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Commonwealth v. 542 Ontario Street

February 17, 2010

COMMONWEALTH OF PENNSYLVANIA
v.
542 ONTARIO STREET, BETHLEHEM, PA., 18015
APPEAL OF: FREDDIE BLAS



The opinion of the court was delivered by: Judge Simpson

Argued: November 5, 2009

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge.

OPINION

In this appeal from an order for forfeiture of real estate, we face an unusual question: where an owner of property is acquitted of drug-related criminal charges, what standard, if any, should be used in assessing whether a subsequent civil forfeiture constitutes an impermissible excessive fine?

In particular, Freddie Blas appeals from an order of the Court of Common Pleas of Northampton County (trial court) that granted a petition filed by the Commonwealth seeking forfeiture of certain real property he owned. We affirm.

I. Background

Blas was the owner of property located at 542 Ontario Street in Bethlehem, Northampton County, Pennsylvania. On September 23, 2005, the Bethlehem Police executed a search warrant during which they found Stephen Rodriguez, whom Blas purportedly did not know. During the search of the property, they also found controlled substances with a value of $180. The search warrant was premised on at least 10 drug-related complaint calls to the Bethlehem Police regarding the subject property, a past history of drugs at the property and an investigation which included controlled purchases by a confidential informant.

The application for the search warrant noted that a similar warrant was executed on December 2, 2004, following citizen complaints and a subsequent investigation which involved surveillance and four to five controlled purchases by confidential informants.

During execution of the 2004 warrant, officers recovered 16 sandwich baggies containing cocaine from an individual inside the property, as well as marijuana and a digital scale with cocaine residue in other parts of the property. Blas was not at the residence when the search was initiated. Blas was not charged with any criminal wrongdoing at that time because he alleged no knowledge of the drugs and paraphernalia, and because he indicated a willingness to cooperate with law enforcement efforts to eliminate the drug problem in the neighborhood.

Unlike the sequelae of the earlier search, however, after execution of the 2005 search warrant, the police arrested Blas. Significant for current purposes, he was charged with possession of a controlled substance (cocaine), possession with intent to deliver a controlled substance, conspiracy to possess cocaine with intent to deliver and possession of drug paraphernalia.

II. Forfeiture Petition

On December 23, 2005, the Commonwealth filed the present forfeiture action. The trial court issued a rule to show cause why the petition for forfeiture should not be granted. The Commonwealth served Blas with its forfeiture petition on October 17, 2006, just before the start of his criminal trial.

On October 18, 2006, a jury acquitted Blas of the drug-related criminal charges.

On November 9, 2006, Blas filed preliminary objections to the forfeiture action, based upon his assertion that the Commonwealth did not serve him with the appropriate notice of the forfeiture within the required time period. On February 22, 2007, the trial court overruled the objections. Blas then filed an answer to the forfeiture action.

The forfeiture petition was the subject of two procedures. First, a jury trial was held on March 24 and 25, 2008. At that time, the parties agreed that while the jury would decide the factual questions relating to whether the Commonwealth was entitled to forfeiture of the real property, the legal question of whether forfeiture of the house violated the Excessive Fines clause of the United States Constitution would be decided by the trial court after the jury rendered a verdict.

The jury found in favor of forfeiture, specifically finding (1) that a nexus existed between Blas and the unlawful drug activity at his house, (2) that Blas' house was used or possessed by a person other than him for an unlawful purpose and, of particular import for our analysis, (3) that Blas knew of or consented to the use of his house by another for an unlawful use.

Second, the trial court held a hearing on April 11, 2008, concerning Blas' defense that the forfeiture constituted an excessive fine proscribed by the Eighth Amendment to the United States Constitution. During that hearing, Blas orally moved for judgment notwithstanding the verdict, which the trial court denied.*fn1

III. Trial Court Decision

After hearing, the trial court issued an opinion concluding that forfeiture was appropriate. The trial court first noted that Article 1, Section 13 of the Pennsylvania Constitution is coextensive with the Eighth Amendment of the United States Constitution, Jackson v. Hendrick, 509 Pa. 456, 465, 503 A.2d 400, 404 (1986), and that the Eighth Amendment is applicable to the states by virtue of the 14th Amendment. Commonwealth v. Real Property and Improvements Commonly Known As 5444 Spruce Street, Phila., 574 Pa. 423, 832 A.2d 396 (2003). Also, the trial court noted that the Commonwealth recognizes the Excessive Fines clause as a defense to a forfeiture action. Brown v. Commonwealth, 940 A. 2d 610 (Pa. Cmwlth. 2008).

Because of the coextensive applicability of the United States and Pennsylvania Constitutions, the Pennsylvania Supreme Court in 5444 Spruce Street concluded that the holding of the United State's Supreme Court in United States v. Bajakajian, 524 U.S. 321 (1998), controlled the analysis such that the "principle of proportionality" applied and "[t]he amount of a forfeiture must bear some relationship to the gravity of the offense [the forfeiture] is designed to punish." 524 U.S. at 334. If forfeiture represents a grossly disproportional amount relative to the crime, then the forfeiture is unconstitutional.

The hearing on the excessive fine issue included a stipulation that the value of Blas' house was $65,000. After noting this, the trial court recited the following factors relevant to the excessive fine analysis: (1) the defendant's conduct; (2) the penalty imposed as compared to the maximum penalty available; (3) the character of the defendant's conduct as isolated or repeated; and (4) the resulting harm from the crime charged. See 5444 Spruce Street.

In considering the question, the trial court compared the value of the house to the value of the controlled substance found, i.e., $65,000 to $180. The trial court then noted the jury's finding that Blas knew of or consented to the unlawful use of his property, opining that this finding supported a conclusion that the jury did not believe that Blas had no knowledge of the on-going illegal conduct occurring within his property.

The trial court rejected Blas' reliance upon his acquittal on the drug charges. It noted holdings that the Commonwealth's forfeiture actions do not need to be premised on a conviction. See, e.g., Commonwealth v. 502-504 Gordon Street, 607 A.2d 839, 842 (Pa. Cmwlth. 1992), aff'd, 535 Pa. 515, 636 A.2d 626 (1994).

As to the comparison of the value of the property to the maximum penalty, the trial court noted that the maximum penalty for possession with intent to deliver a controlled substance, a charge for which Blas was ultimately acquitted, was 10 years' imprisonment and/or a $100,000 fine, an amount higher than the $65,000 value of his property. The trial court rejected Blas' argument that his acquittal meant that the maximum penalty that could be imposed was zero. The trial court reiterated the above authority for the proposition that an underlying conviction is not necessary in forfeiture proceedings.

IV. Current Appeal

In this appeal, Blas raises the following issues: (1) whether the trial court erred in overruling his preliminary objections relating to service; (2) whether the trial court erred in denying judgment notwithstanding the verdict; and (3) whether the ...


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