Commonwealth v. $11,600.00 Cash, U.S. Currency

Senior Judge KELLEY,

dissenting.

In regard to the majority’s interpretation of Commonwealth v. Marshall, 548 Pa. 495, 698 A.2d 576 (1997), and in regards to that precedent’s application to the substantively identical facts of the instant matter, I respectfully dissent.

The majority’s analysis of Marshall centers completely and solely on the quality of the evidence linking the cash to past drug activity — namely, in Marshall only a drug dog’s alert connected the cash to prior drug activity, while in the instant matter, significant objective clinical evidence, and expert testimony, established more of a qualitative connection of the cash to drug activity. However, in Marshall, it was not the sufficiency of the evidence of the drug/cash nexus that formed the basis of the Supreme Court’s decision — it was the complete and total lack of any evidence linking the drug-related cash to any illegal drug activity on the part of that petitioner upon which that case turned. Marshall’s express analysis makes clear that, regardless of the strength of the connection between the seized cash and prior drug activity, the absence of any evidence whatsoever linking the drug-related cash to any illegal activity on the part of the petitioner— under additional parallel facts that very closely mirror those in the instant matter — is insufficient to meet the Commonwealth’s burden. The following passage from Marshall — which includes the portion excerpted by the majority but provides more factual context equally applicable to this matter-indicates this subtle but important distinction between the sufficiency of the evidence linking the cash to drug activity, and the sufficiency of the evidence linking the petitioner to any drug activity:

In the instant case, the trial court found the following facts sufficient to support the conclusion that the money in question was connected to drug activity: 1) Appellant had been unemployed for 1-1/2 years prior to the arrest; 2) Appellant and the driver of the car gave inconsistent stories concerning the ownership of the money; 3) the currency was bundled in a manner consistent with drug dealing and was found between the seat cushions; 4) the drug-sniffing dog alerted on the cash; and 5) Appellant’s testimony was not credible.
The trial court erred in concluding on these facts that the Commonwealth had met its burden under 42 Pa.C.S. § 6801(a). Although the Commonwealth is not required to directly link the property in question to the illegal activity, we are unable to conclude in this case that the Commonwealth has proven anything more than the suspicion of a possible nexus between the $3,400.00 and some type of drug activity.
It is undisputed that no drugs or drug paraphernalia were discovered in the car in which Appellant was riding, or on the persons of Appellant or his two companions. Moreover, Appellant gave uncontested testimony that he had never been arrested on drug charges and had no prior convictions of any kind. See N.T. at 7a-8a. And, although the $3,400.00 was bundled in a way drug dealers have been known to arrange their money, such an arrangement is equally consistent with an innocent person’s attempt to simplify and promote precision in the counting of lawfully obtained funds.
The fact that the drug-sniffing dog alerted on the cash is also not disposi-tive of the issue. A completely innocent citizen of this Commonwealth could have in his or her possession, at any time, currency that happened to be involved in a drug transaction at some unknown time in the past. The *169fact that on August 10, 1993 Appellant found himself in the possession of one, or several, such bills of currency is insufficient to sustain the Commonwealth’s clearly established burden to prove at the outset that the money seized has a nexus to some unlawful activity on the part of Appellant. Even when considered in conjunction with all the other facts relied upon by the trial court in this case, the residual presence of drugs on some part of the $3,400.00 in question establishes only the possibility or the suspicion of a nexus between the money and some type of drug activity.
The trial court therefore erred in concluding that the Commonwealth had presented evidence sufficient to meet its burden under 42 Pa.C.S. § 6801(a).

Marshall, 548 Pa. at 499-501, 698 A.2d at 578-579 (footnotes and citations omitted; emphasis supplied).

As in Marshall, the drug residue on the cash in the matter sub judice is irrelevant to the disposition of this case. Under Marshall, the complete lack of any evidence whatsoever in this case linking Maracine to any illegal activity that may be inferred from the residue-laden cash is insufficient to satisfy the Commonwealth’s burden. Additionally — and mirroring the operative facts in Marshall — the trial court’s reliance on the facts of Maracine’s employment history, his lack of sufficient income, his inconsistent statements, and his bundling of the money, are all collectively insufficient to satisfy the Commonwealth’s burden absent any evidence linking Maracine to the inferred drug activity that has been linked to the cash.

Despite the stronger evidentiary link between the seized cash and inferred prior drug activity that distinguishes this case from Marshall, no evidence of record establishes any link between Maracine and any drug activity. The majority has failed to address the actual basis of the Supreme Court’s disposition in Marshall, and has instead founded its disposition of this matter on a stronger evidentiary link that, while distinguishable from the strength of the comparable evidence in Marshall, nonetheless did not form any foundational part of the ultimate disposition in that precedent.1

I would reverse.

. Accord: Commonwealth v. Fontanez, 559 Pa. 92, 739 A.2d 152, (1999) (Drug sniffing dog’s alert to cash, seized from petitioner, which alert signified residual presence of drugs upon the seized cash, added little or nothing in support of the Commonwealth’s argument that the money seized in this case was contraband, due to the fact that there was no way of telling whether one dollar or all of the money in the drawer had been exposed to narcotics, and, more importantly, there was no way of telling when the money may have been exposed to narcotics in the absence of any evidence linking petitioner to drug activity.); Commonwealth v. One Thousand Two Hundred and Twenty Dollars ($1,220.00) Cash, 749 A.2d 1013 (Pa.Cmwlth.), petition for allowance of appeal denied, 563 Pa. 704, 761 A.2d 551 (2000) (Drag-sniffing dog's alert on seized money, even when coupled with additional facts that the money was bundled consistent with a drag dealer, that police officer was familiar with claimant and his companion, that claimant had a pager in his possession, that claimant was under investigation, and that claimant previously sold drags to an undercover officer, was insufficient to establish a nexus between illegal drug activity and $1,220 in cash and a pager seized from defendant, as required for forfeiture of the items, where police never charged claimant with any concurrent drag charges relating to the money and never observed him en*170gaged in drug-related activity on the day the items were seized.)