J-S01015-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANDREW E. GINES                            :
                                               :
                       Appellant               :   No. 1648 EDA 2019

                 Appeal from the Order Entered April 29, 2019
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0000035-2007


BEFORE:      BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BOWES, J.:                            FILED FEBRUARY 11, 2020

        Andrew Gines appeals from the April 29, 2019 order that denied his

motion for the return of property as untimely. We affirm.

        Due to the nature of the claims raised by Appellant, we only briefly

address the long factual and procedural history of this case. The trial court

prepared an apt summary in its Rule 1925(a) opinion:

        On January 1, 2007, an incident occurred at the house of
        Appellant’s son’s girlfriend. Three local police officers responded
        to the scene. One officer indicated that he was going to conduct
        a protective sweep of the house. As that officer entered the
        house, Appellant fired two shots at him. At the conclusion of a
        three-day trial, a jury convicted Appellant of two counts of
        attempted murder, two counts of aggravated assault on a police
        officer, and other related crimes. On July 22, 2008, the trial court
        sentenced Appellant to an aggregate term of thirty to sixty years
        of imprisonment.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       Prior to trial, Appellant filed a motion for the return of property.[1]
       On February 8, 2007, the trial court filed an order denying
       Appellant’s motion for the return of property. Following the denial
       of his motion for return of property, the Superior Court affirmed
       Appellant’s judgment of sentence on November 30, 2009. See
       Commonwealth v. Gines, 990 A.2d 44 (Pa.Super. 2009)
       (unpublished memorandum). On June 23, 2010, the Supreme
       Court     denied    his    petition   for   allowance     of   appeal.
       Commonwealth v. Gines, 997 A.2d 1175 (Pa. 2010).

       Thereafter, Appellant unsuccessfully sought relief by filing four
       serial pro se PCRA petitions. The denial of each PCRA was affirmed
       on appeal. On April 25, 2019, Appellant filed a pro se motion for
       return of property. This motion was filed over twelve years after
       his original motion was denied. By order dated April 29, 2019,
       the trial court denied the present motion which is the subject of
       this appeal.

Trial Court Opinion, 7/31/19, at 1-2 (cleaned up).

       Appellant filed a timely notice of appeal.2       The trial court directed

Appellant to file a concise statement of matters complained of on appeal

pursuant to Pa.R.A.P. 1925(b), Appellant timely complied, and the trial court

filed an opinion pursuant to Rule 1925(a).
____________________________________________


1  In relevant part, the property implicated by Appellant’s motion include a
cellular telephone, a lighter, a wallet and its sundry contents, and
approximately sixty dollars in cash. See Petition for the Return of Personal
Property, 4/25/19, at 2. For the first time on appeal, Appellant has also
included references to a 1991 Ford F-150 truck. See Appellant’s brief at 2.

2  Appellant was incarcerated at SCI-Rockview at the time that he submitted
his pro se notice of appeal. In this context, a pro se prisoner’s notice of appeal
is deemed to be “filed” as of the date that he or she delivers it to the prison
authorities for mailing. See Commonwealth v. Jones, 700 A.2d 423, 425-
26 (Pa. 1997). As a general matter, “we are inclined to accept any reasonably
verifiable evidence of the date that the prisoner deposits the appeal with the
prison authorities.” Id. at 426. Instantly, the envelope in which Appellant
enclosed his notice of appeal reflects that it was processed by (and, therefore,
was in the possession of) prison authorities no later than May 28, 2019. Thus,
Appellant’s notice of appeal was timely filed. Id. at 425-26.

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      Before engaging with the merits of Appellant’s arguments, we must first

ascertain whether Appellant’s request for the return of property is timely.

“This issue is purely a question of law; accordingly, our standard of review is

de novo, and our scope of review is plenary.” Commonwealth v. Allen, 107

A.3d 709, 714 (Pa. 2014).

      In pertinent part, Pennsylvania Rule of Criminal Procedure 588 (“Motion

for Return of Property”) governs such petitions and provides 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
      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.

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

Pa.R.Crim.P. 588. Interpreting this rule, our Supreme Court has stated that

“a return motion is timely when it is filed by an accused in the trial court while

that court retains jurisdiction, which is up to thirty days after disposition.”

Allen, supra at 717 (citing 42 Pa.C.S. § 5505 (providing that a trial court

retains jurisdiction to modify or rescind any order within thirty days of its

entry)). Failure by a petitioner to file a return motion during the pendency of




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the underlying criminal charges, or within thirty days of a final order, results

in waiver. Id. at 717-18.

       Instantly, Appellant’s petition is patently untimely. More than a decade

has elapsed since the trial court was divested of jurisdiction in his case, and

Appellant cannot obtain relief pursuant to the thirty-day period afforded by

§ 5505. As in Allen, Appellant’s “failure to file a return motion during the

pendency of the criminal charges against him or within thirty days following

[final disposition] of the charges results in waiver, precluding review of his

stand-alone return petition.”3 Id. at 718.

       Order affirmed.




____________________________________________


3  We also note that Appellant originally filed a petition for return of property
prior to trial, which solely concerned the Ford F-150 Truck. See Petition for
Return of Property, 2/6/07, at ¶¶ 1-7. The trial court denied this petition.
Appellant then filed a second such petition, pro se, which largely included the
property referenced in the motion that underlies this appeal. See Petition for
Return of Property, 6/30/08, at ¶¶ 1-7. This motion was filed while Appellant
was still represented by counsel and appears to have been properly ignored
by the trial court. See Commonwealth v. Padilla, 80 A.3d 1238, 1273 (Pa.
2013) (“[N]o defendant, including Appellant, is entitled to hybrid
representation, . . . . The trial court did not err by declining to consider
Appellant’s pro se motion on the merits.”). Appellant did not raise any claims
related to his initial petition for return of property in his first direct appeal to
this Court. See Commonwealth v. Gines, 990 A.2d 44 (Pa.Super. 2009)
(unpublished memorandum at 1-10) (failing to raise any issue related to the
return of property seized by law enforcement).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/11/20




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