Sugalski v. Cochran
| Decision Date | 10 August 1987 |
| Citation | 365 Pa.Super. 370,529 A.2d 1104 |
| Parties | Laura L. SUGALSKI, Charles E. Roop, Sr., Charles E. Roop, Jr., v. Jay COCHRAN, Jr., Commissioner, Pennsylvania State Police, Appellant. 1381 Pitts. 1986 |
| Court | Pennsylvania Superior Court |
Roger B. Reynolds, Norristown, for Sugalski, appellee.
Allan J. Josel, Asst. Public Defender, Norristown, for Roop, Sr., appellee.
Before OLSZEWSKI, DEL SOLE and HOFFMAN, JJ.
This is an appeal from the lower court's order granting appellee's petition for return of property. Appellant contends that the lower court erred because the evidence was sufficient to establish that the seized property was derivative contraband and, thus, unlawfully possessed by appellee. After a careful review of the record, the briefs submitted by the parties and the lower court's opinion, we find that the appellant did not meet its burden of proof in this matter, Petition of Maglisco, 341 Pa.Superior Ct. 525, 531, 491 A.2d 1381, 1384 (1985), and affirm on the lower court's opinion.
Affirmed. Jurisdiction is relinquished.
APPENDIX
LAURA SUGALSKI; CHARLES E. ROOP, SR.; CHARLES E. ROOP, JR.
vs.
JAY COCHRAN, JR.
MISC. NOS. 337
July 1985, 338 July 1985, 339 July 1985.
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
December 23, 1986
On August 8, 1985, Petitioners, Laura L. Sugalski, Charles E. Roop, Sr. and Charles E. Roop, Jr., filed petitions for return of property against Respondent, Jay Cochran, Jr., Commissioner, Pennsylvania State Police (hereinafter referred to as "Commonwealth"), seeking the return of money seized by the Pennsylvania State Police from their residences on January 29, 1985, and from a safe deposit box on January 30, 1985 1. After hearings on said Petitions the following Order was entered by this Court on July 31, 1986:
"AND NOW, this 31st day of July, 1986, pursuant to Petitions for Return of Property, after hearings on January 30, 1986, April 14, 1986 and April 15, 1986, limited in scope by agreement of counsel to a determination of derivative contraband status without determination of the legality of search warrants and subsequent searches of Petitioners' homes, and accepting as true for purposes of this proceeding only the affidavit in support of search warrants for the safe deposit box; and consideration of Memoranda of Law submitted and briefs of counsel, it is hereby ORDERED and DECREED that:
I. The Petition for Return of Property of Charles E. Roop, Sr. is granted, the following property is found not to be derivative contraband and shall be returned to Petitioner forthwith:
(a) $1,175.00 U.S. currency seized from Petitioner's home on January 29, 1985; and
(b) $508,700.00 seized from a safe deposit box in the Holding Company, Bryn Mawr, Pennsylvania, on January 30, 1985.
II. The Petition for Return of Property of Charles E. Roop, Jr. is granted, the following property is found not to be derivative contraband and shall be returned to Petitioner forthwith:
(a) $7,940.00 U.S. currency seized from Petitioner's home on January 29, 1985.
III. The Petition for Return of Property of Laura L. Sugalski is granted in part and denied in part:
(1) The following property is found not to be derivative contraband and shall be returned to Petitioner forthwith:
(a) $15,500.00 U.S. currency seized from a cash box in the clothes closet of master bedroom in Petitioner's home on January 29, 1985;
(b) $12,429.00 U.S. currency seized from a metal box under the bed of master bedroom of Petitioner's home on January 29, 1985; and
(c) Two $25.00 savings bonds and two $50.00 savings bonds all in the name of 'Mrs. Rosetta Keaton' seized from a kitchen cabinet in Petitioner's home on January 29, 1985.
(2) The following property is found to be derivative contraband and is forfeitable to the Commonwealth of Pennsylvania:
(a) $50.00 U.S. currency seized from kitchen counter in Petitioner's home on January 29, 1985; and
(b) $1,626.00 U.S. currency and $2.00 U.S. currency seized from kitchen cabinet in Petitioner's home on January 29, 1985."
Notice of Appeal to the Superior Court of Pennsylvania was filed by the Commonwealth on August 22, 1986. The Statement of Matters Complained of on Appeal filed on September 9, 1986, raises two issues: whether the Court placed an evidentiary burden on the Commonwealth which is greater than that required under 47 Pa.S. § 6-602(e) as applied to 18 Pa.C.S. § 5513(b); and whether the Court abused its discretion in ordering the return of the seized money.
The facts may be summarized as follows:
On January 29, 1985, Search Warrants were obtained for Petitioners' homes by the State Police to search for and obtain evidence of suspected illegal gambling. One warrant was executed upon the home of Charles Roop, Sr., where $1,175.00 in cash, one number's play, and a tally sheet for two days were found. Another warrant was executed upon the home of Charles Roop, Jr., where $7,940.00 in cash, tally sheets, rice paper, line sheets, numbers bets, and sports bets were found. The proximity of the above cash to the gambling paraphernalia was not known by Troopers John L. Bergan or Joseph Moran who testified for the Commonwealth or otherwise established by the Commonwealth.
Also, on January 29, 1985, a search warrant was executed upon the Sugalski home by three Pennsylvania State Troopers, including Troopers Bergan and Levingood. Cash in the sum of $15,500.00 was found in a steel box on a closet shelf of a second floor front bedroom. No gambling paraphernalia was located in this box. A second steel box was found under the bed in the same bedroom which contained items relating to a safe deposit box at the Bryn Mawr Holding Company, Bryn Mawr, Pennsylvania, cash in the amount of $12,429.00 2, children's birth certificates, insurance policies, personal papers, etc. No gambling paraphernalia was found in this box. All items were left in the box with the exception of the safe deposit documents and cash which were taken to the kitchen. Although Trooper Bergan took the safe deposit box documents, he was not sure "whether it actually pertained to the case or not". There was nothing about the cash found in the bedroom to indicate, in any manner whatsoever, that it had been used for illegal gambling, or any other unlawful purpose. No gambling paraphernalia was found in the bedroom, or anywhere on the second floor. However, the money was seized by the Commonwealth.
The first floor rear kitchen of the Sugalski home was then searched. In a top kitchen cabinet, three calculators and blank sheets of paper were found. In a lower cabinet the Troopers found among other things, $1,626.00 and $2.00 in cash, two $50.00 and two $25.00 savings bonds in the name of "Mrs. Rosetta Keaton", rice paper, numbers bets, weeklys, dailys, and, yearlys. Fifty ($50.00) Dollars in cash and numbers bets were found on the kitchen counter. All of the above items were seized.
The following day, an Application for a Search Warrant for safe deposit box 1H-9, was presented, and the Search Warrant was issued. Upon executing the warrant at the Bryn Mawr Holding Company, the sum of $508,700.00 was found in the safe deposit box and seized by the Commonwealth.
The essence of the Commonwealth's first argument is that the Court erred when it failed to place the burden upon Petitioners to prove that the seized money was gained or possessed lawfully as required under 47 Pa.S. § 6-602(e). The statutory provisions relied upon by the Commonwealth state:
The Crimes Code, 18 Pa.C.S.A. § 5513(b):
The Liquor Code, 47 Pa.S.A. 6-602(e):
"At the time of said [forfeiture] hearing, if the Commonwealth shall produce evidence that the property in question was unlawfully possessed or used, the burden shall be upon the claimant to show (1) that he is the owner of said property, (2) that he lawfully acquired the same, and (3) that it was not unlawfully used or possessed."
The Commonwealth concedes that "money is not, ordinarily, itself an instrumentality of gambling" Fairmount Engine Company v. Montgomery County, 135 Pa.Super. 367, 371, 5 A.2d 419 (1938), however, it contends that money is subject to seizure and forfeiture along with gambling devises when the circumstances clearly show that the money formed an integral part of an illegal gambling operation. Thus, the Commonwealth contends that the seized money is derivative contraband of gambling operations. The leading case concerning the forfeiture of money alleged to be derivative contraband of illegal gambling is Rosen v. LeStrange, 120 Pa.Super. 59, 61-62 (1935):
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