NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P : : : : No WDA 2012

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA v. SIXTY EIGHT THOUSAND NINE HUNDRED FIFTY DOLLARS IN U.S. CURRENCY APPEAL OF DAVID MORRIS BARREN IN THE SUPERIOR COURT OF PENNSYLVANIA No WDA 2012 Appeal from the Order Entered October 26, 2012, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-MD BEFORE FORD ELLIOTT, P.J.E., GANTMAN AND SHOGAN, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E. FILED November 15, 2013 David Morris Barren appeals, pro se, from the order of October 26, 2012, denying his action for replevin and motion for return of property. We affirm. follows The trial court has aptly summarized the history of this matter as On June 26, 2012, [appellant] filed a document entitled Pennsylvania Rules of Criminal Procedure Rule 588(A) Motion for Return of Property, in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division ( Motion for Return of Property ). On September 25, 2012, [appellant] further filed a document entitled Action in Replevin pursuant to Pa.R.Civ.P. Rule Writ of Seizure Upon Notice and Hearing ( Action in Replevin ).

2 Both of these documents concern seizures which occurred on March 4, 2003 at the Ramada Inn Hotel located at 669 Rodi Road in Wilkins Township, Pa. The Wilkins Township Police Department seized sixty-eight thousand nine hundred fifty dollars in U.S. currency ($68,950); a money counter; and heat sealer. [Appellant] admits in his Motion for Return of Property and Action in Replevin that he was present when the items were seized. See Exhibit D to [appellant] s Action in Replevin -- a Receipt/Inventory of Seized Property, detailing all items seized and indicating [appellant] was served with a copy of the Receipt. On March 12, 2003 an Order of Court was signed by Judge Robert Colville of the Court of Common Pleas of Allegheny County, Pennsylvania; and stated it appeared to the Court that the monies and/or property forfeited in connection with the above-captioned case were possessed or used or were intended for use in violation of the laws of the Commonwealth... At the time this Order was executed on March 12, 2003, [appellant] was represented by Ralph Karsh, Esquire. He consented to the forfeiture and stated he represents the interested claimants to this property. The Order further states It is agreed upon by the parties that the Claimant is knowingly, voluntarily and intelligently waiving his/her right to notice of a forfeiture proceeding, the filing of a forfeiture petition by the Commonwealth and, a hearing on the subject matter of this Order.... It was then ordered that $62,055 U.S. currency, the money counter and heat sealer be - 2 -

3 forfeited to the Commonwealth. $6,895 was returned to claimant or counsel. On October 26, 2012, the Court of Common Pleas of Allegheny County, Pennsylvania through the Honorable Philip A. Ignelzi issued an Order of Court denying both the Action for Replevin and Motion for Return of Property. Trial court opinion, 3/21/13 at 1-3. A timely notice of appeal was filed on November 7, On November 20, 2012, appellant was ordered to file a concise statement of errors complained of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.; appellant timely complied on December 5, On March 21, 2013, the trial court filed a Rule 1925(a) opinion. First, with regard to appellant s action for replevin, we note that 42 Pa.C.S.A. 6801, Controlled substances forfeiture, provides, in relevant part (d) Custody of property.--property taken or detained under this section shall not be subject to replevin.... Accordingly, the trial court did not err in denying appellant s action for replevin. We now turn to appellant s motion for return of property. 1 Our scope of review on appeal from a trial court s decision on a motion for return of 1 We note that both 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 Commonwealth v. Younge, 446 Pa.Super. 541, 667 A.2d 739 (1995); In Re One 1988 Toyota Corolla, 675 A.2d 1290 (Pa.Cmwlth. 1996). Because Appellant chose this forum, we will address this appeal

4 property is limited to determining whether the trial court s findings are supported by competent evidence and whether the trial court abused its discretion or committed an error of law. Commonwealth v. Allen, 59 A.3d 677, 679 n.2 (Pa.Cmwlth. 2012) (en banc), appeal denied, Pa., 74 A.3d 127 (2013), citing In re One 1988 Toyota Corolla (Blue Two Door Sedan) Pa. License TPV 291, 675 A.2d 1290, 1296 n.13 (Pa.Cmwlth. 1996). As did its predecessor [Rule 324], Rule 588 does not provide any guidance on when a petitioner should or must file a motion for return of property. Id. at 679 n. 3. Allen found that the residual six-year statute of limitations in 42 Pa.C.S.A. 5527(b) applies, and begins to run at the conclusion of the criminal case in the trial court. Id. at 681. Thus, in Allen, the statute began to run when the criminal charges against the petitioner were withdrawn. Id. In the instant case, there were no charges filed against appellant as a result of the March 4, 2003 incident. Allen recognized that, 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. Id. at 680 (citation omitted). Certainly, the statute of limitations would begin to run no later than March 12, 2003, when the forfeiture order was signed. Commonwealth v. Durham, 9 A.3d 641, 642 n.1 (Pa.Super. 2010), appeal denied, 610 Pa. 583, 19 A.3d 1050 (2011)

5 Applying the residual six-year statute, appellant would have until March 12, 2009 to file a motion for return of property. Appellant s motion filed June 26, 2012, is patently untimely and is statutorily barred. According to appellant, the statute has not yet begun to run because there are still collateral proceedings pending. (Appellant s reply brief at 4.) Appellant has seized on language in Allen to the effect that, the six-year limitation period begins 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 (footnote omitted). As stated above, no charges were filed in this case. Apparently, appellant is serving out a life sentence on unrelated charges in federal prison. (Trial court opinion, 3/21/12 at 3.) However, the pendency of collateral proceedings in that unrelated matter would not toll the statute of limitations in this civil forfeiture proceeding. As appellant s motion for return of property was barred by the applicable statute of limitations, the trial court did not err in denying it. 2 2 We note that the trial court relied on the two-year statute of limitations found at 42 Pa.C.S.A. 5524(3) and (5), an approach which was explicitly rejected by the Commonwealth Court in Allen. Allen, 59 A.3d at 680. As an appellate court, we may uphold a decision of the trial court if there is any proper basis for the result reached; thus, we are not constrained to affirm on the grounds relied upon by the trial court. Jones v. Harleysville Mutual Insurance Co., 900 A.2d 855, 858 (Pa.Super. 2006); In re Adoption of - 5 -

6 Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date 11/15/2013 R.J.S., 889 A.2d 92, 98 (Pa.Super. 2005). At any rate, whether a two-year or six-year statute applies, appellant s motion was untimely