Commonwealth v. Property
| Decision Date | 19 March 2013 |
| Docket Number | No. 106 C.D. 2012,106 C.D. 2012 |
| Parties | Commonwealth of Pennsylvania v. The Real Property and Improvements Known as 636 Jackson Street, Philadelphia, PA 19148, Appellant |
| Court | Pennsylvania Commonwealth Court |
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
Marie Fickling, current owner of The Real Property and Improvements Known as 636 Jackson Street, Philadelphia, PA 19148 (Property),1 appeals from the January 10, 2012 Order of the Court of Common Pleas of Philadelphia County (trial court) granting the Commonwealth of Pennsylvania's (Commonwealth) Forfeiture Petition (Petition). On appeal, Fickling argues that the trial court erred in granting the Petition because: (1) the Commonwealth did not prove a nexus between the Property and the criminal activity; (2) Fickling established that she was an innocent owner of the Property; (3) the trial court violated Fickling's due process rights when it failed to grant her Motion for Reconsideration after the trial court held a hearing on thePetition without Fickling or her counsel; and (4) the trial court failed to recognize an alleged settlement agreement between Fickling and the Commonwealth. For the following reasons, we affirm the trial court's Order.
On August 1, 2007, the Commonwealth filed its Petition to forfeit the Property pursuant to legislation commonly known as the Controlled Substances Forfeiture Act (Forfeiture Act), 42 Pa. C.S. §§ 6801-6802. After many continuances and procedural issues, the trial court held a hearing on the Petition on November 9, 2011 (November hearing). Neither Fickling nor her counsel attended the hearing. The trial court permitted the hearing to proceed, and the Commonwealth presented the testimony of three City of Philadelphia police officers. The officers testified to incidents that occurred in 1999, 2000, 2004, and 2007. Those incidents are summarized as follows.
In 1999, one of the officers and his partner were investigating the 600 block of Jackson Street for drug activity, and the partner purchased crack cocaine from Fickling's son (G.M.) on the Property's front porch. The following day, another officer witnessed G.M. exchange small objects for U.S. currency from the Property's back door; the other individual involved in the exchange was stopped shortly thereafter and two packets of heroin were recovered. Based on these observations, the officers obtained and executed a search warrant for the Property, which resulted in the recovery of two handguns, $48 in U.S. Currency, evidence that G.M. resided at the Property, and a box that contained 20 grams of marijuana. G.M. was stopped outside the Property and arrested. (Trial Ct. Supp. Op. at 3.)
In 2000, officers used a phone number obtained from an informant to arrange to purchase three packets of heroin at the Property. At the time of the buy, G.M.came out of the Property's back door and handed the undercover police officer packages of heroin, stamped "Scar Face," in exchange for $30 in pre-recorded buy money. The officers set up another buy the next day, and an unidentified man sold the officers three packages of "Scar Face" heroin out of the Property's back door for $30 of pre-recorded buy money. After obtaining and executing a search warrant, G.M. was apprehended inside the Property with a packet of marijuana on his person. The officers found $492 in U.S. Currency, including the $30 pre-recorded buy money, and a cell phone with the number the officers used to set up the drug purchases in G.M.'s bedroom. G.M. informed the officers that he had flushed heroin down the toilet, and the officers found five packets of "Scar Face" heroin in the flush pipe. G.M. was arrested on the Property and charged with possession and distribution of a controlled substance. (Trial Ct. Supp. Op. at 4-5.)
In 2004, officers set up surveillance of the Property based on information they received about narcotics activity. The officers observed D.J., Fickling's granddaughter's boyfriend, leave the Property on his bike and exchange small objects for U.S. currency with an unknown male. D.J. was stopped and searched, and the officers recovered from D.J.'s person 38 packets of crack cocaine, cell phones, and two pieces of cardboard on which "24/7" and a phone number were written. Fickling gave the officers permission to search the Property. The search of the Property recovered $224 in U.S. Currency and five pieces of cardboard with the same information as those found on D.J. (Trial Ct. Supp. Op. at 5.)
Finally, in 2007, officers again set up surveillance on the 600 block of Jackson Street in response to complaints of drug activity. The officers watched both the Property and 627 Jackson Street, which is located directly across the street from theProperty and owned by Fickling's son and daughter-in-law, C.F. and A.M. During the surveillance, an officer observed Fickling's grandson, Ch.F., standing on the Property's front porch and conversing briefly with an unidentified man, who handed Ch.F. money. Ch.F. then entered the Property and, after 30 seconds, exited and went to 627 Jackson Street. Ch.F. exited 627 Jackson after about a minute and handed the unidentified man a clear plastic bag. The officer also witnessed a confidential informant with $50 in pre-recorded buy money approach the Property's front porch, speak with Ch.F., and hand Ch.F. the pre-recorded buy money. As before, Ch.F. entered and exited the Property and went across the street to 627 Jackson before handing the informant a clear plastic baggie, which was later determined to be marijuana. The officers obtained and executed a search warrant of the Property and 627 Jackson Street, and arrested Ch.F., C.F., A.M., G.M., and Fickling. Inside the Property, the officers found a loaded handgun on an eye level shelf on the basement stairs, a shotgun and banana clip in the basement, a black Taser, a white plate with cocaine residue inside a bread box on top of the kitchen refrigerator, unused clear plastic baggies, and five plastic baggies containing heroin inside a jacket hanging in the basement hallway. The police officers acknowledged that they did not know how long these items had been on the Property or who owned the jacket. Fickling was charged with distribution and possession of a controlled substance and conspiracy to commit the same, but the charges were later dismissed for lack of evidence. (Trial Ct. Supp. Op. at 5-8.)
Based on the officers' testimony regarding these incidents, the trial court issued an Order on November 9, 2011 granting the Petition and forfeiting the Property. Fickling filed a Motion for Reconsideration on November 14, 2011, asserting that she had not received notice of the November hearing, the Commonwealth had not met itsburden of proof, she was an innocent owner, and the Commonwealth was breaching a settlement agreement whereby the Commonwealth agreed not to seek forfeiture of the Property if the Property was transferred to Fickling via a Special Warranty Deed (Deed). The trial court held a reconsideration hearing on January 10, 2012 (January hearing). (Trial Ct. Supp. Op. at 1.)
During the January hearing, the Commonwealth presented the testimony of a fourth City of Philadelphia police officer regarding the above-referenced drug activities on the Property. The police officer also testified that, during the 2007 surveillance, Fickling was in the house during all of the ongoing events because she was not seen entering the Property and was arrested inside the house. (Trial Ct. Supp. Op. at 6-8.) Fickling asserted an innocent owner defense2 to the Petition and testifiedregarding her lack of knowledge of and consent to the illegal drug activities that occurred on the Property. Fickling testified that she did not work and was not aware that her family was using the Property for any criminal activities. (Hr'g Tr. at 39, 42, 44, January 10, 2012.) She acknowledged that she was aware of G.M.'s arrests in 1999 and 2000, which was contrary to her interrogatory answers, and D.J.'s arrest in 2004, although she pointed out that D.J. was not arrested on the Property and was not a relation. (Hr'g Tr. at 47-48, 50, 53, 55, 58-59, 65.) Although she initially stated that G.M. and other family members who have had problems with the law were not allowed on the Property except to help her with chores, she subsequently testified that they were allowed on the Property because they were family. (Hr'g Tr. at 41-42, 51, 60-62.) The trial court held that Fickling had not established the innocent owner defense, (Hr'g Tr. at 77), and issued a January 10, 2012, Order, again granting the Petition.3
Fickling filed an appeal, and the trial court directed her to file a Statement of Matters Complained of on Appeal (Statement) pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1925(b). Fickling filed her Statement, in which she listed three issues: (1) the evidence was insufficient to support the forfeiture of the Property and the forfeiture was against the weight of the evidence; (2) the trial court erred in denying her Motion for Reconsideration because she was not permitted to have her counsel present during the November hearing,which denied her due process; and (3) the trial court erred and abused its discretion in not finding that she had a settlement agreement with the Commonwealth and that the Commonwealth breached that agreement. (Fickling's Statement.) The trial court issued two opinions in support of its grant of the Petition.4
The trial court addressed each of Fickling's arguments, but noted that Fickling did not include her innocent owner defense as an issue in her Statement and, therefore, the trial court did not address that issue. (Trial Ct. Supp. Op. at 10 n.7.) Regarding the first issue raised by Fickling, the trial court found that the police...
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