Loading...
HomeMy WebLinkAbout10-4983DAVID J. FREED, IN THE COURT OF COMMON PLEAS OF DISTRICT ATTORNEY CUMBERLAND COUNTY, PENNSYLVANIA V. DONNA J. RUDY DOUGLAS WHARTO CAREY, JR.r,~ C7 ~ CASEY CAREY 10- ~y153 CIVIL TERM _ r '~+ --" , PETITION TO EVICT UNDER EXPEDITED EVICTION ~.:_ ~ c; _" OF DRUG TRAFFICKERS ACT, 35 P.S. §780-153 _ -o- ~"'~" ~,~ _:.~ ~ c., Nature of the Action and Jurisdiction: _~Ar Pursuant to Title 35 of Purdons Statutes, The Controlled Substance, Drug, Device and Cosmetic Act, Chapter 6A, Section 780-151 et sec.., Expedited Eviction of Drug Traffickers Act, the cause of action for this matter is a civil action to evict or remove tenants or other persons from leased residential premises. 35 P.S. §780-153. The Court of Common pleas for the county in which the leased premises are located has proper jurisdiction. 35 P.S. §780-154. Standing and Expedited Hearing: This action is brought by the Commonwealth of Pennsylvania through the District Attorney of Cumberland County, David J. Freed, who has standing to bring said action, and who seeks a hearing within 15 days of the filing of the complaint to expedite the eviction of the named party. 35 P.S. §780-155 and 164 (a) . ACTION The Commonwealth of Pennsylvania, by the District Attorney of Cumberland County, David J. Freed, by and through Matthew P. Smith, Chief Deputy District Attorney, respectfully avers as follows: 1. On December 23, 2008, Cumberland County Drug Task Force Detective Timothy Lively responded to a domestic dispute investigation on the 1800 block of Spring Road, Carlisle, Cumberland County, Pennsylvania. 2. During this investigation, police officers noticed two white males, (one later to be identified as Douglas Carey) leaving the driveway of 1878 Spring Road, Carlisle, PA in a large gold/tan vehicle. 3. Detective Lively was informed by other officers that the males just ran from the second floor apartment at the aforementioned address. 4. A cooperating individual, who requests to remain anonymous, informed Detective Lively that there is a lot of activity in the second floor apartment at the aforementioned address.. 5. More specifically, the cooperating individual said that about ten people an hour come and go from the residence and that they stay no longer than 15 minutes at a time. 6. Detective Lively and Officer James Peterson walked to the door of the second floor apartment at the aforementioned address and knocked. After obtaining no answer and noticing the. porch in disarray and the door to be unlocked, Detective Lively opened the door and announced "police." 7. A woman who identified herself as Donna Rudy came to the door and explained that the males who ran from the residence were her son Doug Carey and his friend Matt. 8. Detective Lively concluded his domestic dispute investigation. After speaking with Donna Rudy Detective Lively suspected drug activity at her residence. 9. On December 29, 2008, Detective Lively collected trash that was set out for pickup along the highway, at 1878 Spring Road, Carlisle, PA. The search of the trash yielded documents with Donna Rudy and Douglas Carey's names, along with a cigarette box which contained three small, torn plastic baggies which appeared to have contained a controlled substance. 10. Subsequent to the search of the trash, Detective Lively obtained a search warrant for the second floor apartment of 1878 Spring Road, Carlisle, PA which was executed on January 1, 2009, at approximately 1948 hours. Douglas Carey, Casey Carey, and Donna Rudy were present in the apartment at the time of the search warrant. 11. The search warrant yielded the following: a) rolling papers and a rolling machine found in the kitchen; b) ripped plastic baggies, a box of plastic baggies, and hundreds of empty plastic baggies that seemed to be used for marijuana in the bedroom across from the bathroom; c) Forty-dollars in cash, a glass pipe, two electronic scales, a plastic marijuana smoking device, a small amount of marijuana and marijuana seeds in a plastic baggie, a blow gun, a pill bottle with tape around it, a corduroy pipe bag, and two cell phones were also found in the bedroom across from the bath room; d) a part of a glass pipe and seeds were found in the bedroom next to the living room; e) two cigar boxes with rolling papers and two pipes were located in the living room closet; and f) two "blunt" cigar packages were found in Rudy's purse. One of which smelled of marijuana. 12. During the investigation both Donna Rudy and Douglas Carey claimed that they live out of the bedroom across from the bathroom. Casey Carey claimed that she stays at the apartment every other week and lives in the bedroom next to the living room. 13. Donna Rudy and Douglas Carey were both charged with violations of The Controlled Substance, Drug, Device, and Cosmetic Act as a result of the controlled substance activity at 1878 Spring Road, Carlisle, PA. 14. The preliminary hearing for those charges was held June 14, 2010 and was held to Court. WHEREFORE, Cumberland County District Attorney David J. Freed respectfully requests this Honorable Court to schedule a hearing within 15 days on the above-captioned matter. Respectfully submitted, David J. Freed, District Attorney By: Matthew P. Smith Chief Deputy District Attorney One Courthouse Square, Room 202 Carlisle, PA 17013 VERIFICATION I, David J. Freed, District Attorney of Cumberland County, Pennsylvania does hereby verify, subject to the penalties of 18 P~a.C.S.A. § 4904 relating to unsworn falsifications, that the facts set forth in the foregoing Petition are true and correct to the best of my knowledge, information and belief. ~~ ~-~11 David J. Freed District Attorney AUG 0 ~ 2010 DAVID J. FREED, . DISTRICT ATTORNEY V. , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DONNA J. RUDY, , DOUGLAS WHARTO CAREY, JR. . CASEY CAREY 10 - l;/C~ 0 3 RULE TO SHOW CAUSE AND NOW, this 5~`"day of , 0 1 ~~ O c.:.r c-_ ~ _ ._ CIVIL TERM ~- ' c _ k` :; ~ ?. _~~.. 9~ __ 2 010 , upon ___ c/~ ' ~~~ _~ ..p ~~. ti consideration of the within Petition, a Rule is issued, to be served upon the defendants in the above named action, to appear on the ~7~day of 2010, at ~~~y o'clock, ~ .m., in Courtroom No.o~-- Cumberland County Courthouse, Carlisle, PA, to show cause, if any they have, why they should not be evicted according to law. By the Court, `~~ Matthew P. Smith - Ca~~~/ ~£ltSo,uS~~y C~/~j~ Chief Deputy District Attorney (( / Donna Rudy, Defendant 1878 Spring Road Apartment 2 - Second Floor Carlisle, PA 17013 ./ Douglas Wharto Carey, Jr., Defendant 1878 Spring Road Apartment 2 - Second Floor Carlisle, PA 17013 Casey Carey, Defendant 1878 Spring Road Apartment 2 - Second Floor Carlisle, PA 17013 ~ s l ~o ~r~'1 J. ._~: -T, DAVID J. FREED, IN THE COURT OF COMMON PLEAS OF DISTRICT ATTORNEY CUMBERLAND COUNTY, PENNSYLVANIA V DONNA J. RUDY, DOUGLAS WHARTO 10-4983 CIVIL TERM CAREY, JR., CASEY CAREY IN RE: PETITION TO EVICT ORDER OF COURT AND NOW, this 17th day of August, 2010, this being the time and place set for a Petition to Evict under the Expedited Eviction of Drug Traffickers Act, and the defendant having requested a continuance of this matter in order to procure counsel, this motion being opposed by the Commonwealth, IT IS HEREBY ORDERED AND DIRECTED that the defendant's request for a continuance is granted. Hearing on this matter will be continued until 8:30 a.m. on August 24, 2010, at 8:30 a.m. Failure of the defendant to procure counsel will not delay this matter further. By the Court, vtt,-? (?, . V M. L. Ebert, Jr., J. 0 /Matthew P. Smith, Esquire Chief Deputy District Attorney ? / nna Rudy las Wharto Carey, Jr. asey Carey 1878 Spring Rd. Apartment 2 - second floor Carlisle, Pa. 17013 . mt f S 2v??o e_ a _ v DAVID J. FREED, DISTRICT ATTORNEY V DONNA J. RUDY, DOUGLAS WHARTO CAREY, JR., CASEY CAREY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 10-4983 CIVIL TERM IN RE: PETITION TO EVICT ORDER OF COURT AND NOW, this 24th day of August, 2010, after hearing in the above-captioned matter, IT IS HEREBY ORDERED AND DIRECTED that the Commonwealth should submit a brief in support of its request for eviction in this case on or before the close of business on August 31, 2010. By the Court, ~~ M. L. Ebert, Jr., J. '' Matthew P. Smith, Esquire Chief Deputy District Attorney Donna J. Rudy /~ouglas Wharto Carey, Jr. ~sey Carey :mtf ~oP~~ ~~ g~~~~o Q O ~~ ~~ ccr~~ ~ ~w ~' ~ , y ; r - '~ ~1 y. . ~-. DAVID J. FREED, DISTRICT ATTORNEY V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DONNA J. RUDY, DOUGLAS WHARTO CAREY, JR. CASEY CAREY : NO. 10-4983 CIVIL IN RE: PETITION TO EVICT UNDER EXPEDITED EVICTION OF DRUG TRAFFICKERS ACT, 35 P.S. & 780-153 ORDER OF COURT AND NOW, this 29th day of September, 2010, after consideration of the Cumberland County District Attorney's Petition to Evict under the Expedited Eviction of Drug Traffickers Act, and after consideration of the testimony and all evidence presented, IT IS HEREBY ORDERED that the Petition is DENIED. M. L. Ebert, Jr., -,--Matthew P. Smith, Esquire - Chief Deputy District Attorney _,.--?onna Rudy, Defendant 1878 Spring Road Apartment 2 - Second Floor Carlisle, PA 17013 .' uglas Wharto Carey, Jr., Defendant 1878 Spring Road Apartment 2 - Second Floor Carlisle, PA 17013 --.,C-asey Carey, Defendant 1878 Spring Road Apartment 2 - Second Floor Carlisle, PA 17013 C?Oj? t ?S ?YiaL ?, C you N ?tT7 cD By the Court, DAVID J. FREED, DISTRICT ATTORNEY V. DONNA J. RUDY, DOUGLAS WHARTO CAREY, JR. CASEY CAREY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 10-4983 CIVIL IN RE: PETITION TO EVICT UNDER EXPEDITED EVICTION OF DRUG TRAFFICKERS ACT, 35 P.S. & 780-153 OPINION AND ORDER OF COURT Ebert, J., September 29, 2010 - On July 30, 2010, the Cumberland County District Attorney filed this civil action for eviction of Defendants pursuant to the Expedited Eviction of Drug Traffickers Act 35 Pa.C.S.A. §780-151 et. seq. based on alleged "drug-related criminal activity" in Defendants' residence. For the reasons below, we find that the Commonwealth has not met its burden in proving that Defendants were involved in drug-related criminal activity as defined in the Act, and, furthermore, that the Commonwealth did not bring this action in a timely manner consistent with the goals of the Expedited Eviction of Drug Traffickers Act. Therefore, eviction of Defendants is not appropriate under the facts and circumstances of this individual case. Findings of Fact 1. On December 23, 2008, Detective Timothy Lively from the North Middleton Township Police Department and Cumberland County Drug Task Force was assisting with an unrelated investigation at a residence neighboring Ms. Rudy's apartment at 1878 Spring Road, Carlisle, Pennsylvania. At that time, he observed Defendant Doug Carey and another person running out of the second floor apartment.' 2. Detective Lively suspected criminal activity on the second floor and went to investigate. He talked to Defendant Donna Rudy but found that no crime had occurred. 'Notes of Testimony, Aug. 24, 2010, p. 5. (hereinafter N.T. _) 3. While continuing his original investigation, the neighbor reported that there was a lot of foot traffic on the second floor, which caused Detective Lively to suspect drug activity.2 4. On December 29, 2008, Detective Lively collected trash that he determined to be from the second floor apartment.3 5. In the trash, Detective Lively found documents with the names of Donna Rudy and Douglas Carey, a cigarette box which contained three torn plastic baggies which appeared to have contained marijuana.4 Detective Lively then obtained a search warrant for the second floor apartment of 1878 Spring Road, Carlisle, PA, which was executed on January 1, 2009. The following items were found during the search: a. Rolling papers and a rolling machine, found in the kitchen; b. Ripped plastic baggies, a box of empty plastic baggies, found in the bedroom across from the bathroom; c. Forty dollars in cash, a glass pipe, two electronic scales, a plastic marijuana smoking device, a small amount of marijuana and marijuana seeds in a plastic baggie, a blow gun, a pill bottle with tape around it, a corduroy pipe bag, and two cell phones were also found in the bedroom across from the bathroom; d. A part of a glass pipe and seeds found in the bedroom next to the living room; e. Two cigar boxes with rolling papers and two pipes found in the living room closet; and f. Two "blunt" cigar packages found in Rudy's purse, one of which smelled of marijuana. 6. No further investigation or surveillance was done. 7. The Commonwealth first filed a Complaint in this matter on March 9, 2010, more than one year after the search warrant was executed. 8. The Commonwealth did not present expert testimony to establish that Defendant possessed controlled substances with intent to distribute rather than for personal use. 9. The Commonwealth's only testimony was from Detective Lively, who has never testified as an expert in street level drug trafficking, and was not offered as an expert in this case. 10. The evidence presented at the hearing in this matter did not establish that Donna Rudy, Douglas Carey, Jr., or Casey Carey were engaged in "drug-related criminal activity" as defined in 35 Pa.C.S.A. §780-153. z N.T. 5. s N.T. 6. 4 Affidavit of Probable Cause, Mar. 9, 2010. 2 Discussion One purpose of the Expedited Eviction of Drug Traffickers Act ("the Act") is "to ensure the swift (emphasis added) eviction and removal of persons who engage in certain drug-related criminal activity on or in the immediate vicinity of leased residential premises or who permit members of their households or guests to engage in this criminal activity on or in the vicinity of the premises." 35 P.S. § 780-157. For purposes of the Act, "drug-related criminal activity" is the "unlawful manufacture, sale, distribution or possession with intent to sell or distribute, of a controlled substance in violation of the Controlled Substance, Drug, Device and Cosmetic Act, or an unlawful attempt or conspiracy to commit such an act." 35 P.S. § 780-153. To meet the requirements for eviction under the Act, the Commonwealth must prove that Defendants were engaged in drug-related criminal activity. Factors which may be relevant in establishing possession with intent to distribute include the form of the drug, the particular method of packaging, the behavior of the defendant, the presence of a handgun, the absence of drug use paraphernalia, large sums of cash found on the individual, and expert testimony concerning whether the facts in the case are consistent with an intent to deliver rather than an intent to possess for personal use. In re R.N., 951 A.2d 363, 367 (Pa. Super. 2008). In In re R.N., police recovered a large plastic bag containing six smaller bags of marijuana with a combined weight of 5.3 grams that defendant had thrown out of a vehicle. Id. This type of packaging was consistent with distribution. Police also found a handgun in the vehicle and noted that there was no paraphernalia found at the scene. Id. In that case, the Commonwealth also presented expert testimony that appellant possessed the drugs with intent to distribute. Id. In the present case, the amount of marijuana was so small that the weight was not even noted and it was not in a form recognized as typical for distribution. While there were two electronic scales and plastic baggies, viewed as a whole, all the items seized in the search do not sufficiently establish evidence of distribution. There was no handgun, only a small amount of cash was found in the residence, and no expert testimony was presented to establish that the facts and circumstances in this particular case indicated possession with intent to distribute. Furthermore, the types of drug paraphernalia found at the residence, including rolling papers, a rolling machine, various pipes, and "blunt" cigar packages are uniformly accepted as evidence of personal use. The Commonwealth relies in large part on Commonwealth v. Keefer, 487 A.2d 915, to support its position that Defendant possessed controlled substances with intent to distribute. The Commonwealth points to the "hundreds of baggies" found in the bedroom as evidence that drugs were being distributed from the residence. However, the present case is significantly different from Keefer and can easily be distinguished. In Keefer, Police seized eighteen packets of methamphetamine and three syringes containing the drug from the bed on which appellant's clothing had been found. Id. at 917. Police also found two briefcases in the bedroom, one of which contained an additional eleven small glassine packets, baggies, and a money order made by the appellant. Id. Police then found in co-defendant's pocket a box with nineteen packets of methamphetamine, packaged substantially in the same way as the twenty-nine packets recovered from the bedroom. Id. at 918. The most significant difference is that the appellant in Keefer had very recently sold the drug to a police informant. Id. Unlike Keefer, police in this case did not find any controlled substances that were packaged in such a manner as to indicate that they were intended for distribution. Only a small 4 amount of marijuana was found anywhere in the house, and the numerous smoking devices and rolling papers found tends to indicate that any marijuana in the house was for personal use and not for distribution. Police conducted no further surveillance or investigation of the residence after executing the search warrant, and there is no evidence of further drug activity or suggestion of drug distribution from the residence. Additionally, the search warrant was executed on January 1, 2009, and the Commonwealth did not even file the criminal complaint against Defendants until March 9, 2010, more than a year later. This Petition to Evict under the Expedited Eviction of Drug Traffickers Act was not filed until July 30, 2010, 18 months after the execution of the search warrant. Under these circumstances, it can hardly be said that the Commonwealth's actions were expedite . As such, eviction at this time is not consistent with the legislative intent of the Act under which this action was brought. For these reasons, this Court finds that the Commonwealth did not meet its burden in showing that Defendants possessed marijuana or any other controlled substance with intent to distribute. Furthermore, we find that the Commonwealth's substantial delay in bringing a criminal complaint or Petition to Evict against Defendants is not consistent with grounds for eviction under the Expedited Eviction of Drug Traffickers Act. Eviction under the Act is therefore not supported by the facts and circumstances in this case. ORDER OF COURT AND NOW, this 29th day of September, 2010, after consideration of the Cumberland County District Attorney's Petition to Evict under the Expedited Eviction of Drug Traffickers Act, and after consideration of the testimony and all evidence presented, IT IS HEREBY ORDERED that the Petition is DENIED. M. L. Ebert, Jr., Matthew P. Smith, Esquire Chief Deputy District Attorney Donna Rudy, Defendant 1878 Spring Road Apartment 2 - Second Floor Carlisle, PA 17013 Douglas Wharto Carey, Jr., Defendant 1878 Spring Road Apartment 2 - Second Floor Carlisle, PA 17013 Casey Carey, Defendant 1878 Spring Road Apartment 2 - Second Floor Carlisle, PA 17013 6 By the Court,