Lead Opinion
OPINION BY
Jonathan M. Cornish (Cornish) appeals a decision of the Court of Common Pleas of Berks County (trial court) to grant the Commonwealth’s petition for forfeiture of property under the act commonly known as the Controlled Substances Forfeitures Act (Forfeiture Act), 42 Pa.C.S. §§ 6801-6802. At issue is $259 that was found on Cornish along with a packet of heroin when he was arrested for possession of a controlled substance.
On January 5, 2002, at approximately 5:00 p.m., Cornish was stopped in the 100 block of South Eighth Street in Reading, Pennsylvania, by a police officer, who questioned whether Cornish possessed a
The following year, on January 22, 2008, the Commonwealth filed a petition to have the cash and heroin forfeited. Cornish filed an answer with new matter, and a hearing was held on June 19, 2003. The Commonwealth offered documentary evidence, including Cornish’s guilty plea, sentencing and a copy of the criminal information charging him. In addition, the Commonwealth had Cornish admit that he was in possession of the $259 at the same time as he was in possession of the packets of heroin.
Appearing pro se, Cornish attended the hearing by telephone from the State Correctional Institution at Somerset, Pennsylvania. The Commonwealth questioned Cornish about his presence that day in a neighborhood known as a “high crime area” where “there [is] a lot of drug activities going on.” N.T. 7, 8. Cornish explained that he lived there, at 118 South Eighth Street. In reply to further questioning, Cornish testified the he had just completed a drug rehabilitation program and had been working at a job at Burger King in Sinking Spring, Pennsylvania. He had been employed there since the beginning of October of 2001. On the date of his arrest, he had relapsed and purchased the heroin with the intention of returning to his room to use it.
Cornish testified that the $259 on his person was money he had received when he cashed his paycheck. In support, he offered into evidence his 2001 W-2 form showing that he earned $2,271 from October through the end of the year in 2001.
The trial court questioned Cornish as to when and where he cashed his paycheck. Cornish replied that it was either at the bank beside the courthouse or at the check cashing business nearby, but, one year later, he was unable to remember which one he had used. In response to further questioning by the court, Cornish stated that he believed the check cashing service charged a fee of 6%, which would have left a balance of $340 from Cornish’s $365.24 paycheck.
At the conclusion of the hearing, the trial court made its finding from the bench, explaining as follows:
Well, the Court has heard the evidence and this is a civil matter. The burden on the Commonwealth is by a preponderance of the evidence and I find that this was money that you had obtained through your drug dealing with the heroin and that therefore it should be confiscated.
N.T. at 13. As a result of this appeal, the trial court issued a memorandum opinion on August 26, 2003, in which its ruling was explained as follows:
Claimant admitted to being in possession of the $259.00 at the same time he was in possession of the packets of heroin to which he pleaded guilty. He admitted that he was a drug user and had additional monies as well as one half of one tenth of a gram of heroin on him when he was arrested. Claimant admitted he had relapsed after just getting out of a drug rehabilitation program in Wernersville, Pennsylvania. In this case there was an identifiable crime, to which claimant pleaded guilty, to which a nexus with the money could be made. We properly found that the Commonwealth met its burden by a preponderance of the evidence.
Opinion at 3 (emphasis added) (citations omitted). The trial court specifically rejected Cornish’s testimony about the source of the $259 in cash as not credible:
Claimant argued that the cash confiscated from him was his wages earned from his employment. But, he also admitted that he had just purchased a ten dollar bag of heroin that he was on his way to his apartment to use when he was arrested. Claimant could not tell the court where he cashed his paycheck, how much he paid a check cashing business to cash his check or what he did with the balance of the money he asserted that he received from cashing his check. The court was not required to believe the claimant. Claimant failed to establish that he lawfully acquired the money and that it was not unlawfully used or possessed by him. The court found that the cash was money that claimant obtained through his drug dealing with the heroin and therefore it could be confiscated.
Opinion at 3-4 (citations omitted). Accordingly, the trial court granted the forfeiture, and this appeal followed.
In any forfeiture of currency under the Forfeiture Act, the Commonwealth has the initial burden of proof. The Commonwealth must show that the currency was “furnished or intended to be furnished ... in exchange for a controlled substance ... [or represents] proceeds traceable to such an exchange ...” or that the currency was “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). The Commonwealth is required to establish a nexus between the confiscated currency and the illegal activity by a preponderance of the evidence. Commonwealth v. Marshall,
Cornish argues that the Commonwealth did not meet its initial burden. In response, the Commonwealth argues that it is entitled to the benefit of the rebuttable presumption created in the Forfeiture Act. We agree.
The Forfeiture Act creates a rebut-table presumption that cash found in close proximity to a controlled substance is “derived from the selling of a controlled substance.”
Next, Cornish argues that the trial court’s conclusions are contrary to the weight of the evidence. Cornish notes that the trial court’s opinion states that he was in possession of multiple packets of heroin, which is not supported by the evidence. It is true that Cornish was charged with possession of a single packet of heroin; however, the trial court’s opinion correctly noted the weight of the heroin on Cornish at the time of his arrest. Whether the trial court’s notation to “packets” of heroin resulted from a typographical error or from a genuine misunderstanding is of no moment because it does not change the effect of the presumption.
We turn, then, to the question of whether Cornish met his burden of proving that the $259 was derived from his wages earned at Burger King. Forfeiture is not favored under the law of this Commonwealth, and, therefore, forfeiture statutes are to be strictly construed. Commonwealth v. Cox,
Cornish failed to rebut the presumption that the cash on his person at the time of his arrest resulted from a drug sale because the trial court did not believe his testimony that this cash was derived from his employment at the Burger King restaurant. The assessment of credibility is properly left to the fact finder. Commonwealth v. Nelson,
The judgment of the trial court is supported by the record.
For these reasons, we are constrained to affirm the ruling of the trial court granting the forfeiture.
ORDER
AND NOW, this 18th day of October, 2004, the order of the Court of Common Pleas of Berks County, dated June 19, 2003, in the above-captioned matter, is hereby affirmed.
Notes
.The Commonwealth questioned Cornish as follows: "And you do admit that at the same time you possessed the heroin that you possessed 259 dollars?" Cornish replied: "Yes. At the same time I was arrested I had one ten dollar bag of heroin that I was using. I am a drug user, and I did have additional monies on me, yes.” The Notes of Testimony at 8 (N.T.-).
. Cornish was employed at Burger King until the day of his arrest.
. The trial court then asked Cornish to account for the difference between the $340 and the $259 confiscated at the time of his arrest. Cornish seemed to misunderstand the question; he answered that he added the money to money he retained on his person from an earlier pay because he did not have a bank account.
. The Commonwealth did pursue a line of questioning regarding Cornish's future use of heroin: "Now, when you say you had been a drug user and that heroin is addictive, would to be fair to say once you use up what you have, you are craving for more, that you want more?” Cornish replied: "Well, you — certainly you would build up a tolerance, but at that particular stage of my relapse I think I haven't reached that point to where I would just use it, use it, use it.” N.T. at 10.
. Our scope of review in an appeal from a forfeiture proceeding pursuant to the Forfeiture Act is limited to examining whether the trial court’s findings of fact are supported by substantial evidence and whether the trial
. The Forfeiture Act in relevant part provides:
Such money and negotiable instruments found in close proximity to controlled substances possessed in violation of The Controlled Substance, Drug, Device and Cosmetic Act shall be rebuttably presumed to be proceeds derived from the selling of a controlled substance in violation of The Controlled Substance, Drug, Device and Cosmetic Act.
42 Pa.C.S. § 6801(a)(6)(h) (emphasis added). This rebuttable presumption is a legal presumption that requires the factfinder to reach a conclusion in the absence of contrary evidence from the opponent. Waugh v. Commonwealth,
.Our Supreme Court has explained that "virtually all so-called 'criminal presumptions' are really no more than permissible inferences.” Commonwealth v. Mason,
. In fact, the evidence must be viewed in the light most favorable to the Commonwealth as the prevailing party. Commonwealth v. Speight,
. The dissent notes that the trial court did not base its holding on the statutory presumption. The trial court held that the evidence that Cornish had cash in one pocket and heroin in another pocket was sufficient for the Commonwealth to establish a nexus with a violation of the Controlled Substance, Drug, Device and Cosmetic Act. There was no question that Cornish violated this act by possessing heroin. The trial court believed that the cash facilitated this unlawful act. 42 Pa.C.S. § 6801(a)(6)(i)(B). However, we may affirm the trial court's holding on alternative grounds, i.e., that the Commonwealth met its burden using the statutory presumption.
Dissenting Opinion
DISSENTING OPINION BY
I respectfully dissent. The majority holds that the Commonwealth of Pennsylvania (Commonwealth) met its burden of proving that the $259.00 Cash U.S. Currency found on Jonathan M. Cornish (Cornish) represents the proceeds from his unlawful sale of heroin. To reach this result, the majority relies upon a statutory presumption that money found on an individual who illegally possesses a controlled substance is money derived from the unlawful sale of drugs. However, I submit that the majority’s rebanee on that presumption is contrary to our supreme court’s holdings on statutory criminal presumptions in Commonwealth v. Mason,
In this case, Cornish pleaded guilty to possession of a controlled substance after pobce found a single packet of heroin weighing one half of one tenth of a gram in his pocket. Afterward, the Commonwealth sought forfeiture of $259.00 also found on Cornish that police seized at the time of the arrest. To prove that the $259.00 represented proceeds derived from the unlawful sale of heroin, the Commonwealth presented evidence of Cornish’s unlawful possession of heroin. Cornish argues that evidence of unlawful possession, by itself, is insufficient to prove the unlawful sale of heroin. I suggest this is self-evident and agree.
The majority does not agree because of the statutory presumption created by section 6801(a)(6)(b) of the Controlled Substances Forfeitures Act (Forfeiture Act).
Indeed, our supreme court has stated that statutory presumptions establishing crimes create inferences, not rebuttable
This means that a statutory criminal presumption, being no more than a permissible inference, cannot, by itself, satisfy a party’s burden of proof and shift the burden to the other party. Before the burden shifts, the party with the initial burden must present credible evidence weighing in favor of the accuracy of the permissible inference in the case before the court, i.e., the party with the initial burden must establish that the inferred fact is more likely than not to flow from the proved fact. Mason; DiFrancesco.
Here, the Commonwealth presented no evidence to prove it is more likely than not that, because Cornish had $259.00 and unlawfully possessed a single packet of heroin weighing one half of one tenth of a gram, Cornish obtained the $259.00 from the unlawful sale of heroin. In fact, the Commonwealth offered no evidence that Cornish ever sold drugs illegally. Because the Commonwealth did not establish the accuracy of the inference in this case, the trial court could not logically proceed from the proved fact of unlawful possession to the inferred fact of unlawful sale.
Inasmuch as the Commonwealth failed to meet its initial burden of proof, unlike the majority, I would reverse.
Judge PELLEGRINI joins in this dissent.
. 42 Pa.C.S. § 6801 (a)(6)(ii).
. See Section 13(a)(1) of The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-113(a)(1).
. I note that, in deciding this case, the trial court did not even mention the statutory presumption. Instead, the trial court stated that the Commonwealth met its burden by proving that Cornish possessed "packets of heroin.” (Trial ct. op. at 3.) However, as the majority indicates, the evidence established only that Cornish possessed one packet containing one half of one tenth of a gram of heroin. (See majority op. at 231.) If the Commonwealth had presented evidence that Cornish possessed multiple packets of heroin, then the trial court might have reasonably inferred that Cornish was selling heroin.
. As a final matter, I note that, based on the statutory presumption before us here, the only users of illegal drugs who would not be drug dealers are those users who never carry money and drugs at the same time. Thus, a user who is arrested for possession of an illegal drug with only $1.00 in his pocket would be presumed to be a drug dealer. In my view, such a presumption is ludicrous. Although Cornish does not challenge the constitutionality of that presumption, in civil cases, a statutory presumption is valid only if there is a rational connection between the basic facts and the presumed facts. See McCormick on Evidence vol. 2 § 345 (4th ed.1992); cf. DiFrancesco (quoting Tot v. United States,