Com. v. Taylor, W. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM PAUL TAYLOR :
:
Appellant : No. 1495 EDA 2019
Appeal from the Order Entered April 23, 2019
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0008595-2017
BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY PANELLA, P.J.: FILED JANUARY 28, 2020
William P. Taylor appeals,1 pro se, from the order of April 23, 2019
granting the Commonwealth’s petition for forfeiture of money, firearms, two
iPhones, and one Apple watch (collectively, “cellular equipment”), 2 and
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1 In its 1925(a) opinion, the trial court contends Appellant filed his appeal with
the wrong court. See Trial Court Opinion, 7/30/19, at 2. However, “[b]oth this
Court and the Commonwealth Court have jurisdiction to decide an appeal
involving a motion for the return of property filed pursuant to Pa.R.Crim.P.
588.” Commonwealth v. Durham, 9 A.3d 641, 642 n.1 (Pa. Super. 2010)
(citation omitted), appeal denied, 19 A.3d 1050 (Pa. 2011); In Re One 1988
Toyota Corolla, 675 A.2d 1290 (Pa. Cmwlth. 1996).
2On appeal, Appellant abandons his challenge to the forfeiture of the money
and firearms and only seeks return of the cellular equipment.
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denying his motion for return of property.3 After careful review, we reverse
in part and remand.
We take the underlying facts and procedural history in this matter from
our review of the certified record. In October 2017, agents from the
Pennsylvania Attorney General’s Office conducted an investigation into a drug
selling business operated by Appellant and Eric Stubbs. The agents conducted
two controlled buys of narcotics from Stubbs before arresting Appellant and
Stubbs immediately prior to a third arranged drug sale.
Appellant and Dillard were present in a separate car during the first
controlled buy. However, law enforcement watched Stubbs leave the
undercover agent’s car and walk over to Appellant’s car. There, they saw
Appellant hand Stubbs an item. Stubbs then walked back to the undercover
agent’s car and sold cocaine to the agent. After the sale, some agents followed
Appellant and Dillard back to their home and other agents followed Stubbs as
he first drove to a bank, then drove to Appellant’s home and gave money to
Appellant.
Immediately prior to the second sale, Stubbs drove to Appellant’s home.
He and Stubbs then drove off in a car, rented by Appellant, to meet with the
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3 Appellant’s co-defendant and girlfriend, LaToya Dillard, also filed an appeal
from this order. However, we quashed her appeal as untimely filed on
November 8, 2019. See Commonwealth v. Dillard, 1650 EDA 2019.
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agent. Stubbs exited Appellant’s car, entered the agent’s car, and sold the
agent cocaine.
Again, prior to the third meeting, in which Stubbs was to sell the agents
Percocet and cocaine, Stubbs drove to Appellant’s home, retrieved a yellow
bag from his car and went inside Appellant’s residence. They soon left, each
going to a different location, and with Appellant now in possession of the
yellow bag.
Stubbs contacted the agent to tell her he was “still putting the pills
together.” Stubbs drove back to Appellant’s location and, in separate cars,
both drove to the agreed-upon location for the sale. When the men arrived,
the agents arrested them and subsequently executed a search warrant on
Appellant’s home. It is not apparent from the record whether the agents
recovered the cellular equipment at issue from Appellant’s person or from his
home.4
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4 In his brief, Appellant alternately states that the agents recovered the
cellular equipment during the search of the residence and from his person.
See Appellant’s Brief, at 5 and 7. The Commonwealth claims that it recovered
the cellular equipment from a search of Appellant’s person. See the
Commonwealth’s Brief, at 4. However, the Commonwealth does not cite to
the record to support this statement. In its opinion, the trial court did not
discuss whether the agents found the cellular equipment on Appellant’s person
or in his house. See Trial Court Opinion, 7/30/19. We are unable to discern
the truth of the matter from the record.
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On September 21, 2018, Appellant entered a negotiated guilty plea to
one count of possession with intent to deliver and one count of a violation of
the Uniform Firearms Act. That same day, the trial court sentenced Appellant
in accordance with the terms of the plea agreement to 4 to 10 years’
imprisonment followed by 7 years’ probation. Subsequently, the
Commonwealth moved for forfeiture of the cellular equipment, money, and
firearms and Appellant sought return of the property.5 Following a hearing on
April 23, 2019, the trial court granted the petition for forfeiture and denied
the motion for return of property. The instant timely appeal followed.6
In his only issue on appeal, Appellant challenges the grant of forfeiture
and the denial of his motion for return of the cellular equipment. Our standard
of review is settled. We review only to determine “whether the findings of fact
made by the trial court are supported by substantial evidence, and whether
the trial court abused its discretion or committed an error of law.”
Commonwealth v. Heater, 899 A.2d 1126, 1132 (Pa. Super. 2006) (citation
omitted).
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5 The Commonwealth returned the data stored on the devices to Appellant,
so the only issue on appeal is return of the devices themselves.
6 In response to the trial court’s May 24, 2019 order, Appellant filed a timely
concise statement of errors complained of on appeal on June 6, 2019. The
trial court subsequently issued an opinion.
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Pennsylvania law provides that “things of value used or intended to be
used to facilitate any violation of The Controlled Substance, Drug, Device and
Cosmetic Act” are subject to forfeiture. 42 Pa.C.S.A. § 5802(6)(i)(B). Because
“the law generally disfavors forfeitures,” the Forfeiture Act must “be strictly
construed.” Com. v. $301,360.00 U.S. Currency, 182 A.3d 1091, 1097
(Pa. Cmwlth. 2018) (quotation omitted).7
In a forfeiture proceeding, “the Commonwealth bears the initial burden
of demonstrating, by a preponderance of the evidence, that a substantial
nexus exists between the seized property and a violation of the [Drug] Act.”
Com. v. $6,425.00 Seized from Esquilin, 880 A.2d 523, 529 (Pa. 2005).
“A preponderance of the evidence is tantamount to a ‘more likely than not’
standard.” Id. The Commonwealth may satisfy its burden by circumstantial
evidence, but it must show “more than a mere suspicion of a nexus.”
$301,360.00 U.S. Currency, supra at 1097. If the Commonwealth
establishes a substantial nexus, then the burden shifts to the claimant to prove
that he or she owns the property, lawfully acquired the property, and did not
unlawfully use or possess it. Id.
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7While decisions of the Commonwealth Court are not binding upon us, they
may serve as persuasive authority. See Commonwealth v. Ortega, 995
A.2d 879, 885 (Pa. Super. 2010).
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Here, Appellant contends the Commonwealth failed to establish a
substantial nexus between the seized cellular equipment and the drug
business. See Appellant’s Brief, at 7-11. We agree.
The Commonwealth relies on four points to support its claim it
established a substantial nexus: (1) Appellant called the undercover agent
from a cell phone immediately prior to his arrest; (2) Appellant and Stubbs
used cell phones to coordinate their drug enterprise as a team; (3) Appellant
admitted he used one of the cell phones to text Stubbs; and, (4) all Apple
products are linked, so that any texts regarding the drug business would
appear on all three of the devices. See the Commonwealth’s Brief, at 7; N.T.
Hearing, 4/23/19, at 23. However, the record belies these contentions.
At the hearing, the only evidence presented by the Commonwealth was
the testimony of Agent Edward Rodriguez of the Pennsylvania Attorney
General’s Office. While Agent Rodriguez testified about the underlying
investigation and the firearms, money, and drugs the agent seized from the
persons, vehicles, and homes of Appellant and his co-defendants, he did not
testify about the cellular equipment. N.T. Hearing, 4/23/19, at 3-20. He also
did not testify about the general use of cellular equipment in the drug trade.
See id.
While the Commonwealth claims Agent Rodriguez testified Appellant
used a cellular phone to call the undercover agent immediately prior to his
arrest at the third drug sale that is a misstatement of the record. What Agent
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Rodriguez actually testified was Appellant and Stubbs, in separate vehicles,
were driving to the buy location when, “. . . Eric (sic) Taylor asked Agent
Pugh to move, he then told her to just park over by the Shake Shack Parking
lot.” Id. at 13-14 (emphasis added, parentheses in original).
There is no Eric Taylor involved in this matter. According to Agent
Rodriguez, all the various undercover agents’ communications had been with
Eric Stubbs. See id. at 3-20. There was no testimony any of the agents ever
communicated with Appellant, William Taylor. Given this, it is reasonable to
infer this was a misstatement by Agent Rodriguez and he meant to say Eric
Stubbs, not Eric Taylor. In its decision, the trial court did not find Appellant
ever used his cell phone to contact the undercover agent. See Trial Court
Opinion. 7/30/19, at 10. Thus, the record does not support the
Commonwealth’s claim Appellant used one of the cellular phones to directly
contact an undercover agent.
The Commonwealth also argues Stubbs and Appellant used cell phones
to coordinate their drug business. However, again, the record does not support
this contention.
The Commonwealth did not offer into evidence any cellular records, let
alone any records that showed texts or calls between Stubbs and Appellant or
between Appellant and anyone else regarding the drug business. While Agent
Rodriguez testified extensively about Stubbs’ use of a cell phone to coordinate
the drug buys with the undercover agents, he did not testify about Appellant’s
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use of a cell phone. See N.T. Hearing, at 3-20. Rather, to the contrary, all his
testimony regarding their coordination showed the two met in person, either
in cars or at Appellant’s residence.8 See id. Thus, the Commonwealth has
not shown Stubbs and Appellant used cell phones to coordinate their drug
activities.
The Commonwealth contends Appellant admitted he used one of the
phones to text Stubbs in October 2017. See id. at 23-24. Appellant testified,
and the Commonwealth conceded, he and Stubbs were long-time friends. See
id. at 23. While Appellant admitted he used the silver iPhone to text Stubbs
in October of 2017, there was no testimony about the content of the texts and
no evidence of record to show the texts concerned the drug business. See id.
at 23-24. To the contrary, all the evidence garnered by the Commonwealth
showed the two met in person to coordinate the drug business. See id. at 3-
20.
Lastly, the Commonwealth argued Apple links all of the devices it
manufactures, so any texts Appellant received on one phone would also be
received on the other phone and the watch. However, while the
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8 While the Commonwealth makes much of the “ubiquitous” use of cell phones
in the drug trade, see the Commonwealth’s Brief, at 9, it chose not to present
any testimony regarding this at the forfeiture hearing. Moreover, the record
reflects the cell phones in question were not the “burner” phones commonly
used in the trade, but instead Apple devices that contained personal
photographs and videos. N.T. Hearing, 4/23/19, at 23-24, 34-36.
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Commonwealth made this argument at the forfeiture hearing, it failed to
produce any evidence to support the contention. See id. at 23; 34-36.
In its opinion, the trial court devotes little attention to the cellular
equipment, merely stating it agreed with the Commonwealth’s position and
the record substantially supports its finding without otherwise making specific
findings of fact regarding the cellular equipment or explaining the legal basis
of its decision. Trial Ct. Op., at 14. However, as discussed above, the record
is simply devoid of any information that shows a substantial nexus between
Appellant’s cellular equipment and his drug business. Therefore, the
Commonwealth failed to meet its initial burden and only showed there was “a
mere suspicion of a nexus.” $301,360.00 U.S. Currency, supra at 1097;
see Esquilin, supra at 529. Thus, we are constrained to find the trial court
abused its discretion in granting forfeiture of the cellular equipment. See
Heater, supra at 1132. Accordingly, we reverse the portion of the order of
April 23, 2019, which granted forfeiture of the cellular equipment and we
remand for entry of an order granting Appellant’s motion for return of the
cellular equipment.
Order reversed in part. Case remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/28/20
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