J-S26025-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LESLIE MILES WEATHERS : : Appellant : No. 1609 WDA 2019
Appeal from the Judgment of Sentence Entered August 12, 2019 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0004317-2018
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 01, 2020
Leslie Miles Weathers appeals the judgment of sentence imposed
following his conviction for trademark counterfeiting.1 Weathers argues the
court erred in denying his pre- and post-sentence motions for return of
property. We affirm.
In November 2017, an Allegheny County Police Officer came across
Weathers’ vehicle while it was parked and running at a gas station. Upon
learning that the vehicle was registered to Weathers, and that Weathers had
an active warrant for his arrest, the officer attempted to locate Weathers.
When the officer was unable to do so, he seized Weathers’ vehicle and
conducted an inventory search. Inside the vehicle, the officer discovered 16
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. § 4119(a)(2). J-S26025-20
pairs of boxed shoes and boots, labeled with the branding of Nike, Ugg, and
Timberland. He also found four National Football League (“NFL”) jerseys and
one NFL cap; other items of clothing such as a faux leather jacket and thermal
shirts; thirteen pairs of sunglasses; and two cell phones. N.T (Trial), 4/29/19,
at 54-56. In addition, the officer found “a number of other items in there,
[that] didn’t see[m] of evidentiary value or of value to protect, several
cluttered papers,” and “a vacuum pack bound binding of grocery bags[.]” Id.
at 56; see also id. at 63.
The Commonwealth charged Weathers with four counts of trademark
counterfeiting for the items bearing the marks held by the NFL, Nike,
Timberland, and Ugg, respectively. The court found Weathers guilty on Count
One, relating to the five NFL items, and acquitted him of the other three
counts.2
At the conclusion of trial, Weathers moved to have any non-counterfeit
items returned to him. Id. at 121. The court stated that it “assume[d] the
Commonwealth will return any items that were not deemed by the
Commonwealth to be counterfeit.” Id. The prosecutor responded that he
believed the police had already returned any non-counterfeit items to
Weathers, and also said, “I would on the record extend to Mr. Weathers the
ability to go and take those out of the evidence storage.” Id. However, the
Commonwealth stated that it would not return any counterfeit items without ____________________________________________
2The Commonwealth had also charged Weathers with one count of flight, 18 Pa.C.S.A. § 5126(a). The court found Weathers not guilty of this offense.
-2- J-S26025-20
a hearing. Id. The court suggested a hearing be held at sentencing, and
Weathers’ attorney agreed. Id. at 122.
Weathers filed a pro se Petition for Return of Seized Property, requesting
the return of “cellphone[s,] 4 pairs of boots[,] CD’s + DVD’s[,] and 1 yellow
handbag[.]” Pro Se Mot., 7/15/19, at 2.
Weathers then filed a Motion for Return of Property3 through counsel,
requesting the return of seized property. The Motion did not describe the
property that Weathers sought to have returned, but stated that Weathers
sought to have the property that was the subject of Counts 2, 3, and 4
returned. The Motion stated that as the court only convicted Weathers on
Count 1, “there has been no determination, beyond a reasonable doubt, that
th[e] items [charged on other counts] were counterfeit.” Sentencing Mot.,
7/29/19, at ¶ 5-6. At the sentencing hearing, in accordance with the Motion,
Weathers’ attorney argued that Weathers was entitled to the return of the
property that was seized except for the items included under Count 1. See
N.T. (Sentencing), 7/29/19, at 6.
The court denied Weathers’ Motion. The court stated on the record that
although it had found Weathers not guilty of trademark counterfeiting on
Counts 2, 3, and 4, it had found that the seized items giving rise to those
counts were counterfeit. See id. at 8-9. The court also wrote, “And now
3 The Motion was incorporated in Weathers’ Sentencing Motion.
-3- J-S26025-20
7/29/19 motion is hereby denied” on Weathers’ filed pro se Petition. The court
then sentenced Weathers to serve four years’ probation.
Weathers filed a counseled Motion to Reconsider the court’s ruling on
the return of property. The court denied the Motion to Reconsider. Weathers
appealed.4
Weathers presents the following question for our review:
Whether the trial court abused its discretion or committed an error of law in denying Mr. Weathers’ motion for return of property, requesting the return of his cell phones, four pairs of boots, one yellow handbag, and CDs and DVDs, where Mr. Weathers clearly demonstrated his entitlement to lawful possession, but the Commonwealth made no effort to establish that such items were contraband, the Commonwealth never filed a motion for forfeiture, and forfeiture does not automatically ensue simply because a motion for return of property has been denied?
Weathers’ Br. at 6.
Weathers argues that he is the lawful owner of two cell phones, four
pairs of boots, one yellow handbag, and some undisclosed number of CDs and
DVDs that “still remain in the possession of the Commonwealth via the
Allegheny County Police Department.” Id. at 29-30. Weathers argues that
these items should be returned to him, as they were not established as
contraband, and the Commonwealth never filed a motion for forfeiture. Id. at
25-26, 30-32 (citing Pa.R.Crim.P. 588, 18 Pa.C.S.A. § 4119(f), and 42
4 Weathers did not immediately appeal. In October 2019, he filed an uncontested petition under the Post Conviction Relief Act (“PCRA”) to reinstate his appellate rights nunc pro tunc, and the PCRA court granted relief.
-4- J-S26025-20
Pa.C.S.A. § 5805). Weathers concedes that “the items that subjected him to
prosecution for five counts[5] of Trademark Counterfeiting . . . cannot be
returned.” Id. at 28. However, Weathers emphasizes that the items he is
requesting are separate from those items which gave rise to any criminal
charges. Id. Weathers also argues that “the Commonwealth agreed on the
record that Mr. Weathers was entitled to the return of these items.” Id. at 34.
Weathers’ issue is waived. In Weathers’ counseled Motion for the Return
of Property and his Motion to Reconsider, and in his argument before the court,
he requested the return of the property associated with Counts 2, 3, and 4—
shoes and boots bearing Nike, Ugg, and Timberland trademarks. Accordingly,
the court’s rulings on the Motions related only to these items. As Weathers
acknowledges in his brief, these do not include the items he is now
requesting.6
Although Weathers did list these items in his pro se motion, Weathers
was represented by counsel at the time he filed the motion, and it was
therefore not cognizable. See Commonwealth v. Jette, 23 A.3d 1032, 1044
(Pa.
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J-S26025-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LESLIE MILES WEATHERS : : Appellant : No. 1609 WDA 2019
Appeal from the Judgment of Sentence Entered August 12, 2019 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0004317-2018
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 01, 2020
Leslie Miles Weathers appeals the judgment of sentence imposed
following his conviction for trademark counterfeiting.1 Weathers argues the
court erred in denying his pre- and post-sentence motions for return of
property. We affirm.
In November 2017, an Allegheny County Police Officer came across
Weathers’ vehicle while it was parked and running at a gas station. Upon
learning that the vehicle was registered to Weathers, and that Weathers had
an active warrant for his arrest, the officer attempted to locate Weathers.
When the officer was unable to do so, he seized Weathers’ vehicle and
conducted an inventory search. Inside the vehicle, the officer discovered 16
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. § 4119(a)(2). J-S26025-20
pairs of boxed shoes and boots, labeled with the branding of Nike, Ugg, and
Timberland. He also found four National Football League (“NFL”) jerseys and
one NFL cap; other items of clothing such as a faux leather jacket and thermal
shirts; thirteen pairs of sunglasses; and two cell phones. N.T (Trial), 4/29/19,
at 54-56. In addition, the officer found “a number of other items in there,
[that] didn’t see[m] of evidentiary value or of value to protect, several
cluttered papers,” and “a vacuum pack bound binding of grocery bags[.]” Id.
at 56; see also id. at 63.
The Commonwealth charged Weathers with four counts of trademark
counterfeiting for the items bearing the marks held by the NFL, Nike,
Timberland, and Ugg, respectively. The court found Weathers guilty on Count
One, relating to the five NFL items, and acquitted him of the other three
counts.2
At the conclusion of trial, Weathers moved to have any non-counterfeit
items returned to him. Id. at 121. The court stated that it “assume[d] the
Commonwealth will return any items that were not deemed by the
Commonwealth to be counterfeit.” Id. The prosecutor responded that he
believed the police had already returned any non-counterfeit items to
Weathers, and also said, “I would on the record extend to Mr. Weathers the
ability to go and take those out of the evidence storage.” Id. However, the
Commonwealth stated that it would not return any counterfeit items without ____________________________________________
2The Commonwealth had also charged Weathers with one count of flight, 18 Pa.C.S.A. § 5126(a). The court found Weathers not guilty of this offense.
-2- J-S26025-20
a hearing. Id. The court suggested a hearing be held at sentencing, and
Weathers’ attorney agreed. Id. at 122.
Weathers filed a pro se Petition for Return of Seized Property, requesting
the return of “cellphone[s,] 4 pairs of boots[,] CD’s + DVD’s[,] and 1 yellow
handbag[.]” Pro Se Mot., 7/15/19, at 2.
Weathers then filed a Motion for Return of Property3 through counsel,
requesting the return of seized property. The Motion did not describe the
property that Weathers sought to have returned, but stated that Weathers
sought to have the property that was the subject of Counts 2, 3, and 4
returned. The Motion stated that as the court only convicted Weathers on
Count 1, “there has been no determination, beyond a reasonable doubt, that
th[e] items [charged on other counts] were counterfeit.” Sentencing Mot.,
7/29/19, at ¶ 5-6. At the sentencing hearing, in accordance with the Motion,
Weathers’ attorney argued that Weathers was entitled to the return of the
property that was seized except for the items included under Count 1. See
N.T. (Sentencing), 7/29/19, at 6.
The court denied Weathers’ Motion. The court stated on the record that
although it had found Weathers not guilty of trademark counterfeiting on
Counts 2, 3, and 4, it had found that the seized items giving rise to those
counts were counterfeit. See id. at 8-9. The court also wrote, “And now
3 The Motion was incorporated in Weathers’ Sentencing Motion.
-3- J-S26025-20
7/29/19 motion is hereby denied” on Weathers’ filed pro se Petition. The court
then sentenced Weathers to serve four years’ probation.
Weathers filed a counseled Motion to Reconsider the court’s ruling on
the return of property. The court denied the Motion to Reconsider. Weathers
appealed.4
Weathers presents the following question for our review:
Whether the trial court abused its discretion or committed an error of law in denying Mr. Weathers’ motion for return of property, requesting the return of his cell phones, four pairs of boots, one yellow handbag, and CDs and DVDs, where Mr. Weathers clearly demonstrated his entitlement to lawful possession, but the Commonwealth made no effort to establish that such items were contraband, the Commonwealth never filed a motion for forfeiture, and forfeiture does not automatically ensue simply because a motion for return of property has been denied?
Weathers’ Br. at 6.
Weathers argues that he is the lawful owner of two cell phones, four
pairs of boots, one yellow handbag, and some undisclosed number of CDs and
DVDs that “still remain in the possession of the Commonwealth via the
Allegheny County Police Department.” Id. at 29-30. Weathers argues that
these items should be returned to him, as they were not established as
contraband, and the Commonwealth never filed a motion for forfeiture. Id. at
25-26, 30-32 (citing Pa.R.Crim.P. 588, 18 Pa.C.S.A. § 4119(f), and 42
4 Weathers did not immediately appeal. In October 2019, he filed an uncontested petition under the Post Conviction Relief Act (“PCRA”) to reinstate his appellate rights nunc pro tunc, and the PCRA court granted relief.
-4- J-S26025-20
Pa.C.S.A. § 5805). Weathers concedes that “the items that subjected him to
prosecution for five counts[5] of Trademark Counterfeiting . . . cannot be
returned.” Id. at 28. However, Weathers emphasizes that the items he is
requesting are separate from those items which gave rise to any criminal
charges. Id. Weathers also argues that “the Commonwealth agreed on the
record that Mr. Weathers was entitled to the return of these items.” Id. at 34.
Weathers’ issue is waived. In Weathers’ counseled Motion for the Return
of Property and his Motion to Reconsider, and in his argument before the court,
he requested the return of the property associated with Counts 2, 3, and 4—
shoes and boots bearing Nike, Ugg, and Timberland trademarks. Accordingly,
the court’s rulings on the Motions related only to these items. As Weathers
acknowledges in his brief, these do not include the items he is now
requesting.6
Although Weathers did list these items in his pro se motion, Weathers
was represented by counsel at the time he filed the motion, and it was
therefore not cognizable. See Commonwealth v. Jette, 23 A.3d 1032, 1044
(Pa. 2011) (stating “the proper response to any pro se pleading is to refer the
pleading to counsel, and to take no further action on the pro se pleading unless
counsel forwards a motion” (italics added)). While the court wrote on the face ____________________________________________
5 Including one count at a separate docket.
6 In fact, the record does not reflect that the police seized a handbag or CDs or DVDs in the instant case. It appears the police may have confiscated these items in relation to a different case, which was tried at the same time as the instant case, and which Weathers has not appealed.
-5- J-S26025-20
of Weathers’ pro se Petition that it was denied, the record does not reflect that
the court entertained the Petition on its merits. Weathers’ Petition, insofar as
the court may have entertained it, was superseded by his counseled Motion
and argument at sentencing. As Weathers failed to raise the return of his cell
phones, boots, handbag, and CDs and DVDs before the trial court, he has
waived the issue for appellate review. Pa.R.A.P. 302(a).
Moreover, to the extent that Weathers’ counsel made a broad request
at the conclusion of trial for the return of any seized property that was
unrelated to the charged counts, the court neither granted nor denied that
request. Rather, it said it “assumed” the Commonwealth would return non-
counterfeit items, and the parties then agreed to have a hearing on the issue
at sentencing. Following such proceedings, the court found only specific items
to be counterfeit, none of which are the items at issue. We are therefore
unable to conclude the trial court erred.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/1/2020
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