Where Evidence to Prove Drug Possession is Insufficient, Admission of a Drug Analysis Certificate is not Harmless

February 19, 2013
By Parker Scheer LLP on February 19, 2013 10:19 AM |

Where the evidence to prove drug possession is insufficient, the court's admission of a drug analysis certificate is not harmless to the defendant's conviction.

The defendant, Malone, was arrested by Officer Mark Templeman for possession of marijuana. At trial, Officer Templeman testified that the defendant was in possession of a green leafy vegetable matter. Officer Templeman also testified that the green leafy substance was packaged in such a manner consistent with street level distribution of marijuana. Based on his experience and the appearance of the green leafy substance, the defendant was arrested and charged with possession of marijuana. Officer Templeman gave no testimony regarding the odor of the green leafy substance.

According to the court, only describing the appearance of the substance is insufficient to prove that the substance is, in fact, the alleged drug, which in this case was marijuana. "[T]he Commonwealth here presented 'no evidence that the officers detected any identifiable odors or recognized any other distinguishing characteristics of the substances beyond their appearance." Further, "while the manner of packaging is certainly evidence of distribution, it is not conclusive on the chemical composition of the charged substance. ... Therefore, testimony on packaging cannot overcome the improper admission of a drug analysis certificate."

Also, even though "the defendant made several admissions that the substance was marijuana, both in his direct examination and during his counsel's closing arguments" there is no evidence that the defendant ever used marijuana," hence the defendant does not have sufficient experience to testify that the green leafy substance was marijuana. "And a defense 'construed around an admission' that the green leafy substance was marijuana does not relieve the Commonwealth of proving the substance was, in fact, marijuana ..."
Order denying the defendant's motion for a new trial on the possession of marijuana is reversed. Commonwealth v. Malone

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