filed: February 19, 1982.
COMMONWEALTH OF PENNSYLVANIA
LEWIS K. BAKER, APPELLANT
No. 99 Harrisburg, 1980, Appeal from the Order dated February 14, 1980, Court of Common Pleas, Criminal Trial Division, Perry County at Nos. 88 and 116 of 1979.
Alan Ellis, State College, for appellant.
C. Joseph Rehkamp, District Attorney, New Bloomfield, for Commonwealth, appellee.
Brosky, Johnson and Popovich, JJ. Popovich, J., files a dissenting opinion.
[ 295 Pa. Super. Page 402]
This is an appeal from the Order of Forfeiture dated February 14, 1980, denying Appellant's Application for Return of Property.
The issue involves whether the lower court erred in determining that the sum of one thousand two hundred fifty dollars ($1,250) seized from Appellant's bedroom was, in fact, contraband and therefore not returnable.*fn1
Appellant was arrested on May 8, 1979, and charged with a total of twenty-two counts. On May 21, 1979, Appellant assigned all rights in the said monies to his attorney. On August 27, 1979, Appellant pled guilty to fourteen counts of unlawful delivery*fn2 and two counts of possession with intent to deliver*fn3 a controlled substance, three counts of criminal conspiracy*fn4 and two counts of criminal attempt.*fn5
At a hearing on January 17, 1980, pursuant to Appellant's Application for Return of Property, it was stipulated that:
[ 295 Pa. Super. Page 403]
(1) monies were found in a suitcase containing various illegal drugs, (2) that a State Trooper would testify that he observed Appellant place the proceeds of drug sales in a pouch at various times, which then was placed in the suitcase, (3) that these proceeds were not necessarily those particular monies, and (4) that Appellant stated, after his arrest, that the monies were "front money", advanced to Appellant in order to purchase drugs.
Rule 324, Pa.R.Crim.P., states:
Rule 324. Motion for Return of Property
(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 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 or 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 323 may be joined with a motion under this rule.
Before the merits of the instant case can be discussed, we must determine the effect of appellant's assignment of his rights in the monies to his attorney. Assignment is defined as "[a] transfer or making over to another of the whole of any property, real or personal, in possession or in action, or of any estate or right therein." Black's Law Dictionary (5th ed. 1979). Accord, Melnick v. Pennsylvania Co. For Banking and Trusts, 180 Pa. Super.Ct. 441, 119 A.2d 825 (1956).
The record clearly indicates that Appellant assigned any rights he may have had in the monies to his attorney in consideration of legal fees.
Since Appellant no longer has any rights in the monies, by virtue of the transfer, he cannot seek return of the property.
[ 295 Pa. Super. Page 404]
Cf. Pa.R.C.P. 2002; Wilcox v. Regester, 417 Pa. 475, 207 A.2d 817 (1965).
The order dated February 14, 1980 is affirmed.
POPOVICH, Judge, dissenting:
I must dissent. The appeal should be dismissed because appellant has no standing to recover monies assigned to his attorney under our rules of criminal procedure. See Mobil Oil Corp. v. Northwestern Agency, Inc., 490 Pa. 68, 415 A.2d 36 (1980). The majority affirms the order of the court below despite its conclusion that appellant "cannot seek return of the property." Slip Opinion at 1295. The court below, however, resolved the case on the merits. Although the majority does not say so explicitly, the effect of its decision is to deny appellant standing to prosecute the instant appeal. Such a posture by the majority is inconsistent with its affirmance of the order entered by the court below. Hence, because this writer is of the view that the appropriate mandate would be for this Court to quash the appeal since appellant has no appealable interest, I cannot join the majority. See Wheatcroft v. Auritt, 226 Pa. Super. 118, 128, 312 A.2d 441, 447 (1973).