J-S53011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JUSTIN BAATZ                               :
                                               :
                       Appellant               :   No. 1558 EDA 2019

                 Appeal from the Order Entered April 29, 2019
      In the Court of Common Pleas of Lehigh County Criminal Division at
                       No(s): CP-39-MD-0002886-2017


BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                              FILED JANUARY 17, 2020

        Appellant, Justin Baatz, appeals from the order entered on April 29,

2019. We affirm.

        The trial court ably summarized the underlying facts and procedural

history of this case. We quote, in part, from the trial court’s opinion:

          [Appellant] filed a Motion for Return of Property[, ostensibly
          under Pennsylvania Rule of Criminal Procedure 588,1] on
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1   Pennsylvania Rule of Criminal Procedure 588 provides:

          (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
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         November 6, 2017. In this motion, [Appellant] sought the
         return of his [nine-millimeter] Ruger handgun that was used
         in the [2017] killing of [Alberto] Montanez. An evidentiary
         hearing was conducted on the [] matter on February 1, 2018.
         At the hearing the Commonwealth presented the testimony
         of Detective Joseph Vazquez[, of the Lehigh County Homicide
         Task Force. Appellant] did not testify on his own behalf.

         The testimony at the hearing revealed that on August 16,
         2017, Detective [Vazquez] became involved in a murder
         investigation. Specifically, [Appellant] had called the
         authorities on this day to advise them that he had shot
         Alberto Montanez in the 1100 block of Allen Street,
         Allentown, Lehigh County, Pennsylvania. The victim was [35]
         years old. He was the current boyfriend of [Appellant’s]
         former girlfriend, with whom [Appellant] has a [13-year-old]
         daughter. The victim was seated in his vehicle at the time of
         the shooting.     When members of the Allentown Police
         Department arrived on scene, they observed a weapon
         located in between the victim's legs in the vehicle.
         [Appellant] surrendered the firearm that he used to kill the
         victim to the authorities on that day.

         As part of the investigation, Detective Vazquez spoke with a
         witness, who was a friend of [Appellant]. The witness
         indicated that he and [Appellant] were walking, when
         suddenly the victim pointed a gun at them. The witness
         stated that he took cover, while [Appellant] fired a gun into
         the victim's vehicle. Authorities located [15] casings within
         the victim's vehicle. Detective Vazquez explained that the
         presence of the casings within the vehicle established that
         [Appellant] had to have placed the firearm within the vehicle
         when he discharged it. Detective Vazquez also tried to
         interview [Appellant], but he invoked his rights to remain
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         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.

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        silent. [Appellant] maintained that he fired at and killed the
        victim in self-defense. As the Commonwealth could not
        disprove a claim of self-defense, no charges were brought
        against [Appellant]. [Appellant] had a valid license to carry
        at that time, and he has no prior record that would disqualify
        him from possessing a firearm.

        After the evidentiary hearing, [the trial court] denied
        [Appellant’s] Motion for Return of Property [on February 1,
        2018].

Trial Court Opinion, 5/30/19, at 1-3.

      Appellant filed a notice of appeal from the trial court’s February 1, 2018

order and, on November 20, 2018, this Court affirmed the order on the merits.

Commonwealth v. Baatz, 201 A.3d 863 (Pa. Super. 2018) (unpublished

memorandum) at 1-5. Within the memorandum, we held that the trial court

did not err when it denied Appellant’s Motion for Return of Property because,

during the hearing, Appellant “did not present any evidence indicating that he

was the owner of the handgun, or that he could lawfully possess the handgun.”

Id. at 4.

      On March 20, 2019, Appellant filed with the trial court, a “Motion to

Reconsider Order Denying Return of Property Nunc Pro Tunc” (hereinafter

“Motion for Reconsideration”). The trial court denied Appellant’s Motion for

Reconsideration on March 22, 2019 and Appellant did not file a notice of appeal

from this order. Trial Court Order, 3/22/19, at 1.

      On April 26, 2019, Appellant filed a “Petition for Return of Property.”

Appellant’s “Petition for Return of Property,” 4/26/19, at 1-3.     Within this

petition, Appellant again requested that the trial court grant him relief in the



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form of the return of his nine-millimeter handgun.         Moreover, Appellant

attached the following to his petition: an affidavit, sworn by him, that he owns

the handgun; a copy of the purchase receipt of the handgun; and, a receipt

from the store where he purchased the handgun.              See id. at 2 and

attachments.

      The trial court denied Appellant’s petition on April 30, 2019 and

Appellant filed a timely notice of appeal to this Court. Appellant raises one

claim on appeal:

        Whether the trial court abused its discretion in denying
        Appellant’s second Motion for Return of Property supported
        by newly discovered proof of ownership?

Appellant’s Brief at 3.

      On appeal, Appellant claims that he is entitled to the return of his

property under Pennsylvania Rule of Criminal Procedure 588. Appellant’s Brief

at 11. This is incorrect. In the case at bar, the Commonwealth never filed

charges against Appellant – and no criminal action against Appellant was ever

pending. Therefore, Appellant could not file a motion and proceed under a

rule of criminal procedure to obtain the return of his property when no criminal

action was ever instituted against him. Indeed, as the Pennsylvania Supreme

Court explained:

        Although Rule 588 does not directly address the question of
        timing, it is sufficiently precise with regard to who may file a
        return motion and where the motion must be filed to permit
        us to discern that a criminal defendant has an opportunity to
        file a motion seeking the return of property while the charges
        against him are pending. Specifically, return motions are


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        filed by “a person aggrieved by a search and seizure” and
        must “be filed in the court of common pleas for the judicial
        district in which the property was seized.” Pa.R.Crim.P.
        588(A). Additionally, a return motion may be filed pre-trial
        and joined with a motion to suppress. Id. at 588(C).
        Pursuant to Rule 588, therefore, 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. See 42 Pa.C.S. § 5505 (providing
        that a trial court retains jurisdiction to modify or rescind any
        order within thirty days of its entry, if no appeal has been
        taken).

        [The defendant], therefore, had the opportunity to move for
        return of the property during the pendency of the criminal
        proceedings, or while the trial court retained jurisdiction for
        thirty days following the dismissal of charges.

Commonwealth v. Allen, 107 A.3d 709, 716-717 (Pa. 2014) (emphasis

added) (footnote omitted).

      In the case at bar, the Commonwealth did not file charges against

Appellant. Therefore, at the trial level, Appellant could not have proceeded

under Pennsylvania Rule of Criminal Procedure 588 to obtain the return of his

alleged property and, on appeal, Appellant cannot obtain relief under that rule.

As such, the current appeal immediately fails.

      Further, even if Appellant had properly instituted the current action and

even if Appellant had properly argued his entitlement to relief on appeal, we

would still conclude that the appeal fails, as Appellant’s current action is barred

by the doctrine of res judiciata. We have held:

        the doctrines of res judicata and collateral estoppel . . . serve
        to preclude the litigation, respectively, of claims and issues
        that have previously been litigated.



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        Where there has previously been rendered a final judgment
        on the merits by a court of competent jurisdiction, the
        doctrine of res judicata will bar any future suit on the same
        cause of action between the same parties. Invocation of the
        doctrine of res judicata (claim preclusion) requires that both
        the former and latter suits possess the following common
        elements:

            1. identity in the thing sued upon;

            2. identity in the cause of action;

            3. identity of persons and parties to the action; and

            4. identity of the capacity of the parties suing or being
            sued.

Chada v. Chada, 756 A.2d 39, 42-43 (Pa. Super. 2000) (quotations and

citations omitted).

      “Under res judicata, a final judgment on the merits of an action

precludes the parties or their privies from relitigating issues that were or could

have been raised in that action.” Allen v. McCurry, 449 U.S. 90, 94 (1980).

Res judicata “relieve[s] parties of the cost and vexation of multiple lawsuits,

conserve[s] judicial resources, and, by preventing inconsistent decisions,

encourage[s] reliance on adjudication.” Id.

      Here, between the prior and the current action, there is:         complete

“identity in the thing sued upon” (in both actions, Appellant demanded that

the Commonwealth return his nine-millimeter handgun); complete “identity in

the cause of action” (in both actions, Appellant sought the return of his

property because the handgun “is neither contraband nor derivative

contraband, but [is],     instead, the    exclusive   and lawful property of



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[Appellant]”);2 complete “identity of persons and parties to the action” (in

both actions, Appellant was the petitioner and the Commonwealth was the

respondent); and, complete “identity of the capacity of the parties suing or

being sued” (in both actions, Appellant was acting in his individual capacity

and petitioning for the return of his property from the Commonwealth).

Therefore, it is apparent that res judicata bars Appellant’s current action.

       Notwithstanding the above, on appeal, Appellant claims that he is

entitled to relief because:

         The investigating detective seized Appellant’s purchase
         receipt with the seized property (a handgun) owned by
         Appellant. It was difficult for Appellant to prove ownership
         [during the first hearing] without the receipt. Appellant was
         essentially denied the ability to prove ownership by
         government interference in the form of seizing the purchase
         receipt with the property seized.

Appellant’s Brief at 8 (some capitalization omitted).

       Thus, in essence, Appellant claims that res judicata does not bar his

current action because he did not have an adequate opportunity to obtain a

full and fair adjudication during his initial action. See, e.g., Kremer v. Chem.

Constr. Corp., 456 U.S. 461, 480-481 and n.22 (1982) (“the judicially

created doctrine[s of both res judicata and] collateral estoppel [do] not apply

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2 Compare Appellant’s Petition for Return of Property, 11/6/17, at 1-2 (“[t]he
aforesaid [handgun] is neither contraband nor derivative contraband, but [is],
instead, the exclusive and lawful property of [Appellant]”), with Appellant’s
Petition for Return of Property, 4/26/19, at 2-3 (“[t]he property seized by the
police rightfully belong[s] to [Appellant], [is] not contraband, and [is] neither
derived from nor connected in any way to criminal activity”).


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when the party against whom the earlier decision is asserted did not have a

‘full and fair opportunity’ to litigate the claim or issue;” noting that, “[w]hile

[the Supreme Court’s] previous expressions of the requirement of a full and

fair opportunity to litigate have been in the context of collateral estoppel or

issue preclusion, it is clear . . . that invocation of res judicata or claim

preclusion is subject to the same limitation”).

      Appellant’s claim is frivolous for at least two independent reasons. First,

Appellant’s claim is frivolous because, even without the purchase receipt,

there existed numerous ways that Appellant could have proven his ownership

of the handgun in the prior action (including by simply testifying that he owned

the handgun) and Appellant simply failed to avail himself of any of these

opportunities. See N.T. Hearing, 2/1/18, at 1-11. Second, within Appellant’s

current “Petition for Return of Property,” Appellant did not provide any reason

why he could not have received the purchase receipt from the Commonwealth

prior to the initial hearing. See Appellant’s Petition for Return of Property,

4/26/19, at 1-3.

      Thus, Appellant’s claim on appeal fails for two separate and independent

reasons: contrary to Appellant’s argument on appeal, since Appellant was

never charged with a crime, Pennsylvania Rule of Criminal Procedure 588 does

not provide Appellant with an avenue for relief and, even if Appellant had

properly instituted the current action and even if Appellant had properly




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argued his entitlement to relief on appeal, Appellant’s action is barred by res

judicata. Hence, Appellant’s claim on appeal fails.3

       Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/17/20




____________________________________________


3 Notwithstanding our findings, nothing in this decision should be construed
as preventing Appellant from pursuing any appropriate legal remedies he may
have to seek the return of his property.

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