J-S02015-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 AMILCAR RIVAS-RIVERA                     :
                                          :
                    Appellant             :    No. 377 MDA 2019

             Appeal from the Order Entered February 14, 2019
  In the Court of Common Pleas of York County Criminal Division at No(s):
                        CP-67-CR-0001714-2012


BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                         FILED APRIL 15, 2020

      Appellant, Amilcar Rivas-Rivera, appeals pro se from the trial court’s

February 14, 2019 order denying his “Motion for Return of Property Nun[c]

Pro Tunc” (hereinafter “Motion”). We affirm.

      Briefly, on May 22, 2012, Appellant pled guilty to criminal trespass. He

was sentenced that same day to 1½ to 4 years’ incarceration. Appellant did

not file post-sentence motions or a direct appeal. Over four years later, on

November 14, 2017, Appellant filed his pro se Motion, asking the court to

direct the Commonwealth to return certain property, including a vehicle,

camera, and cell phone, which he claimed had been seized from him when he

was arrested on November 4, 2011. The trial court conducted a hearing on

Appellant’s Motion on February 12, 2019. At that proceeding, Appellant did

not testify, or present any other witnesses or evidence, to establish his lawful

ownership of the at-issue items.
J-S02015-20



      On February 14, 2019, the court issued an order denying Appellant’s

Motion.    The   court   reasoned   that    the   Motion   was   untimely    under

Commonwealth v. Allen, 107 A.3d 709 (Pa. 2014). See Order, 2/14/19, at

2. Alternatively, the court determined that it could not afford Appellant relief

because he “failed to offer any evidence in support of his petition[,]” thus

leaving the court with “nothing upon which to conclude that [the] property

was taken[,] or that it is still being held by some other entity.” Id. at 3.

      Appellant filed a timely, pro se notice of appeal. He also timely complied

with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. On June 10, 2019, the court issued a Rule

1925(a) opinion, stating that it was relying on the rationale set forth in its

February 14, 2019 order. Herein, Appellant states three issues for our review:

      1. Because … [R]ule[] of Criminal Procedure[] 588 does not
      provide any time limit for filing a Motion for Return of Property…,
      did the trial court commit[] an error of law when dismissing
      Appellant’s Motion … as untimely?

      2. Because the Commonwealth never gave Appellant a timely
      [n]otification before selling and destroying his property[, d]id the
      [trial] court err[] by stating that Appellant has waived his [right
      to seek the return of the] property?

      3. Because the case of Commonwealth v. Irland, [153 A.3d 469
      (Pa. Cmwlth. 2017) (“Irland I”),] takes precedent over …
      Allen…[, d]id the trial court commit[] an error of law when making
      its decision pursuant to Allen instead of Irland [I]?




                                      -2-
J-S02015-20



Appellant’s Brief at 4.1

       Initially, our review of Appellant’s issues is limited to whether substantial

evidence supports the trial court’s findings of fact, and whether the court

abused its discretion or committed an error of law.            See Singleton v.

Johnson, 929 A.2d 1224, 1227 n.5 (Pa. Cmwlth. 2007).2

       Pennsylvania Rule of Criminal Procedure 588 governs motions for
       the return of property, stating:

          (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.

          (C) A motion to suppress evidence under Rule 581 may be
          joined with a motion under this rule.

       Pa.R.Crim.P. 588. The Commonwealth Court has explained the
       application of Rule 588 as follows:

          Under this rule, on any motion for return of property, the
          moving party must establish by a preponderance of the
____________________________________________


1 We note that this Court granted Appellant an extension of time to file a reply
brief, which he did on March 26, 2020. We incorporate the arguments he
raises therein into our analysis.

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



                                           -3-
J-S02015-20


         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 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). When the Commonwealth sustains that burden,
         the burden of proof shifts to the property owner to
         disprove the Commonwealth’s evidence or establish
         statutory defenses to avoid forfeiture.

Beaston v. Ebersole, 986 A.2d 876, 880–81 (Pa. Super. 2009) (quoting

Singleton, 929 A.2d at 1227) (some citations omitted)).

      In this case, Appellant’s three issues are interrelated and, thus, we will

address them together. He first contends that the trial court erred by deeming

his Motion untimely because Rule 588 contains no time limitation. Appellant

also insists that he was denied “due process in [the] forfeiture proceedings”

because the Commonwealth never provided him “with adequate notice and an

opportunity to be heard” before allegedly “selling and destroying his property.”

Appellant’s Brief at 8, 9. Finally, Appellant argues that the trial court erred by

finding his Motion untimely under Allen, because the Commonwealth Court’s

decision in Irland I “takes precedent” over Allen. Id. at 10.




                                      -4-
J-S02015-20



      Appellant’s arguments are unconvincing.           Initially, in Allen, our

Supreme Court explained that,

      [a]lthough Rule 588 does not directly address the question of
      timing, it is sufficiently precise with regard to who may file a return
      motion and where the motion must be filed to permit us to discern
      that a criminal defendant has an opportunity to file a motion
      seeking the return of property while the charges against him are
      pending. Specifically, return motions are filed by “a person
      aggrieved by a search and seizure” and must “be filed in the court
      of common pleas for the judicial district in which the property was
      seized.” Pa.R.Crim.P. 588(A). Additionally, a return motion may
      be filed pre-trial and joined with a motion to suppress. Id. at
      588(C). Pursuant to Rule 588, therefore, 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.
      See 42 Pa.C.S. § 5505 (providing that a trial court retains
      jurisdiction to modify or rescind any order within thirty days of its
      entry, if no appeal has been taken).9
         9   Although the Commonwealth makes a persuasive
         argument that return motions are also timely when they are
         filed in response to a petition for forfeiture, we make no
         comment on this assertion because it is not what occurred
         in this case.

Allen, 107 A.3d at 589. Accordingly, the Court held that Allen’s “failure to file

a return motion during the pendency of the criminal charges against him or

within thirty days following dismissal of the charges results in waiver,

precluding review of his stand-alone return petition.” Id. at 591-92.

      Here, Appellant claims that the at-issue property was seized on

November 11, 2014, yet he does not explain why he could not have moved

for its return during the pretrial proceedings, at the plea/sentencing hearing,

or within 30 days after his sentence was imposed. Thus, under Allen, he




                                       -5-
J-S02015-20



waived his request for the return of his property, and the court did not err in

denying his Motion.

      Appellant’s reliance on Irland I does not convince us otherwise. First,

the Commonwealth Court’s decision in that case does not ‘take precedent’

over our Supreme Court’s decision in Allen. See Zauflik v. Pennsbury Sch.

Dist., 72 A.3d 773, 783 (Pa. Cmwlth. 2013) (“An opinion decided by a

majority of our Supreme Court ‘becomes binding precedent on the courts of

this Commonwealth.’”) (citation omitted).      Moreover, Irland I, and our

Supreme Court’s subsequent decision in Commonwealth v. Irland, 193 A.3d

370 (Pa. 2018) (“Irland II”), involved common law forfeiture in Pennsylvania.

See Irland II, 193 A.3d at 375. While Irland had initiated the proceedings

by filing a Rule 588 motion for the return of property, the Commonwealth had

responded by filing a petition for the forfeiture of that property. Notably, the

Irland II Court found that the Commonwealth’s filing of that forfeiture

petition made the waiver holding of Allen inapplicable. See id. at 377 n.9.

      In this case, as in Allen, the defendant filed a stand-alone motion for

the return of property, and there was no forfeiture petition filed by the

Commonwealth, as in Irland II. Accordingly, the trial court did not err in

applying Allen and deeming Appellant’s untimely request for the return of his

property waived. Additionally, because there was no forfeiture petition filed,

Appellant’s allegation that the Commonwealth violated the due process

requirements of forfeiture is meritless.




                                     -6-
J-S02015-20



      Finally, we note that, even if Appellant’s Motion had been timely filed,

we would agree with trial court that he failed to prove, by a preponderance of

the evidence, that the Commonwealth seized any of his property, let alone

that he is entitled to lawful possession thereof.     See Beaston, supra.

Appellant did not testify at the hearing on his Motion, nor present any other

evidence to support it. According, we would affirm the court’s order denying

his Motion on that basis, as well.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/15/2020




                                     -7-
