IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania
v.
Raymond R. Hillibush,
Appellant
BEFORE:
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Nos. 831 and 832 C.D. 2011
SUBMITTED: August 5, 2011
HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE LEADBETTER
FILED: September 2, 2011
Appellant, Raymond R. Hillibush, proceeding pro se, appeals from
the decision of the Court of Common Pleas of Schuylkill County (common pleas),
which denied his petition for return of property and ordered the subject property to
be condemned and forfeited to the use of the Commonwealth.1 We affirm.
Appellant filed a petition pursuant to Pennsylvania Rule of Criminal
Procedure 5882 seeking the return of cash that was confiscated by the Mahanoy
1
Appellant originally filed two appeals from the same order in the Superior Court. By order
dated May 6, 2011, the appeals were transferred to this Court. The appeals docketed at Nos. 831
C.D. and 832 C.D. 2011 were consolidated on May 17, 2011 by order of this Court.
2
Pa.R.Crim.P. 588(A) provides:
A person aggrieved by a search and seizure, whether or not
executed pursuant to a warrant, may move for the return of the
property on the ground that he or she is entitled to lawful possession
(Footnote continued on next page…)
City Police on February 14, 2009. Following a visit to the house of a known drug
dealer, Appellant was stopped by Corporal Michael Dissinger on suspicion of
operating a motor vehicle without a license. Corporal Dissinger also possessed the
knowledge that an active arrest warrant had been issued for Appellant. During the
vehicle stop, Corporal Dissinger conducted a complete body search of Appellant
and discovered a syringe, a spoon containing residue, 21 bags of heroin, and $203
in cash.
Subsequently, Appellant pleaded guilty to possession with intent to
deliver a controlled substance, possession of a controlled substance, and possession
of drug paraphernalia.
On November 3, 2010, Appellant filed a motion for return of property
seeking the return of $320, which he alleged was in his possession at the time of
his arrest. Appellant alleged that the cash was the net proceeds from his income
tax refund of $1058.32 after paying his rent and power bill. Common pleas held a
hearing on November 23, 2010. Corporal Dissinger testified on behalf of the
Commonwealth and Appellant testified on his own behalf. Common pleas denied
Appellant’s petition to return property and further ordered that the money should
be condemned and forfeited to the use of the Commonwealth pursuant to Section
6801 of the Judicial Code, as amended, 42 Pa. C.S. § 6801, commonly known as
the Drug Forfeiture Act. Common pleas determined that the money was derivative
contraband. In addition, common pleas found that the Commonwealth had
established by a preponderance of the evidence that a nexus existed between the
money found on Hillibush and his illegal drug activity and, thus, the money was
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(continued…)
thereof. Such motion shall be filed in the court of common pleas for
the judicial district in which the property was seized.
2
presumptively forfeited. Common pleas did not find Appellant’s explanation of
the use and intended use of the money to be creditable and determined that
Appellant had not rebutted the presumption of forfeiture. This appeal followed.
Appellant argues that common pleas erred in denying his petition
because the Commonwealth failed to show any connection between the seized
money and the illegal activity. The Commonwealth asserts that it established the
requisite nexus and that Appellant failed to rebut the presumption of forfeiture
because common pleas did not find Appellant’s testimony regarding the intended
use of the money credible.
After carefully reviewing the record, the briefs of the parties and the
relevant law, this Court finds that the issue raised by Appellant is accurately and
sufficiently addressed in the opinion of the Honorable Jacqueline L. Russell of the
Court of Common Pleas of Schuylkill County filed December 14, 2010, in
Commonwealth v. Hillibush, No. 696-09. Accordingly, this Court affirms common
pleas’ order on the basis of that opinion.
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BONNIE BRIGANCE LEADBETTER,
President Judge
3
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania
v.
Raymond R. Hillibush,
Appellant
:
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:
:
Nos. 831 and 832 C.D. 2011
ORDER
AND NOW, this 2nd day of September, 2011, the order of Court of
Common Pleas of Schuylkill County is hereby AFFIRMED.
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BONNIE BRIGANCE LEADBETTER,
President Judge
