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Commonwealth v. Real Property and Improvements

Commonwealth Court of Pennsylvania

May 28, 2013

Commonwealth of Pennsylvania
v.
The Real Property and Improvements Known as 2314 Tasker Street Philadelphia, PA 19145 Appeal of: Leslie Bey

Submitted: October 15, 2012

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge.

OPINION

PATRICIA A. McCULLOUGH, Judge

Leslie Bey (Bey) appeals from the March 15, 2011 order of the Philadelphia County Court of Common Pleas (trial court) granting the Commonwealth's forfeiture petition under the act commonly known as the Controlled Substances Forfeiture Act (Forfeiture Act).[1]

On February 20, 2006, a confidential informant (CI) returned to Officer Timothy Bogan (Officer Bogan) after purchasing narcotics at 2314 Tasker Street, Philadelphia, Pennsylvania (the property). Leslie Bey (Bey) is the administratrix of the estate that owns the property. The next day the police arrested a woman who identified herself as Leslie Atkins (Atkins), a/k/a Bey, and confiscated narcotics and $196.00 from her person. The police also confiscated a large number of pills, marijuana, and two pieces of mail addressed to Atkins. Further, the police recovered drug paraphernalia from the basement of the house. (Trial court op. at 1-3.)

On January 15 and 16, 2007, Officers Graham and Jones[2] conducted surveillance and observed the property being used as a means to facilitate drug sales. The officers resumed surveillance on January 23, 2007, where they observed several males conducting drug sales from the property, including a transaction with a CI. On January 25, 2007, the police arrested Darryl Whichard after he exited the property and recovered marijuana and $158.00 from his person. Shortly thereafter, the police arrested three more men at the property and confiscated marijuana, codeine, and drug paraphernalia from the property. The police also recovered a piece of mail addressed to Atkins. (Petition for Forfeiture at ¶¶ 3-8.)

On September 10, 2007, the Commonwealth filed a petition for forfeiture of the property based on the January 2007 violations of The Controlled Substance, Drug, Device, and Cosmetic Act (Controlled Substance Act).[3](Reproduced Record (R.R.) at A20.) The trial court held a hearing with respect to this petition on February 9, 2011. At the hearing, the Commonwealth sought to proceed on an amended petition based on the February 2006 violations of the Controlled Substance Act and present the testimony of Officer Bogan. (Trial court op. at 3.) Bey's counsel objected to the amended forfeiture petition and Officer Bogan's testimony, stating that he had not received the amended forfeiture petition until the day of the hearing. (Notes of Testimony (N.T.), February 9, 2011, at 8-10.) The trial court, however, overruled the objection. (Trial court op. at 3.)

Officer Bogan testified that on February 20, 2006, he engaged in surveillance of the property and had a CI purchase narcotics at the property with prerecorded money. Officer Bogan stated that on the next day, pursuant to a search warrant, police recovered narcotics from inside the property and arrested a woman who identified herself as Atkins. (N.T. at 10-16.)

Assistant District Attorney Clarence Dupree (ADA Dupree) also testified for the Commonwealth and stated that he gave a copy of the amended forfeiture petition to Bey's counsel on or before June 8, 2010, when they were originally scheduled to be heard on this matter.[4] ADA Dupree testified that he handed the amended forfeiture petition in person to Bey's counsel. ADA Dupree stated that he told Bey's counsel that he was going to appear before the trial court to have the judge sign the amended petition, and Bey's counsel indicated that he could not stay for the appearance. ADA Dupree further testified that there was no clerk available at that time to place an official court seal on the amended forfeiture petition. ADA Dupree admitted that he never mailed the amended forfeiture petition to Bey's counsel. (N.T. at 19-22.) The trial court granted leave to amend, but the petition was never filed.

Following the hearing, the trial court concluded that the Commonwealth proved by a preponderance of the evidence that a nexus existed between the violations of the Controlled Substance Act and the property based on the CI's February 20, 2006 purchase of narcotics from the property. The trial court also noted a stipulation between counsel that the value of the property was $50, 000 and the maximum value of the permitted fine for the drug violations was $250, 000. However, the trial court held the case under advisement to allow Bey's counsel time to provide the trial court with case law concerning the statute of limitations for forfeiture proceedings, estate beneficiaries as innocent owners, and laches. At a subsequent hearing on March 15, 2011, Bey's counsel did not produce any case law regarding these issues, and by order of the same date, the trial court granted the Commonwealth's forfeiture petition. (R.R. at A33.)

On October 31, 2011, the trial court issued an opinion in support of its order. With respect to the Commonwealth's amended petition, the trial court observed that the Forfeiture Act addresses the form and service of forfeiture actions but does not specifically provide for amendments to forfeiture petitions. The trial court determined that it was appropriate to fill this "gap" by relying on the Pennsylvania Rules of Civil Procedure. The trial court noted that Pa.R.C.P. No. 1033 allows a party to amend a pleading at any time by leave of court[5] and observed that Bey did not object to the trial court's ruling granting such leave to the Commonwealth in her Statement of Errors on Appeal. (Trial court op. at 5, 6.)

Next, noting that an amended petition supersedes and invalidates an original petition, see Reichert v. TRW, Inc., 531 Pa. 193, 198-99, 611 A.2d 1191, 1193-94 (1992) (holding that an amended complaint supersedes the original complaint for purposes of a default judgment), the trial court concluded that the question of proper service was governed by section 6802(b) of the Forfeiture Act. The trial court relied on statements by Assistant District Attorney Rachel Williams (ADA Williams) that Bey was personally served with the amended petition[6] to find that the amended petition had been properly served.[7] (Trial court op. at 6-7.)

Next, the trial court concluded that the Commonwealth carried its burden of proving there was a nexus between the property and the violations of the Controlled Substance Act by a preponderance of the evidence.[8] Citing the credible testimony of Officer Bogan, the trial court further determined that Bey failed to satisfy her burden of proving the affirmative innocent owner defense.[9] The trial court noted that Bey failed to prove that she was an innocent owner because she was arrested at the property with narcotics on her person, additional narcotics were found at the property, and the CI had purchased narcotics from the property. The other beneficiaries failed to assert an innocent owner defense, and Bey's counsel, who also claimed to represent all of the beneficiaries, failed to present any case law stating that beneficiaries are innocent owners by operation of law.[10] (Trial court op. at 9-11.)

On appeal to this Court, [11] Bey argues that the trial court erred by proceeding upon an amended forfeiture petition that was not properly filed and that the Commonwealth failed to establish a nexus between the violations of the Controlled Substance Act and the property. We agree with Bey that the trial court erred in ...


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