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Commonwealth of Pennsylvania v. Todd Allen

December 18, 2012

COMMONWEALTH OF PENNSYLVANIA
v.
TODD ALLEN, APPELLANT



The opinion of the court was delivered by: Judge Leavitt

Submitted: June 6, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge

OPINION

BY JUDGE LEAVITT

Todd Allen appeals, pro se, an order of the Court of Common Pleas of Philadelphia County (trial court) dismissing his motion for return of property under Pennsylvania Rule of Criminal Procedure 588. By this motion, Allen sought the return of $1,061 in cash that was seized from him at the time of his arrest in 2002 on drug-related charges. The trial court held that Allen's claim for the return of this property had been waived because Allen had not filed his motion within 30 days of the dismissal of his criminal charges. We hold that Allen's motion for return of property was untimely filed because it did not satisfy the six-year statute of limitations in 42 Pa. C.S. §5527(b). Accordingly, we affirm the trial court but on other grounds.

On January 10, 2002, Allen was arrested during a traffic stop in Philadelphia and charged with possession of a controlled substance, possession with intent to deliver, and violating the Uniform Firearms Act, 18 Pa. C.S. §§6101-6127. The charges against Allen were withdrawn by nolle prosequi on November 8, 2002.

On July 13, 2010, Allen filed a motion for return of property pursuant to Pennsylvania Rule of Criminal Procedure 588*fn1 seeking the return of $1,061 in cash that was seized by the police at the time of his arrest. The Commonwealth of Pennsylvania filed a motion to dismiss on March 8, 2011, asserting that Allen had waived his right to seek return of the $1,061 because he had filed his Rule 588 motion more than seven years after the final disposition of his criminal case. In support of its waiver argument, the Commonwealth cited Commonwealth v. Setzer, 392 A.2d 772 (Pa. Super. 1978). The trial court dismissed Allen's motion on April 28, 2011, and this appeal followed.

On appeal,*fn2 Allen argues, inter alia, that the trial court erred in relying upon Setzer to conclude that he had waived his claim for return of property. We agree, albeit for reasons different than those raised by Allen.

In Setzer, police seizedcash from a defendant during an arrest for the sale of controlled substances. The defendant was convicted on all counts relating to the arrest, and he did not seek a return of his seized cash during the criminal proceedings or at sentencing. Nearly two years later he filed a petition for return of property pursuant to former Pa. R. Crim. P. 324, which has been replaced by Rule 588.*fn3 The Superior Court held that the defendant's claim was precluded because "where an issue is cognizable in a given proceeding and is not raised it is waived and will not be considered on a review of that proceeding." Setzer, 392 A.2d at 773 (quoting Commonwealth v. Romberger, 474 Pa. 190, 196, 378 A.2d 283, 286 (1977)). The Superior Court acknowledged that Rule 324 did not specify when a motion for the return of property should or must be filed, but concluded that, logically, "an issue of this nature is most properly raised in conjunction with post-trial motions or, at the latest, when sentence is imposed." Id. at 773 n.4.

Allen argues that the waiver rule announced in Setzer applies only in criminal cases that end in a conviction, whereas the charges against him were nol prossed. Allen notes Setzer treated the motion for return of property as a post-trial motion that had to be filed within 30 days of the verdict. This logic fails where, as here, the charges are dismissed before a trial. Stated another way, without a trial Allen cannot be required to file a post-trial motion. These are good points, but we decline to follow Setzer for other reasons.

It is well settled that decisions of the Superior Court are not binding upon this Court. Muntz v. Department of Transportation, 630 A.2d 524, 525 (Pa. Cmwlth. 1993). We decline to follow Setzer because forfeiture proceedings and proceedings for the return of property "are not criminal proceedings as such; instead, they are 'civil in form, but quasi-criminal in character.'" In re: One 1988 Toyota Corolla, 675 A.2d at 1295 (quoting Commonwealth v. Landy, 362 A.2d 999, 1005 (Pa. Super. 1976)); see also Commonwealth v. Perez, 941 A.2d 778, 780 (Pa. Cmwlth. 2008) (noting that civil forfeitures "are the in rem consequence for wrongdoing prescribed by statute" and that property is not forfeited "as a result of the criminal conviction, but through a separate proceeding, civil in form but quasi-criminal in nature. . . . ") (emphasis added).*fn4 A return of property motion is often raised in a civil forfeiture proceeding. Accordingly, the progress of an ancillary criminal proceeding, if any, may not be relevant because "conviction of a crime is not necessary to support forfeiture proceedings[.]" Commonwealth v. 1978 Toyota, 468 A.2d 1125, 1126 (Pa. Super. 1983). Indeed, there may be a civil forfeiture proceeding where no criminal charges have even been filed against the person from whom the property has been seized. See, e.g., Commonwealth v. Three Hundred Ten Thousand Twenty Dollars ($310,020.00) In United States Currency, 894 A.2d 154 (Pa. Cmwlth. 2006). The same is true where there is an acquittal. Commonwealth v. 542 Ontario Street, Bethlehem, PA, 18015, 989 A.2d 411 (Pa. Cmwlth. 2010) (affirming civil forfeiture of home even though homeowner was acquitted of drug-related criminal charges).

Moreover, requiring a return of property motion to be filed with post-trial motions or at sentencing ignores the fact that seized property often belongs to a third party who is not involved in a criminal proceeding. To file a motion for return of property, the third party would have to intervene in the criminal proceeding to protect his civil property interest. There is no precedent for such an awkward procedure because it makes no sense.

Having rejected Setzer's 30-day statute of limitations, we must decide the appropriate deadline for filing a motion for return of property. When property is seized without a warrant, the Commonwealth must institute forfeiture proceedings "forthwith." 42 Pa. C.S. §6801(c). There is a two-year statute of limitations for commencement of an "action upon a statute for a civil penalty or forfeiture," 42 Pa. C.S. §5524(5); by its terms, that statutory deadline applies to the moving party in a forfeiture action, which is the Commonwealth, and not to the respondent. It seems appropriate that where the Commonwealth fails to institute a forfeiture petition "forthwith," never later than two years after the ...


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