J-A05010-19

                                   2019 PA Super 132

    COMMONWEALTH 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.
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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


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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).

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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

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         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


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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.

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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.

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      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

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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.


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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.

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            (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


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            (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


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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.

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         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

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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.

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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. §§

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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


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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


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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




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