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Commonwealth of Pennsylvania v. Terrance Waddell

November 21, 2012

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
TERRANCE WADDELL, APPELLANT



Appeal from the Judgment of Sentence entered on September 29, 2011 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0005732-2010

The opinion of the court was delivered by: Bender, J.

BEFORE: BENDER, J., DONOHUE, J., and STRASSBURGER, J.*fn1

OPINION BY BENDER, J.

Appellant, Terrance Waddell, represented by Attorney Gary B. Zimmerman,*fn2 appeals from the judgment of sentence of an aggregate term of 5 - 10 years' incarceration and consecutive 5 years' probation for drug and firearm offenses. Appellant argues that marijuana, now recognized by at least fourteen of our sister states as having accepted medical uses, no longer fits the criteria for a Schedule I controlled substance and, therefore, the statutes currently prohibiting possession of marijuana as a Schedule I substance are invalid. Appellant also argues that the physical evidence should have been suppressed because the police did not have exigent circumstances justifying a warrantless entry and search of his home. After careful review, we reverse.

Appellant was arrested following the warrantless entry into his home, ostensibly justified upon the presence of exigent circumstances, resulting in the discovery of approximately ten pounds of marijuana and several firearms. The Commonwealth charged Appellant with three counts of person not to possess a firearm (PNPF), 18 Pa.C.S. § 6105; two counts of receiving stolen property (also related to the firearms), 18 Pa.C.S. § 3925; one count of possession with intent to deliver (PWID) (marijuana), 35 P.S. § 780- 113(a)(30); one count of possession of a controlled substance (marijuana), 35 P.S. § 780-113(a)(16); and one count of possession of drug paraphernalia, 35 P.S. § 780-113(a)(32).

Appellant filed a pre-trial motion seeking suppression of the seized contraband, and another seeking dismissal of the drug charges premised upon the argument that marijuana was no longer a Schedule I controlled substance within the meaning of The Controlled Substance, Drug, Device and Cosmetic Act (hereinafter the "Drug Act"). The trial court denied both motions. A stipulated non-jury trial was held and the trial court found Appellant guilty of all the charged offenses.

In compliance with the applicable mandatory minimum sentences, the trial court sentenced Appellant to 5 - 10 years' incarceration for one count of PNPF, a concurrent term of 5 - 10 years' incarceration for PWID, and 5 years' probation to commence upon Appellant's release from confinement for a second count of PNPF. No further penalty was imposed at the remaining five counts. Appellant was also ordered to forfeit $32,176.00.

Appellant now raises the following issues for our consideration:

I. Did the trial court err and thereby deny the appellant Due Process of law as guaranteed by ... Article I[,] section 9 of the Pennsylvania Constitution and the 5th and 14th Amendments of the United States Constitution when it denied the appellant's Motion to Dismiss the Criminal Information charging him with possession with the intent to distribute marijuana, as a Schedule I substance in violation of 35 [P.S. §] 780-113(a)(30)?

The scientific, medical and empirical data and evidence clearly established that marijuana has many acceptable medical uses in the United States, and therefore failed to meet the requirements of 35 [P.S. §] 780-104 in Schedule I, which requires that a substance must have 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. Since there are many recognizable medical uses for marijuana, it cannot be a Schedule I Controlled Substance. Thus, was this prosecution, conviction and judgment of sentenced [sic] a violation of the constitutional protection of Due Process of Law as guaranteed by ... Article I[,] section 9 of the Pennsylvania Constitution and the 5th and 14th Amendments of the United States Constitution?

II. Did the court err in denying the appellant's motion to suppress evidence seized as a result of a warrantless search of his house where the commonwealth failed to establish by clear and convincing evidence that ... exigent circumstances existed which created an exception to the Warrant Clause of Article 1[,] Section 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution?

Appellant's Brief, at 9.*fn3

We begin with Appellant's first claim that marijuana no longer fits the definition of a Schedule I controlled substance as set forth in 35 P.S. § 780- 104.

When interpreting a statute, the court must ascertain and effectuate the intent of the legislature and give full effect to each provision of the statute if at all possible. 1 Pa.C.S.A. § 1921(a); Commonwealth v. Brown, 423 Pa.Super. 264, 266, 620 A.2d 1213, 1214 (1993); Commonwealth v. Edwards, 384 Pa.Super. 454, 460, 559 A.2d 63, 66 (1989), appeal denied, 523 Pa. 640, 565 A.2d 1165 (1989). In construing a statute to determine its meaning, courts must first determine whether the issue may be resolved by reference to the express language of the statute, which is to be read according to the plain meaning of the words. 1 Pa.C.S.A. § 1903(a). See Commonwealth v. Berryman, 437 Pa.Super. 258, 649 A.2d 961 (1994) (en banc).

When construing one section of a statute, courts must read that section not by itself, but with reference to, and in light of, the other sections because there is a presumption that in drafting the statute, the General Assembly intended the entire statute to be effective. 1 Pa.C.S.A. § 1922. See Commonwealth v. Mayhue, 536 Pa. 271, 307, 639 A.2d 421, 439 (1994);

Commonwealth v. Berryman, supra at 268, 649 A.2d at 965. Statute headings may be considered in construing a statute. 1 Pa.C.S.A. § 1924. However, the letter of the statute is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S.A. § 1921(b); Commonwealth v. Reeb, 406 Pa.Super. 28, 34, 593 A.2d 853, 856 (1991), appeal denied, 530 Pa. 665, 610 A.2d 45 (1992).

Commonwealth v. Lopez, 663 A.2d 746, 748 (Pa. Super. 1995).

Furthermore, when addressing the constitutionality of a statute, we are guided by the following standards:

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." Konidaris v. Portnoff Law Associates, Ltd., 598 Pa. 55, 953 A.2d 1231, 1239 (2008) (citation omitted). The presumption that legislative enactments are constitutional is strong. Commonwealth v. McMullen, 599 Pa. 435, 961 A.2d 842, 846 (2008); see also 1 Pa.C.S. § 1922(3) (in ascertaining intent of General Assembly in enactment of statute, presumption exists that General Assembly did not intend to violate federal and state constitutions). All doubts are to be resolved in favor of finding that the legislative enactment passes constitutional muster.

Pennsylvanians Against Gambling Expansion Fund, Inc. v. Commonwealth, 583 Pa. 275, 877 A.2d 383, 393 (2005). Moreover, "statutes are to be construed whenever possible to uphold their constitutionality." In re William L., 477 Pa. 322, 383 A.2d 1228, 1231 (1978).

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

Appellant posits that because there are a growing number of states and scientific authorities that recognize medical uses for marijuana, the intoxicating herb can no longer be classified as a Schedule I controlled substance, as Schedule I controlled substances are defined as such, in part, by the absence of recognized medical uses. Thus, Appellant claims that principles of due process demand that prosecution under the provisions of the Drug Act 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. Appellant contends that our long-held principle that criminal statutes are to be strictly construed supports this interpretation. We disagree.

Appellant was charged under the following provisions of the Drug Act:

(16) 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.

(30) Except as authorized by this act, 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)(16), (30).

The schedules of controlled substances are defined by 35 P.S. § 780- 104. That statute begins by stating that "[t]he following schedules include the controlled substances listed or to be listed by whatever official name, common or usual name, chemical name, or trade name designated." 35 P.S. § 780-104 (emphasis added). The statute then proceeds to define five schedules of controlled substances. The provision identifying Schedule I substances states:

(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:

J-A28008-12

(iv) Marihuana.

Id.*fn4

We first analyze Appellant's claim that marijuana has some accepted medical use in the United States. At a hearing held pursuant to Appellant's motion to dismiss, the Appellant offered evidence demonstrating that fourteen of our sister states have passed legislation legalizing the use of marijuana for medical purposes.*fn5 Two additional states, Arizona and Maryland, have adopted law recognizing the medicinal use of marijuana without fully legalizing the use of medical marijuana.*fn6 Our own review of available legal resources suggests that Appellant understates his case in this regard. Connecticut, Delaware, Virginia, and Washington, D.C., have also all adopted laws allowing for the use of medical marijuana in certain circumstances.*fn7 Noticeably absent from those lists, however, is the Commonwealth of Pennsylvania. Nevertheless, we declined to accept the proposition that there is some critical mass of sister states that would render the question of accepted medical use a foregone conclusion. Whether there are accepted medical uses for marijuana is inherently a scientific question that cannot be directly resolved by public referendum.*fn8 In any event, the manufacture, distribution, and possession of marijuana remain illegal under federal law, even when such activities promote the use of marijuana exclusively for medicinal purposes.*fn9

Marijuana's recent resurgence as a maligned-substance-turned-cure- all is not surprising. Four-thousand years ago, ancient Egyptians were using marijuana to treat everything from sore eyes to hemorrhoids. Chinese culture has recognized marijuana's medicinal properties for thousands of years, and it remains one of the fifty fundamental herbs used in traditional Chinese medicine.*fn10

Yet, history is replete with folk remedies that scientific study has ultimately proven to be ineffective or even harmful. For instance, barely a century has passed since heavily toxic mercury compounds were routinely relied upon for the treatment of syphilis and other ailments. We now know that mercury did nothing to cure syphilis or alleviate its symptoms. The ill- conceived treatment instead may have led to countless cases of mercury poisoning (which was often indistinguishable from the disease being treated). Mercury is known to have some antiseptic properties, and that attribute likely led to mercury and related compounds being used as common ingredients in numerous elixirs and potions offered to treat every ailment known to man,*fn11 despite the highly ...


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