IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania :

:

:

v. : No. 915 C.D. 2015

: Submitted: July 24, 2015

Theodore Cash :

Appellant :

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE SIMPSON FILED: October 15, 2015

In this case involving the act commonly known as the Controlled 

Substances Forfeiture Act (Forfeiture Act),1 Theodore Cash, representing himself,

asks whether the Court of Common Pleas of the 39th Judicial District (Franklin 

County Branch) (trial court) erred in ordering the forfeiture of $1,030 in U.S. 

Currency and three cellular phones. Cash argues the trial court erred in: denying 

his request for counsel; failing to respond to two of his motions; denying his 

motion to vacate the judgment of forfeiture; excluding evidence in the form of 

bank statements and student loan documents; and, finding a nexus between the

U.S. Currency and three cellular phones and any unlawful activity. Upon review, 

we affirm in most respects.

 

1

42 Pa. C.S. §§6801-6802.
2

I. Background

In July 2012, Cash was charged with delivery of cocaine and criminal 

use of a communication facility. Several months later, Cash pled guilty to delivery 

of cocaine. On that same date, he was sentenced to 24 months to 60 months in a 

state correctional institution. As a result of the plea agreement, the criminal use of 

a communication facility charge was dismissed.

In May 2014, Cash, representing himself, filed a motion for return of 

property through which he sought the return of items seized by the Pennsylvania 

State Police (PSP). The specific items are: $1,030 in U.S. Currency; one HTC 4G 

cellular phone; one Apple iPhone; one white HTC cellular phone; one eMachines 

notebook computer; a notebook computer carrying pouch, clothes, and a backpack. 

The trial court directed the Commonwealth to file a response and scheduled a 

hearing on the motion.

Shortly thereafter, the Commonwealth filed an answer to the motion 

for return of property and a petition for forfeiture. The Commonwealth averred the 

items sought by Cash were seized during a traffic stop after Cash engaged in the 

sale of a controlled substance. The Commonwealth argued that seizure of the 

items was authorized under the Forfeiture Act.

The trial court subsequently held a hearing, at which the 

Commonwealth presented the testimony of PSP Troopers Rodney Fink and Joseph 

Lauricia and William G. Confer. The Commonwealth also presented several 
3

documentary exhibits. Cash testified by way of video conference from a state 

correctional institution.

After the hearing, the trial court issued a decision in which it 

explained that at the hearing, the Commonwealth presented the testimony of 

Trooper Fink, a member of the PSP’s Vice Narcotics Unit. Trooper Fink testified 

that on June 26, 2012, he arranged a controlled buy of crack cocaine through the 

use of a confidential informant (CI). The CI was to purchase the cocaine from 

Cash. The drug buy was arranged using a cellular phone. Trooper Fink stated that 

he searched the CI prior to the buy, provided the CI with $300 in prerecorded bills, 

and watched the CI meet with Cash for the transaction. Upon his return to Trooper 

Fink’s vehicle, the CI provided Trooper Fink with an off-white substance (that 

Trooper Fink believed to be crack cocaine) which he obtained in exchange for the 

$300. Subsequent laboratory testing confirmed that the substance was, in fact, 

crack cocaine. Trooper Fink stated that after the controlled drug buy, he and the 

other officers maintained surveillance of Cash and learned that Cash had an 

outstanding parole warrant.

The Commonwealth also presented the testimony of Trooper Lauricia,

who testified he performed a traffic stop of Cash’s vehicle and searched him 

incident to the arrest on the outstanding parole warrant. The search yielded $1,330 

from Cash’s person, which included the $300 in prerecorded buy money used in 

the drug transaction. Trooper Lauricia learned that the vehicle Cash drove was a 

rental vehicle. A search of the vehicle uncovered three cellular phones in the 
4

center console and a notebook computer. Trooper Lauricia seized the items and 

the $1,330.

Trooper Fink testified it was common for individuals involved in

illegal drug activities to have several “burner phones,” which are used to facilitate 

those activities. Certified Record (C.R.), Item No. 26, Tr. Ct. Hr’g, Notes of 

Testimony (N.T.), 7/31/14, at 29. The cellular phones were provided to the 

Franklin County Drug Task Force for analysis, and the other items were 

maintained at the Chambersburg Police Department.

The Commonwealth also presented evidence from Trooper Confer, 

PSP’s evidence custodian at the PSP barracks in Chambersburg. Trooper Confer 

testified that generally, upon the conclusion of a case, police arrange for seized 

property to be destroyed. Trooper Confer testified there are specific rules that 

govern the destruction of seized property. He stated that pursuant to PSP’s policies 

and procedures, once a destruction order is submitted, the property is destroyed. 

Trooper Confer testified that the notebook computer, backpack and clothing seized 

during the traffic stop as well as the crack cocaine were destroyed pursuant to PSP 

regulations and procedures.

For his part, Cash testified he purchased the items seized with 

financial aid he received for his enrollment at Reading Area Community College. 

He also testified he made monthly payments for the cellular phones seized. Cash 

attempted to present a document regarding his financial aid and a few pages of a 

bank statement; however, the trial court sustained the Commonwealth’s objections 
5

to the admission of these documents. On cross-examination, Cash admitted that, 

on the date of the traffic stop during which the items were seized, he was arrested 

on an outstanding parole warrant that was issued after he absconded from a 

halfway house after he was ordered to return to a state correctional institution for a 

parole violation. He further testified that, after he absconded, which was three 

months before the traffic stop, he was not employed. Cash also testified he pled 

guilty to selling crack cocaine to the CI.

Based on the evidence presented, the trial court first determined the 

$1,030 was subject to forfeiture. The trial court stated that, pursuant to Section 

6801(a)(6) of the Forfeiture Act, when currency is found “in close proximity” to 

controlled substances that are unlawfully possessed, such currency is rebuttably

presumed to be proceeds derived from the sale of a controlled substance in 

violation of the Forfeiture Act. The trial court explained the Commonwealth bore 

the initial burden of proving forfeiture was appropriate under Section 6801(a)(6).

In order to meet that burden, the Commonwealth was required to establish, by a 

preponderance of the evidence, that a nexus existed between the money seized and 

a violation of the Controlled Substance, Drug, Device and Cosmetic Act2(Drug 

Act). See Commonwealth v. $6,425.00 Seized from Esquilin, 880 A.2d 523 (Pa. 

2005).

Once the Commonwealth meets its initial burden of showing a nexus 

exists between the seized property and the illegal drugs by a preponderance of the 

evidence, the burden shifts to the forfeiture claimant to rebut the presumption that 

 

2 Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780–101–780–144.
6

the money is forfeitable. Id. Pursuant to 42 Pa. C.S. §6802(j), in order to rebut the 

presumption, a forfeiture claimant must establish: (1) he owned the money; (2) he 

lawfully acquired it; and, (3) it was not unlawfully used or possessed by him. Id.

Here, the trial court stated that, in his written submissions, Cash 

alleged that he withdrew $1,300 from his bank account in order to buy a car 

outside of Chambersburg. In support, he attached to his filing a bank statement 

showing a June 12, 2012 withdrawal of $1,300. Further, Cash claimed the money 

deposited into his bank account was financial aid in the amount of $4,500. He 

maintained there was an insufficient nexus between the money seized and any 

alleged criminal activity, and the money was not income from illegal activity.

Rejecting Cash’s assertions, the trial court explained the 

Commonwealth presented evidence that, upon Cash’s arrest, he was searched and 

police recovered the $300 in prerecorded buy money that was previously given to 

the CI. An additional $1,030 was found on Cash’s person. The Commonwealth’s 

evidence indicated all the money was bound together in the same pocket, except 

for thirteen one-dollar bills. The trial court stated the Commonwealth met its 

initial burden of showing the forfeiture of the $1,030 was appropriate as the money 

was in close proximity to a drug transaction and was on Cash’s person with $300 

of prerecorded buy money.

The trial court further stated Cash did not adequately rebut the 

presumption that forfeiture was appropriate. The trial court rejected Cash’s 

explanation that he withdrew the money seized two weeks earlier in order to 
7

purchase a car. Moreover, the trial court explained, the fact that police did not 

observe enough sales to account for the total amount of money in Cash’s pocket 

did not mean the money could not be related to other drug transactions. Esquilin.

As a result, the trial court found the $1,030 was in close proximity to the 

unlawfully possessed crack cocaine, and Cash did not rebut the presumption that 

the money was forfeitable.

As to the three cellular phones, the trial court explained that, similar to 

the forfeiture of money, in order to forfeit property, the Commonwealth must 

prove a nexus exists between the unlawful activity and the property subject to 

forfeiture. Commonwealth v. 1999 Lexus ES300 (Pa. Cmwlth., No. 1984 C.D. 

2008, filed May 14, 2009), 2009 WL 9099777 (unreported) (citing Commonwealth 

v. Mitchell, 833 A.2d 1220 (Pa. Cmwlth. 2003)). The Commonwealth must show, 

by a preponderance of the evidence, that a nexus exists between the property and a 

violation of the Drug Act. Id. The Commonwealth may meet its burden through 

circumstantial evidence; it need not produce evidence directly linking the seized 

property to the illegal activity in order to show the requisite nexus. Id.

Again, similar to forfeiture proceedings involving money, once the 

Commonwealth meets its initial burden of showing, by a preponderance of the 

evidence, a nexus between the property at issue and the illegal activity the burden 

shifts to the forfeiture claimant to show the property is not forfeitable. 42 Pa. C.S. 

§6802(j); Commonwealth v. One (1) 1974 Chevrolet Box-Type Truck, 559 A.2d 

76 (Pa. Cmwlth. 1989).
8

The trial court found the Commonwealth met its burden of proving a 

nexus between the cellular phones and the unlawful activity. At the hearing, PSP 

Trooper Fink testified that it is common for individuals involved in illegal drug 

transactions to use multiple phones. The use of multiple phones, also known as the 

use of “burner phones,” allows perpetrators to better hide their illegal activities 

from authorities. In addition, Trooper Fink stated police observed Cash use a 

cellular phone to arrange a cocaine delivery. Thus, the trial court stated, the 

Commonwealth met its burden of proving a nexus between the three cellular

phones and the unlawful drug activity.

Moreover, the trial court rejected Cash’s assertions that the 

Commonwealth failed to prove a nexus between the cellular phones and the 

unlawful drug activity. As a result, the trial court determined the Commonwealth 

proved, by a preponderance of the evidence, a nexus between the unlawful activity 

and the three cellular phones found in the rental car; thus, forfeiture was proper.

However, as to the notebook computer, the notebook computer 

carrying pouch, the backpack and the clothing seized, the trial court determined the

Commonwealth did not prove the requisite nexus.

Consequently, the trial court granted in part and denied in part Cash’s 

motion for return of property and granted in part and denied in part the 

Commonwealth’s forfeiture petition. Cash appealed to the Superior Court, which 

transferred his appeal to this Court. After his appeal, the trial court directed Cash 

to file a concise statement of the errors complained of on appeal, which he did. In 
9

response, the trial court issued a supplemental opinion pursuant to Pa. R.A.P. 

1925(a).

Thereafter, Cash filed a motion for appointment of counsel. The trial 

court denied the motion based on the Pennsylvania Supreme Court’s holding that 

an indigent forfeiture claimant did not have a constitutional right to counsel in a 

civil forfeiture case under the Forfeiture Act. See Commonwealth v. $9,847.00 

U.S. Currency, 704 A.2d 612 (Pa. 1997). However, the trial court granted Cash’s 

motion requesting a copy of the transcript of the forfeiture hearing, and his motion 

seeking leave to proceed in forma pauperis.

Also, after filing his appeal, Cash filed a motion requesting a hearing 

to determine the equitable amount he should receive based on the destruction of the

items the trial court ordered returned to Cash. The trial court denied the motion on 

the ground that Cash’s prior appeal of the trial court’s order divested it of 

jurisdiction. This matter is now before us for disposition.

II. Issues

On appeal,3 Cash argues the trial court erred in: (1) denying his 

request for counsel; (2) failing to respond to two of his motions; (3) denying his 

motion to vacate the judgment of forfeiture; (4) excluding evidence in the form of 

bank statements and student loan documents; and, (5) finding a nexus between the 

$1,030 and the three cellular telephones and any unlawful activity.

 

3 Our review in an appeal from a forfeiture proceeding is limited to examining whether 

findings of fact made by the trial court were supported by substantial evidence, and whether the 

trial court abused its discretion or committed an error of law. Commonwealth v. 605 University 

Drive, 104 A.3d 411 (Pa. 2014).
10

III. Discussion

A. Appointment of Counsel

Cash first asserts the trial court erred in denying his motion for 

appointment of counsel. Citing $9,847.00 U.S. Currency, the trial court stated that, 

under the Due Process Clause of the Fourteenth Amendment, an indigent forfeiture 

claimant does not have a right to appointment of counsel in a civil matter under the

Forfeiture Act. Cash disagrees. He contends if an indigent person who is 

incarcerated and at a severe disadvantage is not afforded counsel, there is nothing 

to prevent prosecutors from taking advantage of the situation and essentially 

“bullying” an individual who lacks an understanding of the law. Br. for Appellant 

at 1. Cash argues the Equal Protection Clause, applicable in both civil and 

criminal cases, should apply here. He asserts the Constitution protects life, liberty

and property. Merely because an individual lacks the finances to afford an 

attorney, he should not be placed at a severe disadvantage based on his ignorance 

of the law. See Lee v. Habib, 424 F.2d 891, 901 (D.C. Cir. 1970). We reject this 

argument for several reasons.

First and foremost, as Cash points out, he did not seek appointment of 

counsel until after the trial court’s July 2014 hearing and after the trial court issued

its forfeiture order in September 2014. Further, at the outset of the hearing, the 

trial court confirmed that Cash intended to proceed on his own accord, and Cash 

raised no objection to proceeding without counsel and representing himself at that 

time. N.T. at 2. Indeed, in his concise statement of errors complained of on 

appeal, Cash admitted he did not request counsel. C.R., Item No. 27 at 2. Thus, 

Cash waived the issue that he was entitled to appointment of counsel. See Pa. 
11

R.A.P. 302(a) (issues not raised in lower court are waived and cannot be raised for 

the first time on appeal).

In any event, even if not waived, as the trial court correctly 

recognized, our Supreme Court recently reiterated that “although in rem forfeiture 

proceedings must comport with due process of law, property interests are generally 

afforded less due process protections than liberty interests. Consequently, there is 

no constitutional right to the appointment of counsel in a forfeiture proceeding.” 

Commonwealth v. 605 University Drive, 104 A.3d 411, 426 (Pa. 2014) (citing

$9,847.00 U.S. Currency) (emphasis added).

Further, while Cash briefly mentions the Equal Protection Clause, he 

does not clearly develop an argument as to how the denial of his motion for 

appointment of counsel violates his equal protection rights. To that end, Lee, the 

case cited by Cash, addresses the issue of whether indigent litigants are entitled to 

free transcripts. Further, although the D.C. Circuit Court discussed equal 

protection principles in Lee, it declined to decide the case on constitutional 

grounds, turning instead to an analysis of statutory law to resolve the question of 

an indigent litigant’s entitlement to a transcript. As a result, Lee would not compel 

the result Cash seeks. Thus, even if Cash properly preserved this issue, his 

argument fails.

B. Alleged Failure to Answer Motions

In his second issue, Cash states:

IN the matters complained of on appeal appellant 

claimed the the [sic] courts errored [sic] by not answering 
12

his request for transcripts and his request fro [sic]

appointment of counsel[.] The appellant waves [sic] this 

issue due to the fact the courts did respond to both 

request [sic] Therefor [sic] the alleged failure to answer 

motions claim is waived.

Appellant’s Br. at 2.

In its Pa. R.A.P. 1925(a) Opinion, the trial court explained it did not 

fail to respond to Cash’s motion for appointment of counsel and his transcript 

request. Rather, the trial court denied Cash’s motion for appointment of counsel 

based on the Supreme Court’s decision in $9,847.00 U.S. Currency, and it granted 

Cash’s request for the forfeiture hearing transcript based on Lee. In the absence of 

any clear explanation from Cash as to how the trial court’s orders were insufficient 

to resolve these motions, we discern no error in this regard.

C. Motion to Vacate

Cash next contends that he raised certain due process violations in his

motion to vacate judgment of forfeiture. First, he argued the district attorney’s 

office waited almost two years to file a forfeiture petition and advanced no reason 

for the untimely delay. See United States v. Eight Thousand Eight Hundred &

Fifty Dollars ($8,850) in U.S. Currency, 461 U.S. 555 (1983) (due process clause 

protects individuals from prejudicial delays in forfeiture cases). Additionally, 

Cash argues the district attorney’s office had already commenced forfeiture 

proceedings, without proper authorization, by destroying certain items that were 

ordered returned to him.
13

First, as to Cash’s claim regarding the timing of the Commonwealth’s 

forfeiture petition, while Cash raised this issue in his answer to the 

Commonwealth’s forfeiture petition, C.R., Item No. 17 at 3-4, he made no mention 

of this issue at the forfeiture hearing. C.R., Item No. 26. Thus, he did not clearly 

alert the trial court that this was an issue he wished to pursue. As a result, it is not 

surprising that the trial court did not address this issue.

In any event, assuming Cash’s issue regarding the timing of the 

Commonwealth’s forfeiture petition was properly preserved, Cash’s argument 

fails. To that end, the Commonwealth was required to file its petition for forfeiture 

within two years of when police confiscated the items from Cash. See

Commonwealth v. Allen, 107 A.3d 709, 721-22 (Pa. 2014) (Todd, J., dissenting) 

(pursuant to 42 Pa. C.S. §5524(5), an action upon a statute for a forfeiture must be 

commenced within two years). Here, police arrested Cash and seized the items at 

issue on June 26, 2012. See N.T. at 14-18, 32-34. The Commonwealth filed its 

forfeiture petition on June 4, 2014. C.R., Item No. 15. This filing was within the 

required two-year period. As such, the Commonwealth’s forfeiture petition was 

timely. Cash’s argument to the contrary fails.

Further, as to Cash’s claim regarding the destruction of items the trial 

court ordered returned to Cash, three weeks after Cash filed his notice of appeal, he

filed a motion, titled “In the Matter of Property.” C.R., Item No. 28. Through that 

motion, Cash noted that, after the forfeiture hearing, the district attorney’s office 

indicated the seized items that the trial court ordered returned were destroyed 
14

pursuant to PSP procedure. As a result, Cash sought a hearing to determine the 

amount he should be reimbursed for these items.

In response, the trial court issued an order denying Cash’s motion, 

explaining that, because Cash had already filed his notice of appeal, the trial court 

lacked jurisdiction to proceed until after the final disposition of Cash’s appeal. We 

discern no error in the trial court’s determination.

To that end, subject to certain exceptions not applicable here, Pa. 

R.A.P. 1701(a) states: “After an appeal is taken ... the trial court ... may no longer 

proceed further in the matter.” Id. Based on Pa. R.A.P. 1701(a), we agree with the 

trial court that Cash’s filing of a notice of appeal divested the trial court of 

jurisdiction to act on Cash’s subsequent motion seeking a hearing regarding the 

destruction of the items the trial court ordered returned to Cash. Thus, the trial 

court correctly determined it could not act on Cash’s motion. See 20A G. RONALD 

DARLINGTON ET AL. PENNSYLVANIA APPELLATE PRACTICE §1701:3 (2014-2015

ed.) (citing Richland Twp. v. Prodex, Inc., 646 A.2d 652 (Pa. Cmwlth. 1994)

(where appellant appealed judgment of contempt and also filed motion to open or 

strike judgment, which trial court did not rule on, this Court noted trial court could 

not act on appellant’s motion to open or strike judgment because, once appeal was 

filed, trial court no longer had jurisdiction)). As a result, we vacate the trial court’s 

order denying Cash’s “In the Matter of Property” motion, without prejudice to 

Cash’s ability to reapply for the same relief.
15

D. Evidentiary Rulings

Cash also takes issue with the trial court’s exclusion of his proffered 

bank statement and student loan document, asserting, in the entirety:

[Cash] avers that the bank statement and student loan papers 

that he submitted should have been allowed to be submitted

into evidence. [Cash] again returns to the issue of not having 

an attorney appointed to repersent [sic] him[.] And the district 

attorneys [sic] office taking advantage of the situation. [Cash] 

did not go to law school nore [sic] does he have a degree in law 

so how could he know that in order to submite [sic] documnets

[sic] to the court they had to be authenticated[.] [Cash] was 

proceeding pro ,se [sic] so some levele [sic] of leinency [sic] 

should have been afforded to him. SEE. exhibits A. B. C. 

[Cash] argues [sic] that the documents that he submitted [sic]

where [sic] in fact revelant [sic] to the proceedings in question 

because they demonstrated where he recived [sic] the money to 

purchase the phones in question and to when he withdrew the 

money in question from the bank. Also sence [sic] the district 

attorney states that [Cash] had no means of financial support. 

They demonstright [sic] how he was supporting him self [sic].

Appellant’s Br. at 3.

“The admission or exclusion of evidence is within the sound 

discretion of the trial court ... [and][t]o constitute reversible error, an evidentiary 

ruling must not only be erroneous, but also harmful or prejudicial to the 

complaining party.” Dep’t of Gen. Servs. v. U.S. Mineral Prods. Co., 927 A.2d 

717 (Pa. Cmwlth. 2007), aff’d, 956 A.2d 967 (Pa. 2008).

Here, our review of the hearing transcript reveals the trial court 

excluded two proffered exhibits: a past due notice for Cash’s student loan and a 

few pages of a bank statement. However, after declining to admit the proffered 
16

documents, the trial court proceeded to elicit testimony from Cash regarding each 

document. Specifically, the trial court questioned Cash concerning the amount of 

financial aid he received and the date he received it. N.T. at 8. The trial court also 

elicited testimony regarding payments Cash made to a cellular phone carrier as 

reflected in his bank statement. N.T. at 9-10.

In addition, in its opinion, the trial court expressly stated that Cash 

showed he did, in fact, withdraw $1,300 from his bank account on June 12, 2012, 

two weeks prior to the seizure of the money. Tr. Ct., Slip Op., 9/18/14, at 8. The 

trial court, however, expressly rejected Cash’s claim that the purpose for the 

withdrawal was to purchase a car. Id. Further, as set forth more fully below, the 

trial court also specifically considered and rejected Cash’s claim that he paid for 

the cellular phones from his financial aid funds. Id. at 9. Cash offers no 

explanation as to what additional information he sought to present through the 

admission of the two documents at issue. He also fails to assert any prejudice 

resulting from the exclusion of the two documents. Under these circumstances, we 

discern no reversible error in the challenged evidentiary rulings.

E. Nexus

As a final issue, Cash argues the trial court erred in finding a nexus

between the $1,030 and three cellular phones and a violation of the Drug Act. As

to the $1,030, Cash takes issue with the trial court’s statement that the $1,030 was, 

in fact, in close proximity to the unlawfully possessed crack cocaine. In attempting

to justify its decision, Cash contends, the trial court mistakenly assumed the money 

was present on Cash when the drug transaction occurred. Cash argues, however, 
17

that the time between the transaction and the arrest was approximately five to six 

hours, and there was no testimony that could support the trial court’s assumption. 

Cash also asserts, because there were no drugs found on him during the stop or the 

search, the “rebuttable presumption” found in Section 6801(B)(ii) of the Forfeiture 

Act does not apply.

As to the three cellular phones, Cash contends there is no connection 

directly or indirectly to any illegal transaction. See N.T. 28-29. To that end, at the 

hearing, Cash asked Trooper Fink if there were any records of the phone numbers 

used to facilitate the drug sale at issue, to which Trooper Fink replied “Yes.” N.T. 

at 28. However, when Cash asked Trooper Fink if he had any personal knowledge

as to whether any of the cellular phones Cash possessed were used to conduct the 

drug sale, Trooper Fink replied, “I don’t know.” N.T. at 29.

Cash further asserts the PSP had the phones in its possession for over 

two years and did not confirm whether any of the phones were in fact used to 

facilitate the drug transaction. Trooper Fink also indicated drug dealers normally 

keep their business phones separate from their personal phones, and they also use

“burner” phones, which are “no contract” phones. N.T. at 29-30. Cash claims he 

was not obligated to a “contract phone,” but he submitted a bank statement

showing he made a cellular phone payment using his debit card. He asserts if the 

phones were “burner phones,” he would not have submitted a bank statement used 

to pay a bill that could be traced to him.
18

Initially, we note, a trial court has discretion to grant or deny a 

forfeiture petition. Commonwealth v. One 2001 Toyota Camry, 894 A.2d 207 (Pa.

Cmwlth. 2006). We will not disturb the trial court’s decision absent an abuse of 

that discretion. Id.

Moreover, a trial court’s factual findings are entitled to the same 

deference as those of a jury. Commonwealth v. $23,320.00 U.S. Currency, 733 

A.2d 693 (Pa. Cmwlth. 1999). As fact-finder, it is the trial court’s function to 

decide what evidence is credible and to draw any reasonable inferences from the 

evidence. Id.

Section 6801 of the Forfeiture Act states, in relevant part:

(a) Forfeitures generally.—The following shall be 

subject to forfeiture to the Commonwealth and no 

property right shall exist in them:

* * * *

(6) (i) All of the following:

(A) Money, negotiable instruments, securities or other 

things of value furnished or intended to be furnished by 

any person in exchange for a controlled substance in 

violation of [the Drug Act], and all proceeds traceable to 

such an exchange.

(B) Money, negotiable instruments, securities or other 

things of value used or intended to be used to facilitate 

any violation of [the Drug Act]. ...

42 Pa. C.S. §6801(a)(6)(i)(A), (B).
19

In a forfeiture proceeding, the Commonwealth bears the burden of 

proving forfeiture is appropriate. Esquilin. The Commonwealth must show, by a 

preponderance of the evidence, a nexus exists between the money and a violation 

of the Drug Act. Id. A preponderance of the evidence standard is tantamount to a 

“more likely than not” standard. Id. at 529. The Commonwealth need not produce 

evidence directly linking the seized property to illegal activity in order to show the 

requisite nexus. Id. Also, there is no requirement that illegal drugs be present at 

the time of seizure; circumstantial evidence may show a party’s involvement in 

illegal drug activity. Id.

Further, under Section 6801(a)(6)(ii) of the Forfeiture Act, “money 

and negotiable instruments found in close proximity to controlled substances 

possessed in violation of [the Drug Act] shall be rebuttably presumed to be 

proceeds derived from the selling of a controlled substance in violation of [the 

Drug Act].” 42 Pa. C.S. § 6801(a)(6)(ii) (emphasis added). When the rebuttable 

presumption is triggered, “the Commonwealth satisfie[s] its evidentiary burden by 

using the presumption.” Commonwealth v. $259.00 Cash U.S. Currency, 860 

A.2d 228, 231 (Pa. Cmwlth. 2004).

Once the Commonwealth sustains its initial burden of proving a drug 

nexus by a preponderance of the evidence, the Forfeiture Act directs that the 

burden shifts to the claimant to rebut the presumption that the money is forfeitable:

(j) Owner’s burden of proof.—At the time of the 

hearing, if the Commonwealth produces evidence that the 

property in question was unlawfully used, possessed or 

otherwise subject to forfeiture under section 6801(a), the 

burden shall be upon the claimant to show:
20

(1) That the claimant is the owner of the property or the 

holder of a chattel mortgage or contract of conditional 

sale thereon.

(2) That the claimant lawfully acquired the property.

(3) That it was not unlawfully used or possessed by him. 

In the event that it shall appear that the property was 

unlawfully used or possessed by a person other than the 

claimant, then the claimant shall show that the unlawful 

use or possession was without his knowledge or consent. 

Such absence of knowledge or consent must be 

reasonable under the circumstances presented.

42 Pa. C.S. §6802(j). Thus, to discharge this burden, the claimant must establish 

that: (1) he owned the money; (2) he lawfully acquired it; and (3) it was not 

unlawfully used or possessed by him. Esquilin.

With regard to the required nexus and the shifting burden of proof, 

our Supreme Court’s decision in Esquilin is instructive. There, police observed 

Richard Esquilin (Esquilin) standing on the sidewalk with a cohort, who made 

three crack cocaine sales. After the sales, Esquilin’s cohort handed the buy money 

from two of the sales to Esquilin. Both Esquilin and his cohort were later arrested 

and searched. A search of Esquilin uncovered $6,425 in cash, and a search of his

cohort uncovered three zip-lock packets of cocaine and $7.00 in cash. Esquilin 

was initially charged with criminal conspiracy and possession with intent to 

deliver, but the charges were dismissed. The Commonwealth filed a petition for 

forfeiture of the $6,425 seized from Esquilin. The trial court ordered the $6,425 

forfeited, finding the Commonwealth proved a nexus between the money seized 

and the illegal drug transactions the police observed. It also rejected Esquilin’s 

claim that the money was lawfully acquired.
21

On appeal, this Court affirmed in part and reversed in part. To that 

end, this Court reversed the finding that all of the $6,425 was used to facilitate 

violations, or represented the proceeds of violations, of the Drug Act. We believed 

it was reasonable for the trial court to conclude that, as witnessed by the officers, 

Esquilin was handed the money from the three drug sales, each transaction having 

an estimated value of $20. Thus, this Court found sufficient support for the 

forfeiture of $60 of the money found on Esquilin. As for the remainder, however, 

this Court believed there was no evidence to support the conclusion that it was 

connected to illegal drug dealing. Thus, we affirmed the trial court’s grant of the 

forfeiture petition with respect to $60, but reversed as to the remaining $6,365.

On further appeal, however, our Supreme Court reversed this Court’s 

order and reinstated the trial court’s forfeiture order, explaining:

[T]he Commonwealth’s documentary evidence proved 

that ... officers saw three typical street drug transactions, 

in each of which money was handed to [Esquilin’s 

cohort] in exchange for drugs. After two of those 

transactions, [Esquilin’s cohort] handed the buy money 

to [Esquilin]. Police officers subsequently apprehended 

two of the three drug purchasers and confiscated zip-lock 

packets of cocaine from each, thus proving that what had 

looked like drug deals in fact were. Police then arrested 

both [Esquilin’s cohort] and [Esquilin], finding three 

additional zip-lock packets of cocaine and $7.00 cash on 

[Esquilin’s cohort], and $6,425.00 in cash on [Esquilin]. 

All of the confiscated zip-lock packets were laboratory 

tested, and each was found to contain cocaine. The trial 

court found that this evidence sufficiently discharged the 

Commonwealth’s initial burden of demonstrating a nexus 

between the money seized from appellee and illegal 

narcotics dealing ...
22

We see no error in the trial court’s finding. 

Although the nexus in this case may not have been 

sufficient to connect all of the cash directly to the drug 

trade (as proceeds or as facilitation) beyond a reasonable 

doubt, we believe it clearly was sufficient under the 

Forfeiture Act’s preponderance standard. ...

The fact that [Esquilin] and [his cohort] were 

observed in the actual act of dealing drugs supports the 

trial court’s reasonable conclusion that it was more likely 

than not that the entirety of the money [Esquilin] held 

was ‘furnished or intended to be furnished ... in exchange 

for a controlled substance ... [or represents the] proceeds 

traceable to such an exchange,’ or was ‘used or intended 

to be used to facilitate [a] violation of [the Drug Act].’ 42 

Pa. C.S. §6801(a)(6)(i)(A), (B). The trial judge was not

obliged to be so naïve as to assume that these three sales 

were the only ones [Esquilin] and [his cohort] had 

conducted, or intended to conduct. ... The fact that the 

police did not personally observe enough sales to account 

for the total amount of money in [Esquilin’s] pocket does 

not mean that the money cannot have been related to the 

drug dealing enterprise. ...

Moreover, in light of the fact that [Esquilin] and 

[his cohort] were observed as they acted in concert, the 

trial court did not err in invoking the ‘close proximity’ 

rebuttable presumption which is set forth in the 

Forfeiture Act. ... [T]he controlled substances 

distributed and possessed by [Esquilin’s cohort] were in 

sufficiently close proximity to the money [Esquilin] 

retained—indeed, [Esquilin’s cohort] was ‘close enough’ 

to [Esquilin] that he could simply hand the cash over 

from the sales—as to trigger the Forfeiture Act’s 

rebuttable presumption that the money represented 

‘proceeds derived from the selling of a controlled 

substance in violation’ of the [Drug] Act. See 42 Pa. 

C.S. § 6801(6)(ii). ...

The [Commonwealth Court] panel deemed the 

presumption inoperable because no drugs were found on 

[Esquilin], and there was no specific finding that, at the 
23

moment [Esquilin] and [his cohort] were arrested, they 

were in close proximity. ...

However distant from each other [Esquilin] and 

[his cohort] may have been when arrested, the evidence 

clearly established that they were close enough during 

the conduct of the actual drug deals that [Esquilin’s 

cohort]—who was in personal possession of the drugs—

could simply hand the cash proceeds of the sales over to 

[Esquilin]—who was in personal possession of the cash. 

Moreover, the cash from the three sales police observed 

was in such intimate proximity with the rest of the cash 

found upon [Esquilin] that it was commingled. ...

The common, overriding difficulty in the 

Commonwealth Court panel’s approach here consists in 

its erroneous erection of artificial and absolutist 

evidentiary requirements before individual facts and 

circumstances may even be deemed relevant to the 

question of whether a nexus exists between the money 

and violations, or facilitations of violations, of the [Drug]

Act. In adopting this absolutist approach to its reviewing 

function, the panel committed an error of law. For the 

reasons we have stated above, the trial court, properly 

considering the totality of the evidence and properly 

drawing logical inferences from the evidence presented, 

did not err in finding a nexus between the entire sum of 

cash seized from appellee and violations of the [Drug]

Act.

Id. at 530-32, 533-34 (emphasis added). The Supreme Court further determined 

the trial court did not err in rejecting Esquilin’s innocent owner defense. To that 

end, Esquilin presented documentary evidence in an attempt to show he obtained 

the money lawfully, and he withdrew the large sum of cash that he possessed two 

weeks before his arrest in order to pay for the restructuring of a home he 

purchased. The Court held the trial court did not err in rejecting these claims as 

not credible.
24

Here, as to the $1,030 seized from Cash, the record reveals police 

used a CI, who placed a call to Cash’s cellular phone and arranged to meet Cash at 

a specified location. N.T. at 14. Police provided the CI with $300 in prerecorded 

buy money and kept him under constant surveillance. N.T. at 15. The CI met with 

Cash, entered the rented vehicle, drove around the block and returned to the same

previously specified location where the CI exited the vehicle. Id. The CI returned

to police where he turned over what police believed was “a sum of crack cocaine.” 

Id. The CI provided police seven zip-lock bags containing an off-white substance. 

Subsequent laboratory testing confirmed the substance was, in fact, crack cocaine, 

which weighed two grams. N.T. at 23; Commonwealth’s Exs. 2, 5.

Further, after the controlled purchase, police maintained surveillance 

of Cash as he travelled throughout Franklin County. N.T. at 17. After several 

hours of surveillance, police learned Cash had an outstanding parole warrant. Id. 

Police stopped Cash’s vehicle, placed him in custody until the outstanding warrant 

was confirmed and then arrested him. N.T. at 17-18, 32. A search incident to the

arrest uncovered sums of money from Cash’s front pockets. N.T. at 32-33. Cash’s 

left pocket contained thirteen one-dollar bills, and his right pocket contained a total 

of $1,317, comprised of two fifty-dollar bills, fifty-two twenty-dollar bills, thirteen

ten-dollar bills, eight five-dollar bills, and seven one-dollar bills. N.T. at 18-19; 

Commonwealth’s Ex. 2. Included in the $1,317 found in Cash’s right pocket was 

the $300 in prerecorded buy money the CI gave to Cash. N.T. at 18. Cash 

ultimately pled guilty to delivery of cocaine and received a sentence of 24 to 60 

months in prison. C.R., Item No. 7.
25

Based on our Supreme Court’s decision in Esquilin, we discern no 

error in the trial court’s determination that the Commonwealth proved the requisite 

nexus between the $1,030 cash seized and the unlawful drug sales. Specifically, 

similar to Esquilin, police observed Cash conduct a controlled drug sale of seven 

zip-lock bags of crack cocaine, weighing two grams. Further, although a 

subsequent search yielded no additional drugs, it did uncover $1,330 in cash in 

various denominations, which included the commingled $300 in prerecorded buy 

money Cash received from the CI. As in Esquilin, the fact that Cash was observed 

in the actual act of dealing drugs supports the trial court’s reasonable conclusion 

that it was more likely than not that the entirety of the money Cash held was 

“furnished or intended to be furnished ... in exchange for a controlled substance ... 

[or represents the] proceeds traceable to such an exchange,” or was “used or 

intended to be used to facilitate [a] violation of [the Drug Act].” 42 Pa. C.S. 

§6801(a)(6)(i)(A), (B).

In addition, as in Esquilin, the trial court did not err in invoking the 

“close proximity” rebuttable presumption based on the facts presented. Indeed, the 

controlled substances Cash possessed and distributed were in sufficiently close 

proximity to the money he retained so as to trigger the Forfeiture Act’s rebuttable 

presumption that the money represented “proceeds derived from the selling of a 

controlled substance in violation of the [Drug Act].” 42 Pa. C.S. § 6801(6)(ii).

While Cash asserts several hours lapsed between the controlled drug sale and the 

subsequent search, he makes no assertion that he lawfully acquired the money 

during that time frame. See Appellant’s Br. at 5. In fact, before the trial court he

asserted he withdrew $1,300 from his bank account two weeks prior to the seizure 
26

of the money. See Tr. Ct., Slip Op. at 8. In short, based on the facts presented, the 

trial court could reasonably infer that Cash had the money on him at the time he 

sold the crack cocaine to the CI. See Esquilin.

4

In his brief to this Court, Cash offers no direct response to the trial 

court’s determination that he failed to rebut the presumption that the money 

represented proceeds derived from the selling of a controlled substance in violation 

of the Drug Act. In any event, as in Esquilin, no error is apparent in the trial 

court’s rejection of Cash’s claim that he withdrew the money two weeks prior to 

the arrest and seizure in order to purchase a vehicle. To that end, the trial court 

explained:

Here, [in his written submission,] [Cash] ... asserts 

that he withdr[ew] $1,300 from his bank with intention of

buying a car outside of Chambersburg. In support, 

[Cash] attached [to his filing], as his Exhibit C, a bank

 

4 Cash also relies on Commonwealth v. Fidelity Bank Accounts, 631 A.2d 710 (Pa. 

Cmwlth. 1993), for the proposition that, where the Commonwealth seizes money or property and 

claims it is forfeitable because it constitutes proceeds traceable to drug sales under Section 

6801(a)(6)(i)(A) of the Forfeiture Act, “as a matter of law, the Commonwealth cannot prove that 

property acquired prior to the time that it proves that illegal activity occurred is forfeitable ....” 

Id. at 719 (emphasis in original).

However, the language Cash quotes from that case related to life insurance policies and a 

bank account that the forfeiture claimants purchased or opened prior to the date the 

Commonwealth was able to show the illegal drug trafficking operation at issue in that case

existed. This Court held premiums paid on the life insurance policies and funds deposited into 

the bank account prior to the time the Commonwealth could prove the illegal drug trafficking 

operation existed, had to be returned to the forfeiture claimants. Ultimately, we remanded for a 

determination of whether the Commonwealth proved the existence of any payments made after 

the illegal drug trafficking operation began.

Here, unlike in Fidelity Bank Accounts, we are not confronted with the seizure of 

property such as life insurance policies or bank accounts that were acquired prior to when the 

Commonwealth could prove illegal drug activity occurred. Rather, in this case the 

Commonwealth proved the cash seized was in close proximity to the unlawful drug activity. 

Thus, Cash’s reliance on Fidelity Bank Accounts fails.
27

statement showing a June 12, 2012 withdraw[al] of 

$1,300. ...

[Cash] has not adequately rebutted the 

Commonwealth’s presumption that the forfeiture was 

appropriate. [Cash’s] assertion that the forfeited money 

was withdrawn on June 12, 2012 in order to purchase a 

car is problematic for two reasons. First, while [Cash]

has shown that he did, in fact, withdraw $1,300 in cash 

from his bank account, this transaction occurred 

approximately 2 weeks before his June 26, 2012 

encounter with police. [Cash] has not explained to this 

Court’s satisfaction why he would withdraw a large 

amount of cash with the intent to purchase a car but then 

keep the large sum of money on his person while 

committing an illegal act after failing to purchase a car. 

Second, [Cash’s] claims surrounding the $1,300 are even 

more questionable in light of the Commonwealth’s 

evidence surrounding the $300 prerecorded money that 

the CI used to purchase crack cocaine. See

[Commonwealth v. $16,208.38 U.S. Currency Seized 

from Holt, 635 A.2d 233 (Pa. Cmwlth. 1993)] (finding 

that trial court is not required to find property claimant’s 

explanations for large sums of cash are believable). ...

Tr. Ct., Slip Op. at 8-9. Thus, even if properly preserved, we discern no error in 

the trial court’s rejection of Cash’s claim.

Finally, as to the three cellular phones seized, we also agree with the 

trial court’s determination that the Commonwealth proved the requisite nexus 

between those items and the unlawful drug activity. To that end, at the hearing, the 

Commonwealth presented evidence that, following Cash’s arrest, a search of the 

vehicle yielded three cellular phones in the center console of the rented vehicle 

Cash was driving when he made the sale of crack cocaine to the CI. N.T. at 20, 33. 

Further, the Commonwealth presented evidence that the controlled drug buy was 
28

arranged by way of a phone call from the CI to one of the cellular phones in Cash’s 

possession. N.T. at 28. Moreover, PSP Trooper Fink offered testimony that drug 

dealers commonly use “burner phones,” which are “no-contract phones [that are 

used] in order to hide their identity.” N.T. at 29-30. Here, Cash admitted he had 

no contracts on any of the three cellular phones seized. N.T. at 10.

Of further note, Cash was initially charged with criminal use of a 

communication facility, although that charge was ultimately dismissed as a result 

of his guilty plea to possession with intent to deliver cocaine. See C.R., Item No. 

7. Based on all of these circumstances, the trial court could reasonably conclude 

the Commonwealth met its burden of proving a nexus existed between the three 

cellular phones and the unlawful drug activity.

Moreover, in rejecting Cash’s assertion that the three cellular phones 

did not have a nexus to illegal drug activity, the trial court explained:

[Cash] argues that the cell phones do not have a nexus to 

illegal activity but does not state why he had three active 

cell phones. Even in today’s technology-driven age, it is 

unusual for a single person to have three cell phones on 

their person, let alone in a rental car that a person is 

driving in by themselves. [Cash] has not given this court 

a legitimate reason why he would have three cell phones 

in his rental vehicle. Even assuming arguendo that 

[Cash’s] cell phones were not purchased with proceeds 

from selling drugs and were purchased with his student 

loans, given his employment situation and criminal 

actions, [Cash’s] possession of three cell phones is very 

suspicious. Although individuals may have a work cell 

phone and a personal cell phone, [Cash] didn’t offer a 

reasonable explanation along those lines. As a result, this 

Court finds that the Commonwealth has, by a 

preponderance of the evidence, shown a nexus between 
29

the unlawful criminal activity and all three cellular 

phones found in the rental car and the forfeiture of said 

cell phones was proper.

Tr. Ct., Slip Op. at 10-11. We discern no error in the trial court’s rejection of 

Cash’s attempt to rebut the Commonwealth’s proof that a nexus existed between 

the three cellular phones and the unlawful drug activity. Indeed, the trial court was 

not required to accept Cash’s explanation as credible. Esquilin.

For all the foregoing reasons, we affirm the trial court in all respects

except the denial of Cash’s late-filed “In the Matter of Property” motion. That 

latter order is vacated.

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania :

:

v. : No. 915 C.D. 2015

:

Theodore Cash, :

Appellant :

O R D E R

AND NOW, this 15th day of October, 2015, the order of the Court of 

Common Pleas of the 39th Judicial District (Franklin County Branch) is

AFFIRMED in all respects except as to the denial of Appellant’s late-filed “In the 

Matter of Property” motion. The order denying that motion is VACATED.

 

ROBERT SIMPSON, Judge