Loading...
HomeMy WebLinkAbout01-1009 CriminalCOMMONWEALTH VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-1009 CRIMINAL DAVID A. ROSENBERGER IN RE: OPINION PURSUANT TO RULE 1925 In this case, the defendant was convicted of a count of the unlawful delivery or manufacture or possession with intent to deliver a schedule I controlled substance, namely, marijuana, and a count of the unlawful possession of drug paraphernalia. He was sentenced on November 20, 2001. The defendant has subsequently appealed. His statement of matters complained of on appeal set out twelve assignments of error all of which have a common thread. In essence, the defendant contends that the court erred in not submitting to the jury the charge of possession of a small amount of marijuana. The defendant observed that the weight of the marijuana, some taken from growing plants, was less than thirty grams, that the specific section of the drug law referring to the possession of a small amount of marijuana took precedence over the general language concerning manufacturing, and that the jury should have been allowed to consider his guilt of the lesser offense. There is little dispute concerning the facts of the case. 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 01-1009 CRIMINAL 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 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 latter 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. 2 01-1009 CRIMINAL Because the amount of marijuana actually tested weighed less than thirty grams, the defendant contends that he could be convicted of no more than the possession of a small amount of marijuana pursuant to 35 P.S. 780-113(31). That section reads as follows: (31) Notwithstanding other subsections of this section, (i) the possession of a small amount of marihuana only for personal use; (ii) the possession of a small amount of marihuana with the intent to distribute it but not to sell it; or (iii) the distribution of a small amount of marihuana but not for sale. For purposes of this subsection, thirty (30) grams of marihuana or eight (8) grams of hashish shall be considered a small amount of marihuana. The Commonwealth contends that this section has no application to a case involving the growing of marijuana. Rather, it maintains that such conduct is governed by subsection (30) of the same provision of the Controlled Substance, Drug, Device and Cosmetic 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. We agree with the prosecution, inasmuch as the word "manufacture" is specifically defined in the Act as including "propagation." See 35 P.S. 780-102. As we noted in Com. v. Michael Scott McClellen, 01-0032 Criminal: It is true, as the defendant points out, that something of an anomaly is presented by the drug law. A person found guilty of growing even a small seedling marijuana plant has, arguably, committed a felony and is subject to 01-1009 CRIMINAL imprisonment for up to five years, even if the marijuana is being grown for that person's personal use. See 35 P.S. 780-113(b)(2). Apersonwho has purchased a much larger amount of marijuana, also for his own use, would commit a misdemeanor punishable by imprisonment not to exceed one year. In other words, a defendant might procure marijuana as part of the drug trade and yet be punished less severely than a marijuana user who did not. We are not at liberty, however, to rewrite the statute to avoid the potential for an unfair result. It is, in fact, axiomatic that the letter of the statute is not to be disregarded under the pretext of pursuing its spirit. See Com. v. Reeb, 406 Pa. Super. 28, 593 A.2d 853, 856 (1991) citing 1 Pa.C.S.A. 1921. Like the McClellen case, we believe that a finding of the possession of a small amount of marijuana in the instant matter is precluded for another reason. Given the size of the fifteen plants which were seized, common sense dictates that their weight exceeded thirty grams. Admittedly, only small samples of the plants were tested. As we went on to say in McClellen: One could ask whether it is possible that a single leaf of a plant could be marijuana and the rest of the plant could be something else. One could also ask whether pigs have wings. ~ There can be no question that the burden is on the prosecution to prove the weight of a controlled substance. This is particularly so when that weight affects the sentencing of the defendant. See Com. v. Myers, 452 Pa. Super. 299, 681 A.2d 1348 (1996). Where, however, the sole question is whether the weight of the marijuana exceeds thirty grams, the court may be guided by circumstantial evidence provided, of course, that it is sufficiently compelling. See Com. v. Rickabaugh, 706 A.2d 826 (Pa. Super. 1997) (identity and weight of Lewis Carroll, Alice 's Adventures in Wonderland [the Walrus and the Carpenter st. 11]. 4 01-1009 CRIMINAL cocaine was determined to exceed 100 grams from circumstantial evidence). This is a case, of course, involving the manufacture of marijuana. Sentencing is driven not so much by the weight of the substance involved but rather the number of the plants. See 18 Pa.C.S.A. 7508. BY THE COURT, February 5, 2002 Kevin A. Hess, J. Daniel J. Sodus, Esquire Assistant District Attorney Daniel McGuire, Esquire For the Defendant :rlm