Com. v. Landy

• Decision Date: 22 April 1976
• Citation: 362 A.2d 999,240 Pa.Super. 458
• Parties: COMMONWEALTH of Pennsylvania v. Joseph LANDY, Appellant.
• Court: Pennsylvania Superior Court

Page 999

362 A.2d 999

240 Pa.Super. 458

COMMONWEALTH of Pennsylvania v. Joseph LANDY, Appellant.

Superior Court of Pennsylvania.

April 22, 1976.

John W. Packel, Asst. Public Defender, Chief, Appeals Div., Philadelphia, for appellant.

Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

HOFFMAN, Judge:

Appellant challenges the lower court's denial of his petition for return of money seized at the time of his arrest, filed pursuant to Rule 324, Pennsylvania Rules of Criminal Procedure, on the following grounds: first, that the lower court erred in admitting prejudicial hearsay testimony, and second, that the Commonwealth failed to produce sufficient evidence to demonstrate beyond a reasonable doubt that the money was derived from the illegal sale of narcotics.

The appellant, Joseph Landy, was arrested on August 2, 1973 and charged with possession, ¹ and possession with intent to deliver ² a controlled substance in violation of the Controlled Substance, Drug, Device and Cosmetic Act. On April 15, 1975, appellant petitioned the court for an order dismissing the charges with prejudice pursuant to Rule 1100(f), Pa.R.Crim.P. Appellant's petition was granted on May 15, 1975, and the indictments were dismissed. On May 22, 1975, appellant petitioned the court, pursuant to Rule 324, Pa.R.Crim.P. for return of money confiscated at the time of his arrest.

The following facts were developed at the July 8, 1975 hearing on appellant's petition. Officer Arthur Beckman, the Commonwealth's sole witness, testified that at approximately 10:30 A.M. to 10:45 A.M. on August 2, 1973, he and his partner were conducting a surveillance of the corner of Broad and Snyder Streets, Philadelphia. At that time, he observed one Antone Pescala accept an undetermined sum of money from two individuals. While his partner kept the two individuals under surveillance, Officer Beckman followed Pescala to a nearby street where Pescala gave the appellant the money in exchange for some pills. Appellant put the money in his left pocket, and Pescala subsequently 'passed something' to the two individuals. Still following Pescala, Officer Beckman observed him accept a second undertermined sum of money from a different individual. Pescala again took the money to the appellant in order to exchange it for pills. The appellant took the money and began 'pouring pills from the plastic vial into Pescala's hand'; Officer Beckman then identified himself, arrested both appellant and Pescala, and confiscated the pills and $552 from appellant's left pocket.

The appellant, the sole witness for the defense, testified that his mother gave him $500 of the $552 to purchase an automobile for her. Appellant also denied participating in the sale of narcotics, and stated that the pills in his possession had been prescribed by a doctor.

The lower court denied appellant's petition at the end of the July 8, 1975 hearing. The lower court specifically found that 'the Commonwealth is not held to the same degree of proof as required in a criminal trial', and that 'the Commonwealth has sustained its burden of showing that the money formed an integral part of the illegal narcotics activity'. This appeal followed.

I

Rule 324, Pa.R.Crim.P., provides as follows:

'(a) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he is entitled to lawful possession thereof. Such motion shall be filed in the Court of Common Pleas for the judicial district in which the property was seized.

'(b) The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.

'(c) A motion to suppress evidence under Rule 323 may be joined with a motion under this Rule.'

Under Rule 324, the lower court is required to return property to a petitioner entitled to lawful possession unless the lower court determines that the property is 'contraband'. Rule 324, however, does not define 'contraband'; nor is 'contraband' a self-defining term. There are two classes of contraband property: (1) contraband Per se, which is property that has no lawful use in the hands of a particular defendant, and (2) derivative contraband, which is property, in and of itself lawful, but which is deemed contraband because of the way it which it is used by a particular defendant. See One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965); Commonwealth v. Altizer, 213 Pa.Super. 201, 245 A.2d 692, (1968). See generally, Comment, Forfeitures--Civil or Criminal?, 43 Temp.L.Q. 191 (1970); Note, Commonwealth v. One 1958 Plymouth Sedan: Search and Seizure in Forfeiture Proceedings for Liquor Law Violations, 69 DickL.Rev. 284 (1966). In order to determine whether property is contraband, therefore, reference must be made to the statute that outlaws the property or the particular use of the property.

In the instant case, the appellant was charged with possession and possession with intent to deliver a controlled substance. Section 780--128 ³ of the Act defines what property is 'subject to forfeiture to the Commonwealth' as contraband. Among the items listed in § 780--128 are all controlled substances, ⁴ all raw materials used in manufacturing controlled substances, ⁵ all property used as a container for controlled substances, ⁶ all vehicles which transport controlled substances, ⁷ and all books and records pertaining to controlled substances. ⁸ Section 720--128, however, does not specifically authorize the forfeiture of money received in exchange for the illegal delivery of controlled substances. We do not regard this omission as evidencing a legislative intent to immunize from forfeiture the proceeds of the sale of a controlled substance. Rather, the statutory scheme envisions the confiscation of the proceeds by the imposition of a fine following conviction: § 780--113(f)(1) ⁹ provides that upon conviction of violating § 780--113(a) (30) (possession with intent to deliver), the defendant 'shall be sentenced to imprisonment not exceeding fifteen years, or to pay a fine not exceeding two hundred fifty thousand dollars ($250,000), or both or such larger amount as is sufficient to exhaust assets utilized in And the profits obtained from the illegal activity.' (Emphasis supplied). Any argument that the legislature intended a fine following conviction to be the sole means of depriving a seller of the fruits of his criminal act, however, must be rejected: § 780--113(h) ¹⁰ provides that '(a)ny penalty imposed for violation of this act shall be in addition to, and not in lieu of, any civil or administrative penalty or sanction authorized by law.'

Money, under certain circumstances, is subject to seizure and forfeiture. See Commonwealth v. Blythe, 178 Pa.Super. 575, 115 A.2d 906 (1955); Pannulla v. Rosenberg, 171 Pa.Super. 233, 90 A.2d 267 (1952). Surely money proceeds directly derived from and directly traceable to the sale of a controlled substance (contraband Per se), a criminal act, are 'derivative contraband' subject to forfeiture. Such money represents the fruit of the illegal act and it, therefore, takes on the illegal characteristics of the contraband controlled substance. It is not only the policy of the Controlled Substance, Drug, Device and Cosmetic Act, but also the policy of our criminal law to deprive a criminal of the fruits of his illegal act.

II

Appellant contends that the lower court erred by admitting inadmissible hearsay at the hearing. Specifically, appellant objects to the following exchange between the Commonwealth and the police officer:

'Q. The pills, what were they? . . .

'A. As a result of the arrest, the pills were submitted to the Police Chemical Lab on property receipt number 500685. The result of the analysis, which was done by the chemist, was one vial containing eight white tablets which contains active hydromorphine and reducing sugar. Hydro-morphine is a controlled substance, Schedule Two.' Appellant's timely objection was overruled.

'Hearsay evidence is testimony in court or written evidence of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.' McCormick, Evidence § 246 (2d ed. 1972). Hearsay has also been defined as '. . . evidence offered in court by a witness which is based not on his own knowledge, but on what some other person has stated, and the statement is offered to show the truth of its content.' 2 Wharton's Criminal Evidence § 265 (13th ed. 1972).

Officer Beckman's testimony concerning the findings of the chemist which were contained in the laboratory report was clearly hearsay. The Commonwealth made no further attempt to properly introduce this evidence. See Commonwealth v. Crockett, 229 Pa.Super. 80, 323 A.2d 257 (1974) (stipulated doctor's report); Commonwealth v. Lambert, 226 Pa.Super. 41, 313 A.2d 300 (1973) (the Commonwealth could prove that the drugs were 'dangerous drugs' by analysis of the pills, testimony of the treating physician, hospital reports, or identification of the pills by a pharmacologist); Commonwealth v. Garnett, 204 Pa.Super. 113, 203 A.2d 328 (1964) (testimony of the chemist). Because this testimony was both inadmissible hearsay and the only testimony identifying the pills as a controlled substance, we must remand for a new hearing.

III

Because we are remanding for further proceedings, it is necessary to address appellant's contention that the Commonwealth must prove beyond a reasonable doubt that the money was derived...