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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ORONDE C. DANIELS, : No. 1324 MDA 2017
:
Appellant :
Appeal from the Order Entered July 25, 2017,
in the Court of Common Pleas of Lycoming County
Criminal Division at No. CP-41-CR-0001672-2011
BEFORE: SHOGAN, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 12, 2018
Oronde C. Daniels appeals pro se from the July 25, 2017 order
denying his petition to return property filed pursuant to Pennsylvania Rule of
Criminal Procedure 5881 on the basis it was untimely filed.2 After careful
review, we affirm.
1 Rule 588 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.
Pa.R.Crim.P. 588(A). “[B]oth this Court and the Commonwealth Court have
jurisdiction to decide an appeal involving a motion for the return of property
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The trial court summarized the relevant facts and procedural history of
this case as follows:
On October 2, [2012], [a]ppellant entered a
guilty plea to the charges of person not to possess a
firearm and possession with intent to deliver a
controlled substance in exchange for a sentence of
five to ten years’ incarceration in a state correctional
institution, and the [trial] court sentenced
[a]ppellant in accordance with the plea agreement.
Appellant did not file any post-sentence motion or a
direct appeal. Therefore, [a]ppellant’s judgment of
sentence became final on or about November 1,
2012.
On July 18, 2017, [a]ppellant filed a petition
for return of property in which he sought the return
of all the property (or, in the alternative, the
monetary value thereof plus interest) that the
Williamsport police seized from him on October 26,
2011, when the police searched his residence.
On July 25, 2017, the [trial] court entered an
order denying [a]ppellant’s petition as untimely.
Trial court opinion, 11/16/17 at 1-2.3
filed pursuant to Pa.R.Crim.P. 588.” Commonwealth v. Durham, 9 A.3d
641, 642 n.1 (Pa.Super. 2010), appeal denied, 19 A.3d 1050 (Pa. 2011).
2The Commonwealth has indicated that it will not be filing a brief in this
matter and is relying on the reasoning set forth in the trial court’s
November 16, 2017 Rule 1925(a) opinion.
3 The record reflects that upon stipulation of the parties, the trial court
entered an order on August 14, 2017 directing that $300 seized from
appellant be returned to him. (See Stipulated Order, 8/14/17; certified
record at no. 46.)
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On August 22, 2017, appellant filed a timely notice of appeal. On
October 16, 2017, the trial court ordered appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b), within 21 days. Appellant timely complied, and the trial
court filed a Rule 1925(a) opinion in support of its July 25, 2017 order on
November 16, 2017.
Appellant raises only one issue for our review: “Did the [trial] court
error [sic] and abuse it’s [sic] discretion in denying appellant’s motion for
return of property?” (Appellant’s brief at v (capitalization omitted)). The
crux of appellant’s contention is that he had no opportunity to file a formal
petition to return property during the pendency of the criminal proceedings
and that he “did nothing but follow the Commonwealth’s lead.” (Id. at 4-5,
7.)
Our standard of review of such matters is clear:
The standard of review applied in cases involving
motions for the return of property is an abuse of
discretion. In conducting our review, we bear in
mind that it is the province of the trial court to judge
the credibility of the witnesses and weigh the
testimony offered. It is not the duty of an appellate
court to act as fact-finder, but to determine whether
there is sufficient evidence in the record to support
the facts as found by the trial court.
Commonwealth v. Rodriguez, 172 A.3d 1162, 1165 (Pa.Super. 2017)
(citations omitted).
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As recognized by the trial court, our supreme court addressed a similar
situation in Commonwealth v. Allen, 107 A.3d 709 (Pa. 2014). Allen
involved an individual who, nearly eight years after criminal charges against
him were dismissed, moved for the return of property seized from the
vehicle he was driving at the time of his arrest. Allen, 107 A.3d at 711.
The Allen court held that the petitioner’s failure to file a motion for the
return of property during the pendency of the criminal proceedings against
him or within 30 days following dismissal of the charges resulted in waiver of
the issue, thereby precluding review of his stand-alone return petition. Id.
at 717-718. In reaching this conclusion, the Allen court stated that, “Rule
588 does not require a trial as the triggering event for a return motion.” Id.
at 717. “Pursuant to Rule 588 . . . 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.” Id.
Here, the record reflects that appellant was sentenced on October 2,
2012, and did not file any post-sentence motions or a direct appeal to this
court. As such, under Allen, appellant had until November 1, 2012, to file a
timely motion for the return of property. Appellant did not file the instant
petition until July 18, 2017, more than four years past the deadline. Based
on the foregoing, we discern no abuse of discretion on the part of the trial
court in concluding that appellant’s petition was untimely filed and that “[he]
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waived any entitlement to the return of the property” in question. (Trial
court opinion, 11/16/17 at 3.)
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/12/2018
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