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COMMONWEALTH PENNSYLVANIA v. JOSEPH E. HESS (10/24/89)

filed: October 24, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
JOSEPH E. HESS



Appeal from the Order of the Court of Common Pleas, Cumberland County, Criminal Division, at No. 164 Misc. 1988.

COUNSEL

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

William Costopoulos, Lemoyne, for appellee.

David M. McGlaughlin, Philadelphia, amicus curiae.

Brosky, Beck and Hoffman, JJ.

Author: Brosky

[ 389 Pa. Super. Page 40]

This appeal, taken by the Commonwealth of Pennsylvania, is from an Order vacating a temporary restraining order and dismissing the Commonwealth's Motion for preservation of property subject to forfeiture.

[ 389 Pa. Super. Page 41]

On appeal, the Commonwealth contends that an evidentiary hearing was necessary to determine the nature and source of the restrained assets and the nature of the contractual agreement between the parties relative to these assets. The Commonwealth also asserts that the procedure of restraining assets used to pay attorneys' fees by the issuance of a temporary restraining order does not violate a criminal defendant's right to counsel under the Sixth Amendment to the United States Constitution or under Article I, Section 9 of the Pennsylvania Constitution, does not violate due process of law under the Fifth and Fourteenth Amendments to the United States Constitution or under Article I, Section 9 of the Pennsylvania Constitution and does not constitute an unlawful seizure in contravention of the Fourth and Fourteenth Amendments to the United States Constitution or Article I, Section 8 of the Pennsylvania Constitution; nor, the Commonwealth maintains, is the forfeiture statute overly broad and void for vagueness. Lastly, but not the least, the Commonwealth argues in support of the viability of the statute in terms of the public policy interests at stake in ferreting out those responsible for illegal drug trafficking and the concomitant evils which that trade engenders.

For reasons that follow, we are of the opinion that the trial court was required to conduct an evidentiary hearing to determine, as a threshold matter, whether the assets restrained pursuant to the temporary restraining order are traceable to an illegal drug exchange, thus making them subject to forfeiture. Accordingly, we vacate the Order of the trial court of November 28, 1988, which vacated the temporary restraining order entered on September 22, 1988, and dismissed the Motion of the Commonwealth for preservation of property, and remand for the holding of such evidentiary hearing.

On September 15, 1988, Joseph E. Hess (hereinafter, "Hess") was arrested by a Tri-County Narcotics Strike Force and charged with the sale and delivery of one quarter pound of cocaine and conspiracy to sell and deliver the

[ 389 Pa. Super. Page 42]

    cocaine. Subsequently, he obtained the services of William C. Costopoulos, Esquire, (hereinafter, "Costopoulos") of the law firm of Kollas, Costopoulos, Foster and Fields (hereinafter, "the law firm") to represent him on the above charges.

On September 22, 1988, the Commonwealth filed a Motion for preservation of property subject to forfeiture in which it averred, inter alia, that the law firm which Hess had retained required payment of a significant cash retainer prior to representation, that Hess did not have the means to acquire the amount of cash needed for the retainer, except for funds which the Commonwealth believed were derived directly from illegal drug trafficking, and that the monies paid to the law firm represent proceeds which are traceable to such drug trafficking.

The Commonwealth requested injunctive relief to preserve during the pendency of the forfeiture claim all money, securities, negotiable instruments and other thing of value paid to the law firm by Hess for legal representation. That same day, Judge Bayley of the Court of Common Pleas issued a temporary restraining order enjoining Hess and the law firm from disposing of any monies, securities, negotiable instruments and/or any other thing given by Hess to the law firm as payment of the retainer for legal services on the pending drug charges. The Order also directed that these assets be preserved in the law firm's escrow account pending further order of court. The restraining order was to remain in effect until the conclusion of the hearing set for September 29, 1988. The hearing date was continued to September 30, 1988, by agreement of the court and the parties.

On that date, i.e., September 30, 1988, Hess, through Costopoulos, filed a Motion to strike the Commonwealth's Motion for preservation of property and to lift the temporary restraining order. This Motion alleged, inter alia, that the law firm had complied with the directive of the temporary restraining order. Hess also set forth various constitutional and statutory objections to the enabling legislation,

[ 389 Pa. Super. Page 4342]

Pa.C.S.A. § 6801 et seq., the Commonwealth's Motion to preserve and the temporary restraining order. By permission of the court, the Pennsylvania Association of Criminal Defense Lawyers (hereinafter, " amicus "), intervened as amicus curiae and also filed a Motion to vacate the temporary restraining order. The Motion of amicus launched a constitutional attack upon the forfeitures statute, supra, both facially and as applied.

However, on September 30, 1988, the date set for the hearing on the temporary restraining order, Costopoulos informed the court that he wished to brief the constitutional issues raised in Hess' Motion to strike and vacate as threshold issues prior to any hearing. The court agreed and, by Order filed October 4, 1988, it continued the temporary restraining order and and set oral argument on the Motion and the briefs for October 18, 1988. At the September 30, 1988, "proceeding" the court informed the parties that it would not hold a hearing on October 18, 1988, or subsequently, unless the parties could demonstrate that relevant evidence was available to supplement the record. By Order of November 28, 1988, the trial court vacated the temporary restraining order entered on September 22, 1988, and dismissed the Commonwealth's Motion for preservation of property. This appeal followed.

The parties, in their respective appellate briefs, and the trial court, in its Opinion filed in conjunction with the above Order, assumed, for the purpose of analyzing the statutory and constitutional claims,*fn1 that the monies or other thing(s) of value tendered to the law firm as a retainer for Hess' drug charge defense and which are the subject of the temporary restraining order represent proceeds directly traceable to illegal drug transactions.

The court, in its Opinion, reasoned that the phrase "all proceeds traceable to such an exchange" as used in the statute (see 42 Pa.C.S.A. § 6801(a)(6)(i)(A)) exempts from its reach legal ...


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