Commonwealth v. Perez

941 A.2d 778, 2008 Pa. Commw. LEXIS 40

• Court: Commonwealth Court of Pennsylvania
• Decided: January 31, 2008
• Status: Published

Opinions

OPINION BY

Judge McGINLEY.

Francisco Perez (Perez) appeals pro se from the May 24, 2007, order of the Court of Common Pleas of Berks County (trial court), which denied Perez’s motion for the return of seized property. This Court affirms.

Philadelphia Police arrested Perez in Philadelphia on May 18, 2000, pursuant to an arrest warrant obtained by Reading Police in Berks County (Berks) based on an attempted murder that occurred in Berks. At the time of his arrest, Perez was carrying sixty four packets of heroin and $2,176.00 in cash. Perez was convicted in the Court of Common Pleas of Berks on March 15, 2001, of numerous felony criminal offenses, including attempted first-degree murder and various drug offenses related to the heroin. The drug convictions resulted in a forfeiture proceeding pursuant to the Controlled Substances Forfeiture Act, 42 Pa.C.S. §§ 6801-6802, involving the $2,176.00 cash and a 1990 Eagle Premier sedan¹ owned by Perez. On May 21, 2001, the trial court granted the forfeiture petition. Perez did not appeal that decision.

On appeal of his criminal convictions, on June 20, 2002, the Pennsylvania Superior Court held that Perez’s trial counsel was ineffective in the criminal prosecution of the drug offenses stemming from the Philadelphia arrest for failing to argue a lack of subject matter jurisdiction. Both the Commonwealth and Perez appealed to the Pennsylvania Supreme Court which denied allocatur. On February 18, 2004, the trial court granted the district attorney’s motion for the entry of a nolle prosequi of the drug charges following the Superior Court’s remand.

Three years later, on February 22, 2007, Perez, who was still incarcerated as a result of the attempted murder conviction, petitioned the trial court for the return of the $2,176.00 and the 1990 Eagle Premier sedan, arguing that the court lacked jurisdiction to grant the forfeiture petition. The trial court found Perez’s present petition to be barred by the doctrine of res judicata. Perez appealed to this Court.

Perez now contends² that the Berks trial court lacked subject matter jurisdiction over the forfeiture proceeding pursuant to the Controlled Substances Forfeiture Act because the underlying drug convictions were extinguished by the entry of the nolle prosequi.

Civil forfeitures are the in rem consequence for wrongdoing prescribed by statute. Commonwealth v. Spisak, 69 Pa. D. & C.2d 659 (Somerset County 1974). Property is forfeited not as a result of the criminal conviction, but through a separate proceeding, civil in form but quasi-criminal in nature, in which the agency seeking the property must show, by a preponderance of the evidence, a nexus between the property sought and the possessor’s illegal activity. Commonwealth v. One Mack Dump Truck, 743 A.2d 542 (Pa.Cmwlth. 1999); Commonwealth v. $78,671.30 Cash, U.S. Currency and Assorted Firearms (Artelo/Smith), 654 A.2d 93 (Pa.Cmwlth. 1995). “It is not necessary, therefore, that a forfeiture be supported by an underlying criminal conviction.” Commonwealth v. $259.00 Cash U.S. Currency, 860 A.2d 228, 232 n. 7 (Pa.Cmwlth.2004) (citing Commonwealth v. One 1998 Ford Coupe VIN # 1FABP41A9JF143651, 393 Pa.Super. 320, 574 A.2d 631 (1990)).

The doctrine of res judicata applies to bar a subsequent suit on the same claim after the relevant appeal period has expired. First Union Mortgage Corp. v. Frempong, 744 A.2d 327 (Pa.Super.1999). For res judicata to apply, there must be a concurrence of four conditions, all of which are met here: (1) identity of issues; (2) identity of causes of action; (3) identity of persons and parties to the action; and (4) identity of the quality or the capacity of parties suing or sued. Reber v. Tschudy, 824 A.2d 378, 382 n. 6 (Pa.Cmwlth.2003). The doctrine provides finality to the proceedings. Clark v. Troutman, 509 Pa. 386, 502 A.2d 137 (1985).

Perez is attempting to re-litigate the civil forfeiture proceeding by calling into question the basis for the Commonwealth’s exercise of jurisdiction over the property forfeited. Perez does so long after the relevant appeal period for the forfeiture has run.

The civil forfeiture proceeding, though implicating issues and facts involved in the dismissed criminal prosecution, became final when the petition for forfeiture was granted and no appeal was taken within the statutorily allotted time.³

At no point during the intervening years did Perez attempt to attack the forfeiture judgment, even though timely appeal of the May 25, 2001, order granting the forfeiture would have allowed Perez to argue the jurisdictional issue. He declined to do so, despite raising a related argument in his criminal case appeal to the Superior Court. Finding that he could do so now would re-open the door and renew civil litigation six years after judgment was entered, and absent any appeal.

To dispose of the controversy before this Court, it is necessary to clarify the distinction between subject matter jurisdiction and jurisdiction over the property, or res, of the in rem civil proceeding. Subject matter jurisdiction is jurisdiction over the nature of the cause of action and relief sought that allows a court to exercise its power. Mid-City Bank & Trust Co. v. Myers, 343 Pa. 465, 23 A.2d 420 (1942). The in rem jurisdiction of the property is determined by whether the defendant property had sufficient contacts with the forum that the court’s exercise of power constituted fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The matter of jurisdiction over the property is a question of personal jurisdiction. Sperry & Hutchinson Co. v. O’Connor, 488 Pa. 340, 412 A.2d 539 (1980) (citing Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977)).

Perez notes that the Controlled Substances Forfeiture Act, specifically 42 Pa. C.S. § 6802, provides that a petition for forfeiture “shall be filed in the court of common pleas of the judicial district where the property is located.” Perez contends that:

[t]he property was seized in Philadelphia County, not Berks County, so, under the Controlled Substances Forfeiture Act the Berks County Court of Common Pleas, as a matter of subject matter jurisdiction, had no jurisdiction under said Act to facilitate forfeiture, especially, seeing that no charges were in existence, due to the retroactive effect of the dismissal of the causal Drug Charges.

Petitioner’s Brief at 15. It is clear that Perez confuses subject matter jurisdiction and jurisdiction over the subject property. The challenge to the personal jurisdiction over the res is an attempt by Perez to obtain a second bite and have this Court now determine where the property was located at the time the forfeiture proceeding was instituted, when he could and should have done so years ago in that proceeding.

On this basis, this Court must affirm the trial court. Perez never argued that the property was not located in the judicial district in which the proceeding was initiated. Instead, Perez argued that the property was seized in a different county than that in which the forfeiture proceeding was filed-his argument rests on the assumption that because the underlying criminal conviction was dismissed, jurisdiction over the separate forfeiture proceeding did not exist. This argument fails: “[pjroperty subject to forfeiture under this chapter may be seized by the law enforcement authority upon process issued by any court of common pleas having jurisdiction over the property.” 42 Pa.C.S. § 6801(b). This Court does not accept that 42 Pa.C.S. § 6802 may retroactively divest the trial court of subject matter jurisdiction under these circumstances.

Assuming arguendo that Perez’s objection to subject matter jurisdiction demands a holding that , the long ago forfeiture had been barred, “[a]ll Pennsylvania courts of common pleas- have statewide subject matter jurisdiction in cases arising under the Pennsylvania Crimes Code.” Commonwealth v. Bethea, 574 Pa. 100, 113, 828 A.2d 1066, 1074 (2003). Because of the quasi-criminal nature of the forfeiture proceeding, and the nexus with underlying criminal acts, 42 Pa.C.S. § 6802 must be read, in the context of Bethea, to address venue, rather than subject matter jurisdiction.⁴

In summary, because Perez did not raise the question of jurisdiction during the initial forfeiture proceeding, he lost the ability to do so under Pa.R.C.P No. 1032, relating to waiver of defenses. The order became final when he failed to timely appeal. The record was closed more than six years ago, and an evidentiary inquiry into the location of the property subject to forfeiture is barred by res judicata.

Accordingly, the order of the trial court is affirmed.

ORDER

AND NOW, this 31st day of January, 2008, the order of the Court of Common Pleas of Berks County in the above-captioned matter is affirmed.

1 . It appears from the record that this is the vehicle which Perez admitted he was standing next to at the time of his arrest. However, the testimony indicated the vehicle was black, while the auction listing indicates the vehicle sold was maroon. Notes of Testimony, March 13-March 16, 2001, at 322. Exhibit C Appended to Petitioner’s Brief, at 9. There is no contention, however, that this was not the same car.

2 . This Court's review of a denial of a petition for return of property is limited to determining whether the trial court’s findings of fact are supported by substantial evidence and whether the trial court abused its discretion or committed an error of law. Commonwealth v. Three Hundred Ten Thousand Twenty Dollars, 894 A.2d 154 (Pa.Cmwlth.2006).

3 . The criminal proceedings had progressed through appeal to the Superior Court, appeal to the Supreme Court of Pennsylvania, which denied allocatur, remand to the trial court, Post-Conviction Relief Act petitions, which were denied at the Superior Court and Supreme Court, and finally federal habeas corpus, which was pending at the time briefs were submitted, six years after the forfeiture proceeding concluded.

4 . The sole case that the Superior Court relied upon in concluding Perez’s counsel was ineffective for failure to challenge subject matter jurisdiction has been overturned. Commonwealth v. Bethea, 761 A.2d 1181 (Pa.Super.2000), rev'd 574 Pa. 100, 828 A.2d 1066 (2003). The analysis is one of venue and convenience, not jurisdiction. Venue is an entirely different issue, and does not implicate incompetency of the trial court.

“By constitution and by statute, the court of common pleas has unlimited original jurisdiction in all cases, actions, and proceedings, and is thus empowered, subject to a few statutory exceptions, to decide any matter arising under the laws of this commonwealth.” Commonwealth v. McPhail, 547 Pa. 519, 524, 692 A.2d 139, 141 (1997) (footnote omitted). Further:

[t]he two counties are not separate sovereigns and do not derive their power to try felony drug cases from independent sources of power. Their subject matter jurisdiction flows from the sovereign Commonwealth of Pennsylvania and is not circumscribed by county territorial limits. Territorial applicability of the crimes code refers strictly to conduct occurring inside or outside Pennsylvania, not to the county in which conduct occurred, (emphasis added).

Id. at 525-26, 692 A.2d at 142.

Second, the place of trial, whether within or without the county where the alleged crime occurred, is a matter of venue, not jurisdiction, notwithstanding the imprecise and confusing terminology.... Third, trial in a county other than the one where the offense occurred is not constitutionally prohibited. Fourth, trial outside the county is a mechanism which must be used sparingly, to prohibit dragging the accused all over the commonwealth and burdening him with an expensive trial at the whim of the prosecution. (footnote omitted).

Id. at 529, 692 A.2d at 144.

Justice Cappy, then soon to be Chief Justice, concurred, and stated even more strongly:

at common law, the subject matter jurisdiction of the trial courts was not limited to crimes which occurred in the county in which the court sat and 2) even if there were such a common law rule, it was abrogated by the enactment of Article V, Section 5 of the Constitution of 1968 and 42 Pa. C.S.A. § 931.

Id. at 531, 692 A.2d at 145.

Clearly, all of Perez’s claims fail.