Commonwealth v. Real Prop. & Improvements at 2338 N. Beechwood St. Phila.

• Decision Date: 15 March 2016
• Docket Number: No. 631 C.D. 2012,631 C.D. 2012
• Citation: 134 A.3d 507
• Parties: COMMONWEALTH of Pennsylvania v. The REAL PROPERTY AND IMPROVEMENTS AT 2338 N. BEECHWOOD STREET PHILADELPHIA, PA 19132 Appeal of: Takeela Burney.
• Court: Pennsylvania Commonwealth Court

134 A.3d 507

COMMONWEALTH of Pennsylvania

v. The REAL PROPERTY AND IMPROVEMENTS AT 2338 N. BEECHWOOD STREET PHILADELPHIA, PA 19132Appeal of: Takeela Burney.

No. 631 C.D. 2012

Commonwealth Court of Pennsylvania.

Argued Feb. 10, 2016.

Decided March 15, 2016.

Matthew D. Lee, Philadelphia, for appellant.

Alison J. Guest, Assistant District Attorney, Philadelphia, for appellee.

BEFORE: MARY HANNAH LEAVITT, President Judge, RENÉE COHN JUBELIRER, Judge, ROBERT SIMPSON, Judge, P. KEVIN BROBSON, Judge, PATRICIA A. McCULLOUGH, Judge, ANNE E. COVEY, Judge and MICHAEL H. WOJCIK, Judge.

OPINION BY Judge BROBSON.

On remand from the Supreme Court of Pennsylvania,¹ we consider for a second time the appeal of Takeela Burney (Claimant) from the March 14, 2012 Order of the Court of Common Pleas of Philadelphia County (trial court), granting the Forfeiture Petition of the Commonwealth of Pennsylvania (Commonwealth) pursuant to what is commonly referred to as the Controlled Substances Forfeiture Act (Forfeiture Act).² For the reasons set forth below, we will vacate the trial court's order and remand the matter to the trial court for a new hearing.

The background of this matter, as recounted in our prior opinion, is as follows:

On July 26, 2011, the Commonwealth filed the [Forfeiture] Petition against 2338 N. Beechwood Street, Philadelphia, Pennsylvania (the Property), seeking forfeiture of the Property on several grounds; however, those relevant to this appeal are: (1) an alleged controlled purchase of crack cocaine for $20.00 between a confidential informant and two individuals, Kalisha Byrd and Frank Burney, occurred at the entry of the Property on May 6, 2010; (2) a search warrant executed at the Property on May 7, 2010 that resulted in the seizure of controlled substances and U.S. currency; and (3) the May 7, 2010 arrests of Frank Burney, Kalisha Byrd and Tob Martin pursuant to the Controlled Substance, Drug, Device and Cosmetic Act (Drug Act).^[3]

Claimant did not file an Answer to the [Forfeiture] Petition, and neither Claimant nor the Commonwealth filed interrogatories or conducted discovery. On March 13, 2012, a hearing on the [Forfeiture] Petition took place before the trial court. At the hearing, the Commonwealth presented the testimony of Officer Eugene Kittles (Officer) of the Philadelphia Police Narcotics Division. Officer testified that on May 6, 2010, he met with a confidential informant who was given $20.00 of prerecorded buy money with instructions to purchase crack cocaine at the Property. Officer stated that after going to the Property and coming into contact with Kalisha Byrd, who had exited the Property, the confidential informant engaged Kalisha Byrd in conversation and gave her the $20.00. Officer testified that Kalisha Byrd returned to the Property and came into contact with Frank Burney. Frank Burney handed Kalisha Byrd items that were later tested by the Philadelphia Police Narcotics Division in the presence of Officer and a colleague, which were determined to be two vials containing crack cocaine.

Officer further testified that, on the following day, May 7, 2010, he and a colleague returned to the area near the Property to conduct surveillance, where they observed two females and three males approach the Property and meet with Kalisha Byrd separately; each time Kalisha Byrd would exit the Property the unknown individuals would hand her U.S. currency, and she would briefly return and hand items to the unknown individuals. Officer stated that, later that day, he and two other officers executed a search warrant at the Property whereupon they: (1) confiscated fifteen jars of marijuana, empty jars, and $35 in U.S. currency from Tob Martin in the middle bedroom; (2) arrested Tob Martin; (3) found a photograph of Kalisha Byrd and Frank Burney and a Verizon phone bill containing Frank Burney's name and the address of the Property; (4) confiscated a bag containing a quarter ounce of cocaine and 24 vials of crack cocaine in the basement; and (5) confiscated $237 in U.S. currency from the living room. Officer stated that all of the confiscated drugs tested positive for cocaine base and marijuana. Officer noted that Kalisha Byrd and Frank Burney were arrested on a bus as they were nearing the 1700 block of 19th Street, apparently returning to the Property, and $337 in U.S. currency was then confiscated from Kalisha Byrd.

Claimant, who is indigent, appeared pro se at the hearing. Claimant did not present witnesses, cross-examine Officer, object to testimonial or documentary evidence, or attempt to assert the innocent owner defense or other constitutional challenges that may have been available to her. When it was Claimant's turn to cross-examine Officer's testimony, the trial court prompted Claimant by asking if she had any questions for Officer. Stating that she did, Claimant proceeded to make statements rather than ask questions. The trial court told Claimant that it was not her turn to tell her story and inquired whether she had any questions to which she replied, "Not at this time."

During the hearing, the trial court identified certain documents by Exhibit numbers: C–3—property receipts; C–4—chemical analysis; C–5—criminal extracts for Frank Burney, Jr. and Kalisha Byrd; and C–6—deed to 233[8] N. Beechwood Street. The Commonwealth did not formally move these documents into evidence before it rested. At the conclusion of the hearing, the trial court ordered the Property forfeited and transferred to the custody of the Philadelphia District Attorney's Office. Claimant, now represented by counsel, pro bono, timely appealed to this Court.

On April 30, 2012, the trial court issued an Order requiring Claimant to file a Concise Statement of Errors Complained of on Appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure (1925(b) Statement), Pa. R.A.P.1925(b), no later than May 21, 2012. By and through counsel, Claimant timely filed the 1925(b) Statement, contending that the trial court erred in: (1) concluding that the Commonwealth established a nexus; (2) concluding that the Commonwealth sufficiently established that the Property was unlawfully used, possessed, or otherwise subject to forfeiture; (3) failing to recognize that Claimant is an innocent, lawful owner of the Property and that any unlawful use or possession was without her knowledge or consent; (4) concluding that the Property was subject to forfeiture based upon a 2004 Agreement (Agreement) because Claimant was not a party to the Agreement and the Commonwealth failed to prove that Claimant was aware of it; (5) failing to recognize that the forfeiture of the Property is constitutionally prohibited in violation of the Excessive Fines clause of Article I, Section 13 of the Pennsylvania Constitution and the Fourteenth Amendment of the United States Constitution; (6) not ensuring that Claimant, a pro se litigant, understood that she had a right to a jury trial and that she could assert affirmative defenses to the [Forfeiture] Petition, including an innocent owner defense; and (7) not appointing counsel for Claimant.

On August 13, 2012, pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P.1925(a), the trial court issued an Opinion in support of its Order granting the forfeiture of the Property. Therein, the trial court concluded that the Commonwealth had met its burden to prove, by a preponderance of the evidence, "that there was a nexus between the [P]roperty seized and illegal drug activity." (Trial Ct. Op. at 9.) The trial court found that "the [P]roperty was being used to facilitate the sale of illegal drugs." (Trial Ct. Op. at 9.) The trial court determined that Claimant failed to meet her burden of proof under Section 6802(j) of the Forfeiture Act to establish, by a preponderance of the evidence, that she was an innocent owner. (Trial Ct. Op. at 10.) In addressing the alleged violations of Claimant's constitutional rights, the trial court stated that "[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal," and concluded that Claimant waived those issues pursuant to Rule 302(a) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 302(a). (Trial Ct. Op. at 11.)

The trial court rejected Claimant's argument that she should have been informed of her right to a jury trial because the trial court had no obligation to inform Claimant of such a right as "a petition for forfeiture is truly civil" and not criminal. (Trial Ct. Op. at 11.) The trial court concluded that Claimant waived any right to a jury trial because Claimant was bound by the deemed waiver of the civil rule, which states "that right shall be deemed waived unless a party files and serves a written demand for a jury trial not later than twenty days after service of the last permissible pleading." (Trial Ct. Op. at 11 (citing Pa. R.C.P. No. 1007.1(a) ).) The trial court contrasted the "deemed waiver" of Rule 1007.1(a) of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No. 1007.1(a), with the heightened requirements under Rule 620 of the Pennsylvania Rules of Criminal Procedure, Pa. R.Crim. P. 620, highlighting that the criminal rule contains a presumption that a defendant will proceed with a jury trial that can only be rebutted if both the defendant and the Commonwealth agree to waive this right, and if the waiver is knowing and intelligent. (Trial Ct. Op. at 12.) Reasoning that a forfeiture proceeding is quasi-criminal in nature, but civil in form, the trial court believed it was bound by the civil rule and, therefore, had no obligation to inform Claimant of her right to a jury trial. (Trial Ct. Op. at 12–13.)

Regarding Claimant's failure to raise the innocent owner defense or any other affirmative defenses, the trial court stated that pro se representation does not relieve a claimant of the duty to properly raise and develop applicable claims, that " ‘any layperson choosing to represent himself in a

...