Com. v. Cox

• Decision Date: 02 February 1994
• Citation: 637 A.2d 757,161 Pa.Cmwlth. 589
• Parties: COMMONWEALTH of Pennsylvania, v. Richard COX, Appellant.
• Court: Pennsylvania Commonwealth Court

Page 757

637 A.2d 757

161 Pa.Cmwlth. 589

COMMONWEALTH of Pennsylvania, v. Richard COX, Appellant.

Commonwealth Court of Pennsylvania.

Submitted on Briefs Dec. 3, 1993.

Decided Feb. 2, 1994.

[161 Pa.Cmwlth. 590] Richard E. Cox, appellant, for himself.

Steve Linick, Asst. Dist. Atty., for appellee.

Before McGINLEY and PELLEGRINI, JJ., and LORD, Senior Judge.

LORD, Senior Judge.

Richard Cox appeals an order of the Court of Common Pleas of Philadelphia County, Criminal Division, denying Cox's application for return of property, one 1976 Cadillac On May 31, 1990, Cox was convicted of several offenses, including robbery and conspiracy to commit robbery. His conviction was essentially predicated upon his having provided and driven a getaway car, his own 1976 Cadillac Seville, while an accomplice robbed a bank patron of cash at gunpoint. Following the robbery, Cox had contacted the police, alleging he had been abducted at gunpoint by the accomplice and forced to participate in the crime. The police eventually arrested Cox and obtained his car in order to search for evidence. Several months after the robbery, a detective at the police garage signed a document authorizing the release of the car to Cox's wife, stating that "[t]he auto has been processed by the Crime Lab and is no longer needed." However, the car was never released.

Seville automobile, and granting a forfeiture of said property.

On November 20, 1991, while incarcerated for his crimes, Cox filed a petition for return of property, seeking to have the Commonwealth release his car. After several hearings at which Cox was not present, the trial judge orally denied Cox's petition and granted a forfeiture. (Notes of Testimony (N.T.), October 14, 1992, p. 23). Cox appealed this order pro se to the Superior Court. The Commonwealth then filed a motion to transfer the appeal to this Court. The Superior Court granted the transfer motion. ¹

We first note our disagreement with the Commonwealth's characterization of the issues Cox presents here as a "smorgasbord of incomprehensible claims." To the contrary, while his brief is not a model in clarity, and contains some matter which at best is extraneous, the issues Cox presents are easily ascertained. In fact, the Commonwealth's brief addresses the merits of nearly every issue Cox raises. The Commonwealth also argues that Cox failed to preserve several issues for appeal. However, the substantial issues raised here by Cox, such as failure of the Commonwealth to request forfeiture and failure to be afforded effective counsel, essentially concern alleged errors occurring in the trial court proceeding itself.

We agree with the Commonwealth's assertion that the procedure in this case is governed by Pa.R.Crim.P. 324, which provides in relevant part:

Rule 324. Motion for Return of Property

(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 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.

(b) The judge 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.

It is not disputed that Cox is the sole lawful owner of the automobile in question. Therefore, the question becomes whether the trial court properly granted a forfeiture under section (b) of the Rule quoted above. See Commonwealth v. Pomerantz, 393 Pa.Superior Ct. 186, 573 A.2d 1149 (1989). ²

In defining "contraband," a distinction has been made between "contraband per se," property which is inherently illegal, and There is no doubt that the car in question was used in the robbery for which Cox was convicted and, therefore, was used to perpetrate an unlawful act. However, as Cox argues, such property has traditionally only been forfeitable pursuant to statutory provision. See, e.g., 42 Pa.C.S. § 6801, enacted by Act of June 30, 1988, P.L. 464, No. 79, which Act repealed and replaced Section 28 of the Controlled Substance, Drug, Device and Cosmetic Act (Drug Act), ³ 35 P.S. § 780-128; see also Section 601 of the Liquor Code, ⁴ 47 P.S. § 6-601. In this case, unlike other cases involving Rule 324 which this Court has reviewed and unlike almost all Pennsylvania cases involving forfeiture, there is no statutory authority for the forfeiture. The Commonwealth instead cites Commonwealth v. Crosby, 390 Pa.Superior Ct. 140, 568 A.2d 233 (1990) ⁵ in support of its proposition that the car was forfeitable under common law forfeiture. Indeed, the trial court relied on the Crosby decision in its opinion following its oral order. Commonwealth v. Cox (MR No. 91-916416, filed June 16, 1993). Cox maintains, as counsel representing him at the hearing argued, that there is no such doctrine of common law forfeiture.

"derivative contraband," property which is itself legal but which is proven by the state to be the fruit of a criminal enterprise or used to perpetrate an unlawful act. Commonwealth v. Anthony, 418 Pa.Superior Ct. 82, 613 A.2d 581 (1992). The automobile in this case presumably falls into the latter category. In fact, most successful repossession actions will necessarily involve so-called derivative contraband, as it would obviously frustrate the law if a person could repossess illegal property. Id.

While we are dubious of the position taken by the Commonwealth, as well as the trial court's conclusion, we need not decide whether Crosby supports the Commonwealth's position or whether common law forfeiture exists as a legally cognizable action in Pennsylvania. We do not reach these questions because we conclude that the Commonwealth was required to attempt to obtain a forfeiture in this case and, at best, its attempt was insufficient.

The Commonwealth never sought a forfeiture of the car. ⁶ Instead, it argued the doctrine of common law forfeiture at the hearings before the trial judge. ⁷ However, there is no petition for forfeiture in the record or an oral motion for forfeiture in the transcript. The trial court in essence granted a forfeiture motion which did not exist. At the very least, then, as in the well reasoned Pomerantz decision, we would be compelled to vacate that portion of the order purporting to grant a forfeiture of Cox's property.

The Commonwealth nevertheless argues that a formal petition is only required under the former Drug Act provision and not under Pa.R.Crim.P. 324. It suggests that there is no case law supporting a contention to the contrary. However, the Pomerantz decision, which specifically interpreted a return of property action under Pa.R.Crim.P. 324, does not make the distinction advanced by the Commonwealth. We acknowledge that the Superior Court in that case discussed forfeiture under the then-existing Drug Act provision.

However, the portion of the opinion vacating the forfeiture is not dependent upon the Drug Act. The Superior Court, in construing this very same rule of criminal procedure, specifically concluded that "the Commonwealth may not benefit from an order granting forfeiture where no petition for forfeiture has been presented to the court." Pomerantz, 393 Pa.Superior Ct. at 193, 573 A.2d at 1152. ⁸

Moreover, we think the facts in the case before us are even more compelling than those in Pomerantz. For instance, the case before us does not involve a statutorily-authorized forfeiture, failure to prove ownership, contraband per se or the fruits of a criminal enterprise.

The trial judge in this case stated that Cox's delay in requesting a return of his property was relevant and might give the Commonwealth an equitable defense of laches. (N.T., October 14, 1992, p. 22). However, we think the delay in this case in fact operates in favor of Cox. Far from requesting a forfeiture, the Commonwealth in a signed document stated that it was finished with the car and authorized the release of the car. ⁹ It did not release the car, however, and, when Cox finally requested its return, the Commonwealth still did not formally request a forfeiture.

The Commonwealth stated at the hearings that it does not know the exact whereabouts of the car. (N.T., October 14, 1992, p. 7). The trial judge stated that "the conviction was in '89.... I don't even know if that car is still around." (N.T., October 14, 1992, p. 8). Without any forfeiture proceeding to speak of, these factors should not be weighed against Cox. Instead, we think these factors weigh against the Commonwealth.

We also emphasize that, despite a certain current popularity, forfeitures are not favored in the law and statutes authorizing forfeiture are to be strictly construed. Commonwealth v. 502-504 Gordon Street, 147 Pa.Commonwealth Ct. 330, 335, 607 A.2d 839, 842 (1992), petition for allowance of appeal granted, 533 Pa. 663, 625 A.2d 1195 (1993). Even assuming,...