HomeMy WebLinkAbout01-1009 CriminalCOMMONWEALTH
VS.
DAVID A. ROSENBERGER
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
01-1009 CRIMINAL
IN RE: SUPPLEMENTAL OPINION PURSUANT TO RULE 1925
This case has been remanded from the Superior Court with an instruction to file a Rule
1925 opinion on the claim of the defendant that the evidence at his trial was insufficient to
sustain a conviction for the manufacture of marijuana. In our earlier opinion, we addressed the
defendant's contention that the court erred in not submitting to the jury the charge of the
possession of a small amount of marijuana. The crux of his argument, throughout, has been that
the amount of marijuana tested by the state police was less than thirty grams and that therefore
the evidence was insufficient to allow the conclusion that the remaining green, leafy material
was marijuana. In explaining why his contention was erroneous, we intended to address the
sufficiency of the evidence establishing that all the plants seized were marijuana. Apparently,
our earlier opinion was not sufficiently clear in this regard.
The facts of this case were outlined in our opinion of February 5, 2002, as follows:
On April 4, 2001, the Pennsylvania State Police responded to the residence of Mr. Rosenberger
on Southside Drive in Newville, Cumberland County, Pennsylvania. The police believed Mr.
Rosenberger was threatening suicide. No one would come to the door of the residence and the
police officers gave repeated warnings that they would forcefully enter the residence if there was
no response. Eventually, the residence was entered forcibly and a search for Mr. Rosenberger
ensued. They found a door to a bedroom which had been barricaded. The police entered the
room with some difficulty and observed the defendant lying on a bed and bleeding from his
01-1009 CRIMINAL
wrists. An ambulance was summoned immediately. At the request of responding medics, a
search was conducted for any pills or other medications which the defendant may have taken. It
was in the course of this search that marijuana plants and a grow light were discovered in a
closet. Trooper Oberdorf indicated that he had no difficulty recognizing the plants as marijuana
plants. They were later determined to be fifteen plants varying in size from approximately eight
inches to two feet.
Trooper Keith Leydig was summoned to the scene. Trooper Leydig was assigned to the
Bureau of Drug Law Enforcement and specifically to the Troop H Tactical and Narcotics Team.
He testified that the time of year was appropriate for starting marijuana plants indoors. He
opined that the closet containing the marijuana plants had been designed for just such a purpose.
The lighting and the ventilation of the closet was designed to insure the rapid growth of
marijuana plants.
Also found in the closet was a box containing marijuana which was being dried. The
weight of this marijuana was subsequently determined to be 11.3 grams. The growing plants in
this case had been taken from their containers and placed in a bag. Tests were conducted on
small samples of the presumably homogeneous material in the bag. It was found to be marijuana
though the live plant material was not weighed. At trial, Trooper Leydig estimated the weight of
the plant material to be between twenty-eight and fifty-two grams.
As we noted in our prior opinion, all of the plants seized appeared to be the same kind of
plant. Trooper Leydig recognized the plants as marijuana and a lab test of some of the plants
confirmed his conclusion. As we also observed in our earlier opinion, the assertion that one leaf
on a plant could be marijuana and the rest of the plant something else is absurd.
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01-1009 CRIMINAL
In short, the evidence that the defendant was growing fifteen marijuana plants was not
only sufficient but overwhelming. When reviewing the sufficiency of the evidence, the court
must, of course, view all of the evidence and all reasonable inferences therefrom in the light most
favorable to the Commonwealth. Com. v. Weston, 749 A.2d 458 (Pa. 2000). In this case, where
fifteen plants were perceived as marijuana and where a random test confirmed the identity of this
presumably homogeneous material, a reasonable inference was that all of the plants involved
were marijuana. Clearly, the jury was warranted in its conclusion that the defendant was guilty
of "manufacturing" marijuana. The question of whether the defendant was "manufacturing"
marijuana within the meaning of the statute was discussed in our prior opinion.
May 1, 2003
Daniel J. Sodus, Esquire
Assistant District Attorney
Daniel McGuire, Esquire
For the Defendant
:rlm
Kevin A. Hess, J.
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