Opinion
No. 2263 C.D. 2010
10-27-2011
Commonwealth of Pennsylvania v. James H. Harris, Jr., Appellant
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOHNNY J. BUTLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
James H. Harris, Jr. (Appellant) appeals, pro se, from the Order of the Court of Common Pleas of Northampton County (trial court) that granted the Commonwealth of Pennsylvania's (Commonwealth) Petition for Forfeiture (Forfeiture Petition) of $2,023.00 in U.S. currency, four digital scales, three rifles, and one Maverick shotgun (Property) pursuant to the Controlled Substances Forfeiture Act, 42 Pa. C.S. §§ 6801 - 6802. The trial court denied forfeiture of three cell phones, and it denied Appellant's Motion for Return of Property (Motion) pursuant to Rule 588 of the Pennsylvania Rules of Criminal Procedure. We affirm.
Rule 588 of the Pennsylvania Rules of Criminal Procedure provides, in relevant part:
(A) 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. . . .Pa. R. Crim. P. 588.
(B) The [J]udge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.
In May 2008, Detective Charles Horvath (Detective Horvath) seized the Property from Appellant's apartment in Bethlehem, Northampton County, during a search of the apartment pursuant to a search warrant for the premises. The trial court held a hearing on both the Forfeiture Petition and Motion on July 30, 2010. Detective Horvath appeared on behalf of the Commonwealth and testified in support of the Forfeiture Petition. Appellant appeared pro se, cross-examined Detective Horvath, and testified in support of his Motion. The trial court filed an Opinion on August 17, 2010, in which it set forth the following findings of fact:
1. On or about May 9, 2008, then-Detective Horvath of the Colonial Regional Police Department, acting in his capacity as an officer of the Northampton County drug task force, entered the apartment of [Appellant] at 420 Cherokee Street, Apartment 2, Bethlehem, Pennsylvania for the purpose of executing a valid search warrant.
2. [Appellant] was the sole resident of that address.
3. While executing that search warrant, Detective Horvath seized $2,023.00 in U.S. currency, four (4) digital scales, three (3) cell phones, three (3) rifles, and one (1) Maverick shotgun from the apartment.
4. The Colonial Regional Police Department had executed three (3) controlled buys in the days prior to the search using a confidential informant, which were observed by [Detective] Horvath.
5. The currency found in [Appellant's] home was commingled with $50.00 U.S. currency consisting of bills whose serial numbers had been previously recorded by the Colonial Regional Police Department and which bills had been used in a controlled buy between [Appellant] and a confidential informant.
6. All of the currency was found in a locker in [Appellant's] apartment along with all four (4) above-captioned weapons.
7. The $2,023.00 in U.S. currency found in the apartment of [Appellant] represented the proceeds of the delivery of a controlled substance and/or was intended to be used in furtherance of the possession and/or delivery of a controlled substance.
8. The digital scales found in the apartment were of a type which are used in the weighing and measuring of controlled substances for the purposes of delivering those substances.
9. [Appellant] used or intended to use the scales for the purpose of weighing and measuring a controlled substance for the purpose of delivering that substance.
10. [Appellant] used or intended to use the weapons in question in connection with the possession and/or delivery of a controlled substance.
11. The Commonwealth presented no evidence relative to the cell phones at issue.
12. At the hearing, [Appellant] presented no evidence relative to, and in fact made no mention of, the items claimed by him
which were not the subject of the Commonwealth's petition, i.e. the wallet, mail, National Association of Bail Bond Investigators ID, and two bail enforcement badges with clips/holders.(Trial Court Op., Findings of Fact (FOF) ¶¶ 1-14.)
13. The testimony of Agent Horvath was credible.
14. The testimony of [Appellant] was not credible as it related to the nature and purpose of the items which the Commonwealth sought to have forfeited.
In this appeal, Appellant argues that the trial court erred in denying his Motion and in granting the Forfeiture Petition for the Property because the trial court: (1) should have voided the search warrant; (2) improperly disregarded Appellant's Motion; (3) permitted the Commonwealth to proceed on an unfiled or incorrectly filed Forfeiture Petition when Appellant's Motion should have been heard first; (4) incorrectly joined the Forfeiture Petition with the criminal proceedings; (5) improperly identified Detective Horvath's employer; (6) did not find Detective Horvath's testimony untruthful; and (7) improperly admitted Commonwealth's Exhibit 2, a photocopy of the "buy money."
Our scope of review of a trial court's decision on a motion for return of property and petition for forfeiture is limited to whether the trial court's findings are supported by competent evidence and whether the trial court abused its discretion or committed an error of law. Commonwealth v. Pena, 751 A.2d 709, 710 n.2 (Pa. Cmwlth. 2000).
We first note that issues not included in Appellant's 1925(b) concise statement of errors complained of on appeal (Concise Statement) are waived. Pa. R.A.P. 1925(b)(4)(vii). Appellant did not include issues (1) through (3) in his 1925(b) Concise Statement, but did include issues (4)-(7) and, therefore, we now consider issues (4)-(7).
Despite issues enumerated (1) through (3) in Appellant's brief having been waived pursuant to Pa. R.A.P. 1925(b)(4)(vii), we note that even had these issues been preserved for appeal, they would have no merit. Regarding Appellant's issue (1), that the trial court should have voided the search warrant due to discrepancies, we note that any defects or challenges to the validity of a search warrant must be raised before the conclusion of the preliminary hearing. Pa. R. Crim. P. 109. Therefore, these issues relating to the defects or validity of the search warrant in Appellant's criminal case were waived when not timely raised. Pa. R. Crim. P. 109. Further, this appeal is not the proper forum for raising defects in a search warrant because the instant case is not an appeal of Appellant's underlying criminal case, but a separate civil case relating to his Motion and the Forfeiture Petition. In re One 1988 Toyota Corolla, 675 A.2d 1290, 1295 (Pa. Cmwlth. 1996). Regarding Appellant's issue (2), that the trial court disregarded Appellant's Motion, the record shows that the trial court considered Appellant's testimony in support of his Motion and did not disregard his Motion. (Hr'g Tr. at 16-23, July 30, 2010.) Regarding Appellant's issue (3), that the trial court permitted the Commonwealth to proceed on an unfiled or improperly filed Petition for Forfeiture, we note that the trial court permitted the Commonwealth the same consideration given to Appellant when the trial court scheduled Appellant's Motion for a hearing on his behalf, recognizing that he was incarcerated. (Hr'g Tr. at 3-4.) Appellant's further argument, that his Motion should have been heard before the Forfeiture Petition, is without merit because the Motion and the Forfeiture Petition are separate actions having different burdens of proof. A motion for return of property should not be granted unless the movant has presented the trial court with credible evidence of ownership of or entitlement to the property being requested. Commonwealth v. Janda, 14 A.3d 147, 167 (Pa. Super. 2011) (quoting In re Firearms, Eleven, 922 A.2d 906, 912 (Pa. Super. 2007)). A forfeiture petition is dependent upon whether the property is contraband, and the Commonwealth bears the burden of proving that the property is contraband. In re Firearms, Eleven, 922 A.2d at 910. There are two distinct classifications of property: contraband per se and derivative contraband. Id. Here, there was no allegation that the Property was contraband per se and, therefore, the Commonwealth had to prove that the Property was derivative contraband. Derivative contraband is property "innocent by itself," but used or intended to be used in the perpetration of an unlawful act. Id. The Commonwealth must prove a nexus between the alleged criminal activity and the Property for which forfeiture was sought. Id. Therefore, because Appellant had to prove, by a preponderance of the evidence, that he had lawful possession of the Property, Commonwealth v. Johnson, 931 A.2d 781, 783 (Pa. Cmwlth. 2007), and the Commonwealth had to establish a nexus between the Property and Appellant's criminal activity, i.e., possession and/or delivery of a controlled substance, there was no requirement that the Motion be presented first, i.e., before the Forfeiture Petition, and the order of presentation does not change the differing burdens that each party had to prove. Thus, if Appellant had proceeded with his testimony first, his burden was not any different than it was when he proceeded after the Commonwealth's case for forfeiture.
Appellant first argues that the trial court improperly joined the underlying criminal case against Appellant with the instant case of the Motion and the Forfeiture Petition. However, our review of the record establishes that the trial court considered the Motion and the Forfeiture Petition separately from the underlying criminal case. Separate hearings were held on each, with the first day of the hearing for the criminal trial having occurred on April 14, 2009, and the hearing on the Motion and Forfeiture Petition having occurred on July 30, 2010. The underlying criminal case has a separate docket number, occurred earlier chronologically, and the cases were not joined.
Appellant next argues that the trial court incorrectly identified Detective Horvath as a member of the Colonial Regional Police Department, which would have meant that Detective Horvath had acted outside of his jurisdiction when searching Appellant's apartment and arresting Appellant in the underlying criminal case. Thus, Appellant argues that the warrant was invalid for lack of jurisdiction. However, although the trial court mistakenly referred to Detective Horvath as a member of the Colonial Regional Police Department in its Opinion, (Trial Court Op. at 1), the trial court subsequently acknowledged in its opinion, pursuant to Pa. R.A.P. 1925(a), that it misidentified Detective Horvath's employer, but noted that Detective Horvath was in fact employed by the Pennsylvania Office of the Attorney General and, at all relevant times, had proper jurisdiction in this case. The trial court's determination is supported by the record. Detective Horvath testified that he was a narcotics agent with the Commonwealth of Pennsylvania as of the date of the execution of the search warrant on Appellant's apartment on May 9, 2008. (Hr'g Tr. at 4-5, July 30, 2010.) The transcript from Appellant's criminal trial further establishes that Detective Horvath testified that he was "currently employed as a narcotics agent through the Pennsylvania Office of the Attorney General," (Hr'g Tr. at 43-44, April 14, 2009), though he previously was employed as a member of the Colonial Regional Police Department and the Northampton County Drug Task Force. (Hr'g Tr. at 44.) The trial court simply misstated Detective Horvath's employer in its findings, which it subsequently corrected in its 1925(a) Opinion; this misstatement did not deprive Detective Horvath of jurisdiction and is of no consequence to the trial court's granting of the Forfeiture Petition.
Next Appellant contends that the trial court erred when it did not find Detective Horvath's testimony untruthful when he testified that "[Appellant] was actually on his front lawn playing with the dog when [Appellant] met with the C[onfidential] I[nformant] initially and went inside the apartment." (Hr'g Tr. at 8, July 30, 2010.) Appellant denies that he was on the front lawn with a dog and believes that this was said only to give the court the impression that the detective made a positive identification of Appellant. However, the trial court credited Detective Horvath's account of the events, thereby rejecting Appellant's contrary version. (FOF ¶ 13.) "It is the function of the trial court, not the appellate court, to decide matters of credibility." Commonwealth v. Three Hundred Ten Thousand Twenty Dollars, 894 A.2d 154, 165 (Pa. Cmwlth. 2006).
Appellant additionally argues that the trial court improperly admitted Commonwealth's Exhibit 2, a photocopy of "buy money," because this Exhibit was labeled "May 8, 2008" and the search warrant was executed on May 9, 2008. Appellant did not object to the introduction and identification of Exhibit 2. Additionally, Detective Horvath identified Commonwealth's Exhibit 2 as a photocopy of two $20 bills and one $10 bill, which were part of the buy money used on May 8 in the controlled buy of crack cocaine from Appellant. (Hr'g Tr. at 8-9.) Detective Horvath further testified that these bills were intermingled with the $2,023.00 located in a cup inside Appellant's gun cabinet in his apartment, which was recovered during the execution of the search warrant on May 9, 2008. (Hr'g Tr. at 8.) The date on the picture is consistent with Detective Horvath's credited testimony. (See FOF ¶ 5 ("The currency found in [Appellant's] home was commingled with $50.00 U.S. currency consisting of bills whose serial numbers had been previously recorded by the . . . Police Department and which bills had been used in a controlled buy transaction between [Appellant] and a confidential informant.")) Because Appellant did not object to the introduction of Exhibit 2, and the Exhibit is consistent with the credited testimony, we do not agree with Appellant's argument.
The trial court refers to this gun cabinet as a locker. (FOF ¶ 6.)
Appellant additionally argues in the "Conclusion" section of his brief, (Appellant's Br. at 26-30), that he proved his entitlement to the Property and that his Motion should have been granted. Pursuant to Pa. R. Crim. P. 588, to prevail on a motion for the return of property, the moving party must first establish entitlement to lawful possession. Commonwealth v. Mosley, 549 Pa. 627, 631, 702 A.2d 857, 859 (1997). Our review of the transcript reveals that Appellant testified that he had a 75 lb. scale used for shipping items on eBay; a smaller, red Pitney Bowes scale used for weighing and shipping envelopes; a digital scale that did not work; and a fourth scale for weighing his collectible coins to protect against counterfeits. (Hr'g Tr. at 17.) He further testified that the cash taken from the cup in his gun cabinet was from the sale of a Geo Tracker on eBay after he had fixed the vehicle for someone who owed him money. (Hr'g Tr. at 17.) Here, the Commonwealth cross-examined Appellant about his source of income, his claimed eBay transactions, and his filing of tax returns. The trial court specifically found that Appellant's testimony was not credible as it related to the nature and purpose of the items at issue here. (FOF ¶ 14).
Appellant did not present any testimony about his ownership of the three marlin rifles or maverick shotgun, and he did not establish his entitlement to the Property during his cross-examination of Detective Horvath. In response to questions about the source of his income on cross-examination, Appellant explained that he sold items such as coins, exercise equipment, women's blouses, and men's vests on eBay. (Hr'g Tr. at 18-19.) However, the trial court did not credit Appellant's testimony. (FOF ¶ 14.) In making an initial determination regarding lawful possession or ownership, it is within the "province of the trial court to judge the credibility of the witnesses and weigh the testimony offered." Commonwealth v. Younge, 667 A.2d 739, 741 (Pa. Super. 1995). "Where the trial court is not provided with credible evidence as to ownership or entitlement, a motion for return of money should not be granted." Commonwealth v. Pomerantz, 573 A.2d 1149, 1152 (Pa. Super. 1990) (emphasis added). Thus, Appellant could not sustain his burden of proving, by a preponderance of the evidence, that he was lawfully entitled to possess the Property and, therefore, the trial court did not err in denying the Motion.
The trial court, citing Commonwealth v. Johnson, 931 A.2d 781 (Pa. Cmwlth. 2007), denied Appellant's Motion, concluding that he "failed to sustain his burden of proof that, by a preponderance of the evidence, he is lawfully entitled to possess those items . . . which he seeks in his Motion to have returned to him." (Trial Court Op. at 5.) However, Appellant further argues that Johnson is distinguishable from his case because Johnson never testified on his behalf to claim his lawful possession of his property and "Appellant did testify and claim legal and lawful ownership." (Appellant's Br. at 27.) We agree that this case is distinguishable from Johnson because Appellant testified. However, Appellant did not testify regarding his entitlement to the guns; he, therefore, did not meet his initial burden of proof of lawful entitlement for those items. "At a minimum, our rules and case law mandate [Appellant] properly allege, under oath, lawful possession." Johnson, 931 A.2d at 784. (Emphasis in original.) Thus, we conclude that Appellant did not meet even the most minimal burden of proof for the return of the rifles, shotgun, or any Property other than the cash and scales. --------
Appellant further argues that the Commonwealth's Forfeiture Petition should not have been granted because there was no nexus between the guns, scales, or any of the items seized and the criminal activity. As discussed previously, Appellant's seized Property is subject to forfeiture if the Commonwealth has met its burden of proving that these items are derivative contraband. In re Firearms, Eleven, 922 A.2d 906, 910 (Pa. Super. 2007). "Objects do not acquire 'guilt by association' merely because they are owned by a person who has been engaged in criminal conduct." Id. Therefore, "the Commonwealth must establish a specific nexus between the property and the alleged criminal activity." Commonwealth v. Howard, 552 Pa. 27, 33, 713 A.2d 89, 92 (1998). "The requirement that a sufficient nexus exist between the property and the prohibited criminal activity serves to mitigate the potentially harsh results of permitting the Commonwealth to penalize a citizen by a civil action against his property rather than a criminal action against his person." In re Firearms, Eleven, 922 A.2d at 910.
In addressing the forfeiture of the currency, the trial court found that the currency had such a sufficient nexus because it was commingled with the $50.00 U.S. currency consisting of bills whose serial numbers had been previously recorded by the police department and had been used in a controlled buy transaction between Appellant and a confidential informant. (FOF ¶ 5.) The trial court further found that this currency was found in a locker in Appellant's apartment along with the four weapons, (FOF ¶ 6), and that Appellant used or intended to use the weapons in connection with the possession and/or delivery of a controlled substance. (FOF ¶ 10.)
Appellant cites Petition of Maglisco, 491 A.2d 1381 (Pa. Super. 1985), for support that his four weapons should not be forfeited and that they should not have acquired guilt by association with the currency located with them. (Appellant's Br. at 27.) While we agree that "[t]here is no 'gun-exception' to the general rule that a nexus must exist between the seized item and criminal conduct," Howard, 552 Pa. at 34, 713 A.2d at 93, the location of the cash, which included the commingled bills that had been used in the controlled buy transaction, in the same cabinet as the four weapons provides the nexus sufficient for the forfeiture of those weapons in this case. Additionally, the trial court did not credit the testimony of Appellant regarding his use of the scales but, rather, credited the Commonwealth's evidence that the scales were of a type used in the weighing and measuring of controlled substances for the purpose of delivering those substances. (FOF ¶ 8.) Moreover, the trial court's finding that Appellant used or intended to use the weapons in connection with the possession and/or delivery of a controlled substance is a factual finding, based upon the weight and sufficiency of the evidence and the credibility of the testimony of the parties in this case, all of which are within the province of the trial court. Younge, 667 A.2d at 741. Because there is support in the record for the trial court's findings that the currency, scales, and weapons had a sufficient nexus to the criminal activity, we conclude that the trial court properly granted the Forfeiture Petition for these items.
Accordingly, the Order of the trial court is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, October 27, 2011, the Order of the Court of Common Pleas of Northampton County in the above-captioned matter is hereby affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge