Appeal from the Order entered in the Court of Common Pleas of Allegheny County, criminal Division, No. CC 8512285, 8512347.
Vincent C. Mujrovich, Jr., Pittsburgh, for Com., appellant.
Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for appellee.
Tamilia, Watkins and Hester, JJ.
[ 371 Pa. Super. Page 612]
This is a timely appeal by the Commonwealth of Pennsylvania from an Order of the Court of Common Pleas of Allegheny County, dated July 22, 1987, which denied the Commonwealth's petition for forfeiture of $1,950 cash belonging to appellee James J. Tate.
Tate was arrested on November 15, 1985, and charged with violations of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et seq., including the delivery of a controlled substance (cocaine), 35 P.S. § 780-113(a)(30), possession with intent to deliver a controlled substance (cocaine), 35 P.S. § 780-113(a)(30), and possession of a controlled substance (cocaine), 35 P.S. § 780-113(a)(16).
[ 371 Pa. Super. Page 613]
However, these charges were nolle prossed on May 9, 1986.*fn1 In connection with the charges, the Commonwealth filed a petition to condemn and forfeit one 1978 Toyota Celica and $1,950 cash. After hearing, the trial judge signed an Order granting the petition as to the 1978 Toyota Celica, but reserved judgment concerning the $1,950 in cash. Subsequently, on July 22, 1987, the trial judge denied the forfeiture of the $1,950 and ordered the money be returned to Tate. This timely appeal followed on August 21, 1987.
At the hearing on the Commonwealth's petition, the parties stipulated to the facts concerning the arrest and seizure in question (N.T. 8/14/86, p. 2). On November 8, 1985, Tate borrowed $3,000 from the Central Bank in Cleveland, Ohio, which was a cash advance disbursement draft charged against his Visa credit card. On that date, he then purchased a one-way airline ticket from Cleveland to Miami, Florida, where he met with drug dealers to obtain one kilo of cocaine for the purchase price of $35,500 (N.T. at p. 7). Tate raised the purchase price by using $20,000 of his own previous profits from a prior drug transaction and money obtained from a partner. The record does not disclose the exact amount of money his partner contributed to the Miami drug purchase, but does indicate they were equal partners. After buying the cocaine in Florida, Tate used a rented motor vehicle to transport the cocaine back to Cleveland and split the kilo. Tate then deposited three-quarters of a pound of cocaine in a bank safety deposit box and took another quarter pound in his 1978 Toyota Celica to Pittsburgh, Pennsylvania, to sell portions to Doug Blodgett, an undercover police officer, and three other men. On November 15, 1985, Tate met with Officer Blodgett and in exchange for a quantity of cocaine, he received $7,500 from the officer. After this sale he was placed under arrest.
At the time of his arrest Tate consented to a search of the trunk of his car and his brief case contained in the trunk. Inside the brief case the police found: a quarter pound of
[ 371 Pa. Super. Page 614]
cocaine; the $1,950 cash which is the subject of this action and which was contained in a white envelope marked "Central Bank"; title to the Toyota; and receipts for Tate's rental vehicle which he drove from Miami, his gasoline on that trip, and motel lodging from that trip. We agree with defense counsel (N.T. at p. 12) and the trial court that "in view of the [appellee] meeting a person to whom he was going to sell a large quantity of cocaine he stored all other personal property of value in the brief case which he locked in the trunk" (Slip Op., McFalls, J., 10/20/87, p. 3).
Based on statements Tate made to the police and the stipulation of facts presented, the trial court concluded Tate had not made any drug transactions from the time he arrived in Cleveland on November 10, 1985 until he met Officer Blodgett on November 15, 1985; therefore, Tate had received no income from drug related activities prior to his meeting with Officer Blodgett and subsequent arrest. The fact that Tate had borrowed $3,000 from the Central Bank in Cleveland and that the $1,950 in question was found in an envelope marked "Central Bank" gives rise to a reasonable inference that the money contained in the envelope was the balance left from the $3,000 cash advancement.
The Commonwealth argues that under the stipulated facts it proved by a preponderance of the evidence that the cash found in the brief case was "used or intended to be used to facilitate any violation" of the Controlled Substance, Drug, Device and Cosmetic Act, supra, and was, therefore, subject to forfeiture under 35 P.S. § 780-128(a)(6)(i)(C). In support of its argument, the Commonwealth claims the rebuttable presumption set forth in 35 P.S. § 780-128(a)(6)(ii), that money found in close proximity to a controlled substance possessed in violation of the Act ...