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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DAVID CONSTANTINI, :
:
Appellant : No. 1084 EDA 2019
Appeal from the Order Entered March 18, 2019
in the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0003160-2017
BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MAY 13, 2020
David Constantini (“Constantini”) appeals, pro se, from the Order
denying his Motion for return of property filed pursuant to Pennsylvania Rule
of Criminal Procedure 588. We affirm.
On May 4, 2017, Delaware County Drug Task Force Officers executed a
search warrant at Constantini’s residence at 1122 Sterling Avenue in Linwood,
Pennsylvania. Officers entered the home, made contact with Constantini in
an upstairs bedroom, and observed him drop on the floor multiple blue
glassine bags containing white powder, which was later determined to be
heroin. Officers also discovered $380 in U.S. currency. Constantini was
arrested and charged with possession with intent to deliver a controlled
substance and other related charges.
Constantini pled guilty to possession with intent to deliver a controlled
substance and other related charges. On August 2, 2018, Constantini was
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sentenced to an aggregate term of one year, less one day, to two years, less
one day, in prison, with one year of probation to be served concurrently with
the prison sentence.
On December 17, 2018, Constantini filed the instant pro se Motion for
return of property, pursuant to Pa.R.Crim.P. 588, requesting that the
Commonwealth return to him the $380 in U.S. currency that was seized during
the search of his residence. Following a hearing, the trial court denied the
Motion. Constantini filed a timely Notice of Appeal and a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
On appeal, Constantini raises the following claims for our review:
I. Did the court abuse its discretion [by] denying the return of
[Constantini’s] personal property that has been seized by the
Commonwealth[,] where there was no specifics [sic] nexus
between the property and the alleged criminal activities?
II. Did the court act with prejudicial conduct by not allowing
[Constantini] to challenge the Commonwealth’s argument at [the
return of] property hearing that his personal property was not
derivative contraband?
III. Was the court in error by not given [sic] opinion of denying
[Constantini’s] personal property returned?
Brief for Appellant at 3.
“Our review of a trial court’s decision on a [motion] for return of property
is limited to examining whether the findings of fact were supported by
competent evidence and whether the trial court abused its discretion or
committed legal error.” Commonwealth v. Janda, 14 A.3d 147, 167 (Pa.
Super. 2011).
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In each of Constantini’s claims, he alleges that the trial court abused its
discretion in denying his Motion for the return of the $380 in U.S. currency.
See Brief for Appellant at 29-50. Constantini argues that the Commonwealth
failed to meet its burden to prove that the U.S. currency was contraband. Id.
at 29-37. Constantini claims that he was unfairly prejudiced by the trial court
because it had made its decision on the Motion before the hearing, and that
the trial court erred in not issuing an opinion in support of its Order denying
Constantini’s Motion. Id. at 38-50.
Pennsylvania Rule of Criminal Procedure 588 states, 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. …
(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).
Under this rule, … 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 entitled to lawful
possession to the property[,] or the Commonwealth can seek
forfeiture[,] claiming that property for which return is sought is
derivative contraband. To meet its burden to defeat the motion
for return of property, the Commonwealth must make out more
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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. Durham, 9 A.3d 641, 645-46 (Pa. Super. 2010) (citation
omitted).
However, in order to be timely, a motion for the return of property that
was seized pursuant to a search, filed by the accused in the related criminal
proceedings, must be filed while the trial court retains jurisdiction. See
Commonwealth v. Allen, 107 A.3d 709, 717 (Pa. 2014) (stating that
“[p]ursuant 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.” (citing 42 Pa.C.S.A. § 5505)); accord
Commonwealth v. Setzer, 392 A.2d 772 (Pa. Super. 1978). Where the
motion is filed after the trial court is divested of jurisdiction, the accused “has
waived any entitlement to the return of property under Rule 588.” Id.
Here, the $380 in U.S. currency was seized pursuant to a warranted
search of Constantini’s home, and Constantini was charged with crimes related
to the search. The trial court disposed of Constantini’s case on August 2,
2018, when it entered Constantini’s judgment of sentence. Constantini filed
his Motion with the trial court on December 17, 2018, well past the thirty days
that the trial court retained jurisdiction over his case. See 42 Pa.C.S.A.
§ 5505. Accordingly, Constantini has waived any claim to the $380 in U.S.
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currency, and the trial court did not abuse its discretion in denying his Motion
for return of property. See Allen, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2020
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