decided: November 18, 1982.
ONE 1978 PORSCHE COUPE, APPELLANT
COMMONWEALTH OF PENNSYLVANIA, APPELLEE
Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Commonwealth of Pennsylvania v. One 1978 Porsche Coupe, No. 415 July 1980.
Edward F. Kane, Kane, Pugh & Bonner, for appellant.
Leroy S. Zimmerman, Attorney General, with him Joseph F. Lynch, Deputy Attorney General, for appellee.
President Judge Crumlish, Jr. and Judges Williams, Jr. and Doyle, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judge Williams, Jr., dissents. Judge Doyle concurs in the result only.
[ 70 Pa. Commw. Page 81]
The Montgomery County Common Pleas Court ordered the forfeiture of a 1978 Porsche Coupe. We affirm.
[ 70 Pa. Commw. Page 82]
Steven Setzman, President of Total Data Services, Inc., the titleholder of the Porsche, was arrested and charged with possession with intent to deliver a controlled substance in violation of The Controlled Substance Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-101. Setzman, while sitting in the Porsche, sold $2,300 worth of cocaine to undercover agents and the car was seized under the provisions of Section 780-128 of the Act, 35 P.S. § 780-128(b). The Commonwealth subsequently petitioned for the forfeiture of the Porsche under Section 780-128(a)(4).
We affirm on the basis of the able opinion of Judge Smillie, with one modification, Pa. D. & C.3rd (1981). We conclude that the certified transcript of Setzman's Gagnon II hearing, wherein he admitted that the substance in his possession was cocaine, was admissible under the provisions of 42 Pa. C.S. § 6106.
The Commonwealth's burden in a forfeiture proceeding is proof by a preponderance of the evidence. Commonwealth v. Myers, Pa. Superior Ct. , n.5, 444 A.2d 1170, 1175 n.5 (1982). The Commonwealth has met that burden.
The order of the Bucks County Common Pleas Court, Misc. Docket No. 415 July Term 1980 ordering the forfeiture of One 1978 Porsche Coupe, is affirmed and the Porsche is hereby ordered forfeited to the Commonwealth.
Now, November 22, 1982, the Order of this Court dated November 18, 1982, is hereby amended to read as follows:
[ 70 Pa. Commw. Page 83]
The order of the Montgomery County Common Pleas Court, Misc. Docket No. 415 July Term 1980 ordering the forfeiture of One 1978 Porsche Coupe, is affirmed and the Porsche is hereby ordered forfeited to the Commonwealth.
Judge Williams, Jr., dissents.
Judge Doyle concurs in the result only.
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