OAG & PSP v. J.O. Edmundson, Jr.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
Office of the Attorney General and :
Pennsylvania State Police :
:
v. : No. 805 C.D. 2019
: SUBMITTED: August 23, 2019
Jack O. Edmundson, Jr., :
$18,733.02 US Currency :
and Assorted Items of :
Personal Property, :
Appellant :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: November 26, 2019
Jack O. Edmundson, Jr. (Edmundson), an inmate at a Pennsylvania state
correctional institution, appeals pro se from an order of the Court of Common Pleas
of Indiana County (trial court). The trial court granted a petition by the
Commonwealth for civil forfeiture of cash and other personal property. After
thorough review, we affirm.
I. Background
In 2013, Edmundson was involved in selling illegal lottery tickets in an
enterprise in Indiana County known as a brown bag lottery. Tickets would be printed
for fictitious fundraisers and sold to individuals in advance of a designated
Pennsylvania Lottery drawing. Once the designated drawing was held, anyone
holding a winning brown bag lottery ticket for that drawing would write his name
on the back and turn it over to the person who sold it, who would then obtain the
money and pay the winner. The winner customarily gave the seller a sizeable tip.
Frank Petro (Petro), a local gun shop owner, was also involved in selling
brown bag lottery tickets. Edmundson approached Petro in the fall of 2013,
pretending to be an undercover informant for the State Police and the Attorney
General (AG). Edmundson claimed the police and the AG were investigating Petro
for illegal gambling, but if Petro would stop selling tickets and turn over all the ticket
money in his possession, Edmundson would make the problem go away. Petro
turned over $145,0001 to Edmundson and promised to stop selling lottery tickets.
Sometime later that fall, Edmundson was arrested for impersonating a police
officer after he unlawfully arrested and handcuffed a minor. The incident was
reported on the local television news. Petro saw the report and began to suspect
Edmundson had lied to him about being an undercover informant.
The record does not indicate what, if any, communications occurred between
the two men regarding Petro’s suspicions. However, in December 2013, Edmundson
went to Petro’s gun shop. Security video showed Edmundson entering the empty
shop and picking up a handgun from behind the counter. When Petro entered the
shop from a room in the rear, Edmundson shot him twice in the chest, and Petro fell
to the floor. Edmundson then tried to set fire to the shop, but Petro managed to rise
and tried to stop him. As the two men struggled, Edmundson shot Petro in the head,
killing him. Edmundson himself was shot in the femur. Because of his injury,
Edmundson was forced to call 911 for help.
1
The parties dispute whether $145,000 was the exact amount given to Edmundson by
Petro. However, the exact amount is not relevant to the issues in this appeal.
2
Edmundson was charged with numerous crimes, including homicide,
attempted arson, robbery, theft, dealing in proceeds of unlawful activities, corrupt
organizations, receiving stolen property, lotteries, and impersonating a public
servant. During their investigation, police learned Edmundson had bought several
expensive items, including several all-terrain vehicles (ATVs) with a trailer and
accessories, after receiving the money from Petro. Police also discovered
Edmundson’s wife had removed $20,000 from the couple’s joint bank account after
his arrest and had it deposited in another bank account in her cousin’s name. Police
seized what remained of that $20,000, as well as the ATVs, trailer, and related
accessories.
The Indiana County District Attorney (DA) announced he would seek the
death penalty in the case. Edmundson subsequently entered into a plea bargain in
which he pleaded guilty to first-degree murder in exchange for the DA’s agreement
not to pursue the death penalty. In September 2014, Edmundson was sentenced to
life in prison without parole on the first-degree murder charge. The remaining
charges were dismissed.
After further investigation, the Commonwealth filed a petition for civil
forfeiture of the currency from the bank account and various items of personal
property, including the ATVs, trailer, and accessories, believed to have been
purchased with the money Edmundson obtained from Petro. Edmundson filed a
petition for return of the property. The trial court consolidated the two proceedings.
The trial court initially allowed the same court-appointed counsel who
represented Edmundson during the criminal proceedings to remain as counsel for
the forfeiture proceeding. Edmundson subsequently filed a petition for post-
conviction relief in the criminal case, claiming counsel had been ineffective in his
3
representation related to the plea bargain. For some time thereafter, at Edmundson’s
request, counsel continued the civil forfeiture representation. Eventually, however,
counsel filed a petition to withdraw, which the trial court granted. Because the
forfeiture was civil in nature, the trial court did not appoint replacement counsel for
Edmundson. Notably, by the time counsel withdrew, the trial court had already
completed the hearings in the forfeiture matter.2
Edmundson did not deny his participation in the illegal lottery. However, he
contended that the currency from the bank account was lawfully his and that he
purchased the ATVs and other property with lawfully obtained funds.
After holding two evidentiary hearings, the trial court concluded Edmundson
had not substantiated his claim that the seized property was lawfully his. The trial
court also found specifically that Edmundson was not a credible witness. 3 By
contrast, the Commonwealth offered extensive credible evidence, including the
expert testimony of both a police investigator and an outside consultant,
demonstrating that the $145,000 in brown bag lottery money Edmundson took from
Petro was the only possible source of the currency in the bank account and the funds
used to purchase the other seized property. Accordingly, the trial court granted the
forfeiture petition. This appeal by Edmundson followed.
2
The only proceeding held after counsel’s withdrawal was a brief hearing concerning a
proposed settlement reached between the Commonwealth and Petro’s widow. Edmundson
objected to the settlement and was present at this hearing by video conference. However, he was
not a party to the settlement and it had no effect on his claims or defenses in the forfeiture matter.
Thus, his presence without counsel did not prejudice him.
3
For example, at the forfeiture hearing, Edmundson testified his shooting of Petro was an
accident, notwithstanding his guilty plea and the video record of the crime. Original Record (O.R.)
Item #70A at 147-48, 154, 156.
4
II. Issues on Appeal
Edmundson’s arguments are difficult to discern because his appellate brief
contains neither a statement of issues nor an argument divided into separate issues.
However, from our careful examination of the brief, we identify the following
arguments by Edmundson.4 For clarity, we have arranged his arguments into three
categories – procedural arguments, legal arguments, and factual arguments.
Edmundson asserts two procedural errors. He contends he was not properly
served with the forfeiture petition until nearly 10 months after it was filed. He also
argues the trial court improperly ignored his written and verbal requests for a jury
trial.
Edmundson suggests the trial court committed legal error by granting
common law civil forfeiture. He also asserts that forfeiture of property allegedly
related to the illegal lottery was improper, because he was not convicted of any
offenses related to the illegal lottery. Further, he contends the trial court was biased
and his court-appointed counsel was ineffective, and both prevented him from
introducing evidence that would have proven his ownership of the forfeited property.
Edmundson’s assertions of factual errors relate to the weight of the evidence.
He argues the Commonwealth failed to present clear and convincing evidence in
support of its forfeiture petition. He also contends the Commonwealth failed to
prove the seized property was contraband or derivative contraband. He argues there
was not a sufficient nexus between the seized property and the illegal lottery to
4
In his concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
Edmundson listed additional issues not addressed in his brief on appeal in this Court. See O.R.
Item #64. To the extent Edmundson may have desired to assert any additional arguments not
discernible in our review of the record, they are waived for failure to raise them properly or develop
them sufficiently in the brief to allow meaningful review by this Court. See Commonwealth v.
Green ‘N Grow Composting, LLC, 201 A.3d 282 (Pa. Cmwlth. 2018) (argument waived where not
sufficiently developed to allow meaningful review on appeal).
5
justify forfeiture. In addition, he asserts the Commonwealth agreed, as part of his
criminal plea bargain, that all of the seized property would be returned to him. Thus,
Edmundson claims the Commonwealth breached the plea agreement by seeking
forfeiture of the property.
III. Discussion
A. Procedural Issues
1. Service of the Forfeiture Petition
On appeal,5 Edmundson challenges the Commonwealth’s service of the
forfeiture petition. Our review of Edmundson’s Concise Statement of Errors on
Appeal (Statement) reveals he did not preserve this issue.
The Pennsylvania Rules of Appellate Procedure allow the trial court to direct
the appellant to file a concise statement of the errors complained of on appeal. Pa.
R.A.P. 1925(b). Issues not included in the appellant’s statement are waived. Pa.
R.A.P. 1925(b)(4)(vii).
Here, the trial court issued a directive for the Statement pursuant to Rule
1925(b). See Original Record (O.R.) Item #57. Edmundson’s challenge to service
of the forfeiture petition is not mentioned in his Statement. See O.R. Item #64.
Therefore, it is waived.
Moreover, Edmundson was not prejudiced by the alleged delay in service. He
was able to participate in all stages of the forfeiture proceeding. Therefore, any
alleged defect in service would not be grounds to overturn the trial court’s decision.
See Commonwealth v. 542 Ontario St., Bethlehem, Pa., 989 A.2d 411 (Pa. Cmwlth.
5
Our review of the trial court’s decision on a civil forfeiture petition is limited to
determining whether the trial court’s findings of fact were supported by substantial evidence and
whether the trial court abused its discretion or committed an error of law. Commonwealth v.
$301,360.00 U.S. Currency, 182 A.3d 1091 (Pa. Cmwlth. 2018).
6
2010) (en banc), overruled in part on other grounds by Commonwealth v. 1997
Chevrolet, 106 A.3d 836 (Pa. Cmwlth. 2017) (rejecting challenge to adequacy of
service where petitioner was able to participate in forfeiture proceeding).
2. Jury Trial Demand
Edmundson asserts he was entitled to a jury trial on the forfeiture petition. He
contends he filed a written demand for a jury trial, as well as verbal requests. He
insists the trial court erred in denying his requests. We disagree.
There is some authority supporting Edmundson’s contention that there is a
constitutional right to a jury trial in a civil forfeiture proceeding. See Commonwealth
v. One (1) 1984 Z-28 Camaro Coupe, 610 A.2d 36 (Pa. 1992) (citing PA. CONST. art.
I, § 6 (“trial by jury shall be as heretofore, and the right thereof remain inviolate”)).
The issue here, however, is not whether Edmundson had a right to a jury trial, but
the adequacy of his jury trial demand.
The relevant Rule of Civil Procedure provides, in pertinent part:
In any action in which the right to jury trial exists, that right shall be
deemed waived unless a party files and serves a written demand for a
jury trial not later than twenty days after service of the last permissible
pleading. The demand shall be made by endorsement on a pleading or
by a separate writing.
Pa.R.C.P. No. 1007.1(a).
As a jury trial demand must be filed in writing and served, any verbal requests
Edmundson may have made for a jury trial would have been ineffective. The only
written request he alleges was in his amended petition for return of the seized
property. However, Edmundson filed that amended petition pro se at a time when
he was represented by counsel. The law is settled that a pro se filing by a represented
party constitutes “hybrid” representation which is not permitted either in a trial court
or on appeal. Commonwealth v. Padilla, 80 A.3d 1238, 1259 (Pa. 2013) (citing,
7
inter alia, Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010) (pro se filing by
represented party was a “legal nullity”)). Edmundson acknowledges the trial court
denied his pro se jury demand because he was represented by counsel at the time he
filed it. Br. for Appellant at 22. Thus, the trial court properly refused to allow hybrid
representation by acceding to Edmundson’s demand for a jury trial.
B. Legal Issues
1. Common Law Forfeiture
In Commonwealth v. Irland, 193 A.3d 370 (Pa. 2018), our Supreme Court
held there is no common law civil forfeiture in Pennsylvania. Therefore, statutory
authority is required for any civil forfeiture. Id. Edmundson contends the trial court
granted an improper common law6 civil forfeiture in this case. We discern no merit
in this argument.
The Commonwealth filed its forfeiture petition before Irland was decided.
Thus, the petition properly sought both common law and statutory forfeiture.
However, the trial court, recognizing the pendency of Irland before our Supreme
Court at the time it issued its decision, resolved the forfeiture issue solely with
reference to the Forfeiture Act, 42 Pa.C.S. §§ 5801-5808.7 As discussed further in
Section C.3 below, forfeiture of gambling devices, which may include currency, is
authorized by statute and expressly applies the provisions of the Forfeiture Act:
Any gambling device possessed or used in violation of the provisions of
[18 Pa.C.S. § 5513(a) (relating to gambling offenses)] shall be seized
and forfeited to the Commonwealth. The forfeiture shall be conducted
in accordance with 42 Pa.C.S. §§ 5803 (relating to asset forfeiture), 5805
6
Although Edmundson refers to “commonwealth” forfeiture in his argument, the context
indicates he is discussing common law forfeiture.
7
Formerly 42 Pa.C.S. §§ 6801-6802 (repealed by the Act of June 29, 2017, P.L. 247,
effective July 1, 2017).
8
(relating to forfeiture procedure), 5806 (relating to motion for return of
property), 5807 (relating to restrictions on use), 5807.1 (relating to
prohibition on adoptive seizures) and 5808 (relating to exceptions.
18 Pa.C.S. § 5513(b). Contrary to Edmundson’s argument, the trial court did not
base its decision on the common law.
2. Dismissal of Lottery-Related Criminal Charges
Edmundson argues the trial court lacked authority to grant forfeiture of
property related to his illegal lottery activities, because all of the criminal charges
concerning those activities were dismissed. This argument is without merit.
The law is settled that a civil forfeiture does not require an underlying criminal
conviction. See Commonwealth v. 2010 Buick Enclave VIN #GALRBED8J122029,
99 A.3d 163, 170 (Pa. Cmwlth. 2014) (“it is well settled in this Commonwealth, and
throughout the history of forfeiture in this country, that a conviction is not required
to proceed with a statutory in rem forfeiture”); 542 Ontario St., 989 A.2d 411 (civil
forfeiture not dependent on conviction of underlying criminal charge);
Commonwealth v. Perez, 941 A.2d 778 (Pa. Cmwlth. 2008) (civil forfeiture not
reversed despite subsequent dismissal of underlying criminal charges). Under the
Forfeiture Act, this is equally true where charges are dismissed pursuant to a plea
agreement. See 42 Pa.C.S. § 5805(m) (acquittal of crime authorizing forfeiture
creates rebuttable presumption that property at issue was lawfully possessed by
defendant, but “acquittal” does not include plea agreements).
Here, in exchange for Edmundson’s guilty plea to first-degree murder, the
Commonwealth dismissed the other charges against him. However, as the
authorities cited above demonstrate, dismissal of those charges as part of a plea
agreement did not circumscribe the Commonwealth’s ability to seek forfeiture of
illegally obtained assets. Moreover, Edmundson expressly admits his involvement
9
in the illegal lottery. O.R. Item #70A at 102, 139; Br. for Appellant at 30. Further,
the murder of Petro, to which Edmundson pleaded guilty, apparently arose from
Edmundson’s illegal lottery activities. In these circumstances, the absence of
criminal convictions on other lottery-related charges is immaterial.8
3. Impartiality of Trial Court
Edmundson asserts the trial court was biased. As a consequence, he alleges
he was prevented from introducing evidence and witnesses that would have
established his lawful ownership of the property subject to the forfeiture petition.
Edmundson points to factors he claims show bias by the trial court. We reject
Edmundson’s argument.
Edmundson contends the trial court allowed some pro se filings, but not
others, while he was represented by counsel. Specifically, he claims the trial court,
on November 28, 2017, granted an October 20, 2017 pro se petition for return of
personal property seized during Edmundson’s arrest. As a purported citation to the
record, Edmundson’s brief states only “See Exhibits.” Br. for Appellant at 31.
However, our review of the record reveals no “exhibits” containing either the
described petition or a trial court order granting it. In fact, the original record
contains no entries at all from the period at issue.9 We therefore find no record
support for Edmundson’s argument. Moreover, we fail to see how an alleged order
by the trial court, granting relief which Edmundson claims to have requested, would
indicate that the trial court was biased against him.
8
In a related argument, Edmundson suggests the forfeiture was disproportionate to the
severity of the lottery-related crimes. However, proportionality is not an issue where the property
forfeited is the proceeds of the illegal activity. Commonwealth v. $23,320.00 U.S. Currency, 733
A.2d 693 (Pa. Cmwlth. 1999).
9
We surmise that Edmundson may be referring to filings allegedly made in his post-
conviction proceeding in the criminal case. That record is not before us.
10
Edmundson also questions why the trial court allowed counsel to continue
representing him after he filed a petition for post-conviction relief asserting that the
same counsel was ineffective in the criminal case. The record answers this question.
At the forfeiture hearing on October 2, 2017, Edmundson’s court-appointed
counsel informed the trial court that Edmundson had filed a petition alleging
ineffective assistance of counsel during the criminal proceeding. Counsel stated, “I
discussed this with Mr. Edmundson. I asked him if he still wanted me to be his
attorney and represent him on this. . . . Mr. Edmundson informed me on Saturday
that he does want me to stay on this case and represent him. . . .” O.R. Item #70A
at 5. The trial court expressly asked Mr. Edmundson, who was present by video
conference, whether counsel’s statement was correct, and Edmundson answered,
“Yes.” Id. Thus, it is evident from the record that the trial court was acceding to
Edmundson’s own wish in allowing counsel to continue the representation. Again,
we see nothing in the trial court’s compliance with Edmundson’s request that
suggested any bias against him.
4. Effectiveness of Court-Appointed Counsel
Edmundson complains that his court-appointed counsel was ineffective
because he did not allow Edmundson to control the litigation strategy, in that he did
not demand a jury trial and did not present witnesses Edmundson wanted to call.
This argument lacks merit.
Court-appointed counsel is not bound to follow his client’s instructions
concerning matters of trial strategy. See Commonwealth v. Auker, 681 A.2d 1305
(Pa. 1996) (failure to call a witness requested by the client does not establish
ineffectiveness of counsel, because such a decision is a matter of trial strategy);
accord Commonwealth v. Thomas, 879 A.2d 246 (Pa. Super. 2005) (court-appointed
11
counsel properly exercised his professional judgment by participating in trial despite
defendant’s instruction not to present any defense). Counsel was not ineffective
because he followed his own judgment on the most effective strategy.
C. Factual Issues
Although Edmundson asserts several arguments concerning the weight of the
evidence, he failed to include any such issues in his Statement pursuant to Pa.R.A.P
1925(b). Accordingly, he has waived all factual arguments. See Pa.R.A.P.
910(a)(5). However, for completeness, we briefly address Edmundson’s factual
arguments, all of which are without merit.
1. Applicable Burdens of Proof
The Forfeiture Act sets forth the shifting burdens of proof in a civil forfeiture
action. 42 Pa.C.S. § 5801(j). The Commonwealth has the initial burden “to establish
in the forfeiture petition that the property is subject to forfeiture.” Id. Once that
burden is satisfied, the claimant (Edmundson here) must show by a preponderance
of the evidence that he owns the property and acquired it lawfully. Id. In the event
the claimant satisfies his burden, the Commonwealth must then “establish by clear
and convincing evidence that the property in question was unlawfully used,
possessed or otherwise subject to the forfeiture.” Id.
Here, Edmundson contends the Commonwealth failed to sustain its burden of
proof by clear and convincing evidence. We discern no merit in this contention.
The trial court concluded Edmundson was unable to demonstrate that he acquired
the seized property lawfully. The record contains substantial evidence that the funds
deposited in the seized bank account and used to purchase the other seized property
were the proceeds of an illegal lottery, and moreover, were illegally obtained by
Edmundson from Petro. Thus, the burden of proof never shifted from Edmundson
12
to the Commonwealth, and the trial court did not need to reach the question of
whether the Commonwealth met its burden by clear and convincing evidence.
Nonetheless, the trial court expressly concluded the Commonwealth proved
by clear and convincing evidence that the property at issue was subject to forfeiture.
The extensive evidence presented by the Commonwealth, including two experts,
eliminated all possible sources of the currency in the seized bank account and the
funds used to purchase the other seized assets, other than the $145,000 Edmundson
obtained from Petro. Thus, we find no error in the trial court’s decision.
2. Status as Contraband or Derivative Contraband
Regarding his own petition for return of the property, Edmundson relies on
Rule 588 of the Pennsylvania Rules of Criminal Procedure, which provides that a
person aggrieved by seizure of his property may move for the return of the property
on the basis that he is lawfully entitled to possession. Pa. R. Crim. P. 588(A). “If
the motion is granted, the property shall be restored unless the court determines that
such property is contraband or derivative contraband,[10] in which case the court may
order the property to be forfeited.” Pa. R. Crim. P. 588(B) (emphasis added).
Edmundson argues the Commonwealth failed to prove the property at issue
was contraband. However, as the trial court found Edmundson was not lawfully
entitled to possession, it did not grant his motion for return of the property.
Therefore, whether it was either contraband or derivative contraband was irrelevant.
10
“Contraband,” as used in the Forfeiture Act, refers to an item marked with a counterfeit
trademark; illegally manufactured or possessed liquor, alcohol, or malt or brewed beverages; or
unstamped or unlawfully stamped cigarettes. 42 Pa.C.S. § 5808(a). However, as discussed below,
currency (or property purchased with it) may be forfeited as derivative contraband of illegal
gambling if there is a sufficient nexus between the currency and the gambling activity.
Commonwealth v. McDermond, 560 A.2d 901 (Pa. Cmwlth. 1989).
13
3. Nexus between Seized Property and Illegal Lottery
In a related argument, Edmundson contends the trial court erred in finding a
nexus between his admitted involvement in the illegal brown bag lottery and the cash
and other property seized by the Commonwealth. We disagree.
Any transfer of property pursuant to an illegal lottery is invalid and void. 18
Pa.C.S. § 5512. Here, the property transferred was the illegal lottery ticket money
Petro turned over to Edmundson. The transfer of that property was invalid and void.
Thus, Edmundson never had a legal right to that money.
Currency (or property purchased with it) is subject to forfeiture as derivative
contraband if there is a sufficient nexus between the money and illegal gambling.
Such a nexus exists where “it is clearly apparent that the money formed an integral
part of the illegal gambling operation . . . .” Commonwealth v. McDermond, 560
A.2d 901 (Pa. Cmwlth. 1989) (applying prior law); see Commonwealth v. Smith, 722
A.2d 167 (Pa. Super. 1998).
This case is closely analogous to Pannulla v. Rosenberg, 90 A.2d 267 (Pa.
Super. 1952), cited and discussed in McDermond. In Pannulla, the defendant was
arrested for pool selling and bookmaking. Id. Police seized cash hidden in various
areas in the defendant’s home. Id. The defendant argued he saved the money from
his disability pension and his wages from employment. Id. The court found his
testimony incredible and concluded he was a stakeholder of illegal gambling money.
Id. Accordingly, there was a sufficient nexus between the cash and the defendant’s
illegal gambling activity, and forfeiture was proper. Id. The Superior Court affirmed
the forfeiture on appeal. Id.
Here, Edmundson testified that the money in the seized bank account and the
funds used to purchase the ATVs, trailer, and accessories were the proceeds of his
14
disability benefits, student loans, and various jobs. The trial court properly rejected
that testimony, as there was substantial evidence from the Commonwealth’s
witnesses establishing that the funds at issue could only have been part of the
$145,000 in brown bag lottery ticket money Edmundson obtained illegally from
Petro – money which, notably, Petro also had no legal right to possess. Accordingly,
there was a sufficient nexus between the seized property and Edmundson’s illegal
lottery activities. The trial court did not err in concluding the seized property was
subject to forfeiture.
4. Breach of Plea Agreement
Edmundson insists his counsel assured him all seized property would be
returned to him as part of the plea agreement. However, the record is bare of any
evidence of any agreement by the Commonwealth for the return of property.
Therefore, the trial court did not err by rejecting Edmundson’s contention.11
IV. Conclusion
Based on the foregoing discussion, we affirm the order of the trial court.
ELLEN CEISLER, Judge
11
To the extent that Edmundson suggests his counsel misinformed him, that issue
presumably was or will be addressed in deciding Edmundson’s request for post-conviction relief
in his criminal case.
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
Office of the Attorney General and :
Pennsylvania State Police :
:
v. : No. 805 C.D. 2019
:
Jack O. Edmundson, Jr., :
$18,733.02 US Currency :
and Assorted Items of :
Personal Property, :
Appellant :
ORDER
AND NOW, this 26th day of November, 2019, the order of the Court of
Common Pleas of Indiana County is AFFIRMED.
__________________________________
ELLEN CEISLER, Judge