J-S37005-18

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LEVICK LINTON, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3962 EDA 2017

Appeal from the Order Entered November 17, 2017

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

No(s): CP-23-CR-0005209-2013

BEFORE: OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.: FILED JULY 31, 2018

Appellant, Levick Linton, appeals from the order issued November 17, 

2017, denying his petition for return of property. We affirm.

Appellant was arrested on April 7, 2013, after he crashed his car into a 

parked vehicle. A search incident to the arrest recovered five 325 mg

Oxycodone pills, two cell phones, and $2,041.00 in cash, all of which was

seized by the police. A subsequent blood test revealed that Appellant’s blood 

alcohol content was 0.178%; the test also detected the presence of 

Oxycodone in Appellant’s blood. 

The Commonwealth charged Appellant with multiple crimes, including

possession of a controlled substance and various counts of driving under the 

influence (“DUI”). On March 24, 2015, Appellant pleaded guilty to one count 
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of driving under the influence of a controlled substance1 and, that same day, 

the trial court sentenced Appellant to serve a term of one to two years in 

prison. 

Over two years later – on May 17, 2017 – Appellant filed a petition for 

return of property. Within the petition, Appellant demanded that the 

Commonwealth return the $2,041.00 that it seized incident to his April 7, 2013

arrest. Appellant’s Petition, 5/17/17, at 2. Appellant claimed that the money 

was not subject to forfeiture because he only pleaded guilty to DUI and, thus, 

the money was not derivative of any illegal act or transaction. Id.

The trial court held a hearing on the petition, but ultimately denied the

petition on November 17, 2017. Trial Court Order, 11/17/17, at 1. This timely 

appeal follows.

On appeal, Appellant presents the following issues for our review:

[1.] Did the trial court err in denying [Appellant’s] petition for 

return of property in violation of the Controlled Substance 

Forfeiture Act, specifically 42 Pa.C.S. 6802 . . . in that 

[Appellant] was charged with and pled guilty to the charge of 

[DUI] . . . ?

[2.] Did the trial court err in [denying Appellant’s petition] 

when the Commonwealth failed to prove that the monies 

taken from [Appellant were] contraband in that no evidence 

or testimony was presented on the record by the 

Commonwealth to establish a nexus between drug activity 

and the monies seized from [Appellant?]

[3.] Did the trial court err in denying [Appellant’s petition] by 

relying on evidence or testimony that was not in evidence 

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1 75 Pa.C.S.A. § 3802(d)(1).
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including, but not limited to the testimony of Detective Darrell 

Guy from the preliminary hearing which was not submitted 

into evidence by [Appellant] or the Commonwealth to the 

court and by improperly relying upon past and potential 

future criminal acts by [Appellant?]

Appellant’s Brief at 4-5 (some internal capitalization omitted).

All of Appellant’s claims on appeal contend that the trial court erred 

when it denied his petition for return of property. “The standard of review 

applied in cases involving motions for the return of property is an abuse of 

discretion.” Commonwealth v. Rodriguez, 172 A.3d 1162, 1165 (Pa. 

Super. 2017) (citations omitted). However, as to questions of law, our 

standard of review is de novo. Commonwealth v. Bradley, 834 A.3d 1127, 

1131 n.2 (Pa. 2003). Further, we are not bound by the trial court’s reasoning

and may affirm its decision on any basis. Commonwealth v. Williams, 73 

A.3d 609, 617 n. 4 (Pa. Super. 2013). 

Appellant’s right to petition for the return of his seized property is 

governed by Pennsylvania Rule of Criminal Procedure 588,2 which provides:

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2 Appellant filed his petition on May 17, 2017. Effective July 1, 2017, the 

Pennsylvania legislature recodified and partially rewrote the Commonwealth’s 

Forfeiture Act. See 42 Pa.C.S.A. §§ 5801-5808. Appellant has not cited to 

the newly recodified Forfeiture Act in his brief to this Court. Indeed, Appellant 

cites to the former version of the Act. See Appellant’s Brief at 4. Further, 

Appellant does not claim that any of the rewritten provisions apply to his case. 

Therefore, Appellant waived any potential claim that the newly recodified 

Forfeiture Act applies to his case or that the new Act could have provided him 

relief, even though the former version does not. Commonwealth v. Spotz, 

716 A.2d 580, 585 n.5 (Pa. 1999) (“[the Pennsylvania Supreme Court] has 

held that an issue will be deemed to be waived when an appellant fails to 

properly explain or develop it in his brief”).
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(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 

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.

While Appellant argues his petition should have been granted on the 

merits, the dispositive issue in this case is the petition’s untimeliness. Our 

Supreme Court, in the case of Commonwealth v. Allen, construed the 

language of Rule 588 and held that “a petition for the return of property is 

timely when it is filed by the accused in the trial court while that court 

retains jurisdiction, which is up to thirty days after disposition.” 

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

see also Commonwealth v. Setzer, 392 A.2d 772 (Pa. Super. 1978). 

In Allen, Mr. Allen filed a petition for the return of property almost eight 

years after the charges which led to the seizure of his property were 

dismissed. Allen, 107 A.3d at 711-712. The Pennsylvania Supreme Court 

held that Mr. Allen was required to file his petition for the return of property 

“during the pendency of the criminal proceedings, or while the trial court 
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retained jurisdiction for thirty days following dismissal of the charges.” Id. at 

717. The Supreme Court held that, since Mr. Allen failed to file his petition in 

the criminal trial court while the court possessed jurisdiction over his criminal 

case, he “waived any entitlement to the return of property under Rule 588.” 

Id. 

Allen is on all fours with the case at bar. In this case, the police arrested 

Appellant on April 7, 2013 and, during the arrest, the police seized $2,041.00 

in cash from Appellant’s person; Appellant then pleaded guilty to DUI on March 

24, 2015. However, Appellant did not file a petition for the return of his 

property while the trial court retained jurisdiction over his criminal case. 

Instead, Appellant filed his petition on May 17, 2017 – more than two years 

after the disposition of his criminal case. In accordance with Allen, Appellant 

“had until [30] days following [his guilty plea], or [April 23, 2015], to move 

for return of [his p]roperty. Having failed to do so, he has waived any 

entitlement to the return of property under Rule 588.” Id. at 717. 

Appellant’s claims on appeal thus all fail, as the trial court properly 

denied Appellant’s petition for return of property.

Order affirmed. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/31/18