Commonwealth v. 1997 Chevrolet
| Decision Date | 17 December 2014 |
| Docket Number | Nos. 1990 C.D. 2012,s. 1990 C.D. 2012 |
| Court | Pennsylvania Commonwealth Court |
| Parties | COMMONWEALTH of Pennsylvania v. 1997 CHEVROLET and Contents Seized From James Young. Appeal of: Elizabeth Young. Commonwealth of Pennsylvania v. The Real Property and Improvements known as 416 S. 62nd Street, Philadelphia, PA 19143. Appeal of: Elizabeth Young. |
Jessica M. Anthony, Philadelphia, for appellant.
Jonathan M. Levy, Assistant District Attorney, Philadelphia, for appellee.
BEFORE: DAN PELLEGRINI, President Judge, and BONNIE BRIGANCE LEADBETTER, Judge, and RENÉE COHN JUBELIRER, Judge, and ROBERT SIMPSON, Judge, and MARY HANNAH LEAVITT, Judge, and P. KEVIN BROBSON, Judge, and PATRICIA A. McCULLOUGH, Judge.
Elizabeth Young appeals an order of the Court of Common Pleas of Philadelphia County (trial court) that granted the Commonwealth of Pennsylvania's petition for the forfeiture of her home and her 1997 Chevrolet minivan. The trial court held that the forfeited property had facilitated the illegal sale of marijuana by Young's son, who lived with her, and it rejected Young's defense that she neither knew of nor consented to her son's conduct. The trial court also rejected Young's claim that the forfeiture of her home imposed an excessive fine for a criminal offense that consisted of her son's four sales of marijuana, with a total value of approximately $90,1 and in which she had no involvement.
For the reasons set forth below, we reverse and remand.
During the period of time relevant to this appeal, Donald Graham lived with his mother, Elizabeth Young, at her home at 416 South 62nd Street in Philadelphia. Police suspected Graham of selling marijuana. Accordingly, in November 2009, the police set up three controlled buys by having a confidential informant call Graham at his mother's home, after which Graham proceeded to a meeting point where the marijuana transactions took place. On November 19, 2009, police executed a search warrant at Young's home. They told her that her son was selling drugs and that they were there to arrest him. They did not do so. Instead, they set up another controlled buy, but this time the confidential informant called in person upon Graham at Young's house. Three more controlled buys were set up, and on January 7, 2010, police arrested Graham at Young's home.2
One month later, the Commonwealth filed a petition for the forfeiture of Young's home and her vehicle under Sections 6801–6802 of the Judicial Code, commonly known as the Controlled Substances Forfeiture Act (Forfeiture Act), 42 Pa.C.S. §§ 6801 –6802. In 2011, the Commonwealth amended its forfeiture petition to add the claim that another person, Baron Adams, had used Young's house for illegal purposes. On May 1, 2012, the trial court conducted a hearing on the Commonwealth's amended forfeiture petition. The Commonwealth and Young each presented evidence.
The Commonwealth presented the testimony of Officer Robert Billips of the Philadelphia Police Department's Narcotics Field Unit, which “target[s] street level narcotics and houses that sell from—individuals that sell from locations.” Notes of Testimony, May 1, 2012, at 30 (N.T. ––––). Billips testified about the three “controlled buys” that police set up in November of 2009. N.T. 5. In a controlled buy, police send an undercover officer or informant to purchase a controlled substance from a suspect.3 The controlled buy employs a standard procedure: police search the informant to insure he has no drugs before meeting the suspect; give the informant marked bills; and send him to meet the suspect at a spot where police have set up their surveillance.
The first controlled buy took place on November 10, 2009. Billips and his partner searched the informant for drugs; gave him $40 in prerecorded buy money; dialed Graham's cell phone number and handed the phone to the informant. After the call, Billips saw Graham leave Young's home and walk to the corner of 62nd and Pine Streets to meet the informant. Billips watched Graham take the buy money and hand the informant a “small item” that had been “[s]omewhere on his person.” N.T. 4, 12. Thereafter, the informant gave Billips a baggie with four grams of marijuana. The second controlled buy took place on November 14, 2009, and it was identical to the first except that this time Graham drove to the corner of 62nd and Pine Streets in his mother's minivan.4 The third controlled buy took place on November 16, 2009, and it was identical to the second controlled buy, except that this time Graham walked to the designated meeting point and the informant was given $20 in marked bills. Billips did not specify the amount of marijuana recovered from the informant in the second or third controlled buys. The time of day for these controlled buys was not specified but ranged between noon and 1:00 p.m. and between 6:00 p.m. and 8:00 p.m.
On cross-examination, Billips acknowledged that he could not see what Graham handed the informant in any of the controlled buys. He also acknowledged that the “small item” handed over by Graham could be “held comfortably in a pants pocket.” N.T. 12.
Three days later, on November 19, 2009, Billips helped execute a search warrant at Young's home. Billips testified that the police confiscated several items found in the dining room: a letter addressed to Graham; a scale; baggies and clear packets. Two of the baggies or packets contained marijuana. Billips did not identify the amount of marijuana or indicate whether the packets were lying in plain view, placed in a drawer or secreted in some fashion. Graham was not at the house during the search but Young was present. Billips testified that he told Young that the police were there to arrest her son for selling drugs. Specifically, he testified:
We explained that her son had been selling drugs out of the house and using a vehicle on several different days. We left her a copy of the search warrant and a copy of the probable cause.
N.T. 8–9. According to Billips, Young “was in disbelief” when police informed her that her son was selling drugs. N.T. 14–15.
The police did not arrest Graham that day, in spite of their declared intention to do so. Instead, they decided to do “an investigation into the property situated on 416 S. 62nd St.” Trial Court Op. at 3. To that end, the Narcotics Field Unit set up more controlled buys, this time under the direction of Officer Nathan London. The first took place on December 4, 2009, at 4:22 p.m., two weeks after the search of Young's home. London acted strictly as the observer. Other officers handled the informant, and London stayed in radio contact with them during the controlled buys.
London testified that at the December 4, 2009, controlled buy, the informant, given $20 in prerecorded cash, knocked on the door of Young's home. When Graham answered, London saw the informant hand Graham cash. Graham went back inside the house, and reappeared two minutes later to hand the informant “small objects.” N.T. 17. The informant gave his handler a baggie containing marijuana, but London did not specify the amount.
In January, police set up three more controlled buys. The first took place on January 5, 2010, at 4:10 p.m. London testified that the informant, given $20 in marked bills, appeared at Young's house, and Graham left by the side door. He and the informant then walked to Young's minivan, which was parked nearby, and got inside. London did not testify that he could see or hear what happened in the vehicle. The handler radioed London when the buy was completed; the informant's baggie tested positive for marijuana, but London did not specify the amount.
The following day, at 6:45 p.m., police set up another controlled buy, identical to the others, although London did not know the amount of marked bills given to the informant. London saw the informant knock on the door of Young's house and enter the house. Graham walked to the minivan, which was parked on the street, and returned to the house. The informant left and gave his handler a baggie with a “weed and seed substance, alleged marijuana,” and $15 in change. N.T. 20. London did not specify the amount of “alleged marijuana.”
On January 7, 2010, at 4:40 p.m., the police set up the final controlled buy, which ended with Graham's arrest. The informant, given $60 in prerecorded marked bills, appeared at the house. London testified that Graham exited the house and handed the informant small objects in exchange for the cash. Thereafter, the informant turned over two baggies of an unspecified amount of marijuana and $10 in change to his handler. Minutes later, Graham was arrested on the steps of Young's house.
Two of the three officers in radio communication with London also testified. They confirmed that they had followed the standard procedure for a controlled buy and explained that they did not witness the actual transactions.5
When the police arrested Graham, they found several items on his person: a baggie containing approximately 4.6 grams of marijuana, a cell phone, keys to Young's house and minivan, and $176 in U.S. currency, which included the $60 in prerecorded bills given that day to the informant. Police then searched the house and vehicle. They recovered 1.3 grams of marijuana “in loose form,” i.e., “not packaged for delivery,” from the living room; London estimated that the loose marijuana had a street value of $20 to $25. N.T. 27, 35. Over the objection of Young's counsel that the Commonwealth had not notified Young in advance of the trial that London would be offered as an expert, London opined that the loose marijuana was not for Graham's personal use but for his dealing. In the vehicle, police found a baggie containing 8.5 grams of marijuana, but London did not specify whether the marijuana was hidden or in plain view.
On cross-examination, London confirmed that in each of the drug transactions he witnessed, the package given to the...
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