J-S33012-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ERNEST SEGURA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1240 MDA 2023

Appeal from the Order Entered August 7, 2023

In the Court of Common Pleas of Northumberland County Criminal 

Division at No(s): CP-49-CR-0001200-2018

BEFORE: OLSON, J., KUNSELMAN, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.: FILED: OCTOBER 8, 2024

Appellant, Ernest Segura, appeals from the August 7, 2023 order 

entered in the Court of Common Pleas of Northumberland County that denied 

his motion for the return of property.1 We affirm.

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1 Appellant’s notice of appeal purports to challenge his June 1, 2023 judgment 

of sentence, as well as the amended judgment of sentence entered on August 

7, 2023. An appeal properly lies from an amended judgment of sentence, 

which in this case is the August 7, 2023 judgment of sentence as made final 

by the order granting Appellant’s post-sentence motion to modify his 

sentence. See Commonwealth v. Wenzel, 248 A.3d 540, 545 (Pa. Super. 

2021).

A review of the procedural posture of the case sub judice, as detailed more 

fully infra, reveals, however, that Appellant is, in fact, challenging only the

portion of the August 7, 2023 order that denied his motion for the return of 

property. A challenge to an order denying, or granting, a motion for return of 

property is separate from, and distinct from, a challenge to a judgment of 

sentence. As such, the caption has been corrected to show that Appellant 

appeals the August 7, 2023 order that denied his motion for return of 

property.
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The record reveals that, on June 1, 2023, Appellant entered a plea of 

nolo contendere to one count of endangering the welfare of children, 18 

Pa.C.S.A. § 4304(a)(1).2 That same day, the trial court sentenced Appellant 

to five years’ probation and ordered that Appellant have no contact with 

“anyone under 18 years of age.”3 Sentencing Order, 6/2/23. On June 6, 

2023, Appellant filed a post-sentence motion, requesting a modification of 

sentence to permit Appellant to have contact with his grandchildren, who were 

under 18 years of age. Post-Sentence Motion, 6/6/23, at ¶8. In his 

post-sentence motion, Appellant also requested the return of property

(cellular telephones and a camera) pursuant to 234 Pa.Code § 588. Id. at 

¶¶3-5. The trial court entertained argument on Appellant’s post-sentence 

motion and his request for the return of property on August 7, 2023. That 

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2

Initially, Appellant was charged with statutory sexual assault – complainant 

less than 16 years of age and person is 11 or more years older, involuntary 

deviate sexual intercourse – complainant less than 16 years of age and person 

is 4 or more years older, unlawful contact with minor - sexual offenses, 

aggravated indecent assault – complainant less than 16 years of age and 

person 4 or more years older, sexual abuse of children – photographing, 

videotaping, depicting on computer, or filming sexual acts, endangering the 

welfare of children, corruption of minors, and indecent assault – complainant 

less than 16 years of age and person 4 or more years older. 18 Pa.C.S.A. 

§§ 3122.1(b), 3123(a)(7), 6318(a)(1), 3125(a)(8), 6312(b)(1), 4304, 

4301(a)(1)(i), and 3126(a)(8), respectively; see also Criminal Information, 

10/19/18. Appellant’s criminal charges stemmed from allegations that, on 

July 6, 2018, Appellant sexually assaulted a 14 year old female child and took 

sexually explicit photographs of her. See Affidavit of Probable Cause, 

10/3/18, at 1.

3 The trial court nolle prossed Appellant’s remaining criminal charges. 

Sentencing Order, 6/2/23.
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same day, the trial court denied Appellant’s request for the return of property 

and granted his post-sentence motion, modifying the conditions of Appellant’s 

probation to permit Appellant to “have contact with individuals under the age 

of 18 years old who are approved by Northumberland County Probation.” Trial 

Court Order, 8/7/23. This appeal followed.4

Appellant raises the following issue for our review:

Whether the trial court abused its discretion in denying the return 

of Appellant’s property when it ruled that the Commonwealth met 

its burden by establishing a specific nexus between the property 

and alleged criminal activity at the hearing for the motion for 

return of property[?]

Appellant’s Brief at 5 (extraneous capitalization and underlying omitted).

Appellant challenges the trial court’s August 7, 2023 order that denied

his request the return of property. Our review of such an order is “limited to 

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.”

5

 

In re Smith, 307 A.3d 140, 144 (Pa. Super. 2023). In applying this standard, 

we are mindful that “it is the province of the trial court to judge the credibility 

of the witnesses and weigh the testimony offered.” Commonwealth v. 

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4 Both Appellant and the trial court complied with Pennsylvania Rule of 

Appellate Procedure 1925.

5 This Court, as well as the Commonwealth Court, have jurisdiction to decide 

an appeal involving a motion for return of property filed pursuant to 

Pennsylvania Rule of Criminal Procedure 588. Commonwealth v. Caviness, 

243 A.3d 735, 738 (Pa. Super. 2020).
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Durham, 9 A.3d 641, 645 (Pa. Super. 2010), appeal denied, 19 A.3d 1050 

(Pa. 2011).

Rule 588, governing a motion for the return of property, states, in 

pertinent part, that

(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 [trial court] 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 [trial] 

court determines that such property is contraband, in which case 

the [trial] court may order the property to be forfeited.

Pa.R.Crim.P. 588; see also 234 Pa.Code. § 588.

“[O]n a motion for return of property, the moving party has the burden 

of proving ownership or lawful possession of the items [by a preponderance 

of the evidence]. The burden then shifts to the Commonwealth to prove, by 

a preponderance of the evidence, that the property is [per se] contraband[ or 

derivative contraband.]” Durham, 9 A.3d at 645-646 (original brackets and 

citation omitted); see also Smith, 307 A.3d at 144 (defining “per se

contraband” as “property that is unlawful to possess”). “Derivative 

contraband is property which is innocent in itself but which has been used in 

the perpetration of an unlawful act. Property is not derivative contraband, 

however, merely because it is owned or used by someone who has [] engaged 

in criminal conduct. Rather, the Commonwealth must establish a specific 
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nexus between the property and the alleged criminal activity.” Durham, 9 

A.3d at 646 (original brackets and citation omitted); see also Smith, 307 

A.3d at 144; Beaston v. Ebersole, 986 A.2d 876, 882 (Pa. Super. 2009) (en 

banc). “When the Commonwealth sustains its burden, the burden shifts

[back] to the [moving party] to disprove the Commonwealth's evidence for 

the return of her[, or his,] property.” Smith, 307 A.3d at 144. Finally, a trial 

court is required to conduct an evidentiary hearing on a motion for the return 

of property. Commonwealth v. Rodriguez, 172 A.3d 1162, 1166 

(Pa. Super. 2017).

Here, Appellant asserts that “the Commonwealth failed to provide any 

evidence or testimony to prove that [the] camera [at issue] was used to 

capture explicit [photographs] of the victim[ and] also failed to provide any 

evidence or testimony to prove that one or both of Appellant’s [cellular 

telephones at issue] were used to communicate with the victim.” Appellant’s 

Brief at 9. According to Appellant, “the record does not show a nexus between 

criminal activity and the property at issue and the Commonwealth failed to 

meet [its] burden.” Id. (asserting that, Appellant satisfied his burden of 

establishing lawful ownership of the items because the Commonwealth 

acknowledged the same and, therefore, the items were not contraband per 

se).

In denying Appellant’s motion for the return of property, the trial court 

stated,
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Now the camera and [the cellular telephones], you don’t need 

them back. First of all, the [cellular telephones] are useless. 

They’re over five years old. Plus[,] I mean[,] those were 

instrumentality of the charges.

N.T., 8/7/23, at 9. In explaining its decision to deny Appellant’s Rule 588 

motion for the return of property, the trial court, in its Rule 1925(a) opinion, 

stated,

The [trial] court found the nexus between the property and the 

criminal activity was sufficient as the [cellular telephones] were 

used to contact the minor asking her to come to his house, where 

the criminal activity took place, and the camera was used to take 

explicit [photographs] of the minor victim. The [items] at issue 

[were] the instruments of the underlying crime.

Trial Court Opinion, 11/30/23, 4 (unpaginated).

The record reveals that, during a search of Appellant’s residence 

pursuant to a warrant, twelve cellular telephones, camera equipment, 

electronic storage devices, two black and white boxes containing 8” x 11” 

photographs, and several clothing items were seized. Affidavit of Probable 

Cause, 10/3/18, at 3. In his motion for the return of property, Appellant 

sought the return of “[cellular telephones] and [a] camera[.]” Post-Sentence 

Motion, 6/6/23, at ¶4. At the evidentiary hearing on Appellant’s motion, 

counsel for Appellant indicated that Appellant sought the return of “two 

cameras and a couple of [cellular telephones.]” N.T., 8/7/23, at 9. Appellant 

did not present evidence that he possessed an ownership interest in the items 

or was entitled to lawful possession of the items.
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Upon review, we concur with, and the record supports, the trial court’s

order denying Appellant’s motion for the return of property, albeit on different 

grounds.

6

 As discussed supra, initially, Appellant bears the burden of 

establishing that he was entitled to lawful possession of the items for which 

return was requested. Here, it is unclear which two cellular telephones, of the

twelve cellular telephones seized, were the subject of Appellant’s motion for 

the return of property. Moreover, it is also unclear whether Appellant was 

entitled to lawful possession of the two cellular telephones or the two cameras

at issue. Appellant merely testified that “there was a lot missing from my 

house” after the police searched Appellant’s residence pursuant to a warrant. 

This testimony neither discharged Appellant’s initial burden of proof nor 

shifted the burden of proving per se contraband or derivative contraband to 

the Commonwealth. Rather, Appellant was required to present credible 

evidence as to ownership or entitlement to lawful possession of the items to 

satisfy his burden. Commonwealth v. Janda, 14 A.3d 147, 167 (Pa. Super. 

2011) (stating, “where the trial court is not provided with credible evidence 

as to ownership or entitlement, a motion for return of [property] should not 

be granted” (original quotation marks and brackets omitted)). The mere fact 

that the items were seized from Appellant’s residence does not establish that 

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6 See Commonwealth v. Stiver, 2024 WL 2815046, at *3 n.7 (Pa. Super. 

filed Jun. 3, 2024) (unpublished memorandum) (stating, this Court may affirm 

an order denying a motion for the return of property on any grounds, even 

when those grounds are not suggested, or relied on, by the trial court).
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Appellant was entitled to lawful possession of the items or that he possessed 

an ownership interest in the items. Therefore, Appellant failed to satisfy his 

burden to support his motion for the return of property.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 10/08/2024