Opinion
No. 2238 C.D. 2012
11-12-2013
Commonwealth of Pennsylvania v. Real Property and Improvements Known As 1833 Bridge Street Philadelphia, Pa. 19124 Appeal of: Jermaine Wright
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this forfeiture case, Jermaine Wright (Appellant) asks whether the Court of Common Pleas of Philadelphia County (trial court) erred by granting the Commonwealth of Pennsylvania's (Commonwealth) petition for forfeiture of real property and improvements known as 1733 Bridge Street, Philadelphia, Pennsylvania 19124 (property) under the act commonly known as the Controlled Substances Forfeiture Act (Forfeiture Act), 42 Pa. C.S. §§6801-6802. Appellant contends the trial court erred in finding he did not demonstrate he was an innocent owner of the property by a preponderance of the evidence. Additionally, Appellant claims the trial court improperly admitted prior bad act evidence. Discerning no error, we affirm.
The Honorable Frank Palumbo presided.
The correct address of the property as reflected in the certified record is 1733 Bridge Street, not 1833 as captioned by Appellant on the notice of appeal, brief and reproduced record.
I. Factual and Procedural Background
Appellant purchased the property in 2000 and resided there until 2002. After that, he permitted his mother to reside at the property. Shortly before November 2010, he allowed his uncle, Edward Wright, and his cousin, Eugene Johnson, to reside there.
In November 2010, Philadelphia police directed a confidential informant to the 1700 block of Bridge Street to purchase narcotics. On three separate occasions, the informant purchased narcotics from Edward Wright at the property. After the third narcotics transaction, the police executed a search warrant at the property and recovered 17 grams of crack cocaine, along with numerous pills. The police arrested Edward Wright and Eugene Johnson.
As a result of the drug investigation and arrests, the Commonwealth petitioned for forfeiture of the property. The trial court presided over a bench trial on the forfeiture petition.
Before the trial court, the parties stipulated to the nexus between the property and violations of The Controlled Substance, Drug, Device and Cosmetic Act (Drug Act). Appellant raised the innocent owner defense. Appellant testified he does not reside at the property, was not at the property when any of the drug transactions took place, and was not charged with any criminal wrongdoing. He denied he knew of or consented to any illegal drug activity at the property.
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§780-101 - 780-144.
In rebuttal, the Commonwealth presented evidence that Appellant had knowledge of prior illegal drug activity at the property. Specifically, Police Detective Christopher Casey testified he responded to a shooting at the property in 2007. Appellant was the victim of the shooting. At the scene, Detective Casey observed a large pool of blood, ballistic evidence and narcotics paraphernalia. Pursuant to a search warrant, the detective recovered 136 grams of marijuana, a canister containing $17,555 in cash, and a notebook containing currency denominations and dates. In conspicuously close proximity, Detective Casey recovered photographs of Appellant and a wallet containing his identification.
Based on the testimony and evidence presented, the trial court ordered the forfeiture of the property. Appellant filed the present appeal.
In the opinion filed in support of the forfeiture order, the trial court determined Detective Casey's testimony rebutted Appellant's categorical denial that he knew of or condoned illegal drug activity at the property. The trial court found Appellant's testimony regarding his lack of awareness of any drug activity at the property not truthful, and it specifically rejected his testimony regarding his ignorance of the 2010 drug activity. Because the trial court rejected Appellant's testimony, the trial court determined Appellant did not prove an innocent owner defense by preponderance of the evidence.
II. Issues
On appeal, Appellant contends the trial court erred in finding he did not prove he was an innocent owner of the property by a preponderance of the evidence. Appellant testified he did not know of or consent to illegal narcotics activity at the property in 2010, the period in which the Commonwealth based its forfeiture petition. The Commonwealth did not rebut this testimony.
Our review of a forfeiture appeal is limited to whether findings of fact made by the trial court are supported by substantial evidence and whether the trial court abused its discretion or committed an error of law. Commonwealth v. 5444 Spruce St., 890 A.2d 35 (Pa. Cmwlth. 2006) (en banc).
Additionally, Appellant claims the trial court improperly admitted prior bad act evidence. Specifically, the trial court allowed Detective Casey to testify about an incident that occurred three years prior to the events of 2010. The Commonwealth did not cite any prior incidents at the property as the basis for forfeiture. Detective Casey's testimony did not show Appellant's awareness of illegal narcotics distribution at the property in 2010. Appellant claims this evidence was prejudicial and irrelevant and did not establish a continuing course of conduct at the property.
III. Discussion
A. Timeliness of Appellant's Pa. R.A.P. 1925(b) Statement
As a preliminary matter, the Commonwealth contends Appellant did not preserve any issues for review because he did not file a concise statement of errors complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure as directed by the trial court.
Pursuant to Pa. R.A.P. 1925(b), a trial court may enter an order directing an appellant to file "a concise statement of the errors complained of on appeal." Generally, an issue is deemed waived on appeal where no statement is filed or where the issue is not included in the statement. See Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005); Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998).
However, in cases where the docket does not show the court provided notice of the entry of a Rule 1925(b) order to an appellant, an appellant's issues are not waived for failure to timely file a statement. Commonwealth v. Hess, 570 Pa. 610, 810 A.2d 1249 (2002); Schlag v. Dep't of Transp., Bureau of Driver Licensing, 963 A.2d 598 (Pa. Cmwlth. 2009). The reason being, without a date of service, the court cannot conclude when, if ever, the time for filing a statement began to run. Hess; Schlag. Therefore, in such situations, waiver does not apply. See Hess; Schlag.
Here, in response to Appellant's notice of appeal, the trial court directed him to file a Rule 1925(b) statement within 21 days. Appellant requested an extension of time, citing unavailable notes of testimony. On January 4, 2013, the trial court extended Appellant's time for filing the statement to within 21 days "of [A]ppellant counsel's receipt of all notes of testimony." Tr. Ct. Order, 1/4/13.
On January 30, 2013, the trial court issued an opinion pursuant to Pa. R.A.P. 1925(a) in support of its forfeiture order. In the opinion, the trial court stated it received the final outstanding notes of testimony on January 7, 2013. The trial court noted "no 1925(b) statement has been filed" as of that date. Tr. Ct., Slip Op., 1/30/13, at 3.
However, a review of the certified record reveals Appellant filed a 1925(b) statement on January 29, 2013 - the day before the trial court issued its opinion. Although the docket indicates the trial court served the 1925(b) orders on Appellant, there is no indication in the docket or record as to when the notes of testimony were sent to, let alone received by, Appellant. As a result, the start date for the 21-day period to file a Rule 1925(b) statement cannot be identified. Consequently, we are unable to ascertain the timeliness of Appellant's statement. Under these circumstances, we cannot conclude Appellant's 1925(b) statement was untimely.
B. Innocent Owner
We turn now to the merits of the appeal. Appellant contends the trial court erred in finding he did not demonstrate he was an "innocent owner" of the property. Appellant testified he had no knowledge of nor did he consent to illegal narcotics activity at the property in 2010. Appellant claims the trial court's description of his testimony as a categorical denial of any illegal drug activity is overbroad. Appellant's testimony only pertained to the allegations directly preceding the November 2010 arrests and search of the property.
Furthermore, Appellant argues the trial court erred when it determined Detective Casey's testimony rebutted Appellant's testimony. Detective Casey testified about an incident that took place three years prior to the events of 2010. The Commonwealth did not cite any prior incidents at the property as the basis for forfeiture. Detective Casey's testimony regarding the 2007 incident did not show Appellant's awareness of illegal narcotics distribution at the property in 2010. Therefore, the trial court erred in determining Appellant did not demonstrate an innocent owner defense.
The Commonwealth counters that Appellant's argument is based on his misrepresentation of the testimony presented at trial. Appellant testified he had no knowledge of any illegal drug activity at the property. The question did not limit his knowledge to 2010. Moreover, the trial court, as the final arbiter of credibility, was free to accept or reject Appellant's testimony. The trial court credited Detective Casey's testimony regarding the 2007 drug activity. Because Appellant was not forthright about prior drug activity at the property, the trial court did not believe Appellant's testimony that he was unaware of his uncle and cousin's drug dealing activities at the property in 2010. Such credibility determinations are for the trier-of-fact and are beyond this Court's scope of review. Therefore, Appellant did not carry his burden of proving an innocent owner defense.
Pursuant to the Forfeiture Act, "[r]eal property used or intended to be used to facilitate any violation of [the Drug Act], including structures or other improvements thereon, ... which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of [the Drug Act]" is subject to forfeiture. Section 6801(a)(6)(i)(C) of the Forfeiture Act, 42 Pa. C.S. §6801(a)(6)(i)(C). However, "[n]o property shall be forfeited under this paragraph, 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) (emphasis added).
In an action under the Forfeiture Act, the Commonwealth bears the initial burden to establish, by a preponderance of the evidence, a nexus between the unlawful activity and the property in question. Commonwealth v. 2314 Tasker St., 67 A.3d 202 (Pa. Cmwlth. 2013). Under this standard, the Commonwealth must show it is more likely than not that the nexus exists. Id.
If the Commonwealth proves a nexus between the unlawful activity and the subject property, the burden shifts to the property owner to assert an "innocent owner defense" under Section 6802(j) of the Forfeiture Act. Id. To successfully assert an innocent owner defense, the property owner must establish: (1) he is the owner of the property; (2) he lawfully acquired the property; and, (3) the property was not unlawfully used or possessed by him. Section 6802(j) of the Forfeiture Act, 42 Pa. C.S. §6802(j). Further, if a person other than the property owner unlawfully used or possessed the property, the property owner must show the unlawful use or possession was without his knowledge or consent. Id. "Such absence of knowledge or consent must be reasonable under the circumstances presented." Id.
Here, the parties stipulated to the nexus between a violation of the Drug Act and the property. Tr. Ct. Forfeiture Hearing, Notes of Testimony (N.T.), 10/25/11, at 4-5; Reproduced Record (R.R.) at 2a-3a. The burden then shifted to Appellant to establish an innocent owner defense. In this regard, Appellant testified:
Q: Did you -- were you ever aware of any illegal sales of narcotics being done at that property?N.T., 10/25/11, at 11-12; R.R. at 4a. Although Appellant maintains his testimony only pertained to the events of 2010 and that the trial court misconstrued the testimony, the testimony speaks for itself. Counsel's questions pertaining to Appellant's knowledge were not limited to the events of 2010.
A. No.
Q. And in regards to Eugene, your cousin, were you ever aware of any illegal activity involving Eugene at the property?
A. No.
Q. Did you ever condone any illegal activity at that property?
A. Not at all.
Q. And prior to the occasions which occurred for this criminal matter, which was November of 2010, was there ever a time in which police officers came and effectuated any arrests at that property?
A. No.
In rebuttal to Appellant's innocent owner defense, the Commonwealth presented Detective Casey's testimony. Detective Casey testified regarding his recollection of a shooting incident involving Appellant that transpired at the property in 2007. He testified Appellant admitted he was shot "inside" the property. N.T., 11/5/12, at 8; R.R. at 16a. The day of the shooting, Detective Casey executed a search warrant for the property. N.T., 11/5/12, at 6, 9; R.R. at 14a, 17a. In the basement of the property, Detective Casey observed a pool of blood and recovered ballistic evidence, 136 grams of marijuana packed in yellow zip lock bags, and, in the rafters, a canister containing $17,555. N.T., 11/5/12, at 6; R.R. at 14a. In close proximity of the canister, Detective Casey recovered a notebook containing denominations of money and dates, which he believed documented drug transactions, as well as photos of Appellant. N.T., 11/5/12, at 6; R.R. at 14a. He also recovered a wallet containing Appellant's identification near the bed in the basement. N.T., 11/5/12, at 15; R.R. at 23a.
The trial court found Detective Casey's "testimony rebutted [Appellant]'s claim that he never had any knowledge of, nor condoned illegal drug activity at the property." Tr. Ct., Slip Op., at 5. The trial court found it manifestly unreasonable that Appellant had no knowledge of any criminal activity at the property. The trial court concluded Appellant's testimony as to knowledge of drug activity at the property was "not truthful." Id. As a result, the trial court discredited Appellant's testimony regarding his ignorance of the ongoing drug activity at the property in 2010. Such credibility determinations are for the fact finder. See Commonwealth v. $6,425.00 Seized From Esquilin, 583 Pa. 544, 880 A.2d 523 (2005). Because the trial court rejected Appellant's testimony, the trial court did not err in determining Appellant did not sustain his burden of proving an innocent owner defense by a preponderance of the evidence.
C. Evidence
Next, Appellant contends the trial court improperly admitted Detective Casey's testimony. The Commonwealth based its forfeiture petition on the events of November 2010 and did not cite any prior incidents at the property as a basis for forfeiture. The Commonwealth's failure to include this information in the forfeiture petition barred it from introducing it at trial. Furthermore, Detective Casey's testimony was not rebuttal evidence, but impermissible character evidence and bad acts evidence. Evidence of other crimes, wrongs or acts is only admissible if the probative value of the evidence outweighs its potential for unfair prejudice, which is not the case here. Thus, Appellant argues the trial court erred by allowing Detective Casey to testify regarding the events of 2007.
The Commonwealth initially responds Appellant waived this claim by failing to object to the evidence at the hearing. Although Appellant raised some objections to Detective Casey's testimony, Appellant did not object on the grounds asserted in this appeal. In fact, Appellant's counsel conceded the officer's testimony constituted appropriate rebuttal.
Even assuming the issue is not waived, the Commonwealth asserts Appellant mischaracterizes this evidence as part of the Commonwealth's case-in-chief or as impermissible character or bad acts evidence. The Commonwealth offered this testimony in rebuttal to Appellant's testimony that he was unaware of any drug activity taking place at the property. Detective Casey testified regarding Appellant's knowledge of past violations of the Drug Act at the property. Therefore, it is proper rebuttal testimony.
As to the waiver claim, Rule 103(a) of the Pennsylvania Rules of Evidence provides an error may be predicated upon a ruling that admits evidence only if a timely objection, motion to strike or motion in limine appears in the record. The failure to object to the admission of evidence during trial operates to waive the objection on appeal. Pa. R.A.P. 302; City of Erie v. Stelmack, 780 A.2d 824 (Pa. Cmwlth. 2001). Where a specific ground is taken as the basis for an objection, all other grounds for objections are deemed waived. Commonwealth v. Smith, 604 Pa. 126, 985 A.2d 886 (2009).
Review of the record reveals Appellant made objections, but not on the grounds asserted on appeal. Appellant objected to the offer of rebuttal testimony on the grounds the Commonwealth rested and provided no notice of the testimony. N.T., 11/3/12, at 3-4. The trial court determined the Commonwealth did not rest and allowed the Commonwealth to present testimony in rebuttal at the following hearing. See N.T., 11/5/12, at 3; R.R. at 11a. During Detective Casey's testimony, Appellant objected to reading from documentation, speculation, and hearsay, which the trial court overruled. N.T., 11/5/12, at 4-8; R.R. at 12a-16a. At the close of the hearing, Appellant's counsel agreed Detective Casey's testimony was "an appropriate rebuttal." N.T., 11/5/12, at 31; R.R. at 39a. Appellant's counsel did not state any objections to the admission of the evidence on the grounds asserted in this appeal. Having failed to enter such objections on the record, Appellant waived these objections on appeal. Stelmack.
A different attorney represented Appellant at the forfeiture hearing. --------
Nevertheless, even if Appellant preserved his objections, the trial court did not err or abuse its discretion by admitting this evidence. The admissibility or rejection of rebuttal evidence is within the sound discretion of the trial court. Commonwealth v. Weiss, 565 Pa. 504, 776 A.2d 958 (2001); Daddona v. Thind, 891 A.2d 786 (Pa. Cmwlth. 2006). Rebuttal evidence is properly admitted where it is offered to contradict the testimony presented. Commonwealth v. Edwards, 521 Pa. 134, 555 A.2d 818 (1989). Even in a criminal proceeding, rebuttal evidence is admissible to challenge a defendant's credibility, where such evidence is not directly relevant to the question of a defendant's guilt or innocence. Commonwealth v. Hill, 542 Pa. 291, 666 A.2d 642 (1995).
However, there are exceptions to the admissibility of rebuttal evidence. A party cannot offer evidence in rebuttal which is properly part of his case-in-chief. Daddona. Additionally, evidence of a person's character is generally not admissible to prove the person acted in accordance with his character on a particular occasion. Pa. R.E. 404(a). Moreover, evidence of a crime, wrong, or other act is generally not admissible to show that on a particular occasion the person acted in accordance with the character. Pa. R.E. 404(b)(1). However, this evidence may be admissible for another purpose, such as proving "motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." Pa. R.E. 404(b)(2) (emphasis added).
Here, the Commonwealth based its forfeiture petition on the events of November 2010. Certified Record, Pet. for Forfeiture, 12/17/10. The Commonwealth did not cite any prior incidents at the property as a basis for forfeiture. See id. Contrary to Appellant's assertions, the Commonwealth did not introduce Detective Casey's testimony as part of its case-in-chief. Rather, the Commonwealth presented this testimony to rebut Appellant's testimony that he was unaware of any drug activity ever taking place at the property.
Detective Casey's testimony constituted a fair response to Appellant's denial of any knowledge of drug activity at the property. Detective Casey's testimony showed Appellant had knowledge of past drug activity at the property and called into question Appellant's credibility regarding his lack of knowledge of the 2010 drug transactions. Thus, the trial court did not err or abuse its discretion by admitting this evidence.
Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 12th day of November, 2013, the order of the Court of Common Pleas of Philadelphia County is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge