MEMORANDUM OPINION BY PRESIDENT JUDGE LEAVITT FILED: October 23, 2017 Isaac Bilal Pearson, pro se, appeals an order of the Court of Common Pleas of Lehigh County (trial court) that granted the Commonwealth of Pennsylvania’s motion for forfeiture of $905 in cash. The Commonwealth’s motion alleged that the cash was contraband derived from promoting prostitution, 18 Pa. C.S. §5902(b)(3),1 a crime for which Pearson was convicted. The Commonwealth asserted that Pearson’s conviction subjected the cash to common law forfeiture. After an evidentiary hearing, the trial court granted the motion. Because the forfeiture was neither initiated under nor authorized by statute, we reverse.

Notes of Testimony, 4/19/2016, at 6 (N.T. ___). On cross-examination, Krasley acknowledged that A.S.’s statement to Krasley was the only evidence connecting the $905 seized from Pearson to the crime of promoting prostitution. A.S. did not testify. Pearson testified to support his contention that he had lawfully acquired the cash. On March 3, 2015, he received a college loan of $2,360.40. He was also collecting unemployment compensation benefits; the last check he received was on February 4, 2015. Pearson testified that he withdrew $500 from his bank account at TD Bank on December 23, 2014, and another $200 on March 10, 2015, which was two days prior to his arrest. He explained that he carried cash because he “[did not] like to use a debit card often.” N.T. at 15. Pearson testified that he has never met A.S. and he “[has not] heard anything about her since the day that [he] was arrested.” N.T. at 9-10. The Commonwealth requested the trial court to take judicial notice of Pearson’s conviction and argued that the $905 was derivative contraband subject to common law forfeiture. N.T. at 4; 17. The trial court granted the Commonwealth’s motion for forfeiture, finding that “the $905.00 in United States currency was used or intended to be used to facilitate violation of the following: 18 Pa. C.S. §5902(b)(3) Promoting Prostitution.[ ]” C.R., Item No. 10, Trial Court Order. Pearson appealed.^[2] In its PA. R.A.P. 1925(a) opinion,3 the trial court explained: Here, there was a conviction of record tying the $905.00 to unlawful activity. The Commonwealth presented evidence – namely that the money was gained through prostitution and handed over to Pearson – that established the cash was more likely than not used to facilitate prostitution. I[n] making this determination, I considered Pearson’s testimony and documents he presented, and afforded them the weight I believed they deserved. Since the Commonwealth met its burden by a preponderance of the evidence, I did not err in granting the motion for forfeiture and condemnation….

Trial Court 1925(a) opinion at 3; C.R., Item No. 11 at 3 (emphasis added). On appeal,4 Pearson argues that the trial court erred in ordering that the $905 seized from his person be forfeited because no controlled substance or contraband was recovered at the time of his arrest. Pearson Brief at 9. He further argues that the trial court’s finding that the $905 was used to facilitate prostitution is “against the great weight of the evidence.” Id. at 7. Pearson points out that the accuser, A.S., neither appeared at the hearing nor testified,5 and he “can produce documentation as to exactly where the currency derives from.” Id. Pearson argues that his due process rights were violated as a result.

From the beginning, the Commonwealth asserted, both in its motion for forfeiture and at the hearing, that the $905 was connected to Pearson’s conviction for promoting prostitution and, therefore, forfeitable at common law. The trial court’s Rule 1925(a) opinion accepted this legal authority for the Commonwealth’s forfeiture motion, stating:

The Commonwealth’s motion for forfeiture and condemnation is not based on a specific statute authorizing forfeiture, such as the Controlled Substance, Drug, Devices and Cosmetic Act,[6] 35 P.S. §780-113 et seq. and 42 Pa. C.S. §6801. Rather, it is based on the principle of common-law forfeiture, which allows the forfeiture of derivative contraband.

Trial Court 1925(a) opinion at 2; C.R., Item No. 11 at 2. This Court has held that common law forfeiture does not exist in Pennsylvania. To the contrary, forfeiture “was never incorporated into or became part of our Commonwealth’s common law tradition.” Commonwealth v. Irland, 153 A.3d 469, 471 (Pa. Cmwlth. 2017), appeal granted, __ A.3d __ (Pa., 97 MAL 2017, filed July 18, 2017). In Irland, an individual displayed his handgun to the driver through the rear windshield of his vehicle, in an attempt to induce the driver behind him to increase the distance between the two vehicles. He entered a guilty plea to the summary offense of disorderly conduct, and the Commonwealth sought forfeiture of the handgun based on a theory of common law forfeiture. The trial court granted the Commonwealth’s motion. This Court reversed, holding:

[T]he Commonwealth’s organic law, namely Article 9, Sections 18 and 19 of the Pennsylvania Constitution of 1790, denounces and effectively abolishes any notion of common law forfeiture 6 Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§780-101 – 780-144. At all times relevant to this appeal, the Controlled Substances Forfeiture Act was codified at 42 Pa. C.S. §§6801-6802. These sections were repealed by the Act of June 29, 2017, P.L. 247 (effective July 1, 2017). The Forfeiture Act is now codified at 42 Pa. C.S. §§5801-5808 (effective July 1, 2017).

and that the predominate, if not unanimous, weight of the authority has determined that common law forfeiture never made it across the seas to America. Therefore, absent a statute that specifically authorizes the forfeiture of property, the Commonwealth and the courts have no authority to seek and order forfeiture of so-called derivative contraband.

Irland, 153 A.3d at 471 (emphasis added). Here, the Commonwealth sought forfeiture of the $905 based on Pearson’s conviction of promoting prostitution under 18 Pa. C.S. §5902(b)(3). However, the Crimes Code does not authorize forfeiture as a sanction for this criminal conviction. Because there was no statutory authorization for the forfeiture of the $905 seized from Pearson, the trial court erred in granting the forfeiture. Aware of this Court’s holding in Irland, the Commonwealth urges this Court to affirm the trial court “based upon a different rationale.” Commonwealth Brief at 8. The Commonwealth requests that we affirm the forfeiture under Section 3021 of the Crimes Code, 18 Pa. C.S. §3021. Section 3021(a)(2) authorizes the forfeiture of cash seized in connection with human trafficking; it provides, in pertinent part, as follows:

(a) General rule. --The following shall be subject to forfeiture to this Commonwealth, and no property right shall exist in them: *** (2) All assets within this Commonwealth: (i) Of an individual, entity or organization engaged in planning or perpetrating an act which violates section 3011 or 3012. (ii) Acquired or maintained with the intent and for the purpose of supporting, planning, conducting or concealing an act which violates section 3011 or 3012. (iii) Derived from, involved in or used or intended to be used to commit an act which violates section 3011 or 3012.

18 Pa. C.S. §3021(a)(2) (emphasis added).7 Pearson was convicted of human trafficking pursuant to 18 Pa. C.S. §3011. However, the Commonwealth’s forfeiture motion was based solely on his conviction of promoting prostitution under 18 Pa. C.S. §5902(b)(3), which is an independent and separate crime. The Commonwealth did not allege in its motion for forfeiture that the seized cash was connected to human trafficking or otherwise subject to forfeiture under Section 3021 of the Crimes Code. See 18 Pa. C.S. §3021(e)(2).8 Nor did the Commonwealth present such evidence at the hearing. Its sole witness, Detective Krasley, testified only about his prostitution investigation.

The statements by A.S. that Detective Krasley recounted during his testimony were not related to human trafficking. Section 3021(k) of the Crimes Code provides that, to forfeit property derived from or involved in human trafficking, the Commonwealth carries the burden of proving “that the property in question was unlawfully used, possessed or otherwise subject to forfeiture under this section[.]” 18 Pa. C.S. §3021(k). The trial court found that the $905 “was more likely than not used to facilitate prostitution.” Trial Court 1925(a) opinion at 3; C.R., Item No. 11 at 3. Because the Commonwealth did not allege, and the trial court did not find, that the $905 was connected to human trafficking, this Court cannot affirm the trial court based upon Section 3021 of the Crimes Code. It would also require this Court to substitute its own factual findings for those made by the trial court. This we cannot do. Township of Salem v. Miller Penn Development, LLC, 142 A.3d 912, 922 (Pa. Cmwlth. 2016) (“this Court may not reweigh the evidence or substitute its judgment for that of the trial court.”). In short, the alternative ground for affirmance asserted by the Commonwealth is not legally cognizable. Because common law forfeiture does not exist in Pennsylvania, and there is no statute authorizing forfeiture as a penalty for promoting prostitution, we reverse the order of the trial court.

_____________________________________ MARY HANNAH LEAVITT, President Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania : : v. : No. 203 C.D. 2017 : Isaac B. Pearson, : Appellant :

ORDER

AND NOW, this 23rd day of October, 2017, the order of the Court of Common Pleas of Lehigh County in the above-captioned case, dated April 19, 2016, is hereby REVERSED. ______________________________________ MARY HANNAH LEAVITT, President Judge