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Commonwealth v. $3961.00 Cash

July 23, 2010

COMMONWEALTH OF PENNSYLVANIA
v.
$3961.00 CASH, AND OTHER PROPERTY
APPEAL OF: RAJSHI COX



The opinion of the court was delivered by: Judge McCULLOUGH

Submitted: April 16, 2010

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

Rajshi Cox (Cox) appeals pro se from the February 27, 2009, order of the Court of Common Pleas of York County (trial court) granting the Commonwealth's petition for forfeiture of property under the act commonly known as the Controlled Substances Forfeiture Act (Forfeiture Act), 42 Pa. C.S. §§6801-6802. For the reasons that follow, we vacate and remand.

On April 25, 2008, York City Police Officer William Wentz and members of the York County Drug Task Force executed a search warrant at 709 West Market Street. At the time, Cox, George Hernandez, and an unidentified woman were in the apartment. During the search, officers found ten grams of crack cocaine, a crack cocaine pipe, $3961.00 in cash, and a loaded, nine millimeter automatic pistol. The officers also seized a Sony Playstation II, an RCA television, a Dell laptop computer, four watches, a ring, a wristband, and a bracelet. Officers charged Cox and Hernandez with possession with intent to deliver cocaine and criminal conspiracy.

In September 2008, the Commonwealth filed a petition for forfeiture, alleging that the cash and property seized represent income from a drug transaction and that the property seized was used to facilitate a drug transaction. Cox filed an answer denying those assertions and demanding a jury trial. By order dated February 2, 2009, the trial court scheduled a hearing on the Commonwealth's forfeiture petition for February 27, 2009.

At the start of the hearing, Cox indicated that he had intended to call his wife as a witness and did not know why she was not present; however, Cox stated that he was ready to proceed. (N.T. at 2.) The first witness called was Officer Wentz, who testified that: the cocaine was discovered in Cox's bedroom; the cash seized was found in the pocket of a pair of pants, also in Cox's bedroom; the pistol was removed from a living room chair; and the crack cocaine pipe was sitting on a window ledge. (N.T. at 4-5.) Wentz stated that Cox was cooperative; according to Wentz, Cox admitted that he sells cocaine and that the cash in his pants was proceeds from those sales. (N.T. at 6.)

Cox acknowledged that he pled guilty to possession with intent to deliver cocaine on October 23, 2008, and received a sentence of five-to-ten years. (N.T. at 16.) Cox also admitted that he was using drugs. However, Cox denied that the money and property were derived from illegal activity. Instead, he stated that the drugs and property seized were purchased with money he lawfully earned from his own business. Cox submitted several documents to support that assertion, including a 2007 federal tax return, a vendor display card, and a city registration form in the name of "Harlem Fashions." (N.T. at 17-18; Respondent's Exhibit 2.) After completing his testimony, Cox noted again that he had expected his wife to testify on his behalf; he did not elaborate on what she might have said. (N.T. at 25-26.)

At the conclusion of the hearing, the trial court issued its ruling, finding that the Commonwealth sustained its burden of proving that the items seized were subject to forfeiture and ordering the cash and property forfeited to the Commonwealth. (N.T. at 28.) Cox appealed, arguing that: (1) the Commonwealth did not meet its burden of proof in the forfeiture proceeding; (2) the trial court erred by not granting him a jury trial; (3) notice of the hearing did not afford him a sufficient amount of time to prepare a defense; and (4) the Constitution requires that counsel be provided in forfeiture proceedings.

The trial court issued a memorandum opinion on May 13, 2009, in support of its February 27, 2000, order. Citing Cox' guilty plea to the charge of possession with intent to deliver the drugs seized from his residence and the testimony of Officer Wentz, the trial court concluded that the Commonwealth had satisfied its burden of proof in this case.*fn1 The trial court acknowledged that Cox was entitled to a jury trial under the Forfeiture Act; however, the trial court stated that Cox failed to renew his request for a jury at the scheduled hearing and concluded that Cox had not been sufficiently proactive. In addition, the trial court rejected Cox' assertion that he did not have adequate time to prepare a defense, noting that the order to show cause why forfeiture should not be granted was issued in September, several months before the February hearing, and that Cox did not request a continuance. Addressing Cox' final contention, the trial court explained that, in Commonwealth v. $9847.00 U.S. Currency, 550 Pa. 192, 704 A.2d 612 (1997), our Supreme Court held that indigent claimants in civil forfeiture proceedings are not entitled to appointed counsel.

On appeal to this court,*fn2 Cox again raises these four issues.*fn3 We first address Cox' assertion that the trial court erred in failing to provide him a jury trial.

Pursuant to Article I, Section 6 of the Pennsylvania Constitution, a property owner is entitled to a jury trial in a forfeiture action where there is an issue of fact as to whether the property seized is contraband. Commonwealth v. One 1984 Z-28 Camaro Coupe, 530 Pa. 523, 610 A.2d 36 (1992); Commonwealth v. $1400 in U.S. Currency, 667 A.2d 452 (Pa. Cmwlth. 1995). In this case, although Cox requested a jury trial in his answer to the Commonwealth's forfeiture petition, the trial court scheduled a hearing instead. After the trial court issued its ruling from the bench, the following exchange took place:

[Cox]: Do I have a right to a trial?

The Court: Not at this point in time, no. You just ...


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