Com. v. 2002 Subaru Impreza and Nokia Tracphone seized from A. Glushko ~ Appeal of: A. Glushko

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
:
v. : No. 704 C.D. 2014
: Submitted: April 17, 2015
2002 Subaru Impreza :
VIN# JF1GG68552G821124 and :
Nokia Tracphone seized from :
Andrew Glushko :
:
Appeal of: Andrew Glushko :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY JUDGE BROBSON FILED: August 19, 2015
Andrew Glushko (Glushko), pro se, petitions for review of an order of
the Court of Common Pleas of Monroe County (trial court), dated June 29, 2012,
which denied Glushko’s motion to vacate a judgment of forfeiture entered on
May 18, 2010. For the reasons set forth below, we affirm.
In 2009, Glushko was convicted by a jury of multiple criminal
offenses under Chapter 31 of the Crimes Code, 18 Pa. C.S. §§ 3101-3144 (relating
to sexual offenses). Following conviction, the Commonwealth, acting through the
Office of the District Attorney of Monroe County, filed a petition of forfeiture
pursuant to Subchapter C of Chapter 31 of the Crimes Code, 18 Pa. C.S.
§§ 3141-3144. Section 3141 of the Crimes Code provides, inter alia, that a person
convicted of certain offenses under Chapter 31 “may be required to forfeit property
rights in any property or assets used to implement or facilitate commission of the
crime or crimes of which the person has been convicted.” On May 18, 2010, the
trial court granted the Commonwealth’s petition for forfeiture directed toward
property (a vehicle and a cellular telephone) that Glushko used to perpetrate his
crimes. In an unreported memorandum opinion dated May 24, 2012, we affirmed
a trial court order that denied Glushko’s effort to appeal the forfeiture order nunc
pro tunc.1
Undeterred, on June 28, 2012, Glushko filed with the trial court a
motion to vacate the May 18, 2010, forfeiture order. The trial court denied that
motion the next day, on June 29, 2012. On or about November 1, 2012, Glushko
filed a petition for leave to appeal the order denying his motion to vacate nunc pro
tunc, which the trial court denied. In an unreported memorandum opinion and
order dated December 18, 2013, we vacated that order and remanded the matter to
the trial court for further consideration.2 On remand, the trial court conducted a
hearing and granted Glushko leave to file his appeal, nunc pro tunc, of the trial
court’s order denying his motion to vacate, nunc pro tunc. That appeal is now
before the Court for disposition.
Glushko raises one issue on appeal, that being whether the trial court
lacked subject matter jurisdiction to grant the Commonwealth’s forfeiture petition
in this matter. Glushko argues that the trial court lacked subject matter jurisdiction
because forfeiture under Subchapter C, Chapter 31 of the Crimes Code, or sex
offense property forfeiture, is an additional punishment foisted upon a person
1
Commonwealth v. 2002 Subaru Impreza, (Pa. Cmwlth., No. 1908 C.D. 2011, filed
May 24, 2012).
2
Commonwealth v. 2002 Subaru Impreza, (Pa. Cmwlth., No. 448 C.D. 2013, filed
Dec. 18, 2013).
2
convicted of certain crimes under this subchapter. It is, therefore, a proceeding in
personam that must be decided in the context of the property owner’s criminal
proceeding or, at least, within the criminal division of the trial court. Here,
however, the Commonwealth pursued forfeiture within the trial court’s civil
division, which Glushko argues was without jurisdiction to decide the matter.
This is a statutory civil forfeiture matter. “Statutory civil forfeiture, as
the name suggests, arises by acts of legislatures, state or federal, which ascribe
certain criminal character to property, not persons, and provide for their forfeiture
to the government.” Commonwealth v. 2010 Buick Enclave VIN
#GALRBED8J122029, 99 A.3d 163, 165-66 (Pa. Cmwlth. 2014), appeal denied,
110 A.3d 999 (Pa. 2015). The mere fact that a procedure is described by a rule of
criminal procedure (or found in the Crimes Code, 18 Pa. C.S. §§ 101-9101) “does
not determine jurisdiction and does not transform the essential character of the in
rem action of a forfeiture into a criminal proceeding.” In re: One 1988 Toyota
Corolla (Blue Two-Door Sedan) PA License TPV291, 675 A.2d 1290, 1294
(Pa. Cmwlth. 1996).
There is a dearth of appellate case law on the subject of forfeiture
under this portion of the Crimes Code. As with all cases of statutory interpretation,
we look primarily to the language chosen by the General Assembly to discern its
intent.3 As noted above, Section 3141 of the Crimes Code expressly requires a
3
In all matters involving statutory interpretation, we apply the Statutory Construction Act
of 1972, 1 Pa. C.S. §§ 1501-1991. Commonwealth v. McCoy, 962 A.2d 1160, 1166 (Pa. 2009).
“The object of statutory interpretation is to determine the intent of the General Assembly.” Pa.
Dep’t of Transp., Bureau of Driver Licensing v. Weaver, 912 A.2d 259, 264 (Pa. 2006) (citing
1 Pa. C.S. § 1921(a)). The touchstone of statutory interpretation is that where a statute is
unambiguous, the judiciary may not ignore the plain language “under the pretext of pursuing its
(Footnote continued on next page…)
3
conviction before the Commonwealth may proceed with sex offense property
forfeiture under that subchapter. In this respect, sex offense property forfeiture
differs from other forms of statutory forfeiture, which do not require a conviction.
See, e.g., Sections 6801–6802 of the Judicial Code, commonly known as the
Controlled Substances Forfeiture Act, 42 Pa. C.S. §§ 6801–6802; Commonwealth
v. $6,425.00 Seized from Esquilin, 880 A.2d 523, 530 (Pa. 2005) (“Furthermore,
for property to be deemed forfeitable [under the Controlled Substances Forfeiture
Act], neither a criminal prosecution nor a conviction is required.”).
Glushko contends that because the General Assembly chose to require
a conviction in this type of statutory forfeiture, it also intended that petitions
seeking sex offense property forfeiture must be brought against the convicted
person (in personam), and not the property (in rem), in a criminal proceeding and
before the criminal, and not civil, division of a common pleas court. Based on our
reading of Subchapter C, Chapter 31 of the Crimes Code in its entirety, we
disagree.
Section 3142 of the Crimes Code provides, in part, that property may
be seized by the “court of common pleas having jurisdiction over the person or
(continued…)
spirit,” for the language of a statute is the best indication of legislative intent. Weaver, 912 A.2d
at 264 (quoting 1 Pa. C.S. § 1921(b)). Words and phrases should be construed in accordance
with their common and approved usage. 1 Pa. C.S. § 1903(a). When the words of a statute are
clear, there is no need to look beyond the plain meaning of a statute. See, e.g., Commonwealth v.
McClintic, 909 A.2d 1241, 1245 (Pa. 2006) (citing Sternlicht v. Sternlicht, 876 A.2d 904, 909
(Pa. 2005), and Ramich v. Worker’s Comp. Appeal Bd. (Schatz Elec., Inc.), 770 A.2d 318, 322
(Pa. 2001)). If a statute is deemed ambiguous, however, resort to principles of statutory
construction is appropriate. 1 Pa. C.S. § 1921(c); Commonwealth v. Packer, 798 A.2d 192, 196
(Pa. 2002).
4
property.” (Emphasis added.) Accordingly, the plain language of this section
reveals that the General Assembly intended to authorize the Commonwealth to
pursue sex offense property forfeiture either against the convicted person or against
the property. In addition, Section 3143 of the Crimes Code provides, in part, that
the custody of the property seized shall be subject only to “the court of common
pleas having jurisdiction over the criminal or forfeiture proceedings.” (Emphasis
added.) The plain language reveals that the General Assembly intended to
authorize the Commonwealth to pursue sex offense property forfeiture either as
part of the underlying criminal proceeding against the convicted property owner or
separately in a civil forfeiture proceeding. Here, the Commonwealth chose to
pursue sex offense property forfeiture in a court with jurisdiction over the property,
as well as the property’s owner, and in a proceeding separate from the criminal
proceeding. In so doing, the Commonwealth acted lawfully under Subchapter C,
Chapter 31 of the Crimes Code, and the trial court appropriately exercised subject
matter jurisdiction over the Commonwealth’s petition.4
Accordingly, the order of the trial court is affirmed.
P. KEVIN BROBSON, Judge
President Judge Pellegrini concurs in the result only.
4
As for Glushko’s specific contention that the trial court lacked subject matter
jurisdiction over this matter in its civil division, we note that in courts of common pleas with two
or more divisions, each division of the court is “vested with the full jurisdiction of the whole
court.” 42 Pa. C.S. § 952.
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
:
v. : No. 704 C.D. 2014
:
2002 Subaru Impreza :
VIN# JF1GG68552G821124 and :
Nokia Tracphone seized from :
Andrew Glushko :
:
Appeal of: Andrew Glushko :
ORDER
AND NOW, this 19th day of August, 2015, the order of the Court of
Common Pleas of Monroe County (trial court), dated June 29, 2012, is hereby
AFFIRMED.
P. KEVIN BROBSON, Judge