HomeMy WebLinkAbout01-0429 MISCELLANEOUSCOMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DENNIS O'HARA
NO. 01-0429 MISCELLANEOUS
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., June 19, 2002.
This case involves a criminal defendant's pro se motion for return of
property pursuant to Pennsylvania Rule of Criminal Procedure 588. In pertinent
part, Rule 588 provides 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.~
A hearing on Defendant's motion was held by this court on April 11, 2002.
Credible evidence at the hearing tended to show that police had seized various
items of personalty from Defendant's home in 1999 in connection with an
investigation of multiple burglaries committed by Defendant, that they had
unsuccessfully attempted to return to Defendant those items that victims failed to
claim, and that they had eventually donated the unclaimed property to charity]
At the conclusion of the hearing, the court took the matter under advisement.
Pa. R. Crim. P. 588(A), (B).
These events had occurred long before the filing of Defendant's motion for return of property.
The court thereafter issued an order denying Defendant's motion. From
this order, Defendant has filed an appeal to the Pennsylvania Superior Court. The
grounds for the appeal are expressed by Defendant as follows:
1. My family nor I was notified to pick up my property. My
Mother notified the state police several times and they
responded by telling us to wait untill everything was settled.
2. There was no forfeiture hearing held. for the state police to
have rights to my property to donate. There for my property
was stolen from me by deception.
3.My property of receipts an proof of the rights to my property
was destroyed, along with pictures of me and my father, which
were the only ones that i had. I consider that irrepable harm
and i feel that the court of law has to look at this carefully and
if my property can not be returned to me i should be
compinsated for my loss.3
This opinion in support of the order denying Defendant's motion for return
of property is written pursuant to Pennsylvania Rule of Appellate Procedure
1925(a).
STATEMENT OF FACTS
The evidence which the court found credible in this case may be
summarized as follows. Pursuant to an investigation of a rash of burglaries in
Cumberland and other counties in the spring of 1999, Pennsylvania State police
obtained a search warrant in May of that year for Defendant's home at 114 South
Bedford Street, Carlisle, Cumberland County, Pennsylvania) The burglaries had
involved thefts of guns, ammunition, money, jewelry, electronic games, and other
s Defendant's Statement of Reasons for Appeal, filed June 10, 2002.
4 N.T. 4-5, 22, Hearing, April 11, 2002 (hereinafter N.T. __ ); N.T. 1-12, Guilty Plea Colloquy,
April 12, 2000, Commonwealth v. O'Hara, Nos. 99-2488, 99-2489, 99-2490, 99-2491, 99-2492,
99-2493, 99-2494, 99-2495, 99-2496, 99-2497, 99-2498, 99-2499, 99-2500, 99-2508, 99-2509,
99-2510, 99-2511 Criminal Term (Ct. Com. Pl. Cumberland County January 4, 2002). Defendant
and counsel for the Commonwealth agreed at the hearing on Defendant's motion for return of
property that the court could take judicial notice of the underlying criminal cases against
Defendant. N.T. 34.
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items of personal property from residences.5 Defendant had been arrested in the
act of one of the burglaries,6 and Defendant's home was found to be filled with
items stolen in the burglaries.7 Scores of items were seized in the search.8
On April 12, 2000, Defendant pled guilty to sixteen burglaries of
Cumberland County residences, each a felony of the first degree, and one count of
receiving stolen property, a felony of the third degree.9 He was sentenced on May
23, 2000, to a term of imprisonment in a state correctional institution, l°
As victims appeared to claim the stolen items, and supplied proof of
ownership, the police returned the seized items to them. ~ However, not all of the
stolen items were claimed by the victims, ~2 and the storage of so many items in the
evidence room at the state police barracks eventually became burdensome for
police.~3
A state trooper had advised Defendant's mother, who was acting on
Defendant's behalf,TM that he would call her when seized items not claimed by
5 N.T. 1-12, Guilty Plea Colloquy, April 12, 2000, O'Hara, Nos. 99-2488, 99-2489, 99-2490, 99-
2491, 99-2492, 99-2493, 99-2494, 99-2495, 99-2496, 99-2497, 99-2498, 99-2499, 99-2500, 99-
2508, 99-2509, 99-25-10, 99-2511 Criminal Term.
6 N.T. 33.
7 N.T. 22-23.
8 N.T. 22-23, 29.
9 Order of Court, April 12, 2000, O'Hara, Nos. 99-2488, 99-2489, 99-2490, 99-2491, 99-2492,
99-2493, 99-2494, 99-2495, 99-2496, 99-2497, 99-2498, 99-2499, 99-2500, 99-2508, 99-2509,
99-2510, 99-2511 Criminal Term.
l0 Order of Court, May 23, 2000, O'Hara, Nos. 99-2488, 99-2489, 99-2490, 99-2491, 99-2492,
99-2493, 99-2494, 99-2495, 99-2496, 99-2497, 99-2498, 99-2499, 99-2500, 99-2508, 99-2509,
99-2510, 99-2511 Criminal Term. The sentence, which was agreed upon between the
Commonwealth and Defendant in a plea bargain, consisted of a period of imprisonment in a state
correctional institution for not less than one and a half years nor more than four years, followed
by two consecutive two-year probationary periods. Id.
n N.T. 27-28.
~2 N.T. 27.
~3 N.T. 27-30.
~4 N.T. 6.
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victims could be returned to Defendant, upon proof of his ownership. ~5 However,
when the trooper did so on two occasions she did not return his calls.~6 On another
occasion, Defendant's girlfriend made an appointment to pick up property on his
behalf and then apparently overslept. ~7
Ultimately, in the absence of a motion for return of property filed by
Defendant or proof of ownership submitted on his behalf, police donated the
remaining unclaimed items, with the exception of a handgun,la to charity.~9 On
September 11, 2001, more than two years after police had seized the items,
Defendant filed a motion for return of property, which is the subject of this
opinion.2° Items requested to be returned included baseball and football cards,2~ a
pair of work gloves,~ a power plug adapter,~3 a cordless telephone,~4 a Play
Station "Resident Evil 2" game,25 and so forth.
Following a hearing, at which virtually no evidence was presented by
Defendant as to the value of the items disposed of, the court denied the motion for
return of property)6 From this order, Defendant appealed to the Pennsylvania
Superior Court.
~5 N.T. 20, 26-30.
16 N.T. 26-27, 30.
~7 N.T. 5-6.
~8 N.T. 27. The handgun, which apparently was stolen but not claimed by the owner, was not
sought by Defendant in the instant proceeding. N.T. 24.
19 N.T. 18-21, 26, 28-29.
:0 Defendant's Petition for Return of Proerty under Pa.R. Crim. P., Rule 588, 42 Pa.C.S.A., filed
September 11,2001.
:l N.T. 7-8.
:: N.T. 10.
:3 N.T. 12.
24 N.T. 13.
:s N.T. 14.
26 Order of Court, April 12, 2002, O'Hara, Nos. 99-2488, 99-2489, 99-2490, 99-2491, 99-2492,
99-2493, 99-2494, 99-2495, 99-2496, 99-2497, 99-2498, 99-2499, 99-2500, 99-2508, 99-2509,
99-2510, 99-2511 Criminal Term.
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DISCUSSION
The burden of proof in a case under Pennsylvania Rule of Criminal
Procedure 588 is, for at least some purposes, upon the Commonwealth by a
preponderance of the evidence. See Commomvealth v. Mosley, 549 Pa. 627, 631,
702 A.2d 857, 859 (1997). A trier of fact is, in general, free to believe all, part or
none of the evidence presented. Commomvealth v. Younge, 446 Pa. Super. 541,
545, 667 A.2d 739, 741 (1995).
In the present case, a number of factors led the court to deny Defendant's
motion for return of property. First, the property that Defendant sought to be
returned by the prosecution was not available for return. An order compelling an
act which can not be performed is generally disfavored in the law.27
Second, the unavailability of the property for return was not, in the court's
view, the result of irresponsibility on the part of the Commonwealth but of a lack
of timely action on the part of Defendant. Like statutes, the Rules of Criminal
Procedure are to be applied in a reasonable way, favoring the public interest as
opposed to a private interest. See Act of May 28, 1937, P.L. 1019, § 52, 1 Pa.
C.S.A § 1922(1), (5) (establishing presumption that the legislature "intends to
favor the public interest"); Pa. R. Crim. P. 101(C) ("To the extent practicable,
these rules shall be construed in consonance with the rules of statutory
construction.").
Third, the alternative remedy of monetary compensation suggested by
Defendant in his statement of matters complained of on appeal was not raised
before this court. A trial court is normally not required to pursue issues not raised
before it. See Commonwealth v. One 1990 Dodge Ram Van, 751 A.2d 1235, 1237
(Pa. Commw. Ct. 2000).
27 Lex non cogit ad impossibilia ("the law does not compel the doing of impossibilities"); lex nil
facitfrustra, niljubetfrustra ("the law does nothing and commands nothing in vain"); lex non
frustrajubet ("the law commands nothing vainly"). See Black's Law Dictionary 912 (6th ed.
1990).
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Fourth, monetary compensation has been said to be a remedy that is not
available under the Rule of Criminal Procedure relating to return of property
employed by Defendant herein. See Stake v. Metzger, 452 Pa. Super. 293, 297,
681 A.2d 1345, 1347 (1996).
[The Rule] provides that "[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 is
entitled to lawful possession thereof. Clearly, [this Rule]
contemplates a return of the actual property seized as opposed
to reimbursement for the value of the property.
Id (citations omitted) (emphasis omitted).
Fifth, the record was devoid of a basis upon which the court could
reasonably assess the value of the property sought to be returned. A court may not
award compensation to a party on the basis of conjecture or speculation. See, e.g.,
Paves v. Corson, 765 A.2d 1128, 1135 (Pa. Super. Ct. 2000), appeal granted, 779
A.2d 1142 (Pa. 2001); Fink v. Commonwealth, 85 Pa. Commw. 290, 299-300, 482
A.2d 281,287 (1984).
These points address the factual issue raised by Defendant in his first
ground for appeal, relating to responsibility for the unavailability of the property
by the time his motion for its return was filed, as well as the legal and factual
issues implicit in his third ground, relating to an award of compensation in lieu of
a return of property. With respect to his second ground for appeal, relating to the
alleged commission by police, in the absence of a forfeiture hearing, of the crime
of theft by deception, it may be noted that his motion for return of property did
provoke a hearing on the validity of the police conduct, and that the element of
deception inherent in the offense of theft by deception appears to be lacking in this
28
case.
28 For purposes of the theft by deception statute, "a person deceives if he intentionally":
(1) creates or reinforces a false impression, including false
impressions as to law, value, intention or other state of mind; but deception
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For the foregoing reasons, it is believed that the order denying Defendant's
motion for return of property under Rule
Criminal Procedure was properly entered.
588 of the Pennsylvania Rules of
BY THE COURT,
Jonathan R. Birbeck, Esq.
Chief Deputy District Attorney
Dennis O'Hara, EJ-8357
301 Morea Road
Frackville, PA 17932
Defendant, Pro Se
J. Wesley Oler, Jr., J.
as to a person's intention to perform a promise shall not be inferred from
the fact alone that he did not subsequently perform the promise;
(2) prevents another from acquiring information which would affect
his judgment of a transaction; or
(3) fails to correct a false impression which the deceiver previously
created or reinforced, or which the deceiver knows to be influencing
another to whom he stands in a fiduciary or confidential relationship.
Act of December 6, 1972, P.L. 1482, § 1, 18 Pa. C.S.A. § 3922(a).
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