                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania                   :
                                               :
                      v.                       :
                                               :
The Property Located at 2504 U.S.              :
Highway 522 North, Lewistown,                  :
Mifflin County, Pennsylvania; and              :
$140.00 in United States Currency              :
                                               :    No. 1686 C.D. 2017
Appeal of: Scott A. Shreffler                  :    Submitted: August 10, 2018


BEFORE:       HONORABLE ANNE E. COVEY, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                         FILED: October 23, 2018

              Scott A. Shreffler (Shreffler) appeals from the Mifflin County Common
Pleas Court’s (trial court) June 19, 2017 order granting the Commonwealth of
Pennsylvania’s (Commonwealth) Petition for Forfeiture and Condemnation
(Forfeiture Petition).      Essentially, Shreffler presents two issues for this Court’s
review: (1) whether the trial court erred by denying Shreffler’s innocent owner
defense;1 and (2) whether remand is necessary to establish a record of factors for the
instrumentality analysis and the revised proportionality assessment established in
Commonwealth v. 1997 Chevrolet & Contents Seized from Young (1997 Chevrolet),
160 A.3d 153 (Pa. 2017).2 After review, we vacate and remand.




       1
       Shreffler argued the innocent owner defense on behalf of his father.
       2
       Shreffler presented the above-stated issues as three separate questions. See Shreffler Br. at
5. However, because his first two issues pertain to 1997 Chevrolet, this Court has combined them.
                                           Background
               Shreffler engaged in the sale of drugs at his residence on numerous
occasions in violation of The Controlled Substance, Drug, Device and Cosmetic Act
(Drug Act).3 On March 21, 2016, a confidential informant bought cocaine from
Shreffler at his residence located at 2504 U.S. Highway 522 North, Lewistown,
Mifflin County, Pennsylvania (Property).               On March 25, 2016, a confidential
informant bought heroin from Shreffler at the Property, and on March 28, 2016, a
confidential informant bought Buprenorphine from Shreffler at the Property.
Thereafter, based on these sales, Shreffler was charged with violation of the Drug Act
and, on March 21, 2017 after a jury trial, he was found guilty on all three charges.
               On July 27, 2016, the Commonwealth filed the Forfeiture Petition with
the trial court for the Property. Shreffler filed his Stake of Title in Possession or
Property and Objections to Forfeiture and Condemnation on August 26, 2016. The
trial court held a hearing on May 25, 2017. On June 19, 2017, the trial court granted
the Forfeiture Petition. On July 14, 2017, Shreffler filed a Notice of Appeal (Appeal)
with the Pennsylvania Superior Court which was rejected for lack of in forma
pauperis (IFP) status. On July 18, 2017, Shreffler filed a Petition for Return of
Property, which the trial court denied on July 20, 2017. On August 7, 2017, the trial
court granted Shreffler IFP status to file an appeal. Shreffler refiled his Appeal with
the Pennsylvania Superior Court on August 9, 2017. By October 5, 2017 order, the
Pennsylvania Superior Court granted Shreffler’s motion to transfer the Appeal to this
Court.4




       3
        Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101 – 780-144.
       4
         “Our review of a forfeiture proceeding is limited to [determining] whether substantial
evidence supports the trial court’s findings of fact and whether the trial court abused its discretion
or committed an error of law.” Commonwealth v. Burke, 49 A.3d 542, 545 n.2 (Pa. Cmwlth. 2012).
                                                  2
                                         Discussion

              Shreffler argues that the trial court erred by denying his innocent owner
defense. Specifically, Shreffler contends that his mother wrote the check to purchase
the Property. Although the deed was titled to Shreffler, Shreffler alleges that he
signed a contract which stated that if he defaulted on his payments to repay his
mother, ownership of the Property would divert to his parents (Contract). Shreffler
asserts that, because he defaulted on his payments before the Commonwealth filed
the Forfeiture Petition, his father owns the Property.5 This Court has explained:

              In determining what constitutes ‘ownership’, we first
              consider elements inherent in its definition. Black’s Law
              Dictionary 997 (5th ed. 1979) defines ownership as a
              ‘[c]ollection of rights to use and enjoy property . . . [t]he
              right of one or more persons to possess and use a thing
              to the exclusion of others. . . .’ Similarly, ‘owner’ is
              defined as ‘[h]e who has dominion of a thing . . . which
              he has a right to enjoy and do with as he pleases. . . .’
              Black’s at 996.
              There are no Pennsylvania cases defining ownership in the
              context of [what was commonly referred to as the
              Controlled Substances Forfeiture Act (Former Forfeiture
              Act)6], nor is ‘ownership’ or ‘owner’ defined in the [Former
              Forfeiture] Act. However, the [Former Forfeiture] Act
              [was] patterned after its federal counterpart, the
              Comprehensive Drug Abuse Prevention and Control Act of
              1970, 21 U.S.C. § 881(a)(4). Hence, in determining what
              constitutes ownership for purposes of raising an innocent
              owner defense we look for guidance as is afforded by
              federal cases construing that statute.

Commonwealth v. One 1988 Suzuki Samurai, 589 A.2d 770, 772 (Pa. Cmwlth. 1991)
(emphasis added). “[O]ur review of federal cases reveals that an owner must have a

       5
         Shreffler’s mother is now deceased.
       6
         42 Pa.C.S. §§ 6801-6802. The former Forfeiture Act was repealed effective July 1, 2017,
and replaced by 42 Pa.C.S. §§ 5801-5808.


                                               3
possessory interest in the property with attendant characteristics of dominion
and control.” Id. at 773 (emphasis added); see also Strand v. Chester Police Dep’t,
687 A.2d 872, 876-77 (Pa. Cmwlth. 1997) (“[H]olding title to an automobile does
not, in and of itself, prove actual legal ownership for the purposes of the Forfeiture
Act[;]” “[f]or true ownership to exist, one must exercise ‘dominion and control’ over
the vehicle.”). Consequently, even if Shreffler’s default payment diverted ownership
of the Property to Shreffler’s father, there is no record evidence that he took
possession of said Property.              Rather, Shreffler continued to have “a possessory
interest in the [P]roperty with attendant characteristics of dominion and control.”
One 1988 Suzuki Samurai, 589 A.2d at 773.
                   Assuming arguendo, the trial court believed that Shreffler was not the
Property’s owner,7 in order to prevail on an innocent owner defense, Shreffler had to
prove:

                   (1) That [his father] is the owner of the [P]roperty or the
                   holder of a chattel mortgage or contract of conditional sale
                   thereon.
                   (2) That [his father] lawfully acquired the [P]roperty.
                   (3) That it was not unlawfully used or possessed by
                   [Shreffler]. In the event that it shall appear that the
                   [P]roperty was unlawfully used or possessed by him, then
                   [his father] 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.

One 1988 Suzuki Samurai, 589 A.2d at 772 (emphasis added) (quoting Section
6802(j)(3) of the Forfeiture Act, 42 Pa.C.S. § 6802(j)). Here, Shreffler’s father did
not appear at the hearing, thus, there was no evidence presented to show that
Shreffler’s unlawful use of the Property was without his father’s knowledge or


         7
             To the contrary, the trial court expressly concluded that Shreffler owned the Property.
                                                      4
consent. Because the only evidence presented to support Shreffler’s innocent owner
defense was Shreffler’s testimony that the alleged Contract exists, the trial court
properly denied Shreffler’s innocent owner defense.
              Shreffler further contends that a remand is necessary to create a record
of factors for the instrumentality analysis and the revised proportionality assessment
established by the 1997 Chevrolet Court.
              Initially, the Pennsylvania Supreme Court, in 1997 Chevrolet held:

              [F]or purposes of an Excessive Fines Clause[8] challenge to
              a civil in rem forfeiture, a court must first assess whether
              the property sought to be forfeited is an instrumentality of
              the underlying offense. If the property is not found to be an
              instrumentality of the criminal conduct, the inquiry is
              dispositive and ends, and the forfeiture is unconstitutional.
              If the property is an instrumentality, the inquiry continues to
              the proportionality prong and an assessment of whether the
              value of the property sought to be forfeited is grossly
              disproportional to the gravity of the underlying offense. If
              it is grossly disproportional, the forfeiture is
              unconstitutional.

Id. at 191. With respect to the instrumentality and the proportionality assessment, the
1997 Chevrolet Court declared:

              In making the instrumentality determination, a court should
              consider, inter alia:
                 (1) whether the property was uniquely important to the
                 success of the illegal activity;
                 (2) whether the use of the property was deliberate and
                 planned or was merely incidental and fortuitous to the
                 illegal enterprise;

          8
             The Eighth Amendment to the United States Constitution provides: “Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
U.S. Const. amend. VIII. “The Eighth Amendment, and, specifically, the Excessive Fines Clause, is
made applicable to the states through the Fourteenth Amendment to the United States
Constitution.” 1997 Chevrolet, 160 A.3d at 162 n.7.


                                               5
  (3) whether the illegal use of the property was an isolated
  event or repeated;
  (4) whether the purpose of acquiring, maintaining or
  using the property was to carry out the offense;
  (5) whether the illegal use of the property was extensive
  spatially and/or temporally; and
  (6) whether the property is divisible with respect to the
  subject of forfeiture, allowing forfeiture of only that
  discrete property which has a significant relationship to
  the underlying offense.
The factors, among others, to be considered in assessing the
value of the property are:
  (1) the fair market value of the property;
  (2) the subjective value of the property taking into
  account whether the property is a family residence or if
  the property is essential to the owner’s livelihood;
  (3) the harm forfeiture would bring to the owner or
  innocent third parties; and
  (4) whether the forfeiture would deprive the property
  owner of his or her livelihood.
The factors to be considered in gauging the gravity of the
offense include:
  (1) the nature of the underlying offense;
  (2) the relation of the violation of the offense to any other
  illegal activity and whether the offender fit into the class
  of persons for whom the offense was designed should be
  considered;
  (3) the maximum authorized penalty as compared to the
  actual penalty imposed upon the criminal offender;
  (4) the regularity of the criminal conduct—whether the
  illegal acts were isolated or frequent, constituting a
  pattern of misbehavior;



                              6
                 (5) the actual harm resulting from the crime charged,
                 beyond a generalized harm to society; and
                 (6) the culpability of the property owner.
Id. at 191-92.
             In the instant case, the trial court opined:
             [Shreffler] sold drugs at his residence on numerous
             occasions in violation of the [Drug Act].                The
             Commonwealth provided that a confidential informant
             bought cocaine from [Shreffler] on March 21, 2016, heroin
             from [Shreffler] on March 25, 2016 and Buprenorphine
             from [Shreffler] on March 28, 2016. All controlled buys
             occurred at [Shreffler’s] residence. [Shreffler] was charged
             with these deliveries in criminal actions CP-44-CR-250-
             2016 and CP-44-CR-247-2016 and found guilty on all three
             charges after jury trial held March 21, 2017. In comparing
             the value of the residence to the gravity of [Shreffler’s]
             offense, the Court finds the value of the forfeiture is not
             grossly disproportional to the gravity of [Shreffler’s]
             multiple offenses.
Trial Court Op. at 3. The Commonwealth argues:
             At the forfeiture hearing[,] the Commonwealth presented
             evidence of the value of the [P]roperty forfeited in the form
             [of] a deed indicating that [] Shreffler purchased the house
             for $21,501. Transcript of Proceedings of: Forfeiture
             Hearing, May 25, 2017, Exhibit Commonwealth 4. We can
             safely conclude that the trial court was aware that the
             permissible fines for delivery of heroin, a Schedule II
             controlled substance, go up to $250,000. [Section
             13(40)(f)(1) of the Drug Act,] 35 P.S. [§] 780-113(40)(f)(1).
             As such, the trial court’s conclusion that the value of the
             forfeiture is not grossly disproportional to the gravity of
             [Shreffler’s] multiple offenses is supported by the record . .
             ..

Commonwealth Br. at 9.
             However, the 1997 Chevrolet Court rejected a similar argument.
Specifically, the Pennsylvania Supreme Court held:



                                            7
             In this case, the trial court . . . first compared the maximum
             penalty allowable for possession with intent to distribute,
             [owner’s son’s] offense, as well as other maximum
             penalties for crimes which [owner’s son] could have been
             convicted, with the fair market value of the property. The
             court further opined that, for several years, [owner’s son]
             had sold drugs from the property and that his behavior put
             his neighbors, and police officers investigating and serving
             search warrants, ‘in harm’s way.’ Trial Court Opinion,
             4/3/2013, at 14. Thus, the court concluded, based upon
             these considerations which we now find to be flawed,
             that the forfeited property was not grossly disproportionate
             to the gravity of the offense. As the trial court did not have
             the benefit of our explication of the proper proportionality
             assessment, we remand the matter to the Commonwealth
             Court, for remand to the trial court, for reconsideration of
             [the a]ppellee’s Excessive Fines Clause challenge in light of
             our opinion.

1997 Chevrolet, 160 A.3d at 192 (emphasis added; citations omitted). The trial court
here relied on the same flawed considerations. Because 1997 Chevrolet was filed on
the day the trial court heard and decided the instant matter, the trial court did not have
the benefit of our Supreme Court’s clarification of the instrumentality and proper
proportionality assessment.      Accordingly, we remand to the trial court for
reconsideration of Shreffler’s Excessive Fines Clause challenge using the
instrumentality and proportionality assessment established in 1997 Chevrolet.
                For all of the above reasons, the trial court’s order is vacated, and the
matter is remanded to the trial court for further proceedings consistent with this
Opinion.
                                          __________________________
                                          ANNE E. COVEY, Judge




                                            8
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania                :
                                            :
                    v.                      :
                                            :
The Property Located at 2504 U.S.           :
Highway 522 North, Lewistown,               :
Mifflin County, Pennsylvania; and           :
$140.00 in United States Currency           :
                                            :   No. 1686 C.D. 2017
Appeal of: Scott A. Shreffler               :


                                       ORDER


             AND NOW, this 23rd day of October, 2018, the Mifflin County Common
Pleas Court’s (trial court) June 19, 2017 order is vacated, and the matter is remanded
to the trial court for further proceedings consistent with this Opinion.
             Jurisdiction relinquished.


                                          ___________________________
                                          ANNE E. COVEY, Judge
