NO. 63 Harrisburg, 1981, Appeal from Order entered in the Court of Common Pleas, Criminal Division, of Adams County at No. CC-125 of 1979
Christos A. Katsaounis, Harrisburg, for appellant.
Barbara Orsburn Stump, York, for appellee.
Brosky, McEwen and Beck, JJ. McEwen, J., concurs in the result.
[ 298 Pa. Super. Page 275]
On April 21, 1979, pursuant to a search warrant, the police searched the residence of Barbara Jean Myers and her husband, and found and seized quantities of marijuana stored throughout the premises. At the same time, they searched Ms. Myers' pocketbook, and found and seized three thousand, seven hundred and ninety dollars ($3790.) in cash. Ms. Myers was arrested and charged with possession of a controlled substance with intent to deliver, and with conspiracy to possess a controlled substance with intent to deliver. Ms. Myers was not charged with sale or delivery of a controlled substance. The money seized from Ms. Myers was placed in the custody of the District Attorney of Adams
[ 298 Pa. Super. Page 276]
County. On pretrial motions, Ms. Myers sought return of the money, and this was refused on the grounds that it was to be used as evidence at trial.
On October 10, 1979, the Pennsylvania Department of Revenue filed a tax lien against Ms. Myers and her husband in the amount of $311,389.01 for taxes owed. Pursuant to the tax lien, the Department of Revenue prepared a Writ of Execution and obtained service of the Writ on the District Attorney of Adams County, seeking to attach the $3790. in his custody.
Apparently, the District Attorney neither delivered up the fund to the Department of Revenue in response to the Writ nor did he notify the Department of Revenue of his refusal to do so. It appears that he simply ignored the Writ of Execution, continuing to hold the money for possible use as evidence.
On November 1, 1979, following trial by jury, Ms. Myers was found guilty of the criminal charges filed against her. The money was not introduced as evidence at trial. With her omnibus post-verdict motions, she filed a Motion under Pa.R.Crim.P. 324 for Return of Property, seeking return to her of the money seized by the police. On March 31, 1980, the motion was denied on the grounds, as will be further discussed below, that the fund represented derivative contraband and was therefore forfeited to the state. The judge deferred specific determination of the disposition to be made of the fund until sentencing.
On November 12, 1980, more than a year after the end of the criminal trial, sentencing hearing was held and sentence imposed. As a part of her sentence on the criminal charges, the court imposed a fine of $5000, and directed that "the sum of $3790. presently in the possession of the Commonwealth be first applied to the costs of this proceeding and thereafter shall be applied to the fine imposed in this matter." Although the record reflects that the parties were aware of the tax lien filed by appellant ...