Opinion
No. 745 C.D. 2012
03-01-2013
In Re: The Real Property and Improvements Known as 3522 Vinton Road Appeal of: Commonwealth of Pennsylvania
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
The Commonwealth of Pennsylvania (Commonwealth) appeals from the Order of the Court of Common Pleas of Philadelphia County (trial court) denying the Commonwealth's Forfeiture Petition (Petition) seeking the forfeiture of The Real Property and Improvements Known as 3522 Vinton Road (Property). In support of this appeal, the Commonwealth argues that the trial court improperly shifted the burden during the forfeiture hearing and erred by finding that the evidence was insufficient to establish a nexus between the Property and the illegal drug activity. Discerning no error, we affirm the trial court's Order.
The Commonwealth filed the Petition pursuant to what is commonly referred to as the Controlled Substances Forfeiture Act (Forfeiture Act), 42 Pa. C.S. §§ 6801-6802, with the trial court on April 1, 2008, seeking the forfeiture of the Property owned by Rosemary Grey. (Petition at 1.) The Commonwealth alleged that the Property was used and/or continued "to be used (or intended to be used) to commit, or to facilitate the commission of, violations of The Controlled Substance, Drug, Device and Cosmetic Act" (Drug Act). (Petition at 1.) A forfeiture hearing was held before the trial court on March 1, 2012. In support of its Petition, the Commonwealth presented the testimony of Police Officer Charles Myers, with the FBI Task Force for violent drugs and gangs, and the testimony of Ms. Grey, as if on cross-examination. Ms. Grey testified that she owned the Property at which her daughter, five grandchildren and Damon McCandless, whom she described as her son-in-law, resided. (Hr'g Tr. at 20-21, 25, R.R. at 12a-14a.) Officer Myers testified with respect to the events leading up to McCandless' arrest for allegedly violating the Drug Act and how McCandless' alleged illegal drug activity was connected to the Property. (Hr'g Tr. at 8-19, R.R. at 9a-12a.) The Commonwealth also submitted into the record documentary evidence.
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101 - 780-144.
While the parties referred to McCandless as "David McCandless" during the forfeiture hearing, it appears from the certified record that McCandless' first name is "Damon."
At the conclusion of the hearing, the trial court found that the Commonwealth failed to establish a nexus between the alleged illegal drug activity and the Property. Although not ordered to do so, the Commonwealth filed a statement of errors complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1925(b). The trial court then filed an opinion in support of its decision. The relevant facts that precipitated the filing of the Petition are as follows.
The Commonwealth challenges part of the trial court's findings of fact as not supported by the record because the findings are based upon transcripts relating to the criminal proceedings that were filed against McCandless. These transcripts, the Commonwealth points out, were not introduced at the forfeiture hearing; therefore, the trial court should not have based any findings on the content of the transcripts. In response, Ms. Grey contends that the criminal transcripts were made part of the certified record in this matter and the Commonwealth should have disputed their inclusion at the appropriate time. However, Ms. Grey does not indicate when or where the criminal transcripts were made part of the certified record. Upon review of the certified record, it appears that the Commonwealth is correct. There is nothing in the transcript of the forfeiture hearing pertaining to the submission of the criminal transcripts into the certified record in this matter. Accordingly, we will not consider any findings of fact that are not supported by the record evidence. "It is well settled that an appellate court cannot consider anything which is not part of the certified record in a case." Commonwealth v. Geatti, 35 A.3d 798, 800 (Pa. Cmwlth. 2011) (citing Smith v. Smith, 637 A.2d 622, 623-24 (Pa. Super. 1993)).
Officer Myers received information in March 2008 from an informant indicating that the sale of illegal drugs was occurring in the northeast area of the City of Philadelphia. Acting on this information, Officer Myers set up surveillance of the Property on March 11, 2008, during which he observed McCandless exit the Property carrying a black plastic bag. Officer Myers further observed McCandless get into a blue Lexus and drive to the area of Benner and Torresdale in northeast Philadelphia, where a white male entered McCandless' vehicle for two to three minutes. The white male then exited the vehicle with a black plastic bag and left the area on foot. Officer Myers did not pursue the white male. (Findings of Fact (FOF) ¶¶ 1-3; Hr'g Tr. at 9-10, R.R. at 10a.)
Officer Myers next set up surveillance at the Property on March 12, 2008, and again observed McCandless exit the Property carrying a black plastic bag and drive to the area of Benner and Torresdale. The same white male from the day before approached the driver's side of McCandless' vehicle, where McCandless handed the white male a black plastic bag. The white male then left the area on foot. Officer Myers did not apprehend the white male. (FOF ¶¶ 4-5; Hr'g Tr. at 11, R.R. at 10a.)
On March 14, 2008, the police searched the Property pursuant to a warrant and recovered seven packets stamped "Full Charge," containing .27 grams of alleged heroin, and $538 in U.S. Currency from McCandless' pockets. The police also recovered a silver handgun with a black grip from the front bedroom. Alleged drug paraphernalia, including unused pink Ziploc bags and an alleged rack wrapper, which is commonly used to hold bundles of heroin, were recovered from the second floor front bedroom. The police did not find any drugs in either bedroom or hidden elsewhere on the Property. The packets found in McCandless' pockets were different in color than the unused pink packets found in the second floor front bedroom. The police "did not find drugs, scales, cutting agents, sales records, a [chemical] lab, black plastic bags, or large amounts of cash or paraphernalia on or within the [P]roperty." (FOF ¶¶ 6-9; Hr'g Tr. at 11-14, R.R. at 10a-11a.)
After the search, the police asked McCandless to participate in a controlled buy from a heroin supplier, to which he agreed, but he refused to permit the buy to occur at the Property. The subsequent controlled buy, at a different location than the Property, resulted in the arrest of a woman, who had 30 bundles consisting of 420 packets of alleged heroin on her person. McCandless was not arrested at that time. After McCandless stopped cooperating with the police, he was arrested on March 20, 2008, in the driveway of the Property when he exited his vehicle. In a search conducted after the arrest, the police found a bottle containing Diazepam and a piece of an alleged rack wrapper on McCandless' person. McCandless was later found not guilty of intentional possession of a controlled substance relating to the Diazepam. (FOF ¶¶ 11-12, 14-16; Hr'g Tr. at 16-18, R.R. at 11a-12a.)
Based on the foregoing facts, the trial court determined that the Commonwealth failed to establish a nexus between the Property and the alleged illegal behavior. The trial court concluded as follows:
Because the unidentified white male was never apprehended, Officer Myers never confirmed that Mr. McCandless was selling drugs from the [P]roperty. [Officer Myers] never saw the contents of the bag, and never saw the two men exchange money. . . . Officers never recovered any drugs from within [the] [P]roperty, nor found any evidence to suggest that the [P]roperty was being used to produce or store drugs. The pink Ziploc packets could not be directly connected to Mr. McCandless, and the Commonwealth never elicited testimony establishing that the "second floor front bedroom" belonged to him. Upon searching the house, the officers found no black plastic bags and none of the "usual trappings" of drug dealing. There were no scales, no cutting agents, and no sales records. The officers did not find large amounts of paraphernalia, illegal weapons, hidden cash, or a "chem lab" for packaging or making heroin. The officers did not observe drug use on the [P]roperty, nor enlist a criminal informant to conduct a controlled buy, and there were no other indicia of drug activity, such as intoxicated visitors, brief interactions, loitering, or the presence of known drug offenders.
Moreover, critical parts of the Commonwealth's case occurred off of the [P]roperty. . . . The second search occurred as Mr. McCandless was returning to the [P]roperty from another location. When Mr. McCandless allegedly agreed to set up a controlled buy, he refused to let it happen at the [P]roperty. Even if this Court believed he was selling drugs, the facts show a careful and deliberate attempt to
avoid using the [P]roperty for that purpose. In fact, each time the officers conducted a search, the alleged drugs and paraphernalia were found on Mr. McCandless' person, and not the [P]roperty. Furthermore, the amount of heroin allegedly found on Mr. McCandless, .27 grams, is more indicative of personal use rather than drug sales. The fact that Officer Myers allegedly found a "piece" of a "rack wrapper," also suggests that Mr. McCandless used heroin himself. At most, the evidence indicates that Mr. McCandless purchased or obtained alleged drugs and paraphernalia at some unknown location, and that he was subsequently arrested on or within the [P]roperty. . . . Without further investigation or surveillance of Mr. McCandless' behavior regarding the use of the [P]roperty itself, the facts are more consistent with Ms. Grey's testimony that "[t]here is no drug activity at the [P]roperty."(Trial Ct. Op. at 6-7 (citations omitted).) The trial court also found it compelling that McCandless was never convicted of possessing illegal drugs and that permitting a forfeiture of Ms. Grey's Property would violate the United States and Pennsylvania Constitutions because the forfeiture would be grossly disproportionate to the gravity of the offense. (Trial Ct. Op. at 7-9.) This appeal followed.
"Our review of a forfeiture appeal is limited to determining whether the trial court's findings of fact are supported by substantial evidence and whether it abused its discretion or committed an error of law." Commonwealth v. The Real Property and Improvements Commonly Known as 5444 Spruce Street, Philadelphia, 890 A.2d 35, 38 (Pa. Cmwlth. 2008).
Pursuant to Section 6801(a)(6)(i)(C) of the Forfeiture Act, the Commonwealth may seek the forfeiture of "[r]eal property used or intended to be used to facilitate any violation of [the Drug Act], including structures or other improvements thereon." 42 Pa. C.S. § 6801(a)(6)(i)(C). It is the Commonwealth's burden to establish, "by a preponderance of the evidence, that a nexus exists between the pertinent unlawful activity and the property subject to forfeiture." Commonwealth v. 1992 Chevrolet Seized from Theresa Hill, 844 A.2d 583, 585 (Pa. Cmwlth. 2004). The preponderance of the evidence standard requires the Commonwealth to "show that it is more likely than not that the nexus exists." Commonwealth v. Burke, 49 A.3d 542, 546 (Pa. Cmwlth. 2012). "[T]he trial court considers the totality of the evidence and properly draws logical inferences therefrom to ascertain whether a nexus exists." Commonwealth v. $17,182.00 U.S. Currency, 42 A.3d 1217, 1221 (Pa. Cmwlth.), petition for allowance of appeal denied, ___ Pa. ___, 57 A.3d 72 (2012). It has been held that a property may be forfeited even if no prosecution or conviction occurs. Commonwealth v. $6,425.00 Seized From Esquilin, 583 Pa. 544, 556, 880 A.2d 523, 530 (2005).
It is only after the Commonwealth sustains its burden of proving a nexus between the property and the illegal activity in a forfeiture proceeding, that "the burden of proof shifts to the property owner to disprove the evidence or establish statutory defenses to avoid forfeiture (i.e., the 'innocent owner' defense)." 1992 Chevrolet, 844 A.2d at 585. Section 6801(a)(6)(ii) of the Forfeiture Act states that "[n]o property shall be forfeited . . . to the extent of the interest of an owner, by reason of any act or omission established by the owner to have been committed or omitted without the knowledge or consent of that owner." 42 Pa. C.S. § 6801(a)(6)(ii). Section 6802(j)(3) of the Forfeiture Act places the burden on the owner to establish:
[t]hat [the property] was not unlawfully used or possessed by him. In the event 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 presented.42 Pa. C.S. § 6802(j)(3).
On appeal, the Commonwealth argues that the trial court improperly shifted the burden during the forfeiture hearing. The Commonwealth asserts that the trial court set forth its basis on the record at the conclusion of the forfeiture hearing for its denial of the Petition by stating that the Commonwealth had not:
established the fact that this owner of the [P]roperty, based upon the evidence you supplied with this deed, that this person had knowledge that Mr. McCandless was running, if you will, a drug operation out of that [P]roperty, I don't have that, that's not in the record. The nexus does not exist.(Hr'g Tr. at 34, R.R. at 16a.) The Commonwealth contends the foregoing statement shows that the trial court erred by shifting the burden of proof, thereby requiring the Commonwealth to prove that Ms. Grey knew about the drug sales on her Property in order to establish a nexus between the Property and the illegal heroin sales.
The Commonwealth argues further that the trial court ignored, in its opinion in support of its Order, its stated basis for denying the Petition during the forfeiture hearing and relied instead on different findings of fact that were detrimental to the Commonwealth. In doing so, the trial court unreasonably discounted the undisputed evidence that McCandless cooperated with police and arranged the delivery of 420 heroin packets, which provided the evidentiary link that he delivered heroin himself using the Property as the locus of his business. The Commonwealth contends that this evidence further proves that deliveries of heroin were conducted by McCandless on consecutive days in which he brought a black plastic bag from inside the Property to hand over to the same person each time. The Commonwealth argues that it was unreasonable for the trial court to refuse to draw the inference that McCandless was delivering drugs, and clearly the foregoing evidence shows that the Property was used to facilitate a violation of the Drug Act regardless of whether the delivery took place on the Property or a few miles away. While the trial court states in its opinion that it found the Commonwealth's evidence lacking to prove that McCandless was operating a heroin delivery business from the Property, it is what the trial court stated at the time it announced its decision from the bench that amounts to a finding of fact and not its after-the-fact ruminations. The Commonwealth argues that, for these reasons alone, the trial court's Order should be reversed and the matter remanded for the trial court to apply the proper burden of proof and to apply the law properly to the evidence adduced at trial.
Upon review of the entire transcript of the forfeiture hearing conducted by the trial court in this matter, it is evident that the Commonwealth's primary argument, that the trial court improperly shifted the burden, is based upon the final response from the trial court in a lengthy exchange with the Commonwealth's counsel during closing arguments. The pertinent parts of the exchange regarding whether the Commonwealth established a nexus, were as follows:
MR. WAITE: This is overly simplified. There's not only seven packets, there's paraphernalia, there's pills when he's found back on the [P]roperty.
THE COURT: I understand that.
MR. WAITE: There's a lot more found on that [P]roperty with him there and with the owner knowing he's going back there and with her knowing that -
THE COURT: There were no scales, there was no agents used, [and] there's cutting agents used in cutting drugs, in selling drugs, none of that was found in the [P]roperty. You have seven packets, you have pills, and you have some paper. That's what you got.
MR. WAITE: And you have paraphernalia and everything else to go along with it.
THE COURT: All right.
MR. WAITE: But that's enough, you don't need to have everything there. In fact, the case law -
THE COURT: No, the case law says there has to be a nexus between the drug activity and the [P]roperty, a nexus.
MR. WAITE: But the case law says you don't even need to find drugs there, you can establish a nexus without finding drugs there.
THE COURT: Clearly, if you can show through the facts you can do that. However, a nexus means there has to be a connection.
In this particular case, I've heard the testimony. I have received all of the documents that have been marked into evidence, I have a conviction of an individual regarding seven packets of drugs —
MR. TINARI: Actually, he was found not guilty.
THE COURT: Well, I'm sorry, even if I wanted to convict him, fine, but I'm saying he had seven packets of heroin on him in the [P]roperty when he was arrested.
MR. WAITE: Right.
THE COURT: And then you want to say, okay, there [were] some other pills, that's not enough in terms of creating a nexus with this particular [P]roperty.
What more would we need? We would need to show that there was some other evidence or indicia that this person was selling drugs out of this particular [P]roperty, if there were scales, there was some type of chemical or cutting agent there used to cut narcotics, I don't have any of that, I don't have anything, and the testimony from the officer himself was that when he arrested the person, he had the drugs on him, he had them on him.(Hr'g Tr. at 31-34, R.R. at 15a-16a.)
MR. WAITE: Correct.
THE COURT: And then his testimony was that he agreed to cooperate, and when he agreed to cooperate, he had agreed to take him to several other properties which he had been, he had knowledge about some information regarding drugs. Okay, he stopped cooperating, when they came back they arrested him for drugs on him again, and this time one packet, there was nothing else in the [P]roperty.
MR. WAITE: But, Your Honor, at the time they arrested him, he's back there with the fact that the owner's aware he's still residing there.
THE COURT: But you haven't established the fact that this owner of the [P]roperty, based upon the evidence you supplied with this deed, that this person had knowledge that Mr. McCandless was running, if you will, a drug operation out of that [P]roperty, I don't have that, that's not in the record. The nexus does not exist.
The foregoing exchange shows that the trial court did not improperly shift the burden during the forfeiture proceedings. The trial court was well aware that the Commonwealth had the burden to establish a nexus. Moreover, we note that it was actually the Commonwealth that linked the issue of whether Ms. Grey, as the owner of the Property, continued to permit McCandless to reside there while purportedly knowing about the alleged drug activity, in an attempt to strengthen its evidence. However, for the reasons articulated by the trial judge, the Commonwealth did not prove a nexus based on the evidence and facts presented, and it failed to rebut Ms. Grey's testimony that drug activity was not occurring on the Property. Accordingly, we conclude that the trial court did not improperly shift the burden of proof to the Commonwealth.
In addition, the exchange between the trial judge and the Commonwealth's counsel during the forfeiture hearing also shows that the trial court did not ignore all of the evidence presented by the Commonwealth, including McCandless' initial agreement to participate in a controlled buy off the Property. While that controlled buy may have established that McCandless had the ability to purchase 420 packets of heroin, there was no evidence of whether heroin packets were in the black plastic bags that McCandless was carrying when he exited the Property on March 11 and 12, 2008. Thus, the trial court did not err in not drawing the inference, based on the controlled buy, that McCandless was actually running a drug delivery business from the Property. As found by the trial court, every time the police found illegal drugs they were small amounts on McCandless' person and the police did not find any drugs, black plastic bags, or any of the "usual trappings" of drug dealing within the Property. (Trial Ct. Op. at 6.) Simply put, based upon the evidence presented in this case, the trial court did not err by finding that the Commonwealth failed to meet its burden of proving, by a preponderance of the evidence, that a nexus existed between the alleged illegal drug activities and the Property.
We do not question that the Commonwealth has a difficult job in trying to eradicate the ills of the drug trade from neighborhoods in our cities and the value of the remedy of civil forfeiture in accomplishing this task; however, the laudatory purpose of the Commonwealth's endeavors does not relieve it from having to prove, before taking a person's house, that the nexus exists between the house and violations of the Drug Act.
For the foregoing reasons, the trial court's Order is affirmed.
The Commonwealth also argues that the trial court erred by addressing the excessive fines defense, because it was not litigated below, and in considering the fact that McCandless was not convicted of any drug related crime because such consideration has no bearing on forfeiture of a property used to facilitate a violation of the Drug Act. However, we need not address these arguments because of our resolution of the other issues. --------
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, March 1, 2013, the Order of the Court of Common Pleas of Philadelphia County entered in the above-captioned matter is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge