J-A24016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                       v.

LAUREN PATRICIA DALY

APPEAL OF: DONNA HELGENBERG                         No. 2644 EDA 2014


                   Appeal from the Order Dated July 30, 2014
               In the Court of Common Pleas of Delaware County
               Criminal Division at No.: CP-23-CR-0003801-2013


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                        FILED DECEMBER 08, 2015

       This is an appeal by Donna Helgenberg, who was a witness in the

underlying criminal case against Lauren Daly. After Daly was convicted of

various crimes, Helgenberg filed a motion for the return of certain property

that belonged to her that was seized during the criminal investigation of

Daly. The trial court denied the motion without a hearing. We reverse that

order, and we remand this case to the trial court for a hearing on

Helgenberg’s motion.

       In 2013, after years of marital strife, Daly shot her ex-wife, Margaret

Grover, who by that point had moved out of the marital home. Helgenberg,

who had moved into the home with Daly, witnessed the shooting. When the



____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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police investigated the shooting, they seized two computers that Helgenberg

claims are her property.

       Helgenberg testified as a witness at Daly’s trial. She was never asked

about the computers, and the Commonwealth did not present any other

evidence relating to the computers. On July 7, 2014, following a jury trial,

Daly was convicted, inter alia, of attempted murder. On September 8, 2014,

the trial court sentenced Daly to twenty to forty years’ incarceration.

       On July 24, 2014, after Daly was convicted, and before she was

sentenced, Helgenberg, through counsel, filed a motion for return of

property. Counsel for Helgenberg did not file a praecipe for appearance with

the clerk of courts, and counsel filed the motion at Daly’s criminal docket

instead of on a separate civil docket. Nonetheless, the motion was signed

by counsel, and contained counsel’s full address. The trial court denied the

motion on July 31, 2014, without a hearing.        The denial order was not

served upon Helgenberg’s counsel initially. The order was sent only to the

assistant district attorney who prosecuted Daly and to Daly’s counsel.

       Eventually, however, counsel for Helgenberg received a copy of the

order in the mail on August 25, 2014. The copy of the order that was mailed

to Helgenberg was not time-stamped by the clerk of courts.1 On September


____________________________________________


1
      The original order in the certified record contains a time stamp. We do
not know why there copy that was sent to Helgenberg’s counsel did not have
the same stamp.



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16, 2014, Helgenberg filed a notice of appeal, which was within thirty days

of her counsel’s receipt of the order. On October 21, 2014, the trial court

directed Helgenberg to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). On November 5, 2014, Helgenberg

timely complied. On December 10, 2014, the trial court issued an opinion

pursuant to Pa.R.A.P. 1925(a).

      Helgenberg raises one question for our review:      “Whether the trial

court committed [an] error of law or abused its discretion in denying witness

Donna Helgenberg’s motion for return of property?” Brief for Helgenberg at

4.   However, before we can consider this question on its merits, we first

must determine whether Helgenberg timely filed her notice of appeal,

thereby invoking our jurisdiction.

      On March 6, 2015, this Court issued a rule to show cause on

Helgenberg as to why this appeal should not be quashed as untimely. In the

rule, we noted that the order that Helgenberg is appealing was filed on July

30, 2014, but that Helgenberg’s notice of appeal was not filed until

September 16, 2014, well beyond the thirty-day period for filing an appeal.

See Pa.R.A.P. 903(a).     Helgenberg responded to the rule, and explained

that, as detailed above, the order was not served upon her or her counsel at

the time of its issuance, and that she did not receive the order until August

25, 2014.   Upon receipt of Helgenberg’s response, resolution of the issue

was deferred until now.




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       This case is rife with procedural problems that render the question of

jurisdiction unclear, at best.         For instance, the Commonwealth correctly

asserts that counsel for Helgenberg never filed a praecipe for appearance

with the clerk of courts, nor did counsel file the motion on the civil docket.

According to the Commonwealth, these procedural missteps should bar

Helgenberg from complaining that she did not receive the order in a timely

fashion. We are not so convinced.

       Counsel should have entered his appearance on Helgenberg’s behalf.

See Pa.R.Crim.P. 120(a)(1) (“Counsel for defendant shall file an entry of

appearance with the clerk of courts promptly after being retained, and serve

a   copy    of    the   entry     of   appearance   on   the   attorney   for   the

Commonwealth.”).2 However, the fact that he did not does not, ipso facto,

mean that Helgenberg is not entitled to notice of the denial of her motion.

       Both the trial court and the Commonwealth maintain that Helgenberg

incorrectly filed the motion on Daly’s criminal docket, instead of on a

separate civil docket.       It is true, we have held, that return of property

actions are civil in nature, but are also quasi-criminal in character.          See

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2
      Although there is no question that counsel should have filed a praecipe
for appearance, it is not so clear that Rule 120 is the applicable rule. The
rule applies to counsel for the defendant. In this case, Daly was the
defendant, not Helgenberg. Regardless, to facilitate the court system, to
best represent clients, and to avoid situations like the one at hand, the best
practice is for counsel always to enter an appearance on behalf of whomever
counsel is representing.



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Commonwealth v. Landy, 362 A.2d 999, 1005 (Pa. Super. 1976). Further

complicating the matter is the fact that the actions are governed by the rules

of criminal procedure, not by the rules of civil procedure. See Pa.R.Crim.P.

588(A). Hence, although we agree with the Commonwealth that Helgenberg

should have filed her motion in a separate civil docket, it does not follow

that, by mistakenly filing the motion under the relevant criminal docket, she

is not entitled to notice of the denial of her motion. This is particularly true

because the trial court accepted service of the motion, ruled upon the

motion, and then filed an order with the clerk of courts. Our decision may

have been different had the court rejected the motion. But, the court did

not, and cannot now declare that Helgenberg was not entitled to notice of

the court’s decision.

      Pursuant to Pa.R.Crim.P. 114, when a trial court issues an order, the

order shall be transmitted to the clerk of courts for filing.      Pa.R.Crim.P.

114(A)(1). Here, the trial court appears to have delivered the order to the

clerk of courts for filing. More importantly, pursuant to subsection (B)(1),

“[a] copy of any order or court notice promptly shall be served on each

party's attorney.” Pa.R.Crim.P. 114(B)(1). That undeniably did not occur in

this case. As noted, the Commonwealth maintains that it was Helgenberg’s

fault that this did not occur because counsel for Helgenberg did not file a

praecipe for appearance. However, counsel’s name and address is printed

on the first page of the motion, at the top and in bold font.      The clerk of

courts nonetheless did not send a copy to counsel.

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      Both counsel for Helgenberg and the court system could have taken

different actions that would have facilitated the timely filing of a notice of

appeal. However, the fault ultimately must lie with the court. The trial court

accepted Helgenberg’s motion. The court did not reject it for being filed on

the wrong docket, nor did the court reject it because it was filed by an

attorney who had not entered his appearance. The court then ruled on the

merits of the motion, and transmitted an order denying the motion to the

clerk of courts.     Despite counsel’s contact information being prominently

displayed on the motion, the clerk of courts did not send counsel a copy of

the order, in violation of Rule 114(B)(1). Under these unique circumstances,

there was a clear breakdown in the court system that prevented Helgenberg

from filing a timely notice of appeal. See Commonwealth v. Patterson,

940 A.2d 493, 498-99 (Pa. Super. 2007) (“Generally, an appellate court

cannot extend the time for filing an appeal. Nonetheless, this general rule

does not affect the power of the courts to grant relief in the case of fraud or

breakdown     in   the      processes      of    the   court.”)     (citations   omitted);

Commonwealth v. Braykovich, 664 A.2d 133, 136 (Pa. Super. 1995) (“It

is well-established that the extension of the filing period or the allowance of

an   appeal   nunc    pro    tunc   will    be    permitted       only   in   extraordinary

circumstances, namely, fraud or some breakdown in the process of the

court.”). Consequently, we deem Helgenberg’s notice of appeal to be timely,

and we have jurisdiction to resolve Helgenberg’s appeal.




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      We now turn to the question of whether the trial court correctly denied

Helgenberg’s motion for return of property. As noted earlier, such motions

are governed by Pa.R.Crim.P. 588, which 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.

      (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 (A)-(B).

      Helgenberg clearly is a person “aggrieved by a search and seizure,”

because the police seized two of her computers during their investigation of

Daly. The question is whether Helgenberg is “entitled to lawful possession”

of those computers. Id. The trial court, inter alia, held that Helgenberg’s

motion was premature. See Trial Court Opinion, 12/10/2014, at 2. The trial

court explained that it would be premature to return Helgenberg’s items

because Daly’s post-sentence proceedings, including a possible direct appeal

and a petition for collateral review, were ongoing, and would be for the

foreseeable future. Id.




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       The trial court erred by reaching its conclusion without first holding an

evidentiary hearing. Pursuant to subsection (B) of Rule 588, the court “shall

receive   evidence   on any    issue   of   fact   necessary   to   the   decision.”

Pa.R.Crim.P. 588(B). At trial, according to the limited record before us and

the briefs of the parties, the Commonwealth made no use of the computers.

The Commonwealth did not introduce them, or any evidence derived from

them, in its case against Daly. Moreover, no party questioned Helgenberg

about the computers, or the contents contained on the drives of the

computers, when she testified at trial. There clearly is an issue of fact that

needs to be resolved, namely whether the computers had any evidentiary

value to the Commonwealth at all, and, if not, whether Helgenberg was

entitled to lawful possession of them.        Rule 588 contains a mandatory

prescription.   If there is a question of fact, the trial court “shall” hold a

hearing. The trial court did not do so in this case. Consequently, we must

vacate the court’s order denying Helgenberg’s motion for return of property,

and we remand the case for an evidentiary hearing pursuant to Pa.R.Crim.P.

588.

       Order vacated. Case remanded. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2015




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