                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania                   :
                                               :   No. 2085 C.D. 2016
                v.                             :
                                               :   Submitted: April 28, 2017
$3,487.17 U.S. Currency                        :
                                               :
Appeal of: Timothy Baldwin                     :



BEFORE:         HONORABLE MARY HANNAH LEAVITT, President Judge
                HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                             FILED: August 14, 2017


                Timothy Baldwin (Appellant) appeals pro se from the September 12,
2016 order of the Court of Common Pleas of Lancaster County (trial court), granting
the petition of the Commonwealth of Pennsylvania for forfeiture of $3,487.17 seized
from Appellant’s brother and their shared residence following his brother’s arrest,
and seized from Appellant following his arrest on an outstanding warrant and a
search of his vehicle.
                Appellant and his brother, Kyle Baldwin (Kyle), resided at 539
Woodward Street in Lancaster City. On October 26, 2013, detectives from the
Lancaster City Bureau of Police were called to assist with a shooting investigation at
this address.        During a search of the residence, police seized a firearm, crack cocaine
found in two separate locations, and cash. The cash was seized both from Kyle’s
person ($217.17) and from underneath a couch cushion ($2,500.00). (Trial court op.
at 7.) Two bags of cocaine were also found underneath the couch cushion. (Notes of
Testimony (N.T.), September 8, 2016, at 15.) Kyle was charged with possession with
intent to deliver, receiving stolen property, discharge of a firearm into an occupied
structure, and recklessly endangering another person. Id. at 10-11. Kyle ultimately
pled guilty to possession with intent to deliver on October 2, 2014. Id. at 35.
             On December 18, 2013, police conducted a traffic stop and arrested
Appellant for the charge of intimidation of a witness/victim. Although not entirely
clear in the record, it appears this charge stemmed from the October 26, 2013 incident
at his home. A search of Appellant incident to the arrest found $770.00 in cash on
Appellant’s person and in his vehicle. Additionally, a further search of Appellant and
his vehicle discovered 81 bags of heroin, and 36 bags of crack cocaine, leading to the
charge of possession with intent to distribute.         (Affidavit of Probable Cause
(Affidavit).) Following a criminal trial, Appellant was found guilty of possession
with intent to distribute. (Notes of Testimony (N.T.), September 8, 2016, at 27-28.)
             On October 15, 2015, the Commonwealth filed a petition seeking
forfeiture of the entire $3,487.17 in cash recovered during both investigations/arrests.
Kyle filed an answer to the forfeiture petition on November 16, 2015. Appellant did
not respond to the petition, but did file two motions seeking a return of property.
(Trial court op. at 2.) The first motion was dated September 30, 2015, but not
received by the clerk of the trial court until October 13, 2015, and sought the return of
$770.00 and an “I-phone” seized during the December 18, 2013 arrest. The second
motion was filed November 18, 2015, and sought return of the full $3,487.17 in cash.
             A forfeiture hearing was held on September 8, 2016. At the start of the
hearing, when asked by the trial court if he was ready to proceed without counsel,



                                           2
Kyle stated that he did not wish to proceed and that he was forfeiting all claims of
right, title, and interest to the $3,487.17 in United States currency without the need
for a hearing.        (N.T., September 8, 2016, at 5-7.)             The hearing for Appellant
proceeded, with the Commonwealth presenting the testimony of Sergeant William
Breault (Breault), a detective assigned to the Violent Crime Unit of the Lancaster
Bureau of Police. (N.T., September 8, 2016, at 8-9.) His testimony pertained to both
the October 26, 2013 investigation and the December 18, 2013 arrest of Appellant.
(Trial court op. at 7.)
                 Breault testified that an initial search and subsequent search warrant
were executed at 539 Woodward Street on October 26, 2013. In the course of that
search, officers identified that Kyle had a bedroom on the second floor which was
padlocked, and that Appellant also resided at the address. (N.T., September 8, 2016,
at 9-10.) He confirmed that crack cocaine was located at two separate locations
within the residence, and “a significant amount of money” was also located in the
residence. Id. Breault testified that he personally did not document the recovery of
the money. Id. at 14. However, he did testify that $2,500.00 was recovered from
under a couch cushion. Id. at 15. Breault later testified that $217.17 was recovered
from Kyle’s person. Id. at 17. Breault also testified that evidence cards prepared by
a different officer indicated that when Appellant was arrested, $770.00 was seized,
along with 69 bags of heroin and 36 bags of crack cocaine.1 Id. at 20. The report
specifying the locations of the items was prepared by a different officer; Breault
testified that “some items” were located in the center console, while others were




       1
           The Notes of Testimony do not indicate the date of Appellant’s arrest.



                                                   3
located on Appellant’s person.2          Id. at 20-21.       On cross-examination, Breault
indicated that no currency was found in Kyle’s locked bedroom. Id. at 22.
              Appellant thereafter testified on his own behalf. He claimed the total
amount of the currency was his, and the money was to be used to get an apartment.
He later conceded that the money found on Kyle’s person did not belong to
Appellant. He denied all knowledge of the activity in the house. He testified that he
asked Kyle to hold the $2,500.00 for him while he was looking for an apartment.
Appellant presented his barber’s license to the trial court, but provided no other
documentation of employment, claiming that the barber business was a cash-only
business, and he had not filed a tax return because he was arrested at the end of 2013.
He claimed the $770.00 seized at the time of his arrest was from his employment as a
barber, and identified two barber shops at which he had been employed. He later
admitted to having a drug problem, and indicated that recreational drug activity was
the planned use for the money. Id. at 24-33. At the conclusion of the hearing, the
trial court noted that the burden of proof on the Commonwealth was a preponderance
of the evidence. The trial court concluded that the evidence was “overwhelming” to
show a nexus between the drugs and money. Id. at 35.
              On September 12, 2016, the trial court entered an order granting the
Commonwealth’s forfeiture petition, forfeiting Appellant’s claim of right, title and
interest in the $3,487.17 U.S. currency to the Commonwealth of Pennsylvania, Office
of the District Attorney of Lancaster County, pursuant to section 6801(a) of the




       2
         The Notes of Testimony indicate that $700 was on Appellant’s person, but this information
was not part of Breault’s testimony. (N.T., September 8, 2016, at 30).




                                                4
Forfeiture Act, 42 Pa.C.S. §6801(a).3 (Trial court op. at 2.) On October 20, 2016,
Appellant mailed a pro se notice of appeal from the order of September 12, 2016,
which was entered and filed on October 26, 2016. On November 1, 2016, the trial
court entered an order directing Appellant file a statement of errors complained of on
appeal (Statement of Errors) within 21 days. (Trial court op. at 3.) Appellant filed a
statement pursuant to Pa.R.A.P 1925(b) on November 18, 2016, alleging in part that
the currency was illegally seized and illegally deemed contraband, and that the
seizure violated his due process rights. (Statement of Errors, Paragraph 1.)
                In a subsequent opinion in support of its order, the trial court first noted
that Appellant’s appeal should be quashed because it was not timely filed, i.e., it was
not filed within 30 days after the entry of the order from which the appeal was taken
as required by Pennsylvania Rule of Appellate Procedure (Pa.R.A.P.) 903. (Trial
court op. at 3.) Nevertheless, the trial court stated that the Commonwealth would
also prevail on the merits, since the Commonwealth established a “sufficient or
substantial nexus” between the property in question and a violation of The Controlled
Substance, Drug, Device and Cosmetic Act.4 The trial court stated that the cash
seized was found within an arm’s length of drugs, triggering the rebuttable
presumption in section 6801(a)(6)(ii) of the Forfeiture Act. The trial court found that
the Appellant was not a credible witness and did not establish that he lawfully
acquired, possessed, or used the cash. (Trial court op. at 4, 9) (citations omitted).


       3
          By separate order of the same date, the trial court declared that all claims of right, title, and
interest of Kyle in the $3,487.17 case were terminated, revoked, and rendered null and void, and
directed that said monies be forfeited to the Commonwealth of Pennsylvania, Office of the District
Attorney of Lancaster County.

       4
           Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§780-101 — 780-144.



                                                    5
            Appellant filed an appeal to the Superior Court on November 8, 2016.
By order dated December 12, 2016, the Superior Court directed Appellant to show
cause as to why his appeal should not be quashed as untimely, and why his appeal
should not be transferred to this Court. On December 21, 2016, Appellant filed a
response to that order. Appellant did not object to the transfer of his appeal to this
Court. Appellant also explained that he did not receive the order dated September 12,
2016, granting forfeiture of the property. Appellant claimed that after the forfeiture
hearing, he was transferred to SCI-Camp Hill, and not returned to his original place
of confinement (SCI-Houtzdale) until October 18, 2016. Appellant also claimed that
while away from his home prison, he did not have access to his legal paperwork, or to
a source of money for legal filings. Appellant filed his appeal once he was returned
to his home prison, despite having not received the order. By order dated December
29, 2016, the Superior Court transferred Appellant’s appeal to this Court.
            While Pa.R.A.P 903(a) sets the time limit on filing an appeal, appeals
have been permitted in situations involving some breakdown in the court’s operation
through default of its officers.     Cadogan Township Board of Supervisors v.
Department of Environmental Resources, 549 A.2d 1363, 1364 (Pa. Cmwlth. 1988).
Additionally, late filings have been excused due to unavoidable events which
prevented timely filing. C&K Coal Co. v. Department of Environmental Resources,
535 A.2d 745, 746 (Pa. Cmwlth. 1988). Appellant asserts that he did not receive the
September 12, 2016 order granting the forfeiture petition. He also states that he was
not returned to SCI-Houtzdale until October 18, 2016, which prevented him from
timely filing his appeal. The record appears to support Appellant’s assertions. The
trial court’s September 12, 2016 order was mailed to Appellant at SCI-Houtzdale,
which Appellant refers to as his home prison. However, the sheriff’s return of service



                                          6
form indicates that Appellant remained at the Lancaster County Prison, where he was
being held immediately prior to the forfeiture hearing, until at least September 16,
2016. On that date, Appellant was transferred from the Lancaster County Prison to
SCI-Camp Hill, where he remained for an indefinite amount of time. Appellant
asserted in his response to the Superior Court’s rule to show cause order that he was
not returned to SCI-Houtzdale until October 18, 2016. The Commonwealth has not
challenged Appellant’s assertion.5 The record indicates that Appellant sent his appeal
two days later, on October 20, 2016, and that the same was received by the trial court
on October 26, 2016.           At the very least, the situation regarding Appellant’s
transitioning confinement, including the fact that the trial court’s order was sent to
SCI-Houtzdale and the appeal period had expired by the time Appellant had been
returned thereto, constitutes a breakdown in operations that warrants consideration of
his appeal nunc pro tunc. As such, we decline to quash Appellant’s appeal.
              On appeal,6 Appellant argues that the property in question was “illegally
seized and not eligible for forfeiture under the Forfeiture Act.” (Appellant’s Brief at
7). Appellant argues that the record demonstrates that he was the lawful owner of the
currency, he lawfully acquired it, and that the money was not related to criminal
activity. Id. at 7-9. Appellant further argues that the Commonwealth did not meet its
burden of showing the money would be used to purchase a controlled substance. Id.
at 8. We disagree with Appellant’s arguments.

       5
         The Commonwealth declined to file a brief with this Court, and instead relied on the
opinion rendered by the trial court.

       6
        Our scope of review is limited to determining whether the trial court findings are supported
by substantial evidence and whether it abused its discretion or committed an error of law.
Commonwealth v. Smothers, 920 A.2d 922, 924 n.2 (Pa. Cmwlth. 2007).




                                                 7
      Section 6802(a) of the Forfeiture Act sets forth the procedure to be followed
when seeking forfeiture, providing as follows:

            A petition shall be filed in the court of common pleas of the
            judicial district where the property is located, verified by
            oath or affirmation of an officer or citizen, containing the
            following:

                   (1) A description of the property seized.

                   (2) A statement of the time and place where
                   seized.

                   (3) The owner, if known.

                   (4) The person or persons in possession, if
                   known.

                   (5) An allegation that the property is subject
                   to forfeiture pursuant to section 6801(a)
                   (relating to controlled substances forfeiture) or
                   6801.1(a) (relating to terrorism forfeiture) and
                   an averment of material facts upon which the
                   forfeiture action is based.

                   (6) A prayer for an order of forfeiture that the
                   property be adjudged forfeited to the
                   Commonwealth and condemned and be
                   ordered sold according to law, unless cause be
                   shown to the contrary.
42 Pa.C.S. §6802(a).
            The burden on the Commonwealth in a forfeiture proceeding is to
establish, by a preponderance of the evidence, that there is a substantial nexus
between unlawful drug activity and the money sought to be forfeited.
Commonwealth v. $34,440.00 United States Currency, 138 A.3d 102, 108 (Pa.
Cmwlth. 2016).    When money is found in close proximity to illegal controlled
substances, there is a rebuttable presumption that the money is related to drug

                                          8
trafficking. Section 6801(a)(6)(ii) of the Forfeiture Act, 42 Pa.C.S. §6801(a)(6)(ii).
Thereafter, the burden shifts to the claimant to show that the money is not forfeitable.
If the claimant can show that he is the owner of the property, the property was
lawfully acquired, and that it was not unlawfully used or possessed by the claimant,
then the claimant has met his burden. Commonwealth v. $6,425.00 Seized from
Esquilin, 880 A.2d 523, 530 (Pa. 2005).
              Appellant concedes that the facts of the case establish the rebuttable
presumption. (Appellant’s Brief at 7). After initially claiming all of the money in
question, he later conceded that he was not the owner of the $217.17 seized from
Kyle’s person.      For the remaining $3,270.00, while Appellant testified that he
lawfully acquired the money by working as a barber, he produced no documentation
to support this contention. Further, the trial court did not find Appellant to be a
credible witness. As such, the Appellant failed to demonstrate that he lawfully
owned and acquired the cash. Therefore, Appellant has not satisfied his burden. As
Kyle has already forfeited his rights to the money, the trial court did not err in
granting the Commonwealth’s forfeiture petition.
              Because Appellant failed to satisfy his burden of showing he was the
lawful owner of the $3,270.00 in cash, the trial court did not err in granting the
Commonwealth’s petition with respect to these monies.7

       7
         We note our Supreme Court’s recent pronouncement on forfeiture law in the consolidated
actions of Commonwealth of Pennsylvania v. 1997 Chevrolet and Contents Seized from James
Young (Elizabeth Young) and Commonwealth of Pennsylvania v. The Real Property and
Improvements Known as 416 S. 62nd Street, Philadelphia, Pa., 19143 (Elizabeth Young), ___ A.3d
___ (Pa., Nos. 29 and 30 EAP 2015, filed May 25, 2017). However, this consolidated decision
focused on a challenge brought under the Excessive Fines Clause of the Eighth Amendment to the
United States Constitution, which Appellant has not raised in this case. Rather, here, Appellant
conceded that the Commonwealth established a rebuttable presumption under section 6801(a)(6)(ii)
of the Forfeiture Act, 42 Pa.C.S. §6801(a)(6)(ii), that the money retrieved from the couch was
(Footnote continued on next page…)

                                               9
              Accordingly, the order of the trial court is affirmed.




                                                ________________________________
                                                PATRICIA A. McCULLOUGH, Judge




(continued…)

related to drug trafficking. Appellant focused his argument on his contention that said money was
lawfully acquired, but failed to present sufficient evidence establishing the same.




                                               10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania          :
                                      :    No. 2085 C.D. 2016
            v.                        :
                                      :
$3,487.17 U.S. Currency               :
                                      :
Appeal of: Timothy Baldwin            :



                                  ORDER


            AND NOW, this 14th day of August, 2017, the order of the Court of
Common Pleas of Lancaster County (trial court), dated September 12, 2016, is
hereby affirmed.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
