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HomeMy WebLinkAboutCP-21-MD-0000432-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-MD-432-2009 : $9,000 U.S. CURRENCY : : Re: Robert Collins : IN RE: OPINION PURSUANT TO RULE 1925 In this case, Robert Collins has filed an appeal from our order of December 4, 2009, forfeiting some $9,000 to the Commonwealth. The matter came before us on a petition filed by the Office of the Attorney General. Mr. Collins contends that the evidence is insufficient to support the order of forfeiture. On March 5, 2009, a vehicle being operated by Mr. Collins on Interstate 81 was stopped by Corporal Daniel Housel of the Pennsylvania State Police. The vehicle was stopped for excessively tinted windows. After speaking with Mr. Collins, the Trooper checked his operator’s license and determined that it was suspended. The Trooper also learned that Mr. Collins had a history involving at least one drug conviction. After obtaining a valid consent to search the vehicle, the Trooper recovered a large bundle of money from the glove box and another bundle of money on the driver’s side door pocket. A State Police canine named Nemo was brought to Mr. Collins’s vehicle. Nemo alerted at the glove box to the odor of a controlled substance. He is trained to detect marijuana, hashish, cocaine, heroin and methamphetamines. The Trooper eventually confronted Mr. Collins as to why he was transporting such large amounts of cash. Collins claimed that the money belonged to a person by the name of Paul but declined to give the Trooper Paul’s phone number. After hearing the defendant’s claim that he had been to an auto auction, the police contacted the Mason-Dixon Auto Auction. A CP-21-MD-432-2009 representative indicated that Mr. Collins had not been present on the day he claimed he was at the auction. Cpl. Housel had been joined at the scene of the traffic stop by Trooper Christopher Manetta. Trooper Manetta recalled that Mr. Collins had identified a man named Paul as a person owning a car dealership. It was Trooper Manetta who also transported the currency for the purpose of an ionscan. He indicated that the money consisted of a bundle of bills totaling $4000 and another totaling $5000. Trooper Manetta indicated that he took great care to avoid any contamination of the money. He also testified that the way in which the money was bundled is consistent with the way money is stored following narcotics distribution. The final witness was Sgt. Frank Jost who is in charge of ionscan operations for the state of Pennsylvania. The money seized in this case was subject to his scan for the presence of controlled substances and the money tested positive for cocaine. Sgt. Jost conceded that a great deal of money in circulation has been subject to contact with controlled substances and, accordingly, a “casual contact level of cocaine” has been established for money sampled across the state of Pennsylvania. Sgt. Jost concluded that the currency seized from Mr. Collins had more than three times the amount of cocaine on it than average currency in general circulation. He opined that the money had recently been in contact with cocaine. After the conclusion of the Commonwealth’s case, Mr. Collins called as a witness one Richard Paul. The Commonwealth objected to Mr. Paul’s testimony because he had not been identified as a claimant in any prior filings. We permitted Mr. Paul to testify, despite the objection and, given the ultimate ruling of the court, are satisfied that it is unnecessary to dwell upon the correctness of that decision. Mr. Paul claimed that he was interested in purchasing a 2 CP-21-MD-432-2009 vehicle, ultimately deciding to purchase two, and gave the questioned cash to Mr. Collins for the purchase of the vehicles. Mr. Paul claimed to be employed by the City of New York and made no contention that he was an auto dealer. On cross-examination, Mr. Paul verified that he earned $35,140 in 2008. He claimed to have saved the $9,000 over the last decade and storing the cash at home. Mr. Collins testified as the last witness. He contended that the cash had come from Mr. Paul. He said, further, that he had consented to the search of his car because he “had nothing to hide…” N.T. 63. He claimed to have gone to the auction to try to purchase a car but, while at the auction, had contacted Mr. Paul who told him to buy a van instead. He said that the second car he was supposed to have purchased was a Buick but he could not find one. On cross- examination, the rest of Mr. Collins’s explanation of his auto purchasing enterprise was, at best, muddled. In forfeiture proceedings such as these, the Commonwealth bears an initial burden of proving that forfeiture is appropriate. 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, 3 CP-21-MD-432-2009 for property to be deemed forfeitable, neither a criminal prosecution nor a conviction is required. Commonwealth of Pennsylvania v. $6,425 seized from Richard Esquilin, 880 A.2d 523 (Pa. 2005) (numerous citations omitted). In Com. of Pennsylvania v. $11,600, 858 A.2d 160 (Pa.Cmwlth. 2004), a forfeiture was upheld where an ionscan revealed a high concentration of cocaine and the claimant provided no support for his assertion that he obtained the money as a loan from his father. Great weight was also given to the ionscan in Com. of Pennsylvania v. $310,020 et al., 894 A.2d 154 (Pa.Cmwlth. 2006). We are satisfied that the threshold burden of the Commonwealth was met in this case. The method of the bundling of the money, the dog’s alert, and the ionscan lead to the conclusion that it is more likely than not that a nexus exists between the money and a violation of the Controlled Substance Act. Under these circumstances, the burden shifts to the claimant to produce evidence that the money was not unlawfully used or possessed. In this regard, the claimant’s testimony is both contradictory and noncredible. The statements made by Mr. Collins at the traffic stop actually support the Commonwealth’s contention that the money was possessed unlawfully. At the hearing, the claimant clearly failed to meet the burden, which had shifted to him, to prove lawful possession of the money. Mr. Paul was not an auto dealer as earlier indicated. Mr. Collins was not at the auto auction where he claimed he had been. Neither Collins nor Paul could provide any meaningful detail with respect to their understanding of the automobiles which were to be purchased. No explanation was offered as to how the purchased vehicles would be driven to New York by one man who was already driving a car of his own, albeit 4 CP-21-MD-432-2009 without a driver’s license. Whatever the claimant’s contentions entitling him to relief, they are obscured by a fog of incredulity. Accordingly, we are satisfied that our order of forfeiture in this case was proper. February 4, 2010 _______________________________ Kevin A. Hess, J. Robert B. Stewart, III, Esquire Senior Deputy Attorney General Office of Attorney General 106 Lowther Street Lemoyne, PA 17043 Vincent Spadafora, Esquire 1434 South George Street York, PA 17403 For the Defendant :rlm 5