Opinion
No. 2090 C.D. 2013
10-20-2014
Commonwealth of Pennsylvania v. One Chevrolet Corvette Race Car, Vin # Unknown; One Ford Street Rod, Vin # Unknown; One 1988 Honda CRX, Vin # JHMED8459JS015955; One 1993 Honda Del Sol, Vin #JHMEH6266PS014680; One 1993 Honda Del Sol, Vin # JHMEH6260PS020880; One 1993 Honda Del Sol, Vin # JHMEH6161PS014300; One 2002 Harley Davidson Night Train, Vin # 1HD1JAB152Y029574; One Ford 'Police Paddy Wagon' Street Rod, Vin # Unknown; One 1995 Ford F350 DRW, Vin # 1FTJX35F8SKB30078; One 1994 Vintage Enclosed Trailer, Vin # 1V9UV5033RE064592 Appeal of: Neil Neidig
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Neil Neidig appeals from the October 17, 2013, order of the Court of Common Pleas of Northumberland County (trial court) granting the Commonwealth of Pennsylvania's (Commonwealth) petition for forfeiture and condemnation under section 6801(a) of the Judicial Code, commonly known as the Controlled Substances Forfeiture Act (Forfeiture Act), 42 Pa. C.S. §6801(a). We affirm.
Section 6801(a) of the Forfeiture Act provides for the forfeiture of the following items:
(1) All drug paraphernalia, controlled substances or other drugs which have been manufactured, distributed, dispensed or acquired in violation of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act.42 Pa. C.S. §6801(a)(1-2, 4, 6(i)(A)).
(2) All raw materials, products and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing or exporting any controlled substance or other drug in violation of The Controlled Substance, Drug, Device and Cosmetic Act.
* * *
(4) All conveyances, including aircraft, vehicles or vessels, which are used or are intended for use to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment of, property described in paragraph (1) or (2)[.]
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(6)(i) All of the following:
(A) Money, negotiable instruments, securities or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of The Controlled Substance, Drug, Device and Cosmetic Act, and all proceeds traceable to such an exchange.
On June 3, 2011, Neidig was driving a Ford Fusion in Monroe County when he was stopped by Pennsylvania State Police Trooper Mark Ruscavage (Trooper Ruscavage) for exceeding the speed limit. (N.T., 10/17/13, at 29-30.) Trooper Ruscavage obtained Neidig's permission to search the vehicle. (Id. at 32.) Trooper Ruscavage found a bucket containing 13 pounds of marijuana packaged in one-pound units and $13,003 in cash. (Id. at 30, 32.)
The Commonwealth filed an application for a temporary restraining order and permanent injunction to preserve property. The trial court held a hearing on the application on July 8, 2011. On July 12, 2011, the trial court granted the application, and the Commonwealth seized ten of Neidig's vehicles, which were located in Northumberland County.
Neidig represented himself at this hearing. He was represented by counsel at all subsequent proceedings.
The Commonwealth also commenced criminal proceedings against Neidig in Northumberland County. (Id. at 4.) On July 20, 2012, Neidig was convicted of 21 counts of possession with intent to deliver a controlled substance, 10 counts of criminal use of a communication facility, 2 counts of corrupt organizations, and 2 counts of conspiracy. (Id., Ex. 3.)
On July 23, 2012, the Commonwealth filed a petition for forfeiture and condemnation in Northumberland County. Neidig filed an answer to the petition, wherein he admitted to owning and possessing the seized vehicles. (Neidig's Answer, ¶ 4.) After a number of continuances, the trial court held a forfeiture hearing on October 17, 2013. (N.T., 10/17/13, at 3.) Neidig did not testify at the hearing, nor did he present evidence. Neidig's daughter Amy, Attorney General Agent David Jordan (Agent Jordan), Trooper Ruscavage, and other witnesses testified on behalf of the Commonwealth. The Commonwealth also offered documentary evidence, including copies of Neidig's criminal convictions. (Id., Ex. 3.)
Earlier in 2012, the Commonwealth filed a forfeiture and condemnation petition in the Court of Common Pleas of Monroe County regarding the Ford Fusion and $13,003 in cash, which the court granted. (N.T., 10/17/13, at 20.)
The trial court granted the Commonwealth's petition, finding that the Commonwealth established by a preponderance of evidence a nexus between Neidig's drug activities and the forfeited vehicles. Neidig then filed a motion for reconsideration, which the trial court denied. Neidig now petitions this court for review.
Our review in a forfeiture proceeding is limited to determining whether the trial court's findings of fact are supported by substantial evidence and whether the trial court abused its discretion or committed an error of law. Commonwealth v. Mitchell, 833 A.2d 1220, 1222 n.6 (Pa. Cmwlth. 2003).
First, Neidig argues that the trial court's findings are not supported by substantial evidence because the Commonwealth did not prove a nexus between his drug activity and his purchase of the seized vehicles. Specifically, Neidig argues only that he had several legitimate sources of income, including social security disability payments, wages from two employers, child support payments, and an inheritance from his mother.
The Commonwealth initially argues that Neidig waived his issues on appeal because his brief fails to cite legal authorities or contain meaningful analysis. Although Neidig's brief is not as thorough as we would like, we conclude that the brief sufficiently addresses the relevant legal issues such that we may decide the merits. Commonwealth v. Feineigle, 690 A.2d 748, 751 n.5 (Pa. Cmwlth. 1997) (citations omitted).
To succeed on a forfeiture petition, the Commonwealth must establish a nexus between the unlawful activity and the property subject to forfeiture. Commonwealth v. Mitchell, 833 A.2d 1220, 1222 (Pa. Cmwlth. 2003). The Commonwealth must prove this nexus by a preponderance of the evidence. Commonwealth v. $11,600.00 Cash, 858 A.2d 160, 164 (Pa. Cmwlth. 2004). The Commonwealth need not produce direct evidence of a nexus; circumstantial evidence may be sufficient. Commonwealth v. $6,425.00 Seized from Esquilin, 880 A.2d 523, 529-30 (Pa. 2005). "However, circumstantial evidence that shows 'only the possibility or the suspicion of a nexus . . .' will not support a forfeiture." Commonwealth v. Porrino, 96 A.3d 1132, 1138 (Pa. Cmwlth. 2014) (citation omitted). Where illegal drug activity is shown, the Commonwealth furthers its case by showing that the claimant received no legitimate income for some years. Id. at 1140.
Here, the Commonwealth produced sufficient evidence linking Neidig's drug activities to his seized vehicles. Neidig admitted that police found 13 pounds of marijuana and $13,003 in cash in his car at the time of arrest. (Neidig's Answer, ¶ 38.) Agent Jordan testified that Amy told him that she saw Neidig with marijuana when she was 14 or 15, and Neidig told her that they would pay their bills with drug money. (N.T., 10/17/13, at 6.) Agent Jordan also testified that Amy told him that Neidig bought cars with drug money. (Id.) Amy confirmed this in her testimony. (Id. at 35.) Agent Jordan also testified that, based on information gathered before and after Neidig's arrest, Neidig stored marijuana in a storage facility where several of his vehicles were seized. (Id. at 9-10.) Additionally, a bucket with marijuana residue was found in one of the vehicles seized from the storage facility. (Id.) This bucket was similar to the one containing the marijuana in his Ford Fusion at the time of his arrest. (Id. at 9.)
Neidig's daughter testified that she was born in 1992. (N.T., 10/17/13, at 39.)
Agent Jordan's interview with Amy is not included in the record. Although Agent Jordan's statement is hearsay, Neidig's counsel did not object to it.
Contrary to Neidig's argument, the Commonwealth showed that, at the time of his arrest, Neidig had not received legitimate income in years. In the related Monroe County forfeiture case, Neidig refused to answer the Commonwealth's interrogatories regarding his financial history. Although Neidig's counsel cross-examined the Commonwealth's witnesses regarding his alleged legitimate incomes, the questioning itself did not establish their existence. Although a witness's answer to a question may be evidence, the question itself is not. Commonwealth v. Larkins, 489 A.2d 837, 841 (Pa. Super. 1985). The witnesses' answers show only that they knew Neidig received disability and child support payments; neither the amounts nor the dates of these payments were established. (N.T., 10/17/13, at 17, 40.)
The interrogatories were included as exhibit 4 in this proceeding. (Id., Ex.4.) --------
Amy testified that she did not know of any inheritance that Neidig received from his mother. (Id. at 40.) She also testified that Neidig previously worked at Keystone Forge and an unnamed New Jersey steel plant in the 1990s, but not since he suffered a work injury. (Id. at 39-40.) In its petition for forfeiture and condemnation, the Commonwealth averred that Pennsylvania Department of Labor & Industry (L & I) records only indicated incomes for 1993 and 2007 totaling $13, 267.68 and $1,444.25 respectively. (Pet. for Forfeiture, ¶ 41.) Agent Jordan testified that L & I records indicated that Neidig did not receive any other employment income in Pennsylvania. (Id., ¶ 7.) Despite no evidence of a substantial income, Neidig managed to purchase numerous vehicles, including a modified Chevrolet Corvette valued at $100,000. (N.T., 10/17/13, at 54.) The Commonwealth thus established by a preponderance of the evidence a nexus between Neidig's drug activities and the vehicles, and Neidig failed to establish legitimate income sources.
Next, Neidig argues that the trial court's order was not supported by substantial evidence because Amy claimed that she owned some of the seized vehicles. Neidig appears to argue either that he did not own some of the vehicles or that Amy used the vehicles for drug-related activity without his knowledge.
When the Commonwealth establishes a nexus between seized property and illegal drug activity, the claimant may establish an "innocent owner" defense. The claimant must show that he is the owner of the property, that he lawfully acquired it, and that it was not unlawfully used or possessed by him. Section 6802(j) of the Forfeiture Act, 42 Pa. C.S. §6802(j). Where the property was unlawfully used by someone other than the claimant, the claimant must show that the unlawful use was without his knowledge or consent. Id. Vehicle ownership in a forfeiture context is established by proving "a possessory interest in the property with attendant characteristics of dominion and control." Commonwealth v. One 1988 Suzuki Samurai, 589 A.2d 770, 773 (Pa. Cmwlth. 1991).
Although Amy testified that some of the vehicles were supposed to be hers, she also noted that all of the seized vehicles were titled in her father's name except for the Ford Fusion. (N.T., 10/17/13, at 36.) She offered no proof that she otherwise constructively owned the vehicles. More importantly, Neidig admitted that he owned the seized vehicles and that he had actual or constructive possession over them. Neidig did not dispute his ownership or possession at the forfeiture hearing, nor did he argue that he did not unlawfully use the seized vehicles. Therefore, Neidig failed to establish an innocent owner defense.
Accordingly, because we conclude that the trial court's order was supported by substantial evidence, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 20th day of October, 2014, we hereby affirm the October 17, 2013, order of the Court of Common Pleas of Northumberland County.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge