Opinion
No. 1161 C.D. 2013
01-06-2014
Commonwealth of Pennsylvania v. Keith Howard, Appellant
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Keith Howard (Howard) appeals, pro se, from the April 10, 2008 order of the Court of Common Pleas of Allegheny County (trial court) denying his motion for return of $1,215.00 in currency that was confiscated from his person when he was arrested as a suspect in a double homicide. Howard filed his motion following his two convictions of first-degree murder and sentence to mandatory terms of life imprisonment.
Motions for return of property are governed by Pa.R.Crim.P. 588, which provides:
(A) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he or she is entitled to lawful possession thereof. Such motion shall be filed in the court of common pleas for the judicial district in which the property was seized.
(B) The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.
On April 26, 2006, the Superior Court affirmed Howard's judgment of sentence and our Supreme Court subsequently denied allowance of appeal. Commonwealth v. Howard, 902 A.2d 977 (Pa. Super. 2006) (table), appeal denied 588 Pa. 777, 906 A.2d 539. Howard then filed a petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§9541--46, which was denied by the trial court on January 10, 2012. The Superior Court affirmed the denial of PCRA relief on September 14, 2012. Commonwealth v. Howard, 60 A.3d 852 (Pa. Super. 2012) (table).
This case returns to us following our unreported decision in Commonwealth v. Howard, (Pa. Cmwlth., No. 856 C.D. 2007, filed August 21, 2007) ("Howard I"). In Howard I, the trial court disposed of Howard's motion for return of property without convening an evidentiary hearing. The trial court accepted Howard's allegation of lawful ownership in his motion as satisfying his initial burden of proof but determined that the criminal trial record supported a finding that the money was stolen from one of the victims and, therefore, was derivative contraband. On appeal, this Court concluded that the trial court abused its discretion in denying Howard's motion without first holding an evidentiary hearing, and we remanded for a formal hearing. In doing so, we noted that the trial court "may ultimately once again find the trial evidence to be more credible and persuasive than that which Howard now seeks to present." Id., slip op. at 5.
During the remand hearing, Howard introduced documents, without objection by the Commonwealth, reflecting that he received unemployment checks. Howard argued that the confiscated money was saved up from his unemployment funds and was lawfully his. Howard further argued that the money could not be forfeited because he was not charged with robbery or possession of a controlled substance. (Notes of Testimony (N.T.) at 3-5, 9.)
The Commonwealth introduced the criminal trial transcript into evidence. In arguing that the money should be forfeited, the Commonwealth, among other things, referred to and reiterated the closing statements of the prosecutor in Howard's criminal trial. Id. at 5-8.
For purposes of this appeal, the relevant facts from Howard's criminal trial are as follows. Howard lived with and did chores for Jamar Hooper (Hooper), a drug manufacturer and dealer, and Hooper paid him with crack-cocaine. When Howard began neglecting his duties, Hooper became upset and limited Howard's supply of crack-cocaine. Howard had previously threatened to kill Hooper in order to take over his drug business. (Trial court op. at 4-5; N.T. at 231-39.)
On January 14, 2004, the police discovered Hooper's deceased body on his bed in a supine position, with his pockets turned inside out and gunshot wounds to his face and chest. The police also located another deceased victim, who had been shot in the head and face. After searching the house, the police did not find any drugs or money, even though Hooper was seen holding a satchel containing an unidentified amount of money earlier in the day. The police arrested Howard on the evening of January 14, 2004, after a traffic stop, and seized from his person approximately 16 grams of crack-cocaine, a 9-millimeter handgun, and $1,215.00 in various denominations. When asked about the firearm and whether it had been used to kill the victims, Howard admitted that it was his gun and confessed that he had killed Hooper and the other victim. Ballistics evidence confirmed that the casings and bullet projectiles recovered from the scene and one of the victims were fired from the 9-millimeter handgun. (Trial court op. at 3-4; N.T. at 129-30, 213-14.)
By order dated April 10, 2008, the trial court denied Howard's motion. The trial court concluded that "the record demonstrates by a preponderance of the evidence that [Howard] broke into [Hooper's] room to steal money and drugs, both of which were found on him at the time of the arrest. It can, therefore, be inferred that the money was derivative contraband not subject to return." (Trial court op. at 5.)
After the trial court entered its April 10, 2008 order, Howard filed an appeal to the Superior Court. The trial court did not file an opinion or order directing Howard to file a Pa.R.A.P. 1925(b) statement, and for reasons that are unknown, the appeal remained in abeyance. Eventually, Howard filed a Rule 1925(b) statement and another appeal to the Superior Court, which then transferred the matter to this Court on May 20, 2013.
On appeal, Howard argues that the Commonwealth failed to establish a nexus between the money and the murders. Howard also asserts that the trial court erred in relying on statements made by the prosecutor during closing arguments to conclude that the Commonwealth met its burden of proof because closing arguments do not constitute evidence.
This Court's review of the trial court's decision on a motion for the return of property is limited to examining whether the trial court's findings of fact are supported by competent evidence and whether the trial court abused its discretion or committed legal error. Commonwealth v. Johnson, 931 A.2d 781, 783 n.2 (Pa. Cmwlth. 2007). The same scope of review applies to the review of a trial court's decision on a forfeiture petition. Commonwealth v. $6,425.00 Seized From Esquilin, 583 Pa. 544, 554, 880 A.2d 523, 529 (2005).
The party filing a motion for return of property bears the initial burden of establishing "entitlement to lawful possession" of the items. Commonwealth v. Crespo, 884 A.2d 960, 964 n.4 (Pa. Cmwlth. 2005). Once this burden is met, the Commonwealth bears the burden to prove, by a preponderance of the evidence, that the items are either "contraband per se" or "derivative contraband" and, therefore, should not be returned to the moving party. Id.
Derivative contraband is property that itself is legal but nonetheless constitutes the fruit of a criminal enterprise or is used to perpetrate an unlawful act. Commonwealth v. One 2001 Toyota Camry, 894 A.2d 207, 210 (Pa. Cmwlth. 2006) (en banc). However, property is not derivative contraband merely because it is owned or used by someone who has been engaged in criminal conduct. Rather, the Commonwealth must establish a specific nexus between the property and the alleged criminal activity. Commonwealth v. Howard, 552 Pa. 27, 33, 713 A.2d 89, 92 (1998); Commonwealth v. Durham, 9 A.3d 641, 645-46 (Pa. Super. 2010). In making the showing of a specific nexus, the Commonwealth is not required to produce evidence directly linking the property in question to the illegal activity. Commonwealth v. $32,950.00 United States Currency, 637 A.2d 697, 699 (Pa. Cmwlth. 1993).
Upon review, we conclude that the trial court did not err in determining that the Commonwealth established a specific nexus between the money and Howard's criminal conduct. From the evidence presented, it can reasonably be inferred that Howard took the money from Hooper after killing him.
Moreover, there is nothing in the record to indicate that the trial court relied upon the prosecutor's closing remarks as evidence. Instead, the Commonwealth introduced the transcripts from the criminal trial into evidence, and the trial court's opinion demonstrates that it relied upon this testimony to determine whether the Commonwealth met its burden of proof. To the extent that Howard claims that evidence from the criminal trial could not be considered, Howard did not object to the admission of the transcripts, and therefore he has failed to preserve the issue for appeal purposes. City of Erie v. Stelmack, 780 A.2d 824, 828 (Pa. Cmwlth. 2001). Additionally, this Court in Howard I strongly suggested, if not outright concluded, that the trial court could consider the transcripts as evidence on remand.
Next, Howard argues that the money could not be forfeited because he was not charged or convicted with robbery or some other crime sounding in theft. However, for property to be deemed forfeitable, neither a criminal prosecution nor a conviction is required. Commonwealth v. $6,425.00 Seized from Esquilin, 583 Pa. 544, 556, 634 A.2d 697, 699 (2005); Commonwealth v. 542 Ontario St., 989 A.2d 411, 417 (Pa. Cmwlth. 2010) (en banc) (stating that it "is not necessary . . . that a forfeiture be supported by an underlying criminal conviction.") (citation and quotation omitted). The rationale behind this rule is that forfeiture "is a civil consequence of violating a criminal statute" and, consequently, "property is forfeited not as a result of a criminal conviction but in a separate civil proceeding." Commonwealth v. Assorted Consumer Fireworks, 16 A.3d 554, 558 (Pa. Cmwlth. 2011) (emphasis in original).
Finally, Howard contends that the trial judge should have recused himself because he presided over the criminal trial. Without elaboration, Howard asserts that during the criminal trial, the trial judge expressed bias by denying two oral motions off the record. Contrary to Howard's contentions, it is well-settled that the mere fact that a trial judge participated in previous proceedings and/or issued adverse rulings is insufficient to establish the requisite bias needed for recusal. Commonwealth v. Miller, 541 Pa. 531, 553-54, 664 A.2d 1310, 1321 (1995) ("The mere fact that the trial judge participated in earlier pretrial stages in the proceedings is not alone sufficient grounds for recusal. . . . A mere adverse ruling, without more, does not demonstrate the bias required for a recusal to be granted.").
As a general rule, a motion for recusal is initially addressed to and ruled upon by the jurist whose impartiality is being challenged. Commonwealth v. White, 589 Pa. 642, 657, 910 A.2d 648, 657 (2006). The party requesting recusal has the burden to produce evidence establishing bias, prejudice, or interest. Reilly by Reilly v. Commonwealth, 507 Pa. 204, 222, 489 A.2d 1291, 1300 (1985). --------
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 6th day of January, 2014, the April 10, 2008 order of the Court of Common Pleas of Allegheny County is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge
Id. A motion filed under Pa.R.Crim.P. 588 is essentially the "mirror image" of a forfeiture action commenced by the Commonwealth under the act commonly known as the Controlled Substances Forfeiture Act, 42 Pa.C.S. §§6801-6802. In Re One 1988 Toyota Corolla, 675 A.2d 1290, 1295 (Pa. Cmwlth. 1996).