J. S04044/1 8

NON

- PRECEDENTIAL DECISION

– SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :
: OR O NDE C. DANIELS , : No. 1324 MDA 20 17

: Appellant :

Appeal from the Order Entered July 25, 2017, in the Court of Common Pleas of Lycoming County Criminal Division at No. CP

- 41

- CR

- 0001672

- 2011

BEFORE: SHOGAN , J., DUBOW , J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 12, 2018

Or o nde C. Daniels appeals pro se from the July 25, 2017 order

denying his petition to return property filed pursuant to Pennsylvania Rule of

Criminal Procedure 588 1 on the basis it was untimely filed. 2 After careful

review, we affirm.

1 Rule 588 provides, in relevant part, as follows:

(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 commo n pleas for the judicial district in which the property was seized.

Pa.R.Crim.P. 588(A). “[B]oth this Court and the Commonwealth Court have jurisdiction to decide an appeal involving a motion for the return of propertyJ. S04044/1 8

- 2

-

The trial court summarized the relevant facts and procedural history of

this case as follows:

On October 2, [2012], [a]ppellant entered a guilty plea to the charges of person not to possess a firearm and possession with intent to deliv er a controlled substance in exchange for a sentence of five to ten years’ incarceration in a state correctional institution, and the [trial] court sentenced [a]ppellant in accordance with the plea agreement. Appellant did not file any post

- sentence motio n or a direct appeal. Therefore, [a]ppellant’s judgment of sentence became final on or about November 1, 2012.

On July 18, 2017, [a]ppellant filed a petition for return of property in which he sought the return of all the property (or, in the alternativ e, the monetary value thereof plus interest) that the Williamsport police seized from him on October 26, 2011, when the police searched his residence.

On July 25, 2017, the [trial] court entered an order denying [a]ppellant’s petition as untimely.

Trial court opinion, 11/16/17 at 1

- 2. 3

filed pursuant to Pa.R.Crim.P. 588. ” Commonwealth v. Durham , 9 A.3d 641, 642 n. 1 (Pa.Super. 2010), appeal denied , 19 A.3d 1050 (Pa. 2011).

2 The Commonwealth has indicated that it will not be filing a brief in this matter and is relying on the reasoning set forth in the trial court’s Nove mber 16, 2017 Rule 1925(a) opinion.

3 The record reflects that upon stipulation of the parties, the trial court entered an order on August 14, 2017 directing that $300 seized from appellant be returned to him

. ( See Stipulated Order, 8/14/17; certified record at no. 46.)J. S04044/1 8

- 3

-

On August 22, 2017, appellant filed a timely notice of appeal. O n
October 16, 2017, t he trial court ordered appellant to file a concise

statement of errors complained of on appeal, in accordance with

Pa.R.A.P. 1925(b), within 21 days. Appellant timely complied , and the trial

court filed a Rule 1925(a) opinion in support of its July 25, 2 017 order on

November 16, 2017.

Appellant raise s only one issue for our review: “ Did the [trial] court

error [sic] and abuse it’s [si c] discretion in denying appellant’s motion for

return of p roperty?” ( Appellant’s brief at v (capitalization omitted) )

. The

crux of appellant’s contention is that he had no opportunity to file a formal

petition to return property during the pendency of the criminal proceedings

and that he “did nothing but follow the Commonwealth’s lead.” ( Id. at 4

- 5 , 7.)

O ur standard of review of such matters is clear:

The standard of review applied in cases involving motions for the return of property is an abuse of d iscretion. In conducting our review, we bear in mind that it is the province of the trial court to judge the credibility of the witnesses and weigh the testimony offered. It is not the duty of an appellate court to act as fact

- finder, but to determine wh ether there is sufficient evidence in the record to support the facts as found by the trial court.

Commonwealth v. Rodriguez , 172 A.3d 1162, 1165 (Pa.Super. 2017)

(citations omitted).J. S04044/1 8

- 4

-

As recognized by the trial court, o ur supreme court addressed a simila r

situation in Commonwealth v. Allen , 107 A.3d 709 (Pa. 2014). Allen

involved an individual who , nearly eight years after criminal charges against

him were dismissed , moved for the return of property seized from the

vehicle he was dri ving at the time of his arrest. Allen , 107 A.3d at 711

.
The Allen court held that the petitioner’s failure to file a motion for the

return of property during the pendency of the criminal proceedings against

him or within 30 days following dismissal of the charges resulted in waiver of

the issue, thereby precluding review of his stand

- alone return petition. Id.

at 717

- 718. In reaching this conclusion, the Allen court stated that , “Rule

588 does not require a trial as the tr iggering event for a return motion.” Id.

at 717. “P ursuant to Rule 588

. . . a return motion is timely when it is filed

by an accused in the trial court while that court retains jurisdiction, which is

up to thirty days after disposition.” Id.

Here, the record reflects that appellant was sentenced on October 2,

2012 , and did not file any post

- sentence motions or a direct appeal to this

court

. As such, under Allen , appellant had until November 1, 2012 , to file a

timely motion for the return of property. Appellant did not file the instant

petition until July 18, 2017, more than four years past the deadline. Based

on the foregoing , we discern no abuse of discretion on the part of the trial

court in concluding that appellant’s petition was untimely filed and that “[he]J. S04044/1 8

- 5

-

waived any entitlement to the return of the property ” in question. ( T ria l

court opinion, 11/16/17 at 3

. )

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 06/12/2018