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HomeMy WebLinkAbout02-117 MiscellaneousCOMMONWEALTH ALL THAT CERTAIN LOT OR PARCEL OF LAND LOCATED AT 336 OLD GETTYSBURG PIKE, MECHANICSBURG, PENNSYLVANIA, AND DESCRIBED WITH PARTICULARITY AT DEED BOOK 147, PAGE 680, RECORDER OF DEEDS OFFICE, CUMBERLAND COUNTY, PENNSYLVANIA. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 02-117 MISCELLANEOUS PETITION FOR FORFEITURE BEFORE HESS. J. OPINION AND ORDER This matter arises from the forfeiture and condemnation of real property, pursuant to the Controlled Substances Act, 42 Pa. C.S.A. § 6801 et seq. The defendant/real property is real estate located at 336 Old Gettysburg Pike, Mechanicsburg, Cumberland County, along with all its improvements, appurtenances, buildings, and structures.~ The owner of the property is one Roxanne E. Weaver, the claimant in this matter, and the lien holder is Principal Residential Mortgage, Inc., of Mechanicsburg, Cumberland County. The seizure of the property by the Commonwealth came about as the result of investigations that began in May, 2001, conducted by agents of the Office of the Attorney General, Bureau of Narcotics Investigation and Drug Control. On May 12, 2001, Bureau agents ~ As described in Deed Book No. 147, p. 680, Recorder of Deeds Office, Cumberland County, Pennsylvania. 02-117 MISC. received a tip from an informant that one Adam Chronister was engaged in the distribution of marijuana. The informant indicated that he had purchased marijuana from Chronister in the past and that Chronister was living with his girlfriend, Carly Weaver, and her parents, Roxanne and James Weaver, at the residence that is the subject of this action. The phone number provided by the informant as the one at which Chronister could be contacted was later determined to be assigned to James Weaver at the 336 Old Gettysburg Pike property. The informant also indicated that he had purchased marijuana from Chronister at the subject property and that Roxanne and James Weaver were present in the residence during the time that the transaction occurred. Furthermore, the informant told the Bureau agents that pound quantities of marijuana were visible in the living room of the residence. On the basis of this information, one of the Bureau agents directed the informant to contact Chronister at the above-mentioned telephone number in order to set up a meeting to purchase marijuana. This meeting occurred, as did a number of subsequent meetings. At Chronister's direction, the last took place at the Weaver residence. On numerous other occasions, Bureau agents followed Chronister to and/or from the 336 Old Gettysburg Pike residence before and after these transactions. The culmination of these transactions was the arrest of Chronister: he was charged with three counts of Possession With Intent To Deliver and one count of Criminal Conspiracy. Upon Chronister's arrest, a search warrant was executed on the residence at 336 Old Gettysburg Pike. The search discovered various quantities of marijuana, books on manufacturing marijuana, and a duffle bag containing $3,720.00. In addition, not far from where James Weaver was sitting, there was an open duffle bag containing seven pounds of marijuana 02-117 MISC. packaged in freezer bags. be accurate: Moreover, we find the scene, as described by the Commonwealth, to While Mr. Weaver sat at the coffee table manicuring marijuana, Roxanne Weaver was in the kitchen preparing dinner. The marijuana in the house on the day of the search warrant was packaged identically to the marijuana purchased by the informant on a prior occasion and the marijuana seized from Chronister on the day of his arrest. Letter Brief in Support of Commonwealth' s Position, at 3. A number of individuals have testified on the claimant's behalf. Adam Chronister testified that he dealt large quantities of marijuana out of his car, but that he never kept marijuana in the Weaver household, aside from the particular day on which the search warrant was executed. The credibility of this testimony is, at best, questionable. Among other things, it is belied by a June 6, 2001, recording wherein Chronister tells the informant that he has "more [marijuana] nuggets at home." James Weaver testified that he was unaware of Chronister's illegal transactions. As the Commonwealth points out, this testimony, too, is questionable in light of Mr. Weaver's plea of guilty to Criminal Conspiracy with Chronister to deliver marijuana. This conclusion is bolstered by his statement to the Court, during his sentencing proceeding, that he "knew what was going on in the home was not right." Transcript of Sentencing Proceeding of April 2, 2002, at 7. Roxanne Weaver has testified that she had knowledge of neither the seven pounds of marijuana that were discovered in her home, nor of Adam Chronister's drug dealing activities out of her home. 02-117 MISC. Pursuant to the Drug Forfeiture Act, the Commonwealth bears the initial burden of showing the existence of a nexus between the unlawful activity and the property subject to the forfeiture. Once the nexus is established, the burden shifts to the claimant to establish the innocent owner defense. Com. v. $2523.48 U.S. Currency, 538 Pa. 551,694 A.2d 658 (Pa. 1994). The Forfeiture Act provides the following regarding an owner's burden of proof: (j) Owner's Burden of Proof. - At the time of the hearing, if the Commonwealth produces evidence that the property in question was unlawfully used, possessed or otherwise subject to forfeiture under section 6801(a), the burden shall be upon the claimant to show: (3) That it was not unlawfully used or possessed by him. In the event that it shall appear that the property was unlawfully used or possessed by a person other than the claimant, then the claimant shall show that the unlawful use or possession was without his knowledge or consent. Such absence of knowledge or consent must be reasonable under the circumstances presented. 42 Pa. C.S.A. {} 6802(j). The question thus arises whether the law requires proof that it was "reasonable under the circumstances" for the particular owner, who is challenging the forfeiture, to have known about the unlawful use or possession of the property, or must the owner demonstrate that it was reasonable for any owner to have lacked knowledge concerning the unlawful activities. The claimant argues that the latter standard imposes a greater burden on the owner "in that his or her alertness would have to be compared to any other owner's in a similar situation." Letter Brief in Support of Claimant's Position, at 1. In Com. v. $ 2523.48 U.S. Currency, the court dealt with this query in the context of a case where the unlawful use or possession was without the owner's consent: 02-117 MISC. The standard for determining lack of consent is not whether the property owner did as much as another property owner did to prevent illegal activity. As we stated earlier, the standard is one of reasonableness; what is reasonable for one property owner may not be reasonable for another. All of the circumstances surrounding the property owner's actions, or lack of action, must be considered in determining if they were reasonable. Com. v. $ 2523.48 U.S. Currency, 649 A.2d at 661-62. The claimant points out that the Forfeiture Act's language, "reasonable under the circumstances," modifies both "knowledge" and "consent." We agree with the claimant that it is logical to conclude that that the standard for "knowledge" would be the same as that set forth by our Supreme Court for "consent." Hence, the dispositive question here is whether it was reasonable under the circumstances for Roxanne Weaver to have lacked knowledge of Adam Chronister's illegal drug activities on her property. The claimant contends that, applying the above standard, and because "[t]he commonwealth's evidence was not substantial," Ms. Weaver's supposed lack of knowledge would be reasonable. We disagree. Roxanne Weaver admitted that she was being supplied with marijuana by Chronister while he was staying in her home. She admitted that she was aware that Chronister was cultivating marijuana plants on her property and, too, that she suspected that he would harvest these plants. Ms. Weaver realized that the use of marijuana in her home was a frequent occurrence--use not just by others, but, also, by herself. She admitted having full knowledge of her husband's drug-related history. In sum, Ms. Weaver can only be assumed to be familiar with the appearance, smell, handling, growth, and other pertinent characteristics of marijuana. Nevertheless, her counsel argues that "the household's regular use of marijuana would have 02-117 MISC. permeated the air, thus prohibiting her from noticing the smell of large quantities found... during the search." Letter Brief in Support of Claimant's Position, at 5. We are not convinced. To the contrary, it was decidedly unreasonable, under the circumstances, for Roxanne Weaver to have been without knowledge of illegal drug activities on her property. ORDER AND NOW, this 3rd day of January, 2003, upon consideration of the petition and after hearing, it is ordered and decreed as follows: The prayer of the petition is granted. All claims of right, title or interest ofRoxanne E. Weaver and James M. Weaver, and any other claimant in the defendant/real property except that of Principal Residential Mortgage, Inc., and all other valid liens and encumbrances perfected on the defendant/real property before the date of seizure which is March 4, 2002, are hereby declared to be terminated, revoked and rendered null and void. The real estate located at 336 Old Gettysburg Pike, Mechanicsburg, Cumberland County, Pennsylvania, as described with particularity in Deed Book 147, Page 680, Recorder of Deeds Office, Cumberland County, Pennsylvania, and as attached, along with all of its improvements, appurtenances, buildings, structures and all other items, is hereby condemned and forfeited to the Commonwealth of Pennsylvania, Office of Attorney General, pursuant to the Judicial Code, Chapter 68, Controlled Substances Forfeitures Act, Sections 6801-6802, 42 Pennsylvania C. $.A. Section 6801 et seq., for distribution, use or disposition in accordance with law. When and if the defendant/real property is sold, the net proceeds of said sale shall be forfeited, after all valid liens and encumbrances, which includes the Principal Residential Mortgage, Inc.'s note secured by its mortgage on the defendant/real property, and all expenses of 6 02-117 MISC. forfeiture and sale thereof have been deducted and paid to the proper authorities, to the Commonwealth of Pennsylvania, Office of Attorney General, and the Cumberland County District Attorney's Office pursuant to the Controlled Substances Forfeitures Act, an Act of June 30, 1988, Act No. 1988-79, 42 Pennsylvania C.S.A. Section 6801 et seq. This order shall be recorded in the Recorder of Deeds Office for Cumberland County as proof of judgment and transfer of title to the Commonwealth of Pennsylvania, Office of Attorney General, in order that the property may be sold. Any persons residing in said residence shall vacate the premises within forty-five (45) days of service of this order. residence. Service shall be made by delivering a copy of this order to the BY THE COURT, Doreena C. Sloan, Esquire Deputy Attorney General Robert N. Tarman, Esquire For the Claimants Jonah D. Levin, Esquire For Principal Residential Mortgage, Inc. :rlm Kevin A. Hess, J. 02-117 MISC. COMMONWEALTH ALL THAT CERTAIN LOT OR PARCEL OF LAND LOCATED AT 336 OLD GETTYSBURG PIKE, MECHANICSBURG, PENNSYLVANIA, AND DESCRIBED WITH PARTICULARITY AT DEED BOOK 147, PAGE 680, RECORDER OF DEEDS OFFICE, CUMBERLAND COUNTY, PENNSYLVANIA. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-117 MISCELLANEOUS IN RE: PETITION FOR FORFEITURE BEFORE HESS. J. ORDER AND NOW, this 3rd day of January, 2003, upon consideration of the petition and after hearing, it is ordered and decreed as follows: The prayer of the petition is granted. All claims of right, title or interest ofRoxanne E. Weaver and James M. Weaver, and any other claimant in the defendant/real property except that of Principal Residential Mortgage, Inc., and all other valid liens and encumbrances perfected on the defendant/real property before the date of seizure which is March 4, 2002, are hereby declared to be terminated, revoked and rendered null and void. The real estate located at 336 Old Gettysburg Pike, Mechanicsburg, Cumberland County, Pennsylvania, as described with particularity in Deed Book 147, Page 680, Recorder of Deeds Office, Cumberland County, Pennsylvania, and as attached, along with all of its improvements, appurtenances, buildings, structures and all other items, is hereby condemned and forfeited to the Commonwealth of Pennsylvania, Office of Attorney General, pursuant to the Judicial Code, Chapter 68, Controlled Substances Forfeitures Act, Sections 6801-6802, 42 Pennsylvania C.S.A. Section 6801 et seq., for distribution, use or disposition in accordance with law. When and if the defendant/real property is sold, the net proceeds of said sale shall be forfeited, after all valid liens and encumbrances, which includes the Principal Residential Mortgage, Inc.'s note secured by its mortgage on the defendant/real property, and all expenses of forfeiture and sale thereof have been deducted and paid to the proper authorities, to the Commonwealth of Pennsylvania, Office of Attorney General, and the Cumberland County District Attorney's Office pursuant to the Controlled Substances Forfeitures Act, an Act of June 30, 1988, Act No. 1988-79, 42 Pennsylvania C.S.A. Section 6801 et seq. This order shall be recorded in the Recorder of Deeds Office for Cumberland County as proof of judgment and transfer of title to the Commonwealth of Pennsylvania, Office of Attorney General, in order that the property may be sold. Any persons residing in said residence shall vacate the premises within forty-five (45) days of service of this order. residence. Service shall be made by delivering a copy of this order to the BY THE COURT, Kevin A. Hess, J. Doreena C. Sloan, Esquire Deputy Attorney General Robert N. Tarman, Esquire For the Claimams Jonah D. Levin, Esquire For Principal Residemial Mortgage, Inc. :rlm