Com. v. Howland, A. ( 2023 )

J-S44042-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW EVAN HOWLAND :
:
Appellant : No. 1047 MDA 2022
Appeal from the Order Dated July 5, 2022
In the Court of Common Pleas of Lancaster County Civil Division at
No(s): CI-22-01195
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: FEBRUARY 14, 2023
Andrew Evan Howland (Howland) appeals from the order entered in the
Court of Common Pleas of Lancaster County (trial court) granting the
Commonwealth’s petition for civil forfeiture of cell phones, a SIM card, cash
and electronic memory devices and dismissing his motion for return of
property.1 We affirm in part and vacate in part.
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* Retired Senior Judge assigned to the Superior Court.
1 “The Commonwealth Court normally has jurisdiction over appeals from
forfeiture orders … [b]ut when neither party objects, we can elect to exercise
jurisdiction over a forfeiture appeal.” Commonwealth v. Bowers, 185 A.3d
358, 362 (Pa. Super. 2018). Because the Commonwealth has not objected,
we will not transfer this appeal to the Commonwealth Court. See id.J-S44042-22
We take the following background facts and procedural history from the
trial court’s September 21, 2022 opinion and our independent review of the
record.
I.
A.
In August 2021, a jury found Howland guilty of kidnapping of a minor
to facilitate a felony; unlawful contact with a minor-sexual offenses;
involuntary deviate sexual intercourse with a person less than 16; statutory
sexual assault; aggravated indecent assault of a person less than 16; indecent
assault of a person less than 16; interference with custody of children;
corruption of minors; criminal use of a communication facility; and four counts
of possession of child pornography-children engaged in sex acts for his
possession of 46 images and 22 videos.2 The charges related to the December
2, 2020 kidnapping and sexual assault of a 13-year-old minor Howland had
met on social media.
At trial, 38-year-old Howland admitted to communicating with the victim
on Snap Chat and Facebook, receiving images of the victim, talking about sex
and picking up the victim in Indiana and bringing him back to Lancaster
without the parents’ permission. (See Commonwealth v. Howland, 2022
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2 See 18 Pa.C.S. §§ 2904(a), 6301(a)(1)(i), 2901(a)(2), 6318(a)(1),
3123(a)(7), 3122.1(b), 3125(a)(8), 3126(a)(8), 6312(d) and 7512(a),
respectively.
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WL 16832489, unpublished memorandum, at *1 (Pa. Super. filed Nov. 9,
2022) (record citation omitted).
A jury convicted Howland of all charges in August 2021. On November
18, 2021, the court imposed an aggregate sentence of not less than 30 nor
more than 105 years in prison. Howland timely appealed, and on November
9, 2022, while the matter currently before us was pending, a panel of this
Court affirmed the judgment of sentence. (See id.).
B.
On March 4, 2022, the Commonwealth filed a petition for forfeiture of
certain property seized from the hotel room and Howland’s vehicle.
Specifically: $5,177.63 in United States Currency; an Apple iPhone with a
black case; two Apple iPhones with black otter box cases; an Apple iPod with
chrome finish; six Thumb Drives; one Micro Sim Card (Scandisk 8 GB, Serial
Number 8176DPEVYG0E); a Transcend brand Sim Card; an eight GB Verbatim
brand SD Card; and one black Alcatel flip phone. (See Petition for Forfeiture,
3/04/22, at ¶ 1(a)-(e)).3 The Commonwealth represented the items were
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3 While all of this was going on, Howland, on March 10, 2022, filed a motion
for return of property seeking “all items seized through police warrants, as
well as items taken by police and the D.A.’s office without a warrant.” (Motion
for Return of Property, 3/10/22, at 1). The Commonwealth opposed the
motion because Howland failed to set forth any basis for the property’s return
and the trial court denied Howland’s motion on March 16, 2022, without
explanation or a hearing. (See Commonwealth’s Response, 3/16/22).
(Footnote Continued Next Page)
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owned by Howland and subject to forfeiture pursuant to Section 3141 of the
Crimes Code4 and set forth the material facts:
On December 1, 2020, the Jackson County Sheriffs
Department received a 911 call regarding a missing child. After
investigation, it was determined that the Defendant had
kidnapped a 13-year-old child in Indiana. The investigation led
law enforcement agents to a hotel in West Hempfield Township,
Lancaster County PA. After locating the defendant and the
missing child, the juvenile was interviewed and disclosed that the
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Judge Reinaker denied Howland’s March 2022 motion for return of property.
Judge Wright heard the petition for forfeiture, decided the June 13, 2022
motion for return of property and issued the July 5, 2022 order on appeal.
4 Pursuant to Section 3141:
A person:
(1) convicted under section 3121 (relating to rape), 3122.1
(relating to statutory sexual assault), 3123 (relating to
involuntary deviate sexual intercourse), 3124.1 (relating to sexual
assault), 3125 (relating to aggravated indecent assault) or 3126
(relating to indecent assault); or
(2) required to register with the Pennsylvania State Police
under 42 Pa.C.S. Ch. 97 Subch. H [42 Pa.C.S.A. §§ 9799.10 et
seq.,] (relating to registration of sexual offenders) or I [42 Pa.C.S.
§§ 9799.51 et seq.,] (relating to continued registration of sexual
offenders);
may be required to forfeit property rights in any property or assets
used to implement or facilitate commission of the crime or crimes
of which the person has been convicted. The forfeiture shall be
conducted in accordance with 42 Pa.C.S. §§ 5803 (relating to
asset forfeiture), 5805 (relating to forfeiture procedure), 5806
(relating to motion for return of property), 5807 (relating to
restrictions on use), 5807.1 (relating to prohibition on adoptive
seizures) and 5808 (relating to exceptions).
18 Pa.C.S. § 3141.
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two had met on the Internet, the Defendant had picked the child
up in the middle of the night without the parent’s permission,
drove back to Lancaster, PA in his black Nissan Rogue and rented
a hotel room for the pair. The juvenile indicated that the
Defendant had used cash the entire time they were on the road,
and they had had conversations about his saving money in order
to be able to come and take the child.
It was also learned that the Defendant committed numerous
sexual assaults on the victim during their stay in Lancaster
County. Upon finding the two, both the car and the hotel room
were seized and searched. Within the hotel room was United
States currency, in addition to several cellular devices, unused
condoms, keys to the car and various other personal items. Within
the car was found to be additional cellular devices, computer
storage devices and United States currency. The devices were
thereafter searched by the Digital Forensic Unit [that] uncovered
through a forensic examination images of child pornography
depicting children under the age of eighteen (18) engaged in
prohibited sexual acts or the simulation of such act.
(Petition for Forfeiture, at 1-2).
The court held a hearing on the Commonwealth’s forfeiture petition and
summarized as follows:
In support of its request for forfeiture, the Commonwealth
presented the testimony of two detectives involved in the
December 3, 2021, search for and seizure of the at-issue items.
Detective Brent Schultz of the Lancaster County District Attorney’s
Office took the stand first. Detective Schultz testified that during
the December 3rd search of the room where Defendant and the
kidnapped minor were found, he seized Apple Phone cellular
devices and a duffle bag containing approximately $5,177.63 in
cash. (See N.T. Hearing, 5/03/22, at 5-8). Detective Schultz
testified that the victim reported that Defendant “would only use
cash” during the trip from Indiana to Lancaster, and that the
victim “had observed a large quantity of cash” in Defendant’s
possession. (Id. at 8-9). Detective Schultz further testified that
Defendant made statements to the child victim that Defendant
would provide financially for the victim, including by paying for
gender-affirming procedures. (See id. at 17).
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Detective Schultz testified that he later conducted an
interview with the victim, during which he learned that Defendant
and the victim became friends and communicated with each other
through social media, Snap Chat, and Facebook. (See id. at 8).
Detective Schultz explained that these social media sites are
usually accessed through a cell phone or other type of “smart
device.” (Id. at 12-13).
West Hempfield Township Detective Robert Bradfield
testified next. Detective Bradfield explained that he was
responsible for searching Defendant’s vehicle, which Defendant
drove from Lancaster to Indiana to kidnap and transport the victim
back to Lancaster and which was parked in front of the hotel where
Defendant and the victim were found. (See id. at 21-22).
Detective Bradfield testified that he collected “numerous items of
investigative importance” from Defendant’s vehicle, including “a
box of thumb drives ... SD cards ... [and] two cell phones,” one
being an “Apple Phone” and the other being a “flip phone.” (Id.
at 21). Detective Bradfield testified that he had reviewed security
footage from the hotel where Defendant and the victim stayed
that showed Defendant and the victim entering and exiting the
vehicle. (See id. at 23). He also testified that the police were
able to locate Defendant and the minor victim because
Defendant’s “phone was being pinged.” (Id. at 21-22).
(Trial Court Opinion, 9/21/22, at 2-4) (some record citation formatting
provided).
Howland cross-examined Detective Schultz, attempting to show that the
victim was not always with him when he went into stores, there was no
recording of the victim’s statements and the import of a ledger seized by
police. The detectives stated that they did not know which of the four cell
phones the police seized was “pinged” without their reports, and that the
devices themselves did not contain illegal images because they were saved on
Snap Chat, but that this was accessible via an application on the phones.
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Howland did not testify on his own behalf or produce any witnesses or
evidence.
Howland filed a pro se motion to dismiss the forfeiture action arguing
that the Commonwealth failed to meet its burden of proof and argued at the
hearing that the items were in his possession while he was committing
kidnapping, 18 Pa.C.S. § 2901, but this is not a listed offense subject to
forfeiture under Section 3141. (See Motion for Dismissal, 6/13/22, at ¶¶ 1- 2,
4-5).5
On June 13, 2022, Howland filed a pro se motion for return of property
pursuant to 42 Pa.C.S. § 2901 and Rule of Criminal Procedure 588 that sought
the return of his items that the police seized on December 3, 2020, that were
not listed in the Commonwealth’s petition for forfeiture. (See Motion for
Return of Property, 6/13/22, at ¶¶ 1-8).6
____________________________________________
5 On May 9, 2022, the court directed the Commonwealth to file a supporting
brief on the forfeiture issue within 20 days of the hearing transcript’s filing,
with Howland to file a brief 20 days after receiving the Commonwealth’s brief.
As part of his motion to dismiss, he sought to dismiss the forfeiture petition
because the Commonwealth did not file a court-ordered brief delaying
resolution of the case. The trial court denied the motion and in its Rule
1925(a) opinion, it states that the Commonwealth’s failure did not delay in
any way the resolution of the matter. (See Trial Ct. Op., at 7). We find no
abuse of discretion in not denying the forfeiture petition on this basis. See
King v. City of Philadelphia, 102 A.3d 1073, 1077 (Pa. Cmwlth. 2014). (The
trial court’s decision as to whether to grant or deny a motion to dismiss for
failure to file a brief is within the court’s discretion.)
6 The items included clothes, keys, prescription eyeglasses, utility knives,
duffle bags, a fanny pack, a backpack, toiletries, papers (including receipts
(Footnote Continued Next Page)
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On July 5, 2022, the court granted the Commonwealth’s petition for
forfeiture. The court found that “[b]ecause of his convictions, Mr. Howland’s
property can be subject to forfeiture if it was used to implement or facilitate
the commission of any of the crimes for which he was convicted, including
kidnapping[,]” and that “[t]he Commonwealth “established by a
preponderance of the evidence that a nexus exists between Mr. Howland’s
crimes of kidnapping, child pornography, and criminal use of a communication
facility, and the seized assets.” (Order, 7/05/22, at n.2) (emphasis in
original). It also dismissed Howland’s June 13, 2022 motion for return of
property without explanation or having held a hearing on the matter.
Howland filed a timely notice of appeal and court-ordered statement of
errors complained of on appeal in which he raised 13 issues that we
summarize as follows: The court erred or abused its discretion in denying his
motion for return of property and in granting the Commonwealth’s petition for
forfeiture because (1) the Commonwealth failed to meet its burden of proof
since it neither proved that any of the seized devices contained illegal images
or videos nor established a nexus between the items and any crime; and (2)
the court relied on inapplicable law and failed to address all items listed in the
petition for forfeiture. He also complains that he was not given adequate time
____________________________________________
and a vehicle title,) a box containing chargers and various items, photos, a
notebook, a bag of food and the contents of the Nissan Rogue. (See Motion
for Return of Property, 6/13/22, at ¶ 9).
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for discovery. (See Rule 1925(b) Statement, at ¶¶ 1-8, 11-13);7 (Howland’s
Brief, at 8-9).8
II.
A.
Howland argues that the court erred in granting the Commonwealth’s
petition for forfeiture because it failed to meet its burden to establish a nexus
between the property and the illegal activity by a preponderance of the
evidence.9 He posits that the evidence was insufficient where the
Commonwealth only provided two witnesses to testify about forensic analysis
they did not personally conduct and whose testimony was “filled with
secondhand accounts of the victim’s unrecorded statements.” (See Howland’s
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7 Howland also claims that the court should not have accepted the petition
because it was completed incorrectly where it did not contain the cellphones’
values or identify them by model or serial number pursuant to 42 Pa.C.S.
§ 5805(a)(1)(i). (See Rule 1925(b) Statement, at § 10); (Howland’s Brief, at
39-40). However, there is no requirement that the petition include the value,
model or serial number of seized cell phones, Apple iPods or memory devices.
See 42 Pa.C.S. § 5805(a)(1)(i). He also makes myriad claims against ADA
Muller for “misrepresentations” in the petition by picking apart semantics,
which we find meritless. (See Rule 1925(b) Statement, at § 9); (Howland’s
Brief, at 37-39).
8 “[T]he standard of review applied in cases involving petitions for forfeiture
and motions for the return of property is for an abuse of discretion.” Beaston
v. Ebersole, 986 A.2d 876, 880 (Pa. Super. 2009) (citation omitted).
9 The Commonwealth did not file an appellate brief, electing to rely on the
court’s Rule 1925(a) opinion. (See Commonwealth’s Correspondence,
11/03/22).
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Brief at 25).10 He also asserts that the Commonwealth failed to provide any
“evidence or testimony to prove if any of [the seized] devices were used to
access the online Snap Chat account [where the] illegal images were found.”
(Id. at 35).
The law of forfeiture in Pennsylvania is a creature of statute. See
Commonwealth v. Smith, 757 A.2d 354 (Pa. 2000). Section 3141 of the
Crimes Code provides, in pertinent part, that a person convicted of statutory
sexual assault, involuntary deviate sexual intercourse, aggravated indecent
assault or indecent assault or who is required to register as a sexual offender
with the Pennsylvania State Police “may be required to forfeit property rights
in any property or assets used to implement or facilitate commission of the
crime or crimes of which the person has been convicted.” 18 Pa.C.S. § 3141.
“Derivative contraband is property innocent by itself, but used in the
perpetration of an unlawful act. An example of derivative contraband is a
truck used to transport illicit goods.” Commonwealth v. Howard, 713 A.2d
89, 92 (Pa. 1998). “Property is not derivative contraband merely because it
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10 Howland provides no legal citation and discussion thereof to support this
issue in violation of Rule 2119(a)-(b). (See Howland’s Brief, at 24-29). In
fact, throughout his brief, he provides very limited legal citation and no
pertinent discussion thereof. See Commonwealth v. Johnson, 985 A.2d
915, 924 (Pa. Super. 2009) (“[W]here an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived.”) (citations omitted).
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is owned or used by someone who has been engaged in criminal conduct.
Rather, the Commonwealth must establish a specific nexus between the
property and the alleged criminal activity.” Id. In a civil forfeiture case, the
Commonwealth bears the burden of establishing such nexus by a
preponderance of the evidence, and it “need not produce evidence directly
linking seized property to illegal activity in order to establish the requisite
nexus between seized property and unlawful activity[;] … instead,
circumstantial evidence may suffice[.]” Commonwealth v. $6,425.00
Seized from Esquilin, 880 A.2d 523, 529-30 (Pa. 2005) (citations
omitted).11
In this case, Howland was convicted of enumerated sexual offenses
under Section 3141(a) and is a person required to register as a sexual offender
with the state police. (See Trial Court Opinion, 9/21/22, at 5). Pursuant to
Section 3141, Howland’s property then may be subject to forfeiture if the
Commonwealth established that it is more likely than not that a sufficient
nexus exists between any of the crimes of which he has been convicted and
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11 Howland maintains that the trial court erred for relying on Esquilin and
Commonwealth v. 1992 Chevrolet, 844 A.2d 583 (Pa. Cmwlth. 2004),
because they involved forfeiture related to violations of the Controlled
Substance, Drug, Device, and Cosmetic Act, 35 P.S. §§ 780.101-780.144,
which is not at issue here. (See Howland’s Brief, at 21, 30-31). However,
we discern no error and we echo our sister court’s observation that “[t]here is
a dearth of appellate case law on the subject of forfeiture under [Section 3141]
of the Crimes Code.” Commonwealth v. 2002 Subaru Impreza, 122 A.3d
1196, 1198 (Pa. Cmwlth. 2015).
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the seized property. See 1992 Chevrolet, 844 A.2d at 585; 18 Pa.C.S.
§ 3141.
The Commonwealth sought forfeiture of $5,177.63 in United States
currency; an Apple iPhone with a black case; two Apple iPhones with black
otter box cases; an Apple iPod with chrome finish; six Thumb Drives; one
Micro Sim Card (Scandisk 8 GB, Serial Number 8176DPEVYG0E); a Transcend
brand Sim Card; an eight GB Verbatim brand SD Card; and one black Alcatel
flip phone. (See Petition for Forfeiture, 3/04/22, at ¶ 1(a)-(e)).
The Commonwealth presented testimony at the hearing that Howland
communicated with the minor victim on Snap Chat and Facebook, applications
accessible on cellphones and other electronic devices with the intent of
kidnapping him in order to sexually assault him, which he did. (See N.T.,
5/09/22, at 12-13, 17-18). Detective Schultz testified that the minor victim
told him that Howland said he had been saving money to be able to care for
the victim and that he used cash when traveling from Indiana to Lancaster,
Pennsylvania. (See id. at 9). When police analyzed the devices that they
seized from the hotel room and Howland’s vehicle which he had used for the
trip, they discovered child pornography saved on his Snap Chat account but
not on the devices themselves. (See id. at 14).
Based on the foregoing, the Commonwealth established a nexus
between the cell phones, Apple iPod, Micro SIM card and currency and
Howland’s commission of his illegal activity by a preponderance of the
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evidence. Howland accessed social media using his electronic devices in order
to store child pornography on Snap Chat and to communicate with the victim
in furtherance of his illegal intent to kidnap him for the purpose of sexually
assaulting him.12 There also was testimony that he was saving money to
enable him to perpetrate this illegal activity. Evidence directly linking the cell
phones, SIM card, Apple iPod and money to the crime was not required, as
circumstantial evidence was sufficient and it was more likely than not that
Howland used these seized items in furtherance of his illegal activity. See
Esquilin, 880 A.2d at 529-30.
However, there was no evidence presented that the thumb drives or SD
cards contained any illegal content or were utilized in any way to perpetuate
an unlawful act. The testimony was that the illegal images and videos were
stored on Snap Chat only, not on any seized property itself. Because the
record does not support the court’s finding that the Commonwealth
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12 Howland’s claims that the items could not be forfeited because kidnapping
is not an enumerated offense under Section 3141 and he was no longer
engaged in kidnapping at the time police seized the property are not
persuasive. He was convicted of kidnapping to facilitate a felony against a
minor. See 18 Pa.C.S. § 2901(a)(2) (“A person is guilty of kidnapping if he
unlawfully removes another a substantial distance under the circumstances
from the place where he is found, or if he unlawfully confines another for a
substantial period in a place of isolation” with the intent of facilitating any
felony.) (emphasis added). “The statutory concept of a ‘place of isolation’ is
not geographic isolation, but rather effective isolation from the usual
protections of society.” Commonwealth v. Jenkins, 687 A.2d 836, 838 (Pa.
Super. 2006) (citation and most internal quotation marks omitted). These
arguments lack merit.
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established a nexus between these memory devices and the illegal activity.13
we vacate the trial court’s order granting the Commonwealth’s petition in its
entirety and remand for the court to amend its order to reflect that the petition
is granted as to the United States Currency, three cellular telephones, one
Micro SIM card and one flip phone, and is denied as to the six thumb drives
and two SD Cards.
B.
Howland argues next that he was not given adequate time to conduct
discovery on the petition for forfeiture and, therefore, the forfeiture
procedures could not be properly carried out pursuant to 42 Pa.C.S. § 5805.
He claims that the Commonwealth possesses a ledger and receipts that would
show that Howland lawfully acquired and used the cash that police seized from
him. First, Howland would have known how he acquired and used the cash.
Second, presumably he was aware of the items seized from his hotel room
and vehicle at that time and could have sought further discovery about them.
Third, Howland fails to identify what part of the procedure set forth in Section
5805 could not be conducted. While Section 5805(c) allows for discovery on
a petition for forfeiture, Howland fails to demonstrate that he attempted to
conduct discovery at any time between receipt of the petition and the hearing,
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13In fact, as noted by Howland, the court did not address the memory devices.
(See Howland’s Brief, at 31).
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and our review of the certified record does not reveal that any such request
was made.14
C.
We next consider Howland’s claim that the trial court erred when it
dismissed his June 13, 2022 motion for return of property filed pursuant to
Section 5806 of the Forfeiture Act and Rule 588 seeking to return personal
items.15 (See Howland’s Brief, at 35-37).
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14 Likewise, we are not persuaded by Howland’s reliance on Commonwealth
v. All That Certain Lot or Parcel of Land Located at 605 Univ. Drive,
104 A.3d 411 (Pa. 2014), for the apparent proposition that a court can only
schedule a hearing once a defendant has filed an answer to a petition for
forfeiture. In that case, the Court was considering whether the language of
Section 6802(i), which has since been repealed and, in any event is different
than the language of Section 5805, mandated a hearing before a court could
enter summary judgment in a forfeiture action. See 605 Univ. Drive, 104
A.3d at 428-29. This is inapposite to the circumstances presented here.
15 Pursuant to Rule 5806 of the Forfeiture Act:
(a) Motion.—The following shall apply:
(1) A person aggrieved by a search and seizure may move
for the return of the property seized by filing a motion in the court
of common pleas in the judicial district where the property is
located.
(2) The filer under paragraph (1) must serve the
Commonwealth.
(3) Upon proof of service, the court shall schedule a prompt
hearing on the motion and shall notify the Commonwealth. A
hearing on the motion shall, to the extent practicable and
consistent with the interests of justice, be held within 30 days of
the filing of the motion.
(Footnote Continued Next Page)
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… [On] any motion for return of property, 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.
Commonwealth v. Durham, 9 A.3d 641, 645 (Pa. Super. 2010), appeal
denied, 19 A.3d 1050 (Pa. 2011) (internal citations omitted).
Howland’s motion for return of property identified the property that was
the subject of the motion, clarified that none of the requested property was
part of the Commonwealth’s forfeiture action and stated that Howland is
entitled to lawful possession. (See Motion for Return of Property, 6/13/22, at
¶¶ 1-4). Despite the motion raising material facts about whether Howland is
entitled to the property’s return, the court dismissed it without a hearing.16
We conclude this was error where the controlling law mandates that a
court shall schedule a prompt hearing upon proof of service. There is a
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(4) The assigned judge may require the filing of an answer.
(5) If a forfeiture petition was filed by the Commonwealth
before the filing of a motion for return of property, the motion
shall be assigned to the same judge for disposition, as practicable.
42 Pa.C.S. § 5806(a); see Pa.R.Crim.P. 588 (same).
16 The motion and the property identified therein was not addressed at the
forfeiture hearing.
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material issue about whether Howland is entitled to the property’s return,
particularly where the Commonwealth expressly elected not to include the
identified items in the petition for forfeiture. Accordingly, we vacate that
portion of the July 5, 2022 order dismissing Howland’s June 13, 2022 motion
for return of property and remand for the court to conduct proceedings on its
merit. See Commonwealth v. Doranzo, 455 A.2d 708 (Pa. Super. 1983)
(remand to develop record on motion for return of property appropriate).
D.
Howland maintains that the trial court erred when it reviewed the
criminal informations filed against him in the underlying case since they were
not admitted as evidence in this matter. (See Howland’s Brief, at 23). He
argues that these documents could have influenced the court’s decision. (Id.
at 22).
“[A] court may not ordinarily take judicial notice in one case of the
records of another case, whether in another court or its own.”
Commonwealth v. Verdier, 272 A.3d 470, at *2 (Pa. Super. filed Jan. 11,
2022) (unpublished memorandum). However, even if this was error, it was
harmless where Howland produces no evidence that he was prejudiced by the
court’s actions where the court relied on the testimony produced at the
hearing to support its decision, not outside documents. Howland is due no
relief on this claim.
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In conclusion, we vacate that part of the order granting the
Commonwealth’s petition for forfeiture in its entirety and remand for the court
to amend it consistent with this decision and vacate the order’s dismissal of
Howland’s motion for return of property for the court to conduct appropriate
proceedings. We affirm in all other respects.
Order affirmed in part. Vacated in part. Case remanded. Jurisdiction
relinquished.
President Judge Panella concurs in the result.
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2023
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