J-S18022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

MICHAEL EVAN KEELING,

                         Appellant                   No. 1431 EDA 2014


                Appeal from the Order entered March 27, 2014,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division, at No(s): CP-51-MD-0007358-2010


BEFORE: BENDER, P.J.E., ALLEN, and MUNDY, JJ.

MEMORANDUM BY ALLEN, J.:                            FILED MARCH 10, 2015

      Michael Evan Keeling (“Appellant”) appeals pro se from the trial court’s

order granting in part and denying in part his petition for return of property.

We affirm.

      The trial court summarized:

            Following a lengthy procedural history, [the trial] court
      held an evidentiary hearing to address Appellant’s return of
      property petition on March 27, 2014 and entered orders
      returning $900 United States currency to Appellant, denying
      Appellant’s return of all other tangible property as moot, and
      denying Appellant’s request for payment of interest on the funds
      that were returned to him.

           Appellant filed a motion for reconsideration on April 11,
      2014, which [the trial] court denied on the same day.
      Subsequently, Appellant filed a timely appeal to the Superior
      Court of Pennsylvania on April 28, 2014. Within the notice of
      appeal, the Appellant also included a statement of matters
      complained of on appeal pursuant to Pa.R.A.P. §1925(b)[.]
J-S18022-15



Trial Court Opinion, 7/28/14, at 1.

       Appellant presents two issues for our review:

       1.   The trial court erred by its failure to grant relief pursuant
       to 42 C.S. § 6801-6802 forfeiture of property in the form of a
       judgment on the pleadings when the Commonwealth never
       sought forfeiture of items No. 1493309, No. 1493310, No.
       1493315, and unknown receipt of clothing.

       2.     The trial court erred by not granting Appellant yearly
       interest rates for nineteen plus years on the nine hundred dollars
       when the Commonwealth had agreed to return funds in a case
       filed nolls [sic] pros in 1997.

Appellant’s Brief at iii.

       An appellate court's review of a trial court's decision on a petition for

return of property is limited to examining whether findings of fact made by

the trial court are supported by competent evidence and whether the trial

court abused its discretion or committed an error of law. Commonwealth

v. Wintel, Inc., 829 A.2d 753 (Pa. Cmwlth. 2003).1

       Regarding Appellant’s first issue, we agree with the trial court that

Appellant’s claim is moot. Commonwealth v. Matsinger, 68 A.3d 390 (Pa.

Cmwlth. 2013) (where the Commonwealth is not in possession of the

property, a petition for the return of the property is moot). See also In re



____________________________________________


1
  “Although decisions of the Commonwealth Court are not binding on this
Court, we may rely on them if we are persuaded by their reasoning.”
Charlie v. Erie Ins. Exch., 100 A.3d 244, 253 n.9 (Pa. Super. 2014)
(citation omitted).



                                           -2-
J-S18022-15



Duran, 769 A.2d 497 (Pa. Super. 2001) (If events occur to eliminate the

claim or controversy at any stage of the process, the case becomes moot.).

      The trial court explained:

           Appellant’s request for the return of other tangible
      property was properly denied as moot because the
      Commonwealth no longer possessed the property in dispute.

            Where the Commonwealth is no longer in possession of
      property, a petition filed for the return of that property is moot.
      See Commonwealth v. One 1978 Lincoln Mark V., 415 A.2d 1000
      (Pa. Cmwlth. 1980). As to Appellant’s items on property receipts
      1493310 and 1493315, the Commonwealth provided evidence
      that proved the property had been transferred to the
      Pennsylvania Revenue Department and was no longer in the
      Commonwealth’s possession.         As to the clothing placed on
      property receipt 1493309, the Commonwealth presented
      evidence that those items had been destroyed in 2001 by order
      of the court on August 20, 2001. As to all other property, the
      Commonwealth contends that Appellant has provided insufficient
      information, in the form of property receipt numbers, which
      would enable the Commonwealth to locate those items. A
      review of the pleadings confirms the Commonwealth’s allegation.

Trial Court Opinion, 7/28/14, at 2-3.

      Our review of the record supports the trial court’s finding of mootness.

At the hearing on Appellant’s petition for return of property, the Assistant

District Attorney stated, “We are going to return the money to [Appellant]

because that’s still available. We cannot return other items to [Appellant]

and we will explain exactly why.” N.T., 3/27/14, at 5. The Assistant District

Attorney and Appellant agreed that receipts No. 1493310 and 1493315

pertained to jewelry, and receipt No. 1493309 pertained to clothing. Id. at

7-8. The Assistant District Attorney moved for the admission of Exhibit C2,


                                     -3-
J-S18022-15



which was a copy of the two receipt reports.      Id. at 9-10.   The Assistant

District Attorney explained in detail:

      [A]fter a certain number of years, property that’s unclaimed
      goes to the State of Pennsylvania. It’s held by the Revenue
      Department. As miscellaneous unclaimed property, you can
      actually ask for it back from the Pennsylvania Revenue
      Department. The police no longer have it.

            Your Honor, as you can see from the report, it indicates
      that that was disposed of in 2006, both items on those property
      receipts.

            The second report that I gave Your Honor is a list of all the
      property receipts of all the items that sheeted [sic] to the state
      on June 29, 2006. On the second page of that list are the two
      property receipt numbers that end in 10 and 15 which account
      for the jewelry.

            In other words, sir, in 2006 the police, looking at the
      computer indicating that this case was over with, [Appellant’s]
      criminal case was over with, gave [Appellant’s] property to the
      State of Pennsylvania. The State of Pennsylvania through the
      Revenue Department holds items that are unclaimed. So at this
      point, the last whereabouts of those items is going to be with the
      Revenue Department, so [Appellant] can make any claims for
      those items to the Revenue Department. They have their own
      procedures for returning items. Today the issue is moot in front
      of the judge because they’re no longer in the possession of law
      enforcement.

            Your Honor, moving on, okay, with regard to the items,
      okay, that were placed on property receipt 1493309, those
      [Appellant] didn’t ask for those back but I just wanted to make
      sure that everything that was in [Appellant’s] name was dealt
      with today. That’s listed as clothing, Your Honor, and I did
      check with the evidence custodian to determine what might have
      happened to that.

            I’m going to ask the court today to sign an order denying
      [Appellant’s] return of those items only because it again is moot
      because the law – the police department no longer has those
      items. They no longer have your clothing and in support of that,


                                         -4-
J-S18022-15


      Your Honor, I have a set of documents I collectively call as
      Exhibit C3 and I will explain what they are.

             The first document is from the – it’s a memo from the
      evidence custodian where he’s requesting that certain items be
      destroyed and it’s a 15 page list of items that are on property
      receipts that they ask to be destroyed because as far as they
      could tell, the criminal case was over with. This memo is dated
      July 19, 2001 and it’s signed by Lieutenant Hrywnak, H-r-y-w-n-
      a-k. He’s the evidence custodian and he asks that this 15 page
      list of items be destroyed. And Page 9, which I have made a
      copy of that 15 page list, lists down the items on property
      receipt 1493309 which, as I told you before, is listed as clothing.

             Additionally, in that same packet is a letter – excuse me,
      it’s a memo – I’m sorry, it’s a petition, a petition for the
      destruction of property. It was made by Karen Simmons who’s
      legal counsel at the Deputy Solicitor’s Office.

             What they do is on behalf of the police department, when
      the items that they need to have destroyed, the deputy solicitor
      makes a motion to the court so those items can be destroyed.
      This is a copy of that motion.

            Thirdly, in that packet is the actual order from the judge
      which references back that memo from July 19th, 2001 and that
      15 pages – 15 page attachment which included that property for
      [Appellant’s] clothing. It’s signed by Judge Byrd and it is dated
      August 20th, 2001. I’d offer that into evidence at this point to
      support my request that Your Honor sign an order denying the
      return of that property.

Id. at 10-13.

      Clearly the trial court was persuaded by the evidence proffered by the

Assistant District Attorney, and we find no abuse of discretion or error of law

by the trial court in denying Appellant relief on the basis of mootness.

      In his second issue, Appellant claims that the trial court erred in

declining to award interest on the $900.00 returned to Appellant.           We

initially find that Appellant has waived this claim because he fails to cite any


                                     -5-
J-S18022-15



legal authority, nor does he develop any meaningful argument.            See

Commonwealth v. Luktisch, 680 A.2d 877 (Pa. Super. 1996) citing

Pa.R.A.P. 2119 (an issue is waived for failure to cite authority or develop an

argument).

      In the absence of waiver, the trial court has offered the following

rationale, which we find persuasive:

      Recovery of interest on funds held by the government in
      forfeiture under the Controlled Substances Forfeiture Act is not
      authorized by common law, statute or contract.               See
      Commonwealth v. Funds in Merrill Lynch Account, Owned by
      Rennick Peart, 937 A.2d 595, 598 (Pa. Cmwlth. 2007). The only
      remedy available under the Forfeiture Act is the return of
      Appellant’s property, not the award of interest. See 42 Pa. C.S.
      § 6802(j) and (k).

Trial Court Opinion, 7/28/14, at 3.

      Given the foregoing, we find no abuse of discretion or error of law by

the trial court, and therefore affirm the trial court’s order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2015




                                       -6-
J-S18022-15




              -7-
