In Re: Green, M., Appeal of: Green, M. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: MARK GREEN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: MARK GREEN :
:
:
:
:
: No. 784 EDA 2022
Appeal from the Order Entered December 15, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-MD-0002372-2021
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED MARCH 10, 2023
Mark Green (“Green”) appeals pro se from the order denying his petition
for the return of property.1 We vacate and remand for further proceedings
consistent with this memorandum.
The parties and the trial court are familiar with the factual background
of this appeal, and we briefly summarize the procedural history relevant to this
appeal. Green received notice from the Pennsylvania State Police in
Philadelphia that on May 13, 2020, troopers seized a 2017 Dodge Ram pickup
truck (“the subject truck”) for further investigation. In 2021, the
Commonwealth charged Green in Chester County with offenses related to
identity theft, the fraudulent purchases of a vehicle, and using stolen parts on
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1 The Superior Court or the Commonwealth Court may consider appeals
involving a motion for the return of property filed under Pa.R.Crim.P. 588.
See Commonwealth v. Durham, 9 A.3d 641, 642 n.1 (Pa. Super. 2010);
see also In re One 1988 Toyota Corolla, 675 A.2d 1290, 1296 (Pa.
Cmwlth. 1996).
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the subject truck (“the Chester County case”). See Trial Court Opinion,
6/14/22, at 2-3 & n.3 (citing the Chester County case at CP-15-CR-0003111-
2021); see also Exhibit to Green’s Motion for Return of Property, Preliminary
Hearing Transcript, at 16-18.
In August 2021, Green filed a pro se motion for return of the subject
truck in the Court of Common Pleas of Philadelphia. It is unclear whether the
Commonwealth filed an answer to the motion. The trial court held a hearing
at which the Commonwealth, represented by the Office of Attorney General,
argued that Chester County was the proper venue for the motion due to the
pending Chester County case. See N.T., 12/15/21, at 3-4. Green asserted
that the Chester County case only involved the fraudulent purchase of a
vehicle and that the subject truck was not related to that case. See id. at 7.
Referring to a copy of a preliminary hearing transcript that he attached to his
motion, Green argued there was no evidence that any stolen parts were on
the subject truck. See id. The Commonwealth briefly responded that the
hood of the subject truck came from a stolen vehicle. See id. at 8-9. At the
conclusion of the hearing, the trial court denied Green’s motion on December
15, 2021, due to improper venue and did not make further findings of fact.2
See id. at 10-11. Green timely filed a notice of appeal. The trial court ordered
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2 The certified record does not contain a written order denying the motion;
however, the appeal inventory docket confirms that the trial court entered an
order determining that venue did not lie in Philadelphia because the charged
crimes originated in Chester County, and denied the motion with prejudice.
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a Pa.R.A.P. 1925(b) statement, which Green filed.3 The trial court prepared a
responsive Rule 1925(a) opinion.
Green, in his pro se brief, presents the following issues for our review:
A. Whether the trial [c]ourt erred in [sic] denied the [m]otion on
the ground that it didn’t have jurisdiction.
B. Whether the trial court erred when it failed to allow [Green] to
speak without being cutoff [sic][.]
C. Whether the trial court erred when it failed to allow [Green] to
present his evidence.
Green’s Brief at 5 (unnumbered).
This Court reviews the trial court’s ruling on a motion for the return of
property for an abuse of discretion. See Commonwealth v. Rodriguez, 172
A.3d 1162, 1165 (Pa. Super. 2017). It is the province of the trial court to
judge the credibility of the witnesses and weigh the testimony offered. See
id. This Court will not act as a finder of fact, and our role is to determine
whether there is sufficient evidence in the record to support the facts as found
by the trial court. See id. Our review of questions of law, however, is de
novo and plenary. See Commonwealth v. Allen, 107 A.3d 709, 714 (Pa.
2014).
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3 On April 1, 2022, the trial court ordered Green to file a Rule 1925(b)
statement by April 22, 2022. See Order, 4/1/22 (requiring that Green file
his Rule 1925(b) statement within twenty-one days of the court’s order).
Green’s statement, which the trial court received on April 25, 2022, therefore
was facially untimely. However, neither the appeal inventory docket nor the
public docket in this case contain the notation of service required by
Pa.R.Crim.P. 114. Because we are unable to confirm the service date of the
Rule 1925 order, we will not find Green’s Rule 1925(b) statement untimely.
See Commonwealth v. Chester, 163 A.3d 470, 472 (Pa. Super. 2017).
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Pennsylvania Rule of Criminal Procedure 588 states, in relevant part:
(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) (emphasis added).
A person seeking the return of property must initially establish, by a
preponderance of the evidence, an entitlement to lawful possession of the
property. See Commonwealth v. Mosley, 702 A.2d 857, 859 (Pa. 1997).
If the person establishes such a right, the Commonwealth bears the burden
of proving, by a preponderance of the evidence, that the defendant does not
have a right to lawful possession of the property or that the property should
not be returned because it is contraband per se or derivative contraband. See
Commonwealth v. Durham, 9 A.3d 641, 645 (Pa. Super. 2010); see also
Commonwealth v. Trainer, 287 A.3d 960, 964 (Pa. Cmwlth. 2022). To
establish that property is derivative contraband, the Commonwealth must
show a specific nexus between the property and criminal activity. See
Commonwealth v. Howard, 713 A.2d 89, 92 (Pa. 1998).
Green’s arguments are muddled and lack any citation to legal authority,
and we could find his claims waived on this basis. However, it is apparent to
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this Court that Green argues that the trial court erred in holding that he
improperly filed his motion in Philadelphia because of the pending charges
against him in Chester County.4 We are constrained to agree with Green on
this point. Rule 588 requires that a motion for the return of property be filed
in the judicial district in which the property was seized. See Pa.R.Crim.P.
588(A). There is no dispute here that the State Police troopers seized the
subject truck in Philadelphia. See Motion for Return of Property, 8/18/21;
N.T., 12/15/21, at 9; Commonwealth’s Brief at 3. Therefore, the trial court
erred in holding that venue did not lie in Philadelphia. The record further
demonstrates that the trial court expressly declined to make any findings of
fact at the hearing due to its erroneous ruling on venue. See N.T., 12/15/21,
at 10-11. Therefore, we are constrained to remand this matter for further
findings of fact and conclusions of law consistent with the shifting burdens set
forth in Mosley and Durham.5 The trial court may hold further evidentiary
hearings as it deems necessary.
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4 See Green’s Brief at 8 (unnumbered) (stating that his argument “begins with
the trial court’s conclusion that it didn’t have jurisdiction and that . . . Chester
County is the proper forum”).
5Our Supreme Court’s decision, In re Lackawanna County, 212 A.3d 1 (Pa.
2019), which addressed the authority of a judge supervising a multi-county
grand jury to address a county’s Rule 588 motion, does not alter our
conclusion. That decision addressed unique concerns presented by the
overlay of Rule 588 motions and investigations by grand juries, and our
Supreme Court fashioned a procedure that an aggrieved party first “file the
motion in the court of common pleas for the judicial district in which the
property was seized, as Pa.R.Crim.P. 588(A) demands, and for the
(Footnote Continued Next Page)
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Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2023
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Commonwealth to then move to have the matter as filed on that docket
presented to the supervising judge” of the grand jury. In re Lackawanna
County, 212 A.3d at 17 (emphasis added). Nothing in that decision suggests
that the plain language of Rule 588 does not control the question of venue or
authorizes the denial of a motion for the return of property based on improper
venue.
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