Com. v. Fenton, A. ( 2023 )

J-A15025-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ANTHONY FENTON : No. 1388 WDA 2022
Appeal from the Order Entered November 1, 2022
In the Court of Common Pleas of McKean County Criminal Division at
No(s): CP-42-CR-0000299-2021
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: October 6, 2023
The Commonwealth appeals from the trial court’s pretrial order granting
Anthony Fenton’s motion for the return of property seeking the return of a
cellphone. The Commonwealth asserts that the trial court erred in granting
the motion without holding an evidentiary hearing. We find merit in the
Commonwealth’s argument. We therefore vacate and remand for an
evidentiary hearing.
Fenton is charged with homicide and other crimes related to the alleged
assault and death of his girlfriend. During its investigation, the Commonwealth
obtained a search warrant for Fenton’s cellphone, which was on his person on
the day of the incident and used to call 911.
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* Retired Senior Judge assigned to the Superior Court.
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Fenton filed two motions to compel discovery of the contents of his
phone. On September 21, 2021, the trial court issued an order directing the
Commonwealth to provide Fenton with a copy of any records obtained from
the search of the phone. Order, 9/21/21. Fenton filed a second motion to
compel discovery on April 19, 2022. At a May 13, 2022 hearing on the second
motion, Fenton contended there was exculpatory evidence on the phone and
he was willing to assist with the search of the phone. The Commonwealth
asserted it did not have the passcode to unlock the phone. Fenton contended
he would provide potential passcodes to unlock the phone and if those
passcodes did not work, the parties agreed to use of the “chip-off method” to
obtain data from the phone. The “chip-off method” is an advanced data
extraction technique that involves physically removing flash memory chips
from a mobile device and then acquiring the data using specialized
equipment.1
The court ordered the following, which was based upon a stipulation of
the parties: 1) Fenton was to immediately provide possible passcodes to
unlock the phone to the Commonwealth; 2) if the passcodes did not unlock
the phone, after 30 days, the Commonwealth could utilize the “chip-off
method” to search the phone; and 3) copies of any data recovered from the
Commonwealth’s search was to be provided to Fenton. Order, 5/13/22.
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1 See https://www.fletc.gov/jtag-chipoff-smartphones-training-program.
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Having not received any copies of any cellphone data from the
Commonwealth or a confirmation that a search of the phone was done, Fenton
filed a motion for the return of property on July 20, 2022, which is the subject
of this appeal. Without holding an evidentiary hearing, the court granted the
motion. The court ordered the Commonwealth to complete the search of
Fenton’s phone and return it to him no later than December 19, 2022. Order,
11/1/22.
The Commonwealth filed the instant appeal from the court’s order
granting Fenton’s motion. In its notice of appeal, the Commonwealth indicated
that the order was appealable as a collateral order pursuant to Pa.R.A.P. 313.
This Court directed the Commonwealth to show cause as to why the appeal
should not be quashed as an unappealable, interlocutory order. In response
to the rule to show cause, the Commonwealth filed a letter in this Court stating
that the police seized Fenton’s phone after obtaining a search warrant, but it
has been unable to access the contents of the phone. The Commonwealth
argued that returning the phone to Fenton before it could access the phone’s
contents would have the practical effect of excluding any evidence that might
be on the phone from the Commonwealth. The Commonwealth alternatively
argued in its response to the rule to show cause that the order would
substantially handicap the prosecution and therefore the order should be
considered appealable pursuant to Pa.R.A.P. 311(d). On January 25, 2023,
the rule to show cause order was discharged, and the issue was referred to
this panel.
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The Commonwealth raises the following issues on appeal:
1. Whether the [t]rial [c]ourt erred and/or committed an abuse of
discretion in ordering the Commonwealth to return the phone
to [Fenton?]
2. Whether the [t]rial [c]ourt erred and/or committed an abuse of
discretion in not holding a hearing on the motion before
granting [Fenton’] motion for return of property[?]
3. Whether the [t]rial [c]ourt erred and/or committed an abuse of
discretion in assuming the Commonwealth was unable to
establish a nexus between the phone and the criminal
activity[?]
4. Whether the [t]rial [c]ourt erred and/or committed an abuse of
discretion in finding that [Fenton] is entitled to the return of
the phone[?]
5. Whether the [t]rial [c]ourt erred and/or committed an abuse of
discretion in finding that the Commonwealth “either can’t or
won’t search the cellphone[?]”
6. Whether the [t]rial [c]ourt erred and/or committed an abuse of
discretion in failing to require [Fenton] to establish ownership
and lawful possession in support of his Motion for Return of
Property filed pursuant to Rule 588[?]
7. Whether the [t]rial [c]ourt erred and/or committed an abuse of
discretion in failing to allow the Commonwealth the opportunity
to show why the cell phone should not be returned[?]
Commonwealth’s Br. at 7-8.
We initially consider whether we have jurisdiction over this appeal. “The
appealability of an order directly implicates the jurisdiction of the court asked
to review the order.” Bailey v. RAS Auto Body, Inc., 85 A.3d 1064, 1067
(Pa.Super. 2014) (citation omitted). This Court may “inquire at any time, sua
sponte, whether an order is appealable.” Id. at 1068 (citation omitted).
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“As a general rule, only final orders are appealable, and final orders are
defined as orders disposing of all claims and all parties.” In re Bridgeport
Fire Litigation, 51 A.3d 224, 229 (Pa.Super. 2012) (citation omitted); see
also Pa.R.A.P. 341.
Here, the Commonwealth acknowledges that the trial court’s order is
not a final order. However, it argues that the order is an interlocutory order
from which an appeal arises as of right pursuant to Pa.R.A.P. 311(d) or a
collateral order under Pa.R.A.P. 313.
Rule 311(d) provides, in relevant part:
Commonwealth Appeals in Criminal Cases. In a criminal case,
under the circumstances provided by law, the Commonwealth
may take an appeal as of right from an order that does not end
the entire case where the Commonwealth certifies in the notice of
appeal that the order will terminate or substantially handicap the
prosecution.
Pa.R.A.P. 311(d). Rule 311(d) directs the Commonwealth to perfect its right
to appeal by including the Rule 311(d) certification in its notice of appeal. See
Commonwealth v. Chism, 216 A.3d 1133, 1136 (Pa.Super. 2019); see also
Pa.R.A.P. 904(e) (“When the Commonwealth takes an appeal pursuant to
Pa.R.A.P. 311(d), the notice of appeal shall include a certification by counsel
that the order will terminate or substantially handicap the prosecution”)
(emphasis added). A subsequent inclusion of the certification in the
Commonwealth’s appellate brief or in an amended notice of appeal does not
cure the defect of a lack of certification in the original notice of appeal. See
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Chism, 216 A.3d at 1137; see also Commonwealth v. Knoeppel, 788 A.2d
404, 407 (Pa.Super. 2001).
Instantly, the Commonwealth’s notice of appeal did not contain a
statement certifying that the order would terminate or subsequently handicap
the prosecution. Instead, the Commonwealth suggested that we exercise
jurisdiction under Pa.R.A.P. 311(d) for the first time in its response to this
Court’s rule to show cause order. The Commonwealth’s attempt to cure the
defect in the filing of its notice of appeal is insufficient for this Court to exercise
our jurisdiction. Thus, we find no basis in Rule 311(d) to exercise jurisdiction
over the Commonwealth’s appeal.
We next consider whether jurisdiction is proper under the collateral
order doctrine. Rule 313 defines a collateral order as “an order separable from
and collateral to the main cause of action where the right involved is too
important to be denied review and the question presented is such that if
review is postponed until final judgment in the case, the claim will be
irreparably lost.” Pa.R.A.P. 313(b). “[A]n order is separable from the main
cause of action if it is entirely distinct from the underlying issue in the case
and if it can be resolved without an analysis of the merits of the underlying
dispute.” Keesee v. Dougherty, 230 A.3d 1128, 1132 (Pa.Super. 2020)
(citation omitted). “[A] right is important if the interests that would go
unprotected without immediate appeal are significant relative to the efficiency
interests served by the final order rule.” Id. (citation omitted). “[A] right
sought to be asserted on appeal will be ‘irreparably lost’ if, as a practical
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matter, forcing the putative appellant to wait until final judgment before
obtaining appellate review will deprive the appellant of a meaningful remedy.”
Id. (citation omitted).
Here, the present order granting Felton’s motion for the return of
property is “separable” from the main cause of action, to wit, Fenton’s guilt or
innocence of the crimes with which he is charged. Second, the order involves
a right that is too important to be denied review, namely the Commonwealth’s
right to be heard on the issue. Lastly, a claim that the trial court erred in
granting the return of the phone to Fenton would be irreparably lost if the
matter proceeded to trial. The order directing the Commonwealth to return
the phone effectively results in the loss or exclusion of potential evidence
contained in the phone that was obtained through a lawful search warrant.
Having found that the Commonwealth satisfied all three prongs of the
collateral order doctrine, this Court has jurisdiction over this appeal, and we
now address the merits of the Commonwealth’s claim.
“The standard of review applied in cases involving motions for the return
of property is an abuse of discretion.” Commonwealth v. Durham, 9 A.3d
641, 645 (Pa.Super. 2010). Pennsylvania Rule of Criminal Procedure 588
addresses motions for the return of property and provides:
(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.
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(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.
(C) A motion to suppress evidence under Rule 581 may be joined
with a motion under this rule.
Pa.R.Crim.P. 588 (emphasis added).
Under Rule 588, “[t]he movant bears the initial burden of coming forth
with evidence of lawful entitlement to possession of the property.”
Commonwealth v. Janda, 14 A.3d 147, 166 (Pa.Super. 2011). If the movant
meets this initial burden, the Commonwealth has the burden of proving by a
preponderance of the evidence that the items in question are contraband per
se or derivative contraband, and therefore should not be returned to the
moving party. See id. at 166-67; Commonwealth v. Crespo, 884 A.2d 960,
961 n.4 (Pa.Cmwlth. 2005).2 “To meet its burden to prove that an item is
derivative contraband, the Commonwealth must establish a specific nexus
between the property and criminal activity.” Commonwealth v. Trainer, 287
A.3d 960, 964 (Pa.Cmwlth. 2022).
Importantly, Rule 588 requires the trial court to conduct a hearing on a
motion for the return of property so that the court can receive evidence and
resolve disputed facts. See, e.g., Commonwealth v. Rodriquez, 172 A.3d
1162, 1166 (Pa.Super. 2017) (emphasizing that “appellate courts have
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2 “Although the decisions of the Commonwealth Court are not binding on this
Court, we may look to them for their persuasive value.” Commonwealth v.
Heredia, 97 A.3d 392, 395 n.4 (Pa.Super. 2014).
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recognized the importance of an evidentiary hearing when considering a
petition for the return of property” and remanding for evidentiary hearing on
motion for return of property); Trainer, 287 A.3d at 964 (finding trial court
erred by not holding evidentiary hearing on motion for the return of property
because a hearing is a mandatory requirement under the plain language of
Rule 588(B) and “case law requires the determination by a preponderance
of evidence of a nexus between criminal activity and the property”)
(emphasis in original); Commonwealth v. Howard, 931 A.2d 129, 132
(Pa.Cmwlth. 2007) (holding “both the language of Rule 588 and the caselaw
interpreting it mandate that resolution of disputed facts await presentation of
evidence at a hearing”).
Here, the court erred by not holding an evidentiary hearing on Fenton’s
motion for the return of property. While the court was permitted to incorporate
the record from previous hearings in the case, see Janda, 14 A.3d at 167
n.12,3 it nonetheless was required to conduct a separate hearing on Fenton’s
motion for the return of property so that both parties could present evidence.
As the Commonwealth explains, the hearing on the prior motion to compel
discovery did not suffice for the subject motion to return property. Holding a
hearing will not be a meaningless gesture because the Commonwealth has
proffered evidence linking the phone to criminal activity. Because the trial
court failed to hold an evidentiary hearing and properly fulfill its fact-finding
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3 See also Commonwealth v. Tokarcik, No. 993 WDA 2020, 2021 WL
4740951, unpublished memorandum at *6 (Pa.Super. filed Oct. 12, 2021).
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duties, we vacate the court’s November 1, 2022 order and remand the matter
to the trial court to conduct an evidentiary hearing on the motion.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
DATE: 10/6/2023
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