J-S03038-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: MARK GREEN

APPEAL OF: MARK GREEN

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 784 EDA 2022

Appeal from the Order Entered December 15, 2021

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-MD-0002372-2021

BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED MARCH 10, 2023

Mark Green (“Green”) appeals pro se from the order denying his petition 

for the return of property.

1

 We vacate and remand for further proceedings 

consistent with this memorandum. 

The parties and the trial court are familiar with the factual background 

of this appeal, and we briefly summarize the procedural history relevant to this 

appeal. Green received notice from the Pennsylvania State Police in 

Philadelphia that on May 13, 2020, troopers seized a 2017 Dodge Ram pickup 

truck (“the subject truck”) for further investigation. In 2021, the 

Commonwealth charged Green in Chester County with offenses related to 

identity theft, the fraudulent purchases of a vehicle, and using stolen parts on 

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1 The Superior Court or the Commonwealth Court may consider appeals 

involving a motion for the return of property filed under Pa.R.Crim.P. 588. 

See Commonwealth v. Durham, 9 A.3d 641, 642 n.1 (Pa. Super. 2010); 

see also In re One 1988 Toyota Corolla, 675 A.2d 1290, 1296 (Pa. 

Cmwlth. 1996).
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the subject truck (“the Chester County case”). See Trial Court Opinion, 

6/14/22, at 2-3 & n.3 (citing the Chester County case at CP-15-CR-0003111-

2021); see also Exhibit to Green’s Motion for Return of Property, Preliminary 

Hearing Transcript, at 16-18. 

In August 2021, Green filed a pro se motion for return of the subject 

truck in the Court of Common Pleas of Philadelphia. It is unclear whether the 

Commonwealth filed an answer to the motion. The trial court held a hearing 

at which the Commonwealth, represented by the Office of Attorney General,

argued that Chester County was the proper venue for the motion due to the 

pending Chester County case. See N.T., 12/15/21, at 3-4. Green asserted 

that the Chester County case only involved the fraudulent purchase of a 

vehicle and that the subject truck was not related to that case. See id. at 7. 

Referring to a copy of a preliminary hearing transcript that he attached to his 

motion, Green argued there was no evidence that any stolen parts were on 

the subject truck. See id. The Commonwealth briefly responded that the 

hood of the subject truck came from a stolen vehicle. See id. at 8-9. At the 

conclusion of the hearing, the trial court denied Green’s motion on December 

15, 2021, due to improper venue and did not make further findings of fact.2 

See id. at 10-11. Green timely filed a notice of appeal. The trial court ordered 

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2 The certified record does not contain a written order denying the motion; 

however, the appeal inventory docket confirms that the trial court entered an 

order determining that venue did not lie in Philadelphia because the charged 

crimes originated in Chester County, and denied the motion with prejudice. 
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a Pa.R.A.P. 1925(b) statement, which Green filed.3 The trial court prepared a 

responsive Rule 1925(a) opinion. 

Green, in his pro se brief, presents the following issues for our review: 

A. Whether the trial [c]ourt erred in [sic] denied the [m]otion on 

the ground that it didn’t have jurisdiction. 

B. Whether the trial court erred when it failed to allow [Green] to 

speak without being cutoff [sic][.]

C. Whether the trial court erred when it failed to allow [Green] to 

present his evidence.

Green’s Brief at 5 (unnumbered). 

This Court reviews the trial court’s ruling on a motion for the return of 

property for an abuse of discretion. See Commonwealth v. Rodriguez, 172 

A.3d 1162, 1165 (Pa. Super. 2017). It is the province of the trial court to 

judge the credibility of the witnesses and weigh the testimony offered. See 

id. This Court will not act as a finder of fact, and our role is to determine 

whether there is sufficient evidence in the record to support the facts as found 

by the trial court. See id. Our review of questions of law, however, is de 

novo and plenary. See Commonwealth v. Allen, 107 A.3d 709, 714 (Pa. 

2014).

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3 On April 1, 2022, the trial court ordered Green to file a Rule 1925(b) 

statement by April 22, 2022. See Order, 4/1/22 (requiring that Green file 

his Rule 1925(b) statement within twenty-one days of the court’s order). 

Green’s statement, which the trial court received on April 25, 2022, therefore 

was facially untimely. However, neither the appeal inventory docket nor the

public docket in this case contain the notation of service required by

Pa.R.Crim.P. 114. Because we are unable to confirm the service date of the 

Rule 1925 order, we will not find Green’s Rule 1925(b) statement untimely. 

See Commonwealth v. Chester, 163 A.3d 470, 472 (Pa. Super. 2017). 
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Pennsylvania Rule of Criminal Procedure 588 states, in relevant part:

(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.

Pa.R.Crim.P. 588(A)-(B) (emphasis added). 

A person seeking the return of property must initially establish, by a 

preponderance of the evidence, an entitlement to lawful possession of the 

property. See Commonwealth v. Mosley, 702 A.2d 857, 859 (Pa. 1997). 

If the person establishes such a right, the Commonwealth bears the burden 

of proving, by a preponderance of the evidence, that the defendant does not 

have a right to lawful possession of the property or that the property should 

not be returned because it is contraband per se or derivative contraband. See

Commonwealth v. Durham, 9 A.3d 641, 645 (Pa. Super. 2010); see also

Commonwealth v. Trainer, 287 A.3d 960, 964 (Pa. Cmwlth. 2022). To

establish that property is derivative contraband, the Commonwealth must 

show a specific nexus between the property and criminal activity. See

Commonwealth v. Howard, 713 A.2d 89, 92 (Pa. 1998).

Green’s arguments are muddled and lack any citation to legal authority, 

and we could find his claims waived on this basis. However, it is apparent to 
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this Court that Green argues that the trial court erred in holding that he 

improperly filed his motion in Philadelphia because of the pending charges 

against him in Chester County.

4

 We are constrained to agree with Green on 

this point. Rule 588 requires that a motion for the return of property be filed 

in the judicial district in which the property was seized. See Pa.R.Crim.P. 

588(A). There is no dispute here that the State Police troopers seized the 

subject truck in Philadelphia. See Motion for Return of Property, 8/18/21; 

N.T., 12/15/21, at 9; Commonwealth’s Brief at 3. Therefore, the trial court 

erred in holding that venue did not lie in Philadelphia. The record further 

demonstrates that the trial court expressly declined to make any findings of 

fact at the hearing due to its erroneous ruling on venue. See N.T., 12/15/21, 

at 10-11. Therefore, we are constrained to remand this matter for further 

findings of fact and conclusions of law consistent with the shifting burdens set 

forth in Mosley and Durham.

5

 The trial court may hold further evidentiary 

hearings as it deems necessary. 

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4 See Green’s Brief at 8 (unnumbered) (stating that his argument “begins with 

the trial court’s conclusion that it didn’t have jurisdiction and that . . . Chester 

County is the proper forum”). 

5 Our Supreme Court’s decision, In re Lackawanna County, 212 A.3d 1 (Pa. 

2019), which addressed the authority of a judge supervising a multi-county 

grand jury to address a county’s Rule 588 motion, does not alter our 

conclusion. That decision addressed unique concerns presented by the 

overlay of Rule 588 motions and investigations by grand juries, and our 

Supreme Court fashioned a procedure that an aggrieved party first “file the 

motion in the court of common pleas for the judicial district in which the 

property was seized, as Pa.R.Crim.P. 588(A) demands, and for the 

(Footnote Continued Next Page)
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Order vacated. Case remanded with instructions. Jurisdiction 

relinquished. 

 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/10/2023

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Commonwealth to then move to have the matter as filed on that docket 

presented to the supervising judge” of the grand jury. In re Lackawanna 

County, 212 A.3d at 17 (emphasis added). Nothing in that decision suggests 

that the plain language of Rule 588 does not control the question of venue or 

authorizes the denial of a motion for the return of property based on improper 

venue.