J-A35026-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. GLENN FORD, Appellant No. 166 WDA 2014

Appeal from the Order entered January 6, 2014, in the Court of Common Pleas of Allegheny County, Criminal Division, at No(s): CP-02-CR-0001455-2013
BEFORE: BENDER, P.J.E., BOWES and ALLEN, JJ. MEMORANDUM BY ALLEN, J.: FILED JANUARY 14, 2015 Glenn Ford (“Appellant”) appeals from the trial cou rt’s order denying his motion for return of property, in which he soug ht the return of a Pontiac minivan and $62.00. The trial court explained: On August 26, 2013, [Appellant] pled nolo contendere to robbery and was sentenced to a term of imprisonment of not less than 111⁄2 nor more than 23 months’ imprisonment. *** At the time of his plea, [Appellant] stipulated to the content of the affidavit of probable cause filed in support of the criminal complaint filed in this case. The affidav it stated that [Appellant] was identified by the clerk of a CoGo’s convenience store as the person who robbed the store in the ear ly morning hours of January 11, 2013. According to the clerk, [Appellant] entered the store and approached the clerk. [Appel lant] punched the clerk in the face and grabbed cash from the cash register. [Appellant] then left the store and fled the scene in a dark colored minivan. [Appellant] was apprehended not far fromJ-A35026-14

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the scene of the robbery driving a minivan fitting the description provided by another witness who observed [Appellant ] flee the scene. After arresting [Appellant] in his minivan, cash i n the amount of $235.00 was found in the minivan and addi tional cash in the amount of $62.00 was seized from [Appellant’ s] person. Police officers requested that McGann and Chester t owing service tow [Appellant’s] vehicle from the scene. The van was stored at McGann and Chester’s facility. After imposing sent ence in this case, this Court, by written order, ordered the for feiture of the $235.00 found in the van. This amount was consiste nt with the amount stolen during the robbery. Trial Court Opinion, 7/29/14, at 1-2. On September 20, 2013, Appellant filed a pro se “motion for return of property pursuant to Pa.R.Crim.P. 588 (‘money’) (‘v an’)”. The Commonwealth filed a response on October 4, 2013, a nd by operation of law on January 6, 2014, the trial court denied Appellan t’s motion. Appellant filed a timely appeal. Both Appellant and the trial cour t have complied with Pa.R.A.P. 1925. Appellant presents one issue: DID THE TRIAL COURT ERR IN DENYING [APPELLANT’S] MO TION FOR RETURN OF PROPERTY WITH RESPECT TO $62.00 AND A PONTIAC MINIVAN THAT POLICE SEIZED AT THE TIME OF [APPELLANT’S] ARREST, WHERE THE COURT FAILED TO HOL D A HEARING TO DETERMINE WHETHER THE COMMONWEALTH, FOLLOWING A SHOWING THAT [APPELLANT] WAS LAWFULLY ENTITLED TO THE PROPERTY IN QUESTION, COULD ESTABLI SH THIS PROPERTY WAS CONTRABAND OR DERIVATIVE CONTRABAND SUBJECT TO FORFEITURE? Appellant’s Brief at 5.J-A35026-14

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We initially recognize that an appellate court's re view of a trial court's decision on petition for return of property is limi ted to examining whether findings of fact made by the trial court are suppor ted by competent evidence and whether the trial court abused its discretion o r committed error of law. Commonwealth v. Wintel, Inc. , 829 A.2d 753 (Pa. Cmwlth. 2003). Regarding the Pontiac minivan, we agree with the Co mmonwealth that Appellant’s claim is moot. Commonwealth v. Matsinger , 68 A.3d 390 (Pa. Cmwlth. 2013) (where the Commonwealth is not in pos session of the property, a petition for the return of the property is moot). See also In re
Duran , 769 A.2d 497 (Pa. Super. 2001) (If events occur t o eliminate the claim or controversy at any stage of the process, t he case becomes moot.). The trial court explained: With respect to [Appellant’s] van, the Commonwealt h never sought to forfeit the vehicle. The language of the forfeiture order does not include the van. As expl ained during plea proceedings, the Commonwealth did not consider the van to be evidence or contraband in this case. [Appellant ] was arrested in the van and police officers had the van towed fr om the scene pursuant to standard police protocol. In a typical circumstance, [Appellant] could have retrieved his van at any tim e. However, this Court recognizes that [Appellant] was incarcer ated upon his arrest. His incarceration would not have, however, prevented someone acting on his behalf from retrieving the va n. With absolutely no influence from the Commonwealth, McGa nn and Chester sold the van after nobody claimed it. As t he Commonwealth points out in its response to [Appella nt’s] motion, [Appellant] could have pursued a civil acti on against McGann and Chester. The Commonwealth exerted no in fluence to deprive [Appellant] of this property. Trial Court Opinion, 7/29/14, at 3-4.J-A35026-14

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Although the trial court did not hold an evidentia ry hearing pursuant to Pa.R.Crim.P. 588, the Commonwealth correctly observ es that there is evidence of record that the minivan had been sold. Commonwealth Brief at 13-14; Pretrial Motions, Nolo Contendere Plea and S entencing N.T., 8/26/13, at 3; 6-7. Our review confirms the following: THE COURT: What happened to your van? Did you find it? [APPELLANT]: No, they sold it. I was in jail. ... N.T., 8/26/13, at 3. THE COURT: Counsel, where is the van? Have you found the van? [COMMONWEALTH]: The van has been sold by McGann & Chester. N.T., 8/26/13, at 6-7. Given the foregoing, remand for a hearing regardin g the minivan is unnecessary and would be senseless. As to the $62.00, the Commonwealth agrees with Appe llant that the trial court erred in failing to hold an evidentiary hearing on Appellant’s motion for return of property relative to the $62.0 0. See Commonwealth Brief at 10, 15; Appellant’s Brief at 13. The Comm onwealth concedes that “it may be necessary to remand the matter so that a hearing on the motion can be held” because “no hearing was held in the tr ial court” in contravention of Pa.R.Crim.P. 588. Commonwealth Br ief at 7.J-A35026-14

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Upon review, we agree with the parties that Appell ant is entitled to a hearing regarding his claim for $62.00. Accordingl y, we vacate the January 6, 2014 order as to the $62.00 and remand for a hea ring consistent with this Memorandum. Order vacated in part and affirmed in part. Case remanded for a hearing regarding Appellant’s claim for $62.00. Ju risdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/14/2015