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HomeMy WebLinkAboutCP-21-MD-0584-2005 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. ONE 1994 INFINITI SEDAN VIN: JNKNGOID7FM265988 $380.00 IN CASH, $22,048.10 IN CASH NO. CP-21-MD-584 - 2005 IN RE: OPINION PURSUANT TO Pa. RA.P. 1925 Guido, J., April , 2006 On January 6,2006 we held a hearing on the Commonwealth's Petition to forfeit the above captioned property as a result of its connection to drug activity. After hearing the evidence, we granted the Commonwealth's petition only with respect to the $22,048.10 in cash. Sylvester Anderson, III, (hereinafter Appellant) has filed this timely appeal. He alleges that 1) the Commonwealth failed to prove a sufficient nexus between the cash and purported drug activity by Appellant; and 2) we abused our discretion in repeatedly allowing the Commonwealth to reopen its case. 1 We will summarize the facts as we found them to be after the evidentiary hearing. On February 15, 2005 Appellant opened a savings account at a Carlisle Branch of the M& T bank. The account was opened with a cash deposit of$1500. Over the course of the next four months the defendant made numerous large cash deposits ranging in size from $380 to more than $2600. A teller with whom appellant often dealt became suspicious and reported the matter to the authorities. She testified as follows: 1 See Concise Statement of Matters Complained of on Appeal. NO. CP-21-MD-584 - 2005 Q. What is it that drew your attention to Mr. Anderson? A Just the frequency of and the manner of the deposits that he made. Q. When you say frequency, approximately how often would he come in to make deposits? A Sometimes it was daily, every other day. Q . Very well. A For weeks. Q. When he would bring in deposits, were they check deposits or cash deposits? A They were cash deposits. Q. Was there anything unusual about the manner in which he would provide the cash to you for deposit? A He would just hand like a large wad of money, and there was no rhyme or reason to it. It was just - - it was folded here and there, and bunches of money this way and crumpled, just like a huge - - just like a big wad of money. It would take a long time to sort it out and count it? (emphasis added). The Commonwealth also presented testimony from Agent Cynthia Jeffries of the Attorney General's Office. Agent Jeffries works in the Bureau of Narcotics Investigation and Drug Control where she specializes in money laundering. Her investigation revealed that appellant had no employment in all of2005 and at least the last half of2004? Finally, Detective Eric Dale of the Carlisle Borough Police testified that Appellant was an active drug dealer in the Borough.4 He described numerous transactions involving Appellant which were recorded by video surveillance in early June, 2005.5 Based upon his considerable experience, the detective opined that those transactions involved the street level sale of drugs by Appellant. The suspected drug activity seen on the 2 Transcript of Proceedings, pp. 8-9. 3 Transcript of Proceedings, p. 14. Appellant's father later confirmed that he had never held ajob. (Transcript of Proceedings, p. 43). 4 Transcript of Proceedings, p. 21. 5 Transcript of Proceedings, p. 22. 2 NO. CP-21-MD-584 - 2005 videotapes was later confirmed when a confidential informant made controlled purchases of crack cocaine from Appellant on June 9, and June 14,2005.6 In an attempt to explain how he obtained such a large sum of money in such a short period of time, Appellant called his father as a witness. The father testified that the money came from him, to be used by his son for college. We found the father's explanation to be on the borderline between incredible and preposterous. Sufficient Nexus Appellant's first assignment of error is that the Commonwealth failed to prove a sufficient nexus between the money and his purported drug activity. Under the Forfeiture Act the Commonwealth must show that the money was "furnished. . . in exchange for a controlled substance. . . " 42 C.S. S 6801 (a)(6)(i)(A). The Supreme Court recently addressed this issue: (I)n forfeiture proceedings involving money, the Commonwealth bears the initial burden of proving that forfeiture was 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, for property to be deemed forfeitable, neither a criminal prosecution nor a conviction is required. Com. V $6,425.00 seizedfrom Esquilin, 583 Pa. 544, 880 A.2d 523,529 - 530 (2005) (citations omitted), (emphasis added). 6 Transcript of Proceedings, pp. 23 and 56. 3 NO. CP-21-MD-584 - 2005 In the case at bar, we were satisfied that the large cash deposits made between February and June 2005 were "more likely than not" related to drug activity. The bank teller described large wads of money, "folded here and there" with "bunches of money. . . crumpled". 7 It is not unreasonable to conclude that money from individual drug transactions would be lumped together in that way. Furthermore, a review of Commonwealth's Exhibit 1 makes it clear that there was no apparent pattern to the large deposits. For instance, in the seven days between March 29 and April 4, Appellant made deposits of $920, $560, $870 and $2663, on four different days.8 The unusual manner and pattern of the cash deposits, coupled with Appellant's lack of employment and confirmed drug activity led us to conclude that the deposits were all drug related. Allowing Commonwealth to Reopen Case During the course of oral argument we allowed the Commonwealth to reopen its case on two occasions in order to clarify matters for us. At the beginning of argument, we expressed confusion over Commonwealth Exhibit 1 which showed a balance of only a little more than $16,000 in Appellant's savings account. Yet the Commonwealth claimed that it seized more than $22,000. The Commonwealth asked to reopen its case to correct the oversight with testimony from a bank employee and an updated exhibit. We granted the request. 9 Toward the end of the closing arguments we reopened the record to clarify Detective Dale's testimony with regard to the controlled buys of cocaine from Appellant. 7 See Testimony of the Bank Teller, supra. 8 See Commonwealth's Exhibit 1. 9 We also note that Appellant's Counsel did not voice any objection at that point. 4 NO. CP-21-MD-584 - 2005 As we indicated after questioning the officer, "I have reopened the record because I wasn't sure what he had testified to, and I want to get the facts straight."IO DATE Edward E. Guido, J. Daniel J. Sodus, Esquire William T. Tully, Esquire :sld 10 Transcript of Proceedings, p. 58. 5