Opinion
No. 5 C.D. 2013
05-09-2014
Commonwealth of Pennsylvania v. $9,570.00 US Currency Appeal of: Steven O. Justo
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge (P.) HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Steven O. Justo (Justo) appeals from an order of the Court of the Court of Common Pleas of Cumberland County (common pleas court) that denied Justo's motion for return of property and granted the Commonwealth of Pennsylvania's (Commonwealth) petition for forfeiture.
On April 6, 2011, State Trooper Michael Bruce (Trooper Bruce) conducted a vehicle stop of a Ford Expedition because the vehicle was travelling approximately ten miles below the speed limit (65 mph) in the left-hand lane of Interstate 81 for five miles. Hearing Transcript, October 11, 2012 (H.T.), at 7; Reproduced Record (R.R.) at 56a. The vehicle had North Carolina license plates. The operator of the vehicle, Justo, had no driver's license, registration or proof of insurance for the vehicle and identified himself as "Guillermo Reynoso." H.T. at 11; R.R. at 60a. Justo stated that he was travelling from New York to Alabama to return the vehicle to his sister. Trooper Bruce became suspicious because Justo had no identification, no visible luggage, a single key in the ignition, and a reconfigured center console. Trooper Bruce suspected that Justo might be dealing in drugs or firearms and he was questioned about whether he had any guns, drugs or large quantities of cash on him or in the vehicle. Justo denied possession of any such items and allowed Trooper Bruce to search the vehicle. Corporal Dan Housel (Cpl. Housel) arrived with a K-9 dog which "alerted" between the second and third row of seats. A search revealed $8,490 in cash contained in a plastic bag hidden underneath the carpet on the rear floor board. A subsequent search of Justo revealed additional $1,080. H.T. at 14; R.R. at 63a. Justo was fingerprinted and identified by the Commonwealth through a computerized criminal background check. The computerized background check listed Justo's address as 2075 Wallace Avenue, Bronx, New York 10453. A Criminal Complaint was filed by the Pennsylvania State Police. Justo was charged with making false reports, falsely incriminating another, falsely identifying himself to law enforcement and various traffic violations.
On May 9, 2011, Justo pled guilty to false identification to law enforcement and three Vehicle Code violations. The false report charge was withdrawn. Justo was sentenced to one month time served.
On April 14, 2011, an Ion Scan test was conducted on the currency seized from Justo's vehicle which indicated that there was a high level of cocaine present. The amount of cocaine on the currency was 4.79 times the casual contact level of cocaine for Pennsylvania and 3.04 times the casual contact level of cocaine for New York.
On July 20, 2011, the Commonwealth petitioned for forfeiture pursuant to the Controlled Substances Forfeiture Act (Forfeiture Act), 42 Pa.C.S. §§6801-6802, in the common pleas court at No. CP-21-MD-585-2011, with a Rule to Show Cause issued upon Justo by the Honorable Albert H. Masland (Judge Masland).
Pursuant to Section 6802(b) of the Forfeiture Act, the Commonwealth attempted to notify Justo of the forfeiture proceedings by certified mail, return receipt requested, at 2075 Wallace Avenue, Bronx, New York 10453. After the certified mail was returned to the Commonwealth without completed service, the Commonwealth attempted personal service on Justo at the same location via the Sheriff's Office of New York City. The Sheriff attempted to notify Justo in person three times but each attempt was unsuccessful. Because certified mail and personal notice were each unsuccessful, the Commonwealth attempted pursuant to Section 6802(c) of the Forfeiture Act to notify Justo by way of publication for two consecutive weeks in The Daily Sentinel, a newspaper of general circulation in the Carlisle area, Cumberland County, Pennsylvania, where the property was seized. Justo neither responded to this notice nor sought to defend against the forfeiture action. On January 30, 3012, Judge Masland ordered the forfeiture of the $9,570.
That section provides that notice of a forfeiture hearing shall be served personally or by certified mail on the owner of the person in possession of the property in question at the time of the seizure of the property.
That section provides that if service cannot be effectuated, substitute notice can be provided through an advertisement in one newspaper of general circulation published in the county where the property shall have been seized, once a week for two successive weeks and that no other advertisement shall be necessary to provide substitute notice.
On April 12, 2012, Justo filed a Motion for Return of Property pursuant to Rule 588 of the Pennsylvania Rules of Criminal Procedure (Pa.R.Crim.P.) in the Court of Common Pleas of Cumberland County at No. CP-21-MD-292-2012. On June 6, 2012, the Honorable Thomas A. Placey (Judge Placey) heard oral argument on Justo's Motion for Return of Property. In opposition to the motion, the Commonwealth argued that a different common pleas court judge, Judge Masland, had already ordered the forfeiture of the property by final order dated January 30, 2012, at No. CP-21-MD-585-2011.
Motions for Return of Property are governed by Pa. R. Crim. P. 588 which provides:
(A) 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 thereof. Such motion shall be filed in the court of common pleas for the judicial district in which the property was seized.
(B) The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property be forfeited.
Judge Placey entered an Order on June 6, 2012, in which he stated that he would "render a decision prior to any testimony...based solely on the public records available and counsel's briefing of the issue." Common Pleas Court Order, June 6, 2012, at 1.
Subsequently, Judge Placey conducted a "preliminary" review of the public record to determine whether the property at issue was within the scope of the Forfeiture Act. Common Pleas Court Order, September 11, 2012, at 7. Judge Placey concluded that the $9,570 seized from Justo was not in the scope of the Forfeiture Act because "the evidence set forth by the Commonwealth did not indicate whether the bills were tested individually or collectively. The Commonwealth merely averred that 'all of the currency alarmed for cocaine.'" Common Pleas Court, September 11, 2012, Order at 7. Judge Placey also noted that the Commonwealth's exhibits detailing the Ion Scan testing "did not adequately indicate how the test was conducted." Common Pleas Court Order, September 11, 2012, at 8. Judge Placey concluded "[b]ecause the property in question does not fall within the [Forfeiture] Act, the less stringent notice requirements set forth by the [Forfeiture] Act are inapplicable in the present action." Common Pleas Court Order, September 11, 2012, at 8. Applying the stricter constitutional due process standards, Judge Placey concluded that Justo was not provided with adequate notice of the forfeiture action because the Commonwealth knew or should have known that Justo resided outside of the jurisdiction and that publication in The Daily Sentinel was not adequate to apprise Justo of the forfeiture action. Judge Placey also noted that the Commonwealth could have easily contacted Attorney Mangan, Justo's local counsel, to possibly notify Justo of the pending forfeiture action.
On September 11, 2012, Judge Placey vacated Judge Masland's January 30, 2012 Order which had been entered eight months earlier at No. CP-21-MD-585-2011. Pursuant to 42 Pa.C.S. §702(b), the Commonwealth petitioned for permission to appeal the September 11, 2012, interlocutory order which Judge Placey denied.
On October 11, 2012, Judge Placey conducted a hearing on the merits of "two matters:" (1) the Commonwealth's Forfeiture Petition; and (2) Justo's Motion for Return of Property. H.T. at 4; R.R. at 53a.
In support of its Forfeiture Petition, the Commonwealth introduced the testimony of Trooper Bruce, Cpl. Housel, and Sergeant Joshua Cesavice (Sergeant Cesavice) who conducted the Ion Scan testing. Sergeant Cesavice testified that Ion Scan testing was conducted on the currency which revealed the presence of cocaine at a very high level of 1,290 units. Pennsylvania casual contact levels of cocaine were 220, 277, and 270 in recent years. In New York, casual contact levels of cocaine were at 434 and 418 in recent years.
Justo testified that in the two years prior to the hearing in October 2012, he lived at: (1) his fiancé's house at 853 Quincy Avenue, Bronx, New York; (2) his mother's house located at 414 Screvin Avenue, Apartment 2, Bronx, New York; and (3) in an area of Bronx, New York called Throgneck.
He testified that he informed the district justice at his preliminary hearing in May of 2011, that he received his mail at his mother's address at 414 Screvin Avenue, Apartment 2, Bronx, New York. H.T. at 91; R.R. at 140a. Justo testified that after the conclusion of his preliminary hearing, he went to the "cashier" who "made up the paperwork" and she "made a notation in the computer" of where he received mail. H.T. at 90; R.R. at 139a. Justo did not go to the post office to change his mailing address from 2075 Wallace Avenue to 414 Screvin Avenue. H.T. at 92; R.R. at 141a.
Justo testified that the money was to buy a motor vehicle from his sister. Justo testified that he received about half of the $9,570 from helping his mother work at the family tavern and the other half from his fiancée, Christine Tiburcio (Tiburcio). Although Justo claimed that he paid income taxes, he failed to produce any tax returns. Justo's mother did not testify. Justo admitted that he never had a driver's license and that he provided Trooper Bruce with a false name and birth date.
Tiburcio testified that she gave Justo "about $4,500" from her tax refund to purchase the vehicle. H.T. at 95; R.R. at 144a. Yobanca Manriquez (Manriquez), Justo's sister, testified that she lived in North Carolina and planned on selling her vehicle to Justo while in Alabama. They did not plan on transferring title of the vehicle.
The common pleas court granted the Commonwealth's Forfeiture Petition and denied Justo's Motion for Return of Property.
Justo now appeals from the November 1, 2012, common pleas court order that granted the Commonwealth's Forfeiture Petition and denied his Motion for Return of Property. The Commonwealth appeals the common pleas court's September 30, 2012 Order which vacated Judge Masland's Order on service of process grounds. This Court consolidated these appeals.
Commonwealth's Appeal
The Commonwealth contends that Judge Placey erred when he vacated Judge Masland's January 30, 2012 Order. The Commonwealth contends that if Justo wished to challenge Judge Masland's January 31, 2012 Order, on grounds that he did not receive adequate notice, he was required to file a petition to open the judgment. In Re: 1997 Mitsubishi Diamante, 950 A.2d 1114 (Pa. Cmwlth. 2008).
In a forfeiture proceeding, the common pleas court's decision is reviewed for abuse of discretion. An abuse of discretion occurs when the common pleas court departs from or misapplies the law or where the common pleas court's judgment is manifestly unreasonable as shown by the evidence of record. Commonwealth v. $8,006.00 U.S. Currency, 646 A.2d 621 (Pa. Cmwlth. 1994).
This Court must agree with the Commonwealth that Judge Placey's approach was not sanctioned by any rule, caselaw or statute.
Judge Masland's January 30, 2012 Order was, in essence, a default judgment because the order of forfeiture was entered "summarily" under 42 Pa.C.S. § 6802(2)(c) as a result of Justo's failure to answer the Forfeiture Petition.
This Court has held that in these circumstances, a Motion for Return of Property pursuant to Pa. R.Crim.P. 588 is not the appropriate avenue for setting aside a default judgment of forfeiture entered earlier with respect to the same property.
In Commonwealth v. Pena, 751 A.2d 709 (Pa. Cmwlth. 2000), Marcos Pena (Pena) was arrested on cocaine charges at which time $22,511 was also seized from his apartment. The money was forfeited in 1994 in a forfeiture proceeding docketed at 152-M/1994 and captioned, "In re: $22,511.00 in United States Currency."
Four years later, in 1998, Pena filed a Motion for Return of Property pursuant to former Pa. R.Crim.P. 324, which has been replaced by Pa. R.Crim.P. 588. The trial court dismissed Pena's Motion for Return of Property on the ground that he failed to establish entitlement to lawful possession of the money, which had already been forfeited.
Pa. R.Crim.P. 324 was renumbered on March 1, 2000, as Pa. R.Crim. P. 588. The operative language of the rule was unchanged.
On appeal to this Court, Pena claimed that he was denied due process in the forfeiture action. He argued that the trial court erred in denying his Motion for Return of Property because the Commonwealth forfeited his property without notifying him, thereby denying him the right to appear and to oppose the forfeiture.
This Court explained that under 42 Pa.C.S. § 6801, forfeiture of the seized currency in 1994 extinguished Pena's property rights, and thus, he was foreclosed from obtaining the return of the currency via a Motion for Return of Property. This Court concluded that the trial court did not err in dismissing Pena's motion on the ground that he failed to establish that he was entitled to lawful possession.
As for Pena's claim that he was denied due process in the forfeiture action, this Court concluded that this issue could not be raised in a Motion for Return of Property.
These facts are similar to the facts in Pena. Here, as in Pena, forfeiture of the seized property was entered by default before the Motion for Return of Property was filed. Like Pena, Justo attempted to accomplish the return of his property by filing a Motion for Return of Property. However, because his property had already been forfeited, Justo's property right to the $9,570 was extinguished. A Motion for Return of Property was improper.
A motion for return of property should not be granted unless the movant has presented the trial court with credible evidence of ownership of or entitlement to the property being requested. Commonwealth v. Janda, 14 A.3d 147, 167 (Pa. Super. 2011).
Instead, Justo should have directly challenged the order of forfeiture by petitioning the court to "open" it.
A petition to "open" a judgment is used when a defendant alleges a viable defense. In re McCauley's Estate, 385 A.2d 1324 (Pa. 1978). A judgment entered by default may be "opened" if the moving party has: (1) promptly filed a petition to open the default judgment; (2) provided a reasonable excuse or justifiable explanation for failing to file a responsive pleading; and (3) pleaded a meritorious defense to the allegations contained in the complaint. McFarland v. Whitham, 544 A.2d 929 (Pa. 1988); Schultz v. Erie Insurance Exchange, 477 A.2d 471 (Pa. 1984).
In 1997 Mitsubishi Diamante, this Court sanctioned the use of a petition to open to challenge proper notice in forfeiture proceedings. Santos Ramos-Rodriguez (Rodriguez) sought to rescind a default judgment of forfeiture entered against him and alleged the notice was sent to the wrong prisoner. The Commonwealth had filed a petition for forfeiture of Rodriguez's property on May 11, 2006, pursuant to the Forfeiture Act. Rodriguez did not file an answer. On June 22, 2006, the Commonwealth filed a motion for judgment. The trial court granted the motion on July 1, 2006.
Almost a year later, on June 13, 2007, Rodriguez filed a petition to "strike and/or open" the default judgment because he did not receive proper notice of the forfeiture proceeding. The petition alleged that the certified Notice of the Forfeiture was sent to the York County Prison and erroneously addressed to and signed for by "Candelario Sanchez." At the trial court hearing, the judge asked Rodriguez why he waited so long to file the petition. Rodriguez responded that he did not know that judgment had been entered against him until he read about it in a transcript and that he did not recall when he received the transcript. The judge denied his petition. On appeal, this Court reversed. Based on the allegations of the petition that the forfeiture petition was not sent to Rodriguez, there was a question as to whether the Commonwealth complied with the notice and service provisions of the Forfeiture Act.
Although the petition in 1997 Mitsubishi Diamante was entitled a petition "to open and/or strike," a review of the grounds asserted in the petition reveal that it was actually in the nature of a petition to open. Rodriguez did not allege a "fatal defect" in the record at the time the judgment was entered. Rather, the petition focused on lack of notice and the allegation that the Commonwealth inadvertently sent his forfeiture documents to another prisoner.
Accordingly, the proper procedural means to challenge entry of a default forfeiture judgment for lack of notice was by Petition to Open, not a Motion for Return of Property under Pa. R.Crim.P. 588.
By analyzing the matter outside of the Forfeiture Act, the trial court applied different, more stringent constitutional notice standards, than those required by the Forfeiture Act. The trial court's suggestions as to what the Commonwealth could or should have done beyond the notice requirements of 42 Pa.C.S. §6802(b) and 42 Pa.C.S. §6802(c) was not a basis to determine that the Commonwealth provided unlawful notice. In 1997 Mitsubishi Diamante, this was reversible error.
Again, Judge Placey found that Justo had legal counsel whom the Commonwealth should have contacted to possibly obtain Justo's mailing address. --------
Furthermore, had Justo properly filed a Petition to Open, the trial court should have analyzed the notice requirements under the Forfeiture Act and concluded that notice was sufficient.
Notice of a forfeiture hearing shall be served personally or by certified mail on the owner or the possessor of the property in question at the time of seizure. 42 Pa.C.S. §6802(b). If that service is not effectuated, substitute notice may be provided through an advertisement in one newspaper of general circulation published in the county where the property shall have been seized, once a week for two successive weeks. No other advertisement is necessary to provide substitute notice. 42 Pa.C.S. §6802(c).
The Commonwealth filed a forfeiture petition and sent notice to Justo's 2075 Wallace Avenue address and attempted personal service at that address. Judge Placey concluded that "the Commonwealth knew it did not have a valid address but used it anyway when other verifiable address information was readily available." Judge Placey's Opinion, February 5, 2013, at 9, n. 27.
Based on the confusion regarding Justo's mailing address, this Court disagrees with Judge Placey's conclusion that the Commonwealth "knew" it did not have a valid address. This finding is not supported by the record.
The record shows that when he was arrested, Justo did not have a valid driver's license which would have showed his current home address. In fact, he never had a valid driver's license. At the time he was arrested Justo gave officers false information concerning his identity and birth date. He purposefully led the officers to believe he was "Guillermo Reynoso." In doing so, he deliberately attempted to mislead the officer's about his identity and contact information. It was only through a computerized criminal background check that the officers were able to identify Justo and ascertain his address as 2075 Wallace Avenue, Bronx, New York 10453.
Although Justo testified that he informed the magisterial district judge at his preliminary hearing of his new address and the "cashier" put it into the "computer" he also testified that in the two years prior to the hearing in October 2012, he lived at: (1) his fiancé's house at 853 Quincy Avenue, Bronx, New York; (2) his mother's house located at 414 Screvin Avenue, Apartment 2, Bronx, New York; and (3) in an area of Bronx, New York called Throgneck. Justo admitted that he did not notify the Post Office that his address was no longer 2075 Wallace Avenue.
Indeed, Judge Placey found that Justo was "not forthright" regarding his mailing address. "The testimony of Mr. Justo was unreliable. His own counsel had to prompt him for his mother's address when asked where he receives his mail and he declined to provide an apartment number to supplement the address given to the police at the time of the arrest." Judge Placey's Opinion, February 5, 2013, at 9. (Footnote omitted).
Thus, even if the proper procedures were followed here, the record simply does not support Judge Placey's conclusion that the Commonwealth knew that the 2075 Wallace Avenue, Bronx, New York 10453 was invalid. Contrary to Judge Placey's assessment, the Commonwealth did not deny Justo his day in court because it was Justo himself who deliberately attempted to mislead the Commonwealth about who he was and where he could be served with process. The blame must fall on Justo himself for driving without a valid driver's license, for lying to officers about his identity and for not informing the Post Office of his forwarding address.
For the foregoing reasons, the Order of Judge Placey which reversed Judge Masland's January 30, 2012 Order at No. CP-21-MD-585-2011, is vacated. Judge Masland's Order is hereby reinstated.
Justo's appeal from Judge Placey's underlying Order is denied and dismissed because he erroneously filed a Motion for Return of Property under Pa. R.Crim.P. 588, instead of petitioning to open the judgment of forfeiture at No. CP-21-MD-585-2011. Nevertheless, even if Justo had filed a Petition to Open, Judge Placey's conclusion that the Commonwealth knew that the 2075 Wallace Avenue, Bronx, New York 10453 was invalid was not supported by substantial evidence.
/s/_________
BERNARD L. McGINLEY, Judge Judge McCullough Concurs in Result Only. ORDER
AND NOW, this 9th day of May, 2014, the Order of the Court of Common Pleas of Cumberland County in the above captioned matter is hereby VACATED. The Order of the Court of Common Pleas of Cumberland County dated January 30, 2012 Order and entered at Docket No. CP-21-MD-585-2011, is hereby REINSTATED. The appeal of Steven O. Justo is denied and dismissed.
/s/_________
BERNARD L. McGINLEY, Judge