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HomeMy WebLinkAboutCP-21-MD-0574-2007COMMONWEALTH OF : IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. 2001 CHEVROLET CAMARO VIN: 2GIFP32KO12108813 : NO. CP -21 -MD -574-2007 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., July 30, 2008. In this forfeiture case, the Commonwealth petitioned for the forfeiture of a 2001 Chevrolet allegedly utilized by its owner for drug trafficking offenses.' Following a hearing, the court granted the forfeiture petition.2 From the order of forfeiture, the vehicle's owner has filed an appeal to the Pennsylvania Commonwealth Court.' The bases for the appeal have been expressed in a statement of matters complained of on appeal as follows: 1. As a matter of law, the Learned Trial Court erred in declaring a forfeiture of the vehicle in question in favor of the Commonwealth because of the great disparity in the value of the drug transaction and the value of the vehicle seized, for the following reasons: a) Arjay Chambers, the owner of the vehicle in question, testified at the hearing that the vehicle in question had a value of $30,000.00 at the time of the seizure. b) This testimony by Arjay Chambers was uncontradicted at hearing. c) "The constitutionality of a punitive forfeiture is analyzed under the gross disproportionality test; this involves a comparison of the value of the property forfeited and the gravity of the Defendant's offense." Com. v. All That Certain Lot or Parcel of Land Located at 2136 Clearview Ave., 841 A.2d 629, Pa. Cmwlth, 2004 ' Commonwealth's Petition for Forfeiture and Condemnation, filed July 16, 2007. 2 Order of Court, June 6, 2008. 'Notice of Appeal, filed June 20, 2008. d) There is a great disparity in the money amounts ($270.00) involved in the two transactions testified to at hearing and the value of the vehicle seized ($30,000.00). e) "The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of the proportionality: the amount of the forfeiture must bear some relationship of the gravity of the offense that it is designed to punish." United States v. Bajakajian, 424 U.S. 321, 118 S. Ct. 2028, 141 L. Ed. 3d 314 (1998) at 118 S.Ct. 2028. f) The drug transaction for which Arjay Chambers was sentenced constituted an exchange of one gram of cocaine for $50.00. g) A forfeiture is unreasonable when the drug involved was marijuana with a total weight of 6.68 grams; forfeiture of the vehicle was grossly disproportionate to the gravity of the offense. Commonwealth v. One (1) 1993 Pontiac Trans Am, 809 A.2d 444, 445, Pa. Cmwlth. 2002. h) In determining whether the property's value is outweighed by the gravity of the offense, the Court should consider the penalty imposed compared to the maximum penalty available for the crime. Com. Real Property Improvements Commonly Known as 5444 Spruce St., Phila., PA, 574 Pa. 423, 832 A.2d 396 (2003) i) The maximum fine for the offense for which Arjay Chambers was sentenced is $15,000.00. See Title 35 Pa.C.S.A. §780-113(f)(2) j) Since the value of the vehicle is $30,000.00 and the maximum fine applicable at sentencing was $15,000.00, the forfeiture under the gross disproportionality test has not been established, therefore, the trial court erred in ordering a forfeiture. k) The Commonwealth did not meet its burden of proof to show the nexus between the crime and a motor vehicle sought to be forfeited under Title 42 U.S.A. §681. See Com. v. One 1970 Pontiac, 21 Pa.D.C. 4th 126 (1993) 1) As a matter of law, given the uncontradicted facts deduced at hearing, Appellant Arjay Chambers is entitled to judgment in his favor in having the forfeiture reversed. 2. As a matter of law, the Learned Trial Court erred in declaring a forfeiture of the vehicle in question in favor of the Commonwealth because the evidence shows that the Commonwealth did not meet its burden of proof to show the nexus between the crime and the motor vehicle sought to be forfeited for the following reasons: a) The evidence at hearing showed that Arjay Chambers drove the vehicle in question to work at the Radisson 2 Hotel and parked the vehicle in the Radisson Hotel parking lot prior to the drug transactions involved. b) Arjay Chambers carried the one gram of cocaine and 24.3 grams of marijuana in small packets on his person while driving to work and carried these packets on his person after parking and walking into the Radisson to work. c) Arjay Chambers used cocaine and marijuana. d) The two drug transactions were arranged by phone while Arjay Chambers was inside the Radisson. e) To participate in the drug transactions, Arjay Chambers walked out of the Radisson with the drugs on his person and drove the Camaro from one part of the Radisson parking lot to another part of the lot. f) The marijuana transaction was consummated by Arjay Chambers when he was outside of the vehicle in question. g) The cocaine transaction was consummated by the undercover informant handing $50.00 in cash to Chambers through an open window of the vehicle in question. h) After both transactions, Chambers returned to his job at the Radisson. i) Property is forfeited not as a result of the criminal conviction of a person from whom the property is seized, but through a separate civil proceeding in which the law enforcement agency seeking the property must show, by a preponderance of the evidence, a nexus between the property sought to be forfeited and the possessor's illegal activity. Com. v. $73,671.30 Cash, U.S. Currency and Assorted Firearms, 654 A.2d 93, Pa. Cmwlth. (1995) j) Although forfeiture of the vehicle used to facilitate the violation of a controlled substance law does not require that the controlled substances actually be found within the vehicle, in interpreting "facilitate" the prosecution must show a sufficient or substantial nexus between the property and the prohibited activity. Com. v. $1920.00 U.S. Currency, 612 A.2d 614, Pa. Cmwlth. (1992) k) "The evidence was insufficient to establish that the claimant's vehicle was used as an instrument of the crime of criminal solicitation to commit murder, and thus the vehicle was not derivative contraband subject to common law forfeiture; the informant, who claimant sought to kill his wife, testified that the claimant drove the vehicle to two of their meetings and that he sat in the vehicle on one occasion." Com. v. One 2001 Toyota Camry, 894 A.2d 207, 208, Pa. Cmwlth. (2006) 3 m) The Commonwealth has not shown there is a substantial nexus between the vehicle in question and the crime involved. Therefore, the forfeiture should be overturned .4 This opinion in support of the court's order granting the Commonwealth's petition for forfeiture is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS As the result of drug sales occurring on March 23, 2007, and April 10, 2007,5 within 1000 feet of a school,6 Arjay Allan Chambers (hereinafter Respondent) was charged with felonies under Pennsylvania's Controlled Substance, Drug, Device and Cosmetic Acta He pled guilty on September 24, 2007, to possession with intent to deliver cocaine, an ungraded felony carrying penalties in the form of a fine of not more than $100,000.00 and a jail sentence of not more than 10 years,$ subject to an agreed-upon sentence of not less than two years nor more than four years in a state correctional institution, with a recommendation for admission into the boot camp program and a waiver by the Commonwealth of any applicable mandatory sentence, in full satisfaction of all charges at both dockets.9 4 Appellant's Concise Statement of Matters Complained of on Appeal, filed July 7, 2008 'See N.T. 4-24, Hearing, June 5, 2008 (hereinafter N.T. —). 6 Commonwealth's Ex. 3, at 2-3 (guilty plea proceeding), Hearing, June 5, 2008 (hereinafter Commonwealth's Ex. _). See Information, No. 1172-2007 Criminal Term (March 27, 2007, incident) (cocaine); Information, No. 1169-2007 Criminal Term (April 10, 2007, incident) (marijuana). s See Act of April 14, 1972, P.L. 233, §13(a)(30), as amended, 35 P.S. §780-113(a)(3) (2008 Supp.); id., §13(f)(1.1), as amended, 35 P.S. §780-113(f)(1.1) (2008 Supp.); Commonwealth's Ex. 3, at 2 (guilty plea proceeding). The court is unable to agree with the assertion in Respondent's statement of matters complained of on appeal that the maximum applicable fine was 15,000.00. 9 Commonwealth's Ex. 3, at 2-7 (guilty plea proceeding). Defendant received the agreed-upon sentence on October 30, 2007. Commonwealth's Ex. 4, at 5-8 (sentencing proceeding). 11 The Commonwealth filed a petition for forfeiture of the 2001 Chevrolet Camaro owned and utilized by Respondent on the occasion of both sales.10 The petition was endorsed with a Notice To Answer Petition for Forfeiture and Condemnation," and a Rule To Show Cause was issued upon Respondent by the court, directing him to show cause why the forfeiture should not be granted. 12 Respondent filed an answer to the petition, admitting most of the Commonwealth's allegations, but (a) asserting that "the car in question had just recently been titled in the Respondent's name as part of an inheritance he received from his recently deceased grandfather" and (b) declining to concede that the property had been used to facilitate the sale or transportation of a controlled substance." A hearing on the forfeiture petition was held on June 5, 2008. At the hearing, the Commonwealth presented the testimony of an undercover state trooper, who orchestrated the controlled buys in question, 14 and secured the admission of four exhibits: a laboratory report relating to the cocaine which Respondent sold on March 23, 2007;15 a laboratory report relating to the marijuana which Respondent sold on April 10, 2007;16 the transcript of Respondent's guilty plea proceeding;17 and the transcript of Respondent's sentencing proceeding.lg Respondent presented the testimony of himself. 19 10 Petition for Forfeiture and Condemnation, filed July 16, 2007. " Petition for Forfeiture and Condemnation, filed July 16, 2007. 12 Rule To Show Cause, July 19, 2008. " Answer To Commonwealth's Petition for Forfeiture and Condemnation, filed August 27, 2007. As of the filing of the petition and answer, Respondent had not yet entered his plea of guilty. 14 N.T. 5-22. 15 Commonwealth's Ex. 1. 16 Commonwealth's Ex. 2. 17 Commonwealth's Ex. 3. 18 Commonwealth's Ex. 4. 19 N.T. 24-40. E Trooper Borza's testimony, which the court found entirely credible, may be summarized as follows: On Friday, March 23, 2007, utilizing a confidential informant, Trooper Borza orchestrated a drug transaction in which, pursuant to an arrangement made with Respondent by the informant, the trooper and the informant drove to a parking area at the Radisson Hotel in East Pennsboro Township, Cumberland County, Pennsylvania, and parked near the Chevrolet at issue herein, which was owned by Respondent. The informant approached the Chevrolet, which was occupied solely by Respondent, got in, received cocaine from Respondent, returned to the trooper's vehicle, obtained $50.00 from the trooper, returned to Respondent's Chevrolet, and paid Respondent for the cocaine by handing him the money through the Chevrolet's window. It was not raining on this occasion.20 On Tuesday, April 10, 2007, the trooper orchestrated a second drug transaction in which the informant arranged for the trooper to make a direct purchase from Respondent in the same general parking area. On this occasion, Respondent arrived in the subject Chevrolet, got out, approached the trooper's vehicle, and delivered marijuana to the trooper in exchange for $210.00.21 Defendant testified that he was an employee of the Radisson Hotel, where the transactions took place .22 With respect to the first transaction, involving a sale of cocaine, according to his testimony he had driven the Chevrolet to work that day with cocaine in his wallet,23 had used some of the cocaine himself while at work, 24 and had conducted the transaction in the Chevrolet because it was raining. 25 With respect to the second transaction, involving a sale of marijuana, he 20 N.T. 5-9, 12-17, 21. 21 N.T. 9-12, 18-21. 22 N.T. 25. 2 N.T. 25, 29. 24 N.T. 28-29, 37. 2s N.T. 27, 29. 0 testified that had driven the Chevrolet to work that day with a packet of marijuana, intended for personal use, in his pocket,26 that, to facilitate the sale, he drove the Chevrolet to where the trooper's vehicle was located '27 and that, at the time of the transfer, the drug was in a McDonald's bag in order to conceal the nature of the transaction .28 According to Respondent's testimony, the value of his 2001 Chevrolet Camaro was from $30,000.00 to $31,000.00.29 The Commonwealth, however, maintained inter alia that any issue as to disproportionality had been waived by virtue of its omission from Respondent's answer to the forfeiture petition. 30 Following the hearing, the court took the matter under advisement .31 Subsequently, the order was entered from which Respondent has appealed, granting the Commonwealth's petition for forfeiture of Respondent's Chevrolet .32 DISCUSSION Nexus between vehicle and illegal activity. Under Section 6801(a)(6)(1)(B) of the Judicial Code, it is provided that "[m]oney, negotiable instruments, securities or other things of value used or intended to be used to facilitate any violation of The Controlled Substance, Drug, Device and Cosmetic Act" are "subject to forfeiture to the Commonwealth and no property right shall exist in them." Act of June 30, 1988, P.L. 464, §4, as amended, 42 Pa. C.S. §6801(a)(6)(1)(B) (2008 Supp.). The word "facilitate" in this context broadly encompasses any use or intended use of the property which makes trafficking in contraband less difficult and laborious. 26 N.T. 30-31, 37-39. 27 N.T. 32. 2s N.T. 33. 29 N.T. 36. so N.T. 34. 31 Order of Court, June 6, 2008. 12 Order of Court, June 6, 2008. 7 Commonwealth v. Funds in Merrill Lynch Account, 777 A.2d 519, 525 (Pa. Commw. 2001). In this regard, the Commonwealth bears the burden of establishing, by a preponderance of the evidence, that a nexus exists between the pertinent unlawful activity and the property subject to forfeiture. When that burden is sustained, the burden of proof shifts to the property owner to disprove the evidence or establish statutory defenses to avoid forfeiture .... Commonwealth v. 1992 Chevrolet, 844 A.2d 583, 585 (Pa. Commw. 2004). Neither a criminal prosecution nor a conviction is a prerequisite to forfeiture. Commonwealth v. $11,000.00 Cash, U.S. Currency, 858 A.2d 160, 167 (Pa. Commw. 2004). Finally, in a forfeiture proceeding "[t]he credibility of witnesses and the weight to be accorded to the evidence produced are matters within the province of the fact finder, who is free to believe all, some or none of the evidence." In re: Return of Property Confiscated October 30, 1999, 856 A.2d 238, 249 (Pa. Commw. 2004). In the present case, where (a) Respondent pled guilty to one drug sale and acknowledged his commission of a second drug sale, (b) in the first sale he used the vehicle at issue to transport the drug to the place of transfer, to conceal the delivery as it occurred from public view,33 and as the locus for his receipt of payment, and (c) in the second sale he used the vehicle to transport the drug to the place of transfer, the court was of the view that the Commonwealth had established a sufficient nexus between the vehicle and Respondent's drug trafficking, without credible countervailing proof by Respondent, to warrant a finding that the vehicle had been used by Respondent to facilitate a violation of the Controlled Substance, Drug, Device and Cosmetic Act. Disproportionality defense. In Pennsylvania, an action under the Forfeiture Act is considered a civil proceeding. See In re One 1988 Toyota Corolla, 675 " The court did not find credible Respondent's testimony that he had chosen to conduct the delivery of the cocaine in the vehicle because it was raining. '3 A.2d 1290, 1295 (Pa. Commw. 1996). With respect to petition practice, under Pennsylvania Rule of Civil Procedure 206.2(a) an answer to a petition must "state the material facts which constitute the defense to the petition." As is true with other proceedings, a forfeiture proceeding is subject to the rule that issues not properly raised are waived. See generally Commonwealth v. One 1990 Dodge Ram Van, 751 A.2d 1235, 1237 (Pa. Commw. 2000) (failure to file answer to forfeiture petition, inter alia). In the present case, where Respondent's answer to the Commonwealth's petition did not express, or even imply, a defense based upon disproportionality, the Commonwealth's position that any disproportionality argument was waived would appear to be correct. On the merits, Respondent's disproportionality defense also seemed to the court to be unavailing. The principles underlying this defense have been outlined by the Pennsylvania Commonwealth Court as follows: "The Eighth Amendment to the United States Constitution and Article 1, Section 13 of the Pennsylvania Constitution prohibit the imposition of excessive bail, excessive fines and cruel punishments upon a defendant." Commonwealth v. Smothers, 920 A.2d 922, 925 n.4 (Pa. Commw. 2007). Where a forfeiture under Pennsylvania's Forfeiture Act "is grossly disproportional to the gravity of the offense," it will be deemed an impermissible excessive fine. Id. at 926. In deciding an excessive fine challenge, the trial court must compare the amount of the forfeiture to the gravity of the offense, which may be measured by comparing the penalty imposed to the maximum penalty available, determining whether the violation was isolated or part of a pattern of misbehavior and assessing the harm that resulted from the crime charged. Id. In the context of real estate forfeitures, it has been said that "[t]he Commonwealth must prove by clear and convincing evidence that the criminal conduct at issue is not a one-time occurrence to overcome an excessive fine challenge." Id. 0 In the present case, where (a) Respondent's $31,000.00 appraisal of his 2001 Chevrolet Camaro, while of great interest to the court as owner of a 2000 Chevrolet Lumina, seemed somewhat optimistic, (b) the vehicle was used to facilitate two felony drug transactions, (c) the potential fines for the offenses exceeded $100,000.00, and (d) no fine was imposed upon Respondent in connection with his plea, it did not seem to the court that the forfeiture was grossly disproportionate to the gravity of the offenses involved. For the foregoing reasons, it is believed that the order of forfeiture from which Respondent has appealed was properly entered. Robert B. Stewart, 111, Esq. Deputy Attorney General Office of the Attorney General 100 Lowther Street Lemoyne, PA 17043 Attorney for Petitioner/Appellee Peter B. Foster, Esq. Pinskey & Foster 114 South Street Harrisburg, PA 17101 Attorney for Respondent/Appellant 10 BY THE COURT, J. Wesley Oler, Jr., J.