Commonwealth v. $34,440.00 U.S. Currency

• Decision Date: 19 April 2016
• Docket Number: No. 1021 C.D. 2014,1021 C.D. 2014
• Parties: COMMONWEALTH of Pennsylvania v. $34,440.00 U.S. CURRENCY. Appeal of: Rafael Falette.
• Court: Pennsylvania Commonwealth Court

138 A.3d 102

COMMONWEALTH of Pennsylvania

v.$34,440.00 U.S. CURRENCY.

Appeal of: Rafael Falette.

No. 1021 C.D. 2014

Commonwealth Court of Pennsylvania.

Submitted on Briefs Dec. 9, 2015.

Decided April 19, 2016.

Brandon R. Reish, Delaware Water Gap, for appellant.

Jennifer A. Peterson, Deputy Attorney General, Harrisburg, for appellee.

BEFORE: DAN PELLEGRINI, President Judge¹ , BONNIE BRIGANCE LEADBETTER, Judge² , RENÉE COHN JUBELIRER, Judge, ROBERT SIMPSON, Judge, and MARY HANNAH LEAVITT, Judge³ .

OPINION BY Judge RENÉE COHN JUBELIRER

.⁴

Rafael Falette appeals from the Order of the Court of Common Pleas of Monroe County (common pleas) that granted the Commonwealth of Pennsylvania's (Commonwealth) petition for forfeiture (Petition) of $34,440 under the Controlled Substances Forfeiture Act⁵ (Forfeiture Act). Common pleas found that the Commonwealth met its burden of proof under the Forfeiture Act and that Falette did not establish that he was “the owner of the currency, that the currency was lawfully obtained and that he does not possess the currency for illegal purposes.” (Order, May 15, 2014.) On appeal to this Court, Falette argues that common pleas erred in concluding that the Commonwealth established the required nexus between the seized cash and unlawful activity necessary under the Forfeiture Act and in admitting certain opinion testimony without proper foundation. For the following reasons, we affirm.

I. Background

On August 7, 2009, Pennsylvania State Police (State Police) Trooper Derek Felsman (Trooper Felsman) was patrolling Interstate 80 (I–80) in Monroe County when, at 6:00 p.m., he initiated a traffic stop of a black Lincoln Town Car for Traveling Too Closely to Another Vehicle, i.e., tailgating. Trooper Felsman explained that he observed four individuals in the vehicle, including the driver, Juan Lugo. Lugo produced a valid New Jersey driver's license and registration card, which revealed that Lugo's sister owned the vehicle. Sitting next to Lugo was his brother and there were two other passengers in the back seat. Subsequently, Trooper Felsman searched the vehicle and discovered four ecstasy pills in the cigarette outlet in the center console area of the vehicle and four small plastic bags containing marijuana “in the right rear passenger door, underneath the cigarette ashtray.” (Hr'g Tr. at 16, 18, R.R. at 33a, 35a.) Lugo admitted that the drugs were his. Trooper Felsman continued his search and found $34,440.00 in cash hidden under the seatbelt attachment in the “B pillar” on the passenger side of the vehicle.⁶ Lugo and the other passengers denied ownership of the cash or knowing that it was there. The State Police confiscated the cash and drugs.

Trooper Felsman gave Lugo a warning for tailgating and charged him with possession of a controlled substance for personal use (the ecstasy tablets); possession of a small amount of marijuana for personal use; and possession of drug paraphernalia (the plastic bags that contained the marijuana). Lugo pleaded guilty in December 2009 to the marijuana possession charge, the remaining charges were nolle prossed, and he was sentenced to 15 to 30 days in prison and a fine of $105.

The Commonwealth filed the Petition on November 24, 2009, seeking to forfeit the $34,440.00 found in the vehicle. Falette, who was not present during the August 7 traffic stop, filed an answer (Answer) asserting ownership of the cash, and that the cash had no relationship to illegal activity, but was derived from the settlement of a personal injury lawsuit. Attached to the Answer were two checks from a law firm made out to Falette with the notation “Settlement Proceeds to Client.” or “Settlement Funds.” (Answer, Exs. 1–2.) One check, dated June 17, 2009, was for $14,496.22, and the second, dated July 16, 2009, was for $23,303.33. (Answer, Exs. 1–2.)

Common pleas held a hearing on the Petition on April 17, 2014, at which the both the Commonwealth and Falette presented evidence. The Commonwealth offered Trooper Felsman's testimony. Trooper Felsman explained that, upon effectuating the traffic stop, he observed four individuals in the vehicle: Lugo, Lugo's brother, and two others in the back seat. Lugo indicated that his sister, who owned the car, let him and others use her vehicle. On that day, he was taking a friend, one of the back seat passengers, somewhere in Pennsylvania. Lugo stated that he did not know exactly where they were traveling, but that the friend was giving him directions to their destination. After collecting the occupants' identification, Trooper Felsman ran a search on the State Police database, which revealed that Lugo and his brother had been charged with assault, burglary, and credit card fraud. The back seat passengers had no criminal charges or convictions.

Trooper Felsman then asked Lugo for permission to search the vehicle because: he smelled the odor of burnt marijuana; there were air fresheners in the vehicle; he suspected that the passengers in the back seat were pretending to be sleeping; and the portion of I–80 where he had stopped Lugo was “a heavily travelled drug corridor.” (Hr'g Tr. at 9–10, R.R. at 26a–27a.) Falette objected to Trooper Felsman's testimony regarding I–80 as lacking foundation, which was overruled. Trooper Felsman stated that Lugo consented to the search. Trooper Felsman found four ecstasy pills in the cigarette outlet in the center console area of the vehicle and four small plastic bags containing marijuana “in the right rear passenger door, underneath the cigarette ashtray.” (Hr'g Tr. at 16, 18, R.R. at 33a, 35a.) Lugo admitted the drugs were his, and Trooper Felsman charged Lugo with possession of drugs for his own personal use.

During the search, Trooper Felsman noticed that a screw was missing from the B Pillar on the vehicle's passenger side and, shining his flashlight in that area, he saw black plastic bags behind the plastic. He decided to investigate further, and, as he was removing the plastic housing from the seatbelt attachment, which “took a while,” he observed Lugo giving him a “long blank” or “thousand yard stare.” (Hr'g Tr. at 15, R.R. at 32a.) Trooper Felsman explained that watching the behavior of individuals during a traffic stop is important because that behavior can be an indicator of illegal activity. Trooper Felsman found two black plastic bags, each of which contained cash. The bags were transferred to the State Police barracks, counted, and found to total “$34,440 in numerous denominations of hundred dollar, fifty dollar and twenty dollar bills.” (Hr'g Tr. at 15–16, R.R. at 32a–33a.) None of the vehicle's occupants claimed the money and “denied knowing [that it] was there, [ ] whose money it was, how it got there, or how much it was.” (Hr'g Tr. at 16–17, R.R. at 33a–34a.) Falette's name was never mentioned during or after the traffic stop.

Falette testified that he was a long-time friend of Lugo and Lugo's sister, and they all lived in Passaic, New Jersey. Falette claimed that the $34,440.00 found in the vehicle was his and part of the settlement proceeds he received in a personal injury lawsuit from a 2006 automobile accident. The case settled shortly before the August 2009 traffic stop, and he received two settlement checks from his lawyers for a total of $37,799.55. Cross-examination elicited the following testimony. Falette explained that after he deposited the checks in the bank he decided that he wanted to have cash on hand to impress people. Although Falette indicated that he took the cash out of the bank little by little over a period of months, Falette acknowledged that he deposited those checks on July 16, 2009, just a couple of weeks before the traffic stop.

He said he spent a considerable amount of the proceeds, and then “stashed” the remaining $34,440.00 inside the B Pillar of the vehicle, which he regularly borrowed. (Hr'g Tr. at 28, R.R. at 45a.) Falette indicated that he did not tell anyone about his stash of cash, and did not know that Lugo was “going to use the car, you know, somehow, so fast.” (Hr'g Tr. at 23–24, R.R. at 40a–41a.) He acknowledged that his decision to use someone else's vehicle as a savings bank was “stupid,” and he attributed his bad decision to being young and foolish. (Hr'g Tr. at 24, R.R. at 41a.)

After hearing argument, common pleas took the matter under advisement. On May 15, 2014, common pleas found that the Commonwealth established a “nexus between the seized currency and unlawful activity” and granted the Petition. (Order, May 15, 2014, at 1.) The court explained:

Pursuant to the reasoning set forth in Commonwealth v. Burke, 49 A.3d 542 (Pa.Cmwlth.2012)

, the Commonwealth has sufficiently established a nexus between the seized currency and unlawful activity based on the following factors: (1) presence of drugs in close proximity to the currency at the time of the stop which creates a rebuttable presumption that it is related to drug trafficking,^[7

^] (2) inconsistent statements made by the vehicle occupants' [sic] as well as their unusual behavior at the time of the stop, including the back passengers who were pretending to be asleep during the stop; [sic] (3) the drivers' [sic] drug-related conviction as a result of the stop, (4) the placement of the currency in the B Pillar of the car, an area which was not intended for use by the manufacturer, (5) the packaging of the money in two plastic bags, and (6) the fact that the car was registered to a third party.

Furthermore, the Court finds that the claimant, Raphael [sic] Falette, failed to establish himself as the owner of the currency, that the currency was lawfully obtained and that he does not possess the currency for illegal purposes. Falette testified that the money was proceeds from a civil lawsuit settlement and that he placed it in the B Pillar to show it off to his friends and for easy access to the money. We find this explanation to be both illogical and devoid of any credibility. The money was neither easily accessible...