COM. v. BURNSWORTH

OPINION

MONTEMURO, Justice.

Appellant, the Commonwealth of Pennsylvania, appeals from a judgment of sentence entered by the Erie County Court of Common Pleas in which the common pleas court sentenced Appellee, Mark Allen Burnsworth, to six to twelve months imprisonment, followed by forty-eight months of probation. In fashioning such a sentence, the common pleas court refused to impose a minimum mandatory sentence as required by our legislature. Instead, the sentencing court declared that the mandatory sentencing provisions of 18 Pa. C.S. § 7508(a)(1)(i), (ii), and (iii), relating to "live plants," were unconstitutional.1

Burnsworth was charged with two counts of unlawful manufacturing of marijuana2 and two counts of possession with intent to deliver marijuana plants in violation of 35 P.S. § 780-113(a)(30).3 On May 11, 1994, Burnsworth appeared for trial. Nevertheless, after consultation with his attorney, and after being notified that the Commonwealth would be seeking the application of the mandatory sentencing provisions set forth in 18 Pa.C.S. § 7508(a)(1)(i) and (iii), Burnsworth pled guilty to the offenses. As a specific condition of his plea agreement, Burnsworth retained the right to contest the application of the mandatory sentence provisions, specifically with respect to the number of marijuana plants confiscated.

During the July 8, 1994 sentencing hearing, the Commonwealth presented the testimony of Officer Edward Podpora of the Girard Police Department. Officer Podpora, present when the marijuana plants were confiscated, testified that with respect to Count 2738, sixteen "live" marijuana plants were found at Burnsworth's residence. He stated that the plants were four to five feet high, and that "a majority of them were planted in five gallon pails . . . [and that t]here were also a few planted into the ground at the residence." (N.T. 7/8/94 at 11.) Officer Podpora also testified that in regard to Count 2739, he was again present when sixty-one marijuana plants were confiscated from a nearby fenced-in area.4

At the conclusion of Officer Podpora's testimony, Burnsworth introduced the testimony of Dr. Larry Gauriloff, an assistant professor of biology at Mercyhurst College.5 Dr. Gauriloff testified that in addition to propagation by seed, marijuana will often germinate by a lateral root system, meaning that lateral shoots come up from the roots. (N.T. 7/8/94 at 29.) The following testimony ensued between defense counsel and Dr. Gauriloff:

(N.T. 7/8/94 at 30.)

Dr. Gauriloff also offered testimony in regard to the weight of the plants at issue in this case:

(N.T. 7/8/94 at 34.) The court further inquired whether Dr. Gauriloff had an opinion on the weight of the sixteen plants. Dr. Gauriloff responded: "Probably in terms of total weight I would say — I'll give them six, probably seven grams. Yeah, they are real sparse looking. But probably about six, seven grams of wet weight" which would correspond to about "four ounces, three ounces, three, three and a half." (N.T. 7/8/94 at 35.)

Based upon the evidence presented, the sentencing court declared that the mandatory sentencing provisions of 18 Pa. C.S. § 7508(a)(1) were unconstitutional as

(N.T. 7/8/94 at 48-49.) Moreover, the sentencing court determined that no rational basis existed for the disparity between the statute's weight and "live" plant provisions. Commonwealth v. Burnsworth, Nos. 2738 of 1993 & 2739 of 1993, slip op. at 1-2 (C.C.P. Erie County, September 15, 1994). The Commonwealth appealed.

We begin by noting that when confronted with the interpretation of a statute, we are guided by the principles of the Statutory Construction Act, Act of December 6, 1972, P.L. 1339, No. 290, 1 Pa.C.S. §§ 1901-1991. Moreover, it is well established that all legislation enacted by the General Assembly carries a strong presumption of constitutionality, 1 Pa.C.S. § 1922; Curtis v. Kline, 542 Pa. 249 n. 3, 666 A.2d 265 n. 3 (1995); Commonwealth v. Blystone, 519 Pa. 450, 463, 549 A.2d 81, 87 (1988), aff'd, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990), and any party challenging a statute's constitutionality bears a heavy burden to demonstrate that the legislation clearly, palpably and plainly violates the terms of the constitution. Commonwealth v. Bell, 537 Pa. 558, 569, 645 A.2d 211, 217 (1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1106, 130 L.Ed.2d 1072 (1995); Commonwealth v. Nicely, 536 Pa. 144, 150, 638 A.2d 213, 216 (1994).

With that in mind, we shall commence our discussion of this case by addressing the sentencing court's opinion that the term "plant," as used by the legislature in 18 Pa.C.S. § 7508, is unconstitutionally vague and overbroad.

It is well settled that when the language of a statute is clear and unambiguous, the statute must be interpreted in accordance with its plain and common usage. Commonwealth v. Corporan, 531 Pa. 348, 351, 613 A.2d 530, 531 (1992). Our legislature specifically has provided that "[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage . . .," 1 Pa.C.S. § 1903(a), and furthermore, that only technical words are to be construed according to their peculiar meaning. Id.

Herein, the legislature adopted the following sentencing requirements:

(emphasis supplied).

We believe that this language is clear and unambiguous, and as such, that we should construe the term "plant" according to its common usage. Even Dr. Gauriloff testified that while, from a biological and research point of view, lateral roots and stems could be considered as a single plant, "[m]any people counting them, certainly if they were pulled out of the ground, would count them as individual plants." (N.T. 7/8/94 at 30.) Dr. Gauriloff also stated:

(N.T. 7/8/94 at 30-31.) In fact, he opined that once the "plant" is torn from the earth, the identity of whether it was a single plant or a shoot from one plant's lateral root structure essentially would be indeterminable. (N.T. 7/8/94 at 31.)

While not controlling, we find the opinion of the United States Court of Appeals for the Tenth Circuit in United States v. Eves, 932 F.2d 856 (10th Cir.1991), cert. denied, 502 U.S. 884, 112 S.Ct. 236, 116 L.Ed.2d 192 (1991), to be instructive. In that case, a very similar argument to the one raised in this case was lodged against a similar federal sentencing statute. From eight parent plants, the defendant grew over 1000 cuttings. The defendant argued that in order to determine if a "plant" was actually a plant, it was necessary to engage in a viability analysis. The Tenth Circuit Court of Appeals disagreed. Instead, the court opined that Congress intended the term "marijuana plant" to

Id. at 860. Accordingly, the federal appeals court determined that as a matter of statutory interpretation, the word "plant" should be interpreted consistent with its commonplace meaning,6 and in so ruling, specifically rejected defendant's argument that a more scientific definition should be applied. Id. at 857. Furthermore, in United States v. Robinson, 35 F.3d 442 (9th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1268, 131 L.Ed.2d 146 (1995), the United States Court of Appeals for the Ninth Circuit recognized that an organism should have three readily apparent characteristics in order to be classified as a "plant" pursuant to the ordinary meaning of that word — roots, stems and leaves. Id. at 446. As we have already indicated, we agree that such a commonsensical definition of the term "plant" should be applied in this instance.7

Another precept of statutory construction is that the legislature cannot be presumed to intend a result that is absurd, impossible of execution or unreasonable. 1 Pa.C.S. § 1922(1). The legislature originally enacted this particular section in an attempt to curb drug trafficking.8 By adding language to trigger the terms of the mandatory sentence when the marijuana involved is a specified number of plants, it is clear that the legislature intended to deter the growing of marijuana.9 To conclude, as Burnsworth would have us do, that one "plant" could produce an indefinite number of shoots thereby providing a large quantity of marijuana for harvest, but yet be considered only one plant so as to evade the reach of the statute, would be directly contrary to the obvious intent of the legislature. Accordingly, we do not agree with the Erie County Court of Common Pleas that 18 Pa.C.S. § 7508(a)(1)(i), (ii) and (iii) are unconstitutionally vague.10

Next, we turn to the Commonwealth's argument that the sentencing court also erred in concluding that no rational basis exists for the sentencing statute.

Under a due process/equal protection analysis, it is well established that if a classification does not impermissibly interfere with a fundamental right or disadvantageously affect a suspect class, the classification will be upheld as long as it passes the "rational basis" test. Plowman v. Commonwealth, Dep't of Transp., 535 Pa. 314, 635 A.2d 124 (1993); James v. Southeastern Pennsylvania Transp. Auth. (SEPTA), 505 Pa. 137, 477 A.2d 1302 (1984). Therefore, since the sentencing statute at issue in this case, 18 Pa.C.S. § 7508, does not implicate a fundamental constitutional right or burden a suspect class, the legislative classification treating growers of marijuana differently from individuals who possess certain quantities of marijuana, must be evaluated under the "rational basis" analysis.

To do so, we have set forth a two step approach. See Curtis v. Kline, 542 Pa. 249, 666 A.2d 265 (1995). First, we must determine whether the challenged statute is designed to further a legitimate state interest or public value. Id. at 257-58, 666 A.2d at 269. If it is, we must then determine whether the statute is reasonably related to accomplishing the articulated state interest. Id. Essentially, we must address whether the statute has some relationship to the interest which the legislature seeks to promote and whether that relationship is reasonable. We are well aware, however, that "the Constitution does not require situations `which are different in fact or opinion to be treated in law as though they were the same.'" Wells v. Civil Service Comm'n, 423 Pa. 602, 604, 225 A.2d 554, 555, cert. denied, 386 U.S. 1035, 87 S.Ct. 1487, 18 L.Ed.2d 598 (1967) (quoting Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1948)).

On March 25, 1988, our legislature enacted P.L. 262, No. 31, § 13, 18 Pa.C.S. § 7508(a)(1)(i), (ii) and (iii), requiring the imposition of minimum mandatory sentences for individuals who violate certain provisions of the Controlled Substance, Drug, Device and Cosmetic Act (Act) when a specified amount of marijuana is involved.11 Noting the language used by Senator Greenleaf in his discussion of the legislation, see supra note 8, we have already recognized that the intent of the legislature in enacting this particular sentencing statute was to invoke harsher minimum penalties for drug trafficking. Commonwealth v. Bell, 537 Pa. 558, 570, 645 A.2d 211, 217 (1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1106, 130 L.Ed.2d 1072 (1995). In 1990, the legislature amended Section 7508 to include the imposition of the mandatory sentences for violations of the Act which involved a specified number of marijuana plants.

Consistent with the stated purpose of Section 7508, we believe that increased penalties for violations involving actual marijuana plants was enacted to discourage or, in fact, deter the production, or growth, of marijuana. We have held that it is not necessary to conclude that the challenged statute will be absolutely successful in attaining the legislative objective; rather, we need only conclude that the statute is rationally related to the interest that the legislature seeks to promote. Plowman, 535 Pa. at 320, 635 A.2d at 127. Indeed, we need only "identify potential benefits to our citizens as a result of the promulgated legislation." Id. In this instance, clearly, if the manufacture, or growth, of marijuana can be deterred, less marijuana will be available to sell. Indeed, the cultivation of marijuana plants could be considered far more dangerous to the citizens of this Commonwealth than the possession of the harvested product. Consequently, we find that the mandatory sentencing provisions of Section 7508 relating to live marijuana plants are, in fact, reasonably related to the legislature's attempt to curtail drug trafficking.

Accordingly, the opinion of the Erie County Court of Common Pleas is reversed and the case is remanded for sentencing consistent with this opinion.

MONTEMURO, J., participates by designation as a senior judge as provided by Rule of Judicial Administration 701(f).