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                                                      PRINTER'S NO. 4300

THE GENERAL ASSEMBLY OF PENNSYLVANIA


HOUSE BILL

No. 2372 Session of 2008


        INTRODUCED BY LONGIETTI, BAKER, BEYER, BOYD, CAPPELLI, CASORIO,
           COHEN, DENLINGER, EACHUS, FLECK, GEIST, GIBBONS, GRUCELA,
           HARHAI, HENNESSEY, KORTZ, KOTIK, KULA, MANN, MELIO, MENSCH,
           R. MILLER, MOUL, MURT, PETRARCA, RAPP, READSHAW, ROCK,
           SANTONI, SAYLOR, SCAVELLO, SIPTROTH, K. SMITH, STABACK,
           STERN, SWANGER, J. TAYLOR AND YOUNGBLOOD, SEPTEMBER 12, 2008

        REFERRED TO COMMITTEE ON JUDICIARY, SEPTEMBER 12, 2008

                                     AN ACT

     1  Amending Titles 18 (Crimes and Offenses) and 42 (Judiciary and
     2     Judicial Procedure) of the Pennsylvania Consolidated
     3     Statutes, providing for penalties for the offense of
     4     participation in a criminal street gang and for the
     5     forfeiture of property associated with criminal street gang
     6     activity, for process and seizure and for the powers and
     7     duties of the Attorney General.

     8     The General Assembly finds and declares as follows:
     9         (1)  There exists a great need to address the growing
    10     crisis of criminal street gang presence in our communities.
    11         (2)  It is the right of every citizen to be secure and
    12     protected from fear, intimidation and physical harm caused by
    13     the activities of violent criminal street gangs.
    14         (3)  These activities, both individually and
    15     collectively, present a clear and present danger to public
    16     order and safety.
    17         (4)  An effective means of punishing and deterring the
    18     criminal activities of criminal street gangs is establishing


     1     an offense of participation in a criminal street gang and
     2     through forfeiture of the assets, profits, proceeds and
     3     instrumentalities acquired, accumulated or used by street
     4     gangs.
     5     The General Assembly of the Commonwealth of Pennsylvania
     6  hereby enacts as follows:
     7     Section 1.  Title 18 of the Pennsylvania Consolidated
     8  Statutes is amended by adding a section to read:
     9  § 911.1.  Criminal street gang member.
    10     (a)  General rule.--Any person who is a member of a criminal
    11  street gang and engages in criminal street gang activity commits
    12  an offense.
    13     (b)  Grading.--
    14         (1)  A person is guilty of a misdemeanor of the first
    15     degree when the person is found to have committed one or more
    16     criminal street gang activities while being a member of a
    17     criminal street gang.
    18         (2)  A person is guilty of a felony of the third degree
    19     if the person is found to be a member of a criminal street
    20     gang and is convicted of one or more criminal street gang
    21     activities within 1,000 feet of a public or private school or
    22     engages a person under 18 years of age in any criminal
    23     activity.
    24     (c)  Fund established.--The Criminal Street Gang Prevention
    25  Fund is hereby established as an account in the State Treasury.
    26  This fund shall be administered by the commission and shall be
    27  comprised of costs imposed and collected in accordance with the
    28  provisions of this section. All moneys in the fund and the
    29  interest accruing thereon are hereby appropriated, upon approval
    30  of the Governor, to the commission to carry out the provisions
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     1  of this section.
     2     (d)  Fine.--In addition to any other punishment imposed, the
     3  court shall order the defendant to pay a fine of not less than
     4  $500 nor more than $5,000, which shall be forwarded to the fund.
     5     (e)  Collection.--Costs imposed under this section shall be
     6  collected in accordance with local court rules by the clerk of
     7  courts in the county where the violation has occurred.
     8     (f)  Application.--All costs provided for in this section
     9  shall be in addition to and not in lieu of any fine authorized
    10  by law. Nothing in this section shall be construed to affect,
    11  suspend or diminish any other criminal sanction, penalty or
    12  property forfeiture permitted by law.
    13     (g)  Grants.--Notwithstanding any other provision of law, the
    14  commission shall, upon written application and subsequent
    15  approval, use moneys received under this section to annually
    16  award grant moneys deposited into the fund each fiscal year to
    17  local governments and nonprofit organizations to provide
    18  research-based approaches to assessment, prevention,
    19  intervention, training, education, public awareness campaigns
    20  and media literacy to reduce criminal gang activity in
    21  communities with evidence of gang violence.
    22     (h)  Administration.--The commission shall develop guidelines
    23  and procedures necessary to implement the grant program. The
    24  commission shall equitably distribute grant moneys to approved
    25  applicants. Each fiscal year, the commission shall make
    26  available grant moneys equaling, except for administrative funds
    27  as provided under this subsection, the balance of moneys
    28  deposited into the fund as of June 30 of the previous fiscal
    29  year. No more than 5% of total moneys deposited in the fund
    30  during a fiscal year may be used by the commission to administer
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     1  the provisions of this section.
     2     (i)  Other initiatives.--Funds disbursed under this section
     3  shall not supplant Federal, State or local funds that would have
     4  otherwise been made available for substance abuse prevention,
     5  education, support, treatment and outreach initiatives.
     6     (j)  Definitions.--As used in this section, the following
     7  words and phrases shall have the meanings given to them in this
     8  subsection:
     9     "Commission."  The Pennsylvania Commission on Crime and
    10  Delinquency."
    11     "Criminal street gang."  A formal or informal confederation,
    12  alliance, network, conspiracy, understanding or other similar
    13  conjoining of persons who operate individually or collectively
    14  as a group or subgroup, with or without an established
    15  hierarchy, that, through its membership obtained by pledge,
    16  oath, swearing, ritual, distinct membership markings, symbolism,
    17  common identifiers or other criteria that law enforcement
    18  personnel use to identify criminal street gangs, engages in
    19  criminal activity.
    20     "Criminal street gang activity."  The commission of,
    21  attempted commission of, conspiracy to commit or solicitation to
    22  commit an act of violence or an act to achieve illegal pecuniary
    23  gain committed as a matter of course or pattern by a juvenile or
    24  an adult who has been identified as a member of a criminal
    25  street gang, which act is prohibited as follows:
    26         (1)  Under this title:
    27             Section 903 (relating to criminal conspiracy)
    28             Section 907 (relating to possessing instruments of
    29         crime)
    30             Section 908 (relating to prohibited offensive
    20080H2372B4300                  - 4 -     

     1         weapons)
     2             Section 911 (relating to corrupt organizations)
     3             Section 2501 (relating to criminal homicide)
     4             Section 2502 (relating to murder)
     5             Section 2506 (relating to drug delivery resulting in
     6         death)
     7             Section 2701 (relating to simple assault)
     8             Section 2702 (relating to aggravated assault)
     9             Section 2705 (relating to recklessly endangering
    10         another person)
    11             Section 2706 (relating to terroristic threats)
    12             Section 2707 (relating to propulsion of missiles into
    13         an occupied vehicle or onto a roadway)
    14             Section 2707.1 (relating to discharge of a firearm
    15         into an occupied structure)
    16             Section 2709 (relating to harassment)
    17             Section 2901 (relating to kidnapping)
    18             Section 2903 (relating to false imprisonment)
    19             Section 2906 (relating to criminal coercion)
    20             Section 3121 (relating to rape)
    21             Section 3123 (relating to involuntary deviate sexual
    22         intercourse)
    23             Section 3124.1 (relating to sexual assault)
    24             Section 3301 (relating to arson and related offenses)
    25             Section 3304 (relating to criminal mischief)
    26             Section 3307 (relating to institutional vandalism)
    27             Section 3502 (relating to burglary)
    28             Section 3503 (relating to criminal trespass)
    29             Section 3701 (relating to robbery)
    30             Section 3702 (relating to robbery of motor vehicle)
    20080H2372B4300                  - 5 -     

     1             Section 3921 (relating to theft by unlawful taking or
     2         disposition)
     3             Section 3923 (relating to theft by extortion)
     4             Section 3925 (relating to receiving stolen property)
     5             Section 3928 (relating to unauthorized use of
     6         automobiles and other vehicles)
     7             Section 3934 (relating to theft from a motor vehicle)
     8             Section 4952 (relating to intimidation of witnesses
     9         or victims)
    10             Section 4953 (relating to retaliation against
    11         witness, victim or party)
    12             Section 6110.1 (relating to possession of firearm by
    13         minor)
    14             Section 6110.2 (relating to possession of firearm
    15         with altered manufacturer's number)
    16             Section 6111 (relating to sale or transfer of
    17         firearms)
    18             Section 6301 (relating to corruption of minors)
    19             Section 6302 (relating to sale or lease of weapons
    20         and explosives)
    21             Section 6319 (relating to solicitation of minors to
    22         traffic drugs)
    23             Section 7611 (relating to unlawful use of computer
    24         and other computer crimes).
    25         (2)  Under section 13 of the act of April 14, 1972
    26     (P.L.233, No.64), known as The Controlled Substance, Drug,
    27     Device and Cosmetic Act.
    28     "Criminal street gang member."  A person who:
    29         (1)  belongs to a criminal street gang;
    30         (2)  by self-proclamation asserts that the person is a
    20080H2372B4300                  - 6 -     

     1     member of a criminal street gang; or
     2         (3)  knowingly acts in furtherance of criminal street
     3     gang activities or acts as an accessory before or after the
     4     fact.
     5     "Fund."  The Criminal Street Gang Prevention Fund.
     6     Section 2.  Title 42 is amended by adding a section to read:
     7  § 6801.2.  Criminal street gang forfeiture.
     8     (a)  General rule.--The following shall be subject to
     9  forfeiture to the Commonwealth and no property right shall exist
    10  in them:
    11         (1)  Money, negotiable instruments, securities or other
    12     things of value furnished or intended to be furnished by any
    13     person to facilitate criminal street gang activity.
    14         (2)  Real property used or intended to be used to
    15     facilitate criminal street gang activity, including
    16     structures or other improvements thereon, and any right,
    17     title and interest in the whole or any lot or tract of land
    18     any appurtenances or improvements, which is used or intended
    19     to be used in any manner or part to commit or to facilitate
    20     the commission of criminal street gang activity and things
    21     growing on, affixed to and found in the land.
    22     (b)  Presumption.--
    23         (1)  No property shall be forfeited under this section,
    24     to the extent of the interest of an owner, by reason of any
    25     act or omission established by the owner to have been
    26     committed or omitted without the knowledge or consent of that
    27     owner. Such money and negotiable instruments found in
    28     proximity or relation to criminal street gang activity shall
    29     be rebuttably presumed to be proceeds derived from criminal
    30     street gang activity.
    20080H2372B4300                  - 7 -     

     1         (2)  No valid lien or encumbrance on real property shall
     2     be subject to forfeiture or impairment under this section. A
     3     lien which is fraudulent or intended to avoid forfeiture
     4     under this section shall be invalid.
     5         (3)  Any firearm, including, but not limited to, a rifle,
     6     shotgun, pistol, revolver, machine gun, zip gun or any type
     7     of prohibited offensive weapon as that term is defined under
     8     18 Pa.C.S. (relating to crimes and offenses), which is used
     9     or intended for use to facilitate criminal street gang
    10     activity and such operable firearm as is found to be in
    11     relation to criminal street gang activity shall be rebuttably
    12     presumed to be used or intended for use to facilitate a
    13     criminal street gang activity.
    14     (c)  Destruction of weapons.--A weapon forfeited under this
    15  section shall be immediately destroyed by the receiving law
    16  enforcement agency.
    17     (d)  Property subject to forfeiture.--In accordance with
    18  subsection (k), property subject to forfeiture under this
    19  section may be seized by the law enforcement authority upon
    20  process issued by any court of common pleas having jurisdiction
    21  over the property. Seizure without process may be made if:
    22         (1)  the seizure is incident to an arrest or a search
    23     under a search warrant or inspection under an administrative
    24     inspection warrant;
    25         (2)  the property subject to seizure has been the subject
    26     of a prior judgment in favor of the Commonwealth in a
    27     criminal injunction or forfeiture proceeding under this
    28     section;
    29         (3)  there is a probable cause to believe that the
    30     property is dangerous to public health or safety; or
    20080H2372B4300                  - 8 -     

     1         (4)  there is probable cause to believe that the property
     2     has been used or is intended to be used in criminal street
     3     gang activity.
     4     (e)  Seizure without process.--In the event seizure without
     5  process occurs, as provided under this section, proceedings for
     6  the issuance thereof shall be immediately initiated.
     7     (f)  Custody of property.--
     8         (1)  Property taken or detained under this section shall
     9     not be subject to replevin but is deemed to be in the custody
    10     of the law enforcement authority subject only to the orders
    11     and decrees of the court of common pleas having jurisdiction
    12     over the forfeiture proceedings and of the district attorney
    13     or the Attorney General.
    14         (2)  When property is seized under this section, the law
    15     enforcement authority shall place the property under seal and
    16     either:
    17             (i)  remove the property to a place designated by it;
    18         or
    19             (ii)  require that the district attorney or Attorney
    20         General take custody of the property and remove it to an
    21         appropriate location for disposition in accordance with
    22         law.
    23     (g)  Use of property held in custody.--
    24         (1)  Whenever property is forfeited under this section,
    25     the property shall be transferred to the custody of the
    26     district attorney if the law enforcement authority seizing
    27     the property has local or county jurisdiction or to the
    28     Attorney General if the law enforcement authority seizing the
    29     property has Statewide jurisdiction.
    30         (2)  The district attorney or the Attorney General, where
    20080H2372B4300                  - 9 -     

     1     appropriate, may:
     2             (i)  retain the property for official use; or
     3             (ii)  sell any forfeited property which is not
     4         required to be destroyed by law and which is not harmful
     5         to the public. The proceeds from any such sale shall be
     6         used to pay all proper expenses of the proceedings for
     7         forfeiture and sale, including expenses of seizure,
     8         maintenance of custody, advertising and court costs. The
     9         balance of the proceeds shall be dealt with in accordance
    10         with subsections (h) and (i).
    11     (h)  Use of cash or proceeds of property.--
    12         (1)  Cash or proceeds of forfeited property transferred
    13     to the custody of the district attorney pursuant to
    14     subsection (f) shall be placed in the operating fund of the
    15     county in which the district attorney is elected.
    16         (2)  The appropriate county authority shall immediately
    17     release from the operating fund, without restriction, a like
    18     amount for the use of the district attorney in the
    19     enforcement of the provisions of this section.
    20         (3)  The entity having budgetary control shall not
    21     anticipate future forfeitures or proceeds from the operating
    22     fund in adoption and approval of the budget for the district
    23     attorney.
    24     (i)  Distribution of property among law enforcement
    25  authorities.--If both municipal and State law enforcement
    26  authorities were substantially involved in effecting a seizure
    27  under this section, the court having jurisdiction over the
    28  forfeiture proceedings shall equitably distribute the property
    29  between the district attorney and the Attorney General.
    30     (j)  Authorization to utilize property.--The district
    20080H2372B4300                 - 10 -     

     1  attorney and the Attorney General shall utilize forfeited
     2  property or proceeds thereof for the purpose of enforcing the
     3  provisions of this section. In appropriate cases, the district
     4  attorney and the Attorney General shall designate proceeds from
     5  forfeited property to be utilized by community-based drug and
     6  crime-fighting programs and for relocation and protection of
     7  witnesses in criminal cases.
     8     (k)  Annual audit of forfeited property.--
     9         (1)  Each county in this Commonwealth shall provide,
    10     through the controller, board of auditors or other
    11     appropriate auditor and the district attorney, an annual
    12     audit of all forfeited property and proceeds obtained under
    13     this section. The audit shall not be made public but shall be
    14     submitted to the Office of Attorney General.
    15         (2)  Each county shall report all forfeited property and
    16     proceeds obtained under this section and the disposition
    17     thereof to the Attorney General by September 30 of each year.
    18     (l)  Annual report and confidential information regarding
    19  property.--
    20         (1)  The Attorney General shall annually submit a report
    21     to the Appropriations and Judiciary Committees of the Senate
    22     and to the Appropriations and Judiciary Committees of the
    23     House of Representatives, specifying the forfeited property
    24     or proceeds thereof obtained under this section. The report
    25     shall give an accounting of all proceeds derived from the
    26     sale of forfeited property and the use made of unsold
    27     forfeited property.
    28         (2)  The Attorney General shall adopt procedures and
    29     guidelines governing the release of information by the
    30     Attorney General to protect the confidentiality of forfeited
    20080H2372B4300                 - 11 -     

     1     property or proceeds used in ongoing criminal street gang
     2     activity.
     3     (m)  Proceeds and appropriations.--The proceeds or future
     4  proceeds from forfeited property under this section shall be in
     5  addition to any appropriation made to the Office of Attorney
     6  General.
     7     (n)  Applicability of forfeiture.--Property owned by a
     8  defendant who is convicted under 18 Pa.C.S. § 911.1 (relating to
     9  criminal street gang member) shall be subject to forfeiture upon
    10  a conviction which occurs on or after the effective date of this
    11  section.
    12     (o)  Definitions.--As used in this section, the following
    13  words and phrases shall have the meanings given to them in this
    14  subsection:
    15     "Criminal street gang."  A formal or informal confederation,
    16  alliance, network, conspiracy, understanding or other similar
    17  conjoining of persons who operate individually or collectively
    18  as a group or subgroup, with or without an established
    19  hierarchy, that through its membership obtained by pledge, oath,
    20  swearing, ritual, distinct membership markings, symbolism,
    21  common identifiers or other criteria that law enforcement
    22  personnel use to identify criminal street gangs, engages in
    23  criminal activity.
    24     "Criminal street gang activity."  The commission of,
    25  attempted commission of, conspiracy to commit or solicitation to
    26  commit an act of violence or an act to achieve illegal pecuniary
    27  gain committed as a matter of course or pattern by a juvenile or
    28  an adult who has been a member of a criminal street gang, which
    29  act is prohibited as follows:
    30         (1)  Under 18 Pa.C.S. (relating to crimes and offenses):
    20080H2372B4300                 - 12 -     

     1             Section 903 (relating to criminal conspiracy)
     2             Section 907 (relating to possessing instruments of
     3         crime)
     4             Section 908 (relating to prohibited offensive
     5         weapons)
     6             Section 911 (relating to corrupt organizations)
     7             Section 2501 (relating to criminal homicide)
     8             Section 2502 (relating to murder)
     9             Section 2506 (relating to drug delivery resulting in
    10         death)
    11             Section 2701 (relating to simple assault)
    12             Section 2702 (relating to aggravated assault)
    13             Section 2705 (relating to recklessly endangering
    14         another person)
    15             Section 2706 (relating to terroristic threats)
    16             Section 2707 (relating to propulsion of missiles into
    17         an occupied vehicle or onto a roadway)
    18             Section 2707.1 (relating to discharge of a firearm
    19         into an occupied structure)
    20             Section 2709 (relating to harassment)
    21             Section 2901 (relating to kidnapping)
    22             Section 2903 (relating to false imprisonment)
    23             Section 2906 (relating to criminal coercion)
    24             Section 3121 (relating to rape)
    25             Section 3123 (relating to involuntary deviate sexual
    26         intercourse)
    27             Section 3124.1 (relating to sexual assualt)
    28             Section 3301 (relating to arson and related offenses)
    29             Section 3304 (relating to criminal mischief)
    30             Section 3307 (relating to institutional vandalism)
    20080H2372B4300                 - 13 -     

     1             Section 3502 (relating to burglary)
     2             Section 3503 (relating to criminal trespass)
     3             Section 3701 (relating to robbery)
     4             Section 3702 (relating to robbery of motor vehicle)
     5             Section 3921 (relating to theft by unlawful taking or
     6         disposition)
     7             Section 3923 (relating to theft by extortion)
     8             Section 3925 (relating to receiving stolen property)
     9             Section 3928 (relating to unauthorized use of
    10         automobiles and other vehicles)
    11             Section 3934 (relating to theft from a motor vehicle)
    12             Section 4952 (relating to intimidation of witnesses
    13         or victims)
    14             Section 4953 (relating to retaliation against
    15         witness, victim or party)
    16             Section 6110.1 (relating to possession of firearm by
    17         minor)
    18             Section 6110.2 (relating to possession of firearm
    19         with altered manufacturer's number)
    20             Section 6111 (relating to sale or transfer of
    21         firearms)
    22             Section 6301 (relating to corruption of minors)
    23             Section 6302 (relating to sale or lease of weapons
    24         and explosives)
    25             Section 6319 (relating to solicitation of minors to
    26         traffic drugs)
    27             Section 7611 (relating to unlawful use of computer
    28         and other computer crimes).
    29         (2)  Under section 13 of the act of April 14, 1972
    30     (P.L.233, No.64), known as The Controlled Substance, Drug,
    20080H2372B4300                 - 14 -     

     1     Device and Cosmetic Act.
     2     "Criminal street gang member."  A person who:
     3         (1)  belongs to a criminal street gang;
     4         (2)  by self-proclamation asserts that the person is a
     5     member of a criminal street gang; or
     6         (3)  knowingly acts in furtherance of criminal street
     7     gang activities or acts as an accessory before or after the
     8     fact.
     9     Section 3.  This act shall take effect in 60 days.














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