Com. v. Latimer, A.

J-S44038-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY LEON LATIMER :
:
Appellant : No. 603 MDA 2020
Appeal from the Order Entered March 5, 2020
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0001844-2015
BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED NOVEMBER 18, 2020
Anthony Leon Latimer (Appellant) appeals pro se from the order entered
in the Cumberland County Court of Common Pleas, at criminal case CP-21-
CR-0001844-2015 (Criminal Docket 1844), denying his petition for return of
civil forfeiture property.1 The relevant order granting civil forfeiture was
____________________________________________
1 See 42 Pa.C.S. §§ 5801-5808 (Forfeiture of Assets Act). “The
Commonwealth Court normally has jurisdiction over appeals from forfeiture
orders, [and] 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. Bowers, 185 A.3d 358, 362 (Pa. Super. 2018). See also
Commonwealth v. Irland, 193 A.3d 370, 394 (Pa. 2018) (“Civil forfeiture,
although conceptually related to criminal forfeiture, is a distinct in rem
proceeding against property that may occur in the absence of any criminal
charges or convictions.”).
J-S44038-20
entered in another matter, In re: Commonwealth of Pennsylvania v.
$8,847.15 U.S. Currency, No. CP-21-MD-0000676-2016 (Cumberland Co.
CCP) (Civil Forfeiture Docket 676). We affirm the order on grounds not raised
by either the trial court or the parties2 — that the court in this criminal case
was precluded from disturbing an order entered in the civil forfeiture matter.
Preliminarily, we note the brevity of the instant criminal record, and
emphasize the record for Civil Forfeiture Docket 676 is not before us.
Appellant has, however, attached a copy of the docket for Civil Forfeiture
Docket 676 to his appellate brief, and the Commonwealth provided a copy of
the civil forfeiture order as an exhibit below. We glean the following factual
summary and procedural history from these and additional filings, as well as
the trial court’s opinion.
On June 25, 2015, Appellant was a rear seat passenger in a car stopped
by the Pennsylvania State Police for speeding on Interstate Route 81 in
Cumberland County. Commonwealth’s Nolle Pros, 11/21/19, at 1. A search
of the vehicle produced quantities of synthetic marijuana and cocaine. Id.
Additionally, police seized $4,887.15 cash from Appellant’s person, $3,960
cash from a pair of jeans in the vehicle’s trunk, three cell phones, and other
items. Commonwealth’s Answer to Petition for Return of Seized Property &
New Matter (Commonwealth’s Answer), 2/21/20, at 1 (unpaginated).
____________________________________________
2 The Commonwealth is represented by the Attorney General’s office.
-2-
J-S44038-20
All three occupants of the vehicle, including Appellant, were charged
with drug offenses. On September 18, 2015, an information was filed in the
instant matter, charging Appellant with two counts of conspiracy to commit
possession with intent to deliver controlled substances.3 Appellant was
represented by private counsel.
During the pendency of this case, Appellant also received, and was
convicted of, multiple felony drug charges in Maryland. Commonwealth’s Nolle
Pros at 1. As a result, he is serving a sentence in Maryland and will be eligible
for parole in 2024; his maximum sentence will conclude in 2027. Id.
On July 18, 2016, the Commonwealth filed a petition at Civil Forfeiture
Docket 676 against Appellant, for civil forfeiture of the $8,847.15 total cash
and items seized from the vehicle,4 as well as the vehicle itself. Approximately
a year and half later, on January 11, 2018, the Honorable Wesley Oler granted
the civil forfeiture petition. Order, Civil Forfeiture Docket 676, 1/11/18, at 1-
2, Exh. to Commonwealth’s Answer. The docket in that matter indicates
____________________________________________
3 18 Pa.C.S. § 903(a); 35 P.S. § 780-113(a)(30).
4 The Commonwealth also sought civil forfeiture of two $30 gift cards, three
cell phones, an Amazon Kindle, and a Nextbook tablet. Commonwealth’s
Answer at 1. Appellant claims he is entitled to the cash, but denies ownership
of the vehicle and other items. Appellant’s Brief at 3.
-3-
J-S44038-20
Appellant did not file any petition for reconsideration or return of property,
nor any notice of appeal.5 See Docket, Civil Forfeiture Docket 676, at 3.
On April 18, 2019, at Criminal Docket 1844, the court clerk received a
pro se “Petition for Return of Seized Property” and forwarded it to Appellant’s
counsel pursuant to Pa.R.Crim.P. 576(A)(4) (when a represented defendant
submits pro se filing, clerk of courts shall make a docket entry reflecting date
of receipt and forward filing to defendant’s attorney and the Commonwealth).
However, no counseled petition for the return of property was filed.
On September 13, 2019 (more than four years after the filing of the
information), Appellant filed a counseled motion in the criminal matter to
dismiss the charges under Pa.R.Crim.P. 600.6 The trial court directed the
Commonwealth to file a response, but on November 21, 2019, the
Commonwealth issued notice of intent to nolle pros the two conspiracy
charges against Appellant. The Commonwealth averred Maryland authorities
have “continually stated that [Appellant] is unavailable for transport” to
Cumberland County and thus “this case has languished . . . the last several
____________________________________________
5 In the proceedings below, the Commonwealth averred Appellant “was
previously ordered to respond to the Commonwealth’s Petition for Forfeiture
and Condemnation within [30] days after his criminal case [sic] was closed.”
Commonwealth’s Answer at 6. However, the civil forfeiture docket does not
include an entry for any such order.
6 See Pa.R.Crim.P. 600(A)(2)(a) (“Trial in a court case in which a written
complaint is filed against the defendant shall commence within 365 days from
the date on which the complaint is filed.”).
-4-
J-S44038-20
years.” Commonwealth’s Nolle Pros at 1. The Commonwealth concluded that
although it “is confident that [Appellant] committed the offenses[,] after
careful evaluation of the facts and circumstances . . . and [Appellant’s] lengthy
Maryland sentence, [the Commonwealth] believes that the interests of justice
have already been served.” Id.
Two and half months later, on February 6, 2020 — and more than two
years after the civil forfeiture order was issued — Appellant filed the
underlying pro se petition, at Criminal Docket 1844, for return of the seized
cash. Appellant averred he learned his criminal case was dismissed on
December 5, 2019, but presented no argument for the return of property and
merely demanded a cashier’s check for $8,610. The Commonwealth
responded : (1) Appellant’s petition was untimely under Pa.R.Crim.P. 588;7
(2) the petition failed to allege any right in the property, in contravention of
Section 5806(b)(2)8 of the Forfeiture of Assets Act,; (3) if Appellant’s petition
____________________________________________
7 See Pa.R.Crim.P. 588(a) (“A person aggrieved by a search and seizure . . .
may move for the return of the property on the ground that he or she is
entitled to lawful possession thereof.”); Commonwealth v. Allen, 107 A.3d
709, 717 (Pa. 2014) (“Pursuant to Rule 588, . . . a return motion is timely
when it is filed . . . while [the] court retains jurisdiction, which is up to thirty
days after disposition.”). See also Irland, 193 A.3d at 395 (“[A] forfeiture
pursuant to Rule 588 may occur prior to conviction and in the absence of a
criminal conviction. Accordingly, such forfeitures, although founded in a rule
of criminal procedure, must be denominated civil in nature . . . .”).
8 See 42 Pa.C.S. § 5806(b)(2) (motion for return of property shall describe
the nature and extent of petitioner’s right, title or interest in the property).
-5-
J-S44038-20
were construed to be a petition to open default judgment, no relief would be
due because the petition was untimely and presented no meritorious defense;
and (4) in any event, the $8,847.15 cash was properly forfeited because it
was found in close proximity to controlled substances and was thus presumed
to be proceeds from selling controlled substances.9 Commonwealth’s Answer
at 3-4, 6-8.
On March 5, 2020, the Honorable Albert Masland denied Appellant’s
petition for return of seized property, citing three of the above reasons set
forth in the Commonwealth’s answer.10 Order, 3/5/20, at 1-2. Appellant filed
a timely notice of appeal and complied with the court’s order to file a Pa.R.A.P.
1925(b) statement.11
____________________________________________
9 See 42 Pa.C.S. § 5802(6)(ii) (“The money . . . found in close proximity to
controlled substances possessed in violation of The Controlled Substance . . .
Act shall be rebuttably presumed to be proceeds derived from the selling of a
controlled substance in violation of The Controlled Substance . . . Act.”).
10The trial court did not address the Commonwealth’s claim that the cash was
properly forfeited as “proceeds of [Appellant’s] drug trafficking.” See Trial Ct.
Op. at 1-2; Commonwealth’s Answer at 7-8.
11 The thirtieth day following the trial court’s March 5, 2020, order was
Saturday, April 4th. See Pa.R.A.P. 903(a) (notice of appeal “shall be filed
within 30 days after the entry of the order from which the appeal is taken”).
Appellant’s notice of appeal was filed on Monday, April 6th, and was timely.
See 1 Pa.C.S. § 1908 (when last day of any statutory period of time falls on
Saturday, such day shall be omitted from computation). Finally, for ease of
review, we note Appellant’s Rule 1925(b) statement is inaccurately entitled
“Opinion and Support of Order.”
-6-
J-S44038-20
On appeal, Appellant presents several arguments in support of reversal
of the trial court’s order.12 He contends that whereas the Commonwealth
relied on criminal case authority involving “investigative drug dealing,” here,
the seizure of the $8,847.15 cash did not arise “from any ongoing
investigation,” but instead “[t]his incident was a spontan[e]ous traffic stop,
[another] occupant of the vehicle . . . took ownership” of the narcotics, and
the Commonwealth cannot “prove that [Appellant’s] property was related to
those narcotics.” Appellant’s Brief at 2. Next, Appellant avers he requested
his attorney, by letter on December 10, 2019, to seek return of the property,
but counsel advised him there was no forfeiture case and instead, Appellant
would have to request return of property from the Sheriff’s Department. Id.
at 3. Appellant further claims counsel did not inform him he had 30 days to
request a return of property, and that Appellant is incarcerated in Maryland
“with very lack [sic] of access to the library[ ] and [Pennsylvania] law books
on . . . rules an[d] procedures.” Id. at 4-5. Appellant alleges “good cause”
for the delay in filing a petition for return of property: “[o]n or around . . .
1/13/20 after the holiday[s,] Appellant called and left a message about . . . a
return of property from . . . the traffic stop officer,” but a sheriff later advised
Appellant to contact the Commonwealth, which had the property. Id. at 5.
____________________________________________
12 Appellant’s pro se brief does not include any statement of questions
involved, nor any citation to or discussion of relevant authority. See Pa.R.A.P.
2116(a), 2119(a).
-7-
J-S44038-20
Before examining the merits of Appellant’s claims, we consider whether
the trial court in the case sub judice, Criminal Docket 1844, had authority to
disturb an order entered in another matter, Civil Forfeiture Docket 676.
Neither the trial court nor the Commonwealth discussed this issue.13 Indeed,
the trial court stated: “[T]his court entered an order of forfeiture, as a default
judgment[.]” Trial Ct. Op. at 1 (emphasis added).
While we have not discovered any authority specifically addressing the
circumstances presented here,14 we find guidance in the Commonwealth
Court’s decision in Commonwealth v. Perez, 941 A.2d 778 (Pa. Cmwlth.
2008).15 In that case, police arrested the defendant in Philadelphia pursuant
to a Berks County arrest warrant “based on an attempted murder.” Id. at
779. At the time of the arrest, the defendant was carrying 64 packets of
____________________________________________
13 But see Commonwealth’s Brief at 2 (acknowledging that civil forfeiture
order was granted at Civil Forfeiture Docket 676).
14 We acknowledge that in Bowers, the defendant took an appeal in his
criminal case, from an order, which denied his motion for return of property
and granted the Commonwealth’s forfeiture petition. Bowers, 185 A.3d at
360. However, in that case, the defendant had filed, in the same criminal
docket, a pretrial motion for return of property seized, and in response, “the
Commonwealth filed an answer to [the] motion . . . and a counterclaim in the
nature of a petition for civil forfeiture.” Id. at 361. In contrast, here, the
Commonwealth filed a forfeiture petition — and forfeiture was granted — in a
separate civil forfeiture docket.
15 See Bowers, 185 A.3d at 362 n.4 (“Although the decisions of the
Commonwealth Court are not binding upon this Court, they may serve as
persuasive authority.”) (citation omitted).
-8-
J-S44038-20
heroin and $2,176 cash. Id. In March of 2001, the defendant was convicted,
in Berks County, of attempted murder and drug offenses, the latter of which
“resulted in a forfeiture proceeding . . . involving the . . . cash and” a vehicle.
Id. at 779-80. The trial court granted the forfeiture petition in May of 2001,
and the defendant “did not appeal that decision.” Id. at 780. The defendant
appealed his criminal convictions, however, and the Pennsylvania Superior
Court held trial counsel was ineffective for failing to object to the Berks County
court’s lack of subject matter jurisdiction over the drug offenses. Id.
Following remand, the drug charges were nolle prossed. Id.
The Commonwealth Court summarized:
Three years later, [the defendant,] who was still incarcerated as
a result of the attempted murder conviction, petitioned the trial
court for the return of the [cash and vehicle], arguing that the
court lacked jurisdiction to grant the forfeiture petition. The trial
court found [the] petition to be barred by the doctrine of res
judicata.
Perez, 941 A.2d at 780. On appeal, the Court agreed, first noting:
The doctrine of res judicata applies to bar a subsequent suit on
the same claim after the relevant appeal period has expired. For
res judicata to apply, there must be a concurrence of four
conditions, all of which are met here: (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. The doctrine provides finality to the proceedings.
[The defendant] 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. [The defendant] does so long after the relevant appeal
period for the forfeiture has run.
-9-
J-S44038-20
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 [the defendant]
attempt to attack the forfeiture judgment, even though [a] timely
appeal . . . would have allowed [him] 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.
Id. at 780-81 (citations and footnote omitted). The Commonwealth Court
thus affirmed the forfeiture order. Id. at 782-83.
Although Appellant presents different arguments, from those in Perez,
for challenging the civil forfeiture decision, we apply Perez’s reasoning to
conclude the trial court properly denied relief. See Perez, 941 A.2d at 780-
81. While we appreciate Appellant’s argument, that as a pro se inmate in
another state he has limited access to Pennsylvania law books,16 we hold the
trial court was barred by res judicata from disturbing an order entered in the
separate civil forfeiture docket.17 See id. Accordingly, we affirm the order
denying Appellant’s petition to return seized property.
Order affirmed.
____________________________________________
16“Although this Court is willing to liberally construe materials filed by a pro
se litigant, pro se status confers no special benefit upon the appellant.”
Commonwealth v. Adams, 882 A.2d 496, 498 (Pa. Super. 2005).
17 “It is well-settled that this Court may affirm on any basis.”
Commonwealth v. Clouser, 998 A.2d 656, 661 n.3 (Pa. Super. 2010).
- 10 -
J-S44038-20
Judge Nichols joins this Memorandum.
President Judge Emeritus Bender concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2020
- 11 -