Opinion
No. 624 C.D. 2014
11-07-2014
Commonwealth of Pennsylvania v. One Thousand Eight Hundred Sixty-Seven and 25/100 ($1,867.25) TD Bank Checking Account Account Appeal of: Jerome P. Evans
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Jerome P. Evans appeals, pro se, from the September 30, 2013, order of the Court of Common Pleas of Northampton County (trial court) granting the Commonwealth of Pennsylvania's petition for forfeiture under section 6801(a)(6)(i)(A-B) of the Judicial Code, commonly known as the Controlled Substances Forfeiture Act (Forfeiture Act), 42 Pa. C.S. §6801(a)(6)(i)(A-B). We affirm.
Section 6801(a)(6)(i)(A-B) of the Forfeiture Act provides for the forfeiture of the following items:
(A) Money, negotiable instruments, securities or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of The Controlled Substance, Drug, Device and Cosmetic Act, and all proceeds traceable to such an exchange.42 Pa. C.S. §6801(a)(6)(i)(A-B).
(B) Money, negotiable instruments, securities or other things of value used or intended to be used to facilitate any violation of The Controlled Substance, Drug, Device and Cosmetic Act.
On January 19, 2011, Officer Thomas Beiser of the City of Easton Police Department began investigating an individual known as "B." Police later identified this individual as Evans. On that same date, a confidential informant (CI) gave Officer Beiser a quantity of heroin purchased from Evans. (Trial Ct. Op. at 1.) On January 24, 2011, the CI gave Officer Beiser a second quantity of heroin purchased from Evans. The CI made two more controlled heroin purchases with pre-recorded U.S. currency from Evans on January 22 and January 25, 2011. (Id. at 2.)
Based on these controlled purchases, Officer Beiser obtained a search warrant for Evans' apartment, located at 1401 Lehigh Street in Easton. On January 28, 2011, police searched Evans' apartment. The police found $700 in cash, $300 of which was pre-recorded currency. Additionally, they found 270 packets of heroin, several bank receipts, and a TD Bank ATM card with Evans' name on it. The police arrested Evans and charged him with violating The Controlled Substance, Drug, Device and Cosmetic Act (Controlled Substance Act). After Evans' arrest, the Commonwealth froze Evans' bank account which was linked to his ATM card and contained $1,867.25. (Trial Ct. Op. at 2.) On October 6, 2011, a jury convicted Evans of manufacture, delivery, or possession with intent to manufacture or deliver under the Controlled Substance Act. (Id. at 3-4.)
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§780-101 - 780-144.
On June 13, 2011, the Commonwealth filed a petition for forfeiture of the $1,867.25 seized from Evans' bank account. On July 26, 2011, Evans filed an answer and a petition for return of property. On September 10, 2013, the trial court conducted a forfeiture hearing. The trial court found that Evans was employed from October 2010 until the first week of January 2011. (Trial Ct. Op. at 2.) Evans testified that he earned $18.25 per hour and worked, on average, 30 hours per week while employed. (Id.) Evans also testified that he deposited $1,900 in his bank account on January 18, 2011, after a failed automobile purchase. (Id.) Evans offered into evidence a January 18, 2011, TD bank deposit slip in the amount of $1,900. (Id.) Evans stated that his rent was $400 per month, which he split with a roommate. (Id.) He was not required to pay utilities, but he did use his bank account to purchase food. (Id.) He also admitted that he remained unemployed until his arrest. (Id. at 4.)
Specifically, Evans testified that he was last employed on January 5, 2011. (N.T., 9/10/13, at 29.)
After the hearing, at the direction of the trial court, the Commonwealth filed a brief in support of its position. On September 16, 2013, the trial court entered an order finding that the Commonwealth met its burden of establishing a nexus between Evans' illegal drug activity and the funds in Evans' bank account. The trial court directed Evans to file a brief within 14 days, which Evans did on September 24, 2013. On September 30, 2013, the trial court granted the Commonwealth's petition for forfeiture. This appeal followed.
On October 18, 2013, Evans appealed to the Superior Court, which transferred the matter to this court.
Initially, Evans argues that the trial court erred in finding that the Commonwealth established a nexus between his illegal drug activity and the funds in his bank account. Specifically, he argues that the Commonwealth did not provide sufficient evidence showing that his funds in the bank account were derived from or used in furtherance of his illegal drug activity. We disagree.
Our review in a forfeiture proceeding is limited to determining whether the trial court's findings of fact are supported by substantial evidence and whether the trial court abused its discretion or committed an error of law. Commonwealth v. Mitchell, 833 A.2d 1220, 1222 n.6 (Pa. Cmwlth. 2003). --------
The Commonwealth must establish a substantial or sufficient nexus between the unlawful activity and the property subject to forfeiture by a preponderance of the evidence. Commonwealth v. Porrino, 96 A.3d 1132, 1137 (Pa. Cmwlth. 2014). The Commonwealth need not produce evidence that directly links the seized property to the drugs; circumstantial evidence may be sufficient to establish the link. Commonwealth v. $6,425.00 Seized from Esquilin, 880 A.2d 523, 529-30 (Pa. 2005). "However, circumstantial evidence that shows 'only the possibility or the suspicion of a nexus . . .' will not support a forfeiture." Porrino, 96 A.3d at 1138 (citation omitted).
Here, the Commonwealth established more than a mere suspicion of a nexus. It showed a vast disparity between the $1,867.25 in Evans' bank account and any legitimate income he received. See Commonwealth v. Funds in Merrill Lynch Account, 777 A.2d 519, 526 (Pa. Cmwlth. 2001) (establishing a nexus by showing a vast disparity between the accumulated assets and any legitimate income). Evans admitted that he deposited $1,900 on January 18, 2011, despite being unemployed since January 5, 2011. (N.T., 9/10/13, at 29.) Evans also admitted that he did not save any money from his prior employment. (Id. at 9.) Evans did state that he had "other funds," but did not explain further. (Id.)
The Commonwealth also highlighted this disparity between Evans' available funds and any legitimate income in relation to the time and degree of Evans' illegal drug activity. Evans first sold heroin to the CI on January 19, 2011, only one day after he deposited $1,900 into his bank account and two weeks after he was last employed. Officer Beiser testified that when police searched Evans' apartment they found 270 packets of heroin, a firearm, firearm ammunition, and $300 in pre-recorded currency together with another $400. (Id. at 9-10.) Evans was subsequently convicted under the Controlled Substance Act. Based on these facts, we find that the trial court did not err in determining that the Commonwealth met its burden of establishing a sufficient nexus between the $1,867.25 and Evans' illegal drug activity.
Next, Evans argues that the trial court erred in finding that he did not unlawfully own, acquire, use, or possess the $1,867.25 in his bank account. We disagree.
If the Commonwealth meets its burden of establishing a nexus, the burden then shifts to the claimant to show that he owns the currency, lawfully acquired it, and did not unlawfully use or possess it. Commonwealth v. $17,182.00 U.S. Currency, 42 A.3d 1217, 1220 (Pa. Cmwlth.), appeal denied, 57 A.3d 72 (Pa. 2012).
Again, Evans admitted that he was unemployed since January 5, 2011, and that he did not save any money from his prior employment. Evans also testified that he lawfully acquired the $1,867.25 because his $1,900 deposit originated from a check from the automobile dealership. (N.T., 9/10/13, at 27.) However, this evidence does not prove that those funds are legitimate. The check was merely a refund for money Evans paid for his failed automobile purchase; Evans possessed the $1,900 before he paid the dealership. Evans offered no evidence that he legitimately acquired the $1,867.25 frozen in his bank account. Therefore, the trial court correctly determined that Evans failed to meet his burden.
Evans also argues that the trial court erred in granting the forfeiture because he possessed the funds in the bank account prior to the Commonwealth proving any illegal drug activity occurred. See Commonwealth v. Fidelity Bank Accounts, 631 A.2d 710, 719 (Pa. Cmwlth. 1993) (finding that "property acquired prior to the time that [the Commonwealth] proves that illegal activity occurred" is not forfeitable). However, the trial court specifically found that Evans profited from his illegal drug activity for some time before Officer Beiser began his investigation on January 18, 2011. (Trial Ct. Op. at 4.) The trial court especially noted that Evans sold heroin to the CI one day after depositing the $1,900. (Id.)
Finally, Evans requests that the Commonwealth reimburse him for a $125 bank fee. Because Evans failed to raise this issue in the trial court, it is waived. Commonwealth v. $4,000.00 in U.S. Currency, 49 A.3d 21, 23 n.4 (Pa. Cmwlth. 2012), appeal denied, 62 A.3d 380 (Pa. 2013). Evans also requests that the Commonwealth reimburse him for interest that the Commonwealth earned on the $1,867.25 since the seizure. Although recovery of interest is permitted under some theories, such as common law conversion, Evans did not argue such a theory and, even if he had, he could not recover interest because the Commonwealth appropriately seized the currency in accordance with the Forfeiture Act. Commonwealth v. Funds in Merrill Lynch Account, 937 A.2d 595, 600 (Pa. Cmwlth. 2007).
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 7th day of November, 2014, we hereby affirm the September 30, 2013, order of the Court of Common Pleas of Northampton County.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge