Com. v. Real Property and Improvements

• Decision Date: 24 September 2003
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. The REAL PROPERTY AND IMPROVEMENTS COMMONLY KNOWN AS 5444 SPRUCE STREET, PHILADELPHIA, PA and Elizabeth A. Lewis, Appellants.
• Court: Pennsylvania Supreme Court

832 A.2d 396

574 Pa. 423

COMMONWEALTH of Pennsylvania, Appellee v. The REAL PROPERTY AND IMPROVEMENTS COMMONLY KNOWN AS 5444 SPRUCE STREET, PHILADELPHIA, PA and Elizabeth A. Lewis, Appellants.

Supreme Court of Pennsylvania.

Argued April 9, 2003.

Decided September 24, 2003.

James Andrew Keller, Nicholas J. Nastasi, Philadelphia, for Elizabeth A. Lewis, Appellant.

Hugh J. Burns, Jonathan M. Levy, Matthew Kent Perks, Philadelphia, for the Com. of PA, Appellee.

Before: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and LAMB, JJ.

OPINION

JUSTICE LAMB.

In this appeal we are asked to consider the forfeiture of a house in Philadelphia in light of the United States Supreme Court's holding in United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998). For the reasons outlined below, we reverse the order of the Commonwealth Court and remand the case to the trial court to establish the value of the house forfeited.

On February 20, 1995, police made an undercover buy of crack cocaine and marijuana at 5444 Spruce Street, Philadelphia, which was owned by Elizabeth Lewis, who had lived in the house since 1962. The next day, police executed a search warrant at the first floor apartment at 5444 Spruce Street and found five packets of crack cocaine in a purse in the living room and 11 packets of marijuana and $20 cash in a cup in the kitchen.

On March 8, 1995, the court of common pleas granted a Commonwealth petition to forfeit 5444 Spruce Street under the Controlled Substances Forfeitures Act (Forfeiture Act), 42 Pa.C.S. § 6801.¹ On October 3, 1995, Elizabeth Lewis pled guilty to a single charge of possession with intent to deliver² and was sentenced to two years' probation.

The value of the drugs involved in Lewis's guilty plea was less than $80. None of the usual trappings of drug dealing— scales, paper, cutting agents, sales records—were found during the search of Lewis's home.

A forfeiture trial was held September 25 and 26, 1996, with evidence from: the police officers who conducted the search of 5444 Spruce; Tarik Chapman,³ who testified that as a juvenile he and others purchased drugs at 5444 Spruce Street; a juvenile case worker who testified that no deal had been made with Chapman in return for his testimony; and, Lewis, who testified that she pled guilty solely to protect her daughter who was the actual drug dealer. The trial court granted the Commonwealth's petition to forfeit.

Lewis appealed the forfeiture to the Commonwealth Court which remanded the case on February 29, 2000, because the trial court had failed to apply the clear and convincing burden of proof, which is required when a forfeiture is challenged as an excessive fine, citing In re King Properties, 535 Pa. 321, 635 A.2d 128, 133 (1993) ("[I]t shall be the Commonwealth's burden to establish by clear and convincing evidence that the criminal conduct in question is not a onetime occurrence."). On remand, the trial court affirmed the forfeiture, finding the evidence was clear and convincing that there was a pattern of drug dealing at 5444 Spruce Street. Lewis again appealed.

The Commonwealth Court again affirmed on December 20, 2001, this time relying on Bajakajian, which the United States Supreme Court had decided in 1998, after the hearing in this case was conducted. This Court granted allocatur to consider whether the forfeiture of 5444 Spruce Street violates the Excessive Fines Clause as construed by Bajakajian.

An appellate court's scope of review in an appeal from a forfeiture proceeding is limited to examining whether findings of fact made by the trial court are supported by substantial evidence, and whether the trial court abused its discretion or committed an error of law. Commonwealth v. 648 West Mayfield Street, 819 A.2d 1226, 1227 (Pa.Cmwlth.2003). Because the instant appeal hinges upon a question of law, the standard of review is plenary. Commonwealth v. Haag, 570 Pa. 289, 809 A.2d 271, 278 (2002).

Lewis challenges the forfeiture of 5444 Spruce Street as violative of both the U.S. and Pennsylvania Constitutions. The Eighth Amendment to the U.S. Constitution provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. The Eighth Amendment is made applicable to the states through the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 664, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). This Court has held that Article I, Section 13⁴ of the Pennsylvania Constitution is coextensive with the Eighth Amendment. Jackson v. Hendrick, 509 Pa. 456, 503 A.2d 400, 404 (1986) (considering whether prisoner double celling implicates the Eighth Amendment) (citing Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982),cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983) (rights secured by the Pennsylvania prohibition against cruel punishments are co-extensive with those secured by the Eighth and Fourteenth Amendments)); see also Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190, 209 (1997) (Eighth Amendment forbids only those sentences which are grossly disproportionate). In King Properties this Court reasoned that the "excessive fines" provision of Article I, Section 13 of the Pennsylvania Constitution is governed by the federal treatment of the Eighth Amendment. King Properties, 635 A.2d at 131 (relying on Austin v. United States, 509 U.S. 602, 609-10, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993)).

To determine whether the Excessive Fines Clause has been violated, a court must consider whether the statutory provision imposes punishment; and if so, whether the fine is excessive. "The first question determines whether the Eighth Amendment applies; the second determines whether the Eighth Amendment is violated." Wright v. Riveland, 219 F.3d 905, 915 (9th Cir.2000).

It is settled law in Pennsylvania that a forfeiture effected pursuant to the Forfeiture Act is a fine and thus subject to review under the Excessive Fines Clause. King Properties, 635 A.2d at 131 (holding that the application of the Forfeiture Act was at least in part punitive). See also Commonwealth v. All That Certain Parcel and Lot of Land Located at 4029 Beale Ave., Altoona, Blair County, 545 Pa. 172, 680 A.2d 1128, 1130 (1996).

In King Properties, this Court, interpreting Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), held that "in determining whether a forfeiture is an excessive fine ... the inquiry does not concern the value of the thing forfeited, but the relationship of the offense to the property which is forfeited." King Properties, 635 A.2d at 133. This Court went on to hold that "[i]f the forfeited property was significantly used in the commission of the offense, the item may be forfeited regardless of its value." Id.

After King Properties, this Court did not consider the value of the property seized to the offense committed under the reasoning which this court quoted in King Properties that:

Scales used to measure out unlawful drug sales, for example, are confiscable whether made of the purest gold or the basest metal. But an in rem forfeiture goes beyond the traditional limits that the Eight Amendment permits if it applies to property that cannot properly be regarded as an instrumentality of the offense....

King Properties at 132 n. 10 (citing Austin, 509 U.S. at 627, 113 S.Ct. 2801 (Scalia, J., concurring)). Since King Properties, this Court has upheld the forfeiture of property significantly related to the criminal offense. In Commonwealth v. 5043 Anderson Road, Buckingham Tp., Bucks County, 556 Pa. 335, 728 A.2d 907, 908 (1999), this Court limited the forfeiture to the property directly related to the criminal activity and excluded 22 acres deemed unrelated. In Commonwealth v. Wingait Farms, 547 Pa. 332, 690 A.2d 222 (1997), this Court relied on King Properties to hold that a "constitutionally `excessive' forfeiture, therefore, would be one in which the property was not significantly utilized in the commission of the drug-related offense." Wingait Farms, 690 A.2d at 227. See also Commonwealth v. Schill, 164 Pa.Cmwlth. 594, 643 A.2d 1143, 1144 (1994) (upholding the forfeiture of a house in Radnor Township for the sale of .25 grams of cocaine to an undercover police officer in the house in question); Commonwealth v. $23,320.00 U.S. Currency, 733 A.2d 693, 699 (Pa. Cmwlth.1999) (upholding forfeiture under Bajakajian because the currency either represented the proceeds of a drug violation or was intended to be used as such).

When, however, the property forfeited was not significantly related to the criminal activity, this Court has reversed the forfeiture. In 4029 Beale Ave., this Court held that the Commonwealth did not establish a significant relationship between the drug transactions and the property forfeited. 4029 Beale Ave., 680 A.2d at 1130; see also Commonwealth v. One (1) 1993 Pontiac Trans AM, 809 A.2d 444, 445 (Pa.Cmwlth.2002) (forfeiture unreasonable when the drug involved was marijuana with a total weight of 6.68 grams; forfeiture of the vehicle was grossly disproportionate to the gravity of the offense)⁵; Commonwealth v. $26,556.00 Seized From Polidoro, 672 A.2d 389, 393 (Pa.Cmwlth.1996)(Commonwealth failed to prove nexus between weapons and cash and illegal drug activities).

This Court is here confronted with an issue that was not squarely before the U.S. Supreme Court in Bajakajian, which was an in personam forfeiture, namely, whether the gross disproportionality test adopted therein applies to punitive civil in rem forfeitures, where the government has established a significant relationship between the property sought to be forfeited and the underlying criminal offense.⁶ This question is of particular significance given this Court's holding in King Properties.

Bajakajian informs our analysis of whether a fine is excessive. In Bajakajian, the defendant attempted to leave the...