Submitted: April 12, 2013
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
ANNE E. COVEY, Judge.
Thomas Matsinger (Matsinger), pro se, appeals from the Philadelphia County Common Pleas Court's (trial court) January 11, 2012 order granting the Commonwealth of Pennsylvania's motion to dismiss, and denying Matsinger's petition for return of property (Petition). There are two issues for this Court's review: (1) whether Matsinger has waived all issues on appeal for failing to comply with Pennsylvania Rule of Appellate Procedure 1925(b); and (2) whether the trial court properly concluded that this matter is moot. We vacate the trial court's order and remand for an evidentiary hearing.
On July 20, 2009, the Philadelphia Police Department executed a search warrant at Matsinger's home in connection with the theft of a television from an electronics store. During the search, officers seized a flat-screen television and Matsinger was arrested and charged with theft. Within a month of Matsinger's arrest, a Philadelphia police detective allegedly returned the television to the electronics store from which it had allegedly been taken. In February 2010, the trial court dismissed the criminal charges against Matsinger. Approximately one year later, by February 4, 2011 order, the trial court directed that Matsinger's arrest record be expunged, and further directed the Philadelphia Police Department to "destroy or deliver to [Matsinger] all . . . personnel [sic] property pertaining to the charges . . . which result from the arrest of Thomas Matsinger." Trial Ct. Order, February 4, 2011.
On November 5, 2010, Matsinger filed his Petition pursuant to Pennsylvania Rule of Criminal Procedure 588, seeking return of his television. The Commonwealth informed Matsinger by certified letter that it no longer possessed the television. The Commonwealth also filed a motion to dismiss the Petition on the grounds that it was moot. On January 11, 2012, the trial court, without holding a hearing, granted the Commonwealth's motion to dismiss and denied Matsinger's Petition. On February 13, 2012, Matsinger appealed to this Court.
In response to issues raised regarding the timeliness of Matsinger's appeal, this Court, on September 12, 2012, remanded the record to the trial court for a determination as to whether Matsinger was entitled to pursue his appeal nunc pro tunc. On September 27, 2012, the trial court entered an order permitting Matsinger to proceed with his appeal nunc pro tunc. The next day, the trial court ordered:
AND NOW, this 28 day of SEPT. 2012, appellant is hereby directed, pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, to file of record and serve on the trial judge a concise statement of the errors complained of on the appeal, no later than 21 days after the entry of this Order.
Failure to comply with this directive may be considered by the Appellate Court as a waiver of all objections to any order, ruling or other matters complained of on appeal.
Trial Ct. Order (1925(b) Order), September 28, 2012 (emphasis added).
In its 1925(a) Opinion, the trial court stated:
On September 28, 2012, this court directed the appellant to file a concise statement of errors complained of on appeal (hereinafter "Statement") within 21 days. At the appellant's request he was granted an extension of time on October 15, 2012 with the new compliance deadline being October 30, 2012. As of the filing of this Opinion, no Statement has been received.
[B]ecause the appellant has failed to comply with this court's order directing him to file and serve such a Statement, he has waived all issues on appeal.
Trial Ct. Op., November 13, 2012, at 2-3.
Importantly, the certified record does include Matsinger's statement of errors complained of on appeal (1925(b) Statement), evidencing that it was filed with the trial court's Criminal Appeals Unit (Appeals Unit) time-stamp dated October 25, 2012, thereby demonstrating that the 1925(b) Statement was timely filed. The certified record also contains Matsinger's 1925(b) Statement's certificate of service, dated October 12, 2012, which states that the 1925(b) Statement was served by mail on the trial judge. The 1925(b) Statement and certificate of service appears to have been folded and mailed in a No. 10 (4 1/8 x 9 1/2) business envelope as evidenced by the three evenly spaced creases on the papers and the seven other No. 10 (4 1/8 x 9 1/2) business envelopes addressed to the ...