Opinion
No. 2321 C.D. 2008.
Submitted: June 19, 2009.
Filed: July 23, 2009.
BEFORE: SMITH-RIBNER, Judge; LEAVITT, Judge; McCLOSKEY, Senior Judge.
OPINION NOT REPORTED
Jacob Christine (Christine) appeals pro se from an order of the Court of Common Pleas of Lehigh County (trial court), which granted a petition for condemnation and forfeiture filed by the Commonwealth seeking to have forfeited $3,259.00 seized pursuant to a search warrant conducted in a hotel room in which Christine was staying and in which law enforcement officers also found more than eighty-two grams of cocaine and 128 grams of marijuana. We affirm the trial court.
The Commonwealth filed its forfeiture petition on July 11, 2008, to which Christine filed an answer on August 18, 2008. The case proceeded with a hearing before the trial court. At this hearing, the Commonwealth presented the testimony of Sergeant Michael Faulkner of the Allentown Police regarding the circumstances surrounding the execution of the search warrant and the subsequent seizure of the money.
The trial court summarized the facts as follows:
On February 22, 2007, the Defendant was staying at the Super 8 Motel, room 126, on Airport Road, Lehigh County, Pennsylvania. Information was received by the Allentown Police Department that a shooting had occurred at said motel. Consequently, all residents of the motel were requested to vacate the premises so that the Allentown Police Department could confirm that the rooms were safe for occupancy. A search warrant was subsequently procured for room 126 . . . by Sergeant Michael Faulkner. . . . During the execution of the search, Sergeant Faulkner found [the above-noted drugs] in a black backpack located in the coat area of the motel room. Sergeant Faulkner also seized $3,259.00 in United States currency from the motel refrigerator. . . . Because of the substantial amount of drugs found in the Defendant's motel room, the Defendant was charged with Possession With Intent to Deliver. On June 6, 2008, the Defendant entered a plea of guilty to Possession with Intent to Deliver and was sentenced . . . to two and a half . . . years to five . . . years in a state institution.
(Trial Court Opinion at 2).
Christine testified regarding the source of the money; however, although he stated that he had earned the money working at some jobs, he offered no evidence supporting his testimony or indicating that the money came from any source other than drug-related activity occurring in his hotel room.
The trial court noted that, in quasi-criminal forfeiture proceedings, the Commonwealth bears the burden to establish by a preponderance of evidence that a nexus exists between the property sought to be forfeited and a violation of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101 — 780-144. The trial court concluded that the Commonwealth had satisfied its burden of proof and that Christine had failed to offer any credible or supportive evidence showing that he was in possession of the $3,259.00 through lawful means.
In this appeal, Christine raises the following issues: (1) whether the money was seized pursuant to a lawful search warrant; (2) whether he was entitled to a jury trial in the forfeiture action; and (3) whether the Commonwealth satisfied its burden of proof.
This Court's standard of review in an appeal from a trial court's decision granting a forfeiture petition is limited to determining whether necessary factual findings are supported by substantial evidence and whether the trial court erred as a matter of law or abused its discretion. Commonwealth v. $310,020 in United States Currency, 894 A.2d 154 (Pa.Cmwlth.), petition for allowance of appeal denied, 589 Pa. 723, 907 A.2d 1104 (2006).
Christine first argues that the trial court erred by precluding him from asking additional questions regarding the constitutionality of the seizure and by failing to conclude that the money seized constitutes "fruit of the poisonous tree." Although decisions of our courts support such a proposition, for the reasons that follow, we disagree that the exclusionary doctrine applies in this case.
See Commonwealth v. McJett, 811A.2d 014 (Pa.Cmwlth. 2002),petition for allowance of appeal denied, 574 Pa. 749, 829 A.2d 1158 (2003) (noting that, because there is an underlying penal purpose for forfeiture proceedings, the exclusionary rule is applicable).
Christine relies upon a decision of our Supreme Court, Commonwealth v. Fontanez, 559 Pa. 92, 739 A.2d 152 (1999), to argue that where evidence is obtained by virtue of an invalid search, the evidence obtained in the search cannot be forfeited. However, the facts in Fontanez are distinguishable from the facts in this case. Fontanez had been driving at 8:30 in the evening in his neighborhood when an officer stopped him. The officer, who had seen no activity suggesting that Fontanez had been or was involved with criminal drug activity, saw an open bag containing money in Fontanez's car and seized the bag; however, no charges were ever filed against Fontanez. Fontanez filed a motion for return of his property, and the Commonwealth, during a hearing on Fontanez's motion before the court of common pleas, made an oral motion seeking forfeiture of the money as contraband. During the hearing, the officer testified that he was familiar with Fontanez's family and their involvement in drug activity. He also testified that the stop occurred in an area known for drug activity and that these were the reasons he stopped the vehicle, despite the fact that he had seen no possible signs of drug transactions occurring.
The court of common pleas denied Fontanez's motion for return of his property, but granted the Commonwealth's motion for forfeiture. Fontanez appealed to this Court, but we affirmed the decision and order of the court of common pleas. On appeal, our Supreme Court concluded that the Commonwealth had failed to present sufficient evidence to sustain its burden to prove that the money was contraband. First, the Court noted that, unlike other cases where property had been deemed properly seized and retained, Fontanez was never charged with a crime. Further, the Court indicated that the reasons offered by the Commonwealth, namely the large amount of money, the time of the day of the stop and Fontanez's failure to explain the source of the money, which allegedly gave rise to reasonable suspicion on the part of the officer to believe that the money was related to unlawful activity, were insufficient to support a conclusion that the money was contraband. The Court further noted that Fontanez had no duty to provide an explanation as to what was the source of the money.
In this case, the testimony of Sergeant Faulkner indicated that Detective Romano obtained a search warrant for room 126 after the authorities received information indicating that a shooting occurred at the motel. Sergeant Faulkner described the search, and then responded to questions Christine posed to him as follows:
Sergeant Faulkner testified that the police were responding to a report of two gunshot victims.
Q. How many times did you guys enter room 126 before the warrant was obtained?
A. The entire hotel was cleared by members of the Emergency Response Team due to the shooting incident and the lack of knowledge if the suspected shooter was still on the scene, still in possession of a weapon. And for the safety of all the civilians, every single room of the entire hotel was evacuated and the people were taken to Lanta buses that were brought. So there were officers in room 20 — 126 prior to the execution of the search warrant. However, that was to clear the room due to the active shooter incident.
Q. Did you have any reason to believe that there was anyone in the hotel in immediate danger at the time that this room was searched?
A. As I stated earlier, when ERT members arrived we were unsure if the shooter was still on the scene, if —
. . . .
A. If the shooter was still on the scene, still in possession of a weapon, if there was any danger to any of the civilians located in the hotel. So, that's why we took the measures we took, by going through the hotel room by room.
(Commonwealth Brief, Exhibit B, Notes of Testimony at 6-7).
The trial court found Sergeant Faulkner's testimony credible. Unlike the facts in Fontanez, an emergency situation involving two gunshot victims and an unknown assailant existed at the time the police first entered room 126. This first entry was simply to clear the room, followed by a more thorough search after police had obtained the necessary warrant. Christine indicated during the hearing before the trial court that he would have liked to question another officer involved in the search, Ralph Romano, who apparently found the room card in his pocket. However, Mr. Romano was not present at the hearing. We note that, if Christine wanted to question this witness as a means to probe the nature of the events that occurred, he should have affirmatively sought, via a subpoena, to have him appear as a witness. Christine has not set forth any facts or argument in his brief that provides support for the proposition that the Commonwealth lacked probable cause to obtain and execute the search warrant.
Christine's brief lacks detail as to which witness the trial court precluded him from asking questions. Although the notes of testimony suggest that the trial court sought to move the inquiry to the issue of whether or not there was a nexus between the money and illegal activity, the trial court nowhere specifically precluded Christine from asking questions of Sergeant Faulkner. Rather, the hearing colloquy suggests that, when Christine learned that Mr. Romano was not available as a witness, he asked if he could "obtain" him. The trial court proceeded in a different direction rather than respond to Christine's question, but Christine never pursued either his request to obtain Mr. Romano or his line of questioning with Sergeant Faulkner. While we recognize the difficulties pro se litigants have in representing themselves, we note here that persons who elect to represent themselves in court run the risk that their lack of knowledge and experience may affect their likelihood of a positive outcome.
We note that Christine also argues that the forfeiture is invalid because the Commonwealth allegedly obtained his guilty plea illegally. Although Christine asserts that he has sought to challenge his guilty plea on this basis, we note that the courts have concluded that a conviction is not a necessary element in a forfeiture case. See, e.g.,Commonwealth v. 502-504 Gordon Street, 607 A.2d 839, 842 (Pa.Cmwlth. 1992), affirmed, 535 Pa. 515, 636 A.2d 626 (1994). Therefore, whether or not Christine was properly convicted is not relevant to the outcome here.
Christine next argues that the forfeiture hearing was invalid because the trial court, rather than a jury, acted as fact-finder. However, the trial court issued an order directing Christine to file a concise statement of matters complained of on appeal, specifically noting that any issue not included would be deemed waived. Christine did not include this issue as one of the matters he wished to complain of on review. Consequently, because he failed to raise this issue, the issue is waived. See Pa. R.A.P. 1925(b)(4)(vii); Colombari v. Port Authority of Allegheny County, 951 A.2d 409 (Pa.Cmwlth. 2008). Further, on the merits of this issue, we note that the authority upon which Christine relies, Commonwealth v. $1,400.00, 667 A.2d 452 (Pa.Cmwlth. 1995), stands only for the proposition that, when factual issues exists in a forfeiture action, a property owner has the right to a jury trial if he requests one. Our review of the record fails to reveal a request by Christine for a jury trial.
We note that, in its brief, the Commonwealth did not directly respond to the first two arguments raised by Christine.
Christine's final argument is that the trial court erred in concluding that the Commonwealth carried its burden to establish its right to forfeiture. In a forfeiture case, the Commonwealth bears the initial burden to demonstrate that a nexus exists between the property sought to be forfeited and unlawful activity. Shapley v. Commonwealth, 615 A.2d 827 (Pa.Cmwlth. 1992). If the Commonwealth establishes such a connection between the property and the unlawful activity, the owner then has the burden to rebut the presumption that the money is connected to the unlawful activity through the submission of evidence showing that he is the actual owner of the money, that he obtained it in a lawful manner and that he did not unlawfully use or possess the money. Id.; see also Section 6802(j) of the Judicial Code, commonly referred to as the Drug Forfeiture Act, 42 Pa. C.S. § 6802(j). The Commonwealth offered evidence of Christine's guilty plea, the existence of a quantity of illegal drugs in the room in which he was staying and more than $3,000.00 in United States currency. This evidence was sufficient to satisfy the Commonwealth's burden and Christine did not offer any credible evidence to support his claim that the money was income saved from previous jobs. Consequently, Christine failed to rebut the presumption that the money was related to the illegal drug activity that occurred in the hotel room where he was staying.
Accordingly, we affirm the order of the trial court.
ORDER
AND NOW, this 23rd day of July, 2009, the order of the Court of Common Pleas of Lehigh County is affirmed.