Com. v. All That Certain Parcel and Lot of Land Located at 4029 Beale Ave., Altoona, Blair County
| Decision Date | 18 July 1996 |
| Citation | 680 A.2d 1128,545 Pa. 172 |
| Parties | COMMONWEALTH of Pennsylvania v. ALL THAT CERTAIN PARCEL AND LOT OF LAND LOCATED AT 4029 BEALE AVENUE, ALTOONA, BLAIR COUNTY, Pennsylvania, together with all of its improvements, Appurtenances, Buildings, Structures, and all other items as described in Deed Book Volume 1133, and 1983 Dodge Charger Vin # 1B3BZ54C2DD272601. Appeal of Ralph and Mary OLIVO. |
| Court | Pennsylvania Supreme Court |
Before FLAHERTY, ZAPPALA, CAPPY, CASTILLE and NIGRO, JJ.
This appeal raises the issue of whether the forfeiture of the residence of Appellants, Mary and Ralph Olivo, violates the excessive fine provision of Article I, Section 13 of the Pennsylvania Constitution. 1
The record establishes that on November 7, 1992, Ralph Olivo telephoned Dennis Colello, a Commonwealth informant. 2 Olivo told Colello that for $1,350.00 "up front" money, he could obtain one ounce of cocaine. Olivo later went to Colello's home and collected the money. The next day, Colello went to Olivo's home on 4029 Beale Avenue and picked up the cocaine.
On November 27, 1992, Olivo again telephoned Colello regarding a sale of one ounce of cocaine. This time, Colello went to Olivo's home to deliver the $1,350.00. Mary Olivo informed Colello that her husband was not home, but directed him to leave the money with her. She also informed Colello that if he purchased two ounces of cocaine, he would save $200.00 per ounce. Colello refused, stating he could only afford one ounce. The next day, Colello returned and Olivo delivered to him approximately one ounce of cocaine.
The Olivos were thereafter arrested. Upon searching their residence, police officers discovered 1/4 pound of marijuana underneath a floor heat grate in the master bedroom. Ralph Olivo was subsequently convicted of two counts of delivery of cocaine, criminal conspiracy to deliver cocaine and possession of marijuana. He was found not guilty of possession with intent to deliver marijuana. Mary Olivo was convicted of criminal conspiracy to deliver cocaine.
Pursuant to the Controlled Substance Forfeiture Act, 42 PA.C.S. §§ 6801(A)(4) AND (A)(6)(I)(C)3, 4 the Commonwealth filed a petition for forfeiture of the Olivo residence and a petition for forfeiture of Mary Olivo's 1983 Dodge Charger. The trial court denied both petitions. 5 It found that the Commonwealth failed to establish a significant relationship between the residence and the two sales of cocaine because: (1) Olivo travelled outside Blair County to obtain the cocaine; (2) Olivo delivered no more than one ounce of cocaine on each occasion; and, (3) the police officers did not find in the house any items characteristically connected with the sale of drugs. 6 It concluded that the forfeiture of the Olivo residence would constitute an excessive fine under Article I, Section 13 of the Pennsylvania Constitution.
The Commonwealth Court affirmed the trial court's order as to the denial of the forfeiture of the vehicle, but reversed as to the denial of the forfeiture of the residence. The court relied on the fact that the two drug transactions occurred at the Olivo residence within a three week period and that Mrs. Olivo solicited a third sale from the residence when Colello paid for the second purchase. It concluded that "substantial evidence existed to prove that the Olivo residence was used to facilitate on-going illegal drug transactions." Slip op. at 6, 653 A.2d 720. 7
As noted, we must determine whether the forfeiture of Appellants' home is an excessive fine. Appellants contend that because the Commonwealth failed to establish a significant relationship between the criminal conduct and the subject of forfeiture, the trial court properly denied the petition for forfeiture pursuant to In Re King Properties, 535 Pa. 321, 635 A.2d 128 (1993), and the United States Supreme Court decision in Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). Appellants further assert that the Commonwealth Court erroneously reversed the denial of the forfeiture petition since a trial court's decision cannot be overturned if based on competent evidence. Commonwealth v. Schill, 164 Pa.Cmwlth. 594, 643 A.2d 1143 (1994).
In King Properties, a search of King's residence revealed $4,395.00 in cash, 12 to 14 grams of cocaine, a supply of plastic baggies with the corners cut, and a triple beam scale. King admitted he was the owner and only resident of the house. Further, although King claimed that he was a laid-off blacktopping worker, he had made a cash payment of $46,365.95 toward the purchase price of his home and a cash payment of $6,412.66 for furniture. A second search of the home six months later revealed additional drug paraphernalia. 8
The trial court granted the Commonwealth's petition for forfeiture of the residence, but permitted King to redeem the house for $30,000.00. The Commonwealth Court affirmed the forfeiture but reversed as to the redemption. Our Court affirmed, holding that the forfeiture of King's house did not constitute an "excessive fine" under Article I, Section 13 of the Pennsylvania Constitution and that the right of redemption is not permitted in the context of a statutory forfeiture. We relied on Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), which held that the excessive fines provision of the Eighth Amendment applies to drug-related forfeitures of property to the United States under 21 U.S.C. §§ 881(a)(4) and 881(a)(7) because such a forfeiture constitutes a payment to government as a punishment. We found that although the excessive fines provision of Article I, § 13 of the Pennsylvania Constitution is applicable to forfeiture cases, the forfeiture of King's residence did not violate that provision since the home was used as the base of a drug-trafficking operation.
We also set forth appropriate factors to be considered when determining whether a forfeiture violates the excessive fines provision of Article I, Section 13. We found that rather than focusing on the value of the property forfeited, the court should inquire as to the relationship of the offense to the property. King Properties, 535 Pa. at 331, 635 A.2d at 133. We held that if the forfeited property was significantly used in the commission of the offense, the item may be forfeited regardless of its value. Id. Where the evidence is that the criminal incident on which the forfeiture is based is not part of a pattern of similar incidents, there is no "significant" relationship between the property sought to be forfeited and the offense. We concluded that otherwise, significant property interests might become forfeit based on an unusual and unaccustomed incident. Id.
We also stated in King Properties that, in the context of determining whether a forfeiture constitutes an excessive fine, the Commonwealth bears the burden of proving, by clear and convincing evidence, that the criminal conduct in question establishes a relevant pattern rather than a onetime occurrence. 9 The Commonwealth may meet this burden by utilizing circumstantial evidence. Id.
Applying these concepts to the case at bar, we find that the trial court did not abuse its discretion in denying the petition for forfeiture of the residence. We reach this conclusion because the Commonwealth did not establish a significant relationship between the drug transactions and the property forfeited. Unlike King Properties, no cocaine or instrumentalities of the drug trade were found in Appellants' home. 10 There was no evidence that the drugs were diluted or stored in the residence. Compare Commonwealth v. Schill, 164 Pa.Cmwlth. 594, 643 A.2d 1143 (1994) (). There was also no evidence of large amounts of cash, which would have supported the inference that a series of drug sales...
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