Commonwealth v. One 1988 Ford Coupe VIN No. 1FABP41A9JF143651

• Decision Date: 26 April 1990
• Citation: 393 Pa.Super. 320,574 A.2d 631
• Parties: COMMONWEALTH of Pennsylvania v. ONE 1988 FORD COUPE VIN # 1FABP41A9JF143651 Real Estate with Dwelling House Located at 149 North Bedford Street, Carlisle, Pennsylvania. Appeal of Jorge ECHEVARRIA.
• Court: Pennsylvania Superior Court

574 A.2d 631

393 Pa.Super. 320

COMMONWEALTH of Pennsylvania v. ONE 1988 FORD COUPE VIN # 1FABP41A9JF143651 Real Estate with

Dwelling House Located at 149 North Bedford Street, Carlisle, Pennsylvania. Appeal of Jorge ECHEVARRIA.

Superior Court of Pennsylvania.

April 26, 1990

Argued Sept. 28, 1989. [Copyrighted Material Omitted]

Arthur T. McDermott, Carlisle, for appellant.

Syndi L. Norris, Asst. Dist. Atty., Carlisle, for Com.

Before CIRILLO, President Judge, and BECK and JOHNSON, JJ.

CIRILLO President Judge:

This is an appeal from an order of forfeiture ^[1] entered in the Court of Common Pleas of Cumberland County. Appellant Jorge Echevarria was arrested and charged with unlawful possession with intent to deliver a Schedule II controlled substance, 35 P.S. § 780-113(a)(30), and unlawful possession of drug paraphernalia, 35 P.S. § 780-113(a)(32). On October 14, 1988, prior to Echevarria's criminal trial, the Commonwealth filed two forfeiture petitions seeking forfeiture of three automobiles and certain real estate allegedly belonging to Echevarria. On December 29, 1988, following a hearing on the forfeiture petitions, the Honorable George E. Hoffer determined that the property in question had been used to facilitate drug trafficking, and ordered that one of Echevarria's vehicles and his residence be forfeited to the Commonwealth. ^[2] This appeal was taken from that order. ^[3] On appeal Echevarria raises the following five issues (1) whether his due process rights were violated by the Commonwealth's failure to allege material facts in its forfeiture petition under 42 Pa.C.S. § 6802(a)(5);

(2) whether the trial court's order pursuant to 42 Pa.C.S. § 6802 was illegal because it was based on information obtained through a search warrant which violated the Pennsylvania and United States Constitutions;

(3) whether the criminologist who testified at his trial was not an expert witness in the identification of controlled substances;

(4) whether the Commonwealth failed to meet its burden of proof in demonstrating that his automobile and real estate were unlawfully used or possessed; and

(5) whether the Commonwealth's presentation of evidence regarding his cooperation with the police was prosecutorial misconduct.

We will first address issues one and four, concerning forfeiture. Echevarria contends that his due process rights were violated by the Commonwealth's failure to allege material facts in its forfeiture petition as required by the Controlled Substances Forfeiture Law, 42 Pa.C.S. § 6802 ("the Forfeiture Law"). ^[4] Section 6802(a)(5) of the Forfeiture Law provides that the Commonwealth's petition requesting forfeiture of seized property contain "an allegation that the property is subject to forfeiture pursuant to section 6801(a) and an averment of material facts upon which the forfeiture action is based." 42 Pa.C.S. § 6802(a)(5) (emphasis added). ^[5]

Echevarria argues in his brief that the Commonwealth's petition fails to aver any material fact in support of the petition so as to "provide reasonable belief that the property in question was subject to forfeiture, in particular, that the Commonwealth had probable cause to believe that [a] substantial connection existed between property to be forfeited and the violation of the Controlled Substance law." Echevarria contends that the Commonwealth's assertion that he was arrested and was in possession of the property in question at that time does not satisfy the requirements of section 6802.

Section 6802(a) of the Forfeiture Law provides that every petition shall contain: (1) a description of the property seized; (2) a statement of the time and place where seized; (3) the owner, if known; (4) the person or persons in possession, if known; (5) an allegation that the property is subject to forfeiture pursuant to section 6801(a) (relating to loss of property rights to Commonwealth) and an averment of material facts upon which the forfeiture action is based; and (6) a prayer for an order of forfeiture that the property be adjudged forfeited to the Commonwealth, condemned, and be ordered sold according to law, unless cause be shown to the contrary. 42 Pa.C.S. § 6802(a). Here, we are concerned with subsection (a)(5), which sets forth the requirement that the petition contain an averment of material facts upon which the forfeiture action is based.

We point out that the issue of the Commonwealth's compliance with subsection (a)(5) differs substantially from the Commonwealth's compliance with its burden of proof at the hearing on the forfeiture petition. Compare 42 Pa.C.S. § 6801(a) with 42 Pa.C.S. § 6801(j). Though fundamental, it appears that this distinction has been the source of some confusion in the appellant's brief. Echevarria argues in his brief that the Commonwealth failed to prove a substantial connection between the property and the criminal activity "by its failure to present any material facts in its petition for forfeiture."

Echevarria's argument is based on an incorrect premise, and is therefore misleading. The Commonwealth need only aver material facts in its petition; proof of the nexus between the property and the crime is required at the time of the hearing. At that hearing, the Commonwealth must prove by a preponderance of the evidence that the property in question was used to facilitate a drug transaction. See 42 Pa.C.S. §§ 6801(a)(4); 6801(a)(6)(i)(C); see also Commonwealth v. Tate, 371 Pa.Super. 611, 614, 538 A.2d 903, 905 (1988); Commonwealth v. One 1971 Ford LTD, 245 Pa.Super. 303, 369 A.2d 414 (1976).

In its petition, the Commonwealth avers the following:

1. On September 22, 1989, Tri-County Narcotics Task Force arrested Jorge Echevarria for various violations of the Pennsylvania Crimes Code and the Controlled Substance, Drug, Device and Cosmetic Act, 35 [P.S.] Section 780-101 et seq. [hereinafter the "Controlled Substance Act"]. At the time of arrest, which coincided with the above activities, the defendant was in possession of the above-captioned vehicles [and real] property.

2. Seizure was made at approximately 6:00 A.M. on September 22, 1988 at the time of the arrest.

3. The owner of the property, to the best knowledge of the Petitioner, is Jorge Echevarria.

4. The above-captioned property is subject to forfeiture pursuant to 42 Pa.C.S. §§ 6801, 6802.

(emphasis added). The question of whether the Commonwealth has averred any material facts upon which the forfeiture is based in paragraph 1 as required by section § 6802(a)(5), is arguably of merit. Cf. United States v. 124 East North Ave., 651 F.Supp. 1350 (N.D.Ill.1987) (government alleges sufficient nexus between drug activity and house to provide basis for forfeiture where complaint stated house was to be used for delivery of cocaine and phone in house was regularly used to negotiate cocaine sales, because such facts constitute probable cause that property was used or intended to be used to facilitate violation of federal narcotic laws). However, Echevarria's challenge to the petition is belated. In his answer to the petition and rule, Echevarria did not raise any defect on the face of the Commonwealth's petition, nor did he file a motion to dismiss the petition. See Commonwealth v. One 1974 Chevrolet Box-Type Truck, 126 Pa.Commw. 173, 559 A.2d 76 (1989) (forfeiture petitions contained requisite elements as required by the forfeiture law, and thus hearing should have been held at which time the Commonwealth, as well as the owner of the property, would have been afforded the opportunity to present evidence before the trial court disposed of forfeiture petitions). Thus, we will not address the merits of this claim.

We now proceed to Echevarria's fourth issue. Echevarria claims that the Commonwealth's evidence at the hearing on the forfeiture petition was insufficient to prove by a preponderance of the evidence that the automobile and real property in question were used to facilitate a violation of the Controlled Substance Act. Echevarria argues that the Commonwealth's evidence failed to prove a connection between the property and the alleged criminal act, and that therefore his due process rights were violated.

The roots of forfeiture law can be traced to the Bible: "When an ox gores a man or a woman to death, the ox shall be stoned, and its flesh may not be eaten...." Exodus 21:28. At common law, the basis for forfeiture was the concept that breach of the criminal law was a breach of the King's peace. The breach of the King's peace was viewed as justification for denying the right to ownership of certain property. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 682, 94 S.Ct. 2080, 2091, 40 L.Ed.2d 452 (1974), citing 1 W. Blackstone Commentaries 299. In Calero, the Supreme Court set forth the history of forfeiture as follows:

At common law the value of an inanimate object directly or indirectly causing the accidental death of a King's subject was forfeited to the crown as a deodand [from the Latin Deo dandum, meaning "to be given to God"]. The origins of the deodand are traceable to Biblical and pre-Judeo-Christian practices, which reflected the view that the instrument of death was accused and that religious expiation was required. See O. Holmes, The Common Law, c 1 (1881). The value of the instrument was forfeited to the King, in the belief that the King would provide the money for Masses to be said for the good of the dead man's soul, or insure that the deodand was put to charitable uses. 1 W. Blackstone, Commentaries 300.

Id. at 680-81, 94 S.Ct. at 2090-91 (footnotes omitted); see also Commonwealth v. Landy, 240 Pa.Super. 458, 362 A.2d 999 (1976); Finkelstein, The Goring Ox: Some Historical Perspectives on Deodands, Forfeitures, Wrongful Death and the Western Notion...