J. S 31 0 35 /20 2020 PA Super 275

COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF

PENNSYLVANIA
v. : : JAMES HOWARD CAVINESS , : No. 39 M DA 20 20
: Appellant :

Appeal from the Order Entered November 26, 2019, in the Court of Common Pleas of Adams County Criminal Division at No. CP

- 01

- CR

- 0000464

- 2018

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

OPINION BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 23, 2020

James Howard Cavines s appeals from the November 26, 2019 order
granting, in part, and denying, in part, the petition for the return of property
filed on behalf of his wife, Rita Caviness (hereinafter, “Wife”)

. 1 After careful
review, we vacate the order for the trial court’s lack of jurisdiction

. 2

The trial court summarized the relevant facts and procedural history of

this case as follows:

1 As more fully discussed, infra , although the trial court construes Wife as the “appellant,” based upon appellant’s counsel’s averment at the Nove mber 25, 2019 hearing that this petition was filed on her behalf , both the notice of appeal and petition for return of property designate James Howard Caviness as appellant and “the defendant/Petitioner,” and make no mention of Wife.

2 The Commonwealth has indicated it will not be filing a brief in this matter and will be relying on the reasoning set forth in the February 3, 2020 trial court opinion.J . S31 0 35 /20

- 2

- On January 22, 2019, [appellant] pled guilty to C ount 1, rape of a juvenile under 18 Pa.C.S.A. § 3121(c) and to Count 12, corruption of mi nors under 18 Pa.C.S.A. § 6301(a)(1)(i). On April 16, 2019, pursuant to a negotiated plea agreement, [appellant] was sentenced on Count 1 to seven to sevent een years in a state co rrectional institution, and on Count 12 to three years of probation to run
c on secutively to Count 1. [Appellant] did not file any post sentence motions, nor did [appellant] appeal from the jud [ gm ] ent of sentence imposed on April 16, 2019.
However, on October 4, 2019, a petition to return property [ 3 ] was filed to this criminal docket. On November 25, 2019, a hearing was held on the petition, where a third party, [Wife], was represented to be the actual party moving for the return of property, and defense counsel, Mark S. K een heel, Esq. [(“Attorney K e en heel”)] , affirmed that his client was [ Wife].[ Footnote 1 ]

3 The record reflects that appellant requested return of the following property seized by the Commonwealth :

Item 1 : appellant’s black smart phone; Item 2: black Asus laptop; Ite m 3: black laptop recovered on basement table ; Item 4: black computer tower; Item 5: black thumb drive; Item 6: green cloth swatch from basement table; Item 7: green blanket on basement table; Item 8: black laptop recovered in living room; [original Item 9 stricken] ; Item [9] : black Kindle; Item [10] : black computer tower; Item [11] : black E

- machine laptop; Item [12] : black Kingston flash drive; Item [13] : black Western District external hard drive; Item [14] : black Samsung tablet; Item [15] : black/silver E

- machine laptop; Item [16]: black Minolta camera; Item [17] : Koda k disposable camera; and Item [18] : miscellaneous CDs in book bag.

See trial court order, 11/25/19 at Exhibit A, “Receipt/Inventory of Seized Property ”; see also notes of testimony, 11/25/19 at 6

- 12.J . S31 0 35 /20

- 3

- [Footnote 1] [Attorney K een heel ] was pretrial, plea, and sentencing counsel for [appellant].
Trial court opinion, 2/3/20 at 1

- 2 (citation formatting corrected; extraneous
capitalization omitted)

. At the November 25, 2019 hearing, 4 Attorney K een heel argued that Wife
merely wanted an opportunit y to retrieve family photos from the seized

devices and that return of the devices themse lves w as i rrelevant . ( Notes of
testimony, 11/25/19 at 18. ) The Commonwealth disagreed with this

assessment , arguing that the devices in question contain “images or websites
or conversations that are flagged by the Computer F orensics Team as being
questio n able in nature” and that “the Commonwealth is not unfortunately in
the process or frankly really able to be going through and picking out what is

and what is not [c ontraband ].” ( Id. at 17.) The following day , t he trial court
entered an order concluding that I tems 2

- 5, 7

- 9, 11, and 16

- 18 were

returnable to Wife . (Trial court order, 11/26 /19 at ¶ 1.) T he trial court found

that I tems 1, 6, 10, and 12

- 15 were “ material evidence in a criminal case”

and “ [t]he Pennsylvania State Police may dispose of those items through the
normal course of their operations.” ( Id. at ¶ 2.)
This timely appeal followed. On January 3, 2020, the trial court ordered
appellant to file a concise statement of errors complained of on appeal, in

4 The trial court opinion incorrectly indicates that appellant failed to ensure that the transcript of the November 25, 2019 he aring was included in the certified record ; however, this transcript is a part of the certified record.J . S31 0 35 /20

- 4

-

acc ordan ce with Pa.R.A.P. 1925(b), within 21 days. Appellant timely complied

and the trial court filed its Rule 1925(a) opinion on February 3, 2020

. Appellant raises the following issues on appeal:

1. Whether [Wife], pursuant to the doctrine of tenant by the ent ireties, may pursue the instant return of property petition in [appellant’s ] criminal case[?]

2. Whether [Wife] is entitled to a return of the family pictures on the seized electronic items[?]
Appellant’s brief at 7 ( full capitalization omitted)

.
Prelim inarily, we note that “[b]oth this Court and the Commonwealth
Court have jurisdiction to decide an appeal involving a motion for the return
of property filed pursuant to Pa.R.Crim.P. 588.” Commonwealth v.

Durham , 9 A.3d 641, 642 (Pa.Super . 2010) (citations omitted), appeal

denied , 19 A.3d 1050 (Pa. 2011).

The standard of review applied in cases involving motions for the return of property is an abuse of discretion. In conducting our review, we bear in mind that it is the province of the t rial 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 whether there is sufficient evidence in the record to support the facts as found by the t rial court.
Commonwealth v. Rodriguez , 172 A.3d 1162, 1165 (Pa.Super. 2017)
(citation omitted).

In his brief , appellant presents a singular, three

- paragraph argument

that addresses his overarching claim that the trial court erred by denying, inJ . S31 0 35 /20

- 5

-

part, the petition for the return of property. Appellant avers that his Wife

should be entitled to petition for the return of property

– namely, family
photographs on various electronic devices seized by the Commonwealth in
appellant/husband’s criminal case

– in h is criminal docket , based upon the
common law doctrine of tenancy by the entireties. 5 (Appellant’s brief at 9

- 10.)
For the following reasons, we disagree.
The question of whe ther a non - defendant third party may petition for

the return property in the criminal proceedings of another person appears to
be one of first impression for this court. Generally , Pennsylvania Rule of
Criminal Procedure 588 governs motions for the return of property and
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 common pleas for t he judicial district in which the property was seized.
Pa.R.Crim.P. 588(A).
Courts in this Commonwealth have long recognized that a motion for
the return of property is timely if it is filed “ during the pendency of the criminal
proceedings, or while th e trial court retains jurisdiction for thirty days following

5 A tenancy by the entireties is defined as “a form of co

- ownership of real or personal property by husband and wife, with its essential characteristic being that each spouse is seised

. . . of the whole or the entirety and not of a share,

. . . or divisible part.” Johnson v. Johnson , 908 A.2d 290, 295 (Pa.Super. 2006) (citation and int ernal quotation marks omitted).J . S31 0 35 /20

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-

its di sposition of the criminal case.” Rodriguez , 172 A.3d at 1164 n.10, citing

Commonwealth v. Allen , 107 A.3d 709, 717 ( Pa. 2014) (holding that Allen ’s

failure to file a motion for return of p roperty 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) ; see also 42 Pa.C.S.A. § 5505.
Applying Allen t o this matter, we find that the trial court did not have
jurisdiction to address the untimely motion for return of property. The record
reflects that appellant pled guilty to the aforementioned offenses on
January 22, 2019, and the trial court sen tenced him on April 16, 2019.
Appellant did not appeal and the trial court lost jurisdiction when the 30

- day
appeal peri od expired on May 16, 2019

. On October 4, 2019, appellant filed

the instant motion for return of property, nearly five months after the trial
court lost jurisdiction. Although Attorney K een he e l averred at the

November 25, 2019 hearing that this pe tition was filed on behalf of Wife, 6 the
petition makes no mention of this distinction nor references Wife or the

doctr ine of tenancy by th e entireties. Rather , this petition provides, in full, as

follows:

1. The defendant/Petitioner in this matter is

James Howard Caviness[, appellant].

2. [Appellant] was arrested on March 14, 2018 in the above captioned matter.

6 See note s of testimony, 11/25/19 at 3

- 4 (emphasis added)

.J . S31 0 35 /20

- 7

- 3. [Appellant] has plead gu ilty and has b een sentenced.

4. No appeal has b een filed.

5. At the time of his arrest, property was seized from his residence as indicated in Exhibit “A”.
Wherefore, the property listed in Exhibit “A” is hereby requested to be returned.

Petition for return of property , 10/4/19 (emphasis added)

. Based on the foregoing , we conclude that the trial court did not have
jurisdiction over any issues on the criminal docket, including the untimely
petition for return of property , and appellant waived his right to seek the
return of seized property under Rule 588. See Allen , 107 A.3d at 718.
In reaching this conclusion, we acknowledge that Allen expressly

limited its ru ling to the facts of that case; namely, “where the property owner

is the criminal defen dant, and had an opportunity to move for the return of
property during the thirty days following disposition of the charges, while the
trial court had jurisdiction.” Allen , 107 A.3d at 717 n.10. The Allen c ourt
did not rule on the time period within whic h a petitioner who was not the

criminal defendant must file a motion to return property. Id. Rather, the

Allen court urged “the Civil and Criminal Procedural Rules Committees to
consider articulating a rule that would define the timing of return motions filed
in [such] circumstances .

. . .” Id.

We further acknowledge that the Commonwealth Court has recently
held that when a petition for the return of property i s filed by a non - defendantJ . S31 0 35 /20

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-

third party ( i.e. , Wife), the catchall 6

- year statute of limitations set forth in

4 2 Pa.C.S.A. § 5527(b) applies. See In re Return of Personal Property , 180 A.3d 1288, 1293 (Pa.Cmwlth. 2018) (applying the 6

- year statute of

limitations in Section 5527(b) to a motion for return of non

- contraband
property filed 13 years after confiscation ). However, we find that this case is
clearly distinguishable from the instant matter because the items seized were

not done so in connection with a criminal proceeding

. Moreover, this court
has long recognized that “decisions re ndered by the Commonwealth Cou rt are
not binding on this Court.” See Beaston v. Ebersole , 986 A.2d 876, 881
( Pa.Super. 2009).
In any event, even to the extent that Wife is construed as the movant
of the petition in question, under Allen the timely filing of a Rule 588 motion
is a jurisdictional prerequisite to consideration of the motion in a criminal
context, and parties cannot wa ive the issue of jurisdiction. See

Commonwealth v. Pammer , 2020 WL 2552795 at *5 (Pa.Super. 2020). As
recognized by the tria l court , it logically follows that Wife should have filed the
petition t o return property in a civil docket, instead of in appell ant

- husband’s

criminal docket:

[I]t seems a non

- criminal defendant claiming return of property should be obligated to file a separate civil petition, for which a six year statute of limitation is applicable, instead of being permitted to file the petition to a criminal docket to which the claimant is not a party and which might be closed or on appeal thereby depriving the trial court of further jurisdiction.J . S31 0 35 /20

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Trial court opinion, 2/3/20 at 4. We agree with the trial court’s reasoning.
Accordingly, f or all the foregoing reasons, we vacate the November 26,
2019 order granting, in part, and denying, in part, the pet i tion for the r eturn
of property for lack of jurisdiction

.
Order vacated

.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/23/2020