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 G ARDNER 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 order ing 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 judgm ent of forfeiture; excluding evidence in the form of bank statements and student loan documents; and , finding a nexus be tween 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 l ater, Cash ple d guilty to delivery
of cocaine. On t hat 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 Penns ylvania
State Police (PSP)

. The specific items are: $1,030 in U.S. Currency; one HTC 4G
cell ular phone; one Apple iPhone ; one white HTC cell ular phone ; one eMachines notebook computer; a notebook computer carrying pouch, clothes, a nd a backpack

. The trial c ourt directed the Commonwealth to file a response and scheduled a hearing on the motion.

Shortly thereafter , t he Commonwealth filed an a nswer to the m otion
for r eturn of property and a p etition for f orfeiture. T he Commonwealth averred the items sought by Cash were seized during a traffic stop after Cash en gaged in the
sale of a controlled substance

. T he Commonwealth argued that seizure of t he
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 several3

documentary exhibits. Cash testified by way of video conference from a s tate correctional institution

.

After the hearing, the trial court issued a decision in which it explained that a t the hearing, t he Commonwealth presented the testimony of Troop er 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 t o purchase the cocaine from
Cash. The drug buy was arranged using a cellular phone. Trooper Fink stated that
he se arched the CI prior to the buy, provided the CI with $300 in pre recorded bills,
and watched the CI meet with Cash for th e 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 includ ed the $300 in pre recorded buy money used in
the drug transaction. Trooper Lauricia learned that t he vehicle Cash drove was a
rent al vehicle

. A search of the vehicle uncovered three cell ular phones in the4

center console and a notebook computer

. Trooper Lauricia seized the items and
the $1,330

.

Troop er Fink testified it was common for individuals involved in illegal dr u g 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
mainta ined at the Chambersburg Police Department.

The Commonwealth also presented evidence from T rooper C onfer , P SP ’s evidence custodian at the PSP barracks in Chambersburg. Trooper C onfer testified that ge nerally, upon the conclusion of a c ase, police arrange for seized property to be destroyed . Trooper C onfer testified there are specific rules that

govern the destruction of seized prop erty. He stated that pursuant to PSP’s policies and procedure s , 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 cra ck cocaine were destroyed pursuant to PSP regulations and procedures.

Fo r 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 paymen t s 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 objections5

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 sta te 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, 0 30 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 unl awfully possessed, such currency is rebuttably presumed to be proceeds deriv ed 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 appropr iate under Section 6801 (a)(6)

. I n order to meet that burden, the Commonwealth was required to establish, by a preponderance of the evidence, that a nexus exist ed between t he money seized and
a violation of t he Controlled Substance, Drug, Device and Cosmeti c Act 2 (Drug Act)

. See Commonwealth v. $6,425.00 Seized from Esquilin , 880 A.2d 523 (Pa. 2005).

Once the Commonwealth meets its in itial burden of showing a nexus
exists between the seized property and the illegal drugs by a pre ponderance of the evidence, the burden shift s to the forfeiture cl aimant 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
l awfull y 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 withdr e w $1,300 from his bank account in order to buy a car outside of Chamber sburg. In support, he atta ched to his filing a bank st atement showing a June 12, 2012 withdraw al of $1,300. Further , Cash claim ed the money deposited into his bank account was financial aid in the amount of $4,500. He
maintain ed t here was an insufficient nexus between the money seized and any alleged criminal activity , and the money wa s not income from illegal activity.

Rejecting Cash’s assertions, t he trial court explained the
Commonwealth pr esented evidence that , upon Cash’ s arrest, he was searched a nd police recovered the $300 in pre recorded 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 bou nd together in the same pocket, except for thirteen one

- dollar bills. The trial court stated the Commonwealth me t 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 to7

purchase a car. Moreover, the tri al court explained, the fact that police did not observe enough sales to account for the total amount of money in Cash’ s pocket
d id not mean the mon ey could not be related to other drug transactions. Esquil in

. As a result, th e trial c ourt f ound the $1,030 was in close proxim ity 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, s imil ar to the forfeiture of money, i n order to for feit 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 Co mmonwealth
v. Mitchell , 833 A.2d 1220 (Pa. Cmwlth. 2003) )

. The C ommonwealth must show, by a prep onderance of the evidence , that a nexus exists between the property and a
violation of the Drug Act. Id. T he Commonwealth may meet its burden through
cir cums tantial 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 mon ey, once the
Commonwealth meets its i nitial burden of showing, by a preponderance of th e 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 cell ular phones and the unlawful activity. At the hearing, PSP
Tro oper Fink testified that it is common for ind ividuals involved in i llegal drug
transactions to use multiple phones. The use of multiple phones, also known as the
use of “ burner phones, ” allows perpetrators to better hide th eir illegal activities
from authorities. In addition, Trooper Fink stated po lice observed Cash us e a cell ular phone to arrange a cocaine delivery. Th us , the trial court stated, the
Commonwealth met its burden of proving a nexus between the three cell ular phones and the unlawful drug activity.

Moreover, the trial court rejected Cash’s assertions that the Commonwealth failed to prove a nexus between t he cellular phones and the unlawful drug activity. As a result, the trial c ourt determined the Commonwe alth proved , by a preponderance of the evide nce, a nex u s between the unlawful activit y and the three cell ular phones found in the rental car ; th us , forfeiture was proper.

However, as to the n otebook c omputer, the n otebook c omputer

c arrying pouch, the backpack and the clothing seized, the trial court determi ned t he
Commonwealth did not prove the requisite nexus.

Consequently , the trial c ourt granted in part and denied in part Cash’s
motion for r eturn of p roperty 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. In9

res ponse, the trial court issued a supple mental 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 holdin g that an indigent forfeiture claimant did not have a constituti onal 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 forfeitu re hearing, and his motion seeking leave to proceed in forma pauperis

.

Also , a fter 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 motio n 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 document s; 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 exa mining whether findings of fact made by the trial court we re 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 mot ion for appointment of counsel

. Citing $9,847.00 U.S. Currency , the trial court stated that,
under the D ue P rocess C lause of the Fourteenth Amendment, a n indigent forfeiture
claim a nt do es not have a right to ap pointment of counsel in a civil matter under the Forfeiture Act. Cash disagrees . He contends if an indigent person who is
incar cerated and at a severe disadvantage is not afforded counsel , there is nothing to prevent prosecut ors 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 E qual P rotection C lause , applicable in both civil and criminal cases, should apply here . He assert s the Constitution protects life , liberty and property

. M erely because an individual lack s the fina nces to afford an attorney , h e 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, a s 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 o f 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 p rotections 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 adde d)

.

Further, while Cash briefly mentions the Equal Protection Clause, he
does not clearly de velop 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 cl aimed the the [sic] courts errored [sic] by not answering12 his request for transcripts and his request fro [sic] appointment of coun sel [.] The appellant waves [sic] this issue due to the fact the courts did respond to both request [sic] Therefor [sic] the alleged failure to a nswer motions claim is waived.
Appellant’s Br. at 2.

In its Pa. R.A.P. 1925(a) Opinion, the trial court explain ed 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 in sufficient
to resolve these motions, we discern no error in this regard.

C. Mo tion to V acate
Cash next contends that he raised certain due process violations in his
motion to vacate judg ment of forfeiture . First, he argued the district attorney ’ s office waited almost two years to file a forfeiture petition and advanced no reason f or 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 )

. A ddition ally , Cash argues t he district attorney ’s office had already com m enced 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 Comm onwealth’s forfeiture petition , while Cash raised this issue in his answer to the Commonwealth’s forfeiture petitio n, C.R., Item No. 17 at 3

- 4, he made no mention
of this issue at the forfeiture hearing. C.R., Item No. 26. T hus, 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 argume nt fails. To that end, t he 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. S ee N.T. at 14

- 18, 32

- 34. T he Comm onwealth 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, a s to Cash’s claim r egarding 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 d istrict a ttor ney’s o ffice
indicated the seized items that the trial court order ed returned were destroyed14

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

amount he should be reimbursed for the se 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: “ A fter 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
tri al 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 correctl y determined it could not act on Cash’s motion. See 20 A G. R ONALD
D ARLINGTON ET AL

. P ENNSYLVANIA A PPELLATE P RACTICE § 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 C ourt noted trial court could

n ot act on appellant’s motion to open or str ike judgment because, once appeal was filed, trial co urt 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 exclu sion of his proffered
bank stat ement 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 t o submite [sic] documn ets [sic] to the cou rt they had to be authenticated[

. ] [Cash] was proceeding pro ,se [sic] so some levele [sic] of leinency [sic] should have been afforded to him. S EE. 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] t he 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, o ur 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 b ank statement . However, after declining to admit the proffered16

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 test imony regarding payment s 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, withdr aw $1,300 from his bank account on Jun e 12, 2012, two weeks pri or to the seizure of the money

. Tr. Ct., Slip Op., 9/18/14, at 8. T he
trial court , however, e xpressly 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
betw een 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 unla wfully possessed crack cocaine. In attempt ing to justify its decision, Cash contends, the trial court mistakenly assum ed the money was present on Cash when the drug transaction occurred. Cash argues , however,17

that t he time between the transaction and the arrest was approximately five to six
hours , and there was no testimony that could support th e 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 cell ular phones , Cash contends there is no connection directly or indirectly to any illegal transaction. See N.T. 28

- 29 . To that end, at the
hea ring, Cash asked Trooper Fink i f 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 a sked Trooper Fink if he had any pers onal knowledge

as to whether any of the cell ular phone s Cash possessed were used to conduct the drug sale, Trooper Fink r eplied , “ I don’t know.” N.T. at 29.

Cash further asserts the PSP ha d the phones in its possession for over

two years and did not confirm whether any of the phone s were in fact used to
facilitate th e drug transaction. Trooper Fink also indicated drug dealers normally
ke ep their busi ness 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

w as not obligated to a “contract phone , ” but he submitted a bank statement
show ing he made a cell ular phone payment using his debit card. He asserts if the phones were “ burner phones ,” he would not have submitted a bank statement used to p ay a bill that could be traced to him.18 Initially, we note, a trial court has d iscretion 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 c ourt’ s decision absen t 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 fac t

- 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 substan ce 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. T he 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; circumsta ntial evidence may show a party’ s involvement in illegal drug activity. Id.

Further, u nder Section 6801(a)(6)(ii) of the Forfei ture Act, “money and negotiable instruments found in close proximity to con trolled substances possessed in violation of [the Drug Act] shall be rebuttably presumed to be proceeds derived f

rom the selling of a controlled substance in violation of [the Drug Act] .” 42 Pa. C.S. § 6801(a)(6) (ii) (empha sis added). When the rebuttable presumption is triggered, “the Commonwealth satisf ie[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 t he 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 pre sented.

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,

o ur 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 h anded 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. T he Commonwealth filed a petition for forfeiture of the $6,425 seized from Esquilin. The trial cour t ordered the $6,425
forfe ited, finding the Commonwealth proved a nexus between the money seized and the illegal drug transactions th e police observed. I t also rejected Esquilin’s claim that the money was lawfully acquired.21 On appeal, this Court affirmed in part and reversed in p art. To that
end , this Court reversed the f inding 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 hav ing an estimated value of $20

. Thus, this Court found sufficient support for the
forfeiture of $60 of the money found on Es quilin

. As for the re mainder , however,
this Court believe d 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 revers ed 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 d rug 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 fur nished ... 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 i n [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 the23 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
c ohort]

— 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 individ ual 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 pane l 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 su m 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 rev eals police

u s ed a CI, who placed a cal l 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. T he CI provided police seven zip

- lock bags containing an off

- white substance

. Su bsequent laboratory testing confirmed the substance was , in fact, crack cocaine , which weighed two grams . N.T. a t 23; Commonwealth’s Exs. 2, 5.

Further, after the cont rolled purchase, p olice maintain ed 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 g ave 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. S pecifically,
similar to Esquilin , police observed Cash conduct a controlled drug sale of seven zip

- lock bags of crack cocaine , weighing two grams

. Further, a lthough 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 , t he 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 t he 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 P a. 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 , t he
controlled substances Cash possessed and distributed were in suf ficiently close proximity to the money he retained so as to trigger the Forfeiture Act’s rebuttable presumpt ion that the money represented “ proceeds derived from the selling of a

co ntrolled substance in violation of the [ Drug Act ]

. ” 42 Pa. C.S. § 6801(6)(ii)

. W hile 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 seizure26

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 re but the presumption that the money represented proceeds derived from the selling of a controlled substance in violation of the Drug Act. I n any event, as in Esquilin , no error is apparent in the trial court’s reje ction of Cash’s claim that he withdrew the money two weeks prior to the arrest and seizure in order to purchase a vehicle. To t hat 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 reli es on Commonwealth v. Fidelity Bank Accounts , 631 A.2d 710 (Pa. Cmwlth. 1993) , for the proposition that , where t he 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 Co urt 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 r emanded 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 in surance 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 st atement showing a June 12, 2012 withdraw [al] of $1,300.

... [Cash] has not adequ ately rebutted the Commonwealth’s presumption that the forfeiture was appropriate. [Cash’s] assertion that the f orfeited money was withdrawn on June 12, 2012 in order to pu rchase 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] cl a ims surrounding the $1,300 are even more questionab le 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. C mwlth. 1993) ] (finding that trial court is not req uired 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, w e discern no error in the trial court’s re

jection 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 th os e 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

. Furt her, the Commonwealth presented evidence that the controlled drug buy was28

arranged by way of a phone call from the CI to one of the cellular phones in C ash’s possession. N.T. at 28. Moreover , PSP Trooper Fink offered testi mony 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 f urther note , Cash was initially charged with criminal use of a communication facility, although that charge was ultimately dismissed as a result
of hi s 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 Commonwealt h 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 singl e person to have three cell phone s 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 individual s 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 prepo nderance of the evidence, shown a nexus between29 the unlawful criminal activit y 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, JudgeIN THE COM MONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania : : v. : No. 915 C.D. 2015
: Theodore Cash, : Appellant :

O R D E R

AND NOW , this 15 th 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