Submitted May 14, 2014.
Appealed from No. CP-46-CR-0003770-2011. Common Pleas Court of the County of Montgomery. Nicholas, Senior Judge.
Alfred James Porrino, Pro se.
Charles J. Giambrone, Jr., Assistant District Attorney, and Robert M. Falin, Deputy District Attorney, Norristown, for appellee.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge. OPINION BY JUDGE LEAVITT. DISSENTING OPINION BY JUDGE LEADBETTER. Judge Simpson joins in this dissent.
MARY HANNAH LEAVITT, Judge
Alfred James Porrino, pro se, appeals an order of the Court of Common Pleas of Montgomery County (trial court) that granted the Commonwealth of Pennsylvania's request for forfeiture of $594 in cash and denied Porrino's motion for return of that cash to him. Police seized the cash from Porrino when they arrested him on drug charges; nevertheless, in the course of this arrest the police did not find any illegal drugs on Porrino or in his home, which they searched under authority of a warrant. The trial court held that the Commonwealth's evidence, albeit circumstantial, proved that the forfeited $594 represented the proceeds of illegal drug sales by Porrino. Concluding that the Commonwealth did not prove a substantial nexus between the $594 and illegal drug trafficking, we reverse.
We begin with a review of the uncontroverted facts. On May 6, 2011, police executed a search warrant at the home of Porrino's mother, searching for illegal drugs. They found none. In Porrino's bedroom, in plain view, police did find a pair of jeans and a cell phone. In the bedroom closet, the police found $594 in cash in a wallet. They also found baggies and a scale in the bedroom of Porrino's
brother. The police seized the cell phone, the cash, the wallet and several items of identification, including Porrino's driver's license and social security card. Porrino told the police that he had earned the cash through his job and wanted it back.
At the conclusion of the search, Porrino was placed under arrest and charged with three counts of possession with intent to deliver drugs; three counts of misdemeanor drug possession; and three counts of misdemeanor possession of drug paraphernalia (the cash, sandwich baggies and the cell phone). Porrino pled guilty to one count of misdemeanor possession of a controlled substance and received a one to two year prison sentence. The other criminal charges were dropped.
Porrino filed a motion for the return of his property. The Commonwealth responded in its answer with a request that the property be forfeited. The trial court held a hearing on March 7, 2013, at which Porrino and the Commonwealth presented evidence on their respective applications. At the outset of the hearing, the Commonwealth agreed to return Porrino's driver's license and social security card and other items of personal identification that had been found, presumably, in the wallet. This left only the $594 in dispute.
The Commonwealth presented the testimony of Detective Charles Naber of the West Norriton Police Department and the Montgomery County Drug Task Force. Naber testified that Porrino participated in three " controlled buys" in April and May of 2011 set up by the police. Notes of Testimony, March 7, 2013, at 20 (N.T. ). Naber and a police officer gave a confidential informant cash for these controlled buys. This informant called Porrino, who, according to Naber, arrived at the designated location in a black Volvo with a passenger in the front seat. Naber testified that a sale of crack cocaine took place inside the vehicle. In all, the police orchestrated three controlled buys, two in April and one in May, a few days before the search of Porrino's home on May 6, 2011. Naber identified Porrino as one of the two persons in the Volvo because on one occasion he followed the Volvo to a gas station and saw Porrino pump gas.
Naber helped execute the search warrant at the home of Porrino's mother. He testified that the jeans found in Porrino's bedroom had sandwich baggies in the pocket with the corners torn off; Naber stated this was consistent with the way dealers package illegal drugs. Naber reported that police found Porrino's wallet with $594 in cash in the bedroom closet. Naber stated that the wallet was inside an item of clothing, but could not be more specific. Specifically, he testified:
I think it was in a coat, but I'm not sure. Clothing in a closet. I'm not sure what.
On cross-examination, Naber confirmed that the cash given to the confidential informant had been " prerecorded," i.e., they were marked bills. N.T. 28. Naber did not claim that any part of the $594 seized
from Porrino included the marked bills. Naber also stated that he assumed, but did not actually know, that the substance picked up by the informant in the controlled buys had been forwarded to the lab for testing. He acknowledged that the Commonwealth's records did not include a lab report identifying the substances involved in the controlled buys. Accordingly, Naber could not confirm that what took place in the Volvo was the sale of crack cocaine. Likewise, Naber offered no information on the confidential informant, or why ...