Commonwealth v. Bowers , 185 A.3d 358 ( 2018 )

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2018 Pa. Super. 88
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
CURTIS WILLIAM BOWERS
Appellant No. 1188 MDA 2017
Appeal from the Order Entered July 11, 2017
In the Court of Common Pleas of 39th District
Franklin County Branch
Criminal Division at No: CP-28-CR-0000467-2017
CP-28-CR-0002186-2016
BEFORE: PANELLA, STABILE, and PLATT,* JJ.
OPINION BY STABILE, J.: FILED APRIL 16, 2018
Appellant, Curtis William Bowers, appeals from a pretrial order entered
July 11, 2017 in the Court of Common Pleas of the 39th Judicial District,
Franklin County Branch, which, inter alia, denied his motion for return of
property and granted the Commonwealth’s forfeiture petition. We quash this
appeal as interlocutory due to the lack of a final order in Appellant’s criminal
case.
On September 7, 2016, Franklin County detectives executed search
warrants at Appellant’s residence and his place of business, Local Exposure,
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* Retired Senior Judge assigned to the Superior Court.
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LLC. The detectives discovered marijuana, packaging materials and drug
paraphernalia at his residence and $21,150.00 in cash in a safe at Local
Exposure. After receiving Miranda1 warnings, Appellant informed detectives
that the money in the safe “was there for the next purchase of marijuana. He
explained he got at times between 4 to 8 pounds [and] would take an average
of $18,000.00 along to a source in Baltimore . . . [H]e would drive various
vehicles that he had depending [on] what he felt like driving that day.” N.T.,
4/28/17, at 42 (suppression hearing). Appellant also admitted to the
detectives that his only source of income was from drug trafficking. Id. at 45.
Appellant was charged with possession with intent to deliver a controlled
substance2 and other drug-related offenses. On November 15, 2016,
Appellant filed a motion for return of property under Pa.R.Cr.P. 588, seeking
return of the $21,250.00 in cash and two vehicles, a 2005 Mini Cooper and a
2014 Ford Mustang, that he drove to pick up his marijuana purchases. On
December 21, 2016, the Commonwealth filed an answer to Appellant’s motion
for return of property and a counterclaim in the nature of a petition for civil
forfeiture of the cash and vehicles under the Forfeiture Act, 42 Pa.C.S.A.
§§ 6801-6802.3 Appellant then filed (1) a motion to suppress evidence seized
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1 Miranda v. Arizona, 384 U.S. 436 (1966).
2 35 P.S. § 780-113(a)(30).
3 Effective July 1, 2017, the Forfeiture Act was recodified at 42 Pa.C.S.A.
§§ 5801-5808.
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at his residence and Local Exposure and his Mirandized statement to the
detectives, and (2) a motion for writ of habeas corpus.
On April 28, 2017, the trial court held a hearing on all of these motions.
In a thorough opinion and order entered on July 11, 2017, the trial court (1)
denied Appellant’s motion to suppress and motion for writ of habeas corpus,
(2) granted the Commonwealth’s counterclaim for forfeiture of the cash and
vehicles; and (3) dismissed Appellant’s petition for return of property as moot.
On July 25, 2017, Appellant filed a notice of appeal to this Court from the
portion of the order granting the Commonwealth’s counterclaim for forfeiture.
Following this appeal, there have been no further proceedings in the trial
court; specifically, Appellant has not pleaded guilty or gone to trial, and the
Commonwealth has not dismissed the charges.
Appellant argues in this appeal that the trial court abused its discretion
in granting the Commonwealth’s counterclaim for forfeiture. At the outset,
we summarize several important forfeiture principles. “The goal of the
Forfeiture Act is to eliminate economic incentives of drug-related activity and
thereby deter such activity.” Commonwealth v. Heater, 899 A.2d 1126,
1132 (Pa. Super. 2006). Civil forfeitures
are the in rem consequence for wrongdoing prescribed by statute.
Property is forfeited not as a result of [a] criminal conviction, but
through a separate proceeding, civil in form but quasi-criminal in
nature, in which the agency seeking the property must show, by
a preponderance of the evidence, a nexus between the property
sought and the possessor’s illegal activity . . . Regardless of
whether a conviction can be gained from the evidence, the
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Commonwealth may seek to forfeit property as long as it
establishes that the property constitutes contraband.
Commonwealth v. Jackson, 53 A.3d 952, 956 (Pa. Cmwlth. 2012) (citations
omitted).4 The Act provides that multiple items are subject to forfeiture,
including controlled substances, vehicles used to transport controlled
substances, and “money . . . 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.” 42 Pa.C.S.A. § 5802(a)(4), (a)((6)(i)(A).
Notably, while forfeiture proceedings are separate from criminal
proceedings, the course of criminal proceedings may have significant impact
on forfeiture proceedings. For example, the Commonwealth cannot use
evidence in forfeiture proceedings that has been suppressed in criminal
proceedings. Commonwealth v. Jackson, 53 A.3d 952, 958 (Pa. Cmwlth.
2012) (“only where the government has independent, unsuppressed evidence
that the res is contraband is it entitled to proceed to the merits in a forfeiture
case”). In addition, as discussed below, the absence of a final order in the
defendant’s criminal case might preclude him from taking an immediate
appeal from a forfeiture order.
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4 “Although the decisions of the Commonwealth Court are not binding upon
this Court, they may serve as persuasive authority.” Commonwealth v.
Rodriguez, 81 A.3d 103, 107 n.7 (Pa. Super. 2013).
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With these principles as backdrop, we address whether we have
jurisdiction to decide this appeal. B.L. v. T.B., 152 A.3d 1014, 1016 (Pa.
Super. 2016) (court may raise question of subject matter jurisdiction sua
sponte). The Commonwealth Court normally has jurisdiction over appeals
from forfeiture orders, so when, as here, a party appeals a forfeiture order to
this Court, we have the discretion to transfer the appeal to the Commonwealth
Court under Pa.R.A.P. 741(a). But when neither party objects, we can elect
to exercise jurisdiction over a forfeiture appeal. Commonwealth v. Smith,
722 A.2d 167, 169 (Pa. Super. 1998). In this instance, Appellant has appealed
the forfeiture components of the July 11, 2017 order to this Court, and the
Commonwealth has not objected to our jurisdiction. Therefore, we decline to
transfer this appeal to the Commonwealth Court.
There is, however, another jurisdictional issue: whether Appellant can
appeal the forfeiture order despite the absence of a judgment of sentence or
other final order in his criminal case. We have held that while a criminal action
remains pending, an appeal from an order denying the defendant’s motion to
return property is interlocutory and unappealable if the defendant’s motion
relates in any way to the criminal prosecution. Commonwealth v. Lewis,
431 A.2d 357, 360 (Pa. Super. 1981). This rule reflects our preference for
appeals from final orders, and not only prevents piecemeal appeals and
protracted litigation but also promotes judicial accuracy. “[A]s a general rule,
an appellate court is more likely to decide a question correctly after judgment,
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where it may consider the claim in the context of a complete adjudication and
a fully developed record.” Rae v. Pennsylvania Funeral Directors Ass’n,
977 A.2d 1121, 1130 (Pa. 2009).
We have not found any decisions addressing whether an interlocutory
appeal is permissible from an order granting the Commonwealth’s forfeiture
petition. Nevertheless, we think that the rule in Lewis relating to
interlocutory appeals from an order denying the defendant’s motion for return
of property should also apply to appeals from orders granting forfeiture
petitions. Petitions for return of property and petitions for forfeiture concern
the same substantive issue. i.e., who is entitled to possession of property
seized by law enforcement officials. The only difference is one of form; the
Commonwealth is the moving party in a petition for forfeiture of property,
while the defendant is the moving party in a petition for return of property.
Thus, “[i]n actual practice[,] the standards in actions for the return of property
or for the forfeiture of property are indistinguishable.” Commonwealth v.
Perin, 722 A.2d 227, 231 (Pa. Cmwlth. 1998), reversed on different grounds,
731 A.2d 1275 (Pa. 1999); see also Commonwealth v. Marshall, 698 A.2d
576, 578-79 (Pa. 1997) (analyzing whether there was sufficient evidence to
meet Commonwealth’s burden under Forfeiture Act in appeal from denial of
motion for return of forfeited property); In re One 1988 Toyota Corolla,
675 A.2d 1290, 1295 (Pa. Cmwlth. 1996) (in practice, claimant’s motion for
return of property is simply “mirror image” of forfeiture action under Forfeiture
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Act). Therefore, we hold that while an underlying criminal action remains
pending, an appeal from an order deciding the Commonwealth’s forfeiture
petition is interlocutory and unappealable if the forfeiture petition relates in
any way to the criminal prosecution.
The suppression and forfeiture motions in this case are intertwined.
Appellant moved to suppress his statements to the detectives that he used
the cash in his safe to purchase marijuana and used both cars for his trips to
Baltimore to purchase marijuana. Opinion, 7/11/17, at 12-15. Had the trial
court suppressed these statements, the Commonwealth would not have been
able to use them as evidence in the forfeiture proceeding. Jackson, 53 A.3d
at 958. The trial court, however, declined to suppress these statements and
then granted the Commonwealth’s forfeiture motion by pointing to these
statements as evidence of a nexus between Appellant’s cash and cars, on the
one hand, and his unlawful drug-related activities, on the other. Opinion,
7/11/17, at 29.
Because the forfeiture order relates to some extent to Appellant’s
criminal prosecution, he cannot appeal the forfeiture order until there is a final
order in his criminal case, i.e., an order that disposes of all parties and all
issues. Pa.R.A.P. 341(b)(1). An appeal from a final order will allow
consideration of the forfeiture issue “in the context of a complete adjudication
and a fully developed record,” Rae, 977 A.2d at 1130. This is potentially an
important consideration here, for if Appellant challenges both the order
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denying suppression and the forfeiture order in an appeal from a final order,
the appellate court’s disposition of the suppression issue will likely affect what
evidence the appellate court may consider in connection with the forfeiture
issue.5 See, e.g., Jackson, 53 A.3d at 958.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/2018
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5 We express no opinion on what the proper disposition of the suppression or
forfeiture issues should be.
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