Com. v. Lashley, M.

J-A26005-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL ASFIELD LASHLEY :
:
Appellant : No. 483 WDA 2019
Appeal from the Order Entered April 1, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0016003-2015
BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 20, 2019
Appellant, Michael Asfield Lashley, appeals from the April 1, 2019 order
denying his motion for return of property filed pursuant to Pa.R.Crim.P. 588.
We affirm.
The record reflects that Appellant and an accomplice engaged in multiple
thefts using altered and/or fraudulent credit cards to purchase items from
stores in North Fayette and Robinson Townships in Allegheny County.
Complaint, 10/6/15; N.T., Suppression, 10/6/16, at 5. On October 6, 2015,
Appellant was charged with one count of persons not to possess firearms, one
count of carrying a firearm without a license, seventy-four counts of
possessing instruments of crime, two counts of criminal conspiracy, seventy-
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four counts of access device fraud, and one count of driving with a suspended
license.1 Complaint, 10/6/15.
On March 20, 2017, following a bench trial, Appellant was found guilty
of one count of persons not to possess a firearm, one count of carrying a
firearm without a license, six counts of possession of instruments of crime,
and six counts of access device fraud. N.T., Trial, 3/20/17, at 64-66.
Appellant was found not guilty of the remaining counts. Id. The trial court
sentenced Appellant to an aggregate term of fifty-nine to 118 months of
incarceration. Id. at 75-78. Appellant filed a direct appeal, and this Court
affirmed the judgment of sentence. Commonwealth v. Lashley, 190 A.3d
720, 534 WDA 2017 (Pa. Super. filed April 17, 2018) (unpublished
memorandum).
On November 16, 2018, Appellant filed a motion for return of property
under Pa.R.Crim.P. 588.2 In the motion, Appellant sought the return of one
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1 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), 907(a), 903, 4106(a)(3), and 75
Pa.C.S. § 1543(a), respectively.
2 Rule 588 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.
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Xbox gaming console, eight PlayStation 4 gaming consoles, and five pairs of
shoes. These items, among others,3 were recovered from the rented vehicle
Appellant was driving at the time of his arrest. N.T., Trial, 3/20/17, at 17-20.
In his motion, Appellant averred that the Commonwealth did not prove that
the items in question were obtained using fraudulent credit cards, and
therefore, they were not contraband. Motion, 11/16/18, at ¶7. The trial court
held a hearing and denied Appellant’s motion for return of property concluding
that the items Appellant requested constituted “derivative contraband.”4
Order, 4/1/19; Trial Court Opinion, 5/21/19, at 3-4.
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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.
Pa.R.Crim.P. 588(A), (B).
3 In addition to the gaming consoles and shoes, police seized more than
seventy credit cards bearing Appellant’s name. N.T., Trial, 3/20/17, at 17-
19.
4 Derivative contraband is defined as follows:
Derivative contraband is property which is innocent in itself but
which has been used in the perpetration of an unlawful act.
Property is not derivative contraband, however, merely because it
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.
Commonwealth v. Durham, 9 A.3d 641, 646 (Pa. Super. 2010) (citation
omitted).
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Appellant filed a timely notice of appeal asserting the trial court erred in
denying the motion for return of property. Both the trial court and Appellant
complied with Pa.R.A.P. 1925. In his Pa.R.A.P. 1925(b) statement, Appellant
avers that the property in question was not contraband. Pa.R.A.P. 1925(b)
Statement, 4/26/19, at ¶5; Appellant’s Brief at 3, 11.
The standard of review applied in cases involving motions for the return
of property is an abuse of discretion. Durham, 9 A.3d at 645 (citing Beaston
v. Ebersole, 986 A.2d 876 (Pa. Super. 2009) (en banc)). “[I]t is the province
of the trial court to judge the credibility of the witnesses and weigh the
testimony offered.” Id. (quoting Commonwealth v. Younge, 667 A.2d 739,
741 (Pa. Super. 1995)). “It is not the duty of an appellate court to act as fact-
finder, but to determine whether there is sufficient evidence in the record to
support the facts as found by the trial court.” Id. (quoting Younge, 667 A.2d
at 741).
After review, we affirm the trial court’s order denying Appellant’s
motion, but we do so on a different basis.5 Specifically, we conclude that
Appellant’s motion for return of property was untimely and resulted in waiver.
“[A] return motion is timely when it is filed by an accused in the trial court
while that court retains jurisdiction, which is up to thirty days after
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5 This Court is not bound by the trial court’s reasoning, and we may affirm the
trial court’s order on any correct basis. Commonwealth v. Wilcox, 174 A.3d
670, 674 n.4 (Pa. Super. 2017).
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disposition.” Commonwealth v. Allen, 107 A.3d 709, 717 (Pa. 2014) (citing
42 Pa.C.S. § 5505)). As noted above, Appellant was sentenced on March 20,
2017. Thus, Appellant had thirty days from March 20, 2017, to pursue a
motion for return of property under Pa.R.Crim.P. 588. See Allen, 107 A.3d
at 717 (arrestee’s failure to file motion for return of property during the
pendency of the criminal proceedings against him or within thirty days
following dismissal when the trial court had jurisdiction resulted in waiver and
precluded review of his motion). The failure to file a motion for the return of
property during the pendency of the criminal charges or within thirty days
following dismissal of the charges results in waiver. Id. at 718.
In the case at bar, Appellant filed his motion for return of property on
November 16, 2018, more than eighteen months after the thirty-day period
during which the trial court retained jurisdiction. Allen, 107 A.3d at 717; 42
Pa.C.S. § 5505. Additionally, Appellant’s motion was a “stand alone” motion,
i.e., it was not filed in response to a motion for forfeiture filed by the
Commonwealth. Allen, 107 A.3d at 714 n.6. Although Appellant mentions
an informal request for forfeiture,6 there is no petition for forfeiture in the
record. It is well settled that what is not of record does not exist for purposes
of appellate review. Commonwealth v. Johnson, 33 A.3d 122, 126 n.6 (Pa.
Super. 2011). Accordingly, Appellant’s motion for return of property was an
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6 Appellant’s Motion for Return, 11/16/18, at ¶4; Appellant’s Brief at 6.
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untimely stand-alone motion, and Appellant’s failure to file a timely motion
pursuant to Pa.R.Crim.P. 588 results in waiver. Allen, 107 A.3d at 717-718;
42 Pa.C.S. § 5505. Therefore, we affirm the order denying Appellant’s motion
for the return of property.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2019
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