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LAURA L. SUGALSKI v. JAY COCHRAN (08/10/87)

filed: August 10, 1987.

LAURA L. SUGALSKI, CHARLES E. ROOP, SR., CHARLES E. ROOP, JR.,
v.
JAY COCHRAN, JR., COMMISSIONER, PENNSYLVANIA STATE POLICE, APPELLANT



Appeal from the Order entered July 31, 1986 in the Court of Common Pleas of Montgomery County, Civil Division, at Nos. 337, 338, 339 July 85.

COUNSEL

Richard W. Sponseller, Deputy Attorney General, Harrisburg, for appellant.

Roger B. Reynolds, Norristown, for Sugalski, appellee.

Allan J. Josel, Assistant Public Defender, Norristown, for Roop, Sr., appellee.

Olszewski, Del Sole and Hoffman, JJ. Olszewski, J., files a dissenting opinion.

Author: Hoffman

[ 365 Pa. Super. Page 371]

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.

[ 365 Pa. Super. Page 372]

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

CORSO, Judge:

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.*fn1 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

[ 365 Pa. Super. Page 373]

    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

[ 365 Pa. Super. Page 374]

(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. § ...


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