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Commonwealth v. Allen

Supreme Court of Pennsylvania

December 29, 2014

TODD ALLEN, Appellee

Argued: September 9, 2014

Appeal from the order of the Commonwealth Court entered 12/18/2012, at No. 1345 CD 2011, affirming the order entered on 4/28/2011 in the Court of Common Pleas, Criminal Division, Philadelphia County at No. CP-51-MD-0009453-2010. Appeal allowed September 4, 2013 at 35 EAL 2013. 59 A.3d 677 Trial Court Judge: Frank Palumbo, Judge. Intermediate Court Judges: Dan Pellegrini, President Judge; Bonnie Brigance Leadbetter, Judge, Robert E. Simpson, Mary Hannah Leavitt, Kevin P. Brobson, Judge, Patricia A. McCullough, Judge, Anne E. Covey, Judge.

For Commonwealth of Pennsylvania, APPELLANT: Hugh J. Burns Jr., Esq.; Kristin Malee DeYoung, Esq., Philadelphia District Attorney's Office; Jonathan Michael Levy, Esq., Office of the District Attorney of Phila. County.

For Todd Allen, APPELLEE: Jonathon Mark Frisby, Esq., JMF Law.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. MR. JUSTICE BAER. Former Justice McCaffery did not participate in the decision of this case. Mr. Chief Justice Castille and Messrs. Justice Eakin and Stevens join the opinion. Mr. Justice Saylor files a dissenting opinion in which Madame Justice Todd joins. Madame Justice Todd files a dissenting opinion. MR. JUSTICE SAYLOR. Madame Justice Todd joins this dissenting opinion. MADAME JUSTICE TODD.


Page 710


Nearly eight years after criminal charges against him were dismissed, Todd Allen (Appellee) moved for the return of

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property seized from the vehicle he was driving at the time of his arrest pursuant to Rule 588 of the Pennsylvania Rules of Criminal Procedure. The trial court, applying Commonwealth v. Setzer, 258 Pa.Super. 236, 392 A.2d 772 (Pa.Super. 1978), and Commonwealth v. One 1990 Dodge Ram Van, 751 A.2d 1235 (Pa.Cmwlth. 2000), found that Appellee's claim was waived because it had not been raised before the trial court that had jurisdiction over the criminal case against him. Although on appeal the Commonwealth Court affirmed, it declined to follow Setzer, overruled One 1990 Dodge Ram Van, applied a six-year statute of limitations to return motions filed pursuant to Rule 588, and held that Appellee's motion was untimely because it was filed over six years after the charges against him were dismissed. On the Commonwealth's appeal to this Court,[1] we are persuaded that the Commonwealth Court erred by applying a statute of limitations analysis, and that the trial court was correct in applying the waiver analysis of Setzer and One 1990 Dodge Ram Van. We therefore hold that because Appellee had a prior opportunity to move for the return of property during the pendency of the criminal charges against him, his failure to do so resulted in waiver of this issue. This holding amounts to a rejection of the entirety of the Commonwealth Court's analysis, but an affirmance of the denial of relief to Appellee.

On January 10, 2002, Appellee was arrested during a traffic stop for driving a stolen vehicle and related offenses. During the vehicle search that followed, the police seized $1060.00 in cash (the Property). On February 15, 2002, Appellee was held for trial on charges of theft by receiving stolen property, unauthorized use of an automobile, and criminal conspiracy. The Commonwealth, however, withdrew the charges against him by nolle prosequi, and Appellee's case was disposed of on November 8, 2002.

Over seven years later, on July 22, 2010, Appellee filed a petition for return of the Property pursuant to Rule 588.[2] The

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Commonwealth moved to dismiss on March 9, 2011, asserting that Appellee had waived his right to seek return of the Property by not moving for its return upon the final disposition of his criminal case while the trial court retained jurisdiction. The Commonwealth relied on Setzer for support.

In Setzer, the appellant was arrested and charged with several criminal offenses and convicted following a non-jury trial. 392 A.2d at 772-73. Nearly two years after his conviction, he filed a petition seeking the return of $77.00 that had been confiscated from him during his arrest. Id. at 773. On appeal from the trial court's denial of this petition, the Superior Court affirmed, applying a waiver analysis to hold that although the predecessor to Rule 588 did not specify when a petition for return of property must be filed, it could have been raised either within thirty days of trial in conjunction with post-verdict motions or within thirty days of sentencing in conjunction with post-sentence motions. Id. at 773 n.4. According to the Superior Court, by failing to raise his entitlement to the return of property at trial or sentencing, when it was cognizable and the trial court had jurisdiction, the Setzer appellant had waived his right to raise the issue. Id. (" [W]e find it clear that practical considerations dictate that this issue be deemed waived when, as in the instant case, it is not raised until almost two years after disposition of the charges which gave rise to the confiscation of property." ); Commonwealth v. Romberger, 474 Pa. 190, 378 A.2d 283, 286 (Pa. 1977) (" 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." ). The Commonwealth Court has likewise previously applied a waiver analysis in the same circumstances. One 1990 Dodge Ram Van, 751 A.2d at 1237 (holding the appellant waived the issue of return of property by failing to raise it following trial or sentencing for the underlying crimes).

The trial court in this case agreed with the Commonwealth and followed Setzer and One 1990 Dodge Ram Van to deny Appellee's petition on April 28, 2011. Appellee appealed to the Commonwealth Court, which affirmed on alternate grounds in an en banc published decision. Commonwealth v. Allen, 59 A.3d 677 (Pa.Cmwlth. 2012) ( en banc ). Noting that Superior Court decisions are not binding on it, id. at 679 (citing Muntz v. Dep't of Transp., 157 Pa.Cmwlth. 514, 630 A.2d 524, 525 (Pa.Cmwlth. 1993)), the Commonwealth Court declined to follow Setzer and overruled its decision in One 1990 Dodge Ram Van premised on its view that civil forfeiture and petitions for return of property are civil proceedings, and therefore independent of any underlying criminal prosecutions. Id. at 679 (citing Commonwealth v. Perez, 941 A.2d 778, 780 (Pa.Cmwlth. 2008) (noting that civil forfeitures " are the in

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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. . . . " )).

The Commonwealth Court reasoned that the progress of an ancillary criminal proceeding may be irrelevant to either a forfeiture petition filed by the Commonwealth or a motion for return of property filed by a person entitled to lawful possession of the property, Allen, 59 A.3d at 679-80, noting there may be a civil forfeiture proceeding where no criminal charges were filed against the person from whom the property was seized. Id. at 680. Additionally, according to the Commonwealth Court, if the property was owned by a third-party uninvolved in the underlying criminal proceeding, it would be awkward to require that third-party to intervene in that criminal proceeding to seek the return of property via post-trial motions or at sentencing pursuant to the procedure endorsed in Setzer. Id. at 680 (" There is no precedent for such an awkward procedure because it makes no sense." ). The court failed to acknowledge that this case involved neither a return motion filed in answer to a forfeiture petition nor property that was owned by someone other than the accused in the underlying criminal proceeding, rendering its musings hypothetical and unnecessary for disposition of the matter before it.

Because post-trial motions must be filed within thirty days of the verdict, the Commonwealth Court characterized Setzer as imposing a thirty-day " statute of limitations" on petitions for return of property, which it held was not supported by Rule 588. In this regard, the Commonwealth Court evidently failed to discern that Setzer was based on a waiver analysis, rather than a statute of limitations analysis. Instead, construing its task as determining the applicable statute of limitations, the court examined the Controlled Substances Forfeiture Act, 42 Pa.C.S. § 6801(c),[3] which requires the Commonwealth to institute proceedings for the forfeiture of seized property " forthwith," and 42 Pa.C.S. § 5524(5),[4] which imposes a two-year statute of limitations for commencement of forfeiture proceedings. Premised on these two provisions, the Commonwealth Court posited that when the Commonwealth failed to move for forfeiture within two years of a warrantless seizure, the property in question should be returned to the person from whom it was seized. Allen, 59 A.3d at 680. However, determining that the question of whether the Commonwealth complied with these requirements was not directly before it, the Commonwealth Court instead looked elsewhere for a potentially pertinent statute of limitations.

Examining the Judicial Code, the Commonwealth Court considered and rejected the two-year limitation period for " [a]n action for taking, detaining or injuring personal property, including actions for specific recovery thereof," 42 Pa.C.S. § 5524(3), concluding that this provision was inapplicable for two reasons: first, because it has generally been applied in tort actions commenced by complaint; and, second, because a petition for return of property is a " proceeding," not an " action." See 42 Pa.C.S. § 102 (providing that " proceeding" includes " every declaration, petition or

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other application which may be made to a court under law . .., but the term does not include an action or an appeal." ).

Consequently, having determined that its task was to identify an applicable statute of limitations, the Commonwealth Court concluded there was no specific limitation period established by rule or law for the filing of a motion for return of property. Thus, to fill the void, the court held the residual six-year limitations period of Section 5527(b) was applicable, 42 Pa.C.S. § 5527(b),[5] and began to run at " the conclusion of the criminal case in the trial court, whether by conviction, acquittal or withdrawal of the charges; at the conclusion of any post-conviction proceedings or appeals; or at the conclusion of any collateral proceedings in federal court." Allen, 59 A.3d at 681. Because Appellee filed his petition over six years after his criminal case was concluded (by withdrawal of the charges), the Commonwealth Court held that it was untimely, and affirmed under the statute of limitations analysis the trial court's dismissal of the petition.

We granted the Commonwealth's allowance of appeal to determine whether a criminal defendant has an obligation to file a petition for return of property prior to the completion of proceedings before the trial court, or, as the Commonwealth Court held, may wait six years from the completion of all criminal proceedings, including collateral attacks, to file a stand-alone motion.[6] This issue is purely a question of law; accordingly, our standard of review is de novo, and our scope of review is plenary. Ash v. Cont'l ...

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