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[U] Commonwealth v. Colon-Zavala

Superior Court of Pennsylvania

March 7, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
ALEX COLON-ZAVALA Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence March 22, 2013 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0001336-2012

BEFORE: MUNDY, J., OLSON, J., and STABILE, J.

MEMORANDUM

MUNDY, J.

Appellant, Alex Colon-Zavala, appeals from the March 22, 2013 aggregate judgment of sentence of 11 to 36 months' imprisonment imposed after he was found guilty of manufacture of a controlled substance (marijuana), possession of drug paraphernalia, and two counts of possession of a small amount of marijuana.[1] After careful review, we affirm the judgment of sentence.[2]

The trial court summarized the relevant facts of this case as follows.

[O]n August 16, 2012, search warrants were executed at 638 West Mahanoy Street and East Pine Street in the Borough of Mahanoy City. The 638 Mahanoy Street address was a three-story building with a barber[]shop on the first floor. The 27 East Pine Street address was a three-story residence.
Trooper Paul Gauntlett of the Pennsylvania State Police helped search 638 West Mahanoy Street. He entered on the first floor and went to the second floor, where he found a marijuana growing operation. Specifically, he testified to finding three potted marijuana plants, soil, water, a fan and ventilation system, [and] an ultraviolent light over the plants and fertilizer.
Corporal James Cuttitta of the Pennsylvania State Police also participated in the search. He found a digital scale.
Trooper Michael Lane also helped search 638 West Mahanoy Street. He had to force his way through a locked door to gain access to the third floor, where he found [Appellant] crouched behind something in the attic.
Trooper Lane helped to search 27 East Pine Street. Inside he found three bedrooms. One was empty; the second was a child's room; and inside the third he found adult male and female clothes. He also found mail addressed to [Appellant].
At that address, Trooper William Volchko found a garbage bag containing two marijuana plants. No items for ingesting or smoking marijuana were found in the house.
Mahanoy City police officer Michael Dissinger searched the basement at 27 East Pine Street and found there [sic] several marijuana plants, lights and fans.

Trial Court Opinion, 6/10/13, at 2-3.

Appellant was subsequently arrested in connection with this incident, and charged with possession with intent to deliver a controlled substance (PWID), [3] manufacture of a controlled substance, and possession of drug paraphernalia. Prior to trial, the Commonwealth filed a motion to amend the criminal information to add two counts of possession of a small amount of marijuana. The trial court granted said motion on February 5, 2013. That same day, Appellant proceeded to a jury trial and was found guilty of one count each of manufacture of a controlled substance and possession of drug paraphernalia. The record further reflects that the trial court found Appellant guilty of two counts of possession of a small amount of marijuana, but granted Appellant's motion for judgment of acquittal on the PWID charge. See N.T., 2/5/13, at 146; Trial Court Order, 2/5/13. As noted, on March 22, 2013, Appellant was sentenced to an aggregate term of 11 to 36 months' imprisonment. Appellant did not file any post-sentence motions. This timely appeal followed on April 12, 2013.[4]

On appeal, Appellant raises the following issue for our review.

[1.] Is the verdict contrary to law[?]

Appellant's Brief at 2.

More specifically, the crux of Appellant's claim is that his conviction for manufacture of a controlled substance cannot stand, as the Commonwealth only proved that Appellant was growing marijuana for personal use, and that personal use should not fall within the scope of the term "manufacturing" under Section 780-113(a)(30). Id. at 11-14; see also Appellants' Amended Concise Statement of Matters Complained of on Appeal, 5/16/13, at ¶¶ 1-2.

Appellant's claim involves the statutory interpretation of the Controlled Substance, Drug, Device and Cosmetic Act (CSDDCA), 35 P.S. § 780–101 et seq., which "implicates a question of law." Commonwealth v. Dixon, 53 A.3d 839, 842 (Pa.Super. 2012) (citation omitted). It is well settled that … [o]n questions of law, our standard of review is de novo, and our scope of review is plenary." Commonwealth v. Deck, 954 A.2d 603, 606 (Pa.Super. 2008), appeal denied, 964 A.2d 1 (Pa. 2009). When construing a statute, our objective is to ascertain and effectuate the legislative intent. 1 Pa.C.S.A. § 1921(a). "Every statute shall be construed, if possible, to give effect to all its provisions." Id. "In pursuing that end, we are mindful that 'when the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.'" Commonwealth v. Shiffler, 879 A.2d 185, 189 (Pa. 2005), quoting 1 Pa.C.S.A. § 1921(b). "When the language of a statute is clear and unambiguous, the judiciary must interpret the provisions according to their plain meaning and common usage." Commonwealth v. Love, 957 A.2d 765, 767 (Pa.Super. 2008). However, when the words of a statute are not explicit, a court should resort to other considerations including the intent of the General Assembly in enacting the provision. Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.Super. 2008), appeal denied, 955 A.2d 356 (Pa. 2008); 1 Pa.C.S.A. 1921(c).

Herein, Appellant does not specifically challenge whether the Commonwealth failed to prove the elements of the offense of manufacture of a controlled substance. Rather, he contends that the evidence at trial that he was growing marijuana for personal use does not constitute "manufacture" under Section 780-113(a)(30). Appellant's Brief at 7-8, 11-12. For the following reasons, we disagree.

The crime of manufacture of a controlled substance provides, in pertinent part, as follows.

§ 780-113. Prohibited acts; penalties

(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
(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)(30).

As noted by the trial court, this Court has specifically held in Commonwealth v. Van Auan, 952 A.2d 1183 (Pa.Super. 2008), appeal denied, 965 A.2d 245 (Pa. 2009), that "growing even a small amount of marijuana solely for personal use constitutes the 'manufacture' of a controlled substance within the meaning of, and in violation of, [Section 780-113(a)(30)]." Id. at 1185. In support of this conclusion, the Van Auan Court reasoned as follows.

[T]he CSDDCA criminalizes the "manufacture" of a controlled substance. The CSDDCA defines "manufacture" as "the production, preparation, propagation, compounding, conversion or processing of a controlled substance…[.]" 35 P.S. § 780–102(b) (emphasis added). The statute further defines "production" to encompass the "manufacturing, planting, cultivation, growing or harvesting of a controlled substance…[.]" Id. (emphasis added).
Section 780–113(a)(30) of the CSDDCA clearly and unambiguously proscribes, inter alia, the unauthorized growing of controlled substances. It is undisputed that, for purposes of the CSDDCA, marijuana is a controlled substance. 35 P.S. § 780– 104(1)(iv). Appellant's invitation to interpret the Legislature's intent as supporting an alternative reading would directly contravene the unambiguous language of the statute. Specifically, Appellant encourages th[is] Court to recognize an exception in circumstances where an individual grows a small quantity of marijuana in order to sustain a personal habit.
No provision of the CSDDCA can be construed to allow for such an exception.

Id. (citations and emphasis in original). Although Appellant would have us do so, we decline to "reconsider" the holding of the well-reasoned Van Auan decision. See Appellant's Brief at 6. This Court has long recognized that we are bound by existing precedent under the doctrine of stare decisis. See Commonwealth v. Helsel, 53 A.3d 906, 916 (Pa.Super. 2012), appeal denied, 63 A.3d 1244 (Pa. 2013).

Based on the foregoing, Appellant's claim that the verdict for manufacture of a controlled substance "is contrary to law" is without merit. Accordingly, we affirm the March 22, 2013 judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.


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