858 A.2d 160 (Pa.Cmwlth. 2004), Commonwealth v. $11,600.00 Cash

Citation:858 A.2d 160
Party Name:COMMONWEALTH of Pennsylvania v. $11,600.00 CASH, U.S. CURRENCY. Appeal of Christian Maracine.
Case Date:September 13, 2004
Court:Commonwealth Court of Pennsylvania
 
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Page 160

858 A.2d 160 (Pa.Cmwlth. 2004)

COMMONWEALTH of Pennsylvania

v.

$11,600.00 CASH, U.S. CURRENCY.

Appeal of Christian Maracine.

Commonwealth Court of Pennsylvania

September 13, 2004.

Submitted on Briefs July 23, 2004

Page 161

Gary L. Dorsett, Reading, for appellant.

Douglas J. Waltman, Jr., Reading, for appellee.

BEFORE: McGINLEY, Judge, and LEADBETTER, Judge, and KELLEY, Senior Judge.

OPINION

Judge McGINLEY.

Cristian Maracine (Maracine) appeals from the order of the Court of Common Pleas of Berks County (trial court) granting the Commonwealth of Pennsylvania's (Commonwealth) petition for forfeiture of property in the form of $11,600 in currency, pursuant to Sections 6801-02 of the Judicial Code, 42 Pa.C.S. §§ 6801-02, commonly

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referred to as the Controlled Substances Forfeiture Act (Forfeiture Act). 1

The facts giving rise to this forfeiture proceeding are as follows: On November 13, 2001, at approximately 11:00 p.m., Officer Paul Baur (Officer Baur) of the Wyomissing Police Department stopped Maracine's vehicle because the windows appeared to be illegally tinted. Notes of Testimony, October 9, 2003 (N.T.) at 6, 61. 2 During the stop, Officer Baur discovered that Maracine had 12 outstanding scofflaw warrants for his arrest.

Maracine was taken into custody and searched. Officer Baur found large bundles of money in every pocket of his pants, front and back, and his coat. N.T. at 19. When Officer Baur asked "What's this?" Maracine replied "It's money." N.T. at 6. Officer Baur asked Maracine where he got all the money, and Maracine stated that "he worked for Paolo's Pizza" and that he "was just coming from there." N.T. at 6-7. Officer Baur asked Maracine how much he made, and Maracine stated that he made "$450 a week." Id. Maracine told Officer Baur that he was going to buy a car that day, but "did not get a chance to buy it." Id. Maracine stated that he had a checking account and a savings account but he "felt like paying cash" for the car. When Officer Baur asked "Well, how much money do you have here?" Maracine said "I have about 8 or 9,000." N.T. at 7. Officer Baur counted the money, and there was $11,600, which was $2,600 or $3,600 more than Maracine said. Id.

After initially stating that all of the money was his and that he saved it for a long time working for Paolo's Pizza, Maracine later told Officer Baur that $2,000 was a loan from his father. N.T. at 16, 19-20. According to Officer Baur, Maracine was very nervous, and kept getting out of the car and walking back and asking if his girlfriend could remove the vehicle from the scene. N.T. at 23. Officer Baur arrested Maracine on the outstanding warrants and seized the money from Maracine's pockets.

On May 21, 2002, the Commonwealth filed a petition for forfeiture of $11,600 in currency as the proceeds from the sale of controlled substances. A rule was entered on June 3, 2002, upon Maracine to show cause why the petition should not be granted. On July 3, 2002, Maracine filed an answer. A hearing was held on October 9, 2003.

The Commonwealth presented the testimony of Officer Baur and First Sergeant Randy Wasserleben (Sergeant Wasserleben), the supervisor of the ion scan teams for the National Guard Counterdrug Unit. Sergeant Wasserleben testified that he performed an ion scan on the money to test for the presence of illegal narcotic particles. Sergeant Wasserleben explained that when dealers package cocaine, they get traces of cocaine on the outside of packages, on their hands and on the money they handle. N.T. at 52-53. According to Sergeant Wasserleben, the money seized from Maracine had high amounts of cocaine on it. N.T. at 41. He testified that money tested randomly from banks in Pennsylvania which represent "casual contact," register at about 234 digital units. Sergeant Wasserleben testified that the money seized from Maracine registered

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approximately five times that amount at 1,028 digital units for "cocaine" and 1,302 digital units for "cocaine high." N.T. at 39.

Sergeant Wasserleben testified that there was no indication that any of the bills was used for snorting cocaine, because none of the bills was rolled in a tube or creased. N.T. at 49. He testified that the chances of one of the bills rolled into a tube to snort cocaine transferring some of the cocaine on to the other bills was slim, and that he tests the money from only the edges of all the bills to obtain a collective sample. N.T. at 50, 56. In his opinion, to a reasonable degree of scientific certainty, the money was in recent contact with large amounts of cocaine. N.T. at 41, 55.

The Commonwealth also offered into evidence Maracine's tax return for 2001 which showed that he made $3,000 from Paolo's Pizza for the entire year.

At the conclusion of the hearing, the trial court granted the Commonwealth's petition for forfeiture. The trial court concluded that the Commonwealth carried its burden by a preponderance of the evidence and showed that the cash was in close proximity to the controlled substance, that cocaine was actually found on the cash, that there was a large amount of money found in bundles stuffed in every pocket and that Maracine did not make that amount of money from his job at the pizza shop, as he told Officer Baur. Trial Court Opinion, December 22, 2003, at 5. The trial court further found that Maracine failed to rebut the presumption that the cash was derived from the sale of a controlled substance.

Maracine raises two issues on appeal 3: (1) whether the trial court erred in concluding that the Commonwealth provided sufficient evidence to warrant the forfeiture of the $11,600? and (2) whether the trial court erred in relying on Commonwealth v. $16,208.38, U.S. Currency, 160 Pa.Cmwlth. 440, 635 A.2d 233 (1993), appeal denied, 538 Pa. 634, 647 A.2d 509 (1994), since that case involved marijuana, and not cocaine?

The Forfeiture Act, 4 42 Pa.C.S. § 6801(a), permits the forfeiture of money exchanged for drugs or used or intended to be used to facilitate any violation of The Controlled Substance, Drug, Device and Cosmetic Act (Controlled Substance Act). 35 P.S. § 780-113. 5 Commonwealth v. McJett, 811 A.2d 104 (Pa.Cmwlth.2002),

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appeal denied, 574 Pa. 749, 829 A.2d 1158 (2003). 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, 545 Pa. 172, 680 A.2d 1128 (1996). Preponderance of the evidence is tantamount to a "more likely than not" standard. Commonwealth v. $32,950 U.S. Currency, 160 Pa.Cmwlth. 58, 634 A.2d 697, 698 n. 9 (1993), appeal denied sub nom., Commonwealth v. Friel, 538 Pa. 637, 647 A.2d 512 (1994). Once the Commonwealth has sustained its burden, the burden of proof 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. $16,208.38 U.S. Currency, 635 A.2d at 238.

In this case, the record and reasonable inferences drawn from the evidence support the trial court's finding that the $11,600 seized from Maracine was, more likely than not, used in drug trafficking operations or were the proceeds of such operations and, as such, support the trial court's decision upholding the forfeiture of Maracine's property.

The Commonwealth offered the testimony of Officer Baur who testified that Maracine made inconsistent statements about the origin of the money, and...

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