J-S53011-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JUSTIN BAATZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1558 EDA 2019

Appeal from the Order Entered April 29, 2019

In the Court of Common Pleas of Lehigh County Criminal Division at 

No(s): CP-39-MD-0002886-2017

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

MEMORANDUM BY OLSON, J.: FILED JANUARY 17, 2020

Appellant, Justin Baatz, appeals from the order entered on April 29, 

2019. We affirm.

The trial court ably summarized the underlying facts and procedural 

history of this case. We quote, in part, from the trial court’s opinion:

[Appellant] filed a Motion for Return of Property[, ostensibly 

under Pennsylvania Rule of Criminal Procedure 588,1] on 

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1 Pennsylvania Rule of Criminal Procedure 588 provides:

(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 
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November 6, 2017. In this motion, [Appellant] sought the 

return of his [nine-millimeter] Ruger handgun that was used 

in the [2017] killing of [Alberto] Montanez. An evidentiary

hearing was conducted on the [] matter on February 1, 2018. 

At the hearing the Commonwealth presented the testimony 

of Detective Joseph Vazquez[, of the Lehigh County Homicide 

Task Force. Appellant] did not testify on his own behalf.

The testimony at the hearing revealed that on August 16, 

2017, Detective [Vazquez] became involved in a murder

investigation. Specifically, [Appellant] had called the 

authorities on this day to advise them that he had shot 

Alberto Montanez in the 1100 block of Allen Street, 

Allentown, Lehigh County, Pennsylvania. The victim was [35]

years old. He was the current boyfriend of [Appellant’s]

former girlfriend, with whom [Appellant] has a [13-year-old]

daughter. The victim was seated in his vehicle at the time of 

the shooting. When members of the Allentown Police 

Department arrived on scene, they observed a weapon 

located in between the victim's legs in the vehicle. 

[Appellant] surrendered the firearm that he used to kill the 

victim to the authorities on that day.

As part of the investigation, Detective Vazquez spoke with a 

witness, who was a friend of [Appellant]. The witness 

indicated that he and [Appellant] were walking, when 

suddenly the victim pointed a gun at them. The witness 

stated that he took cover, while [Appellant] fired a gun into 

the victim's vehicle. Authorities located [15] casings within 

the victim's vehicle. Detective Vazquez explained that the

presence of the casings within the vehicle established that 

[Appellant] had to have placed the firearm within the vehicle 

when he discharged it. Detective Vazquez also tried to 

interview [Appellant], but he invoked his rights to remain 

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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.

(C) A motion to suppress evidence under Rule 581 may be 

joined with a motion under this rule.

Pa.R.Crim.P. 588.
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silent. [Appellant] maintained that he fired at and killed the 

victim in self-defense. As the Commonwealth could not 

disprove a claim of self-defense, no charges were brought 

against [Appellant]. [Appellant] had a valid license to carry 

at that time, and he has no prior record that would disqualify 

him from possessing a firearm.

After the evidentiary hearing, [the trial court] denied 

[Appellant’s] Motion for Return of Property [on February 1, 

2018]. 

Trial Court Opinion, 5/30/19, at 1-3.

Appellant filed a notice of appeal from the trial court’s February 1, 2018 

order and, on November 20, 2018, this Court affirmed the order on the merits. 

Commonwealth v. Baatz, 201 A.3d 863 (Pa. Super. 2018) (unpublished 

memorandum) at 1-5. Within the memorandum, we held that the trial court 

did not err when it denied Appellant’s Motion for Return of Property because, 

during the hearing, Appellant “did not present any evidence indicating that he 

was the owner of the handgun, or that he could lawfully possess the handgun.” 

Id. at 4.

On March 20, 2019, Appellant filed with the trial court, a “Motion to 

Reconsider Order Denying Return of Property Nunc Pro Tunc” (hereinafter 

“Motion for Reconsideration”). The trial court denied Appellant’s Motion for 

Reconsideration on March 22, 2019 and Appellant did not file a notice of appeal 

from this order. Trial Court Order, 3/22/19, at 1.

On April 26, 2019, Appellant filed a “Petition for Return of Property.” 

Appellant’s “Petition for Return of Property,” 4/26/19, at 1-3. Within this 

petition, Appellant again requested that the trial court grant him relief in the 
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form of the return of his nine-millimeter handgun. Moreover, Appellant 

attached the following to his petition: an affidavit, sworn by him, that he owns 

the handgun; a copy of the purchase receipt of the handgun; and, a receipt 

from the store where he purchased the handgun. See id. at 2 and 

attachments.

The trial court denied Appellant’s petition on April 30, 2019 and 

Appellant filed a timely notice of appeal to this Court. Appellant raises one 

claim on appeal:

Whether the trial court abused its discretion in denying 

Appellant’s second Motion for Return of Property supported 

by newly discovered proof of ownership?

Appellant’s Brief at 3.

On appeal, Appellant claims that he is entitled to the return of his 

property under Pennsylvania Rule of Criminal Procedure 588. Appellant’s Brief 

at 11. This is incorrect. In the case at bar, the Commonwealth never filed 

charges against Appellant – and no criminal action against Appellant was ever 

pending. Therefore, Appellant could not file a motion and proceed under a 

rule of criminal procedure to obtain the return of his property when no criminal 

action was ever instituted against him. Indeed, as the Pennsylvania Supreme 

Court explained:

Although Rule 588 does not directly address the question of 

timing, it is sufficiently precise with regard to who may file a 

return motion and where the motion must be filed to permit 

us to discern that a criminal defendant has an opportunity to 

file a motion seeking the return of property while the charges 

against him are pending. Specifically, return motions are 
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filed by “a person aggrieved by a search and seizure” and 

must “be filed in the court of common pleas for the judicial 

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

588(A). Additionally, a return motion may be filed pre-trial 

and joined with a motion to suppress. Id. at 588(C).

Pursuant to Rule 588, therefore, 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. See 42 Pa.C.S. § 5505 (providing 

that a trial court retains jurisdiction to modify or rescind any 

order within thirty days of its entry, if no appeal has been 

taken).

[The defendant], therefore, had the opportunity to move for 

return of the property during the pendency of the criminal 

proceedings, or while the trial court retained jurisdiction for 

thirty days following the dismissal of charges.

Commonwealth v. Allen, 107 A.3d 709, 716-717 (Pa. 2014) (emphasis 

added) (footnote omitted).

In the case at bar, the Commonwealth did not file charges against 

Appellant. Therefore, at the trial level, Appellant could not have proceeded 

under Pennsylvania Rule of Criminal Procedure 588 to obtain the return of his 

alleged property and, on appeal, Appellant cannot obtain relief under that rule. 

As such, the current appeal immediately fails.

Further, even if Appellant had properly instituted the current action and

even if Appellant had properly argued his entitlement to relief on appeal, we 

would still conclude that the appeal fails, as Appellant’s current action is barred 

by the doctrine of res judiciata. We have held:

the doctrines of res judicata and collateral estoppel . . . serve 

to preclude the litigation, respectively, of claims and issues 

that have previously been litigated.
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Where there has previously been rendered a final judgment 

on the merits by a court of competent jurisdiction, the 

doctrine of res judicata will bar any future suit on the same 

cause of action between the same parties. Invocation of the 

doctrine of res judicata (claim preclusion) requires that both 

the former and latter suits possess the following common 

elements:

1. identity in the thing sued upon;

2. identity in the cause of action;

3. identity of persons and parties to the action; and

4. identity of the capacity of the parties suing or being 

sued.

Chada v. Chada, 756 A.2d 39, 42-43 (Pa. Super. 2000) (quotations and 

citations omitted).

“Under res judicata, a final judgment on the merits of an action 

precludes the parties or their privies from relitigating issues that were or could 

have been raised in that action.” Allen v. McCurry, 449 U.S. 90, 94 (1980). 

Res judicata “relieve[s] parties of the cost and vexation of multiple lawsuits, 

conserve[s] judicial resources, and, by preventing inconsistent decisions, 

encourage[s] reliance on adjudication.” Id.

Here, between the prior and the current action, there is: complete 

“identity in the thing sued upon” (in both actions, Appellant demanded that 

the Commonwealth return his nine-millimeter handgun); complete “identity in 

the cause of action” (in both actions, Appellant sought the return of his 

property because the handgun “is neither contraband nor derivative 

contraband, but [is], instead, the exclusive and lawful property of 
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[Appellant]”);2 complete “identity of persons and parties to the action” (in 

both actions, Appellant was the petitioner and the Commonwealth was the 

respondent); and, complete “identity of the capacity of the parties suing or 

being sued” (in both actions, Appellant was acting in his individual capacity 

and petitioning for the return of his property from the Commonwealth). 

Therefore, it is apparent that res judicata bars Appellant’s current action. 

Notwithstanding the above, on appeal, Appellant claims that he is 

entitled to relief because:

The investigating detective seized Appellant’s purchase 

receipt with the seized property (a handgun) owned by 

Appellant. It was difficult for Appellant to prove ownership 

[during the first hearing] without the receipt. Appellant was 

essentially denied the ability to prove ownership by 

government interference in the form of seizing the purchase 

receipt with the property seized.

Appellant’s Brief at 8 (some capitalization omitted).

Thus, in essence, Appellant claims that res judicata does not bar his 

current action because he did not have an adequate opportunity to obtain a 

full and fair adjudication during his initial action. See, e.g., Kremer v. Chem.

Constr. Corp., 456 U.S. 461, 480-481 and n.22 (1982) (“the judicially 

created doctrine[s of both res judicata and] collateral estoppel [do] not apply 

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2 Compare Appellant’s Petition for Return of Property, 11/6/17, at 1-2 (“[t]he 

aforesaid [handgun] is neither contraband nor derivative contraband, but [is], 

instead, the exclusive and lawful property of [Appellant]”), with Appellant’s 

Petition for Return of Property, 4/26/19, at 2-3 (“[t]he property seized by the 

police rightfully belong[s] to [Appellant], [is] not contraband, and [is] neither 

derived from nor connected in any way to criminal activity”).
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when the party against whom the earlier decision is asserted did not have a 

‘full and fair opportunity’ to litigate the claim or issue;” noting that, “[w]hile 

[the Supreme Court’s] previous expressions of the requirement of a full and 

fair opportunity to litigate have been in the context of collateral estoppel or 

issue preclusion, it is clear . . . that invocation of res judicata or claim 

preclusion is subject to the same limitation”). 

Appellant’s claim is frivolous for at least two independent reasons. First, 

Appellant’s claim is frivolous because, even without the purchase receipt,

there existed numerous ways that Appellant could have proven his ownership 

of the handgun in the prior action (including by simply testifying that he owned 

the handgun) and Appellant simply failed to avail himself of any of these 

opportunities. See N.T. Hearing, 2/1/18, at 1-11. Second, within Appellant’s 

current “Petition for Return of Property,” Appellant did not provide any reason 

why he could not have received the purchase receipt from the Commonwealth 

prior to the initial hearing. See Appellant’s Petition for Return of Property, 

4/26/19, at 1-3. 

Thus, Appellant’s claim on appeal fails for two separate and independent 

reasons: contrary to Appellant’s argument on appeal, since Appellant was 

never charged with a crime, Pennsylvania Rule of Criminal Procedure 588 does 

not provide Appellant with an avenue for relief and, even if Appellant had 

properly instituted the current action and even if Appellant had properly 
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argued his entitlement to relief on appeal, Appellant’s action is barred by res 

judicata. Hence, Appellant’s claim on appeal fails.3

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/17/20

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3 Notwithstanding our findings, nothing in this decision should be construed 

as preventing Appellant from pursuing any appropriate legal remedies he may 

have to seek the return of his property.