J-A26005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 MICHAEL ASFIELD LASHLEY                 :
                                         :
                   Appellant             :   No. 483 WDA 2019

                Appeal from the Order Entered April 1, 2019
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0016003-2015


BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

MEMORANDUM BY SHOGAN, J.:                     FILED NOVEMBER 20, 2019

     Appellant, Michael Asfield Lashley, appeals from the April 1, 2019 order

denying his motion for return of property filed pursuant to Pa.R.Crim.P. 588.

We affirm.

     The record reflects that Appellant and an accomplice engaged in multiple

thefts using altered and/or fraudulent credit cards to purchase items from

stores in North Fayette and Robinson Townships in Allegheny County.

Complaint, 10/6/15; N.T., Suppression, 10/6/16, at 5. On October 6, 2015,

Appellant was charged with one count of persons not to possess firearms, one

count of carrying a firearm without a license, seventy-four counts of

possessing instruments of crime, two counts of criminal conspiracy, seventy-
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four counts of access device fraud, and one count of driving with a suspended

license.1 Complaint, 10/6/15.

        On March 20, 2017, following a bench trial, Appellant was found guilty

of one count of persons not to possess a firearm, one count of carrying a

firearm without a license, six counts of possession of instruments of crime,

and six counts of access device fraud.           N.T., Trial, 3/20/17, at 64-66.

Appellant was found not guilty of the remaining counts. Id. The trial court

sentenced Appellant to an aggregate term of fifty-nine to 118 months of

incarceration. Id. at 75-78. Appellant filed a direct appeal, and this Court

affirmed the judgment of sentence. Commonwealth v. Lashley, 190 A.3d

720, 534 WDA 2017 (Pa. Super. filed April 17, 2018) (unpublished

memorandum).

        On November 16, 2018, Appellant filed a motion for return of property

under Pa.R.Crim.P. 588.2 In the motion, Appellant sought the return of one


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1 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), 907(a), 903, 4106(a)(3), and 75
Pa.C.S. § 1543(a), respectively.

2   Rule 588 provides, in relevant part, 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.




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Xbox gaming console, eight PlayStation 4 gaming consoles, and five pairs of

shoes. These items, among others,3 were recovered from the rented vehicle

Appellant was driving at the time of his arrest. N.T., Trial, 3/20/17, at 17-20.

In his motion, Appellant averred that the Commonwealth did not prove that

the items in question were obtained using fraudulent credit cards, and

therefore, they were not contraband. Motion, 11/16/18, at ¶7. The trial court

held a hearing and denied Appellant’s motion for return of property concluding

that the items Appellant requested constituted “derivative contraband.”4

Order, 4/1/19; Trial Court Opinion, 5/21/19, at 3-4.


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        (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), (B).

3 In addition to the gaming consoles and shoes, police seized more than
seventy credit cards bearing Appellant’s name. N.T., Trial, 3/20/17, at 17-
19.

4   Derivative contraband is defined as follows:

        Derivative contraband is property which is innocent in itself but
        which has been used in the perpetration of an unlawful act.
        Property is not derivative contraband, however, merely because it
        is owned or used by someone who has been engaged in criminal
        conduct. Rather, the Commonwealth must establish a specific
        nexus between the property and the alleged criminal activity.

Commonwealth v. Durham, 9 A.3d 641, 646 (Pa. Super. 2010) (citation
omitted).


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       Appellant filed a timely notice of appeal asserting the trial court erred in

denying the motion for return of property. Both the trial court and Appellant

complied with Pa.R.A.P. 1925. In his Pa.R.A.P. 1925(b) statement, Appellant

avers that the property in question was not contraband. Pa.R.A.P. 1925(b)

Statement, 4/26/19, at ¶5; Appellant’s Brief at 3, 11.

       The standard of review applied in cases involving motions for the return

of property is an abuse of discretion. Durham, 9 A.3d at 645 (citing Beaston

v. Ebersole, 986 A.2d 876 (Pa. Super. 2009) (en banc)). “[I]t is the province

of the trial court to judge the credibility of the witnesses and weigh the

testimony offered.” Id. (quoting Commonwealth v. Younge, 667 A.2d 739,

741 (Pa. Super. 1995)). “It is not the duty of an appellate court to act as fact-

finder, but to determine whether there is sufficient evidence in the record to

support the facts as found by the trial court.” Id. (quoting Younge, 667 A.2d

at 741).

       After review, we affirm the trial court’s order denying Appellant’s

motion, but we do so on a different basis.5       Specifically, we conclude that

Appellant’s motion for return of property was untimely and resulted in waiver.

“[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



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5 This Court is not bound by the trial court’s reasoning, and we may affirm the
trial court’s order on any correct basis. Commonwealth v. Wilcox, 174 A.3d
670, 674 n.4 (Pa. Super. 2017).

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disposition.” Commonwealth v. Allen, 107 A.3d 709, 717 (Pa. 2014) (citing

42 Pa.C.S. § 5505)). As noted above, Appellant was sentenced on March 20,

2017.     Thus, Appellant had thirty days from March 20, 2017, to pursue a

motion for return of property under Pa.R.Crim.P. 588. See Allen, 107 A.3d

at 717 (arrestee’s failure to file motion for return of property during the

pendency of the criminal proceedings against him or within thirty days

following dismissal when the trial court had jurisdiction resulted in waiver and

precluded review of his motion). The failure to file a motion for the return of

property during the pendency of the criminal charges or within thirty days

following dismissal of the charges results in waiver. Id. at 718.

        In the case at bar, Appellant filed his motion for return of property on

November 16, 2018, more than eighteen months after the thirty-day period

during which the trial court retained jurisdiction. Allen, 107 A.3d at 717; 42

Pa.C.S. § 5505. Additionally, Appellant’s motion was a “stand alone” motion,

i.e., it was not filed in response to a motion for forfeiture filed by the

Commonwealth. Allen, 107 A.3d at 714 n.6. Although Appellant mentions

an informal request for forfeiture,6 there is no petition for forfeiture in the

record. It is well settled that what is not of record does not exist for purposes

of appellate review. Commonwealth v. Johnson, 33 A.3d 122, 126 n.6 (Pa.

Super. 2011). Accordingly, Appellant’s motion for return of property was an



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6   Appellant’s Motion for Return, 11/16/18, at ¶4; Appellant’s Brief at 6.

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untimely stand-alone motion, and Appellant’s failure to file a timely motion

pursuant to Pa.R.Crim.P. 588 results in waiver. Allen, 107 A.3d at 717-718;

42 Pa.C.S. § 5505. Therefore, we affirm the order denying Appellant’s motion

for the return of property.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2019




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