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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       V.

SUK CHUL CHANG, M.D.

                            Appellant                No. 3242 EDA 2012


                 Appeal from the Order Dated October 26, 2012
             In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-MD-0000950-2012


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.                                  FILED JULY 30, 2014

        Suk Chul Chang, M.D., appeals from the order, dated October 26,

2012, in the Court of Common Pleas of Montgomery County, denying the

Petition for Return of Property,1 pursuant to Pa.R.Crim.P. 588.2 Pursuant to

a search warrant, the Delaware County District Attorney seized, inter alia, an
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    Dr. Chang filed this timely appeal prior to his death. On March 13, 2013,


substituting Kyoung Sook Chang, M.D., in her capacity as personal
representative of the Estate of Suk Chul Chang, M.D., as appellant in this
appeal.
2

an appeal involving a motion for the return of property filed pursuant to
                   Commonwealth v. Durham, 9 A.3d 641, 642 n.1 (Pa.
Super. 2010), appeal denied, 19 A.3d 1050 (Pa. 2011).
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annuity account owned by Dr. Chang, and valued at approximately

$389,893.00.3       Dr. Chang contends the trial court erred in denying Dr.

                               of property, seeking return of the annuity account.

Based upon the following, we affirm.



opinion, as follows:

            On April 16, 2012, Suk Chul Chang, M.D., commenced this
       miscellaneous court action [in the Court of Common Pleas of
       Montgomery County] by filing an application for relief styled as a



              Dr. Chang resides in Wynnewood, Montgomery County.


       indexed at no. 3824-2009, based on a criminal complaint filed by
       Detective Daniel Leicht, an officer of the Collingdale Borough
       Police Department and member of the Delaware County C.I.D.
       Drug Task Force. Dr. Chang was originally charged with 180
       counts of illegal delivery of controlled substances between 2005
       and 2007. All but eleven of the charges were dismissed at the
       preliminary hearing.

              Acting on search warrants issued by two magisterial
       district judges in Delaware County, the District Attorney seized
       three investment accounts and a bank account, which together
                                                                  three
       investment accounts were annuity contracts with Fidelity
       Investment Life Insurance Company (FILI), and the other was a
       Fidelity Brokerage Services LLC brokerage account.

____________________________________________


3
 See
Property at 3, ¶6.B.




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            According to Dr. Chang, the two annuity accounts were
     seized pursuant to a warrant issued by a magisterial district
     justice on November 18, 2008. The warrant listed the place to be

     served on November 18th at the Philadelphia office of Fidelity
     Brokerage Services, wh
     office. The affidavit of probable cause implied that authority for
     seizing the accounts was based on the Forfeiture Act, 42 Pa.C.S.

     proceeds collected by Suk C. Chang through his illegal practices


     accounts.

          Although the motion sought the return of all three
     accounts, this appeal pertains to only one of the annuity
     accounts, as the District Attorney returned the other two
     accounts to Dr. Chang shortly before this court heard the
     motion. With regard to the annuity account retained by the
     Commonwealth at the time of the hearing, the motion claimed



     annuities and Fidelity Brokerage Services account to [Dr.


          The undersigned judge held an evidentiary hearing on the
     motion on Thursday, October 25, 2012. At the beginning of the

     Commonwealth had sought and obtained leave from Judge
     George A. Pagano of the Delaware County Court of Common
     Pleas to return the brokerage account and one of the annuity
     accounts to Dr. Chang. They stated that those two accounts
     were worth approximately $2.2 million, and the account the
     Commonwealth retained was worth approximately $389,893.00.
     They also placed into evidence a letter from a vice president of
     FILI that stated that Dr. Chang had not deposited money into
     the annuity account in question since January 17, 2006. The
     Assistant District Attorney stipulated that the information in the
     letter was correct. In view of that stipulation, defense counsel
     refrained from placing account balance records into evidence, as
     those records would merely have been cumulative proof of the
     deposit history of the account in question.


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           The Assistant District Attorney produced Detective Leicht
     as a witness. Detective Leicht testified that he received
     information in 2007 from an informant, Gary Krobath, that Dr.
                                                                   e

     that several years before then, Dr. Chang had relinquished his
     legal privilege to prescribe schedule two narcotics after an
     investigation by the federal Drug Enforcement Agency in which
     no criminal charges had been filed.

             Krobath told Detective Leicht that Dr. Chang had been
     giving him prescription slips made out to others, including his
     girlfriend, Deana Miccio. Detective Leicht interviewed Ms. Miccio,
     who told him that she did not know Dr. Chang and had never
     met him. She did not appear to be under the influence of


     a file under her name.    Detective Leicht had Krobath make a

     Leicht had learned that a person could not make an appointment

     current client, so at the time of the controlled buy, he also had

     the pseudonym Danny Krobath. Krobath returned from the
     controlled buy with prescription slips for narcotics in the names
     of Gary Krobath and Danny Krobath.

           Two or three weeks later, Detective Leicht went to Dr.

     saw a man dressed in street clothes holding medical files and
     taking cash from the six or seven other persons there. Two of
     the other persons in the waiting room were drinking beer.
     Although there was a sign-in sheet in the room, nobody signed

     only two minutes later with prescription slips. After
     approximately two hours, Detective Leight saw Dr. Chang, who

     contained no medical data other than fictional values for Danny

     regarding previous office visits. Dr. Chang prescribed narcotics
     without asking Detective Leicht any medical questions or
     otherwise conducting a medical examination.




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           Still posing as Danny Krobath, Detective Leicht returned on
     a later date as a member of a law enforcement team that
     executed a search warrant on Dr.
     team executed the warrant, the clients in the waiting room were
     handing prescription slips to each other and making plans to fill
     the prescriptions and then transfer possession of the prescribed
     narcotics. Detective Leicht asked several of them how he could
     get Dr. Chang to write him prescription slips made out to other
     persons, and they answered that he would be willing to do so
     after he had seen Leicht several times.

           Following the execution of the search warrant on Dr.
     Chan
     persons who had been receiving prescription slips from him for
     several years to obtain narcotics for their own use or resale. For
     one such client, Paul Griffiths, the Commonwealth seized a file
     from Dr. Chang in which he had recorded the narcotics
     prescriptions given to Mr. Griffiths since 2003. Detective Leicht
     concluded his testimony without any objection or cross-

     demeanor, the undersigned judge found his testimony credible,
     and because defense counsel made no timely objections, all of
     his testimony was admissible.

           The Commonwealth then produced the testimony of
     Zachary Marks, a forensic accountant employed by the District
     Attorney. Mr. Marks testified that between 2005 and 2006, [Dr.
     Chang] deposited a total $250,000 principal into the annuity
     account at issue. Of that amount, $50,000 came from a Citizens
     Bank account into which [Dr. Chang] had not deposited funds
     between 2002 and 2009, but $200,000 came from a Citizens
     Bank account into which [Dr. Chang] had deposited funds
     between 2002 and 2008. The funds from the latter account came

     annuity account at issue was interest on those deposits of
     principal.

          Mr. Marks concluded his testimony without timely objection
     by defense counsel. Other than the letter from FILI, Dr. Chang's
     lawyers produced no evidence. The parties then presented
     argument and the hearing ended.




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Trial Court Opinion, 1/15/2013, at 1 7 (footnotes omitted).4

        As is evident from this appeal, Dr. Chang filed his Motion for Return of

Property in Montgomery County, seeking the return of his annuity.           See

Pa.R.Crim.P. 588 (providing motion for return of property shall be filed in the

court of common pleas for the judicial district where the property is located

at the time of seizure).5 Subsequently, on August 17, 2012, the Delaware
____________________________________________


4
  We note that the record for the Delaware County criminal prosecution
against Dr. Chang is not part of the certified record in this case, nor does it
appear that it was available to the trial court.
5
    Rule 588 provides in pertinent part:

        (A) A person aggrieved by a search and seizure, whether or not
        executed pursuant to a warrant, may move for the return of the
        property on the ground that he or she is entitled to lawful
        possession thereof. Such motion shall be filed in the court of
        common pleas for the judicial district in which the property was
        seized.

        (B) The judge hearing such motion shall receive evidence on any
        issue of fact necessary to the decision thereon. If the motion is
        granted, the property shall be restored unless the court
        determines that such property is contraband, in which case the
        court may order the property to be forfeited.

Pa.R.Crim.P. 588 (A),(B).

      The annuity at issue here is intangible property, and therefore its situs
follows the domicile of the owner. See Laird v. Laird, 421 A.2d 319, 320
(Pa. Super. 1980), citing Selig v. Selig, 268 A.2d 215, 218 (Pa. Super.
              res here involved is a bank account in which defendant has an
intangible interest. That interest being merely an intangible legal concept,
incapable of an actual physical situs, its situs is the domicile of the person




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County District Attorney filed a forfeiture petition pursuant to the Controlled

Substan

Court of Common Pleas of Delaware County. See



10/11/2012, at 4, ¶20.



relevant part:

       [T]he Commonwealth has produced sufficient evidence to
       establish a specific nexus between annuity contract no.
       323349137 and criminal conduct by Dr. Chang, hence the Motion
       for Return of Property is denied.          This Court makes no
       determination as to the claims raised by Dr. Chang in sub-
       paragraphs 40.1, 40.2, 40.3, 40.5 and 40.6, and those claims are
       denied without prejudice to whatever rights Dr. Chang may have
       to raise t
       the Forfeiture Act, which is pending in the Delaware County Court
       of Common Pleas. The claims raised in sub-paragraphs 39.1-39.6
       and 41.1-41.6 are dismissed as moot.

Order, dated 10/26/2012, docketed 10/31/2012. This appeal followed.6



____________________________________________


6
  The Commonwealth maintains the appeal is from an interlocutory order,
                                             Commonwealth v. Lewis, 431
A.2d 357 (Pa. Super. 1981). The Commonwealth points out the denial of a
motion for return of property does not result in automatic forfeiture, and the
Commonwealth is required to seek forfeiture under the Forfeiture Act. See
Commonwealth Brief at 12, citing Commonwealth v. Mosley, 702 A.2d
857 (Pa. 1997); Boniella v. Commonwealth, 958 A.2d 1069, 1073 (Pa.
Cmwlth. 2008). The Commonwealth claims the forfeiture action would have
been unnecessary if the Montgomery County order was a final order. We do
not find the C

(Footnote Continued Next Page)


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                       _______________________
(Footnote Continued)

       In Lewis, supra, this Court quashed an appeal taken from a denial of
a petition for the return of property. The Lewis Court found the appeal was
interlocutory, reasoning:

      [G]iven the criminal proceeding in esse against appellant, we



      opportunity to secure relief from the court below, in the form of
      pre-trial motions and/or post-trial motions if conviction occurs,
      and if unsuccessful a review by this Court exists, our holding


Id., 431 A.2d at 360 (citations omitted).

      Lewis is distinguishable, however, since in Lewis, it was possible for

return of property in a pre-trial or post-trial motion. The same is not true in
this case.    Here, there is no criminal action against Dr. Chang in
Montgomery County. Rather, the only action in Montgomery County is Dr.


                                               return of property is distinct
from a forfeiture proceeding, and, although the two types of actions may
commonly be heard together, to file one type of action does not in itself
                               Mosley, supra, 702 A.2d at 859. Given the
distinct and separate nature of a motion for return of property and a
forfeiture action, and, as well, the procedural posture of this case, we
conclude that the order denying the return of property in this case is final,
despite the pending forfeiture proceeding. In this regard, we are guided by
the rationale set forth by this Court in In re New 12th Ward Republican
Club, 603 A.2d 205 (Pa. Super. 1992):


      property    is     final.   While   there   may   be   further   litigation

      quite clear that appellant now has no right to return of the
      property. The lower court has effectively decided that appellant
      has no rights in the property, and, therefore, the litigation is
      final as to appellant. Accordingly, we proceed to the merits of
      this appeal.
(Footnote Continued Next Page)


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      On appeal, Dr. Chang raises seven issues, which we have reordered

for purposes of this discussion:

      1. Whether the [trial] court erred in considering the underlying
         merits of the forfeiture claim and finding that [the
         Commonwealth] established a nexus between the annuity and
         alleged criminal wrongdoing?

      2. Whether the [trial] court erred in finding that the Court of
         Common Pleas of Delaware County has jurisdiction over the
         forfeiture petition?

      3. Whether the [trial] court erred in failing to consider [Dr.

          forfeiture action?

      4. Whether the [trial] court erred in failing to consider [Dr.

          violations with regard to the seizure of his annuity?

      5. Whether the [trial] court erred in failing to consider the value
         of the property seized in conjunction with the parameters of
         the excessive fines clause of the Eighth Amendment?

      6. Whether the forfeiture action should be dismissed as a result
         of the death of Dr. Chang?
                       _______________________
(Footnote Continued)


Id. at 207 (citations and footnote omitted).



question of a nexus between the annuity account
ordered certain defenses deferred to the pending forfeiture proceeding in the
Delaware County Court of Common Pleas. Trial Court Opinion, supra at 15.
See Order, 10/26/2012. However, under the Montgomery County order at
issue here, Dr. Chang has no rights in the annuity, and, therefore, the order
is final and appealable. Accordingly, we will proceed to the merits of this
appeal.




                                            -9-
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       7.
            from presenting the testimony of witnesses adverse to the
            interests of [Dr. Chang] and his Estate?
                                                               7



       The

review applied in cases involving motions for the return of property is an

                           Commonwealth v. Durham, 9 A.3d 641, 645 (Pa.

Super. 2010) (citation omitted), appeal denied, 19 A.3d 1050 (Pa. 2011).

Pennsylvania Rule of Criminal Procedure 588 provides, in pertinent part, that



pursuant to a warrant, may move for the return of the property on the

ground t

                                                              preponderance of




            Under [Rule 588], on any motion for return of property,
            the moving party must establish by a preponderance of
            the evidence entitlement to lawful possession. Once that
            is established, unless there is countervailing evidence to
            defeat the claim, the moving party is entitled to the
            return of the identified property. A claim for return of
            property can be defeated in two ways: an opposing party
            can establish that it, not the moving party, is entitled to
            lawful possession to the property or the Commonwealth
            can seek forfeiture claiming that property for which return
            is sought is derivative contraband. To meet its burden to
            defeat the motion for return of property, the
____________________________________________


7
  Dr. Chang timely complied with the order of the trial court to file a
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).




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           Commonwealth must make out more than simply
           demonstrating that the property was in the possession of
           someone who has engaged in criminal conduct. It must
           establish a specific nexus between the property and the
           criminal activity.

       The law is well settled that:

           [o]n a motion for return of property, the moving party
           has the burden of proving ownership or lawful possession
           of the items. The burden then shifts to the
           Commonwealth to prove, by a preponderance of the
           evidence, that the property is contraband.

           [D]erivative contraband is property which is innocent in
           itself but which has been used in the perpetration of an
           unlawful act. Property is not derivative contraband,
           however, merely because it is owned or used by someone
           who has been engaged in criminal conduct. Rather, the
           Commonwealth must establish a specific nexus between
           the property and the alleged criminal activity.

Durham, supra at 645 646 (citations and footnote omitted).8



court erred in considering the underlying merits of the forfeiture claim, and

(B) The trial court erred in finding that the Commonwealth established a

nexus between the annuity and alleged criminal wrongdoing because there

were no deposits into the annuity during the time of the criminal wrongdoing

all



____________________________________________


8

                 Commonwealth v. $6,425.00 Seized from Richard
Esquilin, 880 A.2d 523, 529 (Pa. 2005) (citations omitted).




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underlying merits of the forfeiture claim, may be summarily dismissed as

follows. First, the trial judge acceded to Dr. Cha                        -trial



averment that Dr. Chang needed the seized accounts to pay for his legal

defense.9      See Trial Court Opinion, supra at 15; See also N.T.,

10/25/2012, at 82; Dr.



court took particular care to hear only evidence relevant to the question of

nexus between the annuity account and illegal activity, so that Dr. Chang

would be protected from making incriminating statements prior to trial, and

so that he could assert his legal defenses post trial in the forfeiture action.

See id. at 14-15. See also N.T., supra

issu



issues raised in [the Rule 588] hearing could be relevant to the hearing on

the forfeiture petition, and took that into account when deciding what

                                                                        supra



____________________________________________


9

motion for return of property, did return two seized accounts, the brokerage
account and one of the annuity accounts, together worth approximately $2.2
million. See N.T., 10/25/2012, at 4 5.



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erred in considering the underlying forfeiture claim.

       The second part

finding a nexus between the annuity and alleged criminal wrongdoing.



Commonwealth] did not establish that there were deposits into [

annuity in April and May of 2007, the time when [Dr. Chang] was charged
                                                        10



44.

       Pursuant to Rule 588, Dr. Chang had the initial burden of proving

lawful entitlement to possession of the property.       See Durham, supra at

645 646.      The trial court, in its opinion, stated that Dr. Chang did not

sustain his initial burden of proof.11 See Trial Court Opinion, supra at 22.

                                                                     l argued



and introduced a letter, which was stipulated to by the Commonwealth,12

____________________________________________


10

violating 35 P.S. § 780-113(a)(14) on April 10, 2007, April 26, 2007, and
May 17, 2007. See
11
  The trial court did not s
Motion for Return of Property. See Order, 10/26/2012, supra.
12
  See N.T., 10/25/2012, at 9 (stipulation that the last deposit into the
annuity account was on January 17, 2006).



                                          - 13 -
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from the vice president of FILI, stating that Dr. Chang had not deposited

money into the annuity account in question since January 17, 2006. N.T.,

10/25/2012, at 6, 7                                       -1. We are satisfied that this



attached    to   his   motion   for       return    of    property,     established    by   a



See

                                See Commonwealth v. Johnson, 931 A.2d

                                            t a minimum, our rules and case law

mandate [movant] properly allege, under oath, lawful possession of the



the Commonwealth to prove by a preponderance of the evidence that the

property is contraband by showing a specific nexus between the property

and the criminal activity. See Durham, supra. The trial court found that

the Commonwealth satisfied this burden. See Trial Court Opinion, supra, at

22 26. We turn, then, to the Commonw

        The testimony of Commonwealth witness, Detective Daniel Leicht,

established, inter alia, that, based on information from an informant, he

arranged a controlled buy of prescription slips for narcotics from Dr. Chang,



                                                                from Dr. Chang two or

three    weeks   later,   without     a    medical       examination,    or any       medical

questioning. Moreover, following execution of the search warrant, he talked

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to other individuals who either had a chart at the office or were present on

the day of the execution of the search warrant.           Leicht stated these




such individual was named Paul Griffiths, and Griffi

C-

chart showed visits approximately every thirty days from 2004 to 2007, with

controlled substance prescriptions issued at each visit. In addition, through

Detective Leicht, the Commonwealth introduced Exhibit C-3, prepared by

Agent Josh Gill based upon certain charts and records seized pursuant to the

search warrants, showing a monthly breakdown of cash received by Dr.

Chang for prescriptions, from November, 2001, to May, 2007, in the total

amount of $296,820. Exhibit C-3 was also admitted into evidence without

objection.    In addition, Detective Leicht testified that Citizens Bank

statements and an investment account statement were seized from Dr.

      s office. See N.T., 10/25/2012, at 16 41.

      The    Commonwealth    also   presented   Zachary   Marks,   a   forensic




Bank, a                                         Id. at 59. Marks stated there

were five checks written from the Citizens Bank accounts that went into the

annuity between 2005 and 2007, totaling $250,000.00. Id. at 60. The first

deposit came from a Citizens Bank account that had no incoming deposits

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                                                             Id. at 61. However, the

remaining deposits, totaling $200,000.00, came from another Citizens Bank

account that was active and was receiving deposits from 2002 through 2008.

Id. at 61 62. The deposits into that Citizens Bank account came in large

                                                       Id. at 65. Marks testified the

current value of the annuity account was $402,971.13, with $282,322.16

related to the $200,000.00 that was deposited initially. Id. at 62. On cross



money in the Citizens Bank account came from an inheritance, and Marks

answered he did not. Id. at 64.

                                                   ed with any criminal wrongdoing in
                                                                   13
                                                                        Specifically, Dr.



Leicht,    presented      unsubstantiated      hearsay     about    alleged     criminal

wrongdoing prior to April and May of 2007, in fact there [was] no evidence


____________________________________________


13
                               otion for Return of Property states that the
Criminal Complaint alleges that he issued prescriptions in violation of 35 P.S.
§ 780-113(a)(14) on April 10, 2007, April 26, 2007, and May 17, 2007, we
have already noted the record for the Delaware County criminal action is not

criminal proceeding in a footnote in his brief does not equate to the record.
See
           ief at 8 n.3.




                                          - 16 -
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to substantiate that hearsay and there were no criminal charges to support

                                                Id.

                                                                            t

conclude on the record presently before this Court that the trial court

committed an abuse of discretion in finding that the Commonwealth showed

a nexus between the annuity and criminal conduct. Our review of the record

                                     oncluded his testimony without any

objection or cross-

supra

included Exhibits C-2 and C-

counsel did cross-examine Marks, and asked whether any money in the

Citizens Bank account came from an inheritance, Marks said he did not




      The trial court, in determining that the Commonwealth established a

nexus between the annuity and the criminal wrongdoing, reasoned:

      In this case, Dr. Chang was illegally prescribing narcotics when

      was in control of the [annuity] at the time of his arrest and the

      $250,000 deposited into the annuity account at issue came from
      his medical practice during the period when he was selling
      prescriptions for narcotics.              nce in this case does not
      enable one to correlate the funds in the seized annuity account
      to specific illegal prescriptions, but Singleton [v. Johnson, 929
      A.2d 1224, 1227 (Pa. Cmwlth. 2007) (en banc) (discussing
      inferences based upon circumstantial evidence)] nevertheless
      allowed the undersigned judge to infer a specific nexus between


                                    - 17 -
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      and the illegal prescriptions that he had been writing as far back
      as 2003. Therefore this court did not commit reversible error by
      finding that the Commonwealth proved a specific nexus between
      the account and criminal activity by a preponderance of the
      evidence.

Trial Court Opinion, supra at 25 26.

      In light of the evidence discussed above, we conclude that the trial




argument fails to warrant relief.

      Turning to the remaining arguments presented by Dr. Chang, we find

that these claims do not pertain to the motion for return of property, but

rather are issues that remain to be litigated in the forfeiture action.

Therefore, no further discussion is warranted on these claims. Accordingly,

we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/30/2014




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