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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
ORONDE C. DANIELS,                         :           No. 1324 MDA 2017
                                           :
                          Appellant        :


                   Appeal from the Order Entered July 25, 2017,
                in the Court of Common Pleas of Lycoming County
                 Criminal Division at No. CP-41-CR-0001672-2011


BEFORE: SHOGAN, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       FILED JUNE 12, 2018

        Oronde C. Daniels appeals pro se from the July 25, 2017 order

denying his petition to return property filed pursuant to Pennsylvania Rule of

Criminal Procedure 5881 on the basis it was untimely filed.2       After careful

review, we affirm.




1   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.

Pa.R.Crim.P. 588(A). “[B]oth this Court and the Commonwealth Court have
jurisdiction to decide an appeal involving a motion for the return of property
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      The trial court summarized the relevant facts and procedural history of

this case as follows:

                   On October 2, [2012], [a]ppellant entered a
            guilty plea to the charges of person not to possess a
            firearm and possession with intent to deliver a
            controlled substance in exchange for a sentence of
            five to ten years’ incarceration in a state correctional
            institution,   and    the   [trial]  court   sentenced
            [a]ppellant in accordance with the plea agreement.
            Appellant did not file any post-sentence motion or a
            direct appeal. Therefore, [a]ppellant’s judgment of
            sentence became final on or about November 1,
            2012.

                  On July 18, 2017, [a]ppellant filed a petition
            for return of property in which he sought the return
            of all the property (or, in the alternative, the
            monetary value thereof plus interest) that the
            Williamsport police seized from him on October 26,
            2011, when the police searched his residence.

                  On July 25, 2017, the [trial] court entered an
            order denying [a]ppellant’s petition as untimely.

Trial court opinion, 11/16/17 at 1-2.3




filed pursuant to Pa.R.Crim.P. 588.” Commonwealth v. Durham, 9 A.3d
641, 642 n.1 (Pa.Super. 2010), appeal denied, 19 A.3d 1050 (Pa. 2011).

2The Commonwealth has indicated that it will not be filing a brief in this
matter and is relying on the reasoning set forth in the trial court’s
November 16, 2017 Rule 1925(a) opinion.

3 The record reflects that upon stipulation of the parties, the trial court
entered an order on August 14, 2017 directing that $300 seized from
appellant be returned to him. (See Stipulated Order, 8/14/17; certified
record at no. 46.)


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      On August 22, 2017, appellant filed a timely notice of appeal.            On

October 16, 2017, the trial court ordered appellant to file a concise

statement   of   errors    complained    of   on   appeal,   in   accordance   with

Pa.R.A.P. 1925(b), within 21 days. Appellant timely complied, and the trial

court filed a Rule 1925(a) opinion in support of its July 25, 2017 order on

November 16, 2017.

      Appellant raises only one issue for our review: “Did the [trial] court

error [sic] and abuse it’s [sic] discretion in denying appellant’s motion for

return of property?”      (Appellant’s brief at v (capitalization omitted)).   The

crux of appellant’s contention is that he had no opportunity to file a formal

petition to return property during the pendency of the criminal proceedings

and that he “did nothing but follow the Commonwealth’s lead.” (Id. at 4-5,

7.)

      Our standard of review of such matters is clear:

            The standard of review applied in cases involving
            motions for the return of property is an abuse of
            discretion. In conducting our review, we bear in
            mind that it is the province of the trial court to judge
            the credibility of the witnesses and weigh the
            testimony offered. 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.

Commonwealth v. Rodriguez, 172 A.3d 1162, 1165 (Pa.Super. 2017)

(citations omitted).




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      As recognized by the trial court, our supreme court addressed a similar

situation in Commonwealth v. Allen, 107 A.3d 709 (Pa. 2014).              Allen

involved an individual who, nearly eight years after criminal charges against

him were dismissed, moved for the return of property seized from the

vehicle he was driving at the time of his arrest.    Allen, 107 A.3d at 711.

The Allen court held that the petitioner’s failure to file a motion for the

return of property during the pendency of the criminal proceedings against

him or within 30 days following dismissal of the charges resulted in waiver of

the issue, thereby precluding review of his stand-alone return petition. Id.

at 717-718. In reaching this conclusion, the Allen court stated that, “Rule

588 does not require a trial as the triggering event for a return motion.” Id.

at 717. “Pursuant to Rule 588 . . . 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.” Id.

      Here, the record reflects that appellant was sentenced on October 2,

2012, and did not file any post-sentence motions or a direct appeal to this

court. As such, under Allen, appellant had until November 1, 2012, to file a

timely motion for the return of property. Appellant did not file the instant

petition until July 18, 2017, more than four years past the deadline. Based

on the foregoing, we discern no abuse of discretion on the part of the trial

court in concluding that appellant’s petition was untimely filed and that “[he]




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waived any entitlement to the return of the property” in question.   (Trial

court opinion, 11/16/17 at 3.)

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/12/2018




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