Inell Foye, pro se. Robert W. Schopf, Assistant District Attorney, Allentown, for appellee.
Inell Foye, pro se. Robert W. Schopf, Assistant District Attorney, Allentown, for appellee.
BEFORE: COHN JUBELIRER, Judge, and McCULLOUGH, Judge and 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). 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. We also deny Foye's motion for summary relief.
.42 Pa.C.S. § 6801(a). Section 6801(a) of the Forfeiture Act provides, inter alia, for the forfeiture of the following items:
(A) Money, ... or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of The Controlled Substance, Drug, Device and Cosmetic Act, and all proceeds traceable to such an exchange.
(B) Money, ... or other things of value used or intended to be used to facilitate any violation of The Controlled Substance, Drug, Device and Cosmetic Act.
42 Pa.C.S. § 6801(a)(6)(i)(A)-(B).
Our review of a forfeiture order is limited to determining whether the trial court abused its discretion, committed an error of law, or made findings that are unsupported by competent evidence. Commonwealth v. Assorted Consumer Fireworks, 16 A.3d 554, 557 n. 7 (Pa.Cmwlth.), appeal denied,611 Pa. 671, 27 A.3d 225 (2011).
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.
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.
In his brief, Foye also challenges the forfeiture of the $4,000.00 in currency and the 1995 Jeep Cherokee. However, because Foye failed to contest these items in the trial court, we will not consider these claims. SeePa. R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”) Foye does not challenge the forfeiture of the realistic scanner.
In a forfeiture proceeding, the Commonwealth bears the initial burden of proving, by a preponderance of the evidence, 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).
“Preponderance of the evidence is tantamount to a ‘more likely than not’ standard.” Commonwealth v. McJett, 811 A.2d 104, 110 (Pa.Cmwlth.2002).
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 your knowledge or recollection?
A. Not to my knowledge.
Q. Okay. This was like a flat screen television?
Q. Do you have any knowledge as to how it was purchased, or do have any knowledge of the way it was obtained by Inell Foye?
A. Just from his interview, I mean interviewing him, in reference to him not having a job at that point; I would assume it to be from the sale of cocaine.
Q. ... Do you have any knowledge when the 32 inch television was purchased in relation to his [prior] employment
Q.—or his termination from his employment as a welder?
A. No, I do not.
(N.T., 3/15/11, at 8–9 (emphases added).) This testimony was insufficient to establish the nexus required to support a forfeiture.
A television is not an illegal item per se. Our courts have recognized that
[o]bjects do not acquire “guilt by association” merely because they are owned by a person who has been engaged in criminal conduct. The Commonwealth cannot deprive a person of his or her property and thereby impose a penalty upon him by seizing his property without showing that the property was derived from or was used to further criminal activity. The requirement that a sufficient nexus exist between the property and the prohibited criminal activity serves to mitigate the potentially harsh results of permitting the Commonwealth to penalize a citizen by a civil action against his property rather than a criminal action against his person.
Commonwealth v. One 1985 Dark Blue Mercedes Benz Car, 391 Pa.Super. 507, 571 A.2d 482, 485 (1990) (internal citation omitted). While it is true that an otherwise legal item can become derivative contraband if it is tied to illegal drug activity, the Commonwealth here offered no proof of a nexus between the television and Foye's drug activity. Detective Boyer testified that he “assumed” Foye acquired the television in a drug transaction because Foye did not have a job at the time of his arrest; however, Detective Boyer also admitted that he did not know when Foye acquired the television. Absent any evidence as to when or how Foye came to possess the television, we conclude that the Commonwealth failed to prove that it was more likely than not that the television was derived from Foye's drug activity. See Mercedes Benz, 571 A.2d at 485 (concluding that forfeiture of vehicle was improper where the Commonwealth failed to prove that the vehicle was used to facilitate a drug transaction or that proceeds of a drug transaction were used to purchase the vehicle); see also Singleton v. Johnson, 929 A.2d 1224, 1227 (Pa.Cmwlth.2007) (stating that the Commonwealth must prove “a specific nexus between the property and the criminal activity”), appeal dismissed,596 Pa. 467, 944 A.2d 754 (2008).
Moreover, the record does not support the trial court's finding that Foye offered “unsupported testimony that ... the Sylvania television was purchased with money[ ] that he earned working at an undocumented job.” (Trial Ct. Op., 5/5/11, at 6.) A review of Foye's testimony reveals no discussion about the television or how or when he acquired it. ( See N.T., 3/15/11, at 14–24.) In any event, because the Commonwealth failed to satisfy its initial burden of proving a nexus between the television and illegal drug activity, the burden never shifted to Foye to disprove it. See Mercedes Benz, 571 A.2d at 484 (“It is only after the Commonwealth has sustained its initial burden of proof that the burden shifts to the claimant seeking a return of the property.”) (emphasis added); Section 6802(j) of the Forfeiture Act, 42 Pa.C.S. § 6802(j).
Foye's testimony about his employment at the time of his arrest, which the trial court disbelieved, was offered to explain how Foye acquired the cash found on his person and in his residence. Foye was never asked about when or how he came to possess the television.
Next, Foye argues that his arrest was illegal because it was unsupported by probable cause and that the search warrant executed on his residence was invalid. However, Foye raised these issues in his direct appeal to the Superior Court, which affirmed Foye's judgment of sentence. Thus, because these issues have been fully litigated, Foye is collaterally estopped from raising them before this court. See Commonwealth v. Bowers, 25 A.3d 349, 355 (Pa.Super.2011) (“Collateral estoppel bars ‘successive litigation of an issue of fact or law that is actually litigated and determined by a valid and final judgment, and is essential to the judgment.’ ”) (citation omitted).
Finally, in his motion for summary relief, Foye claims that the Commonwealth violated his due process rights by failing to comply with the briefing schedule set by the Superior Court before the case was transferred to this court. This claim lacks merit. The Superior Court had no jurisdiction over this matter upon transfer to this court. After the transfer, our court properly entered an order creating a new briefing schedule, with which both parties complied. Therefore, Foye is not entitled to relief on this claim.
Accordingly, we affirm in part and reverse in part Order 4726; affirm Order 4728; and deny Foye's motion for summary relief.
AND NOW, this 20th day of July, 2012, we hereby:
1. reverse the portion of Order 4726 that forfeited the thirty-two-inch Sylvania television and affirm the order in all other respects;
2. affirm Order 4728 in its entirety; and
3. deny Inell Foye's motion for summary relief.