           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania             :
                                         :
            v.                           :   No. 581 C.D. 2015
                                         :   Argued: April 13, 2016
Allen Freeman,                           :
                         Appellant       :


BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
        HONORABLE RENÉE COHN JUBELIRER, Judge
        HONORABLE ROBERT SIMPSON, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge


OPINION BY JUDGE BROBSON                            FILED: June 15, 2016

            Appellant Allen Freeman (Freeman) appeals from an order of the
Court of Common Pleas of Beaver County (trial court), dated March 11, 2015, in
which the trial court denied Freeman’s petition for return of $27,690 in cash that
the Commonwealth seized from him during a traffic stop as derivative contraband
and ordered the forfeiture of the cash. On appeal, Freeman contends that the
Commonwealth failed to establish the required nexus between the cash and
criminal activity to support statutory forfeiture of the cash. Freeman also contends
that the trial court erred by failing to consider Freeman’s testimony, which he
contends supports his claim that he lawfully obtained and possessed the cash. For
the reasons set forth below, we reverse the trial court’s forfeiture decision with
respect to the $8,000 found in the center console of the vehicle and the $690 found
on Freeman’s person. We vacate the trial court’s forfeiture decision with respect
to the approximately $19,000 found in the trunk of Freeman’s vehicle, and remand
the matter to the trial court with direction that the trial court consider Freeman’s
“innocent owner” evidence.
                                I. BACKGROUND
              According to the trial court’s findings of fact, which Freeman does not
challenge on appeal, on December 14, 2014, Freeman’s girlfriend, Kyahna Tucker,
called the Ambridge Police Department and reported that Freeman had assaulted
her in the home they shared with their child. Ms. Tucker told police that Freeman
had just left the home in his Dodge Charger and had a firearm with him.
Ms. Tucker also informed police that a white United States Postal Service (USPS)
mailer, containing cash that Freeman planned to use to purchase marijuana from a
contact in California, could be found in the trunk of the vehicle.
              The Ambridge Police Department dispatched Officer Alfred Bialik to
search for Freeman.      In the meantime, a police officer from a neighboring
jurisdiction spotted the vehicle and stopped Freeman. Officer Bialik traveled to the
scene and placed Freeman under arrest. The police officers found $690 and three
cellular telephones on Freeman’s person. Officer Bialik also searched the area of
the vehicle within Freeman’s wingspan. This search turned up an envelope in the
center console containing $8,000 in cash, bundled with rubber bands in $1,000
increments.
              Officer Bialik and the other officers requested Freeman’s permission
to search the trunk based on their findings up to that point and the information
provided by Ms. Tucker. Freeman acquiesced. In the trunk, police officers found
a firearm, numerous boxes of Ziploc vacuum bags, a Ziploc vacuum bag sealer
system, latex gloves, and a white USPS parcel matching Ms. Tucker’s description.
After securing the vehicle at the scene, Officer Bialik requested a K-9 unit. The


                                          2
dog alerted the police officers to the front driver’s side and passenger’s side door,
indicating the odor of narcotics based on the dog’s exterior search of the vehicle.
The vehicle was towed to the Ambridge Police Station.
              The next day, the police officers secured a warrant to search the
vehicle, including the USPS parcel. Within the USPS parcel, the police officers
discovered a safe. Within the safe they found two stacks of vacuum-sealed money,
with Bounce dryer sheets next to each stack. The parties stipulate that the total
amount of money seized from Freeman’s person and from within the trunk and
passenger compartment of the vehicle was $27,690.1
              Officer Bialik also examined the text messages on the three cell
phones recovered from Freeman’s person. The text messages revealed numerous
conversations with references to types (i.e., strains), amounts, and prices of
marijuana. Freeman’s text messages also refer to the use of the USPS to send and
receive money to and from Sacramento, California. There were USPS tracking
numbers for shipments between Sacramento, California, and Ambridge,
Pennsylvania.      The trial court refers to another text message, in which an
individual with a local area code (presumably the Ambridge, Pennsylvania area),
instructs Freeman to bring money to him so he can show Freeman “how to pad it.”
The trial court also references text messages relating to how to bundle money to
keep it from “smelling.”2

       1
         As an aside, the $690 seized from Freeman’s pocket, the $8,000 seized from the center
console, and the $18,835 seized from the trunk total $27,525; however, the parties agree that
$27,690 was seized from Freeman.
       2
        During the hearing below, the Commonwealth presented testimony of Sergeant Tristan
Wenzig of the Pennsylvania National Guard, who did an ion scan of the cash seized from
Freeman and found traces of cocaine, but not marijuana. Noting the problems with an ion scan
(Footnote continued on next page…)

                                              3
               Ultimately, the trial court concluded that the Commonwealth met its
burden, albeit through circumstantial evidence, of proving by a preponderance of
the evidence that the seized cash was derivative contraband and thus forfeitable
under the act commonly referred to as the Controlled Substances Forfeiture Act
(Drug Forfeiture Act), 42 Pa. C.S. §§ 6801-6802. Under the Drug Forfeiture Act,
seized cash can be forfeited if the Commonwealth shows that the cash was
               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]
               and all proceeds traceable to such an exchange.
42 Pa. C.S. § 6801(a)(6)(i)(A) (emphasis added). In reaching this conclusion, the
trial court found persuasive the testimony of Ms. Tucker, who confirmed her initial
report to police about Freeman’s intentions for the cash. The trial court found that
this evidence established “why [Freeman] was travelling with that money and what
his plans were for it.” (Trial Ct. Opinion at 9.) The trial court also noted that Ms.
Tucker’s description of the parcel in her initial report to police officers was
consistent with the parcel that police officers recovered from Freeman’s vehicle,
apparently bolstering, in the trial court’s view, the weight it gave Ms. Tucker’s
testimony.
               The trial court also found persuasive the testimony of Officer Bialik
and Agent Opsatnik from the Pennsylvania Office of Attorney General. Officer

(continued…)

discussed by this Court in Commonwealth v. $9,000 U.S. Currency, 8 A.3d 379 (Pa. Cmwlth.
2010), and that Tucker claimed only that Freeman was going to purchase marijuana, the trial
court found the ion scan evidence irrelevant.
      3
          Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101 to -144 (Drug Act).



                                                4
Bialik testified that the vacuum packaging of money with dryer sheets is a “known
. . . tactic to try to elude police officers and police K-9s from detection.”
(Reproduced Record (R.R.) 51.) Freeman stipulated on the record that Agent
Opsatnik was an “experienced narcotics investigator,” indeed, “a good one.”
(R.R. 124.) Agent Opsatnik corroborated Officer Bialik’s testimony regarding the
packaging of money in narcotics transactions. Agent Opsatnik testified that, in his
experience, money in narcotics transactions is vacuum packed or wrapped,
commonly with a dryer sheet or something else to mask the odor, out of concern
that   the   money    may    have   come     into   contact    with    illegal   drugs.
(R.R. at 125, 128-29.) In his decades of experience, Agent Opsatnik testified that
he has seen this tactic employed hundreds of times.           (Id.)   Agent Opsatnik
reviewed photographs taken of the seized cash and testified that the packaging of
the cash was consistent with the trafficking of money for narcotics purposes. (Id.)
             The trial court also considered the text messages as relevant for
purposes of establishing the nexus to drug trafficking activities. According to the
trial court, the text messages reveal a transaction network between Pennsylvania
and California, of which Freeman was a part. The text messages refer to particular
strains of marijuana, amounts, and prices, as well as plans for drug transactions
through the mail. The trial court noted that the text messages corroborated Ms.
Tucker’s testimony about Freeman’s plans to mail money by USPS parcel to
California to purchase drugs. The text messages also discuss “padding” the money
to prevent it from “smelling.” The trial court also noted Freeman’s use of three
cell phones and used that finding as part of the totality of the circumstances in
assessing whether the Commonwealth met its burden. In short, the trial court
credited Ms. Tucker’s testimony as well as the testimony of Officer Bialik and


                                         5
Agent Opsatnik, considered the text messages and Freeman’s use of the three cell
phones, and concluded, based on the totality of the evidence, that the
Commonwealth met its burden of proving a substantial nexus between the seized
cash and illegal drug activity. (Trial Ct. Opinion at 11-12).)
                               II. ISSUES ON APPEAL
              On appeal,4 Freeman raises only two issues. First, he contends that
the Commonwealth’s evidence falls short of proving a sufficient and substantial
nexus between the forfeited cash and illegal drug activity. Instead, relying on
Commonwealth v. Marshall, 698 A.2d 576 (Pa. 1997) (Marshall), Freeman argues
that at best, the Commonwealth’s evidence establishes a mere “possibility” or
“suspicion” that Freeman intended to use the cash to purchase drugs. Second, and
in the alternative, Freemen contends that he “established that he was lawfully
entitled to the money seized, and it was not unlawfully used or possessed by him.”
(Freeman Br. at 6.)
                                   III.   DISCUSSION
              To make its case for a forfeiture of property, the Commonwealth’s
evidence must be of a quality that it demonstrates a “sufficient or substantial
nexus” between the property in question and a violation of the Drug Act.
Commonwealth v. $2,523.48 U.S. Currency, 649 A.2d 658, 660 (Pa. 1994)


       4
          In an appeal from a forfeiture proceeding, this Court reviews 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. $11,600.00 Cash, U.S. Currency,
858 A.2d 160, 163 n.3 (Pa. Cmwlth. 2004). Our scope of review over questions of law is
plenary. Commonwealth v. 1997 Chevrolet, 106 A.3d 836, 847 n.9 (Pa. Cmwlth. 2014), appeal
granted sub nom. Commonwealth v. 1997 Chevrolet and Contents Seized from Young,
120 A.3d 993 (Pa. 2015).



                                               6
(quoting Commonwealth v. 502-504 Gordon Street, 607 A.2d 839, 842 (Pa.
Cmwlth. 1992)).            The Commonwealth carries its burden of proof by a
preponderance of the evidence, which is a “more likely than not” standard.
Commonwealth v. $6,425.00 Seized From Esquilin, 880 A.2d 523, 529 (Pa. 2005)
(Esquilin). Circumstantial evidence can suffice, but the Commonwealth must do
more than establish the “suspicion” of a nexus between cash and illegal drug
trafficking. Marshall, 698 A.2d 576 at 579. Forfeiture cases “are fact sensitive
cases,” and the court determines whether a sufficient nexus has been proven based
on the totality of the evidence. Commonwealth v. Three Hundred Ten Thousand
Twenty Dollars ($310,020.00), 894 A.2d 154, 161 (Pa. Cmwlth. 2006).
                 Where the Commonwealth makes a prima facie case for forfeiture, the
claimant of the seized property can prevent its forfeiture with the innocent owner
defense—i.e., that he owns the cash; that he lawfully acquired it; and that it was
not unlawfully used by him. 42 Pa. C.S. § 6802(j);5 Commonwealth v. $16,208.38
U.S. Currency Seized from Holt, 635 A.2d 233, 238 (Pa. Cmwlth. 1993).


5
    Section 6802(j) of the Drug Forfeiture Act provides:
         (j)   Owner’s burden of proof.—At the time of the hearing, if the Commonwealth
               produces evidence that the property in question was unlawfully used,
               possessed or otherwise subject to forfeiture under section 6801(a) or
               6801.1(a), the burden shall be upon the claimant to show:
                 (1) That the claimant is the owner of the property or the holder
                      of a chattel mortgage or contract of conditional sale thereon.
                 (2)   That the claimant lawfully acquired the property.
                 (3)   That it was not unlawfully used or possessed by him. In the
                       event that it shall appear that the property was unlawfully
                       used or possessed by a person other than the claimant, then
                       the claimant shall show that the unlawful use or possession
                       was without his knowledge or consent. Such absence of
(Footnote continued on next page…)

                                                  7
                       A. Sufficient and Substantial Nexus

             In Marshall, the appellant sought return of cash that the court of
common pleas had forfeited to the Commonwealth under the Drug Forfeiture Act.
In concluding that a substantial nexus existed between the seized cash and illegal
drug activity, the common pleas court relied on the following facts:
             1) Appellant had been unemployed for 1-1/2 years prior
             to the arrest; 2) Appellant and the driver of the car gave
             inconsistent stories concerning the ownership of the
             money; 3) the currency was bundled in a manner
             consistent with drug dealing and was found between the
             seat cushions; 4) the drug-sniffing dog alerted on the
             cash; and 5) Appellant’s testimony was not credible.
Marshall, 698 A.2d at 578-79. The Pennsylvania Supreme Court, however, found
that these facts, as a matter of law, did not support the Commonwealth’s burden.
After noting that the Commonwealth is not required, under the law, to directly link
the seized property to illegal activity, the Supreme Court, nonetheless, held that, at
most, the Commonwealth established nothing “more than the suspicion of a
possible nexus between” the seized property and illegal drug activity. Id. at 579.
The court explained:
             It is undisputed that no drugs or drug paraphernalia were
             discovered in the car in which Appellant was riding, or
             on the persons of Appellant or his two companions.
             Moreover, Appellant gave uncontested testimony that he
             had never been arrested on drug charges and had no prior
             convictions of any kind. And, although the $3,400.00
             was bundled in a way drug dealers have been known to


(continued…)

                  knowledge or consent must be reasonable under the
                  circumstances presented.



                                          8
            arrange their money, such an arrangement is equally
            consistent with an innocent person’s attempt to simplify
            and promote precision in the counting of lawfully
            obtained funds.
                   The fact that the drug-sniffing dog alerted on the
            cash is also not dispositive of the issue. A completely
            innocent citizen of this Commonwealth could have in his
            or her possession, at any time, currency that happened to
            be involved in a drug transaction at some unknown time
            in the past. The fact that on August 10, 1993 Appellant
            found himself in the possession of one, or several, such
            bills of currency is insufficient to sustain the
            Commonwealth’s clearly established burden to prove at
            the outset that the money seized has a nexus to some
            unlawful activity on the part of Appellant. Even when
            considered in conjunction with all the other facts relied
            upon by the trial court in this case, the residual presence
            of drugs on some part of the $3,400.00 in question
            establishes only the possibility or the suspicion of a
            nexus between the money and some type of drug activity.
Id.
            Freeman’s written argument on this first issue comprises barely a page
of his brief. Freeman contends:
                  Appellant’s case mirrors the case in Marshall.
            During the hearings on the Petition to Return Seized
            Property Officer Bialik of the Ambridge Borough Police
            Department was called to testify.               Under
            cross-examination the Officer . . . was asked:
                        “Q. Were there any drugs in the
                        car?
                        A.    No, there was no drugs in the
                        car.
                        Q.    Did he have any drugs on him?
                        A.    No.
                        Q.    Was there a weapon violation?
                        A.    No.” (R.R. 60.)


                                        9
                    A canine was utilized to perform a search of the
             vehicle for drugs. The canine gave an alert that there
             might have been drugs in the vehicle but no narcotics
             were found. (R.R. 60-61) No drugs were found on
             Appellant. There were no drugs found in Mr. Freemen’s
             (sic) vehicle. The officer did not charge the Appellant
             with a firearm violation. The record is void of any fact or
             circumstance that indicates that . . . Mr. Freemen (sic)
             was involved in drug activity. The Appellant’s case
             mirror’s the same facts that existed in Marshall, where
             the Pennsylvania Supreme Court found that there was no
             nexus between the money and drug activity.

(Freeman Br. at 8-9.)
             Freeman’s argument as to his first issue, then, is that there can be no
sufficient and substantial nexus to support forfeiture of cash where law
enforcement does not find illegal drugs in close proximity to the cash or on
someone’s person. Freeman also argues that there can be no forfeiture because
Freeman was not charged with the crime. Both arguments, however, ignore the
Pennsylvania Supreme Court’s decision in Esquilin, wherein the court held:
“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.        Furthermore, for
property to be deemed forfeitable, neither a criminal prosecution nor a conviction
is required.” Esquilin, 880 A.2d at 530 (citations omitted).
             Freeman next argues that this case “mirrors the same facts that existed
in Marshall,” and, therefore, demands that same result. (Appellant’s Br. at 9.)
Freeman, however, does not recite the numerous facts found by the trial court to
support its forfeiture decision in this case.     More critically, Freeman fails to
challenge any of the trial court’s findings of fact for lack of substantial evidentiary
support in the record. It is not the role of this Court to examine the record below to

                                          10
identify and address issues and arguments not raised by the appellant. See Boniella
v. Commonwealth, 958 A.2d 1069, 1072 n.8 (Pa. Cmwlth. 2008). Accordingly, for
purposes of this appeal, the trial court’s factual findings are conclusive.
             At issue are three tranches of forfeited cash—(1) approximately
$19,000 found in the trunk; (2) $8,000 found in the center console; and (3) $690
found on Freeman’s person. To begin, we will address the approximately $19,000
in cash found in the trunk of Freeman’s vehicle. The trial court relied on several
facts in concluding that the Commonwealth had met its burden of showing a
substantial nexus between the cash found in the trunk and the illegal drug activity.
First, the trial court relied on the police report of Ms. Tucker, who informed police
that Freeman intended to use cash, located in a box in a white USPS package in the
trunk of his car, to engage in a drug transaction in California. Second, the trial
court relied on the presence of a white USPS package in the trunk of Freeman’s car
matching the description provided by Ms. Tucker. Third, the trial court looked at
the way the cash was packaged, particularly the fact that is was stacked,
surrounded by Bounce dryer sheets, and sealed in Ziploc vacuum bags. Fourth, the
trial court relied on Officer Bialik’s and Agent Opsatnik’s testimony that the
packaging and sealing of cash in this manner, particularly the use of dryer sheets to
mask from K-9 detection any trace odors of drugs from the cash, was consistent
with drug trafficking. Fifth, the trial court relied on text messages recovered from
Freeman’s cell phone, which included California mailing addresses, references to
business transactions, instructions to “pad” money and package so “they’re not
smelling,” and references to strains of marijuana—e.g., Ultra Sonja, Tahoe OG,
Purple Dragon, Orange Kush, Bubba original OG, Skywalker OG.




                                          11
             Based on these findings of fact, unacknowledged and unchallenged by
Freeman on appeal, the trial court did not err in finding it more likely than not that
Freeman intended to use the approximately $19,000 in cash found in the trunk of
his car to purchase a controlled substance, that being marijuana. The factual
findings supporting a substantial nexus between the cash found in the trunk of
Freeman’s vehicle and drug activity are much more compelling than those found
inadequate to support forfeiture in Marshall. Accordingly, we reject Freeman’s
argument that the trial court erred, as a matter of law, in finding a substantial nexus
between the cash found in the trunk of his vehicle and illegal drug activity.
             With respect to the other tranches of forfeited cash, however, the
required substantial nexus is lacking. The trial court’s opinion seems to lump
together the separate tranches of cash in the analysis. Key to the trial court’s
substantial nexus mosaic was Ms. Tucker’s testimony, alerting police to the cash in
the trunk, which she specifically identified as cash that Freeman intended to use to
purchase drugs. Ms. Tucker, however, did not alert police to the cash found on
Freeman’s person or the cash found in the passenger compartment of the vehicle.
             The only finding by the trial court relative to these separate tranches
of cash in support of the trial court’s forfeiture decision is that the cash was
bundled in a manner consistent with illegal drug activity. This finding, however,
appears only to apply to the $8,000 (divided and bundled by rubber bands into
$1,000 increments) and not the $690 found on Freeman’s person. Even if the
bundling finding applied to both, under Marshall, such a finding alone is
insufficient to establish a substantial nexus between the forfeited cash and illegal
drug activity.   Moreover, we do not presume that once the Commonwealth
establishes a substantial nexus between cash found in the trunk of a vehicle, that


                                          12
same nexus attaches to all cash found within the vehicle and on the person of the
driver. Even if we considered the passenger compartment of the vehicle and
Freeman’s person to be in “close proximity” to the USPS package found in the
trunk of the vehicle, there is no presumption that all cash found in close proximity
of cash intended to be furnished to purchase drugs is also intended to be furnished
to purchase drugs.        Cf. 42 Pa. C.S. § 6801(a)(6)(ii) (creating rebuttable
presumption that cash found in close proximity to controlled substances are
proceeds from illegal sale of controlled substances). See also Commonwealth v.
Porrino, 96 A.3d 1132, 1142 (Pa. Cmwlth. 2014) (en banc) (rejecting argument
that cash found within “close proximity” of drug paraphernalia should be presumed
to be proceeds of illegal drug activity).
             Here, the Commonwealth claims that the cash found on Freeman’s
person and in the passenger compartment of his vehicle was forfeitable under
42 Pa. C.S. § 6801(a)(6)(i)(A), because Freeman intended to furnish that particular
cash in exchange for a controlled substance. There are, however, no findings by
the trial court adequate to prove such a connection.             Accordingly, the
Commonwealth failed to prove a substantial nexus supporting forfeiture of the
$8,000 found in the center console of Freeman’s vehicle and the $690 found on
Freeman’s person.

                              B. Innocent Owner Defense

             Freeman’s second issue on appeal is whether the trial court erred in
failing to consider Freeman’s “innocent owner” evidence to rebut the
Commonwealth’s prima facie case.             This evidence consisted primarily of
Freeman’s testimony about his sources of income and how the cash found in his
car could be traced to lawful income-producing activities. Freeman denied any

                                            13
connection to drug activity and offered an explanation as to why the cash found in
the trunk of his vehicle was vacuum packed and in a safe. Freeman could not
explain why he sealed the Bounce dryer sheets with the cash. He also offered no
testimony to explain the text messages relied on by the trial court.
             In its opinion, the trial court concluded its analysis by holding that the
Commonwealth established a nexus between the cash found in Freeman’s vehicle
and illegal drug trafficking.     Under the law cited above, however, such a
conclusion merely shifted the burden to Freeman to rebut the Commonwealth’s
case by proving that he was an innocent owner. Here, Freeman attempted to do so
through his own testimony and through the introduction of an exhibit—
Defendant’s Exhibit “A”. Yet the trial court’s opinion omits any analysis of
Freeman’s evidence. We cannot presume from the trial court’s silence that the trial
court rejected Freeman’s evidence, nor will we independently examine the weight
and credibility that should be afforded Freeman’s evidence. See Page’s Dep’t
Store v. Velardi, 346 A.2d 556, 561 (Pa. 1975) (explaining that appellate review
“should not infer from the absence of a finding on a given point that the question
was resolved in favor of the party who prevailed below, for the point may have
been overlooked.”) Therefore, we are constrained to remand this matter to the trial
court to consider, discuss, and make findings regarding Freeman’s rebuttal
evidence and his innocent owner defense.
                               IV.   CONCLUSION
             For the reasons set forth above, we reverse the trial court’s forfeiture
decision with respect to the $8,000 found in the center console of the vehicle and
the $690 found on Freeman’s person.           We vacate the trial court’s forfeiture
decision with respect to the approximately $19,000 found in the trunk of


                                         14
Freeman’s vehicle and remand the matter to the trial court with direction that the
trial court consider Freeman’s “innocent owner” evidence.




                               P. KEVIN BROBSON, Judge




                                       15
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania             :
                                         :
            v.                           :   No. 581 C.D. 2015
                                         :
Allen Freeman,                           :
                         Appellant       :


                                     ORDER


            AND NOW, this 15th day of June, 2016, the order of the Court of
Common Pleas of Beaver County, dated March 11, 2015, denying Appellant Allen
Freeman’s Petition for Return of Property and forfeiting $27,690 to the
Commonwealth of Pennsylvania is REVERSED, in part, and VACATED, in part.
The trial court order is REVERSED with respect to the $8,690 found on
Appellants’ person and within the passenger compartment of his vehicle. With
respect to the remaining approximately $19,000 found in the trunk of the vehicle,
the order is VACATED and the matter REMANDED to the trial court for further
proceedings consistent with the accompanying opinion.
            Jurisdiction relinquished.




                               P. KEVIN BROBSON, Judge
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania                 :
                                             :
                 v.                          :    No. 581 C.D. 2015
                                             :    Argued: April 13, 2016
Allen Freeman,                               :
                        Appellant            :


BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE RENÉE COHN JUBELIRER, Judge
                 HONORABLE ROBERT SIMPSON, Judge
                 HONORABLE P. KEVIN BROBSON, Judge
                 HONORABLE PATRICIA A. McCULLOUGH, Judge
                 HONORABLE ANNE E. COVEY, Judge
                 HONORABLE MICHAEL H. WOJCIK, Judge


DISSENTING OPINION
BY PRESIDENT JUDGE LEAVITT                                            FILED: June 15, 2016

                 The majority’s holding that the $19,000 found in Allen Freeman’s
vehicle was earmarked for marijuana hangs by a slender thread: a single phone
call made by Freeman’s angry girlfriend, Kyahna Tucker, to police on the evening
he left her, taking most of his belongings. Even setting aside the troublesome
circumstances of Ms. Tucker’s accusation, her statement is so devoid of content
and so lacking in corroboration that it cannot support the conclusion that the cash
was “intended to be furnished … in exchange for a controlled substance in
violation of the Controlled Substance, Drug, Device and Cosmetic Act.”1 42 Pa.
C.S. §680(a)(6)(i)(A). Most critical is the absence of a shred of evidence to



1
    Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§780-101 – 780-144.
connect Freeman’s supposed marijuana purchase in California back to
Pennsylvania.2 Accordingly, I must respectfully dissent.
               The act commonly referred to as the Controlled Substances Forfeiture
Act (Forfeiture Act) authorizes the forfeiture of cash that is

               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, and all
               proceeds traceable to such an exchange.

42 Pa. C.S. §6801(a)(6)(i)(A) (emphasis added).3 The Commonwealth asserted
that Freeman “intended” the $19,000 “to be furnished” in exchange for marijuana.


2
  I agree with the majority’s reversal of the trial court’s decision to forfeit the $8,000 in cash
found in the center console of Allen Freeman’s vehicle and the $690 in cash found in his wallet.
About this cash, the Commonwealth presented no evidence whatsoever. I also agree with the
majority that the trial court erred by not considering, or ruling upon, Freeman’s innocent owner
defense.
3
  The Forfeiture Act states in relevant part:
       (a) Forfeitures generally.--- The following shall be subject to forfeiture to the
       Commonwealth and no property right shall exist in them:
                                              ***
              (6)(i) All of the following:
                      (A) Money, negotiable instruments, securities or
                           other things of value 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, and all proceeds traceable to
                           such an exchange.
                      (B) Money, negotiable instruments, securities or
                            other things of value used or intended to be
                            used to facilitate any violation of The
                            Controlled Substance, Drug, Device and
                            Cosmetic Act.
42 Pa. C.S. §6801(a)(6)(i)(A), (B).


                                            MHL-2
Id. Freeman responded that Ms. Tucker’s accusation was false and that, in any
case, the Commonwealth did not establish a substantial nexus between the $19,000
seized from his car and a future purchase of marijuana. At best, it raised a
suspicion. As our Supreme Court instructed in Commonwealth v. Marshall, 698
A.2d 576, 579 (Pa. 1997), a suspicion will not support the forfeiture of a citizen’s
property.
               No one witnessed an illegal drug transaction; no drugs or drug
paraphernalia were found on Freeman or in his car; and Freeman has no criminal
history of any sort, let alone one involving drugs. Ms. Tucker called the police the
evening of December 14, 2014, to report her quarrel with Freeman and that in the
trunk of his car there was a white United States Postal Service (USPS) box
containing cash. At the forfeiture hearing, she testified as follows:

             Q.     Did you tell the police what that money was for?
             A.     Yes.
             Q.     And what did you tell them?
             A.     He used it to sell weed from California.
             Q.     And did you tell them anything else about what the plans
                    were for that money?
             A.     I just know he was going to send it off to California.

Reproduced Record at 36 (R.R. ___). There are numerous problems with Ms.
Tucker’s testimony.
             First, at the hearing, Ms. Tucker merely confirmed what she said to
police on the evening in question. She did not confirm that what she said in her
phone call was, in fact, true.



                                       MHL-3
              Second, Ms. Tucker offered no corroboration of her accusation. She
did not say how she learned about Freeman’s alleged plans for the cash in his
trunk. She stated that he “was going to send it off to California,” R.R. 36, and that
she told police he was going “to sell weed from California.” Id. But she did not
offer a name or address in California or where or to whom Freeman planned to sell
this “weed.” She did not testify that she ever saw Freeman sell marijuana in
Pennsylvania, or anywhere.
              Third, Ms. Tucker’s statement did not establish, as argued by the
Commonwealth, that Freeman was on the verge of initiating the supposed purchase
because he was on his way to the post office. It is the rare post office that has
evening hours. Further, the USPS box, which contained a small safe in which the
cash was secreted, was not addressed and lacked postage. It was not ready to be
mailed.    Freeman had plenty of time, in other words, to change his mind.4
Crediting Ms. Tucker’s testimony established, at most, an inchoate plan to
exchange the cash for marijuana somewhere in the State of California.
              Fourth, Ms. Tucker did not testify that her boyfriend’s California
vendor was going to send marijuana to Pennsylvania. For all we know, it was
Freeman’s “intention” to have the vendor send the marijuana to Colorado, where it
is lawful to “sell weed.” Ms. Tucker did not specify whether Freeman was a
wholesaler or retailer, and she did not identify his market territory.
              In principle, circumstantial evidence can support the findings
necessary for a forfeiture.      In its case in chief, however, the Commonwealth

4
 Ms. Tucker did not say how Freeman was going to send the cash “off to California,” whether
by USPS, UPS or by driving it himself. Under any of these scenarios, there was time for
Freeman to decide to do something else with the cash, assuming that when he left Ms. Tucker he
had an intention to purchase marijuana in California.


                                          MHL-4
offered a thin slice of swiss cheese consisting of more holes than dairy product. It
is not the job of the courts to fill in the holes of the Commonwealth’s case with
inferences that favor the Commonwealth. Commonwealth v. Porrino, 96 A.3d
1132, 1141 (Pa. Cmwlth. 2014) (holding that where circumstantial evidence can
support an inference of innocent activity, there must be other evidence to rule out
the innocent explanation).     Here, the Commonwealth needed to rule out the
possibility that the marijuana to be purchased in California was then going to be
delivered to a state where marijuana can be lawfully enjoyed. Our Supreme Court
has refused to allow circumstantial evidence to make the Commonwealth’s case
when that evidence is “equally consistent with [the action of] an innocent person[
].” Marshall, 698 A.2d at 579.
             The terms of the Forfeiture Act are to be strictly construed because
forfeiture is not favored in the law. See United States v. One 1936 Model Ford V-8
De Luxe Coach, 307 U.S. 219, 226 (1939) (explaining that “[f]orfeitures are not
favored; they should be enforced only when within both [the] letter and spirit of
the law.”); Commonwealth v. $2,523.48 U.S. Currency, 649 A.2d 658, 660-61 (Pa.
1994) (“The authorization of forfeiture by statute is to be strictly construed.”). The
Forfeiture Act does not define what is meant by “intended to be furnished.”
However, intent is more than a subjective desire or hope. As the Pennsylvania
Superior Court has observed:

             [A] person’s mind cannot be opened so that his or her intent can
             be observed. In the absence of a declaration disclosing a
             person’s intent, therefore, one “can only look to the conduct and
             the circumstances surrounding it to determine the mental state
             which occasioned it.”




                                       MHL-5
Commonwealth v. Wright, 433 A.2d 511, 513 (Pa. Super. 1981) (quoting
Commonwealth v. O’Searo, 352 A.2d 30, 37 (Pa. 1976)). To forfeit cash “intended
to be furnished” for a controlled substance, the evidence must offer specifics about
that intent, such as the place, day and hour of the putative exchange. 42 Pa. C.S.
§6801(a)(6)(i)(A).     There must be temporal imminence with little chance of
backing out of the deal. Ms. Tucker said nothing to indicate that Freeman’s
supposed purchase was imminent.
              In a forfeiture proceeding, the evidence must be of a quality that it
establishes a “substantial nexus” between the property and illegal drug trafficking.
Although $19,000 is a large amount of cash, “[i]t is not against the law to carry
cash.” Commonwealth v. $9,000 U.S. Currency, 8 A.3d 379, 388 (Pa. Cmwlth.
2010). Likewise, it is not unlawful to put cash in a safe and then hide the safe in a
USPS box to protect against theft as Freeman explained.                  R.R. 149.      The
Commonwealth has a more difficult forfeiture case to make whenever, as here, the
police have not “witnessed any suspicious activity.” Commonwealth v. Fontanez,
739 A.2d 152, 155 n.4 (Pa. 1999) (emphasis added).5 The evidentiary burden is
even higher where, as here, the alleged violation of the Controlled Substance,
Drug, Device and Cosmetic Act lies at an unknown time in the future.
              The Commonwealth’s evidence did not meet the “substantial nexus”
quality standard. Ms. Tucker’s accusation provided zero information about how,




5
  The majority correctly cites Commonwealth v. $6,425.00 Seized From Richard Esquilin, 880
A.2d 523, 529 (Pa. 2005), for the proposition that the Commonwealth can satisfy its burden of
proof with circumstantial evidence. However, Esquilin involved a drug transaction that had
already been completed, not one that was scheduled for some unknown point in the future.


                                          MHL-6
where, when and with whom the alleged future exchange would occur.6 At the
conclusion of the Commonwealth’s case, the trial court observed that “[t]here may
be some suspicion [of a drug connection] and maybe a further investigation is
necessary.” R.R. 157. Inexplicably, the trial court later reversed itself, finding
Tucker’s testimony sufficient to show that Freeman “intended to furnish” his cash
to a California contact “in furtherance of a plot to traffic marijuana.” Trial Court
op. at 14. The trial court got it right the first time.
              Simply, the Commonwealth did not make a prima facie case. At best,
it established a suspicion that Freeman’s cash was intended to be furnished to
someone in California in exchange for marijuana. Without evidence of where the
marijuana was to be sent, the Commonwealth did not show that Freeman’s
supposed purchase would even violate the Pennsylvania Controlled Substance,
Drug, Device and Cosmetic Act, a statute that does not have an extra-territorial
reach. In short, it is not necessary to rule on Freeman’s defense.7 I would reverse
the trial court and order all of the $27,690 returned to Allen Freeman.

                                        ______________________________________
                                        MARY HANNAH LEAVITT, President Judge

Judge McCullough and Judge Wojcik join in this dissent.



6
  I join Judge Wojcik’s well-reasoned dissent, which astutely observes that Ms. Tucker’s
expressed belief about Freeman’s future intent was not “corroborated” simply because her
factual statement that there was cash in the trunk of Freeman’s vehicle turned out to be true.
7
  Under oath, Freeman denied selling, using or possessing marijuana. He also explained how he
came to accumulate the cash and was candid about the fact that he did not report his income from
his high end sneaker business to taxing authorities. Unlike Ms. Tucker, Freeman provided
substantive information and supporting documents, none of which was refuted by the
Commonwealth.


                                           MHL-7
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania             :
                                         : No. 581 C.D. 2015
                   v.                    : Argued: April 13, 2016
                                         :
Allen Freeman,                           :
                                         :
                          Appellant      :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge


DISSENTING OPINION
BY JUDGE WOJCIK                                           FILED: June 15, 2016


             I respectfully join in President Judge Leavitt’s thoughtful dissenting
opinion. I write separately to emphasize that Kyahna Tucker’s testimony does not
constitute evidence tending to establish any uncontested fact because it lacks
foundation and is speculative. With respect to Allen Freeman’s plans, Tucker did
not explain, nor was she asked to explain, how she “just knew” or why she
believed that Freeman intended to use the cash to purchase marijuana from
California and then sell it…somewhere. Mere speculation cannot tip the scales to
render the evidence that is legally insufficient on its own sufficient to establish a
prima facie case. Commonwealth v. Marshall, 698 A.2d 576 (Pa. 1997).
             The fact that Tucker’s statements that an unspecified sum of money
and a USPS box were in the trunk of Freeman’s car proved true in no way offsets
the utter lack of corroboration, and the speculative nature, of her remaining
testimony.    To the extent the trial court relied on such reverse-engineered
corroboration to lend credibility to the entirety of her brief testimony is of no
moment, because a mere expression of belief is not proof of any fact.
             I fear that the majority’s holding will lead to unintended consequences
and mischief, as now speculation and uncorroborated testimony in furtherance
thereof will hereafter establish the required nexus between property and illegal
drug activity.   According to the majority’s logic, anyone possessing property
would have that property subject to forfeiture upon another identifying the property
generally, providing the situs of the property, and opining that the property is
somehow involved in the drug trade.




                                        MICHAEL H. WOJCIK, Judge



President Judge Leavitt joins in this dissent.




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