Pomerantz, 393 Pa.Super. at 188-89, 573 A.2d at 1150; see also Commonwealth v.Doranzo, 365 Pa. Super. 129, 529 A.2d 6 (1987) (trial court's factual finding of lawful possession and grant of a petition to return seized property found improper where no testimony was offered by claimant to establish lawful possession, and the Commonwealth circumstantially proved property constituted derivative contraband), appeal denied, 517 Pa. 614, 538 A.2d 497 (1987). On the other hand, in Commonwealth v. Myers, 298 Pa. Super. 272, 444 A.2d 1170 (1982), this Court rejected a determination that cash seized from a petitioner's purse constituted derivative contraband, made solely on the basis that the trial court found that "[d]efendant's version of the source of the money appear[ed] to be unreasonable." Id. at 280, 444 A.2d at 1175.
Money which is held by the Commonwealth as the result of seizure pursuant to a search warrant, or in connection with an arrest, is property which is subject to the order of court and is clearly in custodia legis and not subject to attachment or garnishment.Commonwealth v. Myers, 298 Pa. Super. 272, 282, 444 A.2d 1170, 1175 (1982). (b) Property subject to forfeiture under this act may be seized by the law enforcement authority upon process issued by any court of common pleas having jurisdiction over the property.
We also conclude that the Commonwealth may not benefit from an order granting forfeiture where no petition for forfeiture has been presented to the court. See Commonwealth v. Myers, 298 Pa. Super. 272, 279 n. 2, 444 A.2d 1170, 1174 n. 2 (1982). We express no opinion as to whether the Commonwealth might prevail, were a petition for forfeiture pursuant to 35 P. S. § 780-128 to be filed.
No post-trial motions need be filed where a Rule 324 petition is unrelated to a criminal proceeding. Cf. Commonwealth v. Myers, 298 Pa. Super. 272, 274-78, 444 A.2d 1170, 1172-1173 (1982) (Rule 324 petition filed with post-verdict motions); Commonwealth v. Setzer, 258 Pa. Super. 236, 392 A.2d 772 (1978) (where a Rule 324 petition was not filed with post-trial motions or at sentencing, the issue was not preserved for appellate review). The Commonwealth first asserts that pursuant to Section 5513 of the Crimes Code, the currency was subject to forfeiture.
Wheatcroft v. Smith, 239 Pa. Super. 27, 362 A.2d 416, 418 (1976); see also, Weicht v. Automobile Banking Corp., 354 Pa. 433, 47 A.2d 705 (1946); Ramins v. Chemical Decontamination Corp., 560 A.2d 836 (Pa. Cmwlth. 1989); Security Bank and Trust Co. v. Rollin, Inc., 348 Pa. Super. 328, 502 A.2d 232 (1985); Commonwealth v. Collingdale Millwork Co., 71 Pa.Cmwlth. 286, 454 A.2d 1176 (1983); Commonwealth v. Myers, 298 Pa. Super. 272, 444 A.2d 1170 (1982); Buchholz v. Cam, 288 Pa. Super. 33, 430 A.2d 1199 (1981). In all of these cases, the Commonwealth or a public officer of the Commonwealth was the garnishee.
Whether the doctrine should be at all applicable to marital property in a divorce action is questionable. [Citing Klebach, supra (Johnson, J., dissenting)]. Historically, the concept of custodia legis addressed circumstances where a sheriff or other officer of the court was in possession of personal property as a result of an action in replevin. [Citing Weicht v. Automobile Banking Corp., 354 Pa. 433, 47 A.2d 705 (1946)]. It has also been held to apply to circumstances where law enforcement officers have searched a residence, seized drugs and cash therein and held the cash until time of trial. [Citing Commonwealth v. Myers, 298 Pa. Super. 272, 444 A.2d 1170 (1982)]. . . . A bifurcated divorce unfortunately can take years, sometimes more than a decade, to be fully litigated.
It has also been held to apply to circumstances where law enforcement officers have searched a residence, seized drugs and cash therein and held the cash until time of trial. See Commonwealth v. Myers, 298 Pa. Super. 272, 444 A.2d 1170 (1982). The term custodia legis is defined as follows:
Not surprisingly, the Commonwealth advances no authority either in statute, rule or case law for its contention that it has a right, without any showing that the property is derivative contraband, to retain copies of videotapes owned by a party against whom a criminal case has been dismissed. In Commonwealth v. Myers, 298 Pa. Super. 272, 444 A.2d 1170 (1982), we refused to affirm a trial court finding of derivative contraband where the trial court had placed no burden of proof whatsoever on the Commonwealth but, instead, inferred that money must have been derived from an illegal sale — and therefore contraband — based merely on the fact that it was in the possession of one who was also in possession of marijuana. In Myers, there was no evidence presented of any sale of marijuana or of anything else, and no attempt was made by the Commonwealth to show any specific transaction.
With or without the presumption, however, the Commonwealth must prove by a preponderance of the evidence that the money was derived from illegal drug transactions. Commonwealth v. Landy, supra; Commonwealth v. Myers, 298 Pa. Super. 272, 444 A.2d 1170 (1982). It is this standard that the trial court applied.
In making its determination, the lower court was required to find that "the property sought to be returned was `directly derived from' or `directly traceable to' the sale of a contraband substance. . . ." Commonwealth v. Myers, 298 Pa. Super. 272, 280, 444 A.2d 1170, 1174-1175 (1982). The evidence relied upon for making this determination consisted of the suppression and trial records.