         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania,         :
                Appellant             :
                                      :
             v.                       :   No. 1862 C.D. 2015
                                      :   Submitted: April 15, 2016
$7,381.00 (Hector Juan Lopez)         :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                 FILED: July 25, 2016

             The Commonwealth of Pennsylvania appeals an order of the Court of
Common Pleas of Luzerne County (trial court) that denied the Commonwealth’s
petition to forfeit $7,381.00 in U.S. currency seized from Hector Lopez (Lopez)
under the Act commonly known as the Controlled Substances Forfeiture Act
(Forfeiture Act), 42 Pa. C.S. §§6801-6802. Discerning no error by the trial court,
we affirm.
             The Commonwealth filed a petition for forfeiture on July 24, 2014,
which recited the following facts:

             A. On July 18, 2010, … Officer [John Anthony] from the
             Kingston Police Department was on routine patrol on Price
             Street, Kingston, Pennsylvania.

             B. At approximately 5:38 p.m., the Officer observed a Jeep
             Grand Cherokee bearing Pennsylvania Registration EKZ-7119
             operating with an expired inspection certification and an
             inoperable driver’s side brake light.
C. The Officer pulled behind the vehicle and the vehicle
stopped prior to the Officer activating a siren or emergency
light.

D. Two passengers in the vehicle immediately got out and
started walking away.

E. The Officer approached the driver and began questioning.
The two passengers shortly returned to the scene.

F. During the course of the questioning, all three occupants
of the vehicle appeared extremely nervous and were visibly
shaking and speaking with a stutter.

G. The Officer then requested to search the vehicle and the
driver consented to this search.

H. During the vehicle search, the Officer discovered a silver
spoon with residue, blue wax paper, and white wax paper.

I. All three passengers denied ownership at that time so the
Officer took the three individuals into custody.

J. At the Kingston Police Headquarters the three individuals
were advised of their Constitutional rights.

K. Lopez[, one of the passengers,] freely admitted to having
two stacks of currency hidden in his shoes.

[L. omitted]

M. Lopez then took off his shoes and produced two stacks of
currency. One stack contained $3,750.00 USD and the second
stack contained $3,500.00.

N. An additional $1,181.00 USD was found in Lopez’ wallet.
Lopez was able to provide a receipt from the Philadelphia
Court system for $1,050.00 USD.



                          2
            O. All money found on Lopez was scanned by the Northeast
            Counter Drug Training Center and tested positive for traces of
            controlled substances.

Petition for Forfeiture and Condemnation, July 24, 2014, at 1 – 2. The trial court
conducted the hearing on May 18, 2015.
            Officer Anthony testified about his discovery of the cash seized from
Lopez. He explained that he brought Lopez to the police station, where he asked
him “if he had any contraband on his person, that there was a further search going
to be conducted; and Mr. Lopez advised [Anthony] that, pretty much said, you’re
going to find this anyway and kicked his two shoes off and a large amount of
currency went all over the patrol [room] floor.” Notes of Testimony, May 18,
2015, at 19 (N.T. ___); Reproduced Record at 17a (R.R. ___).                  The
Commonwealth’s attorney further questioned Officer Anthony about the cash in
Lopez’s shoes:

            [Commonwealth]: Did you ask Mr. Lopez about the money
            found on his person?

            [Anthony]: Yes.

            [Commonwealth]: And what did he say about that?

            [Anthony]: He gave me several stories. One being that it came
            from his father. And then a second one that he’s been just
            saving his money.

            [Commonwealth]: Did you ask him if he had a job that he was
            saving money from?

            [Anthony]: He did -- at the time, he said he was unemployed
            but he did state that he had a job prior to that.

N.T. 21-22; R.R. 17a.

                                         3
             Lopez, who appeared pro se, testified narratively. He stated that, at
the police station, the vehicle’s driver confessed to owning drug paraphernalia
recovered from the vehicle. Lopez, who was not charged with a crime, offered the
following explanation for the cash in his sneakers:

             I’m not only hiding money -- I wasn’t hiding money from the
             officers. I was hiding money from other people. I was looking
             to buy a car. I had a lot of money on me. I don’t want
             everybody to know I had money on me, that’s why I hid it.

N.T. 52; R.R. 25a. In his closing statement, Lopez argued:

             I was never charged that day with any offenses or any arrests,
             and my money was [taken] from me. Even the money that I
             had receipt through legal matters for, and I think that it should
             be returned to me, Your Honor. Someone claimed the
             paraphernalia that was in the car. If someone claimed
             ownership over it, why am I suffering?

N.T. 62; R.R. 27a.
             On July 31, 2015, the trial court denied the Commonwealth’s
forfeiture petition and ordered the Commonwealth to return the seized cash to
Lopez. In an accompanying opinion, the trial court held that the Commonwealth
had failed to meet its burden of proving that the seized cash had facilitated an
illegal drug activity, and that granting a forfeiture would constitute an excessive
fine prohibited by the Eighth Amendment.          The trial court noted that the
Commonwealth’s sole witness, Officer Anthony, testified that the paraphernalia
recovered from the car indicated possible drug use by one of the vehicle’s
occupants. Significantly, Anthony conceded it did not indicate drug selling. The
trial court also emphasized that none of the occupants of the vehicle appeared to
be under the influence. That the driver was a known drug user did not logically

                                         4
support any conclusion about Lopez’s cash. No drugs were found in the vehicle,
which made the statutory presumption unavailable to the Commonwealth. 42 Pa.
C.S. §6801(a)(6)(i)(A).1        Finally, the trial court rejected as irrelevant the results
of the ion scan of the cash seized from Lopez’s sneakers.
               The Commonwealth appealed to this Court.                     On appeal,2 the
Commonwealth argues that the trial court erred because it proved that the cash
seized from Lopez was used to facilitate a violation of The Controlled Substance,
Drug, Device and Cosmetic Act.3 It relies on the following evidence: the drug


1
  It states:
         (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 [Act of
                        April 14, 1972, P.L. 233, as amended, 35 P.S.
                        §§780-101 – 780-144], and all proceeds traceable to
                        such an exchange.
42 Pa. C.S. §6801(a)(6)(i)(A).
2
  Our scope of review in an appeal from a forfeiture proceeding pursuant to the Forfeiture Act is
to determine whether the trial court’s findings of fact are supported by substantial evidence and
whether the trial court abused its discretion or committed an error of law. Commonwealth v.
McJett, 811 A.2d 104, 109 n.7 (Pa. Cmwlth. 2002). An abuse of discretion occurs when the
trial court departs from or misapplies the law or whether its judgment is manifestly
unreasonable. Commonwealth v. $34,440 U.S. Currency, __ A.3d __, __ n.7 (Pa. Cmwlth., No.
1021 C.D. 2014, filed April 19, 2016), slip op. at 7 n.7.
3
  Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§780-101 – 780-144. The Forfeiture
Act states that “[m]oney, 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” shall be subject to forfeiture. 42 Pa. C.S. §6801(a)(6)(i)(B).


                                               5
paraphernalia found in the vehicle; the fact that the driver of the vehicle was a
known drug user; Lopez concealed cash on which trace amounts of narcotics were
found; and Lopez offered different stories about the source of his cash.
             After reviewing the record, the parties’ briefs and the applicable law,
we conclude that the Commonwealth’s issues have been ably resolved in the
thorough and well-reasoned opinion of the Honorable William H. Amesbury.
Therefore, we affirm on the basis of the trial court’s opinion in Commonwealth of
Pennsylvania v. $7,831.00 USD (Lopez), (No. 8702 CIVIL 2014, filed July 31,
2015) (C.P. Luzerne).
                                   _____________________________________
                                   MARY HANNAH LEAVITT, President Judge




                                         6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania,     :
                Appellant         :
                                  :
           v.                     :   No. 1862 C.D. 2015
                                  :
$7,381.00 (Hector Juan Lopez)     :


                                ORDER

           AND NOW, this 25th day of July, 2016, the order of the Court of
Common Pleas of Luzerne County dated July 31, 2015, in the above-captioned
matter is hereby AFFIRMED on the basis of the trial court’s opinion in
Commonwealth of Pennsylvania v. $7,831.00 USD (Lopez), (No. 8702 CIVIL
2014, filed July 31, 2015) (C.P. Luzerne).
                                   _____________________________________
                                    MARY HANNAH LEAVITT, President Judge
