         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania                         :
                                                     :
             v.                                      : No. 1382 C.D. 2015
                                                     :
$603.45 Cash (Brandon Severns & Richard Russell)     :
$446.00 Cash (Brandon Severns & Richard Russell)     :
Contents For Store-Miscellaneous Drug Paraphernalia, :
Smoking Devices and Accessories, Scales, Glass       :
Vilas (Brandon Severns & Richard Russell)            :
HP Touch Smart Computer                              :
(Brandon Severns & Richard Russell)                  :
HP Computer (Brandon Severns & Richard Russell)      :
HP Office Jet Printer                                :
(Brandon Severns & Richard Russell)                  :
Xbox 360 and Controllers                             :
(Brandon Severns & Richard Russell)                  :
Label Maker and Scanners                             :
(Brandon Severns & Richard Russell)                  :
Phillips TV (Brandon Severns & Richard Russell)      :
Two Shelving Units (Brandon Severns & Richard        :
Russell)                                             :
Electronic Surveillance Equipment                    :
(Brandon Severns & Richard Russell)                  :
Skill Saw (Brandon Severns & Richard Russell)        :
Red Bill Refrigerator (Brandon Severns & Richard     :
Russell)                                             :
Two Torch Kits (Brandon Severns & Richard Russell) :
Black 2007 Chrysler 300, PA LIC #HRW 9553,           :
VIN #2C3KA63HX7H659143 (Brandon Severns)             :
Black 2007 Kawasaki Zx-6r, PA LIC #2282s,            :
VIN #JKAZX4P197A022893 (Brandon Severns)             :
$19,899.60 Cash (Brandon Severns & Shae Duncan, :
Smith & Wesson 9mm Handgun,                          :
SER# D5D8641 (Owner Unknown)                         :
Mossberg 12 Ga. Shotgun,                             :
SER# P658202 (Owner Unknown)                         :
Samsung TV (Brandon Severns & Shae Duncan)           :
LG TV (Brandon Severns & Shae Duncan)                :
Denon Stereo Receiver (Brandon Severns & Shae        :
Duncan)                                              :
Two Xbox Game Consoles (Brandon Severns & Shae         :
Duncan)                                                :
Playstation Game Console (Brandon Severns & Shae       :
Duncan)                                                :
Mac Book Computer (Brandon Severns & Shae Duncan)      :
Sony Cybershot Camera (Brandon Severns & Shae          :
Duncan)                                                :
Two Wrist Watches (Brandon Severns & Shae Duncan)      :
                                                       :
Re: Richard Russell                                    :
                                                       :
Appeal of: Richard Russell                             :


Commonwealth of Pennsylvania                           :
                                                       :
            v.                                         : No. 1383 C.D. 2015
                                                       : Submitted: June 6, 2016
$603.45 Cash (Brandon Severns & Richard Russell)       :
$446.00 Cash (Brandon Severns & Richard Russell)       :
Contents For Store-Miscellaneous Drug Paraphernalia,   :
Smoking Devices and Accessories, Scales, Glass Vilas   :
(Brandon Severns & Richard Russell)                    :
HP Touch Smart Computer                                :
(Brandon Severns & Richard Russell)                    :
HP Computer (Brandon Severns & Richard Russell)        :
HP Office Jet Printer                                  :
(Brandon Severns & Richard Russell)                    :
Xbox 360 and Controllers                               :
(Brandon Severns & Richard Russell)                    :
Label Maker and Scanners                               :
(Brandon Severns & Richard Russell)                    :
Phillips TV (Brandon Severns & Richard Russell)        :
Two Shelving Units (Brandon Severns & Richard          :
Russell)                                               :
Electronic Surveillance Equipment                      :
(Brandon Severns & Richard Russell)                    :
Skill Saw (Brandon Severns & Richard Russell)          :
Red Bill Refrigerator (Brandon Severns & Richard       :
Russell)                                               :
Two Torch Kits (Brandon Severns & Richard Russell)     :
Black 2007 Chrysler 300, PA LIC #HRW 9553,             :
VIN #2C3KA63HX7H659143 (Brandon Severns)               :
Black 2007 Kawasaki Zx-6r, PA LIC #2282S,                :
VIN #JKAZX4P197A022893 (Brandon Severns)                 :
$19,899.60 Cash (Brandon Severns & Shae Duncan,          :
Smith & Wesson 9MM Handgun,                              :
SER# D5D8641 (Owner Unknown)                             :
Mossberg 12 Ga. Shotgun,                                 :
SER# P658202 (Owner Unknown)                             :
Samsung TV (Brandon Severns & Shae Duncan)               :
LG TV (Brandon Severns & Shae Duncan)                    :
Denon Stereo Receiver (Brandon Severns & Shae            :
Duncan)                                                  :
Two Xbox Game Consoles (Brandon Severns & Shae           :
Duncan)                                                  :
Playstation Game Console (Brandon Severns & Shae         :
Duncan)                                                  :
Mac Book Computer (Brandon Severns & Shae Duncan)        :
Sony Cybershot Camera (Brandon Severns & Shae            :
Duncan)                                                  :
Two Wrist Watches (Brandon Severns & Shae Duncan)        :
                                                         :
Re: Richard Russell                                      :
                                                         :
Appeal of: One Step Above, LLC                           :

BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
            HONORABLE DAN PELLEGRINI, Senior Judge

OPINION
BY PRESIDENT JUDGE LEAVITT                                   FILED: July 28, 2016

            Richard Russell and One Step Above, LLC, a tobacco shop, appeal an
order of the Court of Common Pleas of York County (trial court) issued on the
Commonwealth’s petition for forfeiture of the shop’s entire inventory of 5,000
items. The trial court granted the petition with respect to tobacco accessories it
concluded were drug paraphernalia but denied the petition for the remaining
inventory, which ranged from store shelving and computers to cash.             The
appellants contend that the trial court erred in holding that the forfeited tobacco
accessories, which could be used for legitimate purposes, constituted drug
paraphernalia.    They also argue that the trial court’s forfeiture imposed an
excessive fine in violation of the Eighth Amendment to the United States
Constitution. We reverse the trial court’s order granting forfeiture of the tobacco
accessories.

                                      Background

               On January 8, 2013, the York County Drug Task Force arrested
Brandon Severns in the parking lot of One Step Above for possession with intent
to deliver marijuana.1 Upon learning that Severns was part owner of One Step
Above, the police obtained a search warrant to search the shop. Russell, the other
owner, was present when police arrived and conducted their search; no drugs were
found. Nevertheless, the police confiscated the store’s inventory of approximately
5,000 items, including cash, televisions, video game systems, shelving units, a
motorcycle, a refrigerator, T-shirts, and electronic surveillance equipment.
Relevant to this appeal was the seizure of smoking devices, such as glass pipes,
and tobacco accessories, such as scales, grinders, and torch kits.
               The police charged Russell with the crime of delivery of drug
paraphernalia in violation of Section 13(a)(33) of The Controlled Substance, Drug,
Device and Cosmetic Act (Drug Act).2 It provides:

               (a) The following acts and the causing thereof within the
                   Commonwealth are hereby prohibited:

                                                ***

1
 One Step Above is located at 855 North Adams Street,York, Pennsylvania.
2
 Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §780-113(a)(33). Section 13(i) of the
Drug Act makes the delivery of drug paraphernalia a misdemeanor. 35 P.S. §780-113(i).


                                            2
                   (33) The delivery of, possession with intent to
                   deliver, or manufacture with intent to deliver, drug
                   paraphernalia, knowing, or under circumstances
                   where one reasonably should know, that it would
                   be used to plant, propagate, cultivate, grow,
                   harvest, manufacture, compound, convert,
                   produce, process, prepare, test, analyze, pack,
                   repack, store, contain, conceal, inject, ingest,
                   inhale or otherwise introduce into the human body
                   a controlled substance in violation of this act.

35 P.S. §780-113(a)(33). The Drug Act defines drug paraphernalia, and it sets
forth a test for determining whether an item of property meets the definition.
Section 2 of the Drug Act states as follows:

             “Drug paraphernalia” means all equipment, products and
             materials of any kind which are used, intended for use or
             designed for use in planting, propagating, cultivating, growing,
             harvesting,     manufacturing,    compounding,        converting,
             producing, processing, preparing, testing, analyzing, packaging,
             repackaging, storing, containing, concealing, injecting,
             ingesting, inhaling or otherwise introducing into the human
             body a controlled substance in violation of this act. It includes,
             but is not limited to:
                   (1) Kits used, intended for use or designed for use
                   in planting, propagating, cultivating, growing or
                   harvesting of any species of plant which is a
                   controlled substance or from which a controlled
                   substance can be derived.
                   (2) Kits used, intended for use or designed for use
                   in manufacturing, compounding, converting,
                   producing, processing or preparing controlled
                   substances.
                   (3) Isomerization devices used, intended for use
                   or designed for use in increasing the potency of
                   any species of plant which is a controlled
                   substance.


                                          3
(4) Testing equipment used, intended for use or
designed for use in identifying or in analyzing the
strength, effectiveness or purity of controlled
substances.
(5) Scales and balances used, intended for use or
designed for use in weighing or measuring
controlled substances.
(6) Diluents and adulterants, such as quinine
hydrochloride, mannitol, mannite, dextrose and
lactose, used, intended for use or designed for use
in cutting controlled substances.
(7) Separation gins and sifters used, intended for
use or designed for use in removing twigs and
seeds from or in otherwise cleaning or refining
marihuana.
(8) Blenders, bowls, containers, spoons and
mixing devices used, intended for use or designed
for use in compounding controlled substances.
(9) Capsules, balloons, envelopes and other
containers used, intended for use or designed for
use in packaging small quantities of controlled
substances.
(10) Containers and other objects used, intended
for use or designed for use in storing or concealing
controlled substances.
(11) Hypodermic syringes, needles and other
objects used, intended for use, or designed for use
in parenterally injected controlled substances into
the human body.
(12) Objects used, intended for use or designed for
use in ingesting, inhaling or otherwise introducing
marihuana, cocaine, hashish or hashish oil into the
human body, such as:
      (i)    Metal, wooden, acrylic, glass,
      stone, plastic or ceramic pipes with or
      without screens, permanent screens,
                      4
             hashish heads or punctured metal
             bowls.
             (ii)    Water pipes.
             (iii)   Carburetion tubes and devices.
             (iv) Smoking           and      carburetion
             masks.
             (v) Roach clips; meaning objects
             used to hold burning material such as
             a marihuana cigarette, that has
             become too small or too short to be
             held in the hand.
             (vi) Miniature cocaine spoons and
             cocaine vials.
             (vii) Chamber pipes.
             (viii) Carburetor pipes.
             (ix)    Electric pipes.
             (x)     Air-driven pipes.
             (xi)    Chillums.
             (xii) Bongs.
             (xiii) Ice pipes or chillers.
In determining whether an object is drug paraphernalia, a
court or other authority should consider, in addition to all other
logically relevant factors, statements by an owner or by anyone
in control of the object concerning its use, prior convictions, if
any, of an owner, or of anyone in control of the object, under
any State or Federal law relating to any controlled substance,
the proximity of the object, in time and space, to a direct
violation of this act, the proximity of the object to controlled
substances, the existence of any residue of controlled
substances on the object, direct or circumstantial evidence of
the intent of an owner, or of anyone in control of the object, to
deliver it to persons who he knows, or should reasonably know,

                              5
                 intend to use the object to facilitate a violation of this act, the
                 innocence of an owner or of anyone in control of the object, as
                 to a direct violation of this act should not prevent a finding that
                 the object is intended for use or designed for use as drug
                 paraphernalia, instructions, oral or written, provided with the
                 object concerning its use, descriptive materials accompanying
                 the object which explain or depict its use, national and local
                 advertising concerning its use, the manner in which the object is
                 displayed for sale, whether the owner, or anyone in control of
                 the object, is a legitimate supplier of like or related items to the
                 community, such as a licensed distributor or dealer of tobacco
                 products, direct or circumstantial evidence of the ratio of sales
                 of the objects to the total sales of the business enterprise, the
                 existence and scope of legitimate uses for the object in the
                 community, and expert testimony concerning its use.

35 P.S. §780-102 (emphasis added).
                 In addition to charging Russell criminally, the Commonwealth filed a
petition for forfeiture of the 5,000 items seized in the search of One Step Above.
The petition alleged that all of the seized property represented the proceeds of drug
transactions or had been used to facilitate drug transactions and, thus, was
forfeitable as derivative contraband. Russell filed an answer denying that any of
the seized property was traceable to drug transactions or had been used to facilitate
a drug transaction. To the contrary, the answer asserted that the seized items
constituted the inventory of an entirely lawful tobacco shop.3
                 Russell waived his right to a jury trial and agreed to consolidate the
trial on his criminal drug paraphernalia charge with the civil forfeiture petition. At
trial, the Commonwealth dropped its claim that the seized property represented the
proceeds of drug transactions or had been used to facilitate a drug transaction.



3
    One Step Above was granted permission to intervene in the forfeiture action.


                                                  6
Instead, the Commonwealth argued that all of the seized property constituted drug
paraphernalia that was per se contraband.
                At trial, Russell explained that Severns had resigned as a principal in
One Step Above, leaving him the sole owner. Accordingly, the property listed as
being owned by both Severns and Russell was now owned by Russell as sole
principal of One Step Above.
                Adam Bruckhart, a West Manchester Township police officer
assigned to the York County Drug Task Force, testified for the Commonwealth.
He stated that the task force learned that several pounds of marijuana were going to
be delivered to “Severns, who operated a business in West York.”             Notes of
Testimony, 7/1/2015, at 13 (N.T. __). That business was One Step Above, which
is “advertised on the Internet as a tobacco and smoking accessory shop.” N.T. 14.
Following Severns’ arrest, Officer Bruckhart entered the shop and quickly decided
that a large part of the inventory consisted of drug paraphernalia. He then obtained
a search warrant, which was executed shortly thereafter.
                On cross-examination, Officer Bruckhart testified that he had been
surveilling One Step Above for a year and had been inside prior to the search. He
agreed there were signs posted throughout the store stating that the products
offered for sale were for “tobacco use only.” N.T. 26. He also acknowledged that
other retail stores in York County sell glass pipes, bongs and grinders and that all
of these items are used for smoking tobacco. He also testified that One Step
Above sold tobacco and confirmed that police found no controlled substances in
their search.
                Russell Schauer, a detective with the Springettsbury Township Police
Department, also assigned to the York County Drug Task Force, was qualified to


                                            7
testify as an expert in the investigation of narcotics trafficking. He was part of the
team that did the search and seized the 5,000 items about which he testified.
             Detective Schauer described the vacuum sealed containers confiscated
from One Step Above as “concealment containers.” N.T. 35. He testified that
“some people had grandmothers that used to keep cereal in [such] a container to
keep the cereal fresh. Mainly, we always see it to keep marijuana fresh.” Id. He
stated that “hundreds” of bongs and vaporizers were seized, which can be used to
ingest marijuana as well as tobacco. N.T. 38. Also confiscated were T-shirts with
references to “seedless” and “joints” and air preservatives labelled “420,” which he
believed to be a reference to April 20th, a date commemorated by marijuana users.
Detective Schauer acknowledged that “420” preservative can be used to store and
preserve a variety of vegetable matter, including tobacco. This was also the case
for the seized grinders. However, he opined that given “the combination of every
piece of item” in the store, all of the seized property was drug paraphernalia
intended for inhaling, ingesting or concealing marijuana. N.T. 47-48.
             On cross-examination, Schauer agreed that there were legitimate
purposes for all of those items that he described as drug paraphernalia.          For
example, the “420 Eliminator” can be used to eliminate tobacco smoke and the
drug cleanser kits can cleanse tobacco from a person’s system. N.T. 51. He
doubted, however, that anyone would use these items for that purpose.
             During the search, Schauer spoke with Russell, who was “very
cooperative” and “appeared to be shocked.” N.T. 53. Russell told Schauer that he
used the kiln in the store to make the glassware that is for sale and that he tells
everyone that the glass pipes are for tobacco use. Schauer acknowledged Russell’s




                                          8
artistry but testified that he believed that the glass items were produced for the
purpose of ingesting marijuana.
               Russell then testified. He explained that he opened One Step Above
in 2012 after obtaining the appropriate township permits. Russell explained that he
specifically advised the township of the nature of the business and of his plan to
make glass pipes and glass water pipes at the store. Russell stated that he plans to
teach glass blowing at the store. The store is advertised as a tobacco shop with
accessories.
               Russell requires all patrons to present identification to establish a legal
age of 18 before making a purchase. A “for tobacco use only” sticker is affixed to
every water pipe. N.T. 60. Russell stated that any customer that refers to drugs is
immediately “kicked out” of the shop. N.T. 58. In fact, Russell explained that he
believed that the patrons he heard from time to time making drug references were
actually undercover officers. Russell’s goal is to have a “nice clean glass shop of
artwork and all that other nice stuff that comes along with it.” N.T. 58-59.
               Russell testified about the glass water pipes that he creates and sells
for prices ranging from $25 to $6,000. He testified that he sells them for tobacco
use, explaining that a water pipe filters out the tar in the tobacco and makes for a
smoother smoking experience; likewise, a vaporizer prevents carcinogens from
reaching the tobacco smoker’s lungs. Russell’s larger and more expensive water
pipes are used exclusively as art. One of his customers, who has purchased several
of Russell’s water pipes, keeps them in a display case. Russell creates glass
pendants, vases and perfume bottles, which are also available in the shop. The
store sells glass bracelets for $200 by an artist who is teaching Russell how to
make them.


                                             9
               Russell testified that he sells loose tobacco in the shop by the pound
or half-pound. This requires the use of scales and grinders. “420 Preserve” is sold
to keep the tobacco fresh because it starts to dry once exposed to air.
               Russell testified about the other seized items. He explained that the
T-shirts with the word “Seedless” emblazoned thereon referred to the
manufacturer, not to marijuana. The urine cleansing products are considered a
dietary supplement and are sold at health and nutrition retailers such as GNC. He
further explained that other retail stores, such as Spencer’s, sell marijuana growing
books, marijuana baking books and T-shirts promoting marijuana and have done so
for many years without incident. When Russell offered photographs of glass pipes,
grinders and scales sold in other stores in the York area, the Commonwealth
stipulated that other York County retailers sell these items.

                                     Trial Court Decision

               The trial court found Russell not guilty of delivery of drug
paraphernalia.4 It explained its decision as follows:


4
  The trial court went through the 15-factor test in Section 2 of the Drug Act, 35 P.S. §780-102,
to decide whether an item is drug paraphernalia. It found, by each factor, as follows:
        First, the trial court found that all of the objects had a legitimate use. Second, Russell had
no prior drug conviction. Third, there was no evidence of temporal or spatial proximity between
the seized items and a violation of the Drug Act. Fourth, there was no evidence that controlled
substances were near the items seized. Fifth, there was no evidence of any residue of controlled
substances on the seized items. Sixth, the evidence of intent to deliver an item to facilitate a
violation of the Drug Act consisted only of Russell’s statement that people could use the items to
smoke marijuana. Seventh, the trial court said nothing about whether Russell’s lack of a
criminal drug history weighed in favor of or against finding the seized items to be drug
paraphernalia. Eighth, the trial court found that the store instructed that the items for sale were
“for tobacco use only.” Ninth, the trial court found that the items seized were labeled “for
tobacco use only.” Tenth, the trial court found that there was no national and local advertising to
show that the seized items were paraphernalia. Eleventh, the trial court found that the store
(Footnote continued on the next page . . .)
                                                 10
               The standard is beyond a reasonable doubt, and while it may
               appear obvious to the Court and anybody looking at the items
               that they would be used by a person who would want to ingest
               them for drugs, we cannot conclude that the Commonwealth’s
               evidence sustains its burden of proof beyond a reasonable doubt
               with that regard.
Trial Court Order, 7/1/2015, at 4. On the forfeiture, the trial court held as follows:

               With regard to the miscellaneous drug paraphernalia, which we
               mean to include smoking devices and accessories, scales, glass
               vials, the burden of proof in a forfeiture action is by a
               preponderance of the evidence, and that, simply, is it more
               likely than not that these items would be used by a person for
               ingestion of drugs and is it more likely than not the owner had
               reason to believe that such was the case?
               We conclude that the Commonwealth has established its
               burden; and, accordingly, we will direct that the item[s]
               indicated as “contents of store, miscellaneous drug
               paraphernalia, smoking devices, and accessories, scales, and
               glass vials” are subject to forfeiture.

Id. at 5. However, the trial court denied the forfeiture petition with respect to the
remaining store inventory, such as cash, computers, T-shirts, video game systems,
a television, electronic surveillance equipment, business bank accounts and

(continued . . .)
displays did not support a finding that the seized items were drug paraphernalia. Twelfth, the
trial court found it was not clear that Russell was a licensed purveyor of tobacco products.
Thirteenth, no evidence was offered to show the ratio of sales of the seized items to the total
sales of the business enterprise. Fourteenth, the trial court found there were legitimate uses for
the seized items. Fifteenth, the Commonwealth’s expert showed there was a legitimate use for
the seized items as well as an illegitimate use for ingestion of illegal drugs.
        The trial court found that tobacco was not found in the search, but this is not supported by
the record. Specifically, Officer Bruckhart testified that One Step Above was “advertised on the
Internet as a tobacco and smoking accessory shop.” N.T. 14. He was asked if tobacco was
obtained during the search. He replied “I’d have to check our inventory list. There was likely
tobacco for sale, but I’m not sure if we seized any or not.” N.T. 29. Russell testified that there
was tobacco in the store when it was searched.


                                                11
shelving units. It concluded that this property was part of a legitimate business
enterprise and did not constitute either contraband or derivative contraband.
               Russell appealed.5 Before this Court Russell raises two issues. First,
he argues that the trial court erred as a matter of law because the Commonwealth
did not prove that the forfeited property was contraband or derivative contraband
because there was no nexus established between that property and any illegal
activity. Second, he argues that the amount of the forfeiture exceeded the Eighth
Amendment’s prohibition against excessive fines. U.S. CONST. amend. VIII.6

                                           Analysis

               The Commonwealth filed its forfeiture petition pursuant to the act
commonly referred to as the Controlled Substances Forfeiture Act, 42 Pa. C.S.
§§6801-6802, which states, in relevant part, as follows:

               (a) Forfeitures generally.--The following shall be subject to
               forfeiture to the Commonwealth and no property right shall
               exist in them:
                      (1) All drug paraphernalia, controlled substances
                      or other drugs which have been manufactured,
                      distributed, dispensed or acquired in violation of
                      [the Drug Act].
                      (2) All raw materials, products and equipment of
                      any kind which are used, or intended for use, in

5
  Our scope of review is limited to determining whether the trial court’s findings are supported
by substantial evidence, whether the trial court abused its discretion, or whether it committed an
error of law. Commonwealth v. $17,182.00 U.S. Currency, 42 A.3d 1217, 1219 n.3 (Pa. Cmwlth.
2012).
6
  It states:
         Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
         unusual punishments inflicted.
U.S. CONST. amend. VIII (emphasis added).


                                               12
                    manufacturing,      compounding,       processing,
                    delivering, importing or exporting any controlled
                    substance or other drug in violation of [the Drug
                    Act].
                    (3) All property which is used, or intended for
                    use, as a container for property described in
                    paragraph (1) or (2).

42 Pa. C.S. §6801(a)(1)-(3) (emphasis added). In a forfeiture, the Commonwealth
bears the initial burden of proving by a preponderance of the evidence that the drug
paraphernalia to be forfeited was “distributed, dispensed or acquired in violation
… of the [Drug Act].” Id. If the Commonwealth makes a prima facie case, the
burden then shifts to the claimant of the property 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 knowledge
             or consent must be reasonable under the circumstances
             presented.

42 Pa. C.S. §6802(j). “Despite growing popularity as a means to battle against
drug traffic, forfeitures are not favored in the law….” Commonwealth v. 502-504
Gordon Street in the Ninth Ward of City of Allentown, County of Lehigh, 607 A.2d
839, 842 (Pa. Cmwlth. 1992). As such, “statutes authorizing forfeiture are to be
strictly construed.” Id.
             Russell argues that there is no evidence that any of the forfeited items
constituted drug paraphernalia. No drugs were found in the store after a thorough

                                         13
search. The forfeited items consist of glass pipes, scales and grinders that are sold
by competitors without incident. They were intended by the seller to be used with
tobacco, and the Commonwealth did not prove otherwise.
                 The Commonwealth responds that it is irrelevant that no drugs were
found in the search of the store. Detective Schauer testified that the forfeited items
were intended to ingest marijuana and, thus, constituted drug paraphernalia. The
trial court, as fact finder, was free to reject Russell’s testimony that he was selling
items “for tobacco use only” and credit Schauer’s contrary testimony that the items
in the store were being sold for illegal drug purposes.
                 Drug paraphernalia is forfeitable contraband per se. However, the
Commonwealth has the burden of proving that an item of personalty meets the
legal definition of drug paraphernalia. Our sister appellate court has explained
that:

                 [t]he [Drug] Act includes a specific intent requirement to
                 distinguish innocent transfers of multi-purpose items from
                 illegal transfers of drug paraphernalia. See Pennsylvania
                 Accessories Trade Association v. Thornburgh, 565 F. Supp.
                 1568, 1576 (M.D. Pa. 1983); see also Hoffman Estates v.
                 Flipside, 455 U.S. 489, 495, 102 S.Ct. 1186, 1191, 71 L.Ed.2d
                 362 (1982). For an item to be classified as drug paraphernalia,
                 the prosecution must establish that the person charged with
                 violating the Act had the specific intent that the item he
                 possessed or delivered be used with controlled substances.

Commonwealth v. Lacey, 496 A.2d 1256, 1259-60 (Pa. Super. 1985) (emphasis
added). In its Rule 1925(a) opinion7 the trial court concluded that



7
    Pennsylvania Rule of Appellate Procedure 1925(a) requires, in relevant part:
         (a) Opinion in support of order.
(Footnote continued on the next page . . .)
                                                 14
               the Commonwealth was able to show that Mr. Russell knew or
               should have known that a substantial number of people
               purchasing his glass bongs and pipes were going to use them
               for an unlawful purpose, such as smoking marijuana.

Trial Court 1925(a) op. at 5. The trial court reasoned that the proximity of these
items to such items as T-shirts referring to marijuana demonstrated that Russell
“more likely than not knew that his products could be used for the ingestion of
marijuana.” Id. at 8.
               Both parties, the Commonwealth and Russell, the claimant of the
property, acknowledged that the forfeited tobacco accessories could be used either
to ingest tobacco or to ingest marijuana. The dispositive question is when a
product with a dual purpose will be found to constitute unlawful drug
paraphernalia.
               In Holt’s Cigar Company, Inc. v. City of Philadelphia, 10 A.3d 902
(Pa. 2011), our Supreme Court discoursed on the meaning of “drug paraphernalia”
in the Drug Act. At issue in Holt’s Cigar was a Philadelphia ordinance that
prohibited the sale of cigar or cigarette rolling papers; cigars or cigarettes sold
singly or in packages of fewer than three; certain flavored tobacco items and “any
tobacco item that can be considered ‘drug paraphernalia’ [as defined by the
ordinance].” Id. at 910. The ordinance made it unlawful to sell cigar and cigarette

(continued . . .)
              1) General rule.--Except as otherwise prescribed by this rule,
              upon receipt of the notice of appeal, the judge who entered the
              order giving rise to the notice of appeal, if the reasons for the order
              do not already appear of record, shall forthwith file of record at
              least a brief opinion of the reasons for the order, or for the rulings
              or other errors complained of, or shall specify in writing the place
              in the record where such reasons may be found.
PA. R.A.P. 1925(a)(1).


                                                15
wrappings because they can be used with marijuana. Several tobacco shops and
distributors challenged the ordinance, asserting that

             the General Assembly’s inclusion of a scienter requirement in
             the crimes established by 35 P.S. §780-133(a)(33) [relating to
             drug paraphernalia] preempt[ed] [the Philadelphia ordinance],
             which impose[d] civil penalties for the sale of enumerated
             products without requiring a showing of seller’s intent[.]

Id. at 906. Our Supreme Court examined the 15-part test set forth in Section 2 of
the Drug Act for determining whether an item constitutes drug paraphernalia. It
concluded that this test expressed the intention of the legislature to exempt the sale
of items with a legitimate purpose from the punitive effects of the Drug Act. The
legislature also established that whether a particular item satisfies the test for drug
paraphernalia is a determination to be made by the court

             which should consider all relevant factors, including legitimate
             uses for the item; the intent of and statements by the item’s
             owner; how the item is displayed for sale; and whether the
             owner is a legitimate supplier, such as a licensed distributor or
             dealer of tobacco products. The [Drug] Act recognizes that
             some drug paraphernalia have legitimate as well as illegitimate
             uses, and, in contrast to the [Philadelphia] ordinance, one of the
             [Drug] Act’s implicit objectives is to not penalize those who
             sell dual-use items for legitimate uses.

Id. at 912 (emphasis in original) (footnote omitted). The sine qua non of drug
paraphernalia is the seller’s knowledge that a particular dual-use item has been or
will be used only for an illegal purpose:

             A seller of a dual-use item violates the [Drug] Act only if he or
             she knows or reasonably should know that the dual-use item is
             to be used for an illegal, drug-related purpose. In contrast, a
             seller of certain dual-use items violates the [Philadelphia]
             ordinance by merely engaging in the sale, with no consideration
             as to whether the item was sold for a legitimate use or for an

                                            16
            illegal, drug-related purpose, and no consideration of the
            seller’s state of mind or intent.
            The presence of a mens rea element in the statute and the
            absence of a mens rea element in the ordinance for the same
            proscribed conduct, i.e., selling certain dual-use items,
            constitute an irreconcilable conflict between the two
            enactments. Although the ordinance does not stand as an
            obstacle to the primary purpose of the [Drug] Act, i.e., to
            decrease the unauthorized use of controlled substances, the
            ordinance does contradict an implied objective of the [Drug]
            Act to protect those who sell dual-use items for legitimate
            purposes.

Id. at 913 (emphasis added) (footnote omitted).
            The Supreme Court rejected the City’s argument that there was no
conflict between the Drug Act and the Philadelphia ordinance because the statute
was enforced by criminal sanctions and the City’s ordinance by civil fines. The
Supreme Court held that the Drug Act protects “those who sell dual-use items for
legitimate purposes.” Id. For a dual-use item to be drug paraphernalia, there must
be scienter. The Court explained:

            The City further suggests that the General Assembly was
            simply silent as to the possible imposition of per se liability for
            the delivery of dual-use items … [and] such silence should not
            be interpreted as a legislative intent to prohibit local regulation
            of the sale of dual-use items in a manner free of a scienter
            requirement. Again, we cannot agree with the City[.]… With
            regard to offenses involving delivery of drug paraphernalia, the
            General Assembly was far from silent as to the mens rea
            element. The [Drug] Act expressly requires that an offender
            know or reasonably should know that the drug paraphernalia
            would be used in conjunction with a controlled substance in
            violation of the [Drug] Act; thus, a seller of a dual-use item for
            legitimate purposes is protected from any penalty under the
            [Drug] Act.

Id. at 913-14 (emphasis added and internal citation omitted).

                                        17
            The Supreme Court held that the City’s ordinance, which sought to
prohibit the sale of dual-use products, was pre-empted by the Drug Act, which
exempts dual-use items from any penalty. Further, to prove that a particular dual-
use item is drug paraphernalia requires proof that the seller “knows or reasonably
should know that the dual-use item is to be used for an illegal, drug-related
purpose.” Holt’s Cigar, 10 A.3d at 913.
            Here, the Commonwealth’s witnesses conceded that the glass pipes,
scales, grinders, and torch kits were dual-use items that could be used for a
legitimate purpose. The trial court held that they were drug paraphernalia because
Russell “knew or should have known that his products could be used for unlawful
purposes” and “more likely than not knew that his products could be used for the
ingestion of marijuana.” Trial Court 1925(a) op. at 7-8 (emphasis added). These
findings are inadequate, as a matter of law, to prove the dual-use products were
drug paraphernalia.   Every dual-use item has the potential to be used for an
unlawful purpose. Sandwich bags that keep peanut butter and jelly sandwiches
fresh can also keep marijuana fresh. That potential does not make a sandwich bag
drug paraphernalia. More is needed. The Commonwealth must prove that the
seller of the sandwich bags knows, or should know, that a particular box of
sandwich bags will be used for marijuana, not sandwiches.
            Here, the record lacks any evidence of Russell’s mens rea. Had
controlled substances been found at the store, the result may have been different.
Had Russell offered a buyer (such as an undercover police officer) advice on which
container does a superior job of keeping marijuana fresh, the result may have been
different. Holt’s Cigar established that the sale of dual-use items is a lawful
activity that has been protected by the legislature in the Drug Act; a fortiori, the


                                          18
sale of dual-use items is an activity beyond forfeiture, which requires an offense of
the Drug Act. Absent a connection to an actual violation of the Drug Act, as
opposed to a potential violation, the items seized by the York County Drug Task
Force were not drug paraphernalia. That the Commonwealth established that the
forfeitable items had a dual use was not enough to make them drug paraphernalia
under the Drug Act.8

                                         Conclusion

              We affirm the trial court’s order to the extent that it denied the
Commonwealth’s forfeiture petition for some of the inventory and we reverse to
the extent that the trial court granted the Commonwealth’s petition for forfeiture of
tobacco accessories. We remand to the trial court to enter an order granting the
return of all of the property it identified as belonging to Russell and One Step
Above.9

                                        ______________________________________
                                        MARY HANNAH LEAVITT, President Judge




8
   Because the Commonwealth did not establish the property was forfeitable as drug
paraphernalia, there is no need to address the Eighth Amendment claim raised by Russell and
One Step Above.
9
  Pointedly, the trial court only addressed the forfeiture of items owned solely by Russell or by
both Severns and Russell as part of One Step Above. Additional items seized are listed in the
petition for forfeiture as “owner unknown” or as belonging solely to Severns or by Severns and a
third party. Russell and One Step Above have not made a claim that they are entitled to this
property. Thus, these items are not part of their appeal to this Court.


                                               19
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania                         :
                                                     :
             v.                                      : No. 1382 C.D. 2015
                                                     :
$603.45 Cash (Brandon Severns & Richard Russell)     :
$446.00 Cash (Brandon Severns & Richard Russell)     :
Contents For Store-Miscellaneous Drug Paraphernalia, :
Smoking Devices and Accessories, Scales, Glass       :
Vilas (Brandon Severns & Richard Russell)            :
HP Touch Smart Computer                              :
(Brandon Severns & Richard Russell)                  :
HP Computer (Brandon Severns & Richard Russell)      :
HP Office Jet Printer                                :
(Brandon Severns & Richard Russell)                  :
Xbox 360 and Controllers                             :
(Brandon Severns & Richard Russell)                  :
Label Maker and Scanners                             :
(Brandon Severns & Richard Russell)                  :
Phillips TV (Brandon Severns & Richard Russell)      :
Two Shelving Units (Brandon Severns & Richard        :
Russell)                                             :
Electronic Surveillance Equipment                    :
(Brandon Severns & Richard Russell)                  :
Skill Saw (Brandon Severns & Richard Russell)        :
Red Bill Refrigerator (Brandon Severns & Richard     :
Russell)                                             :
Two Torch Kits (Brandon Severns & Richard Russell) :
Black 2007 Chrysler 300, PA LIC #HRW 9553,           :
VIN #2C3KA63HX7H659143 (Brandon Severns)             :
Black 2007 Kawasaki Zx-6r, PA LIC #2282s,            :
VIN #JKAZX4P197A022893 (Brandon Severns)             :
$19,899.60 Cash (Brandon Severns & Shae Duncan, :
Smith & Wesson 9mm Handgun,                          :
SER# D5D8641 (Owner Unknown)                         :
Mossberg 12 Ga. Shotgun,                             :
SER# P658202 (Owner Unknown)                         :
Samsung TV (Brandon Severns & Shae Duncan)           :
LG TV (Brandon Severns & Shae Duncan)                :
Denon Stereo Receiver (Brandon Severns & Shae        :
Duncan)                                              :
Two Xbox Game Consoles (Brandon Severns & Shae         :
Duncan)                                                :
Playstation Game Console (Brandon Severns & Shae       :
Duncan)                                                :
Mac Book Computer (Brandon Severns & Shae Duncan)      :
Sony Cybershot Camera (Brandon Severns & Shae          :
Duncan)                                                :
Two Wrist Watches (Brandon Severns & Shae Duncan)      :
                                                       :
Re: Richard Russell                                    :
                                                       :
Appeal of: Richard Russell                             :


Commonwealth of Pennsylvania                           :
                                                       :
            v.                                         : No. 1383 C.D. 2015
                                                       :
$603.45 Cash (Brandon Severns & Richard Russell)       :
$446.00 Cash (Brandon Severns & Richard Russell)       :
Contents Fo Store-Miscellaneous Drug Paraphernalia,    :
Smoking Devices and Accessories, Scales, Glass Vilas   :
(Brandon Severns & Richard Russell)                    :
HP Touch Smart Computer                                :
(Brandon Severns & Richard Russell)                    :
HP Computer (Brandon Severns & Richard Russell)        :
HP Office Jet Printer                                  :
(Brandon Severns & Richard Russell)                    :
Xbox 360 and Controllers                               :
(Brandon Severns & Richard Russell)                    :
Label Maker and Scanners                               :
(Brandon Severns & Richard Russell)                    :
Phillips TV (Brandon Severns & Richard Russell)        :
Two Shelving Units (Brandon Severns & Richard          :
Russell)                                               :
Electronic Surveillance Equipment                      :
(Brandon Severns & Richard Russell)                    :
Skill Saw (Brandon Severns & Richard Russell)          :
Red Bill Refrigerator (Brandon Severns & Richard       :
Russell)                                               :
Two Torch Kits (Brandon Severns & Richard Russell)     :
Black 2007 Chrysler 300, PA LIC #HRW 9553,             :
VIN #2C3KA63HX7H659143 (Brandon Severns)               :
Black 2007 Kawasaki Zx-6r, PA LIC #2282S,           :
VIN #JKAZX4P197A022893 (Brandon Severns)            :
$19,899.60 Cash (Brandon Severns & Shae Duncan,     :
Smith & Wesson 9MM Handgun,                         :
SER# D5D8641 (Owner Unknown)                        :
Mossberg 12 Ga. Shotgun,                            :
SER# P658202 (Owner Unknown)                        :
Samsung TV (Brandon Severns & Shae Duncan)          :
LG TV (Brandon Severns & Shae Duncan)               :
Denon Stereo Receiver (Brandon Severns & Shae       :
Duncan)                                             :
Two Xbox Game Consoles (Brandon Severns & Shae      :
Duncan)                                             :
Playstation Game Console (Brandon Severns & Shae    :
Duncan)                                             :
Mac Book Computer (Brandon Severns & Shae Duncan)   :
Sony Cybershot Camera (Brandon Severns & Shae       :
Duncan)                                             :
Two Wrist Watches (Brandon Severns & Shae Duncan)   :
                                                    :
Re: Richard Russell                                 :
                                                    :
Appeal of: One Step Above, LLC                      :

                                   ORDER


            AND NOW, this 28th day of July, 2016 the order of the Court of
Common Pleas of York County, dated July 1, 2015, is AFFIRMED in part,
REVERSED in part, and this matter is REMANDED to the trial court to enter an
order in accordance with the attached opinion.
            Jurisdiction relinquished.

                                  ______________________________________
                                  MARY HANNAH LEAVITT, President Judge
