Appeal from the Order Entered May 28, 2013 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0002605-2009
BEFORE: MUNDY, J., WECHT, J., and FITZGERALD, J. [*]
Appellant, Ricky L. Miller, Jr., appeals pro se from the May 28, 2013 order denying his petition for return of property filed pursuant to Pennsylvania Rule of Criminal Procedure 588. After careful review, we conclude Appellant has waived his single issue on appeal. Accordingly, we affirm.
In the underlying case, Appellant pled guilty to homicide generally and was found guilty of first-degree murder at the subsequent degree-of-guilt hearing on August 3, 2012. That same day, the trial court sentenced Appellant to life in prison without the possibility of parole. Appellant filed a timely appeal from his judgment of sentence, which appeal remains pending before this court. In the course of investigating the case, police seized approximately $4, 725.00 in cash from Appellant's person and vehicle as well as various other items of personal property. The cash was offered as an exhibit in Appellant's degree-of-guilt hearing.
On April 25, 2013, Appellant filed a pro se petition for return of property pursuant to Pa.R.Crim.P. 588 for return of the cash and personal property (excluding firearms). The Commonwealth filed an answer to Appellant's petition on May 24, 2013. On May 28, 2013, the trial court denied Appellant's petition without a hearing and without a contemporaneous statement of its reasons. Appellant filed a timely notice of appeal on June 13, 2013.
On appeal, Appellant raises the following question.
A. Did the [t]rial [c]ourt err in denying Appellant's Petition for Return of Property?
Appellant's Brief at 3.
"The standard of review applied in cases involving motions for the return of property is an abuse of discretion." Commonwealth v. Durham, 9 A.3d 641, 645 (Pa.Super. 2010), citing Beaston v. Ebersole, 986 A.2d 876 (Pa.Super. 2009) (en banc). The gravamen of Appellant's issue on appeal is the trial court's failure to conduct a hearing.
The [t]rial [c]ourt failed to set a hearing date as required under statute, and denied [A]ppellant's petition without action. This action by the [t]rial [c]ourt has resulted in the denial of [A]ppellant's right to due process as guaranteed under the Fifth Amendment to the U.S. Constitution, as well as Article 1, § 9 of the PA. Constitution.
Appellant's Brief at 7.
However, we are constrained to conclude Appellant has waived this issue due to the untimely filing of his Rule 588 Motion. In Commonwealth v. Setzer, 392 A.2d 772 (Pa.Super. 1978) (en banc), this Court held that if a defendant does not timely seek the return of property in a criminal proceeding, he has waived the issue. We explained that, although Rule 324 (now Rule 588) did not specify a time frame for the filing of a motion for return of property, "it is a fundamental doctrine in this jurisdiction that 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." Id. at 773. Accordingly, we held that a request ...