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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :

Appellant

:

:

v.

: No. 1358 C.D. 2004

: Submitted: December 17, 2004
All That Certain Land Located At
:
737 Ekastown Road (2 Parcels)
:
Identified at Butler Recorder of
:
Deeds Volume 1285 Page 0068 and :
Volume 1285 Page 0183 Including All :
Its Improvements, Appurtenances,
:
Buildings and Structures and at
:
305 Coal Hollow Road (5 Parcels)
:
Identified at Butler County Recorder :
of Deeds Volume 1285 Page 0187,
:
Volume 1438 Page 0456, Volume 1040 :
Page 631, Volume 1025 Page 225,
:
Book 2724 Page 0941, Book 2922
:
Page 0117 Including All Its
:
Improvements, Appurtenances,
:
Buildings and Structures and Personal :
Property Situated Thereupon and
:
Various Bank, Savings and Investment :
Accounts

:
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE
JIM
FLAHERTY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE FLAHERTY

FILED: February 9, 2005

The Commonwealth of Pennsylvania (Appellant) appeals from an
order of the Court of Common Pleas of Butler County, Criminal Division (trial

court) granting the motion for return of property to David Gebert (Appellee). We
vacate and remand.

On September 24, 2004, Appellant filed an ex parte petition for
preservation of assets and temporary restraining order (TRO) to preserve land and
financial assets acquired and used by Appellee in the alleged chop shop run by
himself, his wife and children. The trial court signed a TRO and set a hearing for
October 1, 2003.

On October 1, 2003, the trial court continued the hearing to allow
Appellee to review written materials seized pursuant to a search warrant and set a
new hearing date of December 8, 2003. On December 8, 2003, the Appellant
withdrew the petition to protect assets in order to protect the integrity of the
investigation, not wanting to reveal the names and addresses of the victims listed in
the seized business records prior to the completion of the criminal investigation.

On December 4, 2003, Appellee filed an omnibus motion for return of
property and rule to show cause. On December 8, 2003, the trial court entered an
order granting the withdrawal of the petition to protect assets and ordered a hearing
on the matter for January 26, 2004. On December 8, 2003, Appellee served a
notice on the District Attorney of Butler County and the Pennsylvania State Police
that Appellee was asserting his rights to remain silent under the Pennsylvania and
United States Constitutions for both custodial and non-custodial interrogation.

On January 23, 2004, the Appellant filed a response to Appellee's
motion for return of property and rule to show cause. On January 26, 2004,
Appellant was present with seven witnesses on the motion for return of property
and rule to show cause. After both counsel made a proffer, the trial court called an
2

end to the proceedings due to inclement weather and no testimony was taken. The
Appellant was not permitted to call any witnesses and Appellee did not testify.

On February 17, 2004, Appellee filed a response to Appellant's
memorandum. On May 27, 2004, the trial court entered an order finding that
Appellee was allowed to reexamine the seized documents and that nine categories
of items were to be returned to Appellee. It is only the second part of the order,
dealing with the return of nine specified items of documentary evidence, which is
at issue before our Court.

On June 3, 2004, the Appellant filed an application for reconsideration
and Appellee filed a reply. On June 24, 2004, a notice of appeal was filed by
Appellant. On June 30, 2004, the trial court ordered Appellant to file a concise
statement of matters complained of on appeal. On July 14, 2004, Appellant filed
such statement. On September 7, 2004, the trial court filed a supplemental
memorandum and opinion.1

Appellant contends that the trial court erred and abused its discretion
in ordering the return of property, specified and unspecified, pursuant to Rule of
Criminal Procedure 588 without conducting an evidentiary hearing where the
Appellee would be required to testify and Appellant given an opportunity to
present evidence; and erred and abused its discretion in granting a pre-arrest
motion for return of property for written records holding the written evidence was
outside the scope of a search warrant and therefore must be returned.

1 Our review is limited to examining whether the findings of fact made by the trial court
are supported by competent evidence, and whether the trial court erred as a matter of law or
abused its discretion. Commonwealth v. $8006.00 U.S. Currency, 646 A.2d 621 (Pa. Cmwlth.
1994).
3

Initially, we must address Appellee's contention that this appeal must
be dismissed as interlocutory. The appeal to our Court is not interlocutory. "An
order requiring officers to return seized property terminates the prosecution and is
therefore a final judgment, from which the Commonwealth may appeal. And
where the return and suppression of the evidence are ordered in terms so broad that
the Commonwealth might be prejudiced in an effort to introduce secondary
evidence...at the trial the Commonwealth may appeal." (Citations omitted.)
Commonwealth v. Rich, 100 A.2d 144 (Pa. Super. 1953). It has only been in cases
where the motion for return of property has been denied that the appeal is
considered interlocutory. See In re One Toyota Corolla (Blue Two-Door Sedan)
PA License TPV 291 David Lebron, 675 A.2d 1290 (Pa. Cmwlth. 1996).

Now we will address Appellant's contention that the trial court erred
and abused its discretion in ordering the return of property, specified and
unspecified, pursuant to Rule of Criminal Procedure 588 without conducting an
evidentiary hearing where the Appellee would be required to testify and Appellant
given an opportunity to present evidence.

Rule of Criminal Procedural (Rule) 588 states in pertinent 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.
(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
4

which case the court may order the property to be
forfeited.
(C) A motion to suppress evidence under Rule 581 may
be joined with a motion under this rule.

In In Re: One 1988 Toyota Corolla, David Lebron (Lebron) filed a
motion for return of property and the Commonwealth filed a petition to forfeit
property. Our Court determined that proceedings under Rule 324, now Rule 588,
are not criminal proceedings and jurisdiction lies with our Court.2 Id. 675 A.2d at
1295. Our Court further states in pertinent part as follows:
[A]n aggrieved person must establish first that he is
entitled to the lawful possession of the property. The
burden then shifts to the Commonwealth to resist the
return of property by proving that it is contraband.
(Citations omitted).
Id. 675 A.2d at 1295. In the present controversy, a hearing was started and then
ended due to inclement weather. There was no testimony taken in this case, only
statements by the attorneys and their briefs/memorandums were submitted.

There is nothing in the statute that would require Appellee to testify.
However, Appellee is required to prove that he is entitled to the lawful possession
of the property. A hearing on the motion to return property is required under Rule
588, at which the judge "shall receive evidence on any issue or fact necessary to
the decision thereon." The judge is then required to hear Appellant's reasons for
not returning the property. We find that the trial court erred in not holding a
hearing in this matter.3

2 Rule 324 was adopted October 17, 1973, amended June 29, 1977 and November 22,
1977, and renumbered Rule 588 and amended March 1, 2000.
3 Appellant also contends that the trial court erred in making its decision on the return of
property by looking solely at the six search warrants issued and the items listed on the return of
property petition filed by Appellee. The search warrant is but one item of many that should be
considered by the trial court after a hearing on the motion. As stated above, the trial court erred
(Footnote continued on next page...)
5

Accordingly, we vacate the decision of the trial court and remand for
a hearing on the Appellee's motion for the return of property.

JIM FLAHERTY, Senior Judge

(continued...)

in failing to hold a hearing on the motion to return property. Therefore, we need not address this
issue further.
6

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :

Appellant

:

:

v.

: No. 1358 C.D. 2004

:
All That Certain Land Located At
:
737 Ekastown Road (2 Parcels)
:
Identified at Butler Recorder of
:
Deeds Volume 1285 Page 0068 and :
Volume 1285 Page 0183 Including All :
Its Improvements, Appurtenances,
:
Buildings and Structures and at
:
305 Coal Hollow Road (5 Parcels)
:
Identified at Butler County Recorder :
of Deeds Volume 1285 Page 0187,
:
Volume 1438 Page 0456, Volume 1040 :
Page 631, Volume 1025 Page 225,
:
Book 2724 Page 0941, Book 2922
:
Page 0117 Including All Its
:
Improvements, Appurtenances,
:
Buildings and Structures and Personal :
Property Situated Thereupon and
:
Various Bank, Savings and Investment :
Accounts

:

O R D E R

AND NOW, this 9th day of February, 2005 the order of the Court of
Common Pleas of Butler County in the above captioned matter is vacated and we
remand for a hearing on David Gebert's motion for the return of property.
Jurisdiction
relinquished.

JIM FLAHERTY, Senior Judge