Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 81-00-6745.
Leonard Deutchman, Assistant District Attorney, Philadelphia, for Com. appellant.
James A. Lardani, Philadelphia, for appellee.
Cavanaugh, Brosky and Tamilia, JJ. Cavanaugh, J., files a dissenting statement.
[ 365 Pa. Super. Page 131]
This appeal, by the Commonwealth, is from an order granting appellee's petition to return property. The Commonwealth argues that the petition was improperly granted in light of the fact that appellee pled guilty to 47 counts of receiving stolen property and the property subject to the petition was commingled with items appellee admitted were contraband.
Because we find that the trial court, in effect, imposed an improper burden upon the Commonwealth, we reverse the order in question.
Appellee had been suspected by the Philadelphia Police Department of running an illegal "fencing" operation.
On July 18, 1979 members of that Department executed search and seizure warrants at five different properties owned by appellee. As a result of the execution of those warrants hundreds of items of personal property were seized and taken into police custody. Appellee was arrested on that same date and charged with sixty-seven (67) counts of theft by receiving stolen property. Following a preliminary hearing appellee was held for court on forty-seven (47) of those counts. On November 24, 1980 appellee pled guilty to forty-seven (47) counts of theft by receiving stolen property. At the time of the guilty plea it was stipulated by appellee that all of the property involved in the 47 counts was stolen. Furthermore, it was clear at that time that those items had been identified as belonging to designated owners/complainants. On April 23, 1981 appellee filed a petition for return of property seeking return of those items
[ 365 Pa. Super. Page 132]
of personal property held by the Philadelphia Police since July 18, 1979 which were neither identified as belonging to nor claimed by any persons other than appellee.
The trial court granted appellee's petition on March 23, 1982 and the Commonwealth appealed to this Court. We reversed and remanded for further development of the record. 309 Pa. Super. 473, 455 A.2d 708. On April 22, 1983 a second hearing was held on the matter and resulted in the granting of the petition a second time. This appeal followed.
At the second hearing the Commonwealth presented the testimony of three detectives who had been personally involved in the execution of the search warrants and the seizure of the property in question. The collective testimony of the detectives revealed that although personal property was found in dwelling houses there were no signs that anyone had been living in those houses. Furthermore, the property was often grouped together and, to some degree, in the words of one of the detectives, resembled "a small K-Mart." The property subject to the petition was freely commingled with ...