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Commonwealth of Pennsylvania v. $4

July 20, 2012; as amended July 24, 2012

COMMONWEALTH OF PENNSYLVANIA
v.
$4,000.00 IN UNITED STATES CURRENCY SYLVANIA 32" TV, REALISTIC SCANNER, 1995 JEEP CHEROKEE 1J4GZ5649SC506157 $2175.00 IN UNITED STATES CURRENCY IN RE: INELL FOYE



The opinion of the court was delivered by: Rochelle S. Friedman, Senior Judge

Submitted: May 4, 2012

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY SENIOR JUDGE FRIEDMAN

Inell Foye appeals, pro se, from two orders entered by the Court of Common Pleas of Lehigh County (trial court) on March 15, 2011, granting the Commonwealth of Pennsylvania's motions for condemnation and forfeiture of property under section 6801(a) of the Controlled Substances Forfeiture Act (Forfeiture Act).*fn1 In the first order (Order 4726), the trial court ordered the forfeiture of $4,000.00 in United States currency, a Sylvania thirty-two-inch television, and a realistic scanner. In the second order (Order 4728), the trial court ordered the forfeiture of a 1995 Jeep Cherokee and $2,175.00 in United States currency. With respect to Order 4726, we affirm in part and reverse in part. With respect to Order 4728, we affirm.*fn2 We also deny Foye's motion for summary relief.

On February 9, 2009, Foye was arrested following an arranged drug buy in the area of Seventh and Linden Streets in Allentown. Thereafter, police obtained and executed a search warrant on Foye's residence at 328 South Franklin Street in Allentown. Inside the residence, police found and seized sixty-seven grams of cocaine; drug paraphernalia; four separate bundles of cash, each containing $1,000.00; and a Sylvania thirty-two-inch television.

After escaping from Lehigh County Prison, Foye was apprehended on February 11, 2009, on Interstate 78 in Upper Macungie Township. At the time, police found $2,175.00 in cash on Foye's person and six bags of marijuana inside his 1995 Jeep Cherokee.

On September 16, 2010, a jury convicted Foye of possession with intent to deliver and related charges as well as escape. The trial court sentenced Foye to an aggregate term of nine years and nine months to twenty-five years in prison.

On October 27, 2010, the Commonwealth filed motions for condemnation and forfeiture of the following items: $4,000.00 in United States currency, a Sylvania thirty-two-inch television, a realistic scanner, a 1995 Jeep Cherokee, and $2,175.00 in United States currency. Foye contested the motions but limited his contest to the $2,175.00 in United States currency and the Sylvania television.

The trial court held an evidentiary hearing on March 15, 2011. At the hearing, the Commonwealth presented the testimony of Detectives Mark Boyer and Christy Correa, and Foye testified on his own behalf. The trial court ultimately granted the Commonwealth's motions, concluding that Foye failed to prove that he lawfully acquired the seized currency and property. Foye timely appealed.*fn3

First, Foye argues that the Commonwealth failed to prove a nexus between the seized currency and property and illegal drug activity. We disagree with respect to the $2,175.00 in currency but agree with respect to the television.*fn4

In a forfeiture proceeding, the Commonwealth bears the initial burden of proving, by a preponderance of the evidence,*fn5 a nexus between the property sought to be forfeited and a violation of the Controlled Substance, Drug, Device and Cosmetic Act. Commonwealth v. $17,182.00 U.S. Currency, 42 A.3d 1217, 1219 (Pa. Cmwlth. 2012). If the Commonwealth satisfies its burden, the burden then shifts to the claimant to prove that he owns the property, that he lawfully acquired it, and that it was not unlawfully used or possessed by him. Id.; Section 6802(j) of the Forfeiture Act, 42 Pa. C.S. §6802(j).

Here, police found $2,175.00 in cash on Foye's person when Foye was apprehended on February 11, 2009, after escaping from prison, where he was being held on drug charges. They also found six bags of marijuana inside Foye's vehicle. At the hearing, Foye testified that, at the time of the vehicle stop, he was returning from an attorney's office where he had just paid a $9,000.00 retainer fee. According to Foye, the $2,175.00 on his person was the remainder of the cash he had anticipated paying the attorney. (N.T., 3/15/11, at 16-18.) However, Foye presented no witnesses to corroborate this testimony nor offered any receipts for legal services into evidence. He also failed to produce any documentation evidencing a bank withdrawal and testified that he had kept the $11,175.00 "in a safe place" other than his residence. (Id. at 23-24.) The trial court specifically discredited Foye's testimony about the source of the $2,175.00 in cash and determined that: (1) the Commonwealth proved a sufficient nexus between the cash and illegal drug activity; and (2) Foye failed to prove that he lawfully acquired the money. We find no error or abuse of discretion.

With respect to the television, however, we reach a different result. The Commonwealth maintains that the television is subject to forfeiture because it was derived from Foye's drug activity. However, the Commonwealth's only evidence regarding how Foye acquired the television was the following testimony by Detective Boyer on cross-examination:

Q. Regarding the television, Detective Boyer, was there a receipt for the television found within the residence, to ...


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