Commonwealth v. Herman
| Decision Date | 12 June 1981 |
| Citation | 431 A.2d 1016,288 Pa.Super. 219 |
| Parties | COMMONWEALTH of Pennsylvania, v. Tina Sue HERMAN, Appellant. COMMONWEALTH of Pennsylvania, v. David Alan MOSER, Appellant. |
| Court | Pennsylvania Superior Court |
Submitted March 6, 1980.
Allen H. Smith, York, for appellants.
John C. Uhler, Dist. Atty., York, for Commonwealth appellee.
Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ.
This is an appeal from the judgment of sentence by the Court of Common Pleas of York County. Appellants Tina Sue Herman and David Alan Moser were convicted by a jury on September 20, 1978 for possession of drugs with intent to deliver in violation of the Controlled Substance, Drug, Device, and Cosmetic Act. [1] After the denial of their post-verdict motions, appellant Herman was sentenced to thirty days imprisonment with a subsequent period of eleven months probation and, appellant Moser was sentenced to not less than three nor more than twelve months imprisonment. From their respective judgments of sentence, appellants filed individual appeals which were later consolidated for our review. [2] On appeal, they raise four issues seeking reversal: (1) that the Commonwealth failed to establish a proper chain of custody with respect to marijuana seized from appellants' apartment; (2) that the Commonwealth failed to prove that the particular kind of marijuana found was of the kind prohibited by law; (3) that the Commonwealth failed to adequately prove that appellants were not licensed to legally possess marijuana; and (4) that the Commonwealth failed to prove the existence of a corpus delicti independent of appellants' admissions. Since we find these issues to be devoid of merit, we affirm the judgment sentence entered by the lower court.
On March 3 1978, Pennsylvania State Police Officers Phillip George and Robert Kessler, assisted by two agents from the State Drug Enforcement Bureau and a York City Police Detective, entered the appellant's second floor apartment at 219 South Pine Street in the City of York pursuant to a search warrant. They were let into the apartment by appellant Moser, whereupon a search of the apartment ensued. In entering the bedroom Trooper George came upon a table upon which were found nine plastic bags containing varying amounts of marijuana, a plastic bag containing marijuana seeds, a scale, a shopping bag, and a cardboard box containing plastic bags and ties. These items were secured by the police officer. On top of the scale a note was found which stated as follows:
Dear Dave,
It's in the bag all weighed out. I hope you don't get mad. I'll tell you about everything when I get home.
Love you,
Approximately twenty to thirty minutes after the law enforcement agents entered the second floor apartment, appellant Herman arrived carrying groceries.
After being apprised of their constitutional rights by Trooper Kessler both appellants signed waivers, and thereupon informed the officer they had been residing together in the apartment since approximately November of 1977. Appellant Herman, in her admission, stated:
I wrote the note that was found in the bedroom to Dave.
In his admission, appellant Moser stated, "I started dealing small amounts of marijuana a couple of weeks ago, I sold nickels and dimes." [3] The police officer testified to these admissions.
The aforementioned items found on the bedroom table were secured, labeled, and placed in evidence bags at the scene of the arrest, and then taken to the State Police Laboratory in Harrisburg for analysis. At trial, James Miller, a chemist for the State Police Crime Lab testified that the seized evidence was tested and found to be marijuana, marijuana leaf fragments and marijuana seeds. The cumulative weight of the marijuana was 398.8 grams. There are approximately 454 grams to a pound.
The Commonwealth offered into evidence two "Certifications of Non-Licensure" under the seal and signature of the Commissioner of Professional and Occupational Affairs. The certificates reflected that neither appellant Moser nor appellant Herman was licensed to order, prescribe or possess drugs. Appellants chose not to testify on their own behalf.
Appellants' first contention is that the Commonwealth failed to establish a proper chain of custody regarding the marijuana. We have found this contention to be without merit. From the testimony offered by the two State troopers, in conjunction with that offered by the police chemist, it is evident that the marijuana seized at appellants' residence was the same controlled substance examined by the chemist and subsequently submitted to the trial court as evidence.
There is no requirement that the Commonwealth establish the sanctity of its exhibits beyond all moral certainty. It is sufficient that the evidence, direct and circumstantial, establish a reasonable inference that the identity and condition of the exhibits remained unimpaired until they were surrendered to the court.
Commonwealth v. Miller, 234 Pa.Super. 146, 155, 339 A.2d 573, 578 (1975).
Appellants, however, maintain that it was incumbent upon the Commonwealth to have produced as a witness, John Snyder, at custodian of the crime lab, in order to properly establish a chain of custody. The minor role played by the custodian in "logging" the evidence is not of sufficient magnitude to require his testimony. The chemist's testimony regarding the lab procedure was more than adequate in establishing the requisite chain of custody.
In Commonwealth v. Rick, 244 Pa.Super. 33, 366 A.2d 302 (1976), this Court was faced with the same question concerning whether or not a chain of custody was properly established. In the context of challenging his conviction for driving an automobile while under the influence of alcohol, appellant Rick contended that the trial court erred by admitting evidence of the alcohol content in a blood sample taken from him after his accident. A physician testified at trial that he personally extracted the blood from the defendant at the hospital, labeled it accordingly, and handed it to an unknown technician who placed it in the lab toxicology refrigerator. Since "it is well established that the Commonwealth need not produce every individual who came into contact with an item of evidence," id. at 38, 366 A.2d at 304, this Court there held that the Commonwealth's failure to produce the lab technician as a witness was insufficient grounds for reversal. See also Commonwealth v. Procter, 253 Pa.Super. 369, 385 A.2d 383 (1978); Commonwealth v. Jenkins, 231 Pa.Super. 266, 332 A.2d 490 (1974). Accord U.S. v. De Larosa, 450 F.2d 1057 (3d. Cir. 1971) cert. denied sub nom. Baskin v. U.S., 405 U.S. 927, 92 S.Ct. 978, 30 L.Ed.2d 800 (1972).
In the case at bar, the testimony offered at trial by the Commonwealth regarding the procedure followed in securing, labeling, transferring, and examining the seized marijuana reflects a practice which insured the integrity and sanctity of the evidence. To expect the Commonwealth to produce every possible individual who may have had fleeting contact with the evidence would cause unnecessary logistical problems concerning chain of custody. We, therefore, find appellants' contention in this regard to be totally without merit.
Secondly, appellants contend that the chemist failed to testify at trial that the marijuana analyzed was the type prohibited by law. Appellants' counsel, in his brief, states: "There are also species of marijuana known as Cannabis indicia and Cannabis americana, and possession, use or sale of these types of marijuana is not specifically prohibited by law." This distinction postulated by counsel has no support in statute or case law.
Marijuana is a Schedule I drug under Section 4 of the Controlled Substance, Drug, Device and Cosmetic Act. 35 P.S. § 780-104(1)(iv). It is defined to consist of "all forms, species and/or varieties of the genus Cannabis sativa L." 35 P.S. 780-102(b). The term marijuana is of Mexican origin referring to the flowering tops and dried leaves of the hemp plant. Leary v. U.S., 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). However, because of the difference in soil content and climate, the plant develops different physical characteristics in various parts of the world. Thus, Cannabis indicia is the name given to Cannabis sativa L. grown in India, see 28 C.J.S. Drugs and Narcotics § 3 (Supp. 1974), whereas Cannabis americana is the name given to marijuana which is yielded by the Cannabis sativa L. plant cultivated in this country, State v. Navaro, 83 Utah 6, 26 P.2d 955 (1957). From the statutory definition of marijuana quoted above, [4] it is apparent that the legislature intended to embrace all species of the genus Cannabis sativa L. as forms of marijuana prohibited by the Act. See U.S. v. Honneus, 508 F.2d 566 (1st Cir. 1974); U.S. v. Moore, 446 F.2d 448 (3d Cir. 1971) cert. denied 406 U.S. 909, 92 S.Ct. 1617, 31 L.Ed.2d 820 (1972). We, therefore, hold that the chemist's failure to identify the species of the analyzed marijuana is of no consequence.
The third contention raised by appellants involves the introduction of documents which indicated that neither appellant was licensed by this Commonwealth to lawfully possess marijuana. The documents at issue are "Certifications of Non-Licensure" issued by the Commissioner of the Professional and Occupational Affairs. [5] The documents were duly signed and imprinted with the Seal of the Commonwealth.
Appellant's entire statement of the question and argument on this third issue consisted of the following three sentences:
3. The statement of non-licensure of the Appellants should not have been admitted into evidence.
The Commonwealth introduced into evidence statements which...
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