Opinion
No. 1635 C.D. 2011
11-14-2012
Commonwealth of Pennsylvania v. The Real Property and Improvements Known as 2304 Cecil B. Moore Avenue Philadelphia, PA 19121-2927 Appeal of: Glenda J. Copeland
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Glenda J. Copeland appeals from the April 27, 2011 Order of the Court of Common Pleas of Philadelphia County (trial court) granting the Commonwealth of Pennsylvania's (Commonwealth) Forfeiture Petition (Petition) seeking forfeiture of the Real Property and Improvements Known as 2304 Cecil B. Moore Avenue, Philadelphia, PA 19121-2927 (Property), the deed for which only lists Mrs. Copeland's husband, Esrick Copeland (Husband), as the titled owner. On appeal, Mrs. Copeland argues that she met her burden of proving that she is an innocent owner who neither knew nor consented to Husband's criminal activity. The Commonwealth contends that Mrs. Copeland has waived all issues on appeal because she failed to file a statement of the concise errors complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1925(b), as ordered by the trial court. Based upon recent Supreme Court precedent, we are constrained to quash Mrs. Copeland's appeal.
Although Mrs. Copeland also addresses in this appeal the issue of whether she has standing to contest the Petition as an equitable owner of the Property, the trial court found in her favor on this issue; therefore, standing is not an issue in this appeal.
The general facts are not in dispute in this matter. Husband is the sole titled owner on the deed applicable to the subject Property. The Property was purchased during Mrs. Copeland and Husband's marriage, but the deed has never contained Mrs. Copeland's name as a titled owner. The Property consists of a bar and an apartment above the bar in which Mrs. Copeland and Husband resided. Following several controlled buys on the Property in June 2005 and a subsequent search of the Property, Husband was arrested and the police confiscated, inter alia, money, cocaine, and a pistol from the apartment. Husband was later convicted of selling narcotics on the Property. Consequently, the Commonwealth filed the instant Petition seeking forfeiture of the Property. (Trial Ct. Op. at 1-3.)
Hearings on the Commonwealth's Petition were held before the trial court on March 24, 2011 and April 27, 2011. During the hearings, Mrs. Copeland's counsel: (1) stipulated that there was a nexus between Husband's unlawful activities and the Property; and (2) advised the trial court that Mrs. Copeland was asserting the "innocent owner" defense., (Trial Ct. Hr'g Tr. at 5-6, March 24, 2011, R.R. at 12a.) Mrs. Copeland testified on her own behalf in order to meet her burden of proving that she was an innocent equitable owner of the Property. By Order dated April 27, 2011, the trial court granted the Commonwealth's Petition and transferred ownership of the forfeited Property to the Philadelphia District Attorney's Office. (Trial Ct. Order, April 27, 2011, R.R. at 1a.) Mrs. Copeland, pro se, appealed the trial court's Order to the Superior Court, which then transferred the appeal to this Court.,
The Commonwealth bears the burden in a forfeiture case. Commonwealth v. 1992 Chevrolet Seized from Hill, 844 A.2d 583, 585 (Pa. Cmwlth. 2004). It must establish by a preponderance of the evidence that a nexus exists between the property subject to forfeiture and the pertinent unlawful activities. Id. When the Commonwealth's "burden is sustained, the burden of proof shifts to the property owner to disprove the evidence or establish statutory defenses to avoid forfeiture (i.e., the 'innocent owner' defense)." Id. (emphasis omitted).
The "innocent owner" defense is set forth in Sections 6801(a)(6)(ii) and 6802(j) of the Controlled Substances Forfeiture Act (Forfeiture Act), 42 Pa. C.S. §§ 6801(a)(6)(ii), 6802(j). Section 6801(a)(6)(ii) provides that "[n]o property shall be forfeited . . . to the extent of the interest of an owner, by reason of any act or omission established by the owner to have been committed or omitted without the knowledge or consent of that owner." 42 Pa. C.S. § 6801(a)(6)(ii). Section 6802(j) provides:
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 section 6801(a) or 6801.1(a), the burden shall be upon the claimant to show:
42 Pa. C.S. § 6802(j).(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.
Mrs. Copeland also asserted an excessive fine challenge. Mrs. Copeland and the Commonwealth stipulated that the Property's fair market value was $100,000.00 and that the applicable fine was $135,000.00. (Trial Ct. Hr'g Tr. at 31-32, April 27, 2011, R.R. at 31a.) The trial court determined further, after considering the relevant factors, that the forfeiture did not constitute an excessive fine. (Trial Ct. Op. at 5-6.) However, Mrs. Copeland has not raised any issue on appeal with respect to the excessive fine challenge.
See Section 762(a)(1)(ii) of the Judicial Code, 42 Pa. C.S. § 762(a)(1)(ii) (vesting jurisdiction in this Court in appeals from final orders of the courts of common pleas in civil actions commenced by the Commonwealth government); Rule 751 of the Pennsylvania Rules of Appellate Procedure. Pa. R.A.P. 751 (entitled "Transfer of Erroneously Filed Cases").
"Our review of a forfeiture appeal is limited to determining whether the trial court's findings of fact are supported by substantial evidence and whether it abused its discretion or committed an error of law." Commonwealth v. 5444 Spruce Street, 890 A.2d 35, 38 (Pa. Cmwlth. 2008).
On May 26, 2011, the trial court ordered Mrs. Copeland to file a concise statement of errors complained of on appeal within 21 days pursuant to Rule 1925(b). As of the date of the trial court's June 27, 2011 opinion (June 2011 Opinion) in support of its Order filed pursuant to Rule 1925(a), Mrs. Copeland had not filed, or requested an extension of time to file, the Rule 1925(b) statement. (Trial Ct. Op. at 1.) Accordingly, the trial court concluded that Mrs. Copeland failed to raise or preserve any issues for appeal; however, the trial court proceeded to address the merits of Mrs. Copeland's appeal "arguendo." (Trial Ct. Op. at 3-6.) The trial court found that Mrs. Copeland was an equitable owner of the Property, but that her testimony, which was the only evidence she presented, that she did not have knowledge of or did not consent to her Husband's illegal activities, was not credible. (Trial Ct. Op. at 3-5.)
Rule 1925(a) provides that the trial judge must file an opinion setting forth the reasons for the order being appealed if those reasons do not already appear of record. Pa. R.A.P. 1925(a).
On January 30, 2012, the trial court issued a supplemental Rule 1925(a) opinion wherein it again found that all issues were waived due to Mrs. Copeland's failure to file a Rule 1925(b) statement as ordered. However, the trial court chose, again, to address the merits of the two statutory defenses it believed would have been available to Mrs. Copeland on appeal and set forth verbatim the reasoning from its June 2011 Opinion finding that: (1) Mrs. Copeland was an equitable owner; and (2) Mrs. Copeland's testimony that she was an innocent owner was not credible. (Trial Ct. Supp. Op. at 1-5.)
It appears that the trial court issued a supplemental opinion in this matter because we had initially dismissed, by order dated December 23, 2011, Mrs. Copeland's appeal for failure to pay this Court's transfer filing fee. Upon Mrs. Copeland's application for reconsideration and the payment of the fee, we reinstated the appeal by order dated January 3, 2012.
We must first determine, as argued by the Commonwealth, whether Mrs. Copeland's appeal should be quashed for failure to file a Rule 1925(b) statement, as ordered by the trial court on May 26, 2011. Rule 1925(b) provides, in pertinent part:
(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").
Pa. R.A.P. 1925(b).. . . .
(2) Time for filing and service.--The judge shall allow the appellant at least 21 days from the date of the order's entry on the docket for the filing and service of the Statement. Upon application of the appellant and for good cause shown, the judge may enlarge the time period initially specified or permit an amended or supplemental Statement to be filed. In extraordinary circumstances, the judge may allow for the filing of a Statement or amended or supplemental Statement nunc pro tunc.
There is no dispute that Mrs. Copeland was served with the trial court's May 26, 2011 Order, that she did not file a Rule 1925(b) statement as ordered, and that she did not seek an extension pursuant to Rule 1925(b)(2). Recently, in Commonwealth v. Hill, 609 Pa. 410, 16 A.3d 484 (2011), the Pennsylvania Supreme Court reaffirmed that an appellant's failure to file a Rule 1925(b) statement is a waiver of all issues on appeal regardless of whether the trial court filed an opinion pursuant to Rule 1925(a) in support of the order being appealed. While the parties do not address this case in this appeal, as discussed below, we are constrained to follow the Supreme Court's decision in Hill.
In Hill, the Supreme Court addressed the consequences for failure to file a court ordered Rule 1925(b) statement pursuant to the 1988 version of Rule 1925. The appellant had filed a direct appeal with the Supreme Court from the lower court's order dismissing the guilt-phase claims in her Post-Conviction Relief Act (PCRA) petition. Hill, 609 Pa. at 412-13, 16 A.3d at 485. Despite appellant's failure to file the Rule 1925(b) statement as ordered by the lower court, the court filed a Rule 1925(a) opinion setting forth the reasons for its order dismissing appellant's guilt-phase claims. Id. at 416, 16 A.3d at 487. While acknowledging the appellant's failure to file the Rule 1925(b) statement, the lower court did not address the waiver consequences of the appellant's lapse. Id. Based upon a review of its previous decisions addressing waiver and the filing of a Rule 1925(b) statement, the Supreme Court held as follows:
Rule 1925 was amended in 2007 and 2009. The version of Rule 1925(b) prior to these amendments provided:
(b) Direction to file statement of matters complained of. The lower court forthwith may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal no later than 14 days after entry of such order. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.Pa. R.A.P. 1925(b) (1988).
We note that, similar to PCRA proceedings which are civil in nature, Hill, 609 Pa. at 429 n.14, 16 A.3d at 495 n.14, proceedings brought under the Forfeiture Act are also civil in form. One 1988 Toyota Corolla, 675 A.2d 1290, 1295 (Pa. Cmwlth. 1996).
Our jurisprudence is clear and well-settled, and firmly establishes that: Rule 1925(b) sets out a simple bright-line rule, which obligates an appellant to file and serve a Rule 1925(b) statement, when so ordered; any issues not raised in a Rule 1925(b) statement will be deemed waived; the courts lack the authority to countenance deviations from the Rule's terms; the Rule's provisions are not subject to ad hoc exceptions or selective enforcement; appellants and their counsel are responsible for complying with the Rule's requirements; Rule 1925 violations may be raised by the appellate court sua sponte, and the Rule applies notwithstanding an appellee's request not to
enforce it; and, if Rule 1925 is not clear as to what is required of an appellant, on-the-record actions taken by the appellant aimed at compliance may satisfy the Rule. We yet again repeat the principle first stated in [Commonwealth v.] Lord[, 553 Pa. 415, 719 A.2d 306 (1998),] that must be applied here: "[I]n order to preserve their claims for appellate review, [a]ppellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Pa. R.A.P. 1925. Any issues not raised in a Pa. R.A.P. 1925(b) statement will be deemed waived."Id. at 427, 16 A.3d at 494 (footnote omitted) (citation omitted) (quoting Lord, 533 Pa. at 420, 719 A.2d at 309 (alterations in original)).
In reaffirming Rule 1925(b)'s bright-line rule, the Supreme Court reiterated its prior reasons for imposing a strict waiver rule in the first instance. When discussing its reversal of the Superior Court's order based upon waiver in Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005), the Supreme Court noted "the inconsistent application of Rule 1925(b)'s waiver provision and uneven treatment of similarly situation litigants that had prevailed in the lower courts." Hill, 609 Pa. at 424, 16 A.3d at 492. The Supreme Court also reiterated that the "'bright-line character of [the] strict waiver rule'" is "'justified by an overarching concern to uniformity and certainty of result in the event of a failure to comply.'" Id. at 425, 16 A.3d at 493 (quoting Commonwealth v. Wholaver, 588 Pa. 218, 228, 903 A.2d 1178, 1184 (2006)).
We recognize that the Supreme Court's decision in Hill was controlled by the 1988 version of Rule 1925(b) and that Rule 1925 was extensively revised in 2007. However, the relevant provision of the current version of Rule 1925(b), permitting the lower court to enter an order directing the appellant to file of record in the lower court a concise statement of matters complained of on appeal, is essentially identical to the 1988 version of Rule 1925(b). Accordingly, we are constrained to apply the Supreme Court's holding that the failure to file a Rule 1925(b) statement results in waiver of all issues even when the lower court has filed a 1925(a) opinion.
As explained by our Supreme Court:
The revisions were designed to resolve a number of problems that had complicated enforcement of the Rule. Those problems included a relatively brief amount of time allotted for filing a Statement [of errors complained of on appeal], uncertainty surrounding an appellant's right to an extension of time for filing a Statement, and requirements that a Statement be concise while at the same time setting forth all objections to the order at issue. The 2007 amendments addressed these difficulties and made sweeping changes which included a longer period for filing, explicit provisions for extensions of time to file, and detailed direction on the information a Statement should include.
Mrs. Copeland, in the event that her failure to file the Rule 1925(b) statement as ordered by the trial court would be considered a waiver of the issues she has raised on appeal to this Court, requests in her brief that this Court remand this matter, pursuant to Rule 1925(b)(c)(2), for the filing nunc pro tunc of a concise statement of the errors complained of on appeal. Rule 1925(c)(2) provides that "[u]pon application of the appellant and for good cause shown, an appellate court may remand in a civil case for the filing nunc pro tunc of a Statement or for amendment or supplementation of a timely filed and served Statement and for a concurrent supplemental opinion." Pa. R.A.P. 1925(c)(2).
Mrs. Copeland also argues that this Court has the authority, pursuant to Rule 902, Pa. R.A.P. 902, to remand this matter to the trial court so that the omitted procedural step of filing the Rule 1925(b) statement may be taken. Rule 902 governs the manner of taking an appeal and provides:
An appeal permitted by law as of right from a lower court to an appellate court shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by Rule 903 (time for appeal). Failure of an appellant to take any step other than the timely filing of a notice of an appeal does not affect the validity of the appeal, but it is subject to such action as the appellate court deems appropriate, which may include, but is not limited to, remand of the matter to the lower court so that the omitted procedural step may be taken.Pa. R.A.P. 902 (emphasis added). By its terms, Rule 902 is focused on the validity of the appeal. See Brown v. Levy, 993 A.2d 364, 366 (Pa. Cmwlth. 2010) ("[T]imeliness is the only requirement to make a notice of appeal valid."); see also Lowrey v. East Pikeland Township, 562 A.2d 1010, 1011 (Pa. Cmwlth. 1989) (holding that prothonotary violated Rule 902 by refusing to time-stamp a timely filed appeal that omitted the case number because the failure to include the case number did not affect the validity of the appeal). However, Mrs. Copeland's appeal to this Court was valid; the failure to file a Rule 1925(b) statement (or the failure to include all appellate issues in such a statement) does not affect the validity of the appeal but, rather, which issues can be raised in that appeal. Rule 902, therefore, is not applicable.
Mrs. Copeland contends that, when the trial court entered the May 26, 2011 Order directing her to file a Rule 1925(b) statement, she was pro se and attempting to represent herself in these proceedings without the benefit of professional guidance. Mrs. Copeland argues that the lack of counsel is good cause for not filing the Rule 1925(b) statement as ordered; therefore, she should be permitted to file the statement nunc pro tunc.
We note that, despite Mrs. Copeland's failure to file the court-ordered Rule 1925(b) statement, the trial court was able to ascertain from the record what errors Mrs. Copeland would advance on appeal and addressed those errors in two separate opinions. Thus, this Court would have been able to perform meaningful appellate review of the issues raised by Mrs. Copeland and addressed by the trial court in this appeal. We further note that, even if Mrs. Copeland had not waived all of her issues by failing to file a Rule 1925(b) statement, she would not have prevailed on the merits of her appeal. A remand to permit Mrs. Copeland to file a Rule 1925(b) statement nunc pro tunc would, therefore, result in an unwarranted and inefficient use of judicial resources. In any event, constrained by Hill, we have no choice but to quash Mrs. Copeland's appeal for failure to file a Rule 1925(b) statement as ordered by the trial court on May 26, 2011.
Rule 1925(b) does not mandate that the trial court enter an order directing an appellant to file a concise statement of errors; rather, Rule 1925(b) is discretionary and permits the trial judge to direct such filing if the judge "desires clarification of the errors complained of on appeal." Pa. R.A.P. 1925(b). Where trial court judges do not need a Rule 1925(b) statement, providing an opinion without issuing an order requiring the appellant to file a Rule 1925(b) statement would decrease waiver of issues arising from the Rule 1925(b) statement requirements.
It was well within the province of the trial court to reject, as not credible, Mrs. Copeland's uncontradicted testimony that she did not know about the drug activity occurring on the Property and that she had no way to keep her Husband out of the Property. See Commonwealth v. $23,320.00 U.S. Currency, 733 A.2d 693, 696 n.1 (Pa. Cmwlth. 1999) ("[I]it is axiomatic that as factfinder the trial court is empowered to decide what evidence is credible and to draw any reasonable inferences from all of the evidence."). The trial court found that, "Mrs. Copeland failed to meet her burden when she presented no evidence of her alleged ignorance being 'reasonable under the circumstances presented.'" (Trial Ct. Supp. Op. at 5.) The trial court explained that "Mrs. Copeland testified that she had been living in the third floor apartment for the past four years, yet she provided no explanation of how her ignorance of the cocaine and drug paraphernalia found in the apartment, or the repeated sales in the Bar, might be considered 'reasonable.'" (Trial Ct. Supp. Op. at 5.) Therefore, the trial court could find that her claims of innocence were not credible, which support granting the Commonwealth's Petition.
Our Supreme Court has held that, when an appellant is requesting an extension from the trial court to file a Rule 1925(b) statement, the phrase "upon application of the appellant and for good cause shown," as used in Rule 1925(b)(2), requires that an appellant must file a written application. Commonwealth v. Gravely, 601 Pa. 68, 82, 970 A.2d 1137, 1145 (2009); see Pa. R.A.P. 123 (setting forth the requirements for applications for relief). This same phrase is found in Rule 1925(c)(2). It is questionable whether a written request in a brief would comply with the written application requirement in Rule 1925(c)(2). --------
/s/ _________
RENÉE COHN JUBELIRER, Judge Judge McGinley concurs in the result only. ORDER
NOW, November 14, 2012, the appeal of Glenda J. Copeland from the April 27, 2011 Order of the Court of Common Pleas of Philadelphia County in the above-captioned matter is QUASHED.
/s/ _________
RENÉE COHN JUBELIRER, Judge
Commonwealth v. Gravely, 601 Pa. 68, 74, 970 A.2d 1137, 1140 (2009).