             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania                :
                                            :
               v.                           : No. 1664 C.D. 2017
                                            : Submitted: November 13, 2018
Marcus A. Green,                            :
                       Appellant            :


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE ELLEN CEISLER, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                           FILED: December 6, 2018


               Marcus A. Green (Green) appeals from the Court of Common Pleas of
Delaware County’s (trial court) forfeiture Order dated October 5, 2017, ordering the
forfeiture of $3,343 because that money was found in close proximity to controlled
substances as defined in The Controlled Substance, Drug, Device and Cosmetic Act
(Act).1


                                                 I.
               In March 2015, after observing Green make three hand-to-hand
controlled buys of cocaine to a confidential informant, the Upper Darby Narcotics


      1
          Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101 – 780-144.
Unit and Delaware County Drug Task Force executed a search warrant for Green’s
residence located at 945 Fariston Road, Drexel Hill, Pennsylvania. Upon entering the
residence, they discovered Green and Monique Edwards (Edwards), his girlfriend, in
the living room.


             From its search of the residence, the police discovered the following
pertinent items:

                  $6,000 United States cash currency;

                  $3,343 United States cash currency;

                  $60 United States cash currency;

                  A round green pill;

                  A plastic bag with numerous green Ziploc bags;

                  A knotted sandwich bag filled with a hard white
             substance (later identified as crack cocaine);

                  Three units of 8 mg Suboxone sublingual strips;

                  A tissue containing three round peach pills;

                  A can with a false bottom containing four Ziploc
             bags each filled with more Ziploc bags;

                  Two black and silver digital scales with white
             residue;

                  A razor blade with residue;

                  Two round white pills;

                  A fully loaded Ruger .380 automatic handgun; and



                                            2
                      A box of 9 mm ammunition.


                On Green’s person, there was $3,343, along with the green pill later
identified as 15 mg of Oxycodone, a Schedule II narcotic.2 Additionally, $6,000 and
two round white pills identified as Oxycodone/Acetaminophen, also a Schedule II
narcotic, were found in a hollowed-out book.3


                After a jury trial, Green was convicted of three counts of Possession of a
Controlled Substance,4 two counts of Conspiracy to Possess a Controlled Substance,5
three counts of Possession of Drug Paraphernalia,6 and one count of Possession of a
Firearm by Prohibited Persons.7 On April 25, 2017, the trial court sentenced Green to
an aggregate sentence of four to ten years’ imprisonment.


                At the sentencing hearing, Green’s counsel stated:

                [A]s my client was walking up, [Commonwealth’s counsel]
                did present me with an order in reference to forfeiting
                money, iPhones, and scales. For the record, Your Honor, in
                speaking with my client he has no – we have no objection to

      2
          Section 4(2), 35 P.S. § 780-104(2).

      3
          Id.

      4
          Section 13(a)(16), 35 P.S. § 780-113(a)(16).

      5
          18 Pa.C.S. § 903.

      6
          Section 13(a)(32), 35 P.S. § 780-113(a)(32).

      7
          18 Pa.C.S. § 6105(a)(1).




                                                  3
              that. It’s not something that we are attempting to contest or
              anything like that. We agree that that’s appropriate given
              these set of facts. We would encourage the Court to sign
              the order.


(Reproduced Record (R.R.) at 326a.) As requested, the trial court entered an order
directing that $9,4038 be forfeited to the Commonwealth.9


              However, upon obtaining new counsel, on May 5, 2017, Green filed with
the trial court a Post-Sentence Motion for Reconsideration of its April 25, 2017 order
requesting the return of $9,343. Citing to Commonwealth v. Porrino, 96 A.3d 1132
(Pa. Cmwlth. 2014) (holding where circumstantial evidence can support an inference
of innocent activity, there must be other evidence to rule out the innocent
explanation), Green contended that the money should not have been forfeited because
there was an insufficient nexus between the money and the drugs.


              After holding a hearing on the issue, the trial court granted
reconsideration only to the $3,343 found on Green’s person but not to the $6,000
discovered in the hollowed-out book. The trial court order stated:

              [I]t is hereby ORDERED and DECREED that said relief is
              GRANTED in part and DENIED in part, as follows:
              reconsideration is granted as to the $3343.00 found on the


       8
         This amount included the $9,343 belonging to Green and the $60 belonging to Edwards.
Only the forfeiture of $9,343 is being challenged in this appeal.

       9
      Green appealed his conviction to the Superior Court, which affirmed the trial court. See
Commonwealth v. Green (Pa. Super., 1671 EDA 2017, filed Aug. 13, 2018).




                                              4
             Defendant’s person ONLY.         Commonwealth may file a
             forfeiture petition.


(R.R. at 398a.) (Emphasis in original.)


             The Commonwealth then filed a petition arguing that the $3,343 should
beforfeited as derivative contraband. At the hearing, after admitting that the
Commonwealth met its prima facie case, Green attempted to establish that the $3,343
was from other sources. He submitted a photocopy of debit and credit cards issued to
him through his ownership interest in First Class Auto, L.L.C. (First Class Auto).
Green also submitted three bank statements from Bank of America for First Class
Auto. The first statement was from August 1, 2017 to August 31, 2017. The second
was from June 1, 2016, to June 30, 2016. The final statement was from November 1,
2015, to November 30, 2015. All three statements showed that the business was still
active as of those dates but none of the three statements showed the business’s status
as of the date of Green’s arrest in March 2015. Green also submitted his federal
income tax return for tax year 2015 showing that Green had a total income that year
of $9,950.


             On October 5, 2017, the trial court ordered the forfeiture of the $3,343,
which Green appealed. In Green’s Concise Statement of Errors Complained of on
Appeal, he alleged that the scope of his appeal encompassed the July 12, 2017 order
denying his Post-Sentence Motion for Reconsideration of return of his $6,000:

             1.    The Commonwealth failed to carry its burden of
             proof to establish that Six Thousand Dollars ($6,000.00)
             discovered in the false center of a book, was furnished in
             exchange for a controlled substance, or was used or

                                          5
            intended to be used to facilitate any violation of the
            Controlled Substance, Drug, Device and Cosmetic Act
            pursuant to 42 Pa.C.S.[] § 5802 and 5805. And therefore,
            the Honorable Court erred by denying Defendant Marcus A.
            Green’s post-sentence motion for reconsideration for return
            of property pursuant to the Order dated July 12, 2017.

            2.    The Commonwealth failed to carry its burden of
            proof to establish that Three Thousand Three Hundred
            Forty-Three Dollars ($3,343.00) discovered on Marcus
            Green’s person, was furnished in exchange for a controlled
            substance, or was used or intended to be used to facilitate
            any violation of the Controlled Substance, Drug, Device
            and Cosmetic Act pursuant to 42 Pa.C.S.[] § 5802 and
            5805. And therefore, the Honorable Court erred by denying
            Defendant Marcus A. Green’s post-sentence motion for
            reconsideration for return of property pursuant to the Order
            dated October 5, 2017.


(R.R. at 418a – 419a.)


            In addressing the statement of error regarding the $6,000, the trial court
stated:

            This Court is surprised that [Green] included the $6,000.00
            in the book in his matters complained of on appeal. [Green]
            did not argue anything about the $6,000.00 at the forfeiture
            hearings. It is this Court’s understanding that [Green]
            agreed with the Commonwealth not to challenge the
            forfeiture of this money that was agreed to at sentencing.
            Accordingly this issue is waived. The only money at issue
            at the forfeiture hearing was the money recovered from
            [Green’s] person at the time of his arrest. This sum was
            stated as $3,403 in the Commonwealth’s forfeiture petition
            and corrected to $3,343.00 by stipulation at the hearing.


(R.R. at 423a – 424a.)

                                         6
                                               II.
              On appeal, Green raises two issues: (1) whether the trial court erred in
finding that the $6,000 found in the hollow book was subject to forfeiture, and (2)
whether Green met his burden to rebut the presumption that the $3,343 found on his
person was subject to forfeiture. However, before we can address the first question,
we must first address the ability of Green to challenge the July 12, 2017 order
denying his request for reconsideration pertaining to the forfeiture of the $6,000.10


                                               A.
              The trial court found that Green waived his challenge to the portion of
the July 12, 2017 order denying Green’s request for reconsideration of the forfeiture
of the $6,000 found in the hollowed out book. Whether the issue is waived is
determined by whether the order of July 12, 2017 was interlocutory or final. If it is a
final order, then the issue is waived because Green would have been required to
appeal it within 30 days. Pa.R.A.P. 903(a). However, if it was an interlocutory
order, the appeal could not be taken from that order until the forfeiture proceeding
regarding the $3,343 had concluded.


              What occurred here is analogous to what occurs when a trial court
dismisses some but not all counts in a complaint.                In the context of an order
dismissing some but not all counts of a multi-count complaint, the order is deemed


       10
           The Commonwealth Court’s scope of review in a forfeiture appeal is whether the findings
of fact made by the trial court are supported by substantial evidence and whether the court abused
its discretion or committed an error of law. Commonwealth v. $11,600.00 Cash, 858 A.2d 160 (Pa.
Cmwlth. 2004).




                                                7
interlocutory and not appealable.              Zikria v. Association of Thoracic and
Cardiovascular Surgeons, P.C., 637 A.2d 1367, 1369 (Pa. Super. 1994). To find that
this is an interlocutory order also serves the purpose of the rule precluding piecemeal
appeals and the consequent protraction of litigation.                    Danko Development
Corporation v. Econocast Corporation, 534 A.2d 1108, 1110 (Pa. Super. 1987).
Because the order is interlocutory, it could not be appealed until the matter of the
$3,343 had concluded, which gave Green the ability to appeal whether the $6,000
was subject to forfeiture. Now to the merits.


                                              III.
                                               A.
              First, we will address the trial court’s order finding that $3,343 found on
Green’s person was subject to forfeiture.


              The Forfeiture Act (Act)11 permits the forfeiture of money exchanged for
drugs used or intended to be used to facilitate any violation of the Act. 42 Pa.C.S. §
5802. In a forfeiture case, the Commonwealth bears the burden of establishing by a
preponderance of the evidence that a nexus exists between the pertinent unlawful
activity and the property subject to forfeiture. Commonwealth v. All That Certain
Parcel and Lot of Land Located at 4029 Beale Avenue, Altoona, Blair County,
Pennsylvania, 680 A.2d 1128 (Pa. 1996).                 Preponderance of the evidence is
tantamount to a “more likely than not” standard. Commonwealth v. $32,950 U.S.


       11
          The Pennsylvania Legislature recently rewrote the forfeiture statutes by the Act of June
29, 2017, P.L. 247, made effective July 1, 2017. The Forfeiture Act is now codified at 42 Pa.C.S.
§§ 5801 -5808.



                                                8
Currency, 634 A.2d 697, 698 n.9 (Pa. Cmwlth. 1993). Once the Commonwealth has
sustained its burden of proof, the burden then shifts to the property owner to prove (1)
that he is the owner of the money; (2) that he lawfully acquired the money; and (3)
that the money was not unlawfully used or possessed by him. Commonwealth v.
$16,208.38 U.S. Currency Seized from Holt, 635 A.2d 233, 238 (Pa. Cmwlth. 1993).


             When money is found in close proximity to controlled substances
possessed in violation of the Act, it shall be a rebuttable presumption that the money
is proceeds derived from the selling of a controlled substance.          42 Pa.C.S. §
5802(6)(ii). Green concedes that the Commonwealth met its initial burden of proving
a substantial nexus between the money and the drugs because both the $3,343 and the
15 mg of Oxycodone were found on Green’s person. There is also no question that
the money was “in close proximity” to the controlled substance making the issue
whether or not Green rebutted the presumption that the money should be forfeited by
establishing that the money was obtained lawfully.


             Green argues that his testimony that he lawfully obtained the money
forfeited based on his interest in First Class Auto, aFirst Class Auto bank statements
as well as photocopies of debit and credit cards issued to him through his ownership
in the business fulfilled his burden to rebut the presumption that the money should be
forfeited.


             The trial court found, however, that Green’s testimony that the cash
came from his interest in a used car lot was not credible. It did so because the
evidence and testimony regarding Green’s bank statements shows only the beginning



                                           9
balance of his account on August 1, 2017, June 1, 2016, and November 1, 2015, as
well as the amount of deposits and total withdrawals from those months.
Furthermore, Green’s 2015 federal income tax return shows that his total income for
his business was $9,950. His adjusted gross income was $9,247. No explanation was
offered that the $3,343 in cash was earned through his business or that he withdrew
the money from his account.


             Because Green failed to sustain his burden to show that the $3,343 was
not derived from the selling of a controlled substance, the trial court properly granted
the Commonwealth’s petition to forfeit those funds.


                                           B.
             Now we address his appeal from the trial court’s order denying
reconsideration of the forfeiture of the $6,000. In his brief, Green states the issue as:

             Whether Appellee failed to carry its burden of proof to
             establish that Six Thousand Dollars ($6,000.00) discovered
             in the false center of a book, was subject to forfeiture
             pursuant to 42 Pa.C.S. §[§] 5802 and 5805; and therefore
             whether the Honorable Court below erred by denying
             Appellant's Post-Sentence Motion for Reconsideration for
             Return of Property pursuant to the Order dated July 12,
             2017.


(Appellant’s Brief, p. 6.)


             Green misstates the burden of proof. When the trial court considered the
motion for reconsideration, it was not incumbent on the Commonwealth to offer any



                                           10
proof as to why the $6,000 should not be forfeited. On the contrary, it was incumbent
on Green, as the moving party, to prove to the trial court that the forfeited property
Green had agreed was subject to forfeiture should be reconsidered. A motion for
reconsideration “is addressed to the sound discretion of the trial court.” Moore v.
Moore, 634 A.2d 163, 166 (Pa. 1993). Absent the trial court’s abuse of discretion,
we will not disturb the trial court’s denial of reconsideration. Belleville v. David
Cutler Group, 118 A.3d 1184, 1194 (Pa. Cmwlth. 2015).


             In this appeal, it was incumbent on Green to make the argument as to
why the trial court abused its discretion by not granting the petition for
reconsideration for the $6,000 found not on his person while granting the $3,343
found on his person. Because Green does not address this issue on appeal, that issue
is waived.


             Accordingly, we affirm the decision of the trial court.



                                       __________________________________
                                       DAN PELLEGRINI, Senior Judge

Judge Fizzano Cannon did not participate in the decision of this case.




                                          11
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania        :
                                    :
            v.                      : No. 1664 C.D. 2017
                                    :
Marcus A. Green,                    :
                   Appellant        :




                                  ORDER


            AND NOW, this 6th day of December, 2018, the order of the Court of
Common Pleas of Delaware County dated October 5, 2017, is affirmed.



                                    __________________________________
                                    DAN PELLEGRINI, Senior Judge
