J. S31035/20

2020 PA Super 275

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

JAMES HOWARD CAVINESS, : No. 39 MDA 2020

:

 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 Caviness 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 November 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.
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On January 22, 2019, [appellant] pled guilty to 

Count 1, rape of a juvenile under 18 Pa.C.S.A. 

§ 3121(c) and to Count 12, corruption of minors 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 seventeen

years in a state correctional institution, and on 

Count 12 to three years of probation to run 

consecutively 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. Keenheel, 

Esq. [(“Attorney Keenheel”)], 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; Item 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]: Kodak 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.
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[Footnote 1] [Attorney Keenheel] 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 Keenheel argued that Wife 

merely wanted an opportunity to retrieve family photos from the seized 

devices and that return of the devices themselves was irrelevant. (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 Forensics Team as being 

questionable 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 [contraband].” (Id. at 17.) The following day, the trial court

entered an order concluding that Items 2-5, 7-9, 11, and 16-18 were 

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

that Items 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 hearing was included in the 

certified record; however, this transcript is a part of the certified record.
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accordance 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 entireties, 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).

Preliminarily, 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 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 whether 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) 

(citation omitted).

In his brief, appellant presents a singular, three-paragraph argument 

that addresses his overarching claim that the trial court erred by denying, in 
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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 his 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 whether 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 the 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 the 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 internal quotation marks omitted).
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its disposition 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 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); see also 42 Pa.C.S.A. § 5505.

Applying Allen to 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 sentenced him on April 16, 2019. 

Appellant did not appeal and the trial court lost jurisdiction when the 30-day 

appeal period 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 Keenheel averred at the 

November 25, 2019 hearing that this petition was filed on behalf of Wife,6the 

petition makes no mention of this distinction nor references Wife or the 

doctrine of tenancy by the 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 notes of testimony, 11/25/19 at 3-4 (emphasis added).
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3. [Appellant] has plead guilty and has been

sentenced.

4. No appeal has been 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 ruling to the facts of that case; namely, “where the property owner 

is the criminal defendant, 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 court 

did not rule on the time period within which 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 is filed by a non-defendant 
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third party (i.e., Wife), the catchall 6-year statute of limitations set forth in 

42 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 rendered by the Commonwealth Court 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 waive the issue of jurisdiction. See

Commonwealth v. Pammer, 2020 WL 2552795 at *5 (Pa.Super. 2020). As 

recognized by the trial court, it logically follows that Wife should have filed the 

petition to return property in a civil docket, instead of in appellant-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.
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Trial court opinion, 2/3/20 at 4. We agree with the trial court’s reasoning.

Accordingly, for all the foregoing reasons, we vacate the November 26, 

2019 order granting, in part, and denying, in part, the petition for the return 

of property for lack of jurisdiction.

Order vacated.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/23/2020