Com. v. Daly, L. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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
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*
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
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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.-7-
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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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