J-A06002-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

WALTER JAMES KITKO & CAMERON
KITKO,

                            Appellants                     No. 748 WDA 2017


                  Appeal from the Order Entered May 4, 2017
               In the Court of Common Pleas of Jefferson County
              Criminal Division at No(s): CP-33-MD-0000045-2015


BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                                  FILED MAY 29, 2018

        Appellants,   Walter    James     Kitko   (“Walter”)   and   Cameron   Kitko

(“Cameron”), appeal from the trial court’s order granting in part, and

denying in part, their joint motion for return of property; and granting in

part, and denying in part, the Commonwealth’s petition for forfeiture with

respect to the same seized property. After careful review, we affirm.

        This Court previously recounted the history of this case as follows:

        [Walter]’s paramour, the victim herein, complained to the
        DuBois Police Department, Clearfield County, that [Walter] used
        electronic surveillance equipment to record her without her
        consent while she was either in [a] state[] of undress or
        engaged in intimate sexual acts and [he] disseminated the
        explicit recordings to her and her ex-husband.              The
        Commonwealth initially charged [Walter] with sixty-three counts
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     of various criminal violations, including invasion of privacy,
     harassment, terroristic threats, obscene and other sexual
     materials, and stalking. Thereafter, the Commonwealth added
     twenty-four additional counts of invasion of privacy, and nine
     counts of obscene and other sexual materials. In support of the
     charges, the Commonwealth conducted searches of [Walter]’s
     and his brother [Cameron]’s residence located in neighboring
     Jefferson County. Upon execution of the warrants, the police
     seized various items, which have remained in the possession of
     Clearfield County’s DuBois Police Department.

           While the case was pending, on December 22, 2010,
     [Cameron] filed a pro se “Petition for Return of Property” in the
     Clearfield County trial court. On March 8, 2011, the trial court
     denied [his] petition. Citing Pa.R.Crim.P. 588, the trial court
     explained that [Cameron] “should have filed his petition in the
     court of common pleas for the judicial district in which the
     property was seized,” i.e., Jefferson County. See Trial Court
     Order, 3/8/11. Thereafter, the parties entered into a negotiated
     plea agreement whereby [Walter] agreed to plead guilty to three
     counts of invasion of privacy, a third-degree misdemeanor, and
     serve three years of probation.             In exchange, the
     Commonwealth nolle prossed the remaining charges.

           After [Walter] finished serving his sentence, on April 16,
     2015, he filed a petition for return of seized property in the
     Court of Common Pleas of Jefferson County under Rule 588.
     While [Walter]’s petition was pending in Jefferson County, the
     Commonwealth filed [a] Forfeiture Motion with [the] Clearfield
     County trial court. The seized items subject to [Walter]’s and
     the Commonwealth’s respective motions appear to be identical
     and include:

         (a) Item #1 on Docket Number 56-1-10, Bluish Samsung
             Verizon #771-9214 Ser #A00000148088E8;

         (b) Item #2 on Docket Number 56-1-10, Bluish Samsung
             Verizon #591-2711 Ser #A100000140F932;

         (c) Item #3 on Docket Number 56-1-10, HP Silver Camera
             Model #6RLYB-03020;

         (d) Item #4 on Docket Number 56-1-10, Black small VHS
             tape with Kitko on it;



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        (e) Item #5 on Docket Number 56-1-10, CD ROM Ser
            #1977;

         (f) Item #6 on Docket Number 56-1-10-, Note worthy 56k
             Modern PC Card #0013524;

        (g) (g) Item #7 on Docket Number 56-1-10, VHS Tapes
            (17) Black;

        (h) Item #8 on Docket Number 56-1-10, White Paper with
            Letter to [the victim];

         (i) Item #1 on Docket Number 56-2-10, HP Brio Computer
             w/ keyboard and mouse;

         (j) Item #2 on Docket Number 56-2-10, Black Nokia Cell
             Phone FCC 10 QTLRH65;

        (k) Item #3 on Docket Number 56-2-10, Black Motorola
            Cell Phone FCC 10-1HDT56GA1,

         (l) Item #4 on Docket Number 56-1-10, Silver Verizon LG
             Cell Phone FCC 10-13EJTM250;

        (m) Item #5 on Docket Number 56-2-10, Gray Verizon LF
            Cell Phone FCC 10-BEJVX5400;

        (n) Item #6 on Docket Number 56-2-10, Sony Cybershot
            Digital Camera;

        (o) Item #7 on Docket Number 52-2-10, Yoku Electronic
            Component;

        (p) Item #8 Docket Number 52-2-10, Box for Wireless
            Camera;

        (q) Item #9 Docket Number        52-2-10,   Box   for   HP
            Photosmart Digital Camera;

         (r) Item #10 Docket Number 52-2-10, Box for FUJI Film
             Digital Camera;

        (s) Item #11 on Docket Number 52-2-10, Sony 8 MM Video
            Cassette;

         (t) Item #12 on Docket Number 52-2-10, RCA Camcorder;
             and



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          (u) Item #13 on Docket Number 52-2-10, Verizon LG VX
              5200 Cell Phone Box.

      Commonwealth’s Forfeiture Motion, 5/1/15. Thereafter, on May
      5, 2015, [Walter] transferred all seized property to his brother.
      On June 16, 2015, the Clearfield County trial court held a
      hearing on the Commonwealth’s Forfeiture Motion, at which both
      parties presented only arguments. Following the hearing, the
      trial court granted in part the Commonwealth’s Forfeiture
      Motion, authorizing the Commonwealth to dispose of the
      following seized items:

          (a) A blue Samsung Verizon phone, number 771-9214,
              serial number A00000148088E8;

          (b) A blue Samsung Verizon phone, number 591-2711,
              serial number A100000140F932;

          (c) Seventeen (17) VHS tapes, black;

          (d) A white paper with letter to [the victim]; and

          (e) RCA camcorder.

      Trial Court Order, 6/16/15.       The trial court ordered the
      Commonwealth to return the remaining items to [Walter].
      [Walter] timely appealed to this Court.

Commonwealth v. Kitko, No. 977 WDA 2015, unpublished memorandum

at 1-5 (Pa. Super. filed September 16, 2016) (footnotes omitted).

      On appeal from that decision, we vacated the June 16, 2015 order,

and remanded “the matter to the trial court with instruction to decide the

Forfeiture Motion only after the Court of Common Pleas of Jefferson County

rules on Appellant’s petition for return of property.” Id. at 8.




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       On February 14, 2017, the Jefferson County trial court held a hearing

to consider Walter and Cameron’s joint forfeiture motion. 1        “There the

Commonwealth asked the Court to also entertain its request to forfeit the

property.    Both brothers testified, as did the officer who investigated the

underlying criminal allegations, and both parties submitted post-hearing

briefs.” Trial Court Opinion (TCO), 5/4/17, at 1. The trial court’s findings of

fact from that hearing are detailed in its contemporaneous opinion. Id. at 1-

4. Ultimately, the trial court granted “Cameron’s request for the computer,”

deemed moot a request for a “8mm tape of his grandmother’s funeral[,]”

and denied the petition for return of property “in all other respects.” Order,

5/4/17, at 1.

       Appellants timely filed a notice of appeal and a court-ordered Pa.R.A.P.

1925(b) statement. The trial court issued a one-page Rule 1925(a) opinion

on June 7, 2017.2         Appellants now present the following claims for our

review:

       1. The lower Court erred or abused its discretion by ruling or
       finding that the provisions of 18 Pa.C.S. § 3141 were binding or
       relevant to a proceeding under Pa.R.Crim.P. [] 588 (Return of
       Property).

____________________________________________


1 The April 16, 2015 motion for return of property was jointly filed by the
Kitko brothers, a fact which was unclear at the time of our September 16,
2016 memorandum.

2 The court’s brief Rule 1925(a) opinion implicitly incorporates its more
substantial opinion issued contemporaneously to the May 4, 2017 order.



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        2. The lower Court erred by refusing to recognize a transfer of
        personal Property to a family relation which prevented forfeiture
        of the property.

Appellants’ Brief at 2.

               The standard of review applied in cases involving motions
        for the return of property is an abuse of discretion. Beaston v.
        Ebersole, 986 A.2d 876 (Pa. Super. 2009) (en banc). 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.” Commonwealth v. Younge, 446 Pa.
        Super. 541, 667 A.2d 739, 741 (1995) (citation omitted). “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.” Id. (citation
        omitted).

Commonwealth v. Durham, 9 A.3d 641, 645 (Pa. Super. 2010).

        Appellant’s first claim is that the trial court erred by applying the

forfeiture provisions applicable to sex offenders, 18 Pa.C.S. § 3141. Section

3141 provides that persons convicted of certain sexual offenses, or persons

required to register under Pennsylvania’s Sex Offender Registration and

Notification Act (SORNA),3

        may be required to forfeit property rights in any property or
        assets used to implement or facilitate commission of the crime
        or crimes of which the person has been convicted. The forfeiture
        shall be conducted in accordance with 42 Pa.C.S. §§ 5803
        (relating to asset forfeiture), 5805 (relating to forfeiture
        procedure), 5806 (relating to motion for return of property),
        5807 (relating to restrictions on use), 5807.1 (relating to
        prohibition on adoptive seizures) and 5808 (relating to
        exceptions).

____________________________________________


3   42 Pa.C.S. §§ 9799.10-9799.41.




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18 Pa.C.S. § 3141.

        Indeed, the trial court refused to recognize Walter’s attempt to

transfer his interest in the seized property to Cameron (specifically, the two

cell phones), in part, because “Walter … lacked the legal authority on May 5,

2015 to vest in Cameron legal title to property still in the Commonwealth’s

possession, including the two cell phones in question,” pursuant to 18

Pa.C.S. § 1343 (repealed July 1, 2017). Section 1343 provided that:

        Property taken or detained under this subchapter is deemed to
        be the property of the law enforcement authority having custody
        thereof and is subject only to the court of common pleas having
        jurisdiction over the criminal or forfeiture proceedings, the
        district attorney in the matter or the Attorney General.

18 Pa.C.S. § 3143 (repealed July 1, 2017).

        At the time of the trial court’s decision in this matter, Appellant was

required to register under SORNA. See TCO at 5 (“Walter … is currently a

Megan’s Law registrant”).4 However, this Court recently “vacate[d the] May

18, 2016 order directing Appellant to report and register pursuant to

SORNA.”      Commonwealth v. Kitko, No. 802 WDA 2016, unpublished

memorandum         at   2   (Pa.   Super.      filed   October   23,   2017)   (applying

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), which held that

retroactive application of SORNA’s reporting and registration requirements

violates the ex post facto clause of the United States Constitution). Thus,


____________________________________________


4   SORNA is the most recent incarnation of “Megan’s Law.”



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we agree with Appellants that the trial court’s reasoning – insofar as it was

based on Walter’s status as a sex offender – is retroactively unsound.

      However, the Commonwealth maintains that the trial court provided

alternate grounds for forfeiture that were unaffected by the change in

Walter’s status as a sex offender. In this vein, the Commonwealth contends

that “any error alleged by Appellants with regard to the applicability of 18

Pa.C.S. §§ 3141-3144 to [Pa.R.Crim.P.] 588 proceedings was not outcome

determinative in this matter.” Commonwealth’s Brief at 4. For the reasons

that follow, we agree with the Commonwealth.

      The trial court ruled that, under the statutory forfeiture provisions for

sex offenders, see 18 Pa.C.S. § 3143, as well as those set forth in the

Controlled Substance, Drug, Device, and Cosmetic Act, 42 Pa.C.S. §

6801(d), ownership of the seized property cannot be transferred by the

original owner prior to judicial resolution of forfeiture proceedings. TCO at

4-5. The court did not end its analysis there, as it further deduced that “it

only stands to reason that property seized under common law authority is

likewise beyond the control of its original owner” and, therefore, that the

court would not have reached “a different result under common law

analysis.” Id. at 5.

      Notably, the Commonwealth Court recently held that “common law

forfeiture does not exist in Pennsylvania.” Commonwealth v. Irland, 153

A.3d 469, 486 (Pa. Cmwlth. 2017), appeal granted, 169 A.3d 1052 (Pa.

2017).   Nevertheless, our Supreme Court granted the Commonwealth’s

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Petition for Allowance of Appeal from the Irland decision on the question of

whether it “conflicts with both the Commonwealth Court’s prior holdings and

with those of the Superior Court[.]” Commonwealth v. Irland, 169 A.3d

1052, 1053 (Pa. 2017) (order granting the Commonwealth’s petition for

allowance of appeal). Indeed, controlling authority in the Superior Court still

recognizes the existence of common law forfeiture. See Commonwealth v.

Salamone, 897 A.2d 1209, 1215-17 (Pa. Super. 2006). However, as this

Court recognized in Salamone:

      Until 1982, forfeiture cases in this Commonwealth involved only
      statutorily authorized forfeiture. [Commonwealth v.] Crosby,
      [568 A.2d 233,] 237 [(Pa. Super. 1990)]. After 1982, however,
      there was “a series of opinions by the Superior Court” finding
      common law authority for the forfeiture of derivative contraband.
      Id. Nevertheless, those opinions ultimately relied on statutory
      authority.

Salamone, 897 A.2d at 1216.

      Here, despite its citation of “common law forfeiture” rules, see TCO at

5, the trial court did ultimately apply statutory authority, specifically,

Pa.R.Crim.P. 588, in concluding that Appellants were not entitled to the

return of the seized property.     Rule 588 governs motions for return of

property generally, and provides, in pertinent 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.

      (B) The judge hearing such motion shall receive evidence on any
      issue of fact necessary to the decision thereon. If the motion is

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      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.

Pa.R.Crim.P. 588 (emphasis added).

      Walter testified that he had no knowledge of the seized camcorder.

N.T., 2/14/17, at 22. He then implausibly claimed that he had filmed Victim

on a digital camera, transferred those digital images to VHS tapes, and then

later threw away the digital camera before the seizures occurred. Id.

      Thus, only Cameron claimed ownership of the camcorder, asserting

that it was “a piece of junk that I picked up for free.” Id. at 33. He later

explained that he “found it at a Goodwill drop, left outside the Goodwill

drop.” Id. at 44. In other words, Cameron’s claim to the camcorder was

that he had taken it from a location that received donations intended for

Goodwill, not that he had purchased it or received it as a gift. Yet, the police

testified that the camcorder was “the only device located at either residence

capable of recording directly onto the seized VHS tapes depicting Walter and

[Victim] engaged in sex acts.” TCO at 3.

      The trial court found Walter’s and Cameron’s testimony concerning the

camcorder not credible. We note that “on any motion for return of property,

the moving party must establish by a preponderance of the evidence

entitlement to lawful possession.” Commonwealth v. Matsinger, 68 A.3d

390, 397 (Pa. Cmwlth. 2013).       Here, the trial court found that Cameron

“lacked standing to seek the camcorder’s return,” TCO at 4, which is an

inartful way of stating that he did not establish lawful possession by a


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preponderance of the evidence.         The court speculated that Walter had

delivered it to Goodwill, where Cameron later picked it up.     Regardless of

such speculation, Walter disavowed ownership, let alone any knowledge of

the camcorder and, therefore, he could not simultaneously claim he was

entitled to lawful possession of it.     Indeed, Appellants concede that the

“camcorder was never owned by Walter….” Appellants’ Brief at 25.

      The trial court also determined that Cameron did not lawfully possess

the camcorder, finding he “did not acquire a possessory interest recognized

by law.”     TCO at 4.   As noted above, Walter did not claim to have ever

owned the camcorder and, therefore, it could not have been transmitted to

Cameron via the transfer agreement.           Moreover, even if Cameron’s

testimony was credible, he admitted that he acquired possession of it by

taking it from a Goodwill drop site.       Thus, he claims to have acquired

possession by taking a charitable donation that had been intended for

Goodwill. He did not pay for it, nor did he receive it as a gift. Consequently,

the trial court found that Cameron was also not “entitled to lawful

possession” of the camcorder. Pa.R.Crim.P. 588.

      Appellants argue that “no evidence of record exists that Cameron …

removed the Camcorder in question contrary to the ownership right of any

other.” Appellants’ Brief at 25. This claim is belied by the record: Cameron

testified that he effectively took a donation intended for Goodwill from their

drop site.      Appellants further argue that it was “wrongful” for the

Commonwealth to resort to the argument that Cameron had effectively

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stolen the camcorder, “without any evidence of competing ownership to the

device,” citing Commonwealth v. Fontanez, 739 A.2d 152 (Pa. 1999).

Appellants’ Brief at 25.     Again, this assertion is belied by the same

testimony, which was evidence that Cameron did not have lawful possession

of the camcorder. Moreover, Appellants conflate a lack of lawful possession

with a theft conviction.

      In Fontanez, an officer seized $2,650 in cash from the appellant. It

was “undisputed that the officer did not see any transaction or activity

involving Appellant or his vehicle that would have tied the money to illegal

activity and no criminal charges were ever filed in relation to the seized

cash.”   Fontanez, 739 A.2d at 153–54.      Our Supreme Court noted that,

although not “dispositive,” the fact that the appellant had not been charged

with a crime was “probative of whether the money was indeed contraband.”

Id. at 154.

      Fontanez does not entitle Appellant to relief, as it is easily

distinguishable from the instant matter.      First, there was a criminal

conviction in this case, involving Walter, and there was a reasonable

inference that the camcorder had been the device that had recorded Victim,

which was the subject of the criminal charges of invasion of privacy. There

were no criminal charges at issue in Fontanez.      Second, the trial court

found both Appellants’ testimony concerning the camcorder not credible,

indicating that it believed the camcorder originally belonged to Walter, not

Cameron. Nevertheless, even crediting Cameron’s testimony, the trial court

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found that his story undermined his own claim to lawful possession of the

camcorder.    No comparable testimony or evidence was at issue in the

Fontanez case.     Finally, by its own terms, Fontanez instructs that the

existence of criminal charges is not dispositive as to whether seized property

is contraband.   The absence of criminal charges against Cameron for theft

are, therefore, merely probative of, not conclusive evidence of, his lawful

possession of the camcorder. However, countervailing evidence – his own

testimony – supported the trial court’s determination that he did not lawfully

possess it.

      In sum, we conclude that the trial court did not exclusively rely on 18

Pa.C.S. § 3141 with regard to the forfeiture of the camcorder. Instead, the

court found that, under Rule 588, the camcorder was not lawfully possessed

by either Walter or Cameron, and therefore, neither of them had standing to

seek its return under that rule.

      Cameron also sought the return of the two cell phones. The trial court

determined that only Walter was “entitled to lawful possession” of the cell

phones, because:

      Walter testified that he executed the “Personal Property Transfer
      Agreement” innocently and in good faith, but the timing of the
      transfer renders that testimony highly suspect. As the record
      reflects, he and Cameron filed their joint Motion on April 16,
      2015, and the Commonwealth filed a petition for forfeiture in
      Clearfield County on May 1, 2015. Walter “gave” the subject
      property to his brother just four days later, at which point he
      knew beyond any doubt that the Commonwealth was alleging
      that it was contraband that should not be returned to him. The
      most reasonable inference to be drawn from his actions, and


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      what the Court finds to be the case here, then, is that Walter
      was attempting to manipulate the outcome of the proceedings
      by creating an “innocent owner” defense for Cameron to assert.
      Insofar as it was created for fraudulent purposes, therefore, the
      Court will not recognize the transfer as valid….

TCO at 6.

      Thus, it is clear that, again, the forfeiture of the cell phones was not

based or premised on the application of 18 Pa.C.S. § 3143. Thus, Section

3143 was not dispositive in the forfeiture/return-of-property proceedings.

Accordingly, we ascertain no abuse of discretion in this regard.

      Next, Appellants claim that the trial court abused its discretion by not

recognizing the transfer agreement.           As noted above, the trial court ruled

that the transfer agreement was a transparent and fraudulent attempt to

subvert the forfeiture/return-of-property proceedings. Id.

      Appellants argue that the trial court erred in this determination

because, ostensibly, no “evidence exists that the transfer occurred to ‘thwart

the Commonwealth’s interest’” in the cell phones.           Appellants’ Brief at 26.

We disagree, as this claim is plainly belied by the record.          The suspicious

timing and circumstances of the transfer were, as the trial court found,

evidence    of   an   intent   to   subvert    the   forfeiture/return   of   property

proceedings.     As the trial court’s determination was supported by evidence

of record, we discern no abuse of discretion in its rejection of the transfer

agreement.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/2018




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