J-S46004-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                      v.

FRANK POMETTI

                           Appellant                No. 253 MDA 2017


                 Appeal from the Order Entered January 9, 2017
              In the Court of Common Pleas of Lackawanna County
               Criminal Division at No(s): CP-35-CR-0000829-2016


BEFORE: BOWES, J., OLSON, J., AND STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                             FILED JULY 26, 2017

      Frank Pometti appeals pro se from the order denying his motion for

return of property as untimely. We affirm.

      On March 26, 2016, Appellant was apprehended by police after he fled

the scene of a four-vehicle accident on North Lincoln Avenue, Lackawanna

County.       Upon capture, he possessed sixty-seven individually packaged

glassine bags of heroin, two oxycodone pills, two suboxone sublingual films,

$756.00 in cash, and a cellphone. Appellant displayed signs of intoxication,

including slurred speech and pinpoint pupils, and he appeared to be falling

asleep. After being placed under arrest, Appellant refused to consent to a

blood test.




* Former Justice specially assigned to the Superior Court.
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        Based on the foregoing, Appellant was charged with possession of a

controlled substance with intent to deliver, driving under the influence

(“DUI”), possession of drug paraphernalia, accidents involving damage to

unattended vehicles, failure to report an accident to police, and three counts

of possession of a controlled substance. On October 5, 2016, Appellant pled

guilty to one count of DUI, two counts of possession, and one count of

accidental damage to an unattended vehicle.        The court nolle prossed the

remaining charges. On November 30, 2016, the court imposed an aggregate

sentence of six to twelve months incarceration followed by six months

probation.     Appellant did not file a post-sentence motion or a notice of

appeal to this Court.

        On January 9, 2017, Appellant filed a motion for return of property

pursuant to Pa.R.Crim.P. 588.1 In that motion, Appellant requested that the

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1
    Rule 588 of the Rules of Criminal Procedure reads:

     (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.
(Footnote Continued Next Page)


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cash and cellphone seized during his arrest be returned to him.         On that

same day, the court denied Appellant’s motion as untimely. Appellant filed a

timely notice of appeal and complied with the court’s order to file a Rule

1925(b) concise statement of errors complained of on appeal.          The court

authored a Rule 1925(a) opinion. This matter is now ready for our review.

      Appellant’s brief does not include a concise recitation of his question

presented on appeal in violation of Pa.R.A.P. 2116.        Generally, issues not

presented in the statement of questions involved are deemed waived on

appeal. Commonwealth v. Long, 786 A.2d 237, 239 n.3 (Pa.Super. 2001)

(citation omitted) (noting “generally, questions not presented in the

‘Statement of Questions Involved’ are deemed waived.”); Commonwealth

v. Bryant, 57 A.3d 191, 196 n.7 (Pa.Super. 2012) (finding weight and

sufficiency challenges waived for failure to include them in statement of

questions presented).         Insofar as Appellant has failed to memorialize his

challenge to the trial court’s denial of his motion in a statement of the

question presented, we find the issue waived. Long, supra; Pa.R.A.P. 2116.



                       _______________________
(Footnote Continued)


   (C)    A motion to suppress evidence under Rule 581 may be joined
          with a motion under this rule.

Pa.R.Crim.P. 588.




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       Assuming, arguendo, that Appellant’s various challenges to the trial

court’s denial of his motion for return of property was properly before us, he

would not be entitled to relief. Appellant concedes that he filed his motion

for return of property at least thirty-four days after the imposition of his

sentence.2 Appellant relies on the dissenting opinions authored by Justices

Saylor and Todd in Commonwealth v. Allen, 107 A.3d 709 (Pa. 2014), for

the proposition that imposing a thirty-day limitation on filing motions for the

return of one’s property violates due process, the Controlled Substances

Forfeiture Act, and the Unclaimed Property Act. Thus, he concludes that his

property should be returned to him.

       This Court is bound by the rulings of the majority position of our High

Court. In Allen, the Supreme Court noted that Rule 588 “does not directly

address the question of timing[.]” Id. at 716. It observed, however, that

the motion “must ‘be filed in the court of common pleas for the judicial

district in which the property was seized.’” Id. (citing Pa.R.Crim.P. 588(A)).

Thus, it concluded, “a return motion is timely when it is filed by an accused

____________________________________________


2
  Appellant implies, without arguing, that the timeliness of his motion to
return property should be calculated from the date he mailed the document,
according to the prisoner mailbox rule, as opposed to the date it was
docketed in the lower court. Appellant claims he mailed the motion on
January 3, 2017, thirty-four days after he was sentenced. The document
was docketed on January 9, 2017, forty days after he was sentenced. Based
on our disposition, application of the prisoner mailbox rule does not entitle
Appellant to relief.



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in the trial court while that court retains jurisdiction, which is up to thirty

days after disposition.” Id. at 717 (emphasis added) (citing 42 Pa.C.S. §

5505 (a trial court retains jurisdiction to modify or rescind any order within

thirty days of its entry, if no appeal has been taken)). As Appellant filed his

motion for return of property after the thirty-day period during which the

trial court retained jurisdiction over his matter, it was untimely. Hence, no

relief is warranted.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2017




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