J-S42024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

 NORMAN LAMAR HOUSE

                             Appellant               No. 1876 MDA 2016


               Appeal from the Order Entered October 10, 2016
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0001373-2015


BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MOULTON, J.:                       FILED DECEMBER 01, 2017

       Norman Lamar House appeals, pro se, from the October 10, 20161 order

entered in the Dauphin County Court of Common Pleas, denying his “Petition

for Failure to Return Cash Property as Ordered” filed on September 28, 2016.

We affirm.2

____________________________________________


       While House purports to appeal from a non-existent October 28, 2016
       1

order entered by the trial court, his appeal more properly lies from the court’s
October 10, 2016 order denying his first “Petition for Failure to Return Cash
Property as Ordered” filed on September 28, 2016.

       2In Commonwealth v. Rodriguez, ___ A.3d ____, 2017 PA Super
337 (filed Oct. 23, 2017), we observed that “‘both this Court and the
Commonwealth Court have jurisdiction to decide an appeal involving a motion
for the return of property filed pursuant to [Pennsylvania Rule of Criminal
Procedure] 588.’” Rodriguez, supra at *1 n.2 (quoting Commonwealth v.
Durham, 9 A.3d 641, 642 (Pa.Super. 2010)). Here, as in Rodriguez, “[s]ince
Appellant chose this forum, we shall address his appeal.” Id.
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       The trial court summarized the relevant history of this matter as follows:

              On January 6, 2016, [House] pleaded guilty to
           Possession of a Firearm Prohibited, Firearms Not to be
           Carried [W]ithout a License, Receiving Stolen Property and
           Escape.[3] [On January 8, 2016, the trial court sentenced
           House to an aggregate term of 4 to 8 years’ incarceration
           and fined him a sum total of $125.00, plus costs.]

              On April 22, 2016, we received a pro se Motion for Return
           of Property.[4] A hearing was held on August 11, 2016, at
           which we ordered that the cash seized be used towards
           [House]’s costs and fines. Any remaining funds were to be
           returned to [House]’s stepbrother (previously any
           remaining funds were to be given to his sister, but she had
           become unavailable).

              Subsequently, on September 28, 2016, we received a
           Petition for Failure to Return Cash Property as Ordered
           which was denied on October 10, 2016. We received the
           same Petition on October 11, 2016 and deemed it moot on
           October [1]8, 2016.

Mem. Op., 12/19/16, at 1 (unpaginated) (“1925(a) Op.”).

House timely filed a notice of appeal.

       House raises the following issues on appeal:

           1. Was [House]’s cash property unlawfully seized by the
           Commonwealth a violation of Pa.R.Crim.P. 588?

           2. Did the Honorable Judge (Curcillo)[’s] abuse of discretion
           violate [House]’s due process right to use, enjoy and defend
           his property, and his right not to have his property retained
           without authority of law and without compensation, as
           guaranteed by the United States and Pennsylvania

____________________________________________



       3 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), 3925(a), and 5121(a),
respectively.

       According to the docket in the certified record, the motion was
       4

docketed on April 15, 2016.

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           Constitutions (See Article I, §§ 1, 8, 9, 10, 25, Pa. Const.,
           Fourth, Fifth, Sixth and Ninth Amendments)?

           3. Did the Honorable Judge (Curcillo) use . . . improper and
           tortious process (i.e. abuse of process) to interfere with a
           legitimate court process to obtain a result that was
           unlawful[] and beyond the forfeitures process?

House’s Br. at 1 (suggested answers and emphases omitted).

         First, to the extent that House challenges the disposition of his April

2016 “Motion for Return of Property” filed pursuant to Pennsylvania Rule of

Criminal Procedure 588, we conclude that because House did not timely appeal

from the trial court’s disposition of that motion, we lack jurisdiction to address

those issues.

         To the extent that House challenges the trial court’s October 10, 2016

order, we conclude the trial court did not abuse its discretion or commit an

error of law. In its order, the trial court denied the petition and explained that

it:

           ordered that the cash seized be used towards [House]’s
           fines and costs and that any remaining funds were to be
           sent to [House]. Nothing in the record indicates that only
           $150 of the money would be used towards fines and costs
           as [House] claims. Upon information and belief from the
           District Attorney, the money is being transmitted to Costs &
           Fines and any remainder will be distributed as requested.

Order of Court, 10/10/16. After reviewing the record, we agree with the trial

court.    Specifically, the record reflects that following the August 11, 2016

hearing on House’s “Motion for Return of Property Pursuant to Rule 588” the

trial court ordered that money seized would be applied to House’s fines and




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costs, any remaining money would be returned to House, and property items

were to be released to House’s stepbrother Joseph Evan Carter.

       Order affirmed.5

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2017




____________________________________________


       5While House did not file his original pro se motion for return of property
until April 15, 2016, we observe that at trial, House requested that property
that would not be confiscated or destroyed be released to a family member
named Nina Gann. N.T., 1/7/16, at 10.

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