Com. v. Richardson, L.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LARRY CRAIG RICHARDSON, JR. :
:
Appellant : No. 1166 WDA 2019
Appeal from the Order Dated July 23, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0008374-2015
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED JULY 08, 2020
Larry Craig Richardson, Jr. (Appellant) appeals from the order denying
his motion for return of property. We affirm.
In 2015, the Pennsylvania Attorney General’s Office and the Ross
Township Police Department investigated Appellant for suspicion of drug
dealing. Through the course of the investigation, Officer Jason Moss learned
that the Pennsylvania Department of Transportation had suspended
Appellant’s license. On April 3, 2015, officers conducted surveillance of
Appellant at his apartment. Officer Balazs Devenyl sat in the back of an
unmarked SUV in the apartment parking lot. Officer Moss waited nearby at
the exit of the apartment complex, also in an unmarked car. Finally, Patrol
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* Retired Senior Judge assigned to the Superior Court.
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Officer Mark Sullivan positioned himself in a marked vehicle in the general
area to provide additional assistance.
Appellant exited his apartment carrying a black bag. Police saw
Appellant enter his Range Rover SUV and begin driving away. After Appellant
drove approximately half a mile, he approached the entrance ramp to the
interstate. Officer Moss directed Officer Sullivan to pull Appellant over for
driving with a suspended license. Officer Sullivan positioned himself directly
behind Appellant, and initiated a traffic stop by activating his lights. Upon
seeing the police officer’s lights, Appellant drove onto the berm of the entrance
ramp and stopped; however, a portion of his SUV remained in the lane of
traffic. Officer Sullivan pulled his patrol car behind Appellant’s SUV; Officer
Moss arrived soon after.
Officer Moss asked [Appellant] to exit the SUV and gave him a
traffic ticket for driving with a suspended license (a summary
offense). Next, the officer decided that the vehicle’s location
required that it be removed from the lane of traffic. Per
department policy, [Appellant] had a 20-minute window to move
the vehicle. The police did not advise [Appellant] of this policy.
Instead, [Appellant] asked if his girlfriend could move his SUV.
Officer Moss asked if she was at the apartment complex
[Appellant] had just left. [Appellant] said no. So Officer Moss
determined that no one was close enough to move the vehicle and
ordered a tow.
Officer Moss then conducted what he considered to be an
inventory search of the vehicle. When Officer Moss began his
search, he did not have the department’s standard inventory form
with him. Upon entering [Appellant’s] vehicle, the first thing that
Officer Moss inventoried was [a] small black bag. [The small black
bag contained] 25 bricks of heroin and approximately 9 grams of
cocaine.
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[Officer Moss] immediately terminated the inventory search and
had the vehicle towed to the police station. Based on the drugs
found in [Appellant’s] SUV, the police then obtained warrants to
search his apartment and to search the vehicle more extensively.
The police seized additional evidence.[1]
Commonwealth v. Richardson, 1291 WDA 2016, at *3-4 (Pa. Super. March
29, 2019) (unpublished memorandum) (citation omitted).
On September 23, 2015, Appellant filed a motion to suppress all physical
evidence obtained from the vehicle search, which the trial court denied on
March 31, 2016. Following a bench trial, Appellant was convicted of two
counts each of possession with intent to deliver a controlled substance and
possession of a controlled substance, and one count of driving with a
suspended license.2 The trial court sentenced Appellant to an aggregate 5 to
10 years of incarceration, followed by five years of probation. Appellant
appealed.
Appellant’s convictions led to a forfeiture proceeding pursuant to the
Controlled Substances Forfeiture Act (the Forfeiture Act), 42 Pa.C.S.A. §§
6801-6802,3 involving $19,504.00 and the Range Rover SUV. On November
1, 2016, Appellant entered into a consent agreement with the Commonwealth,
forfeiting $13,004.00 and the SUV; the Commonwealth agreed to return the
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1 Police also seized $19,504.00 in cash.
2 35 P.S. § 780-113(a)(30), (16) and 75 Pa.C.S.A. § 1543(b)(1).
3Effective July 1, 2017, the Forfeiture Act was recodified at 42 Pa.C.S.A. §§
5801-5808.
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remaining $6,500.00 to Appellant. Appellant did not appeal the forfeiture
order.
In the appeal of his judgment of sentence, this Court, on March 29,
2019, determined that the trial court erred by failing to suppress the evidence
seized from Appellant’s SUV. Accordingly, we reversed the denial of
suppression, vacated the judgment of sentence, suppressed the evidence, and
remanded the case to the trial court. The trial court docket indicates that on
May 2, 2019, the Commonwealth filed a petition to nolle pros all charges,
which the trial court granted.
On June 7, 2019, Appellant filed a petition for return of property, seeking
the return of $13,004 and the fair market value of the Range Rover.4 On June
25, 2019, the Commonwealth filed an answer. The trial court held a hearing
on July 23, 2019, after which it denied Appellant’s motion. Appellant filed the
underlying appeal. Both Appellant and the trial court have complied with Rule
of Appellate Procedure 1925.
Appellant presents a single issue for our review:
1. DID THE TRIAL COURT ERR IN DENYING [APPELLANT’S]
MOTION FOR RETURN OF PROPERTY BECAUSE THE PROPERTY
WAS NOT PROPERLY SUBJECT TO FORFEITURE?
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4By the time Appellant filed this petition, the Commonwealth had sold the
Range Rover.
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Appellant’s Brief at 4.5
Our scope of review in an appeal from a forfeiture proceeding is limited
to examining whether findings of fact made by the trial court are supported
by substantial evidence, and whether the trial court abused its discretion or
committed an error of law. Commonwealth v. Real Property and
Improvements Known as 5444 Spruce St., 832 A.2d 396, 398 (Pa. 2003).
Because this appeal also involves a question of law, the standard of review is
de novo and the scope of review is plenary. Id.; see also Commonwealth
v. Allen, 107 A.3d 709, 714 (Pa. 2014) (applying a de novo standard of review
when considering the timeliness of a motion for return of property).
“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). The plain language of the
Forfeiture Act designates forfeiture proceedings as “in rem, in which the
Commonwealth shall be the plaintiff and the property the defendant.” 42
Pa.C.S.A. § 5805(a). In rem actions generally are instituted to determine the
status of property, and the rights of individuals with respect thereto; an in
rem forfeiture proceeding in particular determines the status of property and
the respective rights of the Commonwealth and the property owner resulting
from the property owner’s criminal conduct. See Commonwealth v.
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5 “Both [the Superior Court] and the Commonwealth Court have jurisdiction
to decide an appeal involving a motion for the return of property filed [under
Pa.R.Crim.P.] 588.” Commonwealth v. Durham, 9 A.3d 641, 642 n.1 (Pa.
Super. 2010).
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$9,847.00 U.S. Currency, 704 A.2d 612, 615–16 (Pa. 1997) (explaining that
forfeiture proceedings involve the owner’s property rights, the
Commonwealth’s financial interest, and the government’s interest in deterring
illegal drug transactions).
This Court has deemed in rem forfeiture proceedings brought pursuant
to the Forfeiture Act to be civil in nature. Commonwealth v. Wingait
Farms, 690 A.2d 222, 226 (Pa. 1997) (holding that “the General Assembly
intended forfeitures brought pursuant to [the Forfeiture Act] to be civil in
nature”). Property is forfeited not as a result of the 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. Commonwealth v. All That Certain Lot or Parcel of Land
Located at 605 University Drive, 104 A.3d 411, 420-21 (Pa. 2014). 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
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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, . . . the absence of a final order in
the defendant’s criminal case might preclude him from taking an
immediate appeal from a forfeiture order.
Commonwealth v. Bowers, 185 A.3d 358, 362 (Pa. Super. 2018).
Here, Appellant’s right to seek the return of his seized property is
governed by Pennsylvania Rule of Criminal Procedure 588, which provides:
A person aggrieved by a search and seizure, whether or not
executed pursuant to a warrant, may move for the return of the
property on the ground that he or she is entitled to lawful
possession thereof. Such motion shall be filed in the court of
common pleas for the judicial district in which the property was
seized.
Pa.R.Crim.P. 588(A). A person seeking the return of seized property must
prove, by a preponderance of the evidence, his entitlement to lawful
possession of the property. Commonwealth v. Johnson, 931 A.2d 781, 783
(Pa. Cmwlth. 2007).6 “[A] mere allegation of entitlement meets this burden.”
Id. at 784. Once the moving party satisfies this burden, the burden shifts to
the Commonwealth to prove that the property is contraband or derivative
contraband. Id. at 783-84.
Appellant argues that his property was not subject to forfeiture under
the Forfeiture Act because “[a]ny evidence that the Commonwealth could have
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6While decisions of the Commonwealth Court are not binding on this Court,
we may elect to follow its decisions if we find the rationale persuasive.
Commonwealth v. Thomas, 814 A.2d 754, 758 n.2 (Pa. Super. 2002).
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used to establish a nexus between the seized items and criminal activity was
subject to the exclusionary rule after [the Superior Court] . . . reverse[d] the
[t]rial [c]ourt’s suppression ruling.” Appellant’s Brief at 11; see also
Jackson, 53 A.3d at 958. Appellant contends that this Court’s reversal of the
trial court’s suppression ruling was a “substantial change in circumstances
from 2016.” Id. at 14. Appellant submits that he relied on the trial court’s
finding that the evidence was admissible when he entered into the 2016
consent agreement, and that the Commonwealth should not be able to benefit
from evidence that was unlawfully obtained. Id. at 14-15.
The Commonwealth argues that Appellant is not entitled to relief for two
reasons. First, it emphasizes that Appellant “elected” to enter into the 2016
forfeiture agreement “keenly aware that his suppression claim was the subject
of ongoing litigation,” and his 2019 claim for the return of property was
untimely. Commonwealth Brief at 7. The Commonwealth also posits that
forfeiture agreements do not need to be supported by a criminal conviction,
and that Appellant “relieved the Commonwealth of the burden of establishing
this nexus by entering into a stipulation of forfeitability.” Id. at 9.
Second, the Commonwealth argues that Appellant’s claim is barred by
the doctrine of res judicata. Id. at 8. The Commonwealth cites
Commonwealth v. Perez, 941 A.2d 778 (Pa. Cmwlth. 2008), which held that
the doctrine of res judicata barred Perez’s motion for return of property
because Perez failed to appeal the issue during the initial forfeiture
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proceeding. In Perez, a drug conviction was reversed on appeal and nolle
prossed on remand. Despite the lack of an underlying conviction, the trial
court declined to return forfeited property to Perez, and the Commonwealth
Court affirmed. Here, the Commonwealth explains that “the civil forfeiture
proceeding, though implicating issues and facts involved in the subsequently
dismissed criminal prosecution, became final when the petition for forfeiture
was granted and no appeal was taken within the allotted time.” Id. Because
Appellant failed to appeal the forfeiture judgment within the applicable appeal
period, he cannot attempt to reopen the judgment nearly three years later.
See id.
We first address res judicata, which bars a subsequent suit on the same
claim after the relevant appeal period has expired. First Union Mortgage
Corp. v. Frempong, 744 A.2d 327 (Pa. Super. 1999). For res judicata to
apply, there must be a concurrence of four conditions: (1) identity of issues;
(2) identity of causes of action; (3) identity of persons and parties to the
action; and (4) identity of the quality or the capacity of parties suing or sued.
Reber v. Tschudy, 824 A.2d 378, 382 n.6 (Pa. Cmwlth.2003). The doctrine
provides finality to the proceedings. Clark v. Troutman, 502 A.2d 137 (Pa.
1985).
We reject the Commonwealth’s argument that Appellant’s return of
property claim is barred by res judicata and find that Perez is distinguishable
from the instant matter. Importantly, the Commonwealth in Perez filed a
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petition for forfeiture pursuant to the Forfeiture Act, involving $2,176 and a
1990 Eagle Premier sedan owned by Perez. Following a hearing, the trial court
granted the forfeiture petition. Perez did not appeal that decision. On appeal
of his criminal convictions, this Court held that Perez’s trial counsel in the
criminal prosecution was ineffective for failing to challenge the trial court’s
lack of subject matter jurisdiction. Following remand, the trial court granted
the Commonwealth’s motion for the entry of a nolle prosequi. Perez then
petitioned the trial court for the return of the $2,176 and the 1990 Eagle
Premier sedan, arguing that the court lacked jurisdiction to grant the forfeiture
petition. The trial court denied Perez’s petition and the Commonwealth Court
affirmed, holding:
Perez is attempting to re-litigate the civil forfeiture proceeding by
calling into question the basis for the Commonwealth’s exercise of
jurisdiction over the property forfeited. Perez does so long after
the relevant appeal period for the forfeiture has run.
The civil forfeiture proceeding, though implicating issues and facts
involved in the dismissed criminal prosecution, became final when
the petition for forfeiture was granted and no appeal was taken
within the statutorily allotted time.
At no point during the intervening years did Perez attempt to
attack the forfeiture judgment, even though timely appeal of the
May 25, 2001, order granting the forfeiture would have allowed
Perez to argue the jurisdictional issue. He declined to do so,
despite raising a related argument in his criminal case appeal to
the Superior Court. Finding that he could do so now would re-
open the door and renew civil litigation six years after judgment
was entered, and absent any appeal.
Perez, 941 A.2d at 781 (footnote omitted). In Perez, the Commonwealth’s
petition for forfeiture and Perez’s motion for return of property involved the
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same substantive issue, i.e., who was entitled to possession of the property
seized by law enforcement. Thus, the Commonwealth’s petition for forfeiture
represented Perez’s first opportunity to litigate the issue. Following a hearing,
the petition was denied and Perez did not appeal. Although Perez’s conviction
was ultimately overturned, the doctrine of res judicata barred Perez from
attempting to relitigate the same matter a second time.
Here, Appellant and the Commonwealth agree that the Commonwealth
did not file a forfeiture petition, and Appellant consented to the forfeiture. See
Appellant’s Brief at 6 (“[Appellant] . . . entered into an agreement with the
Pennsylvania Attorney General’s Office whereby some property was forfeited
to the Commonwealth pursuant to the [Forfeiture Act].”); Commonwealth
Brief at 3, 8 (“[Appellant] entered into a consent order with the
Commonwealth under which he agreed to forfeit [his property] to the
Commonwealth. . . .”). Thus, Appellant’s claim that the Commonwealth failed
to prove, by a preponderance of the evidence, a nexus between the property
seized and illegal activity, has not been litigated, such that we cannot discern
the “concurrence of conditions” necessary for a finding of res judicata.
Likewise, we reject the Commonwealth’s argument that Appellant was
required to raise his claim within 30 days of the entry of the consent order.
See Commonwealth Brief at 9. We have explained:
“[A] return motion is timely when it is filed by an accused in the
trial court while that court retains jurisdiction, which is up to thirty
days after disposition.” Commonwealth v. Allen, 107 A.3d 709,
717 (Pa. 2014) (citing 42 Pa.C.S.A. § 5505 (providing that a trial
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court retains jurisdiction to modify or rescind any order within
thirty days of its entry, if no appeal is taken)). Thus, in Allen,
our Supreme Court held that a defendant may move for the return
of property during the pendency of the criminal proceedings, or
while the trial court retains jurisdiction for thirty days following its
disposition of the criminal case. See id.
Commonwealth v. Rodriguez, 172 A.3d 1162, 1164 n.10 (Pa. Super.
2017). To reiterate, our Supreme Court in Allen explained that a motion for
return of property is timely if it is filed during the pendency of the criminal
proceedings, or while the trial court retains jurisdiction for 30 days
following its disposition of the criminal case. Allen, 107 A.3d at 717
(emphasis added).
Here, the trial court docket entries show that following remand from this
Court, the Commonwealth on May 2, 2019, filed a motion to nolle prosse
Appellant’s charges, which the trial court granted that same day. Appellant
filed his petition for return of property on June 7, 2019 – 34 days after the
disposition.7 However, both the motion for and order granting nolle prose are
absent from the record, and the docket does not indicate whether or when
Appellant was provided with notice of disposition by nolle prosse. See
Pa.R.A.P. 108(a)(1), (d) (the 30-day time period for appealing from a criminal
order other than a judgment of sentence begins to run on the day that the
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7 Appellant had until Monday, June 3, 2019 to file his motion for return of
property. See 1 Pa.C.S.A. § 1908 (when the last day of the 30-day appeal
period falls on a weekend . . . such day shall be omitted from the computation
of time).
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order is served on the parties by the clerk of courts). Accordingly, because
the record does not contain the Commonwealth’s motion, the trial court’s
order, or notice by the clerk of courts that the order was served on the parties,
we construe Appellant’s petition as timely.
Finally, we conclude that although Appellant’s challenge to the forfeiture
was timely, he is not entitled to relief. For property to be seized and forfeited,
neither a criminal prosecution nor a conviction is required. Commonwealth
v. $11,600.00 cash, 858 A.2d 160, 167 (Pa. Cmwlth. 2004); see also
Commonwealth v. 502-504 Gordon St., 607 A.2d 839 (Pa. Cmwlth. 1992),
affirmed, 636 A.2d 626 (Pa. 1994). The property is forfeited not as a result
of the criminal conviction of the person or persons from whom the property
was seized, but through a separate civil proceeding in which the law
enforcement agency seeking the property must show, by a preponderance of
the evidence, only a nexus between the property sought to be forfeited and
the possessor’s unlawful activity. Id.; see also Commonwealth v. $1920
U.S. Currency, 612 A.2d 614 (Pa. Cmwlth. 1992).
The Commonwealth is correct that Appellant, by entering into the 2016
forfeiture agreement, relieved the Commonwealth of establishing a nexus
between the property seized and illegal activity; in fact, by signing the consent
agreement, Appellant agreed that the property was derivative contraband and
“subject to forfeiture pursuant to the Controlled Substances Forfeiture Act.”
Motion for Return of Property, 6/7/19, Ex. A at 1; see also Appellant’s Brief
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at 11. Further, in signing the forfeiture agreement, Appellant informed the
court that he did not contest the forfeiture and chose not to exercise his right
to contest the proceeding. Id. (“[Appellant] agrees and states that [he] is
waiving [his] rights to a forfeiture hearing/trial with full knowledge of the
consequences of [his] action and without any duress or coercion placed upon
[him].”). The fact that the Commonwealth subsequently withdrew Appellant’s
charges and did not obtain a criminal conviction is of no consequence. To hold
otherwise would be contrary to the principles of the Forfeiture Act, i.e., that
neither a criminal prosecution nor a conviction is required for property to be
seized and forfeited.8 $11,600.00 cash, 858 A.2d at 167.
Based on the foregoing, we affirm the trial court’s denial of Appellant’s
motion for return of property.
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8 As Appellant recognizes in his brief, the suppression motion and forfeiture
consent agreement in this case are intertwined. Appellant moved to suppress
the drugs and money recovered from his vehicle during the traffic stop. Had
the trial court suppressed this evidence, the Commonwealth would not have
been able to use them as evidence in a forfeiture proceeding. See Jackson,
53 A.3d at 958. The trial court, however, declined to suppress this evidence,
and Appellant then consented to forfeiture. In Commonwealth v. Bowers,
185 A.3d 358 (Pa. Super. 2018), this Court recognized the risk of seeking
forfeiture before a judgment of sentence becomes final “for if [the a]ppellant
challenges both the order 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.” Id. at 363. This case illustrates the
affect alluded to in Bowers. However, as discussed supra, Appellant
consented to the forfeiture of his property – relieving the Commonwealth of
its burden to prove a nexus – knowing he intended to appeal the denial of his
suppression motion. Appellant is now bound by the stipulations in the consent
agreement.
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Order affirmed.
Judge McLaughlin joins the memorandum.
Judge Pellegrini concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2020
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