J-A21022-23
2023 PA Super 266
IN RE: ALISHA SHEPARD SMITH : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: ALISHA SHEPARD :
SMITH :
:
:
:
: No. 2128 EDA 2022
Appeal from the Order Entered July 19, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-MD-0001772-2022
IN RE: ALISHA SHEPARD SMITH : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: ALISHA SHEPARD :
SMITH :
:
:
:
: No. 2129 EDA 2022
Appeal from the Order Entered July 19, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-MD-0001773-2022
BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.
OPINION BY DUBOW, J.: FILED DECEMBER 13, 2023
Appellant, Alisha Shepard-Smith, appeals from the Order entered July
19, 2022, which denied her motion for return of property. Appellant seeks
the return of a firearm and two magazines that police officers seized after her
neighbors reported that she had threatened them with the firearm during a
dispute over yard work. After careful review, we affirm.
J-A21022-23
A.
The relevant facts and procedural history are as follows. Appellant and
her neighbors were in an ongoing dispute over yard work. On December 12,
2021, Appellant and her husband returned home after Appellant’s daughter
called to report that the neighbors were cutting a common hedge. A verbal
and physical altercation ensued during which Appellant instructed her
daughter to retrieve Appellant’s firearm from inside the house. Appellant then
pointed her firearm at the neighbors. After the neighbors called 911,
Appellant told her daughter to hide the firearm in the house.
Responding police officers took a statement from one of the neighbors
involved in the altercation. Police officers later found the gun and a magazine
in Appellant’s home. They also recovered a second magazine from Appellant’s
pocket. The police confiscated these items.
The Commonwealth charged Appellant with firearms offenses and two
counts each of Simple Assault and Recklessly Endangering Another Person.
The court ultimately dismissed all charges because the Complainants failed to
appear.1
On May 6, 2022, Appellant filed two pro se motions for return of her
firearm and magazines. The Commonwealth opposed the motions but
notably, it did not file a forfeiture petition.
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1 At the preliminary hearing, the court dismissed the firearms charges for lack
of evidence. It remanded the remaining charges for a misdemeanor trial in
Philadelphia Municipal Court. At the trial, the court then dismissed those
charges for lack of prosecution.
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On July 19, 2022, the court conducted an evidentiary hearing during
which Appellant appeared pro se. At the hearing, the Commonwealth did not
dispute that the firearm and magazines belonged to Appellant. The
Commonwealth presented the Police Incident report, PARS2 report, and the
complaining witness’s statements provided to the responding police officers.
Appellant did not object to any of the Commonwealth’s evidence.
Additionally, at the hearing, Appellant testified that her neighbors were
the aggressors and that she did not call the police because she did not have
her cell phone. The court did not find her testimony credible.
The trial court denied Appellant’s Motions for Return of Property.
Appellant, through counsel, timely appealed.3 Both Appellant and the court
complied with Pa.R.A.P. 1925.
Appellant presents two issues for our review:
1. Did the lower court err in deciding Appellant’s “Motion for
Return of Property” by relying on common law precepts as the
basis for the seizure of the property where the applicable case law
requires that there either be a conviction, utilizing the weapon in
question, or a statutory basis for the denial of the return of
property and neither of these factors exist in this case?
2. If the lower court did not err in deciding question one, did the
lower court err in denying Appellant return of her property when
it ruled that the Commonwealth had met [its] burden at the
hearing for the Motion for Return of Property when the
____________________________________________
2 PARS is an acronym for Preliminary Arraignment System.
3 Appellant, through counsel, also filed a motion for reconsideration on August
17, 2022. The docket indicates no response to this motion, and she filed her
notice of appeal the next day.
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Commonwealth merely presented a hearsay narrative from the
prosecutor and where there was no conviction?
Appellant’s Br. at 2.
B.
Appellant challenges the trial court’s order denying her motions for
return of property. Our review 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. Singleton v. Johnson, 929 A.2d
1224, 1227 n.5 (Pa. Cmwlth. 2007) (en banc); Commonwealth v. 5444
Spruce St., 890 A.2d 35, 38 (Pa. Cmwlth. 2006) (en banc).4
Pa.R.Crim.P. 588 governs motions for return of property:
(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). Once the movant establishes her ownership interest
in the property, the burden then shifts to the Commonwealth to prove, by a
____________________________________________
4 “[B]oth this Court and the Commonwealth Court have jurisdiction to decide
an appeal involving a motion for the return of property filed pursuant to
Pa.R.Crim.P. 588.” Commonwealth v. Durham, 9 A.3d 641, 642 n.1 (Pa.
Super. 2010). Because Appellant chose this forum, we will address this
appeal.
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preponderance of the evidence, that the property is contraband. Barren v.
Commonwealth, 74 A.3d 250, 255 (Pa. Super. 2013).
Contraband is either per se or derivative: per se contraband is property
that is unlawful to possess, whereas derivative contraband is property,
innocent in itself, which has been used in the perpetration of an unlawful act.
Petition of Koenig, 663 A.2d 725, 726 (Pa. Super. 1995). To establish that
property is derivative contraband, “the Commonwealth must establish a
specific nexus between the property and the alleged criminal activity.”
Beaston v. Ebersole, 986 A.2d 876, 882 (Pa. Super. 2009) (en banc)
(citation omitted).
Furthermore, a conviction of the underlying crime need not occur for the
Commonwealth to prove the nexus. See, e.g., Commonwealth v.
$6,425.00 Seized from Esquilin, 880 A.2d 523, 529-30 (Pa. 2005) (holding
that the Commonwealth proved by a preponderance of the evidence that there
was nexus between seized money and a violation of the Controlled Substances
Act by presenting documentary evidence). Rather, “a forfeiture pursuant to
Rule 588 may occur prior to conviction and in the absence of a criminal
conviction.” Commonwealth v. Irland, 193 A.3d 370, 379 (Pa. 2018).
When the Commonwealth sustains its burden, the burden shifts to the
movant to disprove the Commonwealth’s evidence for the return of her
property. Beaston 986 A.2d at 881 (citation omitted).
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C.
Appellant first avers that the trial court erred in “order[ing] forfeiture”
without statutory authorization. Appellant’s Br. at 6. Specifically, she argues
that the Pennsylvania Supreme Court has held that common law cannot
authorize forfeiture and the trial court identified no statutory basis for
forfeiture in its decision. Id. at 9 (citing Commonwealth v. Irland, 193 A.3d
370, 379, 382 (Pa. 2018).
In support, Appellant cites Irland, in which the appellant filed a return
of property motion for his firearm and in response, the Commonwealth moved
for forfeiture under a theory of common-law forfeiture because the firearm
was derivative contraband used in a crime. Irland, 193 A.3d at 372. The
Supreme Court held that civil forfeiture (in absence of a conviction) of
derivative contraband requires statutory authority. Id. at 379, 382.
Contrary to Appellant’s characterization, this appeal pertains to an order
denying her petition for return of property filed pursuant to Rule 588, not an
order granting a forfeiture petition. Forfeiture proceedings are distinct from
return of property proceedings. Commonwealth v. Johnson, 931 A.2d 781,
783 (Pa. Cmwlth. 2007). Here, the Commonwealth did not petition for
forfeiture, and we, thus, do not address standards pertaining to forfeiture.
See Commonwealth v. Pomerantz, 573 A.2d 1149, 1150 (Pa. Super. 1989)
(denying return of property where petitioner did not meet his burden but
refusing to grant forfeiture because the Commonwealth never petitioned for
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it). Accordingly, Appellant’s reliance on Irland is misplaced, and this
argument merits no relief.
Rather, although the property remains with the Commonwealth due to
the denial of Appellant’s motion for return, our review is confined to whether
the court erred in finding that the Commonwealth met its burden of proving
that the property was used during the course of criminal activity, as required
by Rule 588. Barren, 74 A.3d at 255; Beaston, 986 A.2d at 882. As
discussed below, the trial court did not err in finding that the Commonwealth
met its burden under Pa.R.Crim.P. 588.
D.
Appellant next contends that even under Pa.R.Crim.P. 588, the
Commonwealth’s evidence was not “competent” and, therefore, the
Commonwealth did not establish by a preponderance of the evidence that the
firearm and magazines were derivative contraband. Appellant’s Br. at 11.
Specifically, Appellant argues that (1) the prosecutor’s statements made
during the hearing are not evidence; and (2) that the Commonwealth’s
documentary evidence constituted unauthenticated hearsay in violation of
Pa.R.E. 901(a) and 801, respectively. Id. at 10-11.
First, we note that the trial court did not rely on the prosecutor’s
statements in making its decision. Rather, the court cites Appellant’s
testimony, which it found not credible, and the Commonwealth’s documentary
evidence. Trial Ct. Op. at 5-6.
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Next, we observe that to preserve evidentiary challenges for appellate
review, a litigant must object at trial. See Commonwealth v. Thoeun Tha,
64 A.3d 704, 713 (Pa. Super. 2013) (citing Pa.R.A.P. 302(a) and noting that
the “failure to raise a contemporaneous objection to the evidence at trial
waives that claim on appeal”) (citation omitted). This requirement applies
equally to pro se litigants. Commonwealth v. Williams, 896 A.2d 523, 535
(Pa. 2006). Our review of the record reveals that Appellant failed to object at
trial. She, therefore, failed to preserve this issue for our review.
Moreover, the record supports the trial court’s determination that the
Commonwealth met its burden to establish, by a preponderance of the
evidence, that Appellant used the firearm during criminal activity and thus,
met its burden under Rule 588. The trial court stated that the “Commonwealth
produced sufficient credible evidence to establish by a preponderance of the
evidence, that [] Appellant used her firearm to perpetrate an unlawful act,”
pointing her firearm at her unarmed neighbors during an altercation. Trial Ct.
Op., 12/22/22, at 4. That evidence included the police incident report and the
complaining witness’s statement, both of which the court found credible.
After the Commonwealth met its burden to establish that the firearm
was contraband, the burden shifted back to Appellant to disprove the
Commonwealth’s evidence. Beaston, 986 A.2d at 881. Appellant did not
challenge the Commonwealth’s evidence showing that she pointed a gun at
her neighbors. N.T. Trial at 12-13. In fact, Appellant admitted during her
testimony that she asked her daughter to retrieve Appellant’s gun to help her
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husband during the fight. Id. at 12. Although Appellant tried to paint the
neighbors as the aggressors, the trial court did not find her testimony credible.
Trial Ct. Op. at 5. Accordingly, Appellant failed to meet her burden.
We have reviewed the record and the record supports the trial court’s
determination that the Commonwealth met its burden of proof. Appellant has
presented no argument to persuade this Court that the trial court abused its
discretion or erred as a matter of law in reaching its conclusion. This
argument, thus, garners no relief.
E.
We conclude that the record supports the trial court’s factual findings,
and we discern no abuse of discretion or error of law in the court's denial of
Appellant's Motions for Return of Property. Accordingly, we affirm.
Order affirmed.
Date: 12/13/2023
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