IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Commonwealth of Pennsylvania : : v. : No. 766 C.D : Submitted: December 21, W. Lindley Avenue, Phila., PA : : Appeal of: Lonnie Dawson : BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE COLINS FILED: May 2, 2013 Lonnie Dawson, Sr. (Dawson) appeals from an order of the Court of Common Pleas for the County of Philadelphia, Criminal Trial Division (trial court) forfeiting the residential property at 928 W. Lindley Avenue in the City and County of Philadelphia (Property), pursuant to the act commonly known as the Controlled Substance Forfeiture Act (Forfeiture Act), 42 Pa. C.S For the reasons that follow, we affirm the trial court s order. Dawson is the owner of the Property. Since March 22, 2000, Dawson s daughter, Karima Dawson (Karima) has held power of attorney for her father, who is serving a life sentence in a federal prison, so that she can care for the Property. On April 10, 2003, Dawson s son, Lonnie Dawson, Jr., was arrested, and subsequently pled guilty to charges of selling crack cocaine out of the Property. At the time of his arrest, Lonnie Dawson, Jr. lived in the basement, and Karima

2 occupied the first and second floors of the Property. The Commonwealth of Pennsylvania (Commonwealth) filed a petition for forfeiture arising out of Lonnie Dawson, Jr. s arrest that resulted in a July 28, 2004 settlement agreement executed by Dawson and Karima, pursuant to which they agreed, inter alia, that: the Property had been used in violation of The Controlled Substance, Drug, Device and Cosmetic Act (Controlled Substance Act), Act of April 14, 1972, P.L. 233, as amended, 35 P.S ; any future prospective lessee or tenant shall be subject to prior review by the Commonwealth; Dawson and Karima will take all reasonable measures to prevent further illegal drug activity from occurring at the Property; and in the event of any future illegal drug activity at the Property, the Commonwealth shall have the right to file a petition requesting forfeiture. (July 28, 2004 Stipulation and Agreement (2004 Stipulation) at 8, 10, 12, 13.) Karima moved into the Property in 2000, and continued to reside there until 2006, when she moved to New Jersey. (Notes of Testimony, Hearing Volume I, September 22, 2011 (9/22 N.T.) at 14, 34.) After Karima moved from the Property, it was leased, without notice to the Commonwealth as required under the 2004 Stipulation, to a woman unrelated to the family, for a period of approximately one year. In the course of an investigation into drug trafficking on the 900 block of W. Lindley Avenue, near the Property, on June 10, 2009, Rasoul Salim, Dawson s nephew, was arrested at the Property for selling crack cocaine and marijuana out of both the front and back doors, and subsequently entered a guilty plea for possession of a controlled substance with intent to deliver and possession of a prohibited firearm. (9/22 N.T., Exhibits C-11, C-12.) On July 14, 2009, the Commonwealth filed a new petition for forfeiture of the Property, and hearings were held over two days, on September 22 2

3 and December 14, Before the trial court, Dawson and Karima were represented by counsel, and Karima testified. Dawson, through counsel, and Karima: (i) stipulated to the police reports from each of the investigations, (ii) stipulated to the criminal history records of Dawson, Lonnie Dawson, Jr., and Rasoul Salim; and (iii) agreed and stipulated that the Commonwealth had established and proven the requisite nexus between the Property and illegal drug activity. (9/22 N.T. at 8-9.) Karima testified that she knew nothing about her brother s drug dealing activities in the basement of the Property. (9/22 H.T. at 23.) She stated that she did not give her cousin, Rasoul Salim, permission to use the Property, or a key to the Property. (9/22 N.T. at 16.) She stated that she was unaware that Salim had been arrested, and came to the house on the day after the police entered and searched the Property only to meet and provide a key to her sister; she indicated that she had given her sister permission to live in the Property while under house arrest, and her sister was headed there with police officers on the day after the search. (9/22 H.T. at 17, 29.) The trial court determined that Dawson failed to prove an innocent owner defense pursuant to the Forfeiture Act, 42 Pa. C.S. 6802, 1 finding 1 42 Pa. C.S Section 6802 provides, in pertinent part: (j) Owner s burden of proof. At the time of the hearing, if the Commonwealth produces evidence that the property in question was unlawfully used, possessed or otherwise subject to forfeiture under 6801(a) or (a), the burden shall be upon the claimant to show: (1) That the claimant is the owner of the property or the holder of a chattel mortgage or contract of conditional sale thereon. (2) That the claimant lawfully acquired the property. (3) That it was not unlawfully used or possessed by him. In the event that it shall appear that the property was unlawfully used or possessed by a person other than the claimant, then the claimant shall show that the unlawful use or possession was without his knowledge or consent. Such absence of knowledge or consent must be reasonable under the circumstances presented. (emphasis added.) 3

4 specifically that Karima s testimony disclaiming knowledge of her brother s and cousin s drug activities is not credible, and even if it were, her lack of knowledge would have been unreasonable. (Supplemental Opinion of the trial court, April 30, 2012 (Tr. Ct. Op.) at 4.) The trial court issued an order granting the Commonwealth s forfeiture petition, and Dawson filed this appeal. 2 Dawson argues, first, that the trial court abused its discretion when it rejected the innocent owner defense. We disagree. In its carefully reasoned opinion, the trial court reviewed specific portions of the testimony of Karima with regard to both the 2003 arrest of her brother at the Property, and the 2009 arrest of her cousin at the Property. With regard to the 2003 arrest, the trial court did not find credible Karima s testimony that although she lived with her brother at the Property, and spent lots of time with him, she never went into the basement portion that he occupied, despite the fact that the laundry facilities were located there, and did not know that he was dealing drugs. The trial court noted that Karima was clearly alerted to her brother s proclivities by his long series of convictions for narcotics offenses, including more than one [p]ossession with [i]ntent to [d]eliver, concluding that either she knew of her brother s narcotics activity, or she was unreasonably unaware of it. (Tr. Ct. Op. at 6.) Similarly, the trial court found Karima s testimony with regard to her lack of knowledge about her cousin s activities at the Property in 2009 not credible, and even if it had been credible, to be unreasonable, given the previous activities of another family member, her 2 Our scope of review of the trial court s order is limited to determining whether the findings of fact made by the trial court are supported by substantial evidence and whether the trial court abused its discretion or committed an error of law. Commonwealth v. $6, Seized from Esquillin, 583 Pa. 544, 880 A.2d 523 (2005). 4

5 brother, and her agreement to take all additional and reasonable measures to prevent further drug activity from occurring, as set forth in the 2004 Stipulation. In forfeiture cases, the finder of fact in the proceedings below is solely responsible for evaluating the credibility of a witness and weighing his or her testimony, and those determinations will not be disturbed on appeal. Commonwealth v. McJett, 811 A.2d 104 (Pa. Cmwlth. 2002), petition for allowance of appeal denied, 574 Pa. 749, 829 A.2d 1158 (2003). Based on our review of the record, we conclude that it was well within the province of the trial court to reject, as not credible, Karima s testimony that she was unaware of the drug activity occurring while her brother co-occupied the Property with her, or later, when her cousin was arrested there. The trial court did not err in ordering the forfeiture of the Property to the Commonwealth, since Dawson did not meet his burden of proving that he was an innocent owner. Dawson further argues, for the first time on appeal, that (i) the forfeiture would violate the prohibition against excessive fines contained in Article 1, Section 13 of the Pennsylvania Constitution and the Eighth Amendment of the United States Constitution (Excessive Fines Clause); (ii) the trial court erred in believing hearing testimony from a police officer that Dawson alleges was fabricated; and (iii) Dawson s counsel provided ineffective assistance. The Commonwealth counters that these allegations are waived and, in any event, are without merit. Dawson and his counsel did not raise the issue of an excessive fine before the trial court, nor was it raised in his statement of the concise errors complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of 5

6 Appellate Procedure, Pa. R.A.P. 1925(b), 3 as ordered by the trial court and submitted by Dawson on February 23, Dawson argues that he only became aware of his opportunity to demonstrate that the forfeiture could amount to an excessive fine when he read the trial court s opinion. 4 Further, Dawson alleges he preserved his right to raise this issue, because he added a handwritten sentence to the bottom of his Rule 1925(b) statement, a typed document he states was prepared by counsel, which reads, [a]dditional issues may be submitted after receipt of notes of testimony. (Dawson s Rule 1925(b) Concise Statement of Matters To Be Complained Of On Appeal (1925(b) Statement).) The Commonwealth argues that this issue is waived and, in any event, is meritless. In its brief, the Commonwealth offers a lengthy and detailed argument that, even accepting Dawson s unsubstantiated estimate of the value of the Property, the amount of the forfeiture could not possibly be grossly disproportional to the gravity of the offense on which forfeiture was predicated. (Commonwealth s Brief at citing Commonwealth v. Real Property and Improvements Commonly Known As 5444 Spruce Street, 3 Rule 1925(b) provides, in pertinent part: Pa. R.A.P. 1925(b). (b) Direction to file statement of errors complained of on appeal; instructions to the appellant and the trial court. If the judge entering the order giving rise to the notice of appeal ( judge ) desires clarification of the errors complained of on appeal, the judge may enter an order directing the appellant to file of record in the trial court and serve on the judge a concise statement of the errors complained of on appeal ( Statement ). 4 On page three of its Supplemental Opinion, the trial court notes that a property owner can attempt to show that the forfeiture is tantamount to an excessive fine which Dawson has declined to do. (Tr. Ct. Op. at 3 (emphasis added).) 6

7 Philadelphia, 574 Pa. 423, 832 A.2d 396 (2003); Commonwealth v. 542 Ontario Street, Bethlehem, PA, 18015, 989 A.2d 411 (Pa. Cmwlth. 2010) (en banc), appeal denied, 609 Pa. 703, 16 A.3d 503 (2011); Commonwealth v. Real Property and Improvements Commonly Known as 5444 Spruce Street, 890 A.2d 35 (Pa. Cmwlth.), appeal denied, 590 Pa. 662, 911 A.2d 937 (2006).) After reviewing the record, we agree with the Commonwealth that this issue has been waived and is unreviewable. 5 Issues not raised in the lower court are waived and cannot be raised for the first time on appeal. Pa. R.A.P. 302(a). In order to preserve an issue for appellate review, the litigant must make a specific, timely objection at the hearing and must raise the issues in his post-trial motions. Dennis v. Southeastern Pennsylvania Transportation Authority, 833 A.2d 5 Moreover, even if this issue were not waived, the forfeiture of the Property was not a violation of the Excessive Fines Clause. The United States Supreme Court, as well as our Supreme Court, has adopted the standard that where a punitive forfeiture is involved, the court compares the amount of the forfeiture to the gravity of the defendant s offense. If the amount of the forfeiture is grossly disproportionate to the gravity of the defendant s offense, it is unconstitutional Spruce Street, 574 Pa. 423, 433, 832 A.2d 396, 402 (2003) (quoting United States v. Bajakajian, 524 U.S. 321, (1998)). The Bajakajian Court enumerated factors by which a court may measure the gravity of the offense, each of which is limited to the conduct of the defendant: the penalty imposed as compared to the maximum penalty available; whether the violation was isolated or part of a pattern of misbehavior; and, the harm resulting from the crime charged. Id. at 433, 832 A.2d at 402 (citing Bajakajian, 524 U.S. at 338-9). Here, the Property was forfeited based on two separate incidents of drug-trafficking in 2003 and Dawson s son and Dawson s nephew entered guilty pleas to selling crack cocaine in connection with these incidents. The statutory maximum available fine for these crimes was $100,000. See Section 13(f)(1.1) of the Controlled Substance Act, 35 P.S (f)(1.1). The aggregation of a single sale of crack cocaine for each of the 2003 and 2009 drug convictions (there were five sales in 2003) linked to the Property results in a statutorily-approved penalty of $200,000, at a minimum. In his brief, with no evidentiary support, Dawson estimates the value of the Property at $40,000-$60,000, notwithstanding his daughter s testimony before the trial court that her father purchased 50 percent of the Property for $1000 in (9/22 H.T. at ) Even without having to consider the other factors enumerated in Bajakajian, the forfeiture clearly was not an excessive fine. 7

8 348, 352 (Pa. Cmwlth. 2003). Dawson s general statement handwritten at the bottom of his 1925(b) Statement that additional issues may be added cannot be construed to encompass an assertion that forfeiture of the Property violated the constitutional prohibition against excessive fines. Dawson argues that the trial court erred by accepting as true the testimony of a police officer that Dawson claims is not truthful. Dawson s counsel offered the testimony of Officer Joseph Domico, in an apparent attempt to demonstrate that when police searched the Property after the arrest of Dawson s nephew, Rasoul Salim, little furniture was found, suggesting that Salim could not have been living inside the Property for long. Domico conducted surveillance of the Property, arrested Dawson s nephew, and conducted a search of the Property on the day after the arrest. Officer Domico testified, at the December 14, 2011 hearing, that he did not know how long Dawson s nephew may have resided in the Property. (Notes of Testimony, December 14, 2011 (12/14 N.T.), at 16, 18.) Officer Domico testified that when he entered the Property, all of the drugs and a loaded handgun were found in the kitchen, and $1,030 in cash and Salim s identification card were found in an upstairs bedroom. (12/14 N.T. at 11, ) He testified that the bedroom contained a bed, a TV, an Xbox with paddles, and twenty to forty boxes of sneakers. (12/14 N.T at 11-12, ) Officer Domico testified that the dining room and kitchen areas of the Property were combined, and that in addition to the drugs and handgun, the area contained a regulation-sized pool table and a kitchen table; there was no furniture at all in the rest of the house other than that described in the bedroom and dining room/kitchen area. (12/14 N.T. at 12-13, 17.) However, at the earlier, September 22, 2011 hearing, Karima testified that when she entered the Property on the day after the police search, there 8

9 was no furniture inside the Property, and she noted specifically that she did not see a pool table there. (9/22 H.T. at 31, 36.) In his brief, Dawson argues that Officer Domico altered his testimony from that provided at the preliminary hearing for Rasoul Salim; he alleges that when Officer Domico described the contents of the house at the preliminary hearing, he did not mention the boxes of sneakers, the pool table or the Xbox. Dawson states that Karima testified at the first hearing that there was no pool table without knowing that Officer Domico would testify otherwise at the second hearing, and that Karima would have had no reason to lie. Dawson points to the trial court s opinion wherein it states that [t]he court finds it telling that, if one takes her testimony as true, Rasul Salim managed to move a bed, Xbox, television set, kitchen table, twenty to forty pairs of sneakers and a pool table into the house while dealing drugs out of both the front and back doors, all without ever alerting Karima, (Tr. Ct. Op. at 8) and argues that the trial court relied upon fabricated police testimony, and should instead have interpreted the discrepancy as evidence of Karima s truthfulness. (Dawson s Brief at ) The Commonwealth responds that the issue of fabricated police testimony was not raised below, and is therefore waived. However, we note that the 1925(b) Statement does allude to the issue, stating that even the police testimony reflected that it looked like Mr. Dawson s nephew had just moved in as there was merely a bed and television in one bedroom on the second floor. (1925(b) Statement.) The Commonwealth addressed the merits of Dawson s argument, noting that Officer Domico s alleged failure to mention certain items found inside the Property at a preliminary hearing on a drug-trafficking matter was irrelevant, and it was unnecessary for the Commonwealth to prove the precise contours of what Officer Domico observed inside the Property at the preliminary 9

10 hearing, where the Commonwealth was required only to establish a prima facie case for possessing a controlled substance with an intent to deliver and possession of a prohibited firearm. (Commonwealth s Brief at ) Upon review of the record, we find no evidence to support Dawson s allegation that Officer Domico s testimony at the December 14, 2011 hearing was fabricated. The trial judge heard the testimony of both Officer Domico and Karima, and found Karima s testimony with regard to her lack of knowledge of her cousin s activities at the Property to be not credible. Further, the trial judge found that even if Karima s testimony were credible, her actions would still indicate a willful blindness to her family s illegal use of the Property. (Tr. Ct. Op. at 6.) Finally, Dawson argues, for the first time on appeal, that his counsel was ineffective. He states that counsel failed to conduct a proper investigation, declined to call Rasoul Salim as a witness, declined to call a neighbor who cut the grass at the Property, and declined to call Karima for rebuttal testimony as to the presence of the pool table and sneakers. (Dawson s Brief at ) On September 18, 2012, Dawson filed a motion to amend his brief, seeking to include four affidavits, and alleging that he had filed a motion for enlargement of time within which to file his brief on June 15, 2012, but that it had been returned for insufficient address. (Motion to Amend Brief of Appellant, with attached affidavits.) He stated that he duly filed his brief in a timely manner, but without the affidavits; he avers that the affidavits support his ineffective assistance of counsel issue. By per curiam order dated October 19, 2012, this Court ordered that Dawson s motion to amend his brief be submitted for disposition with the merits of the appeal. 10

11 The four affidavits are signed, respectively, by Dawson, Karima, Rasoul Salim, and Cordell Lee. In Dawson s proffered affidavit, he avers that his counsel could have demonstrated that the Property was being properly monitored if he had offered the testimony of Cordell Lee, who, in his own affidavit, states that an individual named Wendy Dawson had hired him to cut grass and shovel snow at the Property, and that if he had seen anyone move in, he would have contacted Wendy Dawson. In his affidavit, Salim states that he entered the Property, for the first time, in the last week of May, 2009, and used the house to store his weed until he was arrested there, on June 10, Salim states that he was able to enter both front and back doors by slipping his identification card into the side of the door where the lock is located. He also states that he only saw his cousin, Karima, at family gatherings. In her affidavit, Karima states that had she been re-called as a witness after the testimony of Officer Domico, she could have disputed his testimony regarding the pool table and the sneakers he found at the Property. In an abundance of caution, we shall allow appellant to amend his brief to include the four affidavits as if they had been timely filed. However, we find that the subject matters contained in each of the affidavits are either inadmissible or irrelevant and, as such, will be stricken. The fact that someone may have been hired to shovel snow and/or cut the grass has no probative value towards disproving that the Property was being used for the sale and/or distribution of crack cocaine and marijuana. The affidavit of Rasoul Salim indicating that he used the Property to store weed in May and June of 2009, which he claimed he would only sell off the premises, establishes that the Property was in fact being 11

12 used for distribution. The testimony of the other affiant, Karima, was specifically rejected by the trial court as not credible, and this proposed insertion of additional, self-serving rebuttal testimony at the appellate level is absolutely prohibited. Further, even if a claim of ineffective counsel could be entertained in this proceeding, the fact that Dawson s attorney chose not to introduce this conflicting and inculpatory testimony appears to be a reasonable, strategically sound decision by any attorney. For the foregoing reasons, we affirm the order of the trial court. JAMES GARDNER COLINS, Senior Judge 12

13 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Commonwealth of Pennsylvania : : v. : No. 766 C.D : 928 W. Lindley Avenue, Phila., PA : : Appeal of: Lonnie Dawson : O R D E R AND NOW, this 2 nd day of May, 2013, the September 18, 2012 Motion to Amend Brief of Appellant, to include certain Affidavits, is granted. After consideration of the contents of the submitted Affidavits, they are found to be of no probative value, irrelevant or otherwise inadmissible, and are therefore stricken. The order of the Court of Common Pleas for the County of Philadelphia, Criminal Trial Division, dated December 14, 2011, is affirmed. JAMES GARDNER COLINS, Senior Judge