J-S47016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JOSE LUIS TORRES,

                        Appellant                  No. 1859 EDA 2013


                  Appeal from the Order of May 30, 2013
             In the Court of Common Pleas of Lehigh County
           Criminal Division at No(s): CP-39-CR-0000289-2012


BEFORE: MUNDY, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.:                        FILED OCTOBER 14, 2014

     Appellant, Jose Luis Torres, appeals pro se from an order entered on

May 30, 2013 in the Criminal Division of the Court of Common Pleas of

Lehigh County that denied his request for the return of certain items of

property seized by the Commonwealth. We vacate and remand for further

proceedings consistent with this memorandum.

     We summarize the relevant facts in this appeal as follows.          On

September 7, 2012, Appellant pled guilty to multiple burglaries in violation

of 18 Pa.C.S.A. § 3502(a).    Thereafter, on September 10, 2012, the trial

court sentenced Appellant to a term of state imprisonment of not less than

seven and one-half to no more than 15 years on each count.        The court

directed that Appellant’s sentences were to run concurrently to each other.

The trial court also ordered the Commonwealth to return to Appellant all
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paperwork (i.e. bank cards, identification cards, passport, and other

miscellaneous records and documents) seized during its investigation of this

case.1    Subsequently, on December 11, 2012, Appellant filed a motion

seeking the return of his paperwork seized by the Commonwealth. The trial

court convened an evidentiary hearing on Appellant’s motion on May 29,

2013.     At the hearing, the Commonwealth explained that photocopies of

most of Appellant’s paperwork had been produced to Appellant. Appellant,

however, was unsatisfied with the photocopies and requested production of

the original documents.           During the hearing, Appellant expressed his

intention to pursue his appellate rights, which, in the court’s view,

contradicted his earlier representations to the trial court at his September

10, 2012 sentencing proceeding.                In light of this development, the trial

court, on May 30, 2013, denied Appellant’s request for the return of his

property.    Appellant filed a timely notice of appeal and concise statement

pursuant to Pa.R.A.P. 1925. The trial court issued its opinion on June 27,

2013. See Trial Court Opinion, 6/27/13, at 1-2.

        Appellant’s brief raises the following questions for our review:

        Whether the lower court committed an error of law or abused it’s
        discretion in denying the Appellant’s [] request for [the] return
        of property where: (1) the [trial] court had previously granted
        the Appellant return of same property, by court order which
        became final two hundred and thirty-three days prior, and the
____________________________________________


1
  Appellant did not challenge the forfeiture of his tangible property for
reduction of the balance of restitution that he owed.



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      instant petition was only based on the Commonwealth’s failure
      to comply with that prior order; and (2) where the [trial] court
      based it’s subsequent denial on a right that does not exist under
      Pa.R.Crim.P. 588, i.e., that the Commonwealth has a right to
      indefinitely retain the Appellant’s property for possible use at
      some unknown future criminal proceeding?

      Whether the [A]ppellant’s federal and state constitutional “Due
      Process” rights were violated, where the lower court did not
      address or dispose of all matters raised by the Appellant’s
      written petition for return of property, and refused to hear the
      Appellant on his complaint that the Commonwealth had not yet
      returned the following:       (1) two bank cards and other
      miscellaneous items; (2) five search warrants and their
      inventories of seized items; (3) post-trial report from the district
      attorney on disposition of forfeited items and balance of
      restitution?

Appellant’s Brief at 3.

      Appellant alleges on appeal that the trial court improperly denied his

motion for the return of property seized during the Commonwealth’s

investigation of this case. Specifically, Appellant alleges that the trial court

erred in reversing its prior order which directed the Commonwealth to return

his property.    See Appellant’s Brief at 10, citing 42 Pa.C.S.A § 5505

(authorizing court, upon notice to parties, to modify or rescind prior orders

for up to 30 days).       Appellant also claims that the Commonwealth has no

right to retain his paperwork since it has not established a connection

between the retained property and any criminal activity and because it has

not demonstrated any evidentiary value in the subject property.          Lastly,

Appellant maintains that the trial court violated his due process rights when

it failed to meaningfully consider his request for the return of his property.


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       In its brief, the Commonwealth makes several concessions relevant to

the issues raised by Appellant. Specifically, the Commonwealth states:

       The Commonwealth concedes that [Appellant] owns the
       documents he references in his [m]otion. It further concedes
       that the documents are not contraband, per se.[2] Under the
       precedent set by [Commonwealth v. Stipetich, 623 A.2d 360
       (Pa. Super. 1993)], anticipation of potential future litigation does
       not grant the prosecution the right to retain a defendant’s
       property. As established at the May 29, 2013 hearing, the
       Commonwealth’s rationale for keeping the originals of the
       requested documents is that they would constitute evidence in
       the event that defendant is granted another trial as a result of
       his appeals.

       The trial court was satisfied with the Commonwealth’s argument
       regarding retention of [Appellant’s] documents. However, the
       Commonwealth concedes that this Court may not view
       anticipation of future litigation as a sufficient basis for denying
       [Appellant] his original paperwork.              Accordingly, the
       Commonwealth is satisfied to have this Honorable Court
       determine whether or not it should return these original
       documents to [Appellant].

Commonwealth’s Brief at 10-11.3

       The standard of review we apply in such cases focuses upon whether

the court abused its discretion in disposing of the moving party’s claim.

____________________________________________


2
  Our Pennsylvania Supreme Court defined the terms “contraband per se”
and “derivative contraband” as “[c]ontraband per se is property the mere
possession of which is unlawful ... [and] derivative contraband is property
innocent by itself, but used in the perpetration of an unlawful act.”
Commonwealth v. Howard, 713 A.2d 89, 92 (Pa. 1998), quoting
Commonwealth v. Fassnacht, 369 A.2d 800, 802 (Pa. Super. 1977).
3
  We thank and commend the Commonwealth for its candor to this Court
and its evident desire to avoid burdening this tribunal with frivolous
contentions.



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Beaston v. Ebersole, 986 A.2d 876, 880 (Pa. Super. 2009), citing

Commonwealth v. Smith, 757 A.2d 354 (Pa. 2000). “[Appellate] review

of a trial court’s decision on a petition for the return of property is limited to

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

by competent evidence… .” Boniella v. Commonwealth, 958 A.2d 1069,

1072 n.6 (Pa. Cmwlth. 2009). Pennsylvania Rule of Criminal Procedure 588

governs motions for the return of property. It states 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. …

Pa.R.Crim.P. 588.4

       Under [Rule 588], on any motion for return of property, the
       moving party must establish by a preponderance of the evidence
       entitlement to lawful possession.     Once that is established,
       unless there is countervailing evidence to defeat the claim, the
       moving party is entitled to the return of the identified property.
       A claim for return of property can be defeated in two ways: an
       opposing party can establish that it, not the moving party, is
____________________________________________


4
  Pa.R.Crim.P. 588 was previously numbered Pa.R.Crim.P. 324.                  The
substance of the rule has remained unchanged.



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      entitled to lawful possession to the property or the
      Commonwealth can seek forfeiture claiming that property for
      which     return    is   sought   is   derivative   contraband.
      Commonwealth v. Crespo, 884 A.2d 960 (Pa. Cmwlth. 2005).
      To meet its burden to defeat the motion for return of property,
      the Commonwealth must make out more than simply
      demonstrating that the property was in the possession of
      someone who has engaged in criminal conduct.           It must
      establish a specific nexus between the property and the criminal
      activity. Commonwealth v. Howard, 713 A.2d 89 (Pa. 1998);
      Commonwealth v. 2001 Toyota Camry, 894 A.2d 207 (Pa.
      Cmwlth. 2006).

Commonwealth v. Durham, 9 A.3d 641, 645-646 (Pa. Super. 2010)

(parallel citations omitted), appeal denied, 19 A.3d 1050 (Pa. 2011).

      In view of the Commonwealth’s concessions, the only available avenue

for resisting Appellant’s motion is establishing that the retained property

constitutes derivative contraband.      The trial court made no such finding,

however. Instead, the trial court offered the following rationale in support of

its order denying Appellant’s motion:

      While [the trial court] acknowledges that at the sentencing
      hearing conducted on September 10, 2012, [the court] ordered
      that the Commonwealth return to [Appellant] any paperwork
      seized during the investigation of the within matter, it was based
      on [Appellant’s] acceptance of responsibility for his actions and
      expression of his desire to put this case behind him. However,
      at the evidentiary hearing conducted on May 29, 2013,
      [Appellant] expressed his intention to pursue all of his appellate
      rights, which was a contradiction of what he had represented to
      [the trial court] at the time of sentencing. In light of the change
      in circumstances, [the trial court] found that the Commonwealth
      is entitled to retain the original documents that it has in its
      possession while [Appellant] is pursuing his appellate rights.

Trial Court Opinion, 6/27/13, at 2-3. This assessment misapplies the legal

principles governing Appellant’s request for the return of his property.

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Hence, we find that the trial court abused its discretion and we shall vacate

its order.

       Our review of the certified record reveals that the trial court did not

make    individualized   determinations   of   whether   the   requested   items

constituted derivative contraband and, if not, whether the Commonwealth

has returned these items. Because the present state of the record does not

permit us to undertake meaningful appellate review, we shall remand this

matter for further proceedings consistent with this memorandum.

       We offer the following guidance to the trial court in conducting its

inquiry on remand. Several of the items listed on the inventory form appear

to possess little, if any, conceivable connection to the criminal offenses

charged in this case.        These items include:        Appellant’s passport,

Pennsylvania identification card, social security card, video membership

card, health plan card, public library card, power of attorney, Department of

Homeland Security I-129F Petition, Pennsylvania restoration requirements

letter, and online credit reports. See Appellant’s Brief at Appendix A6 Items

1, 2, 4, 5, 6, 7, 16, 17, 18, 19, and 20. Conversely, other items listed on

the inventory form could potentially relate to the criminal activity in this case

since they could confirm Appellant’s acquisition, use, transfer, or storage of

proceeds from criminal activity. These items include:       Appellant’s Western

Union Gold card, monetary transfer receipts, mobile home sales agreement,

storage garage rental agreement, rare coin transaction receipts, general


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invoices, and precious metal sales license. See id. at Items 3, 8, 9, 10, 11,

12, 13, 14, and 15. On remand, the trial court shall convene a hearing and

inquire into whether the foregoing items constitute derivative contraband.

If, after receiving testimony and making credibility determinations and

factual findings, the trial court determines that items on the inventory list do

not constitute derivative contraband, then the trial court shall direct the

Commonwealth to return those items forthwith, to the extent it has not

previously done so.       See N.T., 5/29/13, at 102-103 (indicating that

Commonwealth may already have returned Appellant’s passport, certain

bankcards, and other “miscellaneous” items).         If, however, any of the

retained property qualifies as derivative contraband, then the trial court shall

direct that the Commonwealth may continue to possess such items.

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2014




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