Com. v. The Real State Prop. & Improvements (memorandum)

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J-A08008-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. THE REAL PROPERTY AND IMPROVEMENTS KNOWN AS 155 WEST SEYMOUR STREET PHILADELPHIA, PA 19144 Appellant No. 1066 EDA 2012 Appeal from the Order March 2, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-MD-0001793-2010 BEFORE: GANTMAN, J., ALLEN, J., and OTT, J. MEMORANDUM BY GANTMAN, J.: FILED MAY 14, 2013 Appellant, Donya Allen as owner, appeals from the order entered in the Philadelphia County Court of Common Pleas, granting the Commonwealth s motion for forfeiture of her real property at 155 West Seymour Street ( the Property ). We affirm. The relevant facts and procedural history of this case are as follows. Appellant was the owner of the Property and lived there with her children. Appellant dated James Hopkins, and Mr. Hopkins would often stay at the Property. Sometime in 2009, police began a narcotics investigation of Mr. Hopkins and Derrell Slaughter after receiving tips about drug dealing at 5911 Kemble Avenue. Appellant pays a mortgage on the Kemble Avenue house, J-A08008-13 although she does not live there. Using undercover officers and confidential informants, law enforcement made several controlled buys of Percocet from Mr. Slaughter. During one purchase, Mr. Slaughter told the undercover officer to wait while Mr. Slaughter and his supplier retrieved more Percocet. Mr. Slaughter went inside 5911 Kemble and returned with Mr. Hopkins. The men entered a silver Dodge, drove to the Property, and walked inside. Police checked the registration on the Dodge and learned the vehicle was registered in Appellant s name. Believing the Property was a stash house for drugs, police obtained a search warrant. On December 17, 2009, police executed the warrant and uncovered crack cocaine and other drug-related items, including vials of crack cocaine in a kitchen cabinet, as well as several objects containing white residue straws, a razor blade, and a plate. The white substance from the razor blade tested positive for cocaine. Police searched the third floor bedroom where Appellant slept and discovered packaging materials in a footrest and a digital scale covered with white residue in the closet. Approximately 30 grams of marijuana were inside a closet in a second floor bedroom. Police arrested Mr. Hopkins and Mr. Slaughter and charged them with drug offenses. Appellant was not arrested, but the Commonwealth instituted civil forfeiture proceedings against the Property. The court held hearings, where Appellant stipulated that a nexus existed between the drug activity and the -2- J-A08008-13 Property. She denied, however, having any knowledge about drug activity inside her home and presented herself as an innocent owner. A police officer testified as to the location of the drugs and paraphernalia within the Property. On January 31, 2012, the court granted the Commonwealth s petition.1 Appellant timely filed a motion for reconsideration, which the court denied on March 2, 2012. On March 19, 2012, Appellant timely filed a notice of appeal. On April 2, 2012, the court ordered Appellant to file a concise statement of errors complained on appeal pursuant to Pa.R.A.P. 1925(b). Appellant filed her statement on April 25, 2012. The court issued an opinion concluding Appellant s Rule 1925(b) statement was untimely so her issues were waived. The court alternatively addressed the merits of Appellant s claim. Appellant raises two issues for our review: DID APPELLANT FAIL TO FILE TIMELY A CONCISE STATEMENT OF ERRORS COMPLAINED ON APPEAL PURSUANT TO PA.R.A.P. 1925(B)? DID THE EVIDENCE SHOW THAT APPELLANT WAS AN INNOCENT OWNER WHO DID NOT TURN A BLIND EYE? (Appellant s Brief at 4). ____________________________________________ 1 The Commonwealth has filed forfeiture proceedings against a separate property Appellant owned at 1640 North 27th Street. Appellant s exhusband was using the house to sell drugs. Appellant has claimed ignorance of the drug operations connected to that residence as well. -3- J-A08008-13 In her first issue, Appellant argues the order instructing her to file a Rule 1925(b) statement was not properly entered on the docket until sometime after Appellant filed her concise statement. Appellant claims the absence of a docket entry made her unaware of the court s Rule 1925(b) order and effectively excused her obligation to file her statement in a timely manner. For those reasons, Appellant concludes the court erred in finding her issues waived due to an untimely Rule 1925(b) statement. We agree with Appellant s ultimate conclusion that her late Rule 1925(b) statement does not result in waiver of her issue on appeal. The failure to file a Rule 1925(b) statement generally constitutes a waiver of all issues. Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998). Our Supreme Court, however, has revised Rule 1925 and relaxed the waiver rule in certain circumstances. See Pa.R.A.P. 19252; Commonwealth v. McBride, 957 A.2d 752, 755 (Pa.Super. 2008). Under the revisions to Rule 1925(b), we can address issues presented in an untimely Rule 1925(b) statement, when the trial court has addressed those issues on the merits. Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa.Super. 2012). Instantly, the record belies Appellant s claim that the court s order directing her to file a Rule 1925(b) statement was not entered on the ____________________________________________ 2 Rule 1925 was amended on May 10, 2007, and again on January 13, 2009. -4- J-A08008-13 docket. The docket entries show the court issued its order on April 2, 2012, directing Appellant to file her concise statement within 21 days. The order was both entered on the docket and served on counsel on the same day. The statement was due on Monday, April 23, 2012. Nevertheless, waiver is inappropriate in these circumstances because Appellant filed her Rule 1925(b) statement on Wednesday, April 25, 2012, and the trial court addressed the merits of her claim. See id. In Appellant s second issue, she argues the evidence was insufficient to establish she turned a blind eye to the drug operations taking place in her home. In Appellant s view, the Commonwealth did not present enough facts showing she had any knowledge of drug activity. Appellant appears to assert the discovery of drug-related items in her kitchen cabinet and bedroom was not enough to support the court s finding that Appellant was willfully ignorant of Mr. Hopkins s drug activities. Appellant concludes she met her burden to prove her innocent owner defense, and the court erred when it granted the Commonwealth s forfeiture petition. We disagree. An appellate court s scope of review in an appeal from a forfeiture proceeding is limited to examining whether 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. Real Property and Improvements Commonly Known As 5444 Spruce Street, Philadelphia, 574 Pa. 423, 427, 832 A.2d 396, 398 (2003). -5- J-A08008-13 Proceedings brought under the Drug Forfeiture Act are civil in nature. Commonwealth v. Wingat Farms, 547 Pa. 332, 340, 690 A.2d 222, 226 (1997), cert. denied, 522 U.S. 831, 118 S.Ct. 98, 139 L.Ed.2d 53 (1997). The Commonwealth must establish, by a preponderance of the evidence, a nexus between the property and a violation of the Controlled Substances Act. Commonwealth v. Marshall, 548 Pa. 495, 499, 698 A.2d 576, 578 (1997). If the Commonwealth establishes this nexus, the burden shifts to the claimant to disprove the Commonwealth s evidence or establish a statutory defense. 42 Pa.C.S.A. § 6802(j); Commonwealth v. 5900 Market Street, 732 A.2d 659, 662 (Pa.Cmwlth. 1999). To prove the innocent owner defense, the claimant must show: (1) she is the lawful owner of the property; (2) she lawfully acquired the property; and (3) she was unaware of the illegal activity, did not consent to the activity, and her lack of knowledge or consent was reasonable under the circumstances. 42 Pa.C.S.A. § 6802(j). A property owner cannot turn a blind eye to illegal activity within her home and then rely on that willful blindness to disclaim any knowledge of the illegal activity. Commonwealth v. 648 West Mayfield Street, 819 A.2d 1226, 1229 (Pa.Cmwlth. 2003). After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Frank J. Palumbo, we conclude Appellant s claim merits no relief. opinion properly disposes of the question presented. -6- The trial court (See Trial Court J-A08008-13 Opinion, dated July 19, 2012, at 6-9) (finding: Appellant stipulated that Commonwealth established nexus between Property and illegal activity; only issue before court was whether Appellant could establish innocent owner defense; facts and circumstances showed Appellant willfully blind to existence of drug activity; police uncovered digital scale with white residue and packaging materials in Appellant s bedroom; additional drug materials, including vials of cocaine, were stored in kitchen cabinet; it was unreasonable for Appellant not to know about drugs and paraphernalia within her own bedroom and kitchen, and her professed ignorance of these materials was incredible). Accordingly, we affirm the order granting the Commonwealth s motion for forfeiture. Order affirmed. Judgment Entered. Prothonotary Date: 5/14/2013 -7-

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