The opinion of the court was delivered by: P. Kevin Brobson, Judge
Submitted: September 16, 2011
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
Dalayna Williams (Williams) appeals the April 4, 2011 order of the
Court of Common Pleas of Monroe County (trial court), which granted
the Commonwealth of Pennsylvania‟s (Commonwealth) petition for
forfeiture of Williams‟ claim of right, title, or interest in
$15,000.00 found in a rental car rented in Williams‟ name,*fn1
pursuant to what is commonly known as The Controlled
Substance Forfeiture Act (Forfeiture Act), 42 Pa. C.S. §§ 6801-6802.
For the reasons that follow, we reverse the trial court.
The Commonwealth seized the property in question on March 17, 2010, when the Pennsylvania State Police (PSP) conducted a search of the rental car. On October 22, 2010, the Attorney General of the Commonwealth of Pennsylvania filed a petition for forfeiture with the trial court, alleging that the seized cash should be condemned and forfeited to the Commonwealth because no legal right, title, or interest exists in it by any owners or possessors of it pursuant to Section 6801(a) of the Forfeiture Act, 42 Pa. C.S. § 6801(a). (Certified Record (C.R.), Item No. 10.) On October 26, 2010, the trial court issued a Rule to Show Cause, advising Williams that she was required to file an answer within thirty (30) days, setting forth why the Commonwealth should not be entitled to forfeiture. (R.R. at 4a.) On November 23, 2010, Williams responded to the Commonwealth‟s petition for forfeiture, maintaining that the Commonwealth‟s petition should be denied because the Commonwealth failed to show a nexus between any criminal activity and the $15,000.00 confiscated from the rental car. (Id. at 6a.)
At the April 4, 2011 forfeiture hearing, the Commonwealth presented testimony of Pennsylvania State Trooper Mark Conrad in support of its petition for forfeiture. (R.R. at 14a.) Trooper Conrad testified that he executed a traffic stop on Interstate 80 eastbound in Pocono Township for speeding. (Id. at 16a.) During the stop, he made contact with the driver, Norman Caldwell (Caldwell), and the passenger, Marcus Shannon (Shannon), who were traveling from the Syracuse, New York area to the New York City or New Jersey area. (Id.) Trooper Conrad testified that both men had suspended driver‟s licenses and were in a vehicle rented by a third party without the renter (Williams) present. (Id.) Trooper Conrad further testified that the rental agreement had expired and that both men were very nervous. (Id.) Trooper Conrad testified that while both men told him that they were "visiting a girl in Jersey," no luggage existed to support an overnight stay. (Id.) Subsequently, according to Trooper Conrad‟s testimony, Trooper Conrad ran a criminal history on both men, which revealed recent drug possession and distribution histories in upstate New York. (Id. at 17a.) Trooper Conrad testified that after this discovery, he contacted the rental company, which informed him that Williams rented the vehicle and that the rental agreement had been violated. (Id.) Trooper Conrad further testified that after obtaining this information, he called for backup. When State Trooper Nick Cortes arrived on the scene, he informed Trooper Conrad that he was familiar with Caldwell. (Id. at 18a.) According to Trooper Conrad‟s testimony, Trooper Cortes further informed Trooper Conrad that Caldwell was a passenger in another instance where the PSP seized $30,000.00 from a hidden steering wheel compartment. (Id.) Trooper Conrad testified that subsequent to learning this information, he conducted a consensual vehicle search and ultimately recovered $15,000.00, concealed under the back seat of the vehicle bundled in one thousand dollar increments. (Id. at 18a-20a.) Trooper Conrad testified that in his training and experience, drug money is "always" bundled in one thousand dollar increments. (Id. at 19a.)
Both men seemed very shocked and surprised upon the discovery of the money, and both disclaimed ownership of the money, according to Trooper Conrad‟s testimony. (Id. at 23a.) Within a few minutes, Trooper Conrad testified that Caldwell handed him a cellular phone and a female identified herself as Williams on the other end. (Id.) Williams informed Trooper Conrad of the money in the car. (Id.) Trooper Conrad testified that Williams further informed him where the money could be found in the vehicle and the amount*fn2 of money contained in the vehicle. (Id.) Trooper Conrad further testified that Williams informed him that Caldwell‟s responsibility was to drive the money to her in New Jersey. (Id.) Trooper Conrad did not cite or charge Caldwell or Shannon in relation to the incident. (Id. at 28a.) Trooper Conrad testified that after he confiscated the money, the money was taken to the State Police barracks in Swiftwater, Pennsylvania, where a canine scan showed a positive result for illegal narcotics. (Id. at 24a, 26a.) Finally, Trooper Conrad testified that the bag, which contained the money, emitted a very strong odor of marijuana when opened. (Id. at 27a.)
The Commonwealth also presented the testimony of Corporal Thomas Appleman in support of its petition for forfeiture. Corporal Appleman testified that he assisted the Commonwealth in forfeiture investigations for seizures of currency or controlled substances. (Id. at 30a.) Corporal Appleman testified that he assisted in the current seizure along with another officer, Sergeant Jost, who conducted an ion scan of the money. (Id. at 32a.) Corporal Appleman testified that Sergeant Jost used a "sort of vacuum cleaner instrument" to test the money in question for controlled substances. (Id.) More specifically, Corporal Appleman testified that he (Corporal Appleman) opened the package containing the money, removed the rubber bands from the money, and fanned out the money like a "deck of cards" to prepare the money for testing. (Id. at 32a-33a.) Corporal Appleman further testified that the money was folded in half in one thousand dollar increments. (Id.) Finally, Corporal Appleman testified that the money tested positive for cocaine residue. (Id. at 34a.)
At the hearing, Williams appeared on her own behalf and testified that the $15,000.00 in question belonged to her and that it was not linked to any drug activity. (Id. at 45a.) Williams also testified that the money confiscated from the vehicle had been saved through the years from her job. (Id. at 57a.) Williams testified that she planned to use the money in the vehicle to buy a car in New Jersey, and, while she initially told Trooper Conrad that it was Caldwell‟s responsibility to transport the money to her to purchase the vehicle, she testified that Caldwell did not have permission to use the rental car. (Id. at 47a.) Williams further testified that she was on a work-related trip in Delaware and had planned on going to New Jersey to meet Caldwell to purchase the new vehicle. (Id. at 54a.) However, Williams later contradicted that testimony by testifying that she planned on returning to Syracuse, New York, to return the rental car prior to traveling to New Jersey to purchase the new vehicle. (Id. at 56a.)
On April 4, 2011, the trial court granted the Commonwealth‟s petition for forfeiture. (Id. at 64a.) Williams appealed the trial court‟s order to this Court. In its Pa. R.A.P. 1925(b) opinion, the trial court explained that it accepted the testimony of Trooper Conrad as credible regarding his actions and observations of the traffic stop. (Trial Court‟s 1925(b) Opinion, attached to Appellant‟s Brief as Appendix B, p. 3.) The trial court acknowledged that the ion scan yielded a positive result for cocaine residue. (Id.) The trial court explained, however, that the ion scan was irrelevant and inadmissible pursuant to this Court‟s decision in Commonwealth v. $9,000.00 U.S. Currency, 8 A.3d 379 (Pa. Cmwlth. 2010) (Collins), in which we held that an ion scan test is irrelevant when it fails to show that the money‟s casual contact level was obtained from the relevant geographic areas in question. (Id.) Here, therefore, the trial court reasoned that because both parties in the vehicle were residents of New York and the vehicle was rented in New York, there was no evidence that the seized money ever circulated within Pennsylvania and Pennsylvania‟s casual contact level could not be used as a comparison with the seized money. (Id.) Nevertheless, the trial court found that the Commonwealth proved a nexus between the seized currency and illegal drug activity based on the totality of the circumstances. (Id.) The trial court reasoned that, based on the drug histories of Caldwell and Shannon, the bundling of the money, the positive canine scan, and the overwhelming smell of marijuana, coupled with the inconsistent statements regarding the origin of the cash, the Commonwealth proved a nexus between the seized cash and a violation of The Controlled Substance, Drug, Device and Cosmetic Act (the Controlled Substance Act), Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101 to -144. (Id.) Furthermore, the trial court found that, while Williams had an opportunity to prove that she lawfully acquired the money, her testimony was not credible and was self-serving, and, accordingly, she failed to prove ownership of the money. (Id. at p. 10.) The trial court concluded that because the Commonwealth proved a nexus between the money and illegal activity and Williams failed to meet her burden by proving lawful ownership of the money, the Commonwealth met its burden on the forfeiture petition. (Id.)
On appeal,*fn3 Williams essentially argues that the trial court‟s decision is contrary to law, because the Commonwealth failed to establish evidence of a nexus between the forfeited money and any illegal activity. Specifically, Williams argues that the trial court erred in failing to follow this Court‟s decision in Collins.
Section 6801(a) of the Forfeiture Act sets forth a list of property that "shall be subject to forfeiture," including controlled substances, drug paraphernalia, equipment, conveyances (vehicles and money). Section 6802(j) of the Forfeiture Act, 42 Pa. C.S. §6802(j), provides, in pertinent part:
At the time of the hearing, if the Commonwealth produces evidence that the property in question was unlawfully used, possessed or otherwise subject to forfeiture under section 6801(a) or 6801.1(a), the burden shall be upon the claimant to show:
(1) That the claimant is the owner of the property or the holder of a chattel mortgage or contract ...