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Commonwealth of Pennsylvania v. $2

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


August 16, 2011

COMMONWEALTH OF PENNSYLVANIA
v.
$2,720.00 SEIZED FROM TROY BLOCKER-BEY APPEAL OF: TROY BLOCKER-BEY

The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Submitted: April 15, 2011

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION BY JUDGE LEAVITT

Troy Blocker-Bey appeals, pro se, an order of the Court of Common Pleas of Philadelphia County (trial court) denying his petition for return of $2,720 in cash pursuant to Pennsylvania Rule of Criminal Procedure 588 and granting the Commonwealth‟s petition for forfeiture of the cash under the act commonly known as the Controlled Substances Forfeitures Act (Forfeiture Act), 42 Pa. C.S. §§6801- 6802. In doing so, the trial court held that Blocker-Bey‟s claim for return of property was waived, which we conclude was error. We are unable to review the merits of the forfeiture petition, however, because the trial court did not make findings of fact or explain its rationale for granting that petition. Accordingly, we will retain jurisdiction and remand for preparation of a new opinion pursuant to PA. R.A.P. 1925(a).

Between December 2005 and March 2006, the Philadelphia Police Department investigated heroin sales originating from an apartment in the northeast section of the city. The investigation included three controlled buys, in which an undercover officer provided purchase money to a confidential source, who then called the supplier to purchase heroin. The informant consummated the transactions in one of two delivery cars and then turned the heroin over to police. Through surveillance the police determined that the rear first floor apartment at 4638 North Penn Street was the distribution point for the heroin.

On the afternoon of March 22, 2006, police officers executed a search warrant for the apartment and the two delivery vehicles. Blocker-Bey was stopped and searched when he left the apartment. The officers seized keys to the apartment, keys to the delivery cars, and $2,720 in cash that they found on Blocker-Bey. Inside the apartment, officers found 84 packets of heroin, two unloaded firearms, methadone pills, and baggies of marijuana and crack cocaine. Blocker-Bey ultimately pleaded guilty to possessing a controlled substance with intent to deliver; criminal conspiracy to traffic in illegal drugs; and two counts of possessing a prohibited firearm, 18 Pa. C.S. §6105. On April 26, 2007, the trial court sentenced Blocker-Bey to concurrent terms of four to eight years imprisonment for each conviction, which he did not appeal.

On September 22, 2009, Blocker-Bey, seeking the return of the $2,720 that had been seized from him at the time of his arrest, filed a pro se petition for return of property pursuant to Pennsylvania Rule of Criminal Procedure 588.*fn1 The Commonwealth responded by filing a petition for forfeiture pursuant to the Forfeiture Act, 42 Pa. C.S. §6801(a)(6)(i), alleging that the money was forfeitable because it "was furnished or intended to be furnished in an illegal exchange for a controlled substance, is a proceed of such an exchange, and/or was used or intended to be used to facilitate a violation of the Pennsylvania [Controlled] Substance, Drug, Device and Cosmetic Act." Petition for Forfeiture ¶3. The trial court conducted a "stipulated trial based on the paperwork."

Commonwealth‟s Brief at 5. Following this so-called "paperwork hearing," the trial court denied Blocker-Bey‟s petition for return of property, granted the Commonwealth‟s forfeiture petition, and ordered the money transferred to the Philadelphia District Attorney‟s Office on June 7, 2010.

Blocker-Bey appealed to the Superior Court.*fn2 The trial court ordered Blocker-Bey to file a concise statement of errors complained of on appeal pursuant to Pa. R.A.P. 1925(b).*fn3 In his Rule 1925(b) Statement, Blocker-Bey claimed that the Commonwealth "failed to sustain its burden to prove that the $2,720.00 in cash seized during investigative stop of Appellant on the street was contraband subject to forfeiture, considering no criminal charges were filed in relation to seized cash and there was no other nexus between cash and any identifiable crime." Pa. R.A.P. 1925(b) Statement at 1. Blocker-Bey framed the ultimate issue as "[w]hether the $2,720.00 that police seized from Appellant . . . should be returned to him. . . ." Id.

The trial court issued an opinion in support of its order pursuant to Pa. R.A.P. 1925(a).*fn4 In its Rule 1925(a) opinion, the trial court explained that it could not address the merits of Blocker-Bey‟s petition for return of property because he had waived that claim by failing to raise it in post-verdict motions or at sentencing following his conviction. The trial court offered no analysis or explanation for why it had granted the Commonwealth‟s forfeiture petition. This appeal followed.

On appeal,*fn5 Blocker-Bey reiterates the arguments raised in his Rule 1925(b) Statement, namely that the Commonwealth failed to prove the requisite nexus between the $2,720 and illegal activity. As a threshold matter, and in order to discharge our standard of review, we must first consider whether the trial court erred by not addressing the merits of Blocker-Bey‟s claim for return of property because it found the claim was waived. The Commonwealth argues that the trial court did not err and correctly held that Blocker-Bey had to raise his claim for return of property during his criminal proceeding.*fn6 We disagree.

In arguing that Blocker-Bey waived his right to seek a return of property, the Commonwealth relies upon Commonwealth v. Setzer, 392 A.2d 772 (Pa. Super. 1978). In Setzer, police seized cash from a defendant during an arrest for the sale of narcotics. The defendant was convicted on all counts relating to the arrest, and he did not seek a return of his seized cash during the proceedings or at sentencing. Nearly two years later he filed a petition for return of property pursuant to Pa. R. Crim. P. 324.*fn7 The Superior Court held that the defendant‟s claim was precluded because "where an issue is cognizable in a given proceeding and is not raised it is waived and will not be considered on a review of that proceeding." Id. at 773 (quoting Commonwealth v. Romberger, 474 Pa. 190, 196, 378 A.2d 283, 286 (1977)). The Setzer court also stated that although Rule 324 did not mention when a petition for the return of property should or must be filed, "an issue of this nature is most properly raised in conjunction with post-trial motions or, at the latest, when sentence is imposed." Id. at 773 n.4.

Although Setzer is factually and procedurally similar to the case sub judice, decisions of the Superior Court are not binding upon this Court. Muntz v. Department of Transportation, 630 A.2d 524, 525 (Pa. Cmwlth. 1993). We decline to follow Setzer because it fails to acknowledge that forfeiture proceedings and proceedings for the return of property "are not criminal proceedings as such; instead, they are civil in form, but quasi-criminal in character.‟"*fn8 In re: One 1988 Toyota Corolla, 675 A.2d 1290, 1295 (Pa. Cmwlth. 1996) (quoting Commonwealth v. Landy, 362 A.2d 999, 1005 (Pa. Super. 1976)); see also Commonwealth v. Perez, 941 A.2d 778, 780 (Pa. Cmwlth. 2008) (noting that civil forfeitures "are the in rem consequence for wrongdoing prescribed by statute" and that property is not forfeited "as a result of the criminal conviction, but through a separate proceeding, civil in form but quasi-criminal in nature. . . ") (emphasis added). Because the petitions by the Commonwealth and Blocker-Bey are civil in nature, we hold that he did not waive his claim for the return of property by failing to raise it during his criminal proceeding.

We turn, next, to Blocker-Bey‟s contention that the Commonwealth failed to establish a nexus between the $2,720 seized from his person and a violation of the Controlled Substance, Drug, Device and Cosmetic Act.*fn9 Essentially, Blocker-Bey argues that the trial court erred in granting the Commonwealth‟s forfeiture petition.

We are unable to review this issue because the trial court‟s Rule 1925(a) opinion contains no findings of fact or legal analysis related to the merits of the forfeiture petition.*fn10 Rule 1925(a) requires the trial court to provide "at least a brief opinion of the reasons for the order, or for the rulings or other errors complained of" or to "specify in writing the place in the record where such reasons may be found." Pa. R.A.P. 1925(a). Generally, "a trial judge may not simply . . . decline to address an issue" in his Rule 1925(a) opinion because the chief purpose of the rule is to give the appellate court "a reasoned basis for the trial court‟s disposition of the challenged orders." Commonwealth v. Pate, 617 A.2d 754, 758- 759 (Pa. Super. 1992). "The remedy for non-compliance with the rule is a remand to the trial judge." Id. at 759 (citing Commonwealth v. Kinsel, 588 A.2d 34, 36 (Pa. Super. 1991)).*fn11

Accordingly, we remand for issuance of a new opinion addressing the issues raised by Blocker-Bey‟s Rule 1925(b) Statement, including, but not limited to, whether the Commonwealth established the requisite nexus between the $2,720 and illegal drug activity and, if so, whether Blocker-Bey proved lawful possession of the cash. The opinion shall be filed within 60 days of the date of this opinion. Jurisdiction is retained.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania v. $2,720.00 Seized From Troy Blocker-Bey Appeal of: Troy Blocker-Bey

No. 1877 C.D. 2010

ORDER

AND NOW, this 16th day of August, 2011, the above-captioned matter is hereby REMANDED to the Court of Common Pleas of Philadelphia County for issuance of an adequate opinion in accordance with Pa. R.A.P. 1925(a) and the attached opinion. The opinion shall be filed within 60 days of the date of this Order.

Jurisdiction is retained.

MARY HANNAH LEAVITT, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania v. $2,720.00 Seized From Troy Blocker-Bey Appeal of: Troy Blocker-Bey

No. 1877 C.D. 2010

Submitted: April 15, 2011

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES R. KELLEY, Senior Judge

DISSENTING OPINION

BY JUDGE McGINLEY

FILED: August 16, 2011

I respectfully dissent to the majority‟s conclusion that Blocker-Bey did not waive his right to a return of property based upon Commonwealth v. Setzer, 392 A.2d 772 (Pa. Super. 1978).

In Setzer, a Philadelphia police officer seized $77.00 from Vernon Setzer (Setzer) after he arrested him for the sale of heroin. Setzer was convicted of drug-related crimes. Setzer appealed to our Pennsylvania Superior Court (Superior Court) which affirmed. Setzer, 392 A.2d at 772. Almost two years after his conviction, Setzer filed an application seeking the return of the $77.00 in the Court of Common Pleas of the First Judicial District which denied the application.

Superior Court denied Setzer‟s appeal on the basis that he waived the issue because he had not preserved it at the time of his criminal trial:

We perceive no reason why this issue would not have been cognizable in the lower court at that time . . . and, thus reviewable, on appellant‟s [Setzer] first appeal to this Court. Since we would have been precluded from addressing this issue on appellant‟s [Setzer] initial appeal because it was not first raised in the lower court at the time of his trial, we certainly cannot now consider it at this late date.

Setzer, 392 A.2d at 773.

The majority concedes that Setzer is factually and procedurally similar to the present case but declines to follow it because the decisions of the Superior Court are not binding on this Court and because Setzer "fails to acknowledge that forfeiture proceedings and proceedings for the return of property are civil proceedings though quasi-criminal in character.‟" Majority Opinion at 6. The majority concludes that because Blocker-Bey‟s petition was civil in nature he did not waive his claim for the return of property when he failed to raise it during his criminal proceeding.

I acknowledge that the decisions of the Superior Court are not binding on this Court. But, I would follow Setzer. Doing so maintains consistency and avoids confusion for both counsel and litigants. And I believe Setzer to be correctly decided: it is practical and persuasive. The appropriate time to raise the issue certainly should be at some point closer in time to the conviction, either in a post verdict motion or at sentencing.

BERNARD L. McGINLEY, Judge

BLM - 2


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