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COMMONWEALTH PENNSYLVANIA v. HAROLD POMERANTZ (08/03/89)

filed: August 3, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
HAROLD POMERANTZ, APPELLANT



Appeal from the Order entered November 23, 1988, Court of Common Pleas, Philadelphia County, Criminal Division at MR No. 88-003649 & CP No. 8508-1712.

Before: Beck, Johnson and Hoffman, JJ.

Author: Johnson

Opinion BY JOHNSON, J.:

Harold Pomerantz appeals from an order denying his motion for return of property. We affirm in part and vacate in part.

Pomerantz asks this court, on appeal, to consider the questions of (a) whether certain property constitutes derivative contraband, and if so, (b) whether such property need be returned as having been illegally seized. Since we are unable to determine that Pomerantz has established the necessary predicate to raise these questions, we decline to consider those issues and affirm the order denying return of the property.

At the outset, we note that a motion for return of property pursuant to Pa.R.Crim.P. 324 is entirely distinct from a procedure with respect to seized property (forfeiture) pursuant to Sections 28 and 29 of the Act of April 24, 1972 (P.L. 233, No. 64) known as The Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §§ 780-128, 780-129 Rep.*fn1

The clear object of § 780-128, in a forfeiture proceeding, is to impose a penalty upon those who are significantly involved in criminal enterprises in violation of the drug act. Commonwealth v. Landy, 240 Pa. Super. 458, 469, 362 A.2d 999, 1005 (1976). By contrast, a motion for return of property pursuant to Rule 324 is intended to return goods to a person aggrieved by a search and seizure based upon the right to lawful possession and the non-contraband status of the goods. Pa.R.Crim.P. 324.

Rule 324 expressly provides:

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 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) . . . . (emphasis added).

Under the rule, a party must, at a minimum, allege that he is entitled to lawful possession of the involved property. In the case before us, no evidence was submitted to the trial court that Pomerantz is entitled to lawful possession of the cash in dispute.

On or about February 26, 1988, Pomerantz filed a motion for return of property requesting an order "directing that the certain property seized from his residence . . . be returned to him." In support of the motion, Pomerantz alleged in Paragraph 4:

4. The above-described U.S. Currency seized is not contraband, nor was it ever the fruit of any crime; instead, it is the exclusive property of the Defendant obtained by legitimate business means.

Although no written response to the motion is contained in the certified record, or noted in the docket entries, a handwritten notation to the file shows "5/25/88, Room 788, Comm. opposed. C-9/26/88 Room 788 hearing, By the Court, s O'Keefe, J."

A review of the entire hearing transcript from the Return of Property Hearing, September 26, 1988, 39 pages reveals that the averments contained in the motion were not offered as evidence, nor was any testimony offered by ...


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