Opinion
No. 1859 C.D. 2011
03-30-2012
Commonwealth of Pennsylvania v. $8,337.00 U.S. Currency and One Laptop Computer, One Flat Panel T.V., and One Sony PlayStation Appeal of: Keith Holmes
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Keith Holmes (Holmes) appeals pro se from the September 7, 2011 order of the Court of Common Pleas of Lycoming County (trial court) directing that $1,664.00 in United States (U.S.) currency be forfeited to the Commonwealth of Pennsylvania (Commonwealth) pursuant to the Controlled Substances Forfeitures Act (Forfeiture Act). The issues before this Court are: (1) whether the trial court erred by determining that there was a sufficient nexus between the currency and illegal activity; (2) whether Holmes' property was subject to illegal search and seizure; and, (3) whether the trial court erred by determining that the currency seized was not disproportionate to the gravity of Holmes' offense. We affirm.
42 Pa.C.S. §§ 6801-6802.
On March 3, 2009, while investigating a prior report of a domestic disturbance between Holmes and Julie Andreacci (Andreacci) on March 1, 2009, Pennsylvania State Police troopers went to 1400 Randall Circle in Loyalsock Township (the residence), where Andreacci was a tenant, and Holmes was known to have been living. Because of prior experiences, the troopers knew Holmes to have been a drug dealer. Andreacci told the troopers that she had last seen Holmes on March 1, 2009, and that he was in possession of approximately five bags of crack cocaine at the time. Andreacci stated that Holmes left the residence on March 1, 2009, and that he was not welcome to return.
Andreacci gave the troopers permission to search her residence. The troopers discovered a bag in the living room belonging to Holmes in which they found some marijuana, a laptop computer, and $1,105.00 in U.S. currency. Later that evening, Andreacci notified the troopers that Holmes was on his way to the residence. The troopers went to the residence and arrested Holmes for possession of marijuana. Holmes had $559.00 in his wallet at that time. Mr. Holmes' telephone rang in the presence of the officers, who conducted a reverse look-up and eventually spoke to caller, Elizabeth Stokes (Stokes). Stokes told the officers that she purchased crack cocaine from Holmes weekly between October 2008 and January 2009, and that she contacted Holmes on March 3, 2009 to order crack cocaine. On January 19, 2010, Holmes pled guilty to possession of the marijuana.
On November 16, 2010, the Commonwealth filed a petition for the forfeiture of $8,337.00 in U.S. currency, one laptop computer, one RCA flat panel TV and a Sony PlayStation. On September 7, 2011, a trial was held on the Commonwealth's forfeiture petition. The evidence presented at the trial demonstrated that $6,673.00 of the $8,337.00, as well as the TV and PlayStation belonged to Daryl Sanders (Sanders). The laptop was found in Holmes' bag in proximity to the money and marijuana, but there was no evidence linking it to any criminal activity.
Relative to the currency, the troopers testified that Holmes was known to them as having been convicted of possession and sales of drugs. Because Holmes had left Andreacci's residence days earlier, had no subsequent contact with Andreacci, and was not welcome to return, his bag was deemed by the troopers to have been abandoned and, therefore, subject to their search with Andreacci's consent. A Commonwealth witness testified that the $1,664.00 found in Holmes' bag and on his person was subjected to an ion scan, which detects trace amounts of drugs, narcotics and explosives. The scan can detect whether currency has been in recent contact with cocaine. According to the Commonwealth's witness, based upon bank scans of currency, the average baseline for cocaine on money in general circulation (i.e., casual contact level) in the Commonwealth is 269.05 digital units. The result of the ion scan of the $1,664.00, however, produced a result 2.93 times the casual contact level, meaning that it contained three times the amount of cocaine than would be found on money in general circulation. The Commonwealth's witness testified that he was "convinced to a reasonable scientific certainty that this particular currency had to be in close proximity to cocaine within a reasonably short time before it was seized." Notes of Testimony, September 7, 2011 (N.T.) at 41.
Holmes testified that the entire $8,337.00 belonged to him. He stated that he had placed $1,105.00 in one bag, and over $6,673.00 in another bag to lead Andreacci to believe the bag belonged to Sanders so she would not steal from it. He claimed that he earned $4,700.00 performing snow and trash removal during the previous two months with two other men for approximately 25 people. He testified that he did not have specific routes, he used a truck rented by a family friend, and he was paid in cash on which he did not pay taxes. He could not recall the names of the men he worked with. Holmes also testified that he borrowed another $3,500.00 from someone in order to buy a used truck for his business, and open a business account. He further admitted that, other than his testimony, there is no proof of his source for the money. He admitted to having pled guilty in the past to possessing and selling drugs, but only because his attorney told him that it was in his best interests.
By stipulated order issued September 7, 2011, the trial court declared that $6,673.00 of the $8,337.00, the TV and the PlayStation belonged to Sanders, and were not subject to forfeiture. The trial court simultaneously issued an order returning the laptop to Holmes, but granting the Commonwealth's forfeiture petition as to $1,664.00, on the basis that the Commonwealth established a nexus between the money and activity that violates The Controlled Substance, Drug, Device and Cosmetic Act (Controlled Substance Act). The trial court did not find credible Holmes' testimony that the money was earned from trash and snow removal jobs. Holmes appealed to this Court.
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101 - 780-144.
"Our review of a forfeiture appeal is limited to determining whether the trial court's findings of fact are supported by substantial evidence and whether it abused its discretion or committed an error of law." Commonwealth v. 5444 Spruce St., 890 A.2d 35, 38 (Pa. Cmwlth. 2006).
Holmes first argues that the Commonwealth's evidence failed to establish a sufficient nexus between the currency and illegal activity. We disagree. "The goal of the Forfeiture Act is to eliminate economic incentives of drug-related activity and thereby deter such activity." Commonwealth v. Heater, 899 A.2d 1126, 1132 (Pa. Super. 2006). Accordingly, Section 6801(a)(6)(i) of the Forfeiture Act provides, in pertinent part, that the following are subject to forfeiture:
(A) Money . . . furnished or intended to be furnished by any person in exchange for a controlled substance in violation of [the Controlled Substance Act], and all proceeds traceable to such an exchange.42 Pa.C.S. § 6801(a)(6)(i)(A), (B).
(B) Money . . . used or intended to be used to facilitate any violation of [the Controlled Substance Act].
The Pennsylvania Supreme Court has stated:
To meet its burden, the Commonwealth must establish, by a preponderance of the evidence, that a nexus exists between the money and a violation of the Controlled Substance Act. A preponderance of the evidence is tantamount to a 'more likely than not' standard. Moreover, the Commonwealth need not produce evidence directly linking seized property to illegal activity in order to establish the requisite nexus between seized property and unlawful activity. Although illegal drugs are often present at the time of seizure, there is no requirement that such drugs be present; instead, circumstantial evidence may suffice to establish a party's involvement in drug activity. Furthermore, for property to be deemed forfeitable, neither a criminal prosecution nor a conviction is required.Commonwealth v. $6,425.00 Seized From Esquilin, 583 Pa. 544, 555-56, 880 A.2d 523, 529-30 (2005) (footnote and citations omitted). Section 6801(a)(6)(ii) of the Forfeiture Act, specifically provides, however, that "money . . . found in close proximity to controlled substances possessed in violation of [the Controlled Substance Act] shall be rebuttably presumed to be proceeds derived from the selling of a controlled substance in violation of [the Controlled Substance Act]." 42 Pa.C.S. § 6801(a)(6)(ii). As fact-finder, it is the trial court's function to decide what evidence is credible, and to draw any reasonable inferences therefrom. Commonwealth v. $23,320.00 U.S. Currency, 733 A.2d 693 (Pa. Cmwlth. 1999). Since, "[t]he credibility of witnesses and the weight to be accorded to the evidence produced are matters within the province of the fact finder" in forfeiture cases, this Court will not disturb credibility determinations made by the trial court. In re Return of Prop. Confiscated, 856 A.2d 238, 249 (Pa. Cmwlth. 2004).
Here, it is undisputed that the troopers knew Holmes had a history of convictions for possessing and selling drugs. The troopers were given reason to believe that Holmes had drugs in his possession on the day he left his bag at Andreacci's residence. The troopers were with Holmes when Stokes called to purchase crack cocaine from him. The $1,105.00 was found in the same bag containing the marijuana, and Holmes pled guilty to possession of the marijuana found in his bag. Moreover, that money, plus the $559.00 found during a search of Holmes incident to his arrest, was found to have recently been in contact with three times the amount of cocaine than would be found on money in general circulation. Based upon the credible evidence before the trial court, we agree that it is more likely than not that the $1,664.00 was either received from the sale of drugs or was going to be used to purchase drugs. Accordingly, the Commonwealth met its burden of proving a nexus between the $1,664.00 and activity in violation of the Controlled Substance Act.
Once the Commonwealth shows a nexus between the property to be seized and a crime, the burden shifts to the defendant to prove the source of the money, and that it was lawfully used. Commonwealth v. Funds in Merrill Lynch Account, 937 A.2d 595 (Pa. Cmwlth. 2007). Because the trial court deemed Holmes' testimony about the source of the money not credible, and he presented no other evidence, Holmes failed to establish that the money was legitimately earned and used.
"The trial court has the discretion to grant or deny a petition for forfeiture, and this Court will not reverse the trial court's decision absent its abuse of discretion." Commonwealth v. One 2001 Toyota Camry, 894 A.2d 207, 209 n.1 (Pa. Cmwlth. 2006). "Discretion is abused when, in reaching its conclusion, the trial court departs from or misapplies the law or the judgment it exercises is manifestly unreasonable as shown by the evidence of record." SAS, Inc. v. State Police Bureau of Liquor Control Enforcement, 638 A.2d 455, 458 n.6 (Pa. Cmwlth. 1994). Clearly, there is support in this record for the trial court's finding that the $1,664.00 had sufficient nexus to criminal activity, and Holmes failed to meet his burden of proof. Accordingly, the trial court did not abuse its discretion in granting the Commonwealth's forfeiture petition.
Holmes next argues that his constitutional rights were violated by the troopers" warrantless search of his bag in which $1,105.00 was found. He contends that the troopers seized his property without having seen him engage in illegal activity, and basing their search solely on Andreacci's statement that she saw him in possession of cocaine a few days earlier. Specifically, he claims that the search was illegal because he was not afforded the chance to cross-examine Andreacci about her allegation. We disagree.
Proceedings brought under the Forfeiture Act are distinct from criminal actions, and are civil in nature. One 1988 Toyota Corolla, 675 A.2d 1290, 1295 (Pa. Cmwlth. 1996). Section 6801(b)(4) of the Forfeiture Act, 42 Pa.C.S. § 6801(b)(4), specifically authorizes the seizure of property subject to forfeiture without process under circumstances in which "there is probable cause to believe that the property has been used or is intended to be used in violation of The Controlled Substance . . . Act." Because, under the circumstances, the troopers had probable cause to believe that the money in Holmes' bag was used or was intended to be used in violation of the Controlled Substance Act, they were authorized to seize it without a warrant.
Moreover, Holmes' waived his opportunity to challenge the legality of the search and seizure of his property. By entering a guilty plea, a defendant specifically waives his right to claim that the evidence was obtained by an illegal search and seizure. Commonwealth v. Keller, 436 A.2d 1203 (Pa. Super. 1981). Since pleading guilty to a drug possession charge dispenses with the need for proof of the crime, a challenge to the legality of the search and seizure is waived. Marshall v. Maroney, 181 A.2d 852 (Pa. Super. 1962). Here, by pleading guilty to the charge that he possessed a small amount of marijuana, Holmes waived the right to now claim that his property was obtained by an illegal search and seizure. Accordingly, Holmes' challenges to the legality of the search underlying this forfeiture action are without merit.
"Upon entry of a plea of guilty[,] all grounds of appeal are waived except challenges to the voluntariness of the plea, the jurisdiction of the sentencing court, and the legality of the sentence." Commonwealth v. Brown, 492 A.2d 745, 754 (Pa. Super. 1985). --------
Holmes finally argues that the currency forfeited is disproportionate to the small amount of marijuana found. We disagree. In cases in which "all of the cash was determined to have been generated from drug transactions, then all of the cash [is] subject to forfeiture. Proportionality of the forfeited cash to the amount of marijuana actually found . . . is not required." Heater, 899 A.2d at 1135. Here, because the record supports the trial court's conclusion that the entire $1,664.00 represented proceeds from or for drug transactions, a determination of proportionality was not necessary.
Based upon the foregoing, we affirm the trial court's order.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 30th day of March, 2012, the September 7, 2011 order of the Court of Common Pleas of Lycoming County is affirmed.
/s/_________
ANNE E. COVEY, Judge