J. S31035/20
2020 PA Super 275
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAMES HOWARD CAVINESS, : No. 39 MDA 2020
:
Appellant :
Appeal from the Order Entered November 26, 2019,
in the Court of Common Pleas of Adams County
Criminal Division at No. CP-01-CR-0000464-2018
BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
OPINION BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 23, 2020
James Howard Caviness appeals from the November 26, 2019 order
granting, in part, and denying, in part, the petition for the return of property
filed on behalf of his wife, Rita Caviness (hereinafter, “Wife”).1 After careful
review, we vacate the order for the trial court’s lack of jurisdiction.2
The trial court summarized the relevant facts and procedural history of
this case as follows:
1 As more fully discussed, infra, although the trial court construes Wife as the
“appellant,” based upon appellant’s counsel’s averment at the November 25,
2019 hearing that this petition was filed on her behalf, both the notice of
appeal and petition for return of property designate James Howard Caviness
as appellant and “the defendant/Petitioner,” and make no mention of Wife.
2 The Commonwealth has indicated it will not be filing a brief in this matter
and will be relying on the reasoning set forth in the February 3, 2020 trial
court opinion.
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On January 22, 2019, [appellant] pled guilty to
Count 1, rape of a juvenile under 18 Pa.C.S.A.
§ 3121(c) and to Count 12, corruption of minors under
18 Pa.C.S.A. § 6301(a)(1)(i). On April 16, 2019,
pursuant to a negotiated plea agreement, [appellant]
was sentenced on Count 1 to seven to seventeen
years in a state correctional institution, and on
Count 12 to three years of probation to run
consecutively to Count 1. [Appellant] did not file any
post sentence motions, nor did [appellant] appeal
from the jud[gm]ent of sentence imposed on April 16,
2019.
However, on October 4, 2019, a petition to return
property[3] was filed to this criminal docket. On
November 25, 2019, a hearing was held on the
petition, where a third party, [Wife], was represented
to be the actual party moving for the return of
property, and defense counsel, Mark S. Keenheel,
Esq. [(“Attorney Keenheel”)], affirmed that his client
was [Wife].[Footnote 1]
3 The record reflects that appellant requested return of the following property
seized by the Commonwealth:
Item 1: appellant’s black smart phone; Item 2: black
Asus laptop; Item 3: black laptop recovered on
basement table; Item 4: black computer tower;
Item 5: black thumb drive; Item 6: green cloth
swatch from basement table; Item 7: green blanket
on basement table; Item 8: black laptop recovered in
living room; [original Item 9 stricken]; Item [9]: black
Kindle; Item [10]: black computer tower; Item [11]:
black E-machine laptop; Item [12]: black Kingston
flash drive; Item [13]: black Western District external
hard drive; Item [14]: black Samsung tablet;
Item [15]: black/silver E-machine laptop; Item [16]:
black Minolta camera; Item [17]: Kodak disposable
camera; and Item [18]: miscellaneous CDs in
book bag.
See trial court order, 11/25/19 at Exhibit A, “Receipt/Inventory of Seized
Property”; see also notes of testimony, 11/25/19 at 6-12.
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[Footnote 1] [Attorney Keenheel] was
pretrial, plea, and sentencing counsel for
[appellant].
Trial court opinion, 2/3/20 at 1-2 (citation formatting corrected; extraneous
capitalization omitted).
At the November 25, 2019 hearing,4 Attorney Keenheel argued that Wife
merely wanted an opportunity to retrieve family photos from the seized
devices and that return of the devices themselves was irrelevant. (Notes of
testimony, 11/25/19 at 18.) The Commonwealth disagreed with this
assessment, arguing that the devices in question contain “images or websites
or conversations that are flagged by the Computer Forensics Team as being
questionable in nature” and that “the Commonwealth is not unfortunately in
the process or frankly really able to be going through and picking out what is
and what is not [contraband].” (Id. at 17.) The following day, the trial court
entered an order concluding that Items 2-5, 7-9, 11, and 16-18 were
returnable to Wife. (Trial court order, 11/26/19 at ¶ 1.) The trial court found
that Items 1, 6, 10, and 12-15 were “material evidence in a criminal case”
and “[t]he Pennsylvania State Police may dispose of those items through the
normal course of their operations.” (Id. at ¶ 2.)
This timely appeal followed. On January 3, 2020, the trial court ordered
appellant to file a concise statement of errors complained of on appeal, in
4 The trial court opinion incorrectly indicates that appellant failed to ensure
that the transcript of the November 25, 2019 hearing was included in the
certified record; however, this transcript is a part of the certified record.
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accordance with Pa.R.A.P. 1925(b), within 21 days. Appellant timely complied
and the trial court filed its Rule 1925(a) opinion on February 3, 2020.
Appellant raises the following issues on appeal:
1. Whether [Wife], pursuant to the doctrine of
tenant by the entireties, may pursue the instant
return of property petition in [appellant’s]
criminal case[?]
2. Whether [Wife] is entitled to a return of the
family pictures on the seized electronic items[?]
Appellant’s brief at 7 (full capitalization omitted).
Preliminarily, we note that “[b]oth this Court and the Commonwealth
Court have jurisdiction to decide an appeal involving a motion for the return
of property filed pursuant to Pa.R.Crim.P. 588.” Commonwealth v.
Durham, 9 A.3d 641, 642 (Pa.Super. 2010) (citations omitted), appeal
denied,
19 A.3d 1050 (Pa. 2011).
The standard of review applied in cases involving
motions for the return of property is an abuse of
discretion. In conducting our review, we bear in mind
that it is the province of the trial court to judge the
credibility of the witnesses and weigh the testimony
offered. It is not the duty of an appellate court to act
as fact-finder, but to determine whether there is
sufficient evidence in the record to support the facts
as found by the trial court.
Commonwealth v. Rodriguez, 172 A.3d 1162, 1165 (Pa.Super. 2017)
(citation omitted).
In his brief, appellant presents a singular, three-paragraph argument
that addresses his overarching claim that the trial court erred by denying, in
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part, the petition for the return of property. Appellant avers that his Wife
should be entitled to petition for the return of property – namely, family
photographs on various electronic devices seized by the Commonwealth in
appellant/husband’s criminal case – in his criminal docket, based upon the
common law doctrine of tenancy by the entireties.5 (Appellant’s brief at 9-10.)
For the following reasons, we disagree.
The question of whether a non-defendant third party may petition for
the return property in the criminal proceedings of another person appears to
be one of first impression for this court. Generally, Pennsylvania Rule of
Criminal Procedure 588 governs motions for the return of property and
provides, in relevant part, as follows:
(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 or she 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.
Pa.R.Crim.P. 588(A).
Courts in this Commonwealth have long recognized that a motion for
the return of property is timely if it is filed “during the pendency of the criminal
proceedings, or while the trial court retains jurisdiction for thirty days following
5 A tenancy by the entireties is defined as “a form of co-ownership of real or
personal property by husband and wife, with its essential characteristic being
that each spouse is seised . . . of the whole or the entirety and not of a share,
. . . or divisible part.” Johnson v. Johnson, 908 A.2d 290, 295 (Pa.Super.
2006) (citation and internal quotation marks omitted).
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its disposition of the criminal case.” Rodriguez, 172 A.3d at 1164 n.10, citing
Commonwealth v. Allen,
107 A.3d 709, 717 (Pa. 2014) (holding that Allen’s
failure to file a motion for return of property during the pendency of the
criminal proceedings against him or within 30 days following dismissal of the
charges resulted in waiver of the issue, thereby precluding review of his
stand-alone return petition); see also 42 Pa.C.S.A. § 5505.
Applying Allen to this matter, we find that the trial court did not have
jurisdiction to address the untimely motion for return of property. The record
reflects that appellant pled guilty to the aforementioned offenses on
January 22, 2019, and the trial court sentenced him on April 16, 2019.
Appellant did not appeal and the trial court lost jurisdiction when the 30-day
appeal period expired on May 16, 2019. On October 4, 2019, appellant filed
the instant motion for return of property, nearly five months after the trial
court lost jurisdiction. Although Attorney Keenheel averred at the
November 25, 2019 hearing that this petition was filed on behalf of Wife,6 the
petition makes no mention of this distinction nor references Wife or the
doctrine of tenancy by the entireties. Rather, this petition provides, in full, as
follows:
1. The defendant/Petitioner in this matter is
James Howard Caviness[, appellant].
2. [Appellant] was arrested on March 14, 2018 in
the above captioned matter.
6 See notes of testimony, 11/25/19 at 3-4 (emphasis added).
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3. [Appellant] has plead guilty and has been
sentenced.
4. No appeal has been filed.
5. At the time of his arrest, property was seized
from his residence as indicated in Exhibit “A”.
Wherefore, the property listed in Exhibit “A” is
hereby requested to be returned.
Petition for return of property, 10/4/19 (emphasis added).
Based on the foregoing, we conclude that the trial court did not have
jurisdiction over any issues on the criminal docket, including the untimely
petition for return of property, and appellant waived his right to seek the
return of seized property under Rule 588. See Allen, 107 A.3d at 718.
In reaching this conclusion, we acknowledge that Allen expressly
limited its ruling to the facts of that case; namely, “where the property owner
is the criminal defendant, and had an opportunity to move for the return of
property during the thirty days following disposition of the charges, while the
trial court had jurisdiction.” Allen, 107 A.3d at 717 n.10. The Allen court
did not rule on the time period within which a petitioner who was not the
criminal defendant must file a motion to return property.
Id. Rather, the
Allen court urged “the Civil and Criminal Procedural Rules Committees to
consider articulating a rule that would define the timing of return motions filed
in [such] circumstances . . . .”
Id.
We further acknowledge that the Commonwealth Court has recently
held that when a petition for the return of property is filed by a non-defendant
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third party (i.e., Wife), the catchall 6-year statute of limitations set forth in
42 Pa.C.S.A. § 5527(b) applies. See In re Return of Personal Property,
180 A.3d 1288, 1293 (Pa.Cmwlth. 2018) (applying the 6-year statute of
limitations in Section 5527(b) to a motion for return of non-contraband
property filed 13 years after confiscation). However, we find that this case is
clearly distinguishable from the instant matter because the items seized were
not done so in connection with a criminal proceeding. Moreover, this court
has long recognized that “decisions rendered by the Commonwealth Court are
not binding on this Court.” See Beaston v. Ebersole,
986 A.2d 876, 881
(Pa.Super. 2009).
In any event, even to the extent that Wife is construed as the movant
of the petition in question, under Allen the timely filing of a Rule 588 motion
is a jurisdictional prerequisite to consideration of the motion in a criminal
context, and parties cannot waive the issue of jurisdiction. See
Commonwealth v. Pammer, 2020 WL 2552795 at *5 (Pa.Super. 2020). As
recognized by the trial court, it logically follows that Wife should have filed the
petition to return property in a civil docket, instead of in appellant-husband’s
criminal docket:
[I]t seems a non-criminal defendant claiming return
of property should be obligated to file a separate civil
petition, for which a six year statute of limitation is
applicable, instead of being permitted to file the
petition to a criminal docket to which the claimant is
not a party and which might be closed or on appeal
thereby depriving the trial court of further jurisdiction.
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Trial court opinion, 2/3/20 at 4. We agree with the trial court’s reasoning.
Accordingly, for all the foregoing reasons, we vacate the November 26,
2019 order granting, in part, and denying, in part, the petition for the return
of property for lack of jurisdiction.
Order vacated.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2020
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