J-S26014-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                                :         PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    LARRY CRAIG RICHARDSON, JR.                 :
                                                :
                       Appellant                :    No. 1166 WDA 2019

                   Appeal from the Order Dated July 23, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0008374-2015


BEFORE:       MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.:                                    FILED JULY 08, 2020

        Larry Craig Richardson, Jr. (Appellant) appeals from the order denying

his motion for return of property. We affirm.

        In 2015, the Pennsylvania Attorney General’s Office and the Ross

Township Police Department investigated Appellant for suspicion of drug

dealing. Through the course of the investigation, Officer Jason Moss learned

that    the   Pennsylvania     Department      of   Transportation   had   suspended

Appellant’s license.      On April 3, 2015, officers conducted surveillance of

Appellant at his apartment.         Officer Balazs Devenyl sat in the back of an

unmarked SUV in the apartment parking lot. Officer Moss waited nearby at

the exit of the apartment complex, also in an unmarked car. Finally, Patrol




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S26014-20



Officer Mark Sullivan positioned himself in a marked vehicle in the general

area to provide additional assistance.

      Appellant exited his apartment carrying a black bag.           Police saw

Appellant enter his Range Rover SUV and begin driving away. After Appellant

drove approximately half a mile, he approached the entrance ramp to the

interstate.   Officer Moss directed Officer Sullivan to pull Appellant over for

driving with a suspended license. Officer Sullivan positioned himself directly

behind Appellant, and initiated a traffic stop by activating his lights. Upon

seeing the police officer’s lights, Appellant drove onto the berm of the entrance

ramp and stopped; however, a portion of his SUV remained in the lane of

traffic. Officer Sullivan pulled his patrol car behind Appellant’s SUV; Officer

Moss arrived soon after.

      Officer Moss asked [Appellant] to exit the SUV and gave him a
      traffic ticket for driving with a suspended license (a summary
      offense). Next, the officer decided that the vehicle’s location
      required that it be removed from the lane of traffic.         Per
      department policy, [Appellant] had a 20-minute window to move
      the vehicle. The police did not advise [Appellant] of this policy.
      Instead, [Appellant] asked if his girlfriend could move his SUV.
      Officer Moss asked if she was at the apartment complex
      [Appellant] had just left. [Appellant] said no. So Officer Moss
      determined that no one was close enough to move the vehicle and
      ordered a tow.

      Officer Moss then conducted what he considered to be an
      inventory search of the vehicle. When Officer Moss began his
      search, he did not have the department’s standard inventory form
      with him. Upon entering [Appellant’s] vehicle, the first thing that
      Officer Moss inventoried was [a] small black bag. [The small black
      bag contained] 25 bricks of heroin and approximately 9 grams of
      cocaine.


                                      -2-
J-S26014-20


        [Officer Moss] immediately terminated the inventory search and
        had the vehicle towed to the police station. Based on the drugs
        found in [Appellant’s] SUV, the police then obtained warrants to
        search his apartment and to search the vehicle more extensively.
        The police seized additional evidence.[1]

Commonwealth v. Richardson, 1291 WDA 2016, at *3-4 (Pa. Super. March

29, 2019) (unpublished memorandum) (citation omitted).

        On September 23, 2015, Appellant filed a motion to suppress all physical

evidence obtained from the vehicle search, which the trial court denied on

March 31, 2016.        Following a bench trial, Appellant was convicted of two

counts each of possession with intent to deliver a controlled substance and

possession of a controlled substance, and one count of driving with a

suspended license.2 The trial court sentenced Appellant to an aggregate 5 to

10 years of incarceration, followed by five years of probation.       Appellant

appealed.

        Appellant’s convictions led to a forfeiture proceeding pursuant to the

Controlled Substances Forfeiture Act (the Forfeiture Act), 42 Pa.C.S.A. §§

6801-6802,3 involving $19,504.00 and the Range Rover SUV. On November

1, 2016, Appellant entered into a consent agreement with the Commonwealth,

forfeiting $13,004.00 and the SUV; the Commonwealth agreed to return the



____________________________________________


1   Police also seized $19,504.00 in cash.

2   35 P.S. § 780-113(a)(30), (16) and 75 Pa.C.S.A. § 1543(b)(1).

3Effective July 1, 2017, the Forfeiture Act was recodified at 42 Pa.C.S.A. §§
5801-5808.

                                           -3-
J-S26014-20



remaining $6,500.00 to Appellant.              Appellant did not appeal the forfeiture

order.

       In the appeal of his judgment of sentence, this Court, on March 29,

2019, determined that the trial court erred by failing to suppress the evidence

seized from Appellant’s SUV.             Accordingly, we reversed the denial of

suppression, vacated the judgment of sentence, suppressed the evidence, and

remanded the case to the trial court. The trial court docket indicates that on

May 2, 2019, the Commonwealth filed a petition to nolle pros all charges,

which the trial court granted.

       On June 7, 2019, Appellant filed a petition for return of property, seeking

the return of $13,004 and the fair market value of the Range Rover.4 On June

25, 2019, the Commonwealth filed an answer. The trial court held a hearing

on July 23, 2019, after which it denied Appellant’s motion. Appellant filed the

underlying appeal. Both Appellant and the trial court have complied with Rule

of Appellate Procedure 1925.

       Appellant presents a single issue for our review:

       1. DID THE TRIAL COURT ERR IN DENYING [APPELLANT’S]
          MOTION FOR RETURN OF PROPERTY BECAUSE THE PROPERTY
          WAS NOT PROPERLY SUBJECT TO FORFEITURE?




____________________________________________


4By the time Appellant filed this petition, the Commonwealth had sold the
Range Rover.




                                           -4-
J-S26014-20



Appellant’s Brief at 4.5

       Our scope of review in an appeal from a forfeiture proceeding is limited

to examining whether findings of fact made by the trial court are supported

by substantial evidence, and whether the trial court abused its discretion or

committed an error of law.             Commonwealth v. Real Property and

Improvements Known as 5444 Spruce St., 832 A.2d 396, 398 (Pa. 2003).

Because this appeal also involves a question of law, the standard of review is

de novo and the scope of review is plenary. Id.; see also Commonwealth

v. Allen, 107 A.3d 709, 714 (Pa. 2014) (applying a de novo standard of review

when considering the timeliness of a motion for return of property).

       “The goal of the Forfeiture Act is to eliminate economic incentives of

drug-related activity and thereby deter such activity.” Commonwealth v.

Heater, 899 A.2d 1126, 1132 (Pa. Super. 2006). The plain language of the

Forfeiture Act designates forfeiture proceedings as “in rem, in which the

Commonwealth shall be the plaintiff and the property the defendant.”        42

Pa.C.S.A. § 5805(a). In rem actions generally are instituted to determine the

status of property, and the rights of individuals with respect thereto; an in

rem forfeiture proceeding in particular determines the status of property and

the respective rights of the Commonwealth and the property owner resulting

from the property owner’s criminal conduct.         See Commonwealth v.
____________________________________________


5 “Both [the Superior Court] and the Commonwealth Court have jurisdiction
to decide an appeal involving a motion for the return of property filed [under
Pa.R.Crim.P.] 588.” Commonwealth v. Durham, 9 A.3d 641, 642 n.1 (Pa.
Super. 2010).

                                           -5-
J-S26014-20



$9,847.00 U.S. Currency, 704 A.2d 612, 615–16 (Pa. 1997) (explaining that

forfeiture    proceedings     involve   the   owner’s   property   rights,   the

Commonwealth’s financial interest, and the government’s interest in deterring

illegal drug transactions).

      This Court has deemed in rem forfeiture proceedings brought pursuant

to the Forfeiture Act to be civil in nature.     Commonwealth v. Wingait

Farms, 690 A.2d 222, 226 (Pa. 1997) (holding that “the General Assembly

intended forfeitures brought pursuant to [the Forfeiture Act] to be civil in

nature”). Property is forfeited not as a result of the criminal conviction, but

through a separate proceeding, civil in form but quasi-criminal in nature, in

which the agency seeking the property must show, by a preponderance of the

evidence, a nexus between the property sought and the possessor’s illegal

activity.    Commonwealth v. All That Certain Lot or Parcel of Land

Located at 605 University Drive, 104 A.3d 411, 420-21 (Pa. 2014). The

Act provides that multiple items are subject to forfeiture, including controlled

substances, vehicles used to transport controlled substances, and “money . .

. furnished or intended to be furnished by any person in exchange for a

controlled substance in violation of The Controlled Substance, Drug, Device

and Cosmetic Act, and all proceeds traceable to such an exchange.”           42

Pa.C.S.A. § 5802(a)(4), (a)(6)(i)(A).

      Notably, while forfeiture proceedings are separate from criminal
      proceedings, the course of criminal proceedings may have
      significant impact on forfeiture proceedings. For example, the
      Commonwealth cannot use evidence in forfeiture proceedings that
      has been suppressed in criminal proceedings. Commonwealth

                                        -6-
J-S26014-20


       v. Jackson, 53 A.3d 952, 958 (Pa. Cmwlth. 2012) (“only where
       the government has independent, unsuppressed evidence that the
       res is contraband is it entitled to proceed to the merits in a
       forfeiture case”). In addition, . . . the absence of a final order in
       the defendant’s criminal case might preclude him from taking an
       immediate appeal from a forfeiture order.

Commonwealth v. Bowers, 185 A.3d 358, 362 (Pa. Super. 2018).

       Here, Appellant’s right to seek the return of his seized property is

governed by Pennsylvania Rule of Criminal Procedure 588, which provides:

       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). A person seeking the return of seized property must

prove, by a preponderance of the evidence, his entitlement to lawful

possession of the property. Commonwealth v. Johnson, 931 A.2d 781, 783

(Pa. Cmwlth. 2007).6 “[A] mere allegation of entitlement meets this burden.”

Id. at 784. Once the moving party satisfies this burden, the burden shifts to

the Commonwealth to prove that the property is contraband or derivative

contraband. Id. at 783-84.

       Appellant argues that his property was not subject to forfeiture under

the Forfeiture Act because “[a]ny evidence that the Commonwealth could have



____________________________________________


6While decisions of the Commonwealth Court are not binding on this Court,
we may elect to follow its decisions if we find the rationale persuasive.
Commonwealth v. Thomas, 814 A.2d 754, 758 n.2 (Pa. Super. 2002).

                                           -7-
J-S26014-20


used to establish a nexus between the seized items and criminal activity was

subject to the exclusionary rule after [the Superior Court] . . . reverse[d] the

[t]rial [c]ourt’s suppression ruling.”     Appellant’s Brief at 11; see also

Jackson, 53 A.3d at 958. Appellant contends that this Court’s reversal of the

trial court’s suppression ruling was a “substantial change in circumstances

from 2016.” Id. at 14. Appellant submits that he relied on the trial court’s

finding that the evidence was admissible when he entered into the 2016

consent agreement, and that the Commonwealth should not be able to benefit

from evidence that was unlawfully obtained. Id. at 14-15.

      The Commonwealth argues that Appellant is not entitled to relief for two

reasons. First, it emphasizes that Appellant “elected” to enter into the 2016

forfeiture agreement “keenly aware that his suppression claim was the subject

of ongoing litigation,” and his 2019 claim for the return of property was

untimely.   Commonwealth Brief at 7.       The Commonwealth also posits that

forfeiture agreements do not need to be supported by a criminal conviction,

and that Appellant “relieved the Commonwealth of the burden of establishing

this nexus by entering into a stipulation of forfeitability.” Id. at 9.

      Second, the Commonwealth argues that Appellant’s claim is barred by

the doctrine of res judicata.         Id. at 8.      The Commonwealth cites

Commonwealth v. Perez, 941 A.2d 778 (Pa. Cmwlth. 2008), which held that

the doctrine of res judicata barred Perez’s motion for return of property

because Perez failed to appeal the issue during the initial forfeiture


                                      -8-
J-S26014-20


proceeding. In Perez, a drug conviction was reversed on appeal and nolle

prossed on remand. Despite the lack of an underlying conviction, the trial

court declined to return forfeited property to Perez, and the Commonwealth

Court affirmed. Here, the Commonwealth explains that “the civil forfeiture

proceeding, though implicating issues and facts involved in the subsequently

dismissed criminal prosecution, became final when the petition for forfeiture

was granted and no appeal was taken within the allotted time.” Id. Because

Appellant failed to appeal the forfeiture judgment within the applicable appeal

period, he cannot attempt to reopen the judgment nearly three years later.

See id.

      We first address res judicata, which bars a subsequent suit on the same

claim after the relevant appeal period has expired. First Union Mortgage

Corp. v. Frempong, 744 A.2d 327 (Pa. Super. 1999). For res judicata to

apply, there must be a concurrence of four conditions: (1) identity of issues;

(2) identity of causes of action; (3) identity of persons and parties to the

action; and (4) identity of the quality or the capacity of parties suing or sued.

Reber v. Tschudy, 824 A.2d 378, 382 n.6 (Pa. Cmwlth.2003). The doctrine

provides finality to the proceedings. Clark v. Troutman, 502 A.2d 137 (Pa.

1985).

      We reject the Commonwealth’s argument that Appellant’s return of

property claim is barred by res judicata and find that Perez is distinguishable

from the instant matter. Importantly, the Commonwealth in Perez filed a


                                      -9-
J-S26014-20


petition for forfeiture pursuant to the Forfeiture Act, involving $2,176 and a

1990 Eagle Premier sedan owned by Perez. Following a hearing, the trial court

granted the forfeiture petition. Perez did not appeal that decision. On appeal

of his criminal convictions, this Court held that Perez’s trial counsel in the

criminal prosecution was ineffective for failing to challenge the trial court’s

lack of subject matter jurisdiction. Following remand, the trial court granted

the Commonwealth’s motion for the entry of a nolle prosequi.         Perez then

petitioned the trial court for the return of the $2,176 and the 1990 Eagle

Premier sedan, arguing that the court lacked jurisdiction to grant the forfeiture

petition. The trial court denied Perez’s petition and the Commonwealth Court

affirmed, holding:

      Perez is attempting to re-litigate the civil forfeiture proceeding by
      calling into question the basis for the Commonwealth’s exercise of
      jurisdiction over the property forfeited. Perez does so long after
      the relevant appeal period for the forfeiture has run.

      The civil forfeiture proceeding, though implicating issues and facts
      involved in the dismissed criminal prosecution, became final when
      the petition for forfeiture was granted and no appeal was taken
      within the statutorily allotted time.

      At no point during the intervening years did Perez attempt to
      attack the forfeiture judgment, even though timely appeal of the
      May 25, 2001, order granting the forfeiture would have allowed
      Perez to argue the jurisdictional issue. He declined to do so,
      despite raising a related argument in his criminal case appeal to
      the Superior Court. Finding that he could do so now would re-
      open the door and renew civil litigation six years after judgment
      was entered, and absent any appeal.

Perez, 941 A.2d at 781 (footnote omitted).      In Perez, the Commonwealth’s

petition for forfeiture and Perez’s motion for return of property involved the

                                     - 10 -
J-S26014-20


same substantive issue, i.e., who was entitled to possession of the property

seized by law enforcement. Thus, the Commonwealth’s petition for forfeiture

represented Perez’s first opportunity to litigate the issue. Following a hearing,

the petition was denied and Perez did not appeal. Although Perez’s conviction

was ultimately overturned, the doctrine of res judicata barred Perez from

attempting to relitigate the same matter a second time.

      Here, Appellant and the Commonwealth agree that the Commonwealth

did not file a forfeiture petition, and Appellant consented to the forfeiture. See

Appellant’s Brief at 6 (“[Appellant] . . . entered into an agreement with the

Pennsylvania Attorney General’s Office whereby some property was forfeited

to the Commonwealth pursuant to the [Forfeiture Act].”); Commonwealth

Brief at 3, 8 (“[Appellant] entered into a consent order with the

Commonwealth under which he agreed to forfeit [his property] to the

Commonwealth. . . .”). Thus, Appellant’s claim that the Commonwealth failed

to prove, by a preponderance of the evidence, a nexus between the property

seized and illegal activity, has not been litigated, such that we cannot discern

the “concurrence of conditions” necessary for a finding of res judicata.

      Likewise, we reject the Commonwealth’s argument that Appellant was

required to raise his claim within 30 days of the entry of the consent order.

See Commonwealth Brief at 9. We have explained:

      “[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.” Commonwealth v. Allen, 107 A.3d 709,
      717 (Pa. 2014) (citing 42 Pa.C.S.A. § 5505 (providing that a trial

                                      - 11 -
J-S26014-20


       court retains jurisdiction to modify or rescind any order within
       thirty days of its entry, if no appeal is taken)). Thus, in Allen,
       our Supreme Court held that a defendant may move for the return
       of property during the pendency of the criminal proceedings, or
       while the trial court retains jurisdiction for thirty days following its
       disposition of the criminal case. See id.

Commonwealth v. Rodriguez, 172 A.3d 1162, 1164 n.10 (Pa. Super.

2017). To reiterate, our Supreme Court in Allen explained that a motion for

return of property is timely if it is filed during the pendency of the criminal

proceedings, or while the trial court retains jurisdiction for 30 days

following its disposition of the criminal case. Allen, 107 A.3d at 717

(emphasis added).

       Here, the trial court docket entries show that following remand from this

Court, the Commonwealth on May 2, 2019, filed a motion to nolle prosse

Appellant’s charges, which the trial court granted that same day. Appellant

filed his petition for return of property on June 7, 2019 – 34 days after the

disposition.7 However, both the motion for and order granting nolle prose are

absent from the record, and the docket does not indicate whether or when

Appellant was provided with notice of disposition by nolle prosse.                See

Pa.R.A.P. 108(a)(1), (d) (the 30-day time period for appealing from a criminal

order other than a judgment of sentence begins to run on the day that the



____________________________________________


7 Appellant had until Monday, June 3, 2019 to file his motion for return of
property. See 1 Pa.C.S.A. § 1908 (when the last day of the 30-day appeal
period falls on a weekend . . . such day shall be omitted from the computation
of time).

                                          - 12 -
J-S26014-20


order is served on the parties by the clerk of courts). Accordingly, because

the record does not contain the Commonwealth’s motion, the trial court’s

order, or notice by the clerk of courts that the order was served on the parties,

we construe Appellant’s petition as timely.

      Finally, we conclude that although Appellant’s challenge to the forfeiture

was timely, he is not entitled to relief. For property to be seized and forfeited,

neither a criminal prosecution nor a conviction is required. Commonwealth

v. $11,600.00 cash, 858 A.2d 160, 167 (Pa. Cmwlth. 2004); see also

Commonwealth v. 502-504 Gordon St., 607 A.2d 839 (Pa. Cmwlth. 1992),

affirmed, 636 A.2d 626 (Pa. 1994). The property is forfeited not as a result

of the criminal conviction of the person or persons from whom the property

was seized, but through a separate civil proceeding in which the law

enforcement agency seeking the property must show, by a preponderance of

the evidence, only a nexus between the property sought to be forfeited and

the possessor’s unlawful activity. Id.; see also Commonwealth v. $1920

U.S. Currency, 612 A.2d 614 (Pa. Cmwlth. 1992).

      The Commonwealth is correct that Appellant, by entering into the 2016

forfeiture agreement, relieved the Commonwealth of establishing a nexus

between the property seized and illegal activity; in fact, by signing the consent

agreement, Appellant agreed that the property was derivative contraband and

“subject to forfeiture pursuant to the Controlled Substances Forfeiture Act.”

Motion for Return of Property, 6/7/19, Ex. A at 1; see also Appellant’s Brief


                                     - 13 -
J-S26014-20


at 11. Further, in signing the forfeiture agreement, Appellant informed the

court that he did not contest the forfeiture and chose not to exercise his right

to contest the proceeding. Id. (“[Appellant] agrees and states that [he] is

waiving [his] rights to a forfeiture hearing/trial with full knowledge of the

consequences of [his] action and without any duress or coercion placed upon

[him].”). The fact that the Commonwealth subsequently withdrew Appellant’s

charges and did not obtain a criminal conviction is of no consequence. To hold

otherwise would be contrary to the principles of the Forfeiture Act, i.e., that

neither a criminal prosecution nor a conviction is required for property to be

seized and forfeited.8 $11,600.00 cash, 858 A.2d at 167.

       Based on the foregoing, we affirm the trial court’s denial of Appellant’s

motion for return of property.


____________________________________________


8 As Appellant recognizes in his brief, the suppression motion and forfeiture
consent agreement in this case are intertwined. Appellant moved to suppress
the drugs and money recovered from his vehicle during the traffic stop. Had
the trial court suppressed this evidence, the Commonwealth would not have
been able to use them as evidence in a forfeiture proceeding. See Jackson,
53 A.3d at 958. The trial court, however, declined to suppress this evidence,
and Appellant then consented to forfeiture. In Commonwealth v. Bowers,
185 A.3d 358 (Pa. Super. 2018), this Court recognized the risk of seeking
forfeiture before a judgment of sentence becomes final “for if [the a]ppellant
challenges both the order denying suppression and the forfeiture order in an
appeal from a final order, the appellate court’s disposition of the suppression
issue will likely affect what evidence the appellate court may consider in
connection with the forfeiture issue.” Id. at 363. This case illustrates the
affect alluded to in Bowers. However, as discussed supra, Appellant
consented to the forfeiture of his property – relieving the Commonwealth of
its burden to prove a nexus – knowing he intended to appeal the denial of his
suppression motion. Appellant is now bound by the stipulations in the consent
agreement.

                                          - 14 -
J-S26014-20


     Order affirmed.

     Judge McLaughlin joins the memorandum.

     Judge Pellegrini concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2020




                                    - 15 -
