In re Property

• Decision Date: 01 March 2013
• Docket Number: No. 745 C.D. 2012,745 C.D. 2012
• Parties: In Re: The Real Property and Improvements Known as 3522 Vinton Road Appeal of: Commonwealth of Pennsylvania
• Court: Pennsylvania Commonwealth Court

In Re: The Real Property and Improvements Known as 3522 Vinton Road

Appeal of: Commonwealth of Pennsylvania

No. 745 C.D. 2012

COMMONWEALTH COURT OF PENNSYLVANIA

Argued: February 11, 2013
March 1, 2013

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COHN JUBELIRER

The Commonwealth of Pennsylvania (Commonwealth) appeals from the Order of the Court of Common Pleas of Philadelphia County (trial court) denying the Commonwealth's Forfeiture Petition (Petition) seeking the forfeiture of The Real Property and Improvements Known as 3522 Vinton Road (Property). In support of this appeal, the Commonwealth argues that the trial court improperly shifted the burden during the forfeiture hearing and erred by finding that the evidence was insufficient to establish a nexus between the Property and the illegal drug activity. Discerning no error, we affirm the trial court's Order.

The Commonwealth filed the Petition pursuant to what is commonly referred to as the Controlled Substances Forfeiture Act (Forfeiture Act), 42 Pa.

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C.S. §§ 6801-6802, with the trial court on April 1, 2008, seeking the forfeiture of the Property owned by Rosemary Grey. (Petition at 1.) The Commonwealth alleged that the Property was used and/or continued "to be used (or intended to be used) to commit, or to facilitate the commission of, violations of The Controlled Substance, Drug, Device and Cosmetic Act"¹ (Drug Act). (Petition at 1.) A forfeiture hearing was held before the trial court on March 1, 2012. In support of its Petition, the Commonwealth presented the testimony of Police Officer Charles Myers, with the FBI Task Force for violent drugs and gangs, and the testimony of Ms. Grey, as if on cross-examination. Ms. Grey testified that she owned the Property at which her daughter, five grandchildren and Damon McCandless,² whom she described as her son-in-law, resided. (Hr'g Tr. at 20-21, 25, R.R. at 12a-14a.) Officer Myers testified with respect to the events leading up to McCandless' arrest for allegedly violating the Drug Act and how McCandless' alleged illegal drug activity was connected to the Property. (Hr'g Tr. at 8-19, R.R. at 9a-12a.) The Commonwealth also submitted into the record documentary evidence.

At the conclusion of the hearing, the trial court found that the Commonwealth failed to establish a nexus between the alleged illegal drug activity and the Property. Although not ordered to do so, the Commonwealth filed a statement of errors complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1925(b). The trial court

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then filed an opinion in support of its decision. The relevant facts that precipitated the filing of the Petition are as follows.³

Officer Myers received information in March 2008 from an informant indicating that the sale of illegal drugs was occurring in the northeast area of the City of Philadelphia. Acting on this information, Officer Myers set up surveillance of the Property on March 11, 2008, during which he observed McCandless exit the Property carrying a black plastic bag. Officer Myers further observed McCandless get into a blue Lexus and drive to the area of Benner and Torresdale in northeast Philadelphia, where a white male entered McCandless' vehicle for two to three minutes. The white male then exited the vehicle with a black plastic bag and left the area on foot. Officer Myers did not pursue the white male. (Findings of Fact (FOF) ¶¶ 1-3; Hr'g Tr. at 9-10, R.R. at 10a.)

Officer Myers next set up surveillance at the Property on March 12, 2008, and again observed McCandless exit the Property carrying a black plastic bag and

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drive to the area of Benner and Torresdale. The same white male from the day before approached the driver's side of McCandless' vehicle, where McCandless handed the white male a black plastic bag. The white male then left the area on foot. Officer Myers did not apprehend the white male. (FOF ¶¶ 4-5; Hr'g Tr. at 11, R.R. at 10a.)

On March 14, 2008, the police searched the Property pursuant to a warrant and recovered seven packets stamped "Full Charge," containing .27 grams of alleged heroin, and $538 in U.S. Currency from McCandless' pockets. The police also recovered a silver handgun with a black grip from the front bedroom. Alleged drug paraphernalia, including unused pink Ziploc bags and an alleged rack wrapper, which is commonly used to hold bundles of heroin, were recovered from the second floor front bedroom. The police did not find any drugs in either bedroom or hidden elsewhere on the Property. The packets found in McCandless' pockets were different in color than the unused pink packets found in the second floor front bedroom. The police "did not find drugs, scales, cutting agents, sales records, a [chemical] lab, black plastic bags, or large amounts of cash or paraphernalia on or within the [P]roperty." (FOF ¶¶ 6-9; Hr'g Tr. at 11-14, R.R. at 10a-11a.)

After the search, the police asked McCandless to participate in a controlled buy from a heroin supplier, to which he agreed, but he refused to permit the buy to occur at the Property. The subsequent controlled buy, at a different location than the Property, resulted in the arrest of a woman, who had 30 bundles consisting of 420 packets of alleged heroin on her person. McCandless was not arrested at that

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time. After McCandless stopped cooperating with the police, he was arrested on March 20, 2008, in the driveway of the Property when he exited his vehicle. In a search conducted after the arrest, the police found a bottle containing Diazepam and a piece of an alleged rack wrapper on McCandless' person. McCandless was later found not guilty of intentional possession of a controlled substance relating to the Diazepam. (FOF ¶¶ 11-12, 14-16; Hr'g Tr. at 16-18, R.R. at 11a-12a.)

Based on the foregoing facts, the trial court determined that the Commonwealth failed to establish a nexus between the Property and the alleged illegal behavior. The trial court concluded as follows:

Because the unidentified white male was never apprehended, Officer Myers never confirmed that Mr. McCandless was selling drugs from the [P]roperty. [Officer Myers] never saw the contents of the bag, and never saw the two men exchange money. . . . Officers never recovered any drugs from within [the] [P]roperty, nor found any evidence to suggest that the [P]roperty was being used to produce or store drugs. The pink Ziploc packets could not be directly connected to Mr. McCandless, and the Commonwealth never elicited testimony establishing that the "second floor front bedroom" belonged to him. Upon searching the house, the officers found no black plastic bags and none of the "usual trappings" of drug dealing. There were no scales, no cutting agents, and no sales records. The officers did not find large amounts of paraphernalia, illegal weapons, hidden cash, or a "chem lab" for packaging or making heroin. The officers did not observe drug use on the [P]roperty, nor enlist a criminal informant to conduct a controlled buy, and there were no other indicia of drug activity, such as intoxicated visitors, brief interactions, loitering, or the presence of known drug offenders.

Moreover, critical parts of the Commonwealth's case occurred off of the [P]roperty. . . . The second search occurred as Mr. McCandless was returning to the [P]roperty from another location. When Mr. McCandless allegedly agreed to set up a controlled buy, he refused to let it happen at the

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