J-S56007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM PAUL TAYLOR                        :
                                               :
                       Appellant               :   No. 1495 EDA 2019

                 Appeal from the Order Entered April 23, 2019
             In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0008595-2017


BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY PANELLA, P.J.:                          FILED JANUARY 28, 2020

       William P. Taylor appeals,1 pro se, from the order of April 23, 2019

granting the Commonwealth’s petition for forfeiture of money, firearms, two

iPhones, and one Apple watch (collectively, “cellular equipment”), 2 and




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1 In its 1925(a) opinion, the trial court contends Appellant filed his appeal with
the wrong court. See Trial Court Opinion, 7/30/19, at 2. However, “[b]oth this
Court and the Commonwealth Court have jurisdiction to decide an appeal
involving a motion for the return of property filed pursuant to Pa.R.Crim.P.
588.” Commonwealth v. Durham, 9 A.3d 641, 642 n.1 (Pa. Super. 2010)
(citation omitted), appeal denied, 19 A.3d 1050 (Pa. 2011); In Re One 1988
Toyota Corolla, 675 A.2d 1290 (Pa. Cmwlth. 1996).

2On appeal, Appellant abandons his challenge to the forfeiture of the money
and firearms and only seeks return of the cellular equipment.
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denying his motion for return of property.3 After careful review, we reverse

in part and remand.

       We take the underlying facts and procedural history in this matter from

our review of the certified record. In October 2017, agents from the

Pennsylvania Attorney General’s Office conducted an investigation into a drug

selling business operated by Appellant and Eric Stubbs. The agents conducted

two controlled buys of narcotics from Stubbs before arresting Appellant and

Stubbs immediately prior to a third arranged drug sale.

       Appellant and Dillard were present in a separate car during the first

controlled buy. However, law enforcement watched Stubbs leave the

undercover agent’s car and walk over to Appellant’s car. There, they saw

Appellant hand Stubbs an item. Stubbs then walked back to the undercover

agent’s car and sold cocaine to the agent. After the sale, some agents followed

Appellant and Dillard back to their home and other agents followed Stubbs as

he first drove to a bank, then drove to Appellant’s home and gave money to

Appellant.

       Immediately prior to the second sale, Stubbs drove to Appellant’s home.

He and Stubbs then drove off in a car, rented by Appellant, to meet with the




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3 Appellant’s co-defendant and girlfriend, LaToya Dillard, also filed an appeal
from this order. However, we quashed her appeal as untimely filed on
November 8, 2019. See Commonwealth v. Dillard, 1650 EDA 2019.

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agent. Stubbs exited Appellant’s car, entered the agent’s car, and sold the

agent cocaine.

       Again, prior to the third meeting, in which Stubbs was to sell the agents

Percocet and cocaine, Stubbs drove to Appellant’s home, retrieved a yellow

bag from his car and went inside Appellant’s residence. They soon left, each

going to a different location, and with Appellant now in possession of the

yellow bag.

       Stubbs contacted the agent to tell her he was “still putting the pills

together.” Stubbs drove back to Appellant’s location and, in separate cars,

both drove to the agreed-upon location for the sale. When the men arrived,

the agents arrested them and subsequently executed a search warrant on

Appellant’s home. It is not apparent from the record whether the agents

recovered the cellular equipment at issue from Appellant’s person or from his

home.4




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4 In his brief, Appellant alternately states that the agents recovered the
cellular equipment during the search of the residence and from his person.
See Appellant’s Brief, at 5 and 7. The Commonwealth claims that it recovered
the cellular equipment from a search of Appellant’s person. See the
Commonwealth’s Brief, at 4. However, the Commonwealth does not cite to
the record to support this statement. In its opinion, the trial court did not
discuss whether the agents found the cellular equipment on Appellant’s person
or in his house. See Trial Court Opinion, 7/30/19. We are unable to discern
the truth of the matter from the record.




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       On September 21, 2018, Appellant entered a negotiated guilty plea to

one count of possession with intent to deliver and one count of a violation of

the Uniform Firearms Act. That same day, the trial court sentenced Appellant

in accordance with the terms of the plea agreement to 4 to 10 years’

imprisonment       followed     by    7   years’   probation.   Subsequently,   the

Commonwealth moved for forfeiture of the cellular equipment, money, and

firearms and Appellant sought return of the property.5 Following a hearing on

April 23, 2019, the trial court granted the petition for forfeiture and denied

the motion for return of property. The instant timely appeal followed.6

       In his only issue on appeal, Appellant challenges the grant of forfeiture

and the denial of his motion for return of the cellular equipment. Our standard

of review is settled. We review only to determine “whether the 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. Heater, 899 A.2d 1126, 1132 (Pa. Super. 2006) (citation

omitted).



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5 The Commonwealth returned the data stored on the devices to Appellant,
so the only issue on appeal is return of the devices themselves.

6 In response to the trial court’s May 24, 2019 order, Appellant filed a timely
concise statement of errors complained of on appeal on June 6, 2019. The
trial court subsequently issued an opinion.




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       Pennsylvania law provides that “things of value used or intended to be

used to facilitate any violation of The Controlled Substance, Drug, Device and

Cosmetic Act” are subject to forfeiture. 42 Pa.C.S.A. § 5802(6)(i)(B). Because

“the law generally disfavors forfeitures,” the Forfeiture Act must “be strictly

construed.”    Com. v. $301,360.00 U.S. Currency, 182 A.3d 1091, 1097

(Pa. Cmwlth. 2018) (quotation omitted).7

       In a forfeiture proceeding, “the Commonwealth bears the initial burden

of demonstrating, by a preponderance of the evidence, that a substantial

nexus exists between the seized property and a violation of the [Drug] Act.”

Com. v. $6,425.00 Seized from Esquilin, 880 A.2d 523, 529 (Pa. 2005).

“A preponderance of the evidence is tantamount to a ‘more likely than not’

standard.” Id. The Commonwealth may satisfy its burden by circumstantial

evidence, but it must show “more than a mere suspicion of a nexus.”

$301,360.00 U.S. Currency, supra at 1097. If the Commonwealth

establishes a substantial nexus, then the burden shifts to the claimant to prove

that he or she owns the property, lawfully acquired the property, and did not

unlawfully use or possess it. Id.




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7While decisions of the Commonwealth Court are not binding upon us, they
may serve as persuasive authority. See Commonwealth v. Ortega, 995
A.2d 879, 885 (Pa. Super. 2010).


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     Here, Appellant contends the Commonwealth failed to establish a

substantial nexus between the seized cellular equipment and the drug

business. See Appellant’s Brief, at 7-11. We agree.

     The Commonwealth relies on four points to support its claim it

established a substantial nexus: (1) Appellant called the undercover agent

from a cell phone immediately prior to his arrest; (2) Appellant and Stubbs

used cell phones to coordinate their drug enterprise as a team; (3) Appellant

admitted he used one of the cell phones to text Stubbs; and, (4) all Apple

products are linked, so that any texts regarding the drug business would

appear on all three of the devices. See the Commonwealth’s Brief, at 7; N.T.

Hearing, 4/23/19, at 23. However, the record belies these contentions.

     At the hearing, the only evidence presented by the Commonwealth was

the testimony of Agent Edward Rodriguez of the Pennsylvania Attorney

General’s Office. While Agent Rodriguez testified about the underlying

investigation and the firearms, money, and drugs the agent seized from the

persons, vehicles, and homes of Appellant and his co-defendants, he did not

testify about the cellular equipment. N.T. Hearing, 4/23/19, at 3-20. He also

did not testify about the general use of cellular equipment in the drug trade.

See id.

     While the Commonwealth claims Agent Rodriguez testified Appellant

used a cellular phone to call the undercover agent immediately prior to his

arrest at the third drug sale that is a misstatement of the record. What Agent


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Rodriguez actually testified was Appellant and Stubbs, in separate vehicles,

were driving to the buy location when, “. . . Eric (sic) Taylor asked Agent

Pugh to move, he then told her to just park over by the Shake Shack Parking

lot.” Id. at 13-14 (emphasis added, parentheses in original).

      There is no Eric Taylor involved in this matter. According to Agent

Rodriguez, all the various undercover agents’ communications had been with

Eric Stubbs. See id. at 3-20. There was no testimony any of the agents ever

communicated with Appellant, William Taylor. Given this, it is reasonable to

infer this was a misstatement by Agent Rodriguez and he meant to say Eric

Stubbs, not Eric Taylor. In its decision, the trial court did not find Appellant

ever used his cell phone to contact the undercover agent. See Trial Court

Opinion.   7/30/19,   at   10.   Thus,    the   record   does   not   support   the

Commonwealth’s claim Appellant used one of the cellular phones to directly

contact an undercover agent.

      The Commonwealth also argues Stubbs and Appellant used cell phones

to coordinate their drug business. However, again, the record does not support

this contention.

      The Commonwealth did not offer into evidence any cellular records, let

alone any records that showed texts or calls between Stubbs and Appellant or

between Appellant and anyone else regarding the drug business. While Agent

Rodriguez testified extensively about Stubbs’ use of a cell phone to coordinate

the drug buys with the undercover agents, he did not testify about Appellant’s


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use of a cell phone. See N.T. Hearing, at 3-20. Rather, to the contrary, all his

testimony regarding their coordination showed the two met in person, either

in cars or at Appellant’s residence.8 See id. Thus, the Commonwealth has

not shown Stubbs and Appellant used cell phones to coordinate their drug

activities.

       The Commonwealth contends Appellant admitted he used one of the

phones to text Stubbs in October 2017. See id. at 23-24. Appellant testified,

and the Commonwealth conceded, he and Stubbs were long-time friends. See

id. at 23. While Appellant admitted he used the silver iPhone to text Stubbs

in October of 2017, there was no testimony about the content of the texts and

no evidence of record to show the texts concerned the drug business. See id.

at 23-24. To the contrary, all the evidence garnered by the Commonwealth

showed the two met in person to coordinate the drug business. See id. at 3-

20.

       Lastly, the Commonwealth argued Apple links all of the devices it

manufactures, so any texts Appellant received on one phone would also be

received      on   the   other   phone    and    the   watch.   However,   while   the




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8 While the Commonwealth makes much of the “ubiquitous” use of cell phones
in the drug trade, see the Commonwealth’s Brief, at 9, it chose not to present
any testimony regarding this at the forfeiture hearing. Moreover, the record
reflects the cell phones in question were not the “burner” phones commonly
used in the trade, but instead Apple devices that contained personal
photographs and videos. N.T. Hearing, 4/23/19, at 23-24, 34-36.

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Commonwealth made this argument at the forfeiture hearing, it failed to

produce any evidence to support the contention. See id. at 23; 34-36.

      In its opinion, the trial court devotes little attention to the cellular

equipment, merely stating it agreed with the Commonwealth’s position and

the record substantially supports its finding without otherwise making specific

findings of fact regarding the cellular equipment or explaining the legal basis

of its decision. Trial Ct. Op., at 14. However, as discussed above, the record

is simply devoid of any information that shows a substantial nexus between

Appellant’s cellular equipment and his drug business. Therefore, the

Commonwealth failed to meet its initial burden and only showed there was “a

mere suspicion of a nexus.” $301,360.00 U.S. Currency, supra at 1097;

see Esquilin, supra at 529. Thus, we are constrained to find the trial court

abused its discretion in granting forfeiture of the cellular equipment. See

Heater, supra at 1132. Accordingly, we reverse the portion of the order of

April 23, 2019, which granted forfeiture of the cellular equipment and we

remand for entry of an order granting Appellant’s motion for return of the

cellular equipment.

      Order reversed in part. Case remanded. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/28/20




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