J-A13019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

WALTER JAMES KITKO

                         Appellant                  No. 977 WDA 2015


                  Appeal from the Order dated June 16, 2015
              In the Court of Common Pleas of Clearfield County
               Criminal Division at No: CP-17-CR-0000501-2010


BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                    FILED SEPTEMBER 16, 2016

     Appellant Walter James Kitko appeals from the June 16, 2015 order of

the Court of Common Pleas of Clearfield County (“trial court”), granting the

Commonwealth’s “Motion to Dispose of Evidence and Motion for Forfeiture of

Contraband” (“Forfeiture Motion”). Upon review, we vacate and remand.

     The facts and procedural history of this case are undisputed.

Appellant’s paramour, the victim herein, complained to the DuBois Police

Department, Clearfield County, that Appellant used electronic surveillance

equipment to record her without her consent while she was either in states

of undress or engaged in intimate sexual acts and disseminated the explicit

recordings to her and her ex-husband. The Commonwealth initially charged

Appellant with sixty-three counts of various criminal violations, including

invasion of privacy, harassment, terroristic threats, obscene and other
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sexual materials, and stalking.            Thereafter, the Commonwealth added

twenty-four additional counts of invasion of privacy, and nine counts of

obscene and other sexual materials.              In support of the charges, the

Commonwealth conducted searches of Appellant’s and his brother Cameron

Kitko’s residence located in neighboring Jefferson County. Upon execution of

the warrants, the police seized various items, which have remained in the

possession of Clearfield County’s DuBois Police Department.

        While the case was pending, on December 22, 2010, Appellant’s

brother filed a pro se “Petition for Return of Property” in the Clearfield

County trial court.      On March 8, 2011, the trial court denied Appellant’s

brother’s petition.     Citing Pa.R.Crim.P. 588,1 the trial court explained that

Appellant’s brother “should have filed his petition in the court of common

pleas for the judicial district in which the property was seized,” i.e., Jefferson

County. See Trial Court Order, 3/8/11. Thereafter, the parties entered into

____________________________________________


1
    Rule 588, relating to motion for return of property, provides in part:

        (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.

        (B) The judge hearing such motion shall receive evidence on any
        issue of fact necessary to the decision thereon. If the motion is
        granted, the property shall be restored unless the court
        determines that such property is contraband, in which case the
        court may order the property to be forfeited.
Pa.R.Crim.P. 588(A), (B) (emphasis added).



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a negotiated plea agreement whereby Appellant agreed to plead guilty to

three counts of invasion of privacy, a third-degree misdemeanor, and serve

three years of probation. In exchange, the Commonwealth nolle prossed the

remaining charges.

       After Appellant finished serving his sentence, on April 16, 2015, he

filed a petition for return of seized property in the Court of Common Pleas of

Jefferson County under Rule 588.2 While Appellant’s petition was pending in

Jefferson County, the Commonwealth filed the instant Forfeiture Motion with

Clearfield County trial court.3       The seized items subject to Appellant’s and

the Commonwealth’s respective motions appear to be identical and include:

       (a)    Item #1 on Docket Number 56-1-10, Bluish Samsung
              Verizon #771-9214 Ser #A00000148088E8;

       (b)    Item #2 on Docket Number 56-1-10, Bluish Samsung
              Verizon #591-2711 Ser #A100000140F932;

       (c)    Item #3 on Docket Number 56-1-10, HP Silver Camera
              Model #6RLYB-03020;

       (d)    Item #4 on Docket Number 56-1-10, Black small VHS tape
              with Kitko on it;

       (e)    Item #5 on Docket Number 56-1-10, CD ROM Ser #1977;

       (f)    Item #6 on Docket Number 56-1-10-, Note worthy 56k
              Modern PC Card #0013524;


____________________________________________


2
 Appellant claims that his brother joined the petition for return of property.
Because we do not have the Jefferson County record before us, we are
unable to verify this claim. See Appellant’s Brief at 4.
3
 The Commonwealth’s Forfeiture Motion appears to have been predicated on
common law forfeiture.



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     (g)   Item #7 on Docket Number 56-1-10, VHS Tapes (17)
           Black;

     (h)   Item #8 on Docket Number 56-1-10, White Paper with
           Letter to [the victim];

     (i)   Item #1 on Docket Number 56-2-10, HP Brio Computer w/
           keyboard and mouse;

     (j)   Item #2 on Docket Number 56-2-10, Black Nokia Cell
           Phone FCC 10 QTLRH65;

     (k)   Item #3 on Docket Number 56-2-10, Black Motorola Cell
           Phone FCC 10-1HDT56GA1,

     (l)   Item #4 on Docket Number 56-1-10, Silver Verizon LG Cell
           Phone FCC 10-13EJTM250;
     (m)   Item #5 on Docket Number 56-2-10, Gray Verizon LF Cell
           Phone FCC 10-BEJVX5400;

     (n)   Item #6 on Docket Number 56-2-10, Sony Cybershot
           Digital Camera;

     (o)   Item #7 on Docket Number 52-2-10, Yoku Electronic
           Component;

     (p)   Item #8 Docket Number 52-2-10, Box for Wireless
           Camera;

     (q)   Item #9 Docket Number 52-2-10, Box for HP Photosmart
           Digital Camera;

     (r)   Item #10 Docket Number 52-2-10, Box for FUJI Film
           Digital Camera;

     (s)   Item #11 on Docket Number 52-2-10, Sony 8 MM Video
           Cassette;
     (t)   Item #12 on Docket Number 52-2-10, RCA Camcorder;
           and

     (u)   Item #13 on Docket Number 52-2-10, Verizon LG VX 5200
           Cell Phone Box.

Commonwealth’s Forfeiture Motion, 5/1/15.    Thereafter, on May 5, 2015,

Appellant transferred all seized property to his brother. On June 16, 2015,




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the Clearfield County trial court held a hearing on the Commonwealth’s

Forfeiture Motion, at which both parties presented only arguments. 4,5

Following the hearing, the trial court granted in part the Commonwealth’s

Forfeiture Motion, authorizing the Commonwealth to dispose of the following

seized items:

       (a)     A blue Samsung Verizon phone, number 771-9214, serial
               number A00000148088E8;

       (b)     A blue Samsung Verizon phone, number 591-2711, serial
               number A100000140F932;

       (c)     Seventeen (17) VHS tapes, black;

       (d)     A white paper with letter to [the victim]; and

       (e)     RCA camcorder.

Trial Court Order, 6/16/15.        The trial court ordered the Commonwealth to

return the remaining items to Appellant. Appellant timely appealed to this

Court.       The trial court directed Appellant to file a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.            Appellant complied.   In

response, the trial court issued a Pa.R.A.P. 1925(a) opinion.




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4
  The trial court denied Appellant’s request to present evidence at the
hearing. N.T. Hearing, 6/16/15 at 5-7.
5
  We note that the Court of Common Pleas of Jefferson County scheduled a
hearing on Appellant’s petition for return of property for June 25, 2015, but
in light of the disposition of the Commonwealth’s Forfeiture Motion in
Clearfield County, it sine die continued the June 25, 2015 hearing.




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       On appeal,6 Appellant raises two issues for our review:

       1. The lower court lacked jurisdiction to hear and decide the
          Commonwealth’s [Forfeiture Motion].

       2. Assuming the lower court did possess jurisdiction to hear and
          decide the Commonwealth’s [Forfeiture Motion], the lower
          court erred by not conducting a full hearing.

Appellant Brief at 2.

       We first address Appellant’s contention that the Clearfield County trial

court lacked jurisdiction to hear and decide the Commonwealth’s Forfeiture

Motion.    At the core, Appellant argues only that the trial court abused its

discretion in ruling on the Forfeiture Motion when Appellant’s petition for
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6
  As we have explained in In re Firearms, Eleven, 922 A.2d 906 (Pa.
Super. 2007):

       While the Commonwealth Court may have been the proper
       venue in which to file an appeal in this forfeiture action, In re
       One 1988 Toyota Corolla, 675 A.2d 1290 (Pa. Cmwlth. 1996),
       neither party has objected to our exercise of appellate
       jurisdiction, and there is a [] body of Superior Court decisional
       law on this subject. Hence, we have elected to decide the merits
       of this appeal rather than transfer it to the Commonwealth
       Court. See Pa.R.A.P. 741(a), which provides:

              The failure of an appellee to file an objection to the
              jurisdiction of an appellate court on or prior to the
              last day under these rules for the filing of the record
              shall, unless the appellate court shall otherwise
              order, operate to perfect the appellate jurisdiction of
              such appellate court, notwithstanding any provision
              of law vesting jurisdiction of such appeal in another
              appellate court.

      Accord Shumake v. Philadelphia Bd. of Educ., 686 A.2d 22,
      24, n. 5 (Pa. Super. 1996) (while Commonwealth Court had
      jurisdiction over appeal in civil action against school district,
      Superior Court retained jurisdiction where neither party
      objected).
In re Firearms, Eleven, 922 A.2d at 908 n.1.



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return of property was already pending in the Court of Common Pleas of

Jefferson County. We agree.

      At the outset, we note that our review of the docket here indicates

that on April 16, 2015, Appellant filed a petition for return of property in

Jefferson County under Rule 588. As we noted above and as the trial court

(Clearfield County) acknowledged in its March 8, 2011 order, Rule 588 sets

forth venue when motions for return of property are filed. Specifically, Rule

588 provides that motions for return of property “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) (emphasis added). The parties here do

not dispute that the evidence sub judice was seized in Jefferson County

pursuant to search warrants issued by a Magisterial District Judge in that

county. Thus, Appellant’s petition for return of property was filed properly in

Jefferson County.

      After Appellant properly sought the return of his property in Jefferson

County, the Commonwealth filed the instant Forfeiture Motion in Clearfield

County, involving the same property, on May 1, 2015. Because Appellant’s

action already was pending in Jefferson County, the Clearfield County trial

court abused its discretion in holding a hearing and then ruling on the

Commonwealth’s Forfeiture Motion. The Clearfield County trial court should

have held the Commonwealth’s Forfeiture Motion in abeyance until the Court

of Common Pleas of Jefferson County had an opportunity to conduct a

hearing and rule on Appellant’s petition for return of property. By ruling on

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the Commonwealth’s Forfeiture Motion before the Court of Common Pleas of

Jefferson County decided Appellant’s petition for return of property, the

Clearfield County trial court deprived Appellant of the protections afforded

under Rule 588. Accordingly, we vacate the trial court’s June 16, 2015 order

granting in part the Commonwealth’s Forfeiture Motion and remand the

matter to the trial court with instruction to decide the Forfeiture Motion only

after the Court of Common Pleas of Jefferson County rules on Appellant’s

petition for return of property.7, 8

        Order vacated. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2016




____________________________________________


7
  The Court of Common Pleas of Jefferson County must receive evidence
necessary to determine who owns each item of property in question. See
Pa.R.Crim.P. 588(B).
8
    Based on the outcome, we need not address Appellant’s second issue.



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