Sugalski v. Cochran

OLSZEWSKI, Judge,

dissenting:

In this appeal from the grant of a petition for the return of property, we are asked to determine whether over one-half million dollars seized during a raid on a gambling operation was derivative contraband and, consequently, subject to forfeiture to the Commonwealth. I agree with the implicit holding of the majority that money, in general, may be subject to forfeiture pursuant to 18 Pa.C.S.A. Sec. 5513. Because I believe the Commonwealth has proved that all the money confiscated here was derivative contraband, however, I disagree with the majority’s decision to return the seized property to appellees.

*381On January 29, 1985, police officers and Pennsylvania State Police troopers executed search warrants on the homes of appellees, Charles E. Roop, Sr., Charles E. Roop, Jr., and Laura L. (Roop) Sugalski. The search warrants were based upon information regarding the illegal gambling activities of those individuals. Upon execution of the search warrants, the police seized $1,175 in currency, one numbers play, and a two-day tally sheet from the home of Charles E. Roop, Sr. From the home of Charles E. Roop, Jr., police seized $7,940 in currency, tally sheets, rice paper, lined sheets, numbers bets, and sports bets. The police seized the following items from the home of Laura L. Sugalski:

1. $50 cash and a small slip of paper containing numbers bets found on the kitchen counter;
2. from the kitchen cabinets: $1,626 cash, a $2 — bill, two $25 savings bonds, two $50 savings bonds (all bonds were issued in the name of “Rosetta Keaton”), $200 cash, rice paper, sheets of paper containing numbers, a red notebook containing numbers, a yellow pad containing numbers, a steno book containing numbers, and three calculators;
3. approximately $5,229 in currency was found in the dining room china cabinet; and
4. from the second floor master bedroom, the following:
a. $15,500 in currency and a written note containing a dollar figure were in a metal box on a shelf in the closet; and
b. Another metal box under the bed contained approximately $7,000 in currency, a safe-deposit box lease with directions to the location of the box, safe-deposit box keys, a magnetic card, a photograph of Charles E. Roop, Sr. with the name “Robert Cambell,” and a photogrpah of Laura Sugalski with the name “Kathy Price.”

On January 30, 1985, police executed a search warrant on the safe-deposit box which was leased to “Robert Cambell and Kathy Price.” A total of $508,700 was seized from that *382box. Upon the seizure of these items and currency, appel-lees 1 filed a petition pursuant to Pa.R.Crim.P. 3242 for the return of the currency. After a hearing on the matter, the trial court ordered:

1. the $1,175 in currency seized from the home of Charles E. Roop, Sr., and the $508,700 in currency seized from the safe-deposit box were not derivative contraband and, thus, were to be returned to Mr. Roop;
2. the $7,940 in currency seized from the home of Charles E. Roop, Jr. was not derivative contraband and was to be returned to Mr. Roop; and
3. the $15,500 in currency seized from the metal box in the closet of the master bedroom, the $12,429 in currency seized from a metal box under the bed and the four savings bonds seized from the kitchen cabinet were not contraband and, thus, were to be returned to Mrs. Sugalski.

In short, the only property found to be derivative contraband and, consequently, forfeitable to the Commonwealth were a few items from Mrs. Sugalski’s home: the $50 in currency seized from the kitchen counter; and, from the kitchen cabinet, the $1,626 in currency and the $2 — bill. The *383Commonwealth thereafter filed this timely appeal from the order of the trial court.3

The Commonwealth first asserts that pursuant to Section 5513 of the Crimes Code, the currency was subject to forfeiture. The majority implicitly accepts the Commonwealth’s argument, a decision in which I join. Section 5513(b) provides:

(b) Confiscation of gambling devices. — Any gambling device possessed or used in violation of the provisions of subsection (a) of this section shall be seized and forfeited to the Commonwealth. All provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of intoxicating liquor shall apply to seizures and forfeitures under the provisions of this section.

18 Pa.C.S.A. Sec. 5513(b).

A literal reading of this provision indicates that only “gambling devices” are subject to forfeiture. It has long been established, however, that money may be seized and forfeited as derivative contraband,4 if it is clear that the currency formed an integral part of a gambling operation and it has not been received, reclaimed or reduced to an *384individual’s exclusive possession and ownership. See e.g., Fairmount Engine Co. v. Montgomery County, 135 Pa.Super. 367, 5 A.2d 419, 420-421 (1939). To my knowledge, neither the Supreme Court nor this Court has had occasion to question the propriety of a forfeiture of money pursuant to Section 5513(b). This Court has determined, however, that pursuant to a similar provision of the Drug, Device and Controlled Substance Act, money seized during an arrest for the illegal sale of drugs was derivative contraband and, consequently, was forfeitable even though that statute did not expressly authorize the forfeiture of money. Lappas v. Brown, 335 Pa.Super. 108, 483 A.2d 979 (1984). In addition, the Commonwealth Court of Pennsylvania has applied the common law test for forfeiture under Fairmount Engine Co., supra, in a Section 5513(b) proceeding. In re $13,-561.50, 72 Pa.Commw. 451, 456 A.2d 1140 (1983).5 I am persuaded by the reasoning of Lappas and In re $13,561.50. Consequently, I conclude that pursuant to Section 5513(b), money may be forfeited as derivative contraband.

Having made this determination, I turn to the application of this rule. Section 5513(b) specifically provides that the forfeiture procedures governing in the Liquor Code, 47 Pa.S.A. Sec. 6-601 et seq., are to apply in a Section 5513 proceeding. 18 Pa.C.S.A. Sec. 5513(b); Commonwealth v. Two Electronic Poker Game Machines, 502 Pa. 186, 197-99, 465 A.2d 973, 979 (1983) (applying the forfeiture provision of the Liquor Code to a gambling case). Section 6-602 of the Liquor Code is particularly instructive:

Sec. 6-602. Forfeiture proceedings
# j}! % $ >}c
*385(e) At the time of said (forfeiture) hearing, if the Commonwealth shall produce evidence that the property in question was unlawfully possessed or used, the burden shall be upon the claimant to show (1) that he is the owner of said property, (2) that he lawfully acquired the same, and (3) that it was not unlawfully used or possessed.
In the event such claimant shall prove by competent evidence to the satisfaction of the court that said liquor, alcohol or malt or brewed beverage, or still, equipment, material, utensil, vehicle, boat, vessel, container, animal or aircraft was lawfully acquired, possessed and used, then the court may order the same returned or delivered to the claimant^)

47 Pa.S.A. Sec. 6-602(e).

Pursuant to this provision, the Commonwealth bears the burden of proving that the property was unlawfully possessed or used. Where derivative contraband is involved, unlawful possession or use is established by proof that the property formed an integral or essential part of the gambling activities. In a forfeiture proceeding, the Commonwealth must sustain this burden by a preponderance of the evidence. Estate of Peetros v. County Detectives, 341 Pa.Super. 558, 561-62, 492 A.2d 6, 8 (1985); Petition of Maglisco, 341 Pa.Super. 525, 530-31, 491 A.2d 1381, 1384 (1985); Lappas v. Brown, 335 Pa.Super. 108, 115-16, 483 A.2d 979, 983 (1984); Commonwealth v. Myers, 298 Pa.Super. 272, 282, 444 A.2d 1170, 1175 (1982); Commonwealth v. Landy, 240 Pa.Super. 458, 469-71, 362 A.2d 999, 1005 (1976) (en banc). If the Commonwealth’s burden has been satisfied, the burden is then upon the claimant seeking return of the property to show ownership, lawful acquisition, and lawful use or possession of the property. 47 Pa.S.A. Sec. 6-602(e). See generally, Commonwealth v. Two Electronic Poker Game Machines, 502 Pa. at 197-200, 465 A.2d at 979-980.

Having set forth the guiding principles, I turn to the merits of the Commonwealth’s claim that the trial court *386erred in finding insufficient evidence that the currency seized here was subject to forfeiture as derivative contraband. The trial court concluded that there was no connection between the gambling operation and the currency seized from any of the homes or the safe-deposit box. In particular, the court noted that no gambling paraphenalia was found with or near the money and nothing about the money indicated it was or had been used for an unlawful purpose. As a result, the court held the Commonwealth failed to meet its burden of showing that the currency was an integral part of an illegal gambling operation.

While the majority here affirms the decision of the lower court, I agree with the Commonwealth that the trial court ignored the evidence of record. At the forfeiture hearing, the Commonwealth presented evidence which indicated the existence of an extensive, on-going gambling enterprise. Based upon information gathered during an extended investigation and documents seized during the raids, an expert witness for the Commonwealth described in detail the activities of the participants. The Commonwealth’s expert witness opined that given the evidence relating to the numbers activities, the gross income of the gambling operation was $40,000 per week or approximately $2,200,000 per year. (Notes of hearing, 4/15/86 at 89). Moreover, it was the witness’s conclusion that a bookmaking operation of this size would have had large sums of money available to settle wagers. (Notes of hearing, 4/15/86 at 129). From this testimony and the documents produced at the hearing, it could reasonably be inferred that the money seized was accumulated from the gambling transactions and served as a readily available reserve to be used in the gambling operation. Accordingly, I am satisfied that the Commonwealth established by a preponderance of the evidence that the currency seized had become an integral part of the gambling activities and, hence, was unlawfully possessed or used. Cf. Commonwealth v. Two Electronic Poker Game Machine, 502 Pa. at 195-99, 465 A.2d at 978-979 (Supreme Court reversed conclusion of hearing court; Commonwealth’s burden of proof was satisfied); Commonwealth v. *387Doranzo, No. 1368 Philadelphia 1983 (Pa.Super. 7/23/87) (reversing trial court’s finding that the Commonwealth had not satisfied its burden of proof).

The burden was then upon appellees who were required to establish ownership, lawful acquisition, and lawful use or possession of the money. 47 Pa.S.A. Sec. 6-602(e). Appel-lees presented no evidence at the hearing. The attorney for appellees did, however, cross-examine the Commonwealth’s witness about the currency contained in the safe-deposit box. That witness admitted that the box was opened on June 15, 1984 and, thereafter, was not touched until it was seized by the police on January 30, 1985. The fact that the safe-deposit box was not opened for some time does not convince me that the money was lawfully acquired, possessed or used. At best, the cross-examination merely demonstrates that the police could not say with absolute certainty that the money was not acquired or used in the illegitimate operation. The Commonwealth is not required, however, to prove its case to an absolute certaintude. Having shown that the currency was more likely to have been unlawfully acquired and used, appellees were required to prove otherwise. This they failed to do. Consequently, the court erred in granting appellees’ petition for the return of the currency.

I find no error, however, in the grant of the petition for the return of the four bonds seized from the home of Mrs. Sugalski. By implication, property is not an integral part of an illegal activity if it has been reduced to an individual’s exclusive possession or ownership. The Commonwealth presented no evidence indicating that the government bonds were either part of the gambling reserve or accumulated from gambling activities. Moreover, the bonds were issued in the name of a party unrelated to the proceedings here. The court, therefore, properly granted the petition for the return of the bonds.

In sum, I would find that the currency was subject to forfeiture as derivative contraband. Where, as here, the Commonwealth’s evidence established it was more likely *388than not that the money seized was derived from and formed an integral part of the gambling operation, the money was forfeitable in the absence of any evidence indicating it had a legitimate and lawful source.

Accordingly, I would reverse the order of the trial court insofar as the seized property was returned to appellees.

. Subsequent to the filing of this petition, Charles E. Roop, Jr. and Charles E. Roop, Sr. died. Sharon Roop was thereafter substituted as a party to the petition.

. Pa.R.Crim.P. 324 provides as follows:

Rule 324. Motion for Return of Property
(a) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he is entitled to lawful possession thereof. Such motion shall be filed in the Court of Common Pleas for the judicial district in which the property was seized.
(b) The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.
(c) A motion to suppress evidence under Rule 323 may be joined with a motion under this rule.

. This appeal is properly before us. According to the record, no criminal actions have been taken and held over in court against appellees. Consequently, this appeal is not interlocutory. See Commonwealth v. Lewis, 288 Pa.Super. 198, 204-05, 431 A.2d 357, 360 (1981) (appeal from demand of petition for return of property was interlocutory where criminal prosecution was pending). In addition, the appeal was properly taken from the order of the court. No post-trial motions need be filed where a Rule 324 petition is unrelated to a criminal proceeding. Cf. Commonwealth v. Myers, 298 Pa.Super. 272, 274-78, 444 A.2d 1170, 1172-1173 (1982) (Rule 324 petition filed with post-verdict motions); Commonwealth v. Setzer, 258 Pa.Super. 236, 392 A.2d 772 (1978) (where a Rule 324 petition was not filed with post-trial motions or at sentencing, the issue was not preserved for appellate review).

. There is a distinction between derivative contraband and contraband per se. " ‘Contraband per se is property the mere possession of which is unlawful.... Derivative contraband is property innocent by itself, but used in the perpetration of an unlawful act.’ ” Petition of Maglisco, 341 Pa.Super. 525, 528, 491 A.2d 1381, 1382 (1985), quoting, Commonwealth v. Fassnacht, 246 Pa.Super. 42, 46, 369 A.2d 800, 802 (1977). There is no question that the currency seized here was not contraband per se. Rather, the question before us is whether currency is subject to forfeiture pursuant to Section 5513.

. In re $13,561.50 was before the Commonwealth Court apparently as an appeal from the denial of a petition for the return of money seized pursuant to the Liquor Code. Generally, an appeal from the grant or denial of forfeiture is properly presented before the Commonwealth Court. See Commonwealth v. 84-Quart Bottles Bianco DiVerona Wine, 250 Pa.Super. 544, 546-48, 378 A.2d 1282, 1283-1284 (1977). See also 42 Pa.C.S.A. Sec. 762(a)(1). Because appellee has not objected to the jurisdiction of this Court, I believe we have properly exercised our discretionary power to consider this appeal. See 42 Pa.C.S.A. Sec. 702; Newman v. Thorn, 359 Pa.Super. 274, 518 A.2d 1231 (1986) and cases cited therein.