Com. v. One 2001 Toyota Camry

• Decision Date: 08 March 2006
• Citation: 894 A.2d 207
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. ONE 2001 TOYOTA CAMRY (Joel Sandler).
• Court: Pennsylvania Commonwealth Court

894 A.2d 207

COMMONWEALTH of Pennsylvania, Appellant v. ONE 2001 TOYOTA CAMRY (Joel Sandler).

Commonwealth Court of Pennsylvania.

Submitted on Briefs December 14, 2005.

Decided March 8, 2006.

James W. Staerk, Norristown, for appellant.

Joel Sandler, appellee, pro se.

BEFORE: COLINS, President Judge, and McGINLEY, Judge, SMITH-RIBNER, Judge, PELLEGRINI, Judge, FRIEDMAN, Judge, LEADBETTER, Judge, and SIMPSON, Judge.

OPINION BY Judge SMITH-RIBNER.

The Commonwealth of Pennsylvania appeals from the order of the Court of Common Pleas of Montgomery County that denied the Commonwealth's petition to forfeit a 2001 Toyota Camry (Vehicle) owned by Joel Sandler (Sandler). The Commonwealth contends that the trial court erred in concluding that the Vehicle is not derivative contraband subject to forfeiture, as it was used to commit the crime of solicitation of murder, and that the trial court abused its discretion in concluding that forfeiture would be unreasonable due to the tenuous nexus between the Vehicle and Sandler's criminal activity.

On January 16, 2003, Sandler was convicted of criminal solicitation to commit murder and criminal use of communication facility, see Sections 902 and 7512 of the Crimes Code, 18 Pa. C.S. §§ 902 and 7512, respectively, after his attempt to hire a hit man to kill his wife. He was sentenced to an aggregate term of eight and one-half to twenty-five years. On April 29, 2003, the Commonwealth filed a petition to forfeit Sandler's Vehicle seized on April 26, 2001 following his arrest; the Commonwealth alleged that the Vehicle was used in the perpetration of criminal solicitation to commit murder and therefore was derivative contraband subject to forfeiture under Pa. R.Crim. P. 588 (Rule 588) and under common law. In his answer and new matter, Sandler requested the trial court to postpone acting on the petition pending his appeal from the underlying convictions, which were ultimately affirmed. Sandler thereafter filed a pro se amended answer alleging that the Commonwealth was not authorized to seize the Vehicle along with his other personal items and that the Vehicle was not derivative contraband. The trial court denied the petition on January 24, 2005 after a hearing at which the court heard from Detective Eric Echevarri (Echevarri) and from Sandler. The trial court later vacated its findings of fact and conclusions of law but reissued its findings and conclusions on March 17, 2005 as addendum two to its original decision.

The trial court made the following relevant findings and conclusions. In early 2001 Sandler desired to have his wife killed. In March 2001 Echevarria, posing as a contract killer for hire, called Sandler at his home to arrange a meeting. On March 28 Sandler drove the Vehicle to meet Echevarria at a restaurant, but negotiations took place in the Vehicle at Echevarria's suggestion. In April 2001 the detective made many calls to Sandler's residence, and on April 26 they met again at the restaurant. Sandler expressed his suspicion that Echevarria might be a police officer and stated "Let's hold off." It appearing that further contact would be unproductive, the detective arrested Sandler and charged him with solicitation to commit murder and six counts of criminal use of a communication facility.

The trial court additionally found that the Vehicle was not a necessary component of Sandler's criminality, that he could have committed the crimes without using a vehicle, that the Vehicle was only marginally involved in his overall criminal activity, that it was not admitted into evidence at the criminal trial, that its use did not cause actual harm or injury to any person or property and that a forfeiture would be unreasonable. The trial court concluded that no statutory authority existed for forfeiture of the Vehicle, that common law forfeiture is not favored in the law, that the Commonwealth failed to establish a sufficient nexus between the Vehicle and Sandler's underlying crimes so as to render the Vehicle derivative contraband and that even if it were considered derivative contraband forfeiture would be not be reasonable. The trial court entered its order denying the petition and directing that the Vehicle be returned to Sandler.¹

Forfeiture proceedings are deemed civil in form but quasi-criminal in character. Commonwealth v. 502-504 Gordon Street, 147 Pa.Cmwlth. 330, 607 A.2d 839 (1992), aff'd, 535 Pa. 515, 636 A.2d 626 (1994). In a forfeiture action, the Commonwealth has the burden of establishing by a preponderance of the evidence that a nexus exists between the subject unlawful activity and the property sought to be forfeited. Commonwealth v. One (1) 1993 Pontiac Trans AM, 809 A.2d 444 (Pa.Cmwlth.2002). In Pennsylvania forfeiture is basically statutory in nature. 502-504 Gordon Street. Acknowledging that no statutory authority exists to forfeit Sandler's Vehicle, the Commonwealth argues instead that the Vehicle is derivative contraband subject to forfeiture under common law.²

Two distinct types of contraband exist: contraband per se and derivative contraband. Commonwealth v. Fassnacht, 246 Pa.Super. 42, 369 A.2d 800 (1977). Contraband per se is property that is inherently illegal and subjects its possessor to criminal sanction, and derivative contraband is property that itself is legal but nonetheless constitutes the fruit of a criminal enterprise or is used to perpetrate an unlawful act. Commonwealth v. Anthony, 418 Pa.Super. 82, 613 A.2d 581 (1992). In Pennsylvania, courts did not recognize common law forfeiture of derivative contraband until the 1980s. See Petition of Maglisco, 341 Pa.Super. 525, 491 A.2d 1381 (1985); Commonwealth v. Coghe, 294 Pa.Super. 207, 439 A.2d 823 (1982).

In Commonwealth v. Crosby, 390 Pa.Super. 140, 568 A.2d 233 (1990), the Superior Court questioned the validity of case precedent recognizing common law forfeiture of derivative contraband but was compelled to follow it, and the court remanded the matter before it to the trial court for further hearing to determine whether the truck that the appellant was driving while under the influence of alcohol should be considered derivative contraband and thus forfeitable under the common law.³ In Commonwealth v. Cox, 161 Pa.Cmwlth. 589, 637 A.2d 757 (1994), the appellant filed a motion for return of the getaway car used during the commission of a robbery. In reversing the trial court's denial of the motion because the Commonwealth never sought to forfeit the car, this Court stated that it was "dubious" whether common law forfeiture exists in Pennsylvania and that even if it did "the extreme caution with which the law regards statutory forfeiture would apply equally, if not more so, to such actions." Id. at 759, 760. Later, in Commonwealth v. One 1990 Dodge Ram Van, 751 A.2d 1235 (Pa.Cmwlth.2000), the Commonwealth sought the forfeiture of a van owned by the appellant, who was convicted of kidnapping and murder after stabbing the victim in the van and who used it to discard the victim's body. Acknowledging the doubts expressed in Cox about common law forfeiture in Pennsylvania, this Court nonetheless relied on Crosby to hold that the van was derivative contraband subject to common law forfeiture because a specific nexus had been shown to exist between the van and the criminal activity.

Under the cases reviewed, however, property may not be considered derivative contraband "merely because it is owned or used by someone who has been engaged in criminal conduct." In re Petition of Koenig, 444 Pa.Super. 163, 663 A.2d 725, 726 (1995). To forfeit property as derivative contraband under the common law, the Commonwealth must establish a specific connection or nexus between the property and the criminal activity. One 1990 Dodge Ram Van; Koenig. This requirement "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." Commonwealth v. One 1985 Dark Blue Mercedes Benz Car, 391 Pa.Super. 507, 571 A.2d 482, 485 (1990). See also Koenig (holding that guns, ammunition and hunting knife found in a house were not forfeitable as they were not in the kitchen where petitioner threatened his family); Maglisco (holding that only the pistol actually fired by wife at her husband was forfeitable and not rifles merely in her possession).

The Commonwealth argues that a direct and specific nexus exists between the Vehicle and the crime of soliciting to commit murder because Sandler drove the Vehicle twice to meet the detective and discussed the murder-for-hire scheme with the detective once in the Vehicle. Relying upon Commonwealth v. Howard, 552 Pa. 27, 713 A.2d 89 (1998), in which the Supreme Court noted that Koenig listed a truck that was used to transport illicit goods as an example of derivative contraband, the Commonwealth maintains that "[t]ransportation of the criminal to the situs of the crime is materially no different than transporting illicit goods." Commonwealth's Brief at p. 11. Any reliance upon Howard is misplaced, however, inasmuch as the Supreme Court rejected the Commonwealth's argument that a nexus existed between the guns in the appellant's private collection and his illegal sales of firearms to an undercover officer at flea markets because the guns in the private collection also were up for sale. The Commonwealth contended that the guns in the private collection were derivative contraband since the appellant used them as the owner of any store would use stock on display. The Supreme Court held that the connection was too tenuous where the guns remaining in the private collection were not sold and were disclosed only after his arrest, and it reasoned that the "remaining guns do not become contraband merely because their owner engaged in criminal conduct with respect to other guns." Id.; 552 Pa. at 34, 713 A.2d at 93.

In the case sub judice, Echevarria testified...