Appeal from the Judgment of Sentence October 7, 2011 In the Court of Common Pleas of Westmoreland County Criminal Division at No.: CP-65-CR-0003997-2009
The opinion of the court was delivered by: Platt, J.
BEFORE: OLSON, J., WECHT, J., and PLATT, J.*fn1
Appellant, Beth A. Thomas, appeals from the judgment of sentence following her conviction for violations of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-113(a) (30) and (16). We affirm.
The parties stipulated to the pertinent facts. On June 1, 2009, Appellant delivered thirty-three Percocet pills to a police informant. (See Trial Court Opinion, 12/07/11, at 1). The thirty-three pills have an aggregate weight of 17.4 grams; however, only 330 mg of that weight is the pure narcotic, Oxycodone, the remaining weight is Acetaminophen, binders, and fillers. (See id.). The trial court convicted Appellant after a non-jury trial. On October 7, 2011, Appellant was sentenced pursuant to 18 Pa.C.S.A. § 7508 to the mandatory minimum sentence of not less than three nor more than six years of incarceration. The instant, timely appeal followed.*fn2
On appeal, Appellant raises one issue for our review.
Did the trial court commit an error of law in sentencing [Appellant] to a mandatory term of incarceration pursuant to 18 Pa.C.S.A. §7508(a)(2) when the statute is unconstitutional and violates [Appellant's] right to Equal Protection as applied to the controlled substance of Oxycodone and its various forms?
(Appellant's Brief, at 7).
Our scope and standard of review is as follows.
Our Court exercises plenary review over questions of law, including the constitutionality of a statute. Further, our Court recognizes that the Equal Protection guarantee under the Pennsylvania Constitution is analyzed under the same standards as the federal constitution. When reviewing the constitutionality of a statute, our Court has reaffirmed that:
there is a strong presumption in the law that legislative enactments do not violate the constitution. Moreover, there is a heavy burden of persuasion upon one who challenges the constitutionality of a statute. While penal statutes are to be strictly construed, the courts are not required to give the words of a criminal statute their narrowest meaning or disregard the evident legislative intent of the statute. A statute, therefore, will only be found unconstitutional if it "clearly, palpably and plainly" violates the constitution.
[Commonwealth v.] McCoy, 895 A.2d [18,] 29-30, [(Pa. Super. 2006)]. All doubt is to be resolved in favor of sustaining the legislation.
Commonwealth v. Harley, 924 A.2d 1273, 1281 (Pa. Super. 2007), appeal dismissed, 967 A.2d 376 (Pa. 2008) (some quotation marks and most citations omitted). Because convicted drug dealers are not a suspect class and the classification does not involve the exercise of a fundamental or important right, "only a minimum level of scrutiny need be applied to determine whether the statute bears a rational relationship to a legitimate legislative objective." Commonwealth v. Eicher, 605 A.2d 337, 352 (Pa. Super. 1992), appeal denied, 617 A.2d 1272 (Pa. 1992) (citation omitted); (see also Appellant's Brief, at 16).
The statute at issue in the present matter is 18 Pa.C.S.A. § 7508(a)(2), which provides in pertinent part: § 7508. Drug ...