J-S05017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

FRANK JERRID DORTCH

                            Appellant                No. 1235 MDA 2016


                  Appeal from the Order Entered July 8, 2016
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-MD-0001530-2016


BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                        FILED FEBRUARY 24, 2017

        Appellant, Frank Dortch, appeals pro se from the order denying his

petition for return of property seized by the Commonwealth. Dortch argues

that the trial court erred in concluding that the Commonwealth had met its

burden in establishing that the property was contraband. We conclude that

Dortch never met his burden in alleging, let alone proving, that he had

lawful possession of the property at issue, and therefore the Commonwealth

had no burden to establish that the property was contraband. Accordingly,

we affirm.

        On June 9, 2016, Dortch filed the following petition in the Court of

Common Pleas of York County, which we set forth verbatim:
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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                     Petition for Return of Property

           On thus 29th Day of April 2016 Frank Dortch Petition for
     return of Property of that was not returned nor even mentioned
     such as but perhaps not limited to give or take Several hundred
     Dollars cash 1 T-mobile Cellular telephone Social Security card
     photo Id, Martin Memorial Library card food stamp card and
     insurance card that was confiscated by the York County State
     Police due to the following:

     1).Above property was confiscated on 4-25-2016 By State Police
     Officer Justin Dembowski that was not returned nor even
     mentioned such as but perhaps not limited to give or take
     several hundred dollars And the acquired from income tax refund
     and working cash 1 T-mobile Cellular telephone Social Security
     card photo Id, food stamp card Martin Memorial Library card,
     and Insurance card to there is only a ten day deadline to petition
     for return of property. There was no petition for forfeiture so the
     property should be returned according to state a federal law plus
     constitutions. Pennsylvania’s adapted in 1790

                            *VERIFICATION*

     I Frank Dortch here now verify that on this day under the
     penalties provided by 18 4904 Unsworn Falsification To
     Authorities the averments on this forth going petition are true
     to the best of all my knowledge information and belief.

Dortch’s signature appears at the bottom of the page.

     A hearing on the petition was scheduled for July 8, 2016. At the

scheduled time, the Assistant District Attorney told the trial court that his

witness, State Trooper Justin Dembowski, was unable to attend and testify.

However, the ADA noted that he did not request a continuance as many of

Dortch’s requests could be rectified without a hearing. See N.T., Hearing,

7/8/16, at 2.




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       The ADA stated “I know of no reason that we would need to hold on to

the identification items, the cards, as long as we are able to make

photcopies of them before they’re returned.” Id., at 5. The Commonwealth

did object to the “return of a number of other items, including a cellphone

and cash, which is our position would be both evidence in the criminal case

as well as subject to forfeiture.” Id. The trial court, without a hearing,

proceeded to order the Commonwealth to “return those identification cards

to you,” but allowed the Commonwealth to retain possession of the

cellphone and cash. Id., at 7.

       This timely appeal followed.1 On appeal, Dortch argues that the trial

court erred in concluding that the Commonwealth had met its burden in

establishing that the cell phone and cash were contraband. However, Dortch

misunderstands the process his petition invoked.

       Rule 588 of the Pennsylvania Rules of Criminal Procedure is dedicated

to setting forth the standards and procedures to be utilized when a party

seeks the return of seized property. See Commonwealth v. Durham, 9

____________________________________________


1
  The Commonwealth argues on appeal that this appeal is interlocutory, as
the trial court opined that Dortch would have “a second bite at the apple”
when the Commonwealth filed a forfeiture petition. However, we conclude
that the prediction of a forfeiture petition does not alter the fact that all the
claims contained in Dortch’s petition were disposed of in the trial court’s
order. It therefore qualifies as a final, appealable order. See Pa.R.A.P. 341.
Furthermore, we note that a review of the criminal docket sheet of the
charges arising from the April 25, 2016 arrest of Dortch reveals that no
forfeiture petition had been filed as of January 1, 2017.



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A.3d 641, 645 (Pa. Super. 2010). Under Rule 588, the moving party bears

the burden of establishing by a preponderance of the evidence that he or

she is entitled to possession of the property under law.         See id.   If the

moving party meets that burden, the non-moving party may still defeat the

motion by refuting the movant’s claim to lawful possession, or by

demonstrating that the property is derivative contraband.              See id.

Derivative contraband is otherwise innocent property that is directly related

to criminal conduct. See id., at 645-646. The non-moving party bears the

burden of proving the direct relation between the property and the criminal

conduct. See id.

      Here, Dortch was the moving party. He therefore bore the burden of

establishing that he is entitled to possession of the property at issue. While

Dortch’s failure to provide evidence on this issue may be understandable,

given the lack of a hearing, we conclude that he did not even sufficiently

allege that he was entitled to possession of the property.

      Dortch’s petition, while verified, does not assert that he is entitled to

possession of any of the articles at issue. Dortch’s pleading requests the

return of these items, but does not admit that he lawfully possessed them.

This is not merely a technical misstep. Possession of items seized from a

person is often a litigated issue in pre-trial motions and at trial.

      The Commonwealth agreed to give him certain items, such as those

relating to identification, that it did not see any need to keep. While this


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arguably acts as a concession of Dortch’s lawful possession as to those

items, the Commonwealth was unwilling to return the cash and the

cellphone without Dortch’s sworn statement that he was entitled to

possession. While the procedure employed in the trial court was unusual, we

conclude that the trial court did not err in refusing to order the

Commonwealth give the cell phone and cash to Dortch.

      We further note that the York County Court of Common Pleas criminal

docket sheets indicate that as of January 1, 2017, he is awaiting a jury trial

on the charges stemming from his arrest on April 25, 2016, the date he

alleges in his petition that the cell phone and cash were seized from him.

      Order affirmed. Jurisdiction relinquished.

      Judge Platt joins the memorandum.

      President Judge Emeritus Bender concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2017




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