Opinion
No. 304 C.D. 2012
10-15-2012
Commonwealth of Pennsylvania v. $1,015.00 US Currency/Coin Appeal of: Steven Marko
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Steven Marko appeals pro se from the order of the Court of Common Pleas of Lebanon County denying his Motion for Return of Property, $1015 U.S. Currency. After review, we affirm.
The record reveals the following relevant facts. On September 22, 2009, Detectives Adam Saul and Ryan Mong of the Lebanon County Drug Task Force conducted a controlled drug buy in which Marko sold/delivered marijuana to a confidential informant for the sum of $100. Thereafter, Marko encountered Police Officer Eric Sims of the Lebanon City Police Department on October 9, 2009, in the 700 block of Church Street during a traffic stop. Officer Sims found a metal weighing scale and $1065 in cash on Marko's person, as well as marijuana in the vehicle. Marko was charged with numerous offenses under The Controlled Substance, Drug, Device and Cosmetic Act. The detectives determined that $50 of the cash seized was from the drug task force funds used in the controlled delivery on September 22, 2009.
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101 - 780-144.
The $50 was therefore not part of the forfeiture petition.
The Commonwealth filed a Petition for Forfeiture pursuant to Section 6801 of the Judicial Code, 42 Pa. C.S. § 6801, for the $1015 in U.S. currency seized from Marko. The Commonwealth alleged in paragraph four of the petition that the currency was seized "on or about September 22, 2009 . . . pursuant to the pending charges against . . . Marko . . . by Detectives Adam Saul and Ryan Mong . . . ." Original Record, Item 2 at 3. Attached to the petition was the Affidavit of Probable Cause, which set forth the facts of the September 22, 2009 drug buy and the subsequent arrest of Marko and seizure of the $1065 cash on October 9, 2009. The trial court entered a rule to show cause why the petition should not be granted, directing Marko to respond within 30 days of service. A copy of the Petition and Rule was mailed to Marko by first class mail at 737 Union Street, Lebanon, PA, 17046 on November 27, 2009. On January 20, 2010, Marko was personally served with the Rule to Show Cause by Lebanon County Detective Jason Cleck. When there was no response filed by Marko after more than 30 days, the Commonwealth filed a Motion to Make Rule Absolute, which was granted by the trial court on February 23, 2010. No appeal from this decision was taken. On November 4, 2011, nearly twenty months after judgment became final, Marko filed a motion for return of property, which the trial court denied. Marko appealed that order to the Superior Court, which transferred the matter to this Court.
Marko is currently incarcerated at SCI-Retreat, serving a two to five year sentence for his conviction on the drug charges. See Marko's Petition for Return of Property, Original Record, Item 4 at 1. According to the Commonwealth, Marko was sentenced in his criminal case on August 11, 2010. Commonwealth's Brief at 4.
Although Marko alleges he was never served with the petition for forfeiture, the record reflects, and the trial court found as fact, that Marko was served.
On appeal, Marko argues that he is entitled to relief for two reasons: first, because the Commonwealth failed to notify him that it had initiated forfeiture proceedings; and second, because the Commonwealth committed perjury in its filing when it gave an incorrect date in its forfeiture petition when the cash was seized from him.
The Commonwealth argues that Marko has waived any challenge to the forfeiture proceeding because he failed to properly challenge the forfeiture and because he failed to appeal the trial court's order forfeiting the cash, citing Commonwealth v. One 1990 Dodge Ram Van, 751 A.2d 1235 (Pa. Cmwlth. 2000). We agree.
Based upon the issue presented, this court's review is limited to determining whether the trial court committed an error of law. Commonwealth v. Three Hundred Ten Thousand Twenty Dollars, 894 A.2d 154 (Pa. Cmwlth. 2006).
When the owner of property fails to contest a forfeiture action, the petition is granted by the court, and no appeal is taken, the forfeiture becomes final, and the doctrine of res judicata prevents the matter from being subsequently litigated. Commonwealth v. Perez, 941 A.2d 778 (Pa. Cmwlth. 2008); Commonwealth v. One 1990 Dodge Ram Van, 751 A.2d 1235 (Pa. Cmwlth. 2000). As we stated in Commonwealth v. Perez, 941 A.2d 778, 780 (Pa. Cmwlth. 2008), the doctrine of res judicata applies to bar a subsequent suit on the same claim after the relevant appeal period has expired. In order for res judicata to apply, there must be a concurrence of four conditions, all of which are met here: (1) identity of issues; (2) identity of cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality or the capacity of the parties suing or being sued. Id. Finally, the doctrine of res judicata provides finality to the proceedings. Id. at 781 (internal citations omitted).
Accordingly, Marko was precluded from relitigating the forfeiture in the context of his motion for return of property.
We may affirm the decision of a trial court if the result is correct on any ground, apart from the ground relied upon by the trial court itself. Merlin v. Commonwealth, 455 A.2d 789 (Pa. Cmwlth. 1983). --------
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 15th day of October, 2012, the order of the Court of Common Pleas of Lebanon County in the above-captioned matter is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge