           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania          :
                                      :
              v.                      :
                                      :
2002 Honda Accord, $26,612.00 in :
United States Currency,               :
(1) Dell Laptop, (6) Cell Phones,     :
(2) Gun Cases, (8) Various Rifles,    :
(5) Various Shotguns, (5) Various     :
Pistols, (2) Miscellaneous Magazines, :
Property of Gary Paul Kuehner         :
                                      : No. 385 C.D. 2016
Appeal of: Gary Paul Kuehner          : Submitted: January 13, 2017


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                               FILED: February 7, 2017


             Gary Paul Kuehner (Kuehner) appeals from an order of the Court of
Common Pleas of Lehigh County (trial court) granting the Commonwealth of
Pennsylvania’s (Commonwealth) motion for forfeiture of Kuehner’s 2002 Honda
Accord, $26,612.00 in United States currency, a Dell laptop, six cell phones, two gun
cases, eight rifles, five shotguns, five pistols, and miscellaneous magazines (forfeiture
motion) pursuant to the Controlled Substances Forfeiture Act (Forfeiture Act).1 For
the reasons that follow, we affirm.


                                                  I.
               In January 2012, the Office of Attorney General (OAG) initiated a grand
jury investigation into a group of individuals believed to be involved in trafficking
crystal methamphetamine (meth) and marijuana within Lehigh and Northampton
Counties. Thomas Sedor, a Bureau of Narcotics Investigation Agent (Agent Sedor),
was the lead investigator.         Wiretaps conducted throughout May and June 2012
yielded 9,490 intercepts, with 712 conversations considered pertinent to the drug
investigation. Kuehner’s intercepted conversations showed that he had a residence in
Bethlehem, two other residences in Allentown,2 as well as statements that he had
accumulated large amounts of money from his drug business. Controlled buys were
conducted at all three residences and evidence revealed that other individuals
purchased drugs at two of the residences. As a result of this investigation, Kuehner
was identified as a supplier of “pounds of high grade marijuana and multi-ounce
quantities of crystal methamphetamine.” (November 19, 2015 Hearing Transcript at
10-11.)




       1
         42 Pa.C.S. §§ 6801-6802. The Forfeiture Act permits the forfeiture of money exchanged
for drugs as well as money or various property used or intended to be used to facilitate any violation
of the Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as
amended, 35 P.S. §§ 780-101 – 780-144.

       2
        The residences were located at 718 Lehigh Street, 331 South 16th Street, and 1126 Union
Boulevard, the last of which was owned by Kuehner’s mother.


                                                  2
             On July 5, 2012, over 15 search warrants were executed throughout
Lehigh and Northampton Counties in connection with the investigation, including all
three residences associated with Kuehner.      The South 16th Street residence was
occupied at the time by Kuehner and his girlfriend, and a search yielded $9,500 cash
in a living room closet, $10,000 cash hidden in a computer printer in a second floor
bedroom, a number of firearms and cell phones, and a 2002 Honda Accord with key
and key fob. At the Lehigh Street residence, investigators found $7,100 in cash as
well as a number of firearms and a marijuana grinder.          Marijuana and several
firearms were found at the Union Boulevard residence.


             Kuehner was then arrested and charged with 14 counts of possession
with intent to deliver a controlled substance, two counts of corrupt organizations,
criminal conspiracy to commit possession with intent to deliver, criminal use of a
communication facility, and dealing in proceeds of unlawful activity. After his arrest,
during an interview with Agent Sedor, he admitted that he and another individual
supplied marijuana to one another. Kuehner also admitted that he was getting crystal
meth “dirt cheap” and selling it for $5,600 an ounce from an individual from Las
Vegas, who Kuehner admittedly picked up at the Philadelphia airport in his Honda
Accord and drove to Lehigh County. Another individual during the investigation
admitted to purchasing ounce-level quantities of crystal meth from Kuehner at his
16th Street home, and Kuehner admitted to delivering drugs as part of a controlled
buy at that residence.


             On September 3, 2013, the Commonwealth filed its forfeiture motion.
In his response, Kuehner asked the trial court to defer a hearing on the forfeiture
motion pending final adjudication of his criminal case, and the trial court granted his

                                          3
request. On October 24, 2014, Kuehner pleaded guilty to one count of possession
with intent to deliver a controlled substance, corrupt organizations, and criminal
conspiracy, and he was sentenced to an aggregate term of five to ten years
imprisonment.


               The trial court conducted an evidentiary hearing on the forfeiture motion
on November 19, 2015, and February 12, 2016. The Commonwealth presented the
testimony of Agent Sedor, who testified to the above-recited events as well as
testifying that at all times relevant to the investigation, Kuehner was unemployed.


               Kuehner testified that all of the money seized during the searches of his
residences was legally obtained. Kuehner received approximately $8,000 from the
sale of his corner store in 2010 and approximately $5,000 from the liquidation of
equipment contained within the store. He further testified that he received a check
for $16,700 from the Lehigh County Court of Common Pleas in 2010 related to a
separate criminal case, and that some of the money seized from the three residences
was income from contracting work he did under-the-table. Kuehner failed to provide
the trial court with any documentation to substantiate these claims. During the
hearing, Kuehner admitted to transporting his Las Vegas crystal meth supplier from
the Philadelphia airport to Lehigh County in his Honda Accord.                        Kuehner also
testified that he did not commit the crimes to which he pled guilty.3


       3
          During the hearing, Kuehner stated that he was not contesting any property seized from the
1126 Union Boulevard residence because the property therein belonged to his mother. Kuehner
also stated that the Dell laptop did not belong to him but was the property of his girlfriend. As such,
the trial court held that Kuehner lacked standing to challenge the forfeiture motion with respect to
the laptop.


                                                  4
              Granting the Commonwealth’s forfeiture motion, the trial court
explained that the Commonwealth had established a sufficient nexus between the
illegal drug activity conducted by Kuehner and all of the seized property. The trial
court found Kuehner’s testimony not to be credible. Specifically, with respect to the
money seized, the trial court determined that Kuehner failed to establish that he
owned the money, lawfully acquired it, and it was not unlawfully used or possessed
by him. This appeal followed.4


                                               II.
                                               A.
              Kuehner first argues that the forfeiture motion is barred by the statute of
limitations and the doctrine of laches. The statute of limitations for a forfeiture action
is two years from the date the property is seized. Commonwealth v. Allen, 59 A.3d
677, 680 (Pa. Cmwlth. 2012), aff’d 107 A.3d 709 (Pa. 2014) (citing 42 Pa. C.S. §
5524(5)). Here, the Commonwealth filed its forfeiture motion on September 3, 2013,
well within two years of July 5, 2012, when Kuehner’s property was seized.


              Kuehner also contends that the delay in filing the forfeiture motion
should be barred under the doctrine of laches because it was not filed until
approximately 14 months after the seizure of the property and the forfeiture
proceedings were delayed until after he entered his guilty plea. “In order to establish
laches, a defendant must establish (1) a delay arising from the complaining party’s


       4
          Our review of a forfeiture proceeding is limited to whether the trial court abused its
discretion or committed an error of law, and whether findings of fact are supported by substantial
evidence. Commonwealth v. Black 2009 Ford Mustang, 125 A.3d 493, 496 n.7 (Pa. Cmwlth. 2015).


                                                5
failure to exercise due diligence and (2) prejudice to the defendant resulting from the
delay.” White v. Township of Upper St. Clair, 968 A.2d 806, 811 (Pa. Cmwlth. 2009)
(citing Stilp v. Hafer, 718 A.2d 290 (Pa. 1998)). Even if this doctrine remotely had
any application when a forfeiture motion is filed within the statute of limitations, and
ignoring his failure to explain how the delayed hearing caused him any prejudice, his
laches argument still fails because it was Kuehner who requested that the trial court
stay the forfeiture proceedings pending the outcome of his criminal charges and he
cannot now complain about that delay.


                                           B.
             Kuehner also argues that the trial court erred in granting the forfeiture
motion because the Commonwealth failed to meet its burden of establishing a nexus
between the property seized and Kuehner’s illegal drug activity. To meet its burden,
the Commonwealth must establish by a preponderance of the evidence 5 that a nexus
exists between the property seized and the unlawful activity. Commonwealth v.
$6,425.00 Seized from Esquilin (Esquilin), 880 A.2d 523, 529 (Pa. 2005) (citations
omitted). The Commonwealth is not required to produce evidence directly linking
the seized property to illegal activity to satisfy its burden.          Id. at 529-30;
Commonwealth v. McJett, 881 A.2d 104, 110 (Pa. Cmwlth. 2002). “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.” Esquilin, 880 A.2d at 530 (citing McJett, 881 A.2d at
110). If the Commonwealth sustains its burden of establishing a nexus, the burden

      5
      “Preponderance of the evidence is tantamount to a ‘more likely than not’ standard.”
Commonwealth v. McJett, 881 A.2d 104, 110 (Pa. Cmwlth. 2002) (citations omitted).


                                           6
then shifts to the property owner to either disprove the Commonwealth’s case or
establish a statutory defense to avoid forfeiture. Commonwealth v. $26,556.00 Seized
from Christopher Polidoro, 672 A.2d 389, 392 (Pa. Cmwlth. 1996).6


              As the trial court found, the Commonwealth met its burden of
establishing that the items seized from Kuehner’s three residences were used in drug
trafficking operations or were the proceeds of such operations. First and foremost,
Kuehner entered a guilty plea to possession with intent to deliver a controlled
substance, corrupt organizations, and criminal conspiracy. Moreover, Agent Sedor’s
testimony established that Kuehner admitted that he and another individual supplied
marijuana to one another; admitted that he purchased and sold crystal meth; and
admitted to picking up his co-defendant and crystal meth supplier from the
Philadelphia airport and driving him to Lehigh County in his Honda Accord. That
testimony also showed Kuehner made statements in the wiretaps that he received
large sums of money due to his drug trafficking activities and that controlled drug
buys were made at all three residences.


              While Kuehner attempted to prove that the property forfeited was not
from drug transactions, the trial court found his explanation as to how he had come
into possession of the property not credible. He did not provide any documentation
or other evidence to support his claim that the large sums of cash found in his three
residences was lawfully acquired, and even if he had proof that he received a check


       6
        To discharge this burden, the individual must establish that (1) he owned the property; (2)
he lawfully acquired the property; and (3) the property was not unlawfully used or possessed by
him. See 42 Pa. C.S. § 6802(j); Esquilin, 880 A.2d at 530.


                                                7
for $16,700 from the Lehigh County Court of Common Pleas in 2010, that was two
years prior to the seizure and too remote in time to support his argument.7


              Given all of the above, it was reasonable for the trial court to find that
the large quantities of cash secreted in various places throughout Kuehner’s
residences, as well as the firearms, cell phone and the vehicle were used in or related
to the drug trade. Accordingly, the order of the trial court is affirmed.



                                            ____________________________________
                                            DAN PELLEGRINI, Senior Judge




       7
         Kuehner attempts to raise, for the first time, a number of additional issues in his brief,
including a violation of due process, denial of his request to transfer the seized firearms to his
mother, and his claim that the forfeiture ruling improperly changed the terms of his plea agreement.
Because these issues were not properly raised before the trial court, they have been waived. See
Pa.R.A.P. 302(a).

                                                 8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania          :
                                      :
              v.                      :
                                      :
2002 Honda Accord, $26,612.00 in :
United States Currency,               :
(1) Dell Laptop, (6) Cell Phones,     :
(2) Gun Cases, (8) Various Rifles,    :
(5) Various Shotguns, (5) Various     :
Pistols, (2) Miscellaneous Magazines, :
Property of Gary Paul Kuehner         :
                                      :
Appeal of: Gary Paul Kuehner          : No. 385 C.D. 2016




                                  ORDER


            AND NOW, this 7th day of February, 2017, the order of the Court of
Common Pleas of Lehigh County in the above-captioned matter is affirmed.



                                    ____________________________________
                                    DAN PELLEGRINI, Senior Judge
