Commonwealth Of Pa. v. Mohamud
| Decision Date | 06 December 2010 |
| Docket Number | No. 259 WDA 2010,259 WDA 2010 |
| Citation | 2010 PA Super 224 |
| Parties | COMMONWEALTH OF PENNSYLVANIA, Appellee v. ABDIRISAK MOHAMUD, Appellant |
| Court | Pennsylvania Superior Court |
2010 PA Super 224
COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
ABDIRISAK MOHAMUD, Appellant
No. 259 WDA 2010
SUPERIOR COURT OF
PENNSYLVANIA
Filed: December 6, 2010
BEFORE: MUSMANNO, DONOHUE and OTT, JJ.
OPINION BY DONOHUE, J.:
Appellant, Abdirisak Mohamud ("Mohamud"), appeals from the trial court's January 14, 2010 sentence imposing 246 to 492 days of imprisonment, followed by two years of probation for possession with intent to deliver a controlled substance.1 Mohamud challenges Pennsylvania's Controlled Substance, Drug, Device and Cosmetic Act ("the Act"), 2 35 P.S. § 780-101-§ 780-141, as violative of the Due Process Clause of the Fourteenth Amendment to the United States Constitution for lack of fair
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warning of the proscribed conduct for which he was convicted. After careful analysis, we affirm the judgment of sentence.
The trial court recited the following facts in its Pa.R.A.P. 1925(a) opinion:
On the morning of April 16, 2009, Detective Robert O'Neill, of the Cranberry Township Police Department, received information [...] that a UPS Store in Cranberry Township had received suspicious packages. At around 12:30 P.M., Detective O'Neill arrived at the UPS Store and spoke with the employees there who explained the situation and stated that someone with a broken accent had called and indicated that he was going to pick up the packages. Approximately four hours later, the defendant arrived at the UPS Store in a white cargo van, circled around the plaza in which the store was located, and parked directly in front of the UPS Store. Detective O'Neill testified that the van had Ohio plates and that the defendant was looking around suspiciously. After observing the defendant enter and later exit the UPS Store, Detective O'Neill received a call from the manager of the UPS Store during which he indicated that the suspicious packages had been picked up. Detective O'Neill observed the defendant open the back of his van and place the boxes inside.
Detective O'Neill observed the defendant talking on a cell phone in an unrecognized foreign language. He then approached the defendant, who was nervous, and began a conversation with him. When asked about what was contained in the packages, the defendant initially declined to answer. The defendant agreed to accompany Detective O'Neill to the police station. Once there the defendant was given and waived his Miranda[3] rights. The defendant acknowledged that the packages contained [the plant catha edulis].
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Detective O'Neill obtained the defendant's permission to open the packages and upon doing so discovered that the packages did in fact contain khat. During the interview, the defendant admitted that he knew the packages contained an illegal substance and admitted to having an intention to deliver the khat to another individual.
The khat was sent to the crime lab in Greensburg where it was tested by Lisa Moore, an expert in forensic science, drug identification, and drug analysis. Upon analyzing the substance using a gas chromatograph-mass spectrometer, Ms. Moore concluded that the khat contained cathinone, a Schedule I controlled substance.
Trial Court Opinion, 3/16/10, at 2-3.
Based on these facts, which are not in dispute, the trial court, sitting as factfinder, found Mohamud guilty of possession with intent to deliver a controlled substance. This timely appeal followed. Mohamud raises three issues which we have reordered for clarity of analysis:
I. Whether 28 Pa. Code § 25.72(b)(6)(xxxvi), which prohibits the illegal possession with intent to deliver any "material, compound, mixture, or preparation" containing cathinone, includes catha edulis?
II. Whether prosecution of a person for catha edulis under a regulation prohibiting possession of a material, compound, mixture or preparation which contains any quantity of... cathinone" violates the Fair Warning requirements of the Due Process Clause of the Fourteenth Amendment?
III. Whether there was sufficient evidence to convict the defendant of possession with intent to deliver a schedule I controlled substance wherein the
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alleged schedule I controlled substance was the plant catha edulis, commonly known as "khat"?
Mohamud's Brief at 8.
Mohamud's issues present a question of first impression in Pennsylvania: whether a provision in the Act, prohibiting unauthorized possession of material containing cathinone applies to possession of the plant catha edulis (commonly known as "khat"), in which cathinone naturally occurs. The Act does not list catha edulis or khat as a controlled substance. In point of fact, Mohamud admits that he knew khat is illegal. While our analysis will end there, it cannot begin there, as we must first ascertain whether the Act as applied to Mohamud passes muster as a matter of Constitutional law. See United States v. Hussein, 351 F.3d 9, 15 (1st Cir. 2003) (Noting that the defendant's Due Process argument amounted to an assertion that he "could not have known, as a matter of law, that khat was a controlled substance" and that the defendant's knowledge, as a matter of fact, of khat's illegality, was relevant to the defendant's challenge to the sufficiency of the evidence.) (emphasis in original).
Cathinone is a Schedule I controlled substance. 28 Pa. Code § 25.72(b)(6)(xxxvi). Khat4 is a plant grown in the horn of Africa and the Arabian Peninsula. Id. at 11. "For centuries, persons in East African and Arabian Peninsular countries such as Somalia, Kenya, and Yemen have
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chewed or made tea from the stems of the native khat shrub, which is known to have stimulant properties. Khat is often consumed in social settings, and [...] is legal in many parts of East Africa, the Middle East, and Europe[.]" United States v. Caseer, 399 F.3d 828, 830 (6th Cir. 2005). "When first cut, [khat] leaves contain the chemical stimulant cathinone, which over time degrades into the milder stimulant cathine.[5]" Hussein, 351 F.3d at 11. Chewing of khat containing cathinone results in "hyperalertness, hyperactivity, and elevated respiration and heart rate." State v. Ali, 613 N.W.2d 796, 797 (Minn. Ct. App. 2000).
Mohamud's statutory construction and Due Process arguments are interrelated. We will therefore consider them together. Mohamud asserts that the trial court erred in interpreting 28 Pa. Code § 25.72(b)(6)(xxxvi) to prohibit possession of khat because khat is not expressly mentioned anywhere in the Code.6 Thus, Mohamud argues that § 25.72(b)(6)(xxxvi) violates Due Process in that he did not have fair warning that his conduct was illegal. Since Mohamud presents us with questions of law, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Ludwig, 583 Pa. 6, 15 n.5, 874 A.2d 623, 628 n.5 (2005).
Due process mandates that a criminal statute not be vague:
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A statute is vague if it fails to give people of ordinary intelligence fair notice as to what conduct is forbidden, or if they cannot gauge their future, contemplated conduct, or if it encourages arbitrary or discriminatory enforcement. A vague law is one whose terms necessarily require people to guess at its meaning. If a law is deficient-vague-in any of these ways, then it violates due process and is constitutionally void.
By contrast, to be valid, a penal statute must set forth a crime with sufficient definiteness that an ordinary person can understand and predict what conduct is prohibited. The law must provide reasonable standards which people can use to gauge the legality of their contemplated, future behavior.
At the same time, however, the void for vagueness doctrine does not mean that statutes must detail criminal conduct with utter precision. Condemned to the use of words, we can never expect mathematical certainty from our language. Indeed, due process and the void for vagueness doctrine are not intended to elevate the practical difficulties of drafting legislation into a constitutional dilemma. Rather, these doctrines are rooted in a rough idea of fairness. As such, statutes may be general enough to embrace a range of human conduct as long as they speak fair warning about what behavior is unlawful. Such statutes do not run afoul of due process of law.
Finally, when evaluating challenges to a statute-whether those challenges are based on vagueness... or any other considerations-we must also keep in mind that there is a strong presumption that legislation is constitutional. A party challenging legislation bears a heavy burden to prove otherwise. Accordingly, this Court will strike the statute in question only if [the challenger] convinces us that it clearly, palpably and plainly violates the federal or state constitutions.
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Commonwealth v. Baxter, 956 A.2d 465, 468-469 (Pa. Super. 2008) (en banc) (internal citations and quotation marks omitted), appeal denied, 600 Pa. 773, 968 A.2d 1280 (2009). Courts are obligated to avoid constitutional difficulties and construe statutes in a constitutional manner if possible. Ludwig, 583 Pa. at 15, 874 A.2d at 628.
"Vague laws are subject to particular scrutiny when criminal sanctions are threatened or constitutional rights are at risk." Caseer, 399 F.3d at 835. "Vagueness may invalidate a criminal statute if it either (1) fails to provide the kind of...
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