           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania                :
                                            :
              v.                            :   No. 203 C.D. 2017
                                            :   Submitted: July 14, 2017
Isaac B. Pearson,                           :
                      Appellant             :

BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge (P.)
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                        FILED: October 23, 2017
              Isaac Bilal Pearson, pro se, appeals an order of the Court of Common
Pleas of Lehigh County (trial court) that granted the Commonwealth of
Pennsylvania’s motion for forfeiture of $905 in cash. The Commonwealth’s motion
alleged that the cash was contraband derived from promoting prostitution, 18 Pa.
C.S. §5902(b)(3),1 a crime for which Pearson was convicted. The Commonwealth
asserted that Pearson’s conviction subjected the cash to common law forfeiture.
After an evidentiary hearing, the trial court granted the motion. Because the
forfeiture was neither initiated under nor authorized by statute, we reverse.



1
 Section 5902(b)(3) of the Crimes Code provides:
       (b) Promoting prostitution. —A person who knowingly promotes prostitution of
       another commits a misdemeanor or felony as provided in subsection (c) of this
       section. The following acts shall, without limitation of the foregoing, constitute
       promoting prostitution:
                                             ***
               (3) encouraging, inducing, or otherwise intentionally causing
               another to become or remain a prostitute[.]
18 Pa. C.S. §5902(b)(3).
             On March 12, 2015, as part of a prostitution investigation, Allentown
Police Detective Jason Krasley contacted a female, A.S., through a listing on
www.backpage.com. Krasley met A.S. at a nearby motel, where she offered to have
sexual intercourse with him in exchange for money. Krasley detained A.S. and
questioned her. She admitted to prostitution and stated that she gives all of the
money she earns, including $900 she had earned the night before, to “J.” A.S. then
placed a call to “J,” who informed A.S. he was on his way to the motel to pick up
his money. Shortly thereafter, Pearson arrived in a vehicle, and A.S. identified him
as “J.” The police detained Pearson and seized $905 in cash and three cell phones
from his person. One of the phones was linked to the number A.S. had used to call
“J.” Pearson was arrested and charged with trafficking in individuals, promoting
prostitution, and criminal use of a communication facility. He was found guilty of
the aforementioned charges following a jury trial.
             The Commonwealth filed a motion for forfeiture and condemnation of
the $905, asserting that the money “was used or intended to be used to facilitate”
prostitution. Certified Record (C.R.), Item No. 1, Motion for Forfeiture ¶6. The
trial court held a hearing on April 19, 2016, where Detective Krasley testified about
his conversation with A.S. on the day of the investigation:

             She then stated that … she was working for [Pearson] and that
             all the money that she made was handed over to [Pearson], and
             that the night prior she had given him $900 that was made by
             seeing dates or working as a prostitute.
             She placed a phone call to the phone number … 908-343-7621.
             A male answered, stated that they [sic] were on their [sic] way to
             pick up money. [Pearson] showed up a short time later in a silver
             vehicle. The female pointed him out and stated that that was the
             gentleman she was working for and that had her money, and he
             was taken into custody. He had $905 and three cell phones.


                                          2
Notes of Testimony, 4/19/2016, at 6 (N.T. ___). On cross-examination, Krasley
acknowledged that A.S.’s statement to Krasley was the only evidence connecting
the $905 seized from Pearson to the crime of promoting prostitution. A.S. did not
testify.
               Pearson testified to support his contention that he had lawfully acquired
the cash. On March 3, 2015, he received a college loan of $2,360.40. He was also
collecting unemployment compensation benefits; the last check he received was on
February 4, 2015. Pearson testified that he withdrew $500 from his bank account at
TD Bank on December 23, 2014, and another $200 on March 10, 2015, which was
two days prior to his arrest. He explained that he carried cash because he “[did not]
like to use a debit card often.” N.T. at 15. Pearson testified that he has never met
A.S. and he “[has not] heard anything about her since the day that [he] was arrested.”
N.T. at 9-10.
               The Commonwealth requested the trial court to take judicial notice of
Pearson’s conviction and argued that the $905 was derivative contraband subject to
common law forfeiture. N.T. at 4; 17. The trial court granted the Commonwealth’s
motion for forfeiture, finding that “the $905.00 in United States currency was used
or intended to be used to facilitate violation of the following: 18 Pa. C.S. §5902(b)(3)
Promoting Prostitution.[ ]” C.R., Item No. 10, Trial Court Order. Pearson appealed.2
In its PA. R.A.P. 1925(a) opinion,3 the trial court explained:


2
  The appeal was initially filed with the Superior Court, which transferred the case to this Court
on January 17, 2017.
3
  Rule 1925(a)(1) states, in relevant part, as follows:
        [U]pon receipt of the notice of appeal, the judge who entered the order giving rise
        to the notice of appeal, if the reasons for the order do not already appear of record,
        shall forthwith file of record at least a brief opinion of the reasons for the order, or


                                                3
               Here, there was a conviction of record tying the $905.00 to
               unlawful activity. The Commonwealth presented evidence –
               namely that the money was gained through prostitution and
               handed over to Pearson – that established the cash was more
               likely than not used to facilitate prostitution. I[n] making this
               determination, I considered Pearson’s testimony and documents
               he presented, and afforded them the weight I believed they
               deserved. Since the Commonwealth met its burden by a
               preponderance of the evidence, I did not err in granting the
               motion for forfeiture and condemnation….

Trial Court 1925(a) opinion at 3; C.R., Item No. 11 at 3 (emphasis added).
               On appeal,4 Pearson argues that the trial court erred in ordering that the
$905 seized from his person be forfeited because no controlled substance or
contraband was recovered at the time of his arrest. Pearson Brief at 9. He further
argues that the trial court’s finding that the $905 was used to facilitate prostitution
is “against the great weight of the evidence.” Id. at 7. Pearson points out that the
accuser, A.S., neither appeared at the hearing nor testified,5 and he “can produce
documentation as to exactly where the currency derives from.” Id. Pearson argues
that his due process rights were violated as a result.



        for the rulings or other errors complained of, or shall specify in writing the place in
        the record where such reasons may be found.
PA. R.A.P.1925(a)(1).
4
  In an appeal from a forfeiture proceeding, this Court determines whether findings of fact made
by the trial court are supported by substantial evidence and whether the trial court abused its
discretion or committed an error of law. Commonwealth v. Freeman, 142 A.3d 156, 160 n.4 (Pa.
Cmwlth. 2016). Our scope of review over questions of law is plenary. Id.
5
  At the hearing, Pearson did not object to Detective Krasley’s hearsay testimony regarding A.S.’s
statement. A timely objection is required to preserve a matter for appeal. If evidence is admitted,
a party preserves a matter for appeal by timely objecting and stating the specific ground for the
objection. PA. R.E. 103(a). Accordingly, Pearson’s hearsay objection is waived. See also Matter
of Kulbitsky, 536 A.2d 458, 460 (Pa. Cmwlth. 1988) (“[C]ivil case rules of evidence apply in
forfeiture proceedings.”).


                                                4
              From the beginning, the Commonwealth asserted, both in its motion for
forfeiture and at the hearing, that the $905 was connected to Pearson’s conviction
for promoting prostitution and, therefore, forfeitable at common law. The trial
court’s Rule 1925(a) opinion accepted this legal authority for the Commonwealth’s
forfeiture motion, stating:

              The Commonwealth’s motion for forfeiture and condemnation is
              not based on a specific statute authorizing forfeiture, such as the
              Controlled Substance, Drug, Devices and Cosmetic Act,[6] 35
              P.S. §780-113 et seq. and 42 Pa. C.S. §6801. Rather, it is based
              on the principle of common-law forfeiture, which allows the
              forfeiture of derivative contraband.

Trial Court 1925(a) opinion at 2; C.R., Item No. 11 at 2.
              This Court has held that common law forfeiture does not exist in
Pennsylvania. To the contrary, forfeiture “was never incorporated into or became
part of our Commonwealth’s common law tradition.” Commonwealth v. Irland, 153
A.3d 469, 471 (Pa. Cmwlth. 2017), appeal granted, __ A.3d __ (Pa., 97 MAL 2017,
filed July 18, 2017). In Irland, an individual displayed his handgun to the driver
through the rear windshield of his vehicle, in an attempt to induce the driver behind
him to increase the distance between the two vehicles. He entered a guilty plea to
the summary offense of disorderly conduct, and the Commonwealth sought
forfeiture of the handgun based on a theory of common law forfeiture. The trial
court granted the Commonwealth’s motion. This Court reversed, holding:

              [T]he Commonwealth’s organic law, namely Article 9, Sections
              18 and 19 of the Pennsylvania Constitution of 1790, denounces
              and effectively abolishes any notion of common law forfeiture
6
  Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§780-101 – 780-144. At all times relevant
to this appeal, the Controlled Substances Forfeiture Act was codified at 42 Pa. C.S. §§6801-6802.
These sections were repealed by the Act of June 29, 2017, P.L. 247 (effective July 1, 2017). The
Forfeiture Act is now codified at 42 Pa. C.S. §§5801-5808 (effective July 1, 2017).
                                               5
             and that the predominate, if not unanimous, weight of the
             authority has determined that common law forfeiture never made
             it across the seas to America. Therefore, absent a statute that
             specifically authorizes the forfeiture of property, the
             Commonwealth and the courts have no authority to seek and
             order forfeiture of so-called derivative contraband.

Irland, 153 A.3d at 471 (emphasis added).
             Here, the Commonwealth sought forfeiture of the $905 based on
Pearson’s conviction of promoting prostitution under 18 Pa. C.S. §5902(b)(3).
However, the Crimes Code does not authorize forfeiture as a sanction for this
criminal conviction. Because there was no statutory authorization for the forfeiture
of the $905 seized from Pearson, the trial court erred in granting the forfeiture.
             Aware of this Court’s holding in Irland, the Commonwealth urges this
Court to affirm the trial court “based upon a different rationale.” Commonwealth
Brief at 8. The Commonwealth requests that we affirm the forfeiture under Section
3021 of the Crimes Code, 18 Pa. C.S. §3021.
             Section 3021(a)(2) authorizes the forfeiture of cash seized in
connection with human trafficking; it provides, in pertinent part, as follows:

             (a) General rule. --The following shall be subject to forfeiture
                 to this Commonwealth, and no property right shall exist in
                 them:
                                            ***
                    (2) All assets within this Commonwealth:
                          (i) Of an individual, entity or
                          organization engaged in planning or
                          perpetrating an act which violates
                          section 3011 or 3012.
                          (ii) Acquired or maintained with the
                          intent and for the purpose of
                          supporting, planning, conducting or

                                          6
                               concealing an act which violates
                               section 3011 or 3012.
                               (iii) Derived from, involved in or used
                               or intended to be used to commit an act
                               which violates section 3011 or 3012.

18 Pa. C.S. §3021(a)(2) (emphasis added).7
               Pearson was convicted of human trafficking pursuant to 18 Pa. C.S.
§3011. However, the Commonwealth’s forfeiture motion was based solely on his
conviction of promoting prostitution under 18 Pa. C.S. §5902(b)(3), which is an
independent and separate crime. The Commonwealth did not allege in its motion
for forfeiture that the seized cash was connected to human trafficking or otherwise
subject to forfeiture under Section 3021 of the Crimes Code. See 18 Pa. C.S.
§3021(e)(2).8 Nor did the Commonwealth present such evidence at the hearing. Its
sole witness, Detective Krasley, testified only about his prostitution investigation.



7
  Section 3011(a)(1) of the Crimes Code provides that a person commits a felony of the second
degree if the person “recruits, entices, solicits, harbors, transports, provides, obtains or maintains
an individual if the person knows or recklessly disregards that the individual will be subject to
involuntary servitude[.]” 18 Pa. C.S. §3011(a)(1). Section 3012 provides that a person commits
a felony of the first degree “if the person knowingly… subjects an individual to labor servitude or
sexual servitude….” 18 Pa. C.S. §3012(a).
8
  Section 3021(e)(2)(iii)(E) states:
        (e) Proceedings and petition. –
                (2) A petition shall:
                                                  ***
                      (iii) contain the following:
                                              ***
                              (E) An allegation that the property
                              is subject to forfeiture under this
                              section and an averment of material
                              facts upon which forfeiture is based.
18 Pa. C.S. §3021(e)(2)(iii)(E).
                                                  7
The statements by A.S. that Detective Krasley recounted during his testimony were
not related to human trafficking.
              Section 3021(k) of the Crimes Code provides that, to forfeit property
derived from or involved in human trafficking, the Commonwealth carries the
burden of proving “that the property in question was unlawfully used, possessed or
otherwise subject to forfeiture under this section[.]” 18 Pa. C.S. §3021(k). The trial
court found that the $905 “was more likely than not used to facilitate prostitution.”
Trial Court 1925(a) opinion at 3; C.R., Item No. 11 at 3.               Because the
Commonwealth did not allege, and the trial court did not find, that the $905 was
connected to human trafficking, this Court cannot affirm the trial court based upon
Section 3021 of the Crimes Code. It would also require this Court to substitute its
own factual findings for those made by the trial court. This we cannot do. Township
of Salem v. Miller Penn Development, LLC, 142 A.3d 912, 922 (Pa. Cmwlth. 2016)
(“this Court may not reweigh the evidence or substitute its judgment for that of the
trial court.”).   In short, the alternative ground for affirmance asserted by the
Commonwealth is not legally cognizable.
              Because common law forfeiture does not exist in Pennsylvania, and
there is no statute authorizing forfeiture as a penalty for promoting prostitution, we
reverse the order of the trial court.

                                        _____________________________________
                                        MARY HANNAH LEAVITT, President Judge




                                            8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania        :
                                    :
            v.                      :   No. 203 C.D. 2017
                                    :
Isaac B. Pearson,                   :
                    Appellant       :


                                  ORDER

            AND NOW, this 23rd day of October, 2017, the order of the Court of
Common Pleas of Lehigh County in the above-captioned case, dated April 19, 2016,
is hereby REVERSED.
                                 ______________________________________
                                 MARY HANNAH LEAVITT, President Judge
