J-S84011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    SANFORD WILLIAMS,

                             Appellant                 No. 2186 EDA 2018


                 Appeal from the Order Entered June 21, 2018
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0001556-2016

BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                          FILED APRIL 04, 2019

        Appellant, Sanford Williams, appeals from the order entered June 21,

2018 that granted in part, and denied in part, his “Motion for Return of

Property.”1 After careful review, we affirm.

        Appellant sets forth the following factual summary in his brief:

              [Appellant] was arrested on July 4, 2016[,] and charged
        with multiple counts … related to a Burglary. On September 28,
        2016, [Appellant] entered into a guilty plea to Conspiracy to
        Commit Burglary - Not Adapted for Overnight Accommodations,
        No Person Present. On November 29, 2016, [Appellant] was
        sentenced to twenty-four to forty-eight months[’ incarceration,]
        with time credit from July 4, 2016. Thereafter, an appeal to the
        Superior Court of Pennsylvania was filed and the sentence was
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1  We observe 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).
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      affirmed on [January 11, 2018]. [Commonwealth v. Williams,
      183 A.3d 1045 (Pa. Super. 2018) (unpublished memorandum).]

           [Appellant] then filed a [Motion] for Return of Property on
      May 17, 2018, which is the [motion] at issue presently. The
      Pocono Township Police Department seized certain items from
      [Appellant’s] vehicle and person while executing an arrest.

            Among the items seized from [Appellant’s] vehicle were one
      black newsboy hat, a Kyocera cell phone, [o]ne-[h]undred [f]orty-
      [s]ix [d]ollars … ($146.00), one metal flashlight, [f]our[-]
      [h]undred [t]hirteen [d]ollars … ($413.00), one yellow pry bar,
      one Eveready flashlight, two pairs of pliers, two screwdrivers, and
      one large duffle bag.

             Among the items seized from [Appellant’s] person were one
      pair of white K-Swiss sneakers, size twelve, a black leather belt,
      a black Phat Farm button-up shirt, [o]ne-[h]undred [t]en [d]ollars
      … ($110.00), a New Jersey [d]river’s [l]icense, one black mini
      flashlight, and a Timex watch.

      …

            After a court proceeding, the court granted in part and
      denied in part said [motion]. The court did order the release of
      $113.84[,] which was destroyed and unusable[,] but [the court]
      denied the remaining requests. During said hearing, the
      Commonwealth indicated that $573.89 was unilaterally given to
      the alleged victim … and all remaining property was destroyed.
      No reimbursement to [Appellant] was given. This appeal then was
      timely filed.

Appellant’s Brief at 6-7.

      Appellant timely complied with the trial court’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal, and the court

filed a Rule 1925(a) opinion on August 28, 2018. Herein, Appellant sets forth

seven issues in his Statement of the Questions Involved.       However, in his

Argument, he only presents one, undivided discussion that addresses the




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overarching claim that the trial court erred by denying, in part, his motion for

the return of property.

      In assessing Appellant’s challenge to the court’s decision, we note at the

outset “that the standard of review applied in cases involving petitions for

forfeiture and motions for the return of property is for an abuse of discretion.”

Beaston v. Ebersole, 986 A.2d 876, 880 (Pa. Super. 2009) (citation

omitted). Additionally:

      Pennsylvania Rule of Criminal Procedure 588, concerning motions
      for the return of property, reads as follows:

         Motion for Return of Property

            (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.

      Pa.R.Crim.P. 588(A) and (B). The Commonwealth Court has
      explained the application of [Rule] 588 as follows:

             Under this rule, on any motion for return of property, the
         moving party must establish by a preponderance of the
         evidence entitlement to lawful possession. Once that is
         established, unless there is countervailing evidence to
         defeat the claim, the moving party is entitled to the return
         of the identified property. A claim for return of property can
         be defeated in two ways: an opposing party can establish
         that it, not the moving party, is entitled to lawful possession
         to the property or the Commonwealth can seek forfeiture


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          claiming that property for which return is sought is
          derivative contraband. Commonwealth v. Crespo, 884
          A.2d 960 (Pa. Cmwlth. 2005). To meet its burden to defeat
          the motion for return of property, the Commonwealth must
          make out more than simply demonstrating that the property
          was in the possession of someone who has engaged in
          criminal conduct. It must establish a specific nexus between
          the property and the criminal activity. Commonwealth v.
          Howard, … 713 A.2d 89 ([Pa.] 1998); Commonwealth v.
          2001 Toyota Camry, 894 A.2d 207 (Pa. Cmwlth. 2006).
          When the Commonwealth sustains that burden, the burden
          of proof shifts to the property owner to disprove the
          Commonwealth’s evidence or establish statutory defenses
          to avoid forfeiture.

       Singleton v. Johnson, 929 A.2d 1224, 1227 (Pa. Cmwlth. 2007)
       (en banc) (emphasis added).

Ebersole, 986 A.2d at 880-81 (emphasis omitted).2

       Here, after reviewing the record of the hearing conducted on Appellant’s

motion for return of property, we discern no abuse of discretion in the court’s

ruling on that motion. First, the only specific property discussed at any length

at the hearing was the $573.89 recovered from Appellant’s vehicle, and the

$113.84 that he had on his person when he was arrested.3 In regard to the
____________________________________________


2  As the Ebersole Court recognized, “decisions rendered by the
Commonwealth Court are not binding on this Court.” Ebersole, 986 A.2d at
881 (citing Commonwealth v. Thomas, 814 A.2d 754, 759 n. 2 (Pa. Super.
2002)). However, like the Ebersole panel, we are persuaded “by the
reasoning set forth by the Commonwealth Court in Singleton,” and we
therefore choose to follow it. Id.
3 While Appellant’s counsel mentioned other items that were seized from
Appellant’s vehicle, such as a cell phone, “flashlights and … tools[,]” N.T.
Hearing, 6/21/18, at 4, Appellant offered no evidence that he was entitled to
lawful possession of that property. Additionally, to the extent he now argues
on appeal that the Commonwealth erred by “unilaterally destroy[ing that]
property without any notice” to Appellant, he did not raise this argument



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$573.84, Appellant presented no evidence that he lawfully possessed that

money, and the Commonwealth contended that at least part of that sum had

been stolen from the victim. See N.T. Hearing at 2. Ultimately, the court

gave Appellant credit for the full amount toward the restitution component of

his sentence. Consequently, we discern no abuse of discretion by the court in

this decision.

       We also conclude that the court properly ordered the Commonwealth to

return the $113.84 that was taken from Appellant’s person at the time of his

arrest.    While that money was damaged due to its getting wet during

Appellant’s flight from police, Appellant’s argument that “[t]he court … erred

in permitting the Commonwealth to just ‘turn over’ the damaged money

without finding that the Commonwealth failed to hold the evidence in safe

keeping” was never raised before the trial court at the hearing. Thus, it is

waived.    See Pa.R.A.P. 302(a).

       In sum, we discern no abuse of discretion in the trial court’s decision to

give Appellant a restitution credit for the money that was seized from his

vehicle, and to order the Commonwealth to return the cash that was seized

from his person when he was arrested.

       Order affirmed.




____________________________________________


before the trial court. Thus, it is waived. See Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time on
appeal.”).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/4/19




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