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HomeMy WebLinkAbout93-0007 Miscellaneous COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA $380.00 CASH and : ONE METROCALL SKY PAGER : NO. 7 MISCELLANEOUS 1993 IN RE: PETITION FOR FORFEITURE BEFORE OLER j. QRDER OR COURT AND NOW, this Z~~ ay of October, 1994, upon consideration of the Commonwealth,s Petition for Forfeiture, following a nonjury trial and for the reasons stated in the accompanying Opinion, the sum of $380.00 in cash and the Metrocall Sky Pager which are the subjects of the petition are hereby FORFEITED to the Commonwealth. BY THE COURT, Thomas A. Placey, Esq. ~~ Assistant District Attorney Michael A. Scherer, Esq. Court-appointed Counsel for Claimant Todd A. Simms : rc COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : Vo : : $380.00 CASH and : ONE METROCALL SKY PAGER : NO. 7 MISCELLANEOUS 1993 IN RE: PETITION FOR FORFEITURE BEFORE OLER, J. OPINION and ORDER OR COURT OLER, J. The present forfeiture action arises out of the seizure by police of $380.00 in cash and a Metrocall Sky Pager in connection with an arrest of Claimant Todd Michael Simms on drug charges. A petition for forfeiture of the items was filed by the Commonwealth, pursuant to Section 6802 of the Judicial Code.~ A nonjury trial on the matter was held on Monday, October 17, 1994. For the reasons stated in this Opinion, the petition for forfeiture will be granted. FINDINGS OF FACT 1. The Claimant is Todd Michael Simms, an adult individual presently incarcerated at the State Correctional Institution at Waynesburg, Pennsylvania. 2. On September 4, 1992, Claimant was arrested by police in a K-Mart parking lot in East Pennsboro Township, Cumberland County, Pennsylvania, in connection with a delivery of cocaine to an undercover police officer. 3. The price to be paid for the drug was $4,500; Claimant was ~ Act of June 30, 1988, P.L. 464, S4, 42 Pa. C.S. §6802 (1994 Supp.). N0. 7 MISCELLANEOUS 1993 arrested after receipt of the cocaine by the undercover officer but prior to any exchange of the money. 4. Claimant was charged with unlawful delivery of a Schedule II Controlled Substance and conspiracy to commit such delivery. 5. Although Claimant maintained that he was an unwitting companion of the real perpetrator of the offense, a jury concluded otherwise, finding him guilty of both offenses on September 22, 1993. 6. A review of the trial transcript leads this Court to agree with the jury's verdict.2 7. At the time of his arrest immediately after the delivery of cocaine to an undercover officer, Claimant was found to be carrying $380.00 in cash, comprised of one $100 bill, two $50 bills, and nine $20 bills. 8. This money was seized by police and is one of the subjects of the Petition for Forfeiture herein. 9. Also seized by police was a Metrocall Sky Pager owned by Claimant, found clipped to a visor in an automobile utilized by Claimant and his companion in the commission of the offenses; the visor was above the seat occupied by the Claimant. 10. The Metrocall Sky Pager is the second of the two subjects 2 At the trial on the forfeiture petition, the record was supplemented with a transcript of the trial testimony, pursuant to a stipulation that, if called, the witnesses at trial would have testified in accordance with their trial testimony. 2 N0. 7 MISCELLANEOUS 1993 of the Petition for Forfeiture herein. 11. The pager had been owned by Claimant since 1987 or 1988 and had the capacity to be used throughout the world. 12. The practice of persons involved in drug trafficking of using such pagers was exemplified in the trial transcript. 13. At the time of his delivery of cocaine in 1992, Claimant was an employee of UPS. 14. Claimant testified that he used the pager for innocent purposes only, and at trial assumed the posture of a person having little or no knowledge of drugs. 15. Claimant testified that he had received the cash in question from a bank as a result of closing out a credit union account and cashing a paycheck. 16. The Claimant's testimony at trial that he was a rather naive victim of circumstances was not believable, and the Court is similarly unable to accept as true his representations of innocence as to the use of the pager and as to the substantial sum of cash which he was carrying during a drug transaction. 17. The $380.00 in cash was furnished or intended to be furnished in exchange for a controlled substance. 18. The Metrocall Sky Pager was used or intended for use in a delivery of a controlled substance. DISCUSSION Under Section 6801 of the Judicial Code, the following items 3 N0. 7 MISCELLANEOUS 1993 are subject to forfeiture to the Commonwealth, inter alia: Money ... 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....3 All products and equipment of any kind whic~'~re used, or intended for use, in ... delivering . any controlled substance ... in violation ~ The Controlled Substance, Drug, Device and Cosmetic Act.4 In a forfeiture proceeding under this statute, the Commonwealth bears the burden of proving "the material allegations by a preponderance of the evidence .... " Commonwealth v. Tate, 371 Pa. Super. 611, 615, 538 A.2d 903, 905 (1988). In the case of money, it is provided that [s]uch money ... found in close proximity to controlled substances possessed in violation of The Controlled Substance, Drug, Device and Cosmetic Act shall be rebuttably presumed to be proceeds derived from the selling of a controlled substance in violation of The Controlled Substance, Drug, Device and Cosmetic Act.s "[A] rebuttable presumption is a means by which a rule of substantive law is invoked to force the trier of fact to reach a given conclusion, once the facts constituting its hypothesis have 3 Act of June 30, 1988, P.L. 464, §4, 42 Pa. C.S. S6801(a)(6)(i)(A) (1994 Supp.). 4 Act of June 30, 1988, P.L. 464, §4, 42 Pa. C.S. S6801(a)(2) (1994 Supp.). 5 Act of June 30, 1988, P.L. 464, §4, 42 Pa. C.S. ~6801(a)(6)(ii) (1994 Supp.). 4 N0. 7 MISCELLANEOUS 1993 been established." Commonwealth v. Giffin, 407 Pa. Super. 15, 21, 595 A.2d 101, 104 (1991). "'A rebuttable presumption forces [a party] to come forth or suffer inevitable defeat on the issue in controversy.'" Id. at 22, 595 A.2d at 104, quoting Commonwealth v. Tate, 371 Pa. Super. 611, 617, 538 A.2d 903, 906 (1988). In the present action, the Court believes that the Commonwealth has met its burden with respect to the items sought to be forfeited. In the case of the cash found upon Claimant's person following his delivery of cocaine to an undercover agent, Claimant's lack of credibility and the absence of denominations associated with more mundane commerce lead the Court to conclude that the statutory presumption has not been overcome. In the case of the pager, the presence of such an item commonly used by drug dealers at an actual delivery, the world-wide capacity of this pager, and the Claimant's lack of credibility on the issue of his need for such a device for innocent purposes lead the Court to find it more likely than not that the pager was used or intended for use in the delivery of a controlled substance. For these reasons, the following Order of Court will be entered: ORDER OR COURT ., AND NOW, this Z~day of October, 1994, upon consideration of the Commonwealth's Petition for Forfeiture, following a nonjury trial and for the reasons stated in the accompanying Opinion, the 5 N0. 7 MISCELLANEOUS 1993 sum of $380.00 in cash and the Metrocall Sky Pager which are the subjects of the petition are hereby FORFEITED to the Commonwealth. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Thomas A. Placey, Esq. Assistant District Attorney Michael A. Scherer, Esq. Court-appointed Counsel for Claimant Todd A. Simms :rc