, and it

provides an “anti-cancer/anti-tumoral function.” Id. at 22. Thus, Appellant

maintains that, from either perspective, strict scrutiny review should apply

as the prohibition of marijuana implicates a fundamental right.       Appellant

concludes that an all-out ban on marijuana is unconstitutional since the




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government has not presented a compelling interest to justify its prohibition,

and other, allegedly more harmful, drugs are not completely banned.

      Under the Due Process Clause of the Fourteenth Amendment, no state

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

law.” U.S. CONST. amend. XIV § 1. In addition to most of the fundamental

liberties enumerated in the Bill of Rights, the Due Process Clause also

protects   “certain   personal   choices   central   to   individual   dignity   and

autonomy, including intimate choices that define personal identity and

beliefs.” Obergefell v. Hodges, 135 S.Ct. 2584, 2597 (2015); See e.g.,

Griswold v. Connecticut, 381 U.S. 479 (1965) (finding Connecticut law

forbidding the use of contraceptives unconstitutionally intruded upon the

right to privacy); Lawrence v. Texas, 539 U.S. 558 (2003) (finding Texas

statute criminalizing two persons of the same sex engaging in intimate

sexual conduct an unconstitutional intrusion of the right to privacy).            A

substantive due process analysis has two features:

      First, we have regularly observed that the Due Process Clause
      specially protects those fundamental rights and liberties which
      are, objectively, deeply root in this Nation’s history and tradition,
      and implicit in the concept of ordered liberty, such that neither
      liberty nor justice would exist if they were sacrificed. Second,
      we have required in substantive-due-process cases a careful
      description of the asserted fundamental liberty interest. Our
      Nation’s history, legal traditions, and practices thus provide the
      crucial guideposts for responsible decision making that direct
      and restrain our exposition of the Due Process Clause.




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Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (citations and

quotation marks omitted).         The Fourteenth Amendment “forbids the

government to infringe . . . ‘fundamental liberty interests at all, no matter

what process is provided, unless the infringement is narrowly tailored to

serve a compelling state interest.” Id. at 721 (emphasis in original, citation

omitted).

      Initially, we observe that Appellant’s reliance on his “religious” beliefs,

whatever form they may take, actually invokes the Free Exercise Clause of

the First Amendment to the Constitution.             See U.S. CONST. amend. I.

Furthermore, the United States Supreme Court has previously held there is

no medical necessity exception for prohibitions on manufacturing and

distributing marijuana.     U.S. v. Oakland Cannabis Buyers’ Co-op., 532

U.S. 483 (2001) (finding that the federal legislature classified marijuana as a

Schedule I controlled substance, and therefore, medical necessity was not a

defense to the manufacture and distribution of marijuana).

      Furthermore,     we    decline    to     establish    the     use,   possession,

manufacture, or delivery of marijuana as a fundamental right.                     The

substantive   rights   recognized      under    United     States    Supreme    Court

jurisprudence all bear some relation to a person’s right to autonomy or the

right to privacy. See Obergefell, supra; Griswold, supra. However, the

right asserted by Appellant falls outside the scope of currently recognized

substantive rights. Although the use and possession of marijuana certainly

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is a personal decision, it is not such an “intimate choice” as to affect one’s

“individual dignity.” Obergefell, supra at 2597.          At its best, marijuana’s

palliative qualities may ease the anguish associated with serious medical

conditions. In its most common usage, it is merely a recreational activity.

This is not the sort of conduct that we consider so essential to our concept of

ordered liberty that “neither liberty nor justice would exist” if its use were

prohibited entirely. Glucksburg, supra.

      As the relevant portions of the Controlled Substance, Drug, Device,

and Cosmetic Act (“Drug Act”) do not infringe upon a fundamental right, we

review the statute under the less-stringent “rational basis” test to determine

whether the prohibition is “rationally related to a legitimate state interest.”

Id. at 728. This requirement is undoubtedly met here.

      Appellant concedes the state has a legitimate interest in protecting the

public health and safety. Appellant’s brief at 20. However, he asserts that

the prohibition on marijuana is not rationally related to that interest since

the state permits drugs that pose a greater risk to the public health and

safety to be purchased and used, namely alcohol and tobacco. Therefore,

Appellant continues, the prohibition of marijuana, a drug less dangerous to

the public health and safety, is without justification.

      Appellant’s contention misses the mark as the classification and

regulation of one drug does not affect how the legislature classifies and

regulates another drug. Likewise, how harmful a drug is in comparison to

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another drug is similarly not a determining factor in considering whether the

legislature had a rational basis for its decision to regulate that drug. Finally,

the legislature is not bound to consider whether a drug, on the whole, is

more beneficial than harmful, or vice versa.          Under rational basis review,

any rational reason to support the legislature’s decision is sufficient. Smith

v. Coyne, 722 A.2d 1022, 1026 (Pa. 1999) (noting that where no

fundamental right is at issue, the appropriate analysis of a legislative

enactment    is   to   ask   whether   there    is   “any   rational   basis   for   its

requirements.”).

      Without contesting the known benefits of medical marijuana, this

Court in Waddell, supra noted that “there appears to be little doubt that

smoking marijuana has both respiratory and immunologic consequences,”

and that other studies “suggest there are increased risks of cancer from

marijuana usage unrelated to the method of delivery.” Waddell, 61 A.3d at

205. That marijuana presents a risk to the health and safety of a citizen of

this Commonwealth provides a rational basis for the legislature’s prohibition

of the use, possession, manufacture, and delivery of marijuana.                 Since

Appellant’s challenge does not establish that the relevant portions of the




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Drug Act clearly, palpably, and plainly violate the Constitution, his claim

fails.7

          Finally, I agree with the majority that Appellant’s fifth issue is waived.

Appellant raises a claim contesting the sufficiency of the evidence supporting

his conviction, and a procedural due process challenge alleging the trial court

barred him from presenting evidence. We observe that, “where an appellate

brief fails to provide any discussion of a claim with citation to relevant

authority or fails to develop the issue in any other meaningful fashion

capable of review, that claim is waived.”               Johnson, supra (citation

omitted). Appellant devotes one-half a page to these issues, without citation

to relevant authority or the record.           Furthermore, in record proceedings,

Appellant unapologetically admitted to his use, possession, and sale of

marijuana. Thus, this claim is waived.


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7
  Nor is Appellant’s challenge salvaged by the recent passage of Act 16, i.e.,
Pennsylvania’s Medical Marijuana Act. As we observed in Commonwealth
v. Waddle, 61 A.3d 198, 207 (Pa.Super. 2012), “Regardless of whether
there are accepted medical uses for marijuana in the United States,
marijuana remains a Schedule I substance under the Drug Act.” Although
the Medical Marijuana Act contemplates a future amendment to the Drug Act
removing marijuana from the list of Schedule I controlled substances, it did
not expressly do so itself. See 35 P.S. § 10231.2109 (“The provisions of
this act with respect to dispensaries shall not apply beginning 1,095 days
from the effective date of an amendment . . . removing marijuana from
Schedule I of the Controlled Substances Act.”). Thus, marijuana remains a
Schedule I controlled substance under the laws of Pennsylvania, and its
prohibition remains in full force.



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     Based on the foregoing reasons I agree that Appellant’s judgment of

sentence should be affirmed.




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