Opinion
November 18, 1982.
Motor vehicle — Forfeiture of vehicle — Standard of proof — The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233 — Transcript of prior proceedings.
1. The forfeiture of a motor vehicle is properly ordered when the Commonwealth proves by a preponderance of the evidence the requirements for the forfeiture of a vehicle under provisions of The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, and declarations against interest made by the vehicle operator in prior proceedings are properly admitted in the forfeiture proceeding when properly certified under provisions of the Judiciary Code, 42 Pa. C. S. § 6106. [82]
Submitted on briefs June 7, 1982, to President Judge CRUMLISH, JR. and Judges WILLIAMS, JR. and DOYLE, sitting as a panel of three.
Appeal, No. 1049 C.D. 1981, from the Order of the Court of Common Pleas of Montgomery County in case of Commonwealth of Pennsylvania v. One 1978 Porsche Coupe, No. 415 July 1980.
Petition to the Court of Common Pleas of Montgomery County for forfeiture of vehicle. Forfeiture ordered. SMILLIE, J. Appeal filed in the Commonwealth Court of Pennsylvania. Held: Affirmed.
Edward F. Kane, Kane, Pugh Bonner, for appellant.
Leroy S. Zimmerman, Attorney General, with him Joseph F. Lynch, Deputy Attorney General, for appellee.
The Montgomery County Common Pleas Court ordered the forfeiture of a 1978 Porsche Coupe. We affirm.
Steven Setzman, President of Total Data Services, Inc., the titleholder of the Porsche, was arrested and charged with possession with intent to deliver a controlled substance in violation of The Controlled Substance Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as amended, 35 P. S. § 780-101. Setzman, while sitting in the Porsche, sold $2,300 worth of cocaine to undercover agents and the car was seized under the provisions of Section 780-128 of the Act, 35 P. S. § 780-128 (b). The Commonwealth subsequently petitioned for, the forfeiture of the Porsche under Section 780-128(a)(4).
We affirm on the basis of the able opinion of Judge SMILLIE, with one modification, ___ Pa. D. C.3rd ___ (1981). We conclude that the certified transcript of Setzman's Gagnon II hearing, wherein he admitted that the substance in his possession was cocaine, was admissible under the provisions of 42 Pa. C. S. § 6106.
The Commonwealth's burden in a forfeiture proceeding is proof by a preponderance of the evidence. Commonwealth v. Myers, ___ Pa. Superior Ct. ___, ___ n. 5, 444 A.2d 1170, 1175 n. 5 (1982). The Commonwealth has met that burden.
Affirmed.
ORDER
The order of the Bucks County Common Pleas Court, MisC. Docket No. 415 July Term 1980 ordering the forfeiture of One 1978 Porsche Coupe, is affirmed and the Porsche is hereby ordered forfeited to the Commonwealth.
AMENDING ORDER
NOW, November 22, 1982, the Order of this Court dated November 18, 1982, is hereby amended to read as follows:
The order of the Montgomery County Common Pleas Court, Misc. Docket No. 415 July Term 1980 ordering the forfeiture of One 1978 Porsche Coupe, is affirmed and the Porsche is hereby ordered forfeited to the Commonwealth. Judge WILLIAMS, JR., dissents.
Judge DOYLE concurs in the result only.