NO. 01586 PHILADELPHIA 1983, Appeal from the Order dated June 8, 1983, in the Court of Common Pleas of Delaware County, Criminal Division, at No. Misc. Docket A-37, P. 370 of 1983.
Sandra L. Elias, Deputy District Attorney, Media, for Commonwealth, appellant.
Gary A. Hurwitz, Media, for appellee.
Montemuro, Beck and Watkins, JJ.
[ 341 Pa. Super. Page 560]
Appellee Helen Peetros is the executrix of the estate of her husband, Harry Peetros (hereinafter "decedent"), who was murdered on May 23, 1981. She filed a motion seeking the return of certain books seized from the decedent's office by police investigating the homicide. The Commonwealth asserts that the books are records of the decedent's loan-sharking operations and are therefore contraband subject to forfeiture. The court below initially granted appellee's motion. The Commonwealth then petitioned for and received
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a rehearing. After the rehearing, the court once again granted the motion.*fn1 The Commonwealth appealed.
We reverse the order of the trial court granting appellee's motion, and find that the record books are derivative contraband subject to forfeiture.
The trial court properly treated Mrs. Peetros' motion as a motion for return of seized property under Pa.R.Crim.P. 324, although the motion makes no reference to the rule. Under Rule 324 the court may order the property to be forfeited if it determines the property to be contraband. Contraband property is divided into two classes: contraband per se and derivative contraband. Contraband per se is property the mere possession of which is unlawful, and derivative contraband is property which is innocent in itself but which has been used in the perpetration of an unlawful act. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965); Commonwealth v. Fassnacht, 246 Pa. Super. 42, 369 A.2d 800 (1977). In a forfeiture proceeding, the Commonwealth has the burden of proving that the property is contraband by a preponderance of the evidence. Commonwealth v. Landy, 240 Pa. Super. 458, 362 A.2d 999 (1976).
The trial court's findings of fact indicate that the court believed the Commonwealth's expert witness who testified on rehearing that the notations in decedent's books were records of loan-sharking activities, i.e. the illegal practice of lending money at egregiously usurious rates of interest. The court found that many of the sheets recorded loans at an effective interest rate of over one hundred percent (100%) per annum (Findings of Fact 10-13, Trial Court Opinion at 2-3). The court correctly concluded that
[ 341 Pa. Super. Page 562]
charging such interest was a criminal offense under 41 Pa.S. § 505 (Conclusions of Law ...