In Re: Smith, A., Appeal of: Smith, A.

2023 Pa. Super. 266, 307 A.3d 140

• Court: Superior Court of Pennsylvania
• Decided: December 13, 2023
• Docket: 2128 EDA 2022
• Status: Published

Opinion

J-A21022-23

2023 PA Super 266

IN RE: ALISHA SHEPARD SMITH : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: ALISHA SHEPARD : SMITH : : : : : No. 2128 EDA 2022

Appeal from the Order Entered July 19, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-MD-0001772-2022

IN RE: ALISHA SHEPARD SMITH : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: ALISHA SHEPARD : SMITH : : : : : No. 2129 EDA 2022

Appeal from the Order Entered July 19, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-MD-0001773-2022

BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

OPINION BY DUBOW, J.: FILED DECEMBER 13, 2023

Appellant, Alisha Shepard-Smith, appeals from the Order entered July

19, 2022, which denied her motion for return of property. Appellant seeks

the return of a firearm and two magazines that police officers seized after her

neighbors reported that she had threatened them with the firearm during a

dispute over yard work. After careful review, we affirm. J-A21022-23

A.

The relevant facts and procedural history are as follows. Appellant and

her neighbors were in an ongoing dispute over yard work. On December 12,

2021, Appellant and her husband returned home after Appellant’s daughter

called to report that the neighbors were cutting a common hedge. A verbal

and physical altercation ensued during which Appellant instructed her

daughter to retrieve Appellant’s firearm from inside the house. Appellant then

pointed her firearm at the neighbors. After the neighbors called 911,

Appellant told her daughter to hide the firearm in the house.

Responding police officers took a statement from one of the neighbors

involved in the altercation. Police officers later found the gun and a magazine

in Appellant’s home. They also recovered a second magazine from Appellant’s

pocket. The police confiscated these items.

The Commonwealth charged Appellant with firearms offenses and two

counts each of Simple Assault and Recklessly Endangering Another Person.

The court ultimately dismissed all charges because the Complainants failed to

appear.1

On May 6, 2022, Appellant filed two pro se motions for return of her

firearm and magazines. The Commonwealth opposed the motions but

notably, it did not file a forfeiture petition. ____________________________________________

1 At the preliminary hearing, the court dismissed the firearms charges for lack

of evidence. It remanded the remaining charges for a misdemeanor trial in Philadelphia Municipal Court. At the trial, the court then dismissed those charges for lack of prosecution.

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On July 19, 2022, the court conducted an evidentiary hearing during

which Appellant appeared pro se. At the hearing, the Commonwealth did not

dispute that the firearm and magazines belonged to Appellant. The

Commonwealth presented the Police Incident report, PARS2 report, and the

complaining witness’s statements provided to the responding police officers.

Appellant did not object to any of the Commonwealth’s evidence.

Additionally, at the hearing, Appellant testified that her neighbors were

the aggressors and that she did not call the police because she did not have

her cell phone. The court did not find her testimony credible.

The trial court denied Appellant’s Motions for Return of Property.

Appellant, through counsel, timely appealed.3 Both Appellant and the court

complied with Pa.R.A.P. 1925.

Appellant presents two issues for our review:

1. Did the lower court err in deciding Appellant’s “Motion for Return of Property” by relying on common law precepts as the basis for the seizure of the property where the applicable case law requires that there either be a conviction, utilizing the weapon in question, or a statutory basis for the denial of the return of property and neither of these factors exist in this case?

2. If the lower court did not err in deciding question one, did the lower court err in denying Appellant return of her property when it ruled that the Commonwealth had met [its] burden at the hearing for the Motion for Return of Property when the

____________________________________________

2 PARS is an acronym for Preliminary Arraignment System.

3 Appellant, through counsel, also filed a motion for reconsideration on August

17, 2022. The docket indicates no response to this motion, and she filed her notice of appeal the next day.

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Commonwealth merely presented a hearsay narrative from the prosecutor and where there was no conviction?

Appellant’s Br. at 2.

B.

Appellant challenges the trial court’s order denying her motions for

return of property. Our review is limited to whether substantial evidence

supports the trial court’s findings of fact and whether the court abused its

discretion or committed an error of law. Singleton v. Johnson, 929 A.2d

1224, 1227 n.5 (Pa. Cmwlth. 2007) (en banc); Commonwealth v. 5444

Spruce St., 890 A.2d 35, 38 (Pa. Cmwlth. 2006) (en banc).4

Pa.R.Crim.P. 588 governs motions for return of property:

(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. . . .

(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). Once the movant establishes her ownership interest

in the property, the burden then shifts to the Commonwealth to prove, by a

4 “[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 n.1 (Pa. Super. 2010). Because Appellant chose this forum, we will address this appeal.

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preponderance of the evidence, that the property is contraband. Barren v.

Commonwealth, 74 A.3d 250, 255 (Pa. Super. 2013).

Contraband is either per se or derivative: per se contraband is property

that is unlawful to possess, whereas derivative contraband is property,

innocent in itself, which has been used in the perpetration of an unlawful act.

Petition of Koenig, 663 A.2d 725, 726 (Pa. Super. 1995). To establish that

property is derivative contraband, “the Commonwealth must establish a

specific nexus between the property and the alleged criminal activity.”

Beaston v. Ebersole, 986 A.2d 876, 882 (Pa. Super. 2009) (en banc)

(citation omitted).

Furthermore, a conviction of the underlying crime need not occur for the

Commonwealth to prove the nexus. See, e.g., Commonwealth v.

$6,425.00 Seized from Esquilin, 880 A.2d 523, 529-30 (Pa. 2005) (holding

that the Commonwealth proved by a preponderance of the evidence that there

was nexus between seized money and a violation of the Controlled Substances

Act by presenting documentary evidence). Rather, “a forfeiture pursuant to

Rule 588 may occur prior to conviction and in the absence of a criminal

conviction.” Commonwealth v. Irland, 193 A.3d 370, 379 (Pa. 2018).

When the Commonwealth sustains its burden, the burden shifts to the

movant to disprove the Commonwealth’s evidence for the return of her

property. Beaston 986 A.2d at 881 (citation omitted).

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C.

Appellant first avers that the trial court erred in “order[ing] forfeiture”

without statutory authorization. Appellant’s Br. at 6. Specifically, she argues

that the Pennsylvania Supreme Court has held that common law cannot

authorize forfeiture and the trial court identified no statutory basis for

forfeiture in its decision. Id. at 9 (citing Commonwealth v. Irland, 193 A.3d

370, 379, 382 (Pa. 2018).

In support, Appellant cites Irland, in which the appellant filed a return

of property motion for his firearm and in response, the Commonwealth moved

for forfeiture under a theory of common-law forfeiture because the firearm

was derivative contraband used in a crime. Irland, 193 A.3d at 372. The

Supreme Court held that civil forfeiture (in absence of a conviction) of

derivative contraband requires statutory authority. Id. at 379, 382.

Contrary to Appellant’s characterization, this appeal pertains to an order

denying her petition for return of property filed pursuant to Rule 588, not an

order granting a forfeiture petition. Forfeiture proceedings are distinct from

return of property proceedings. Commonwealth v. Johnson, 931 A.2d 781,

783 (Pa. Cmwlth. 2007). Here, the Commonwealth did not petition for

forfeiture, and we, thus, do not address standards pertaining to forfeiture.

See Commonwealth v. Pomerantz, 573 A.2d 1149, 1150 (Pa. Super. 1989)

(denying return of property where petitioner did not meet his burden but

refusing to grant forfeiture because the Commonwealth never petitioned for

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it). Accordingly, Appellant’s reliance on Irland is misplaced, and this

argument merits no relief.

Rather, although the property remains with the Commonwealth due to

the denial of Appellant’s motion for return, our review is confined to whether

the court erred in finding that the Commonwealth met its burden of proving

that the property was used during the course of criminal activity, as required

by Rule 588. Barren, 74 A.3d at 255; Beaston, 986 A.2d at 882. As

discussed below, the trial court did not err in finding that the Commonwealth

met its burden under Pa.R.Crim.P. 588.

D.

Appellant next contends that even under Pa.R.Crim.P. 588, the

Commonwealth’s evidence was not “competent” and, therefore, the

Commonwealth did not establish by a preponderance of the evidence that the

firearm and magazines were derivative contraband. Appellant’s Br. at 11.

Specifically, Appellant argues that (1) the prosecutor’s statements made

during the hearing are not evidence; and (2) that the Commonwealth’s

documentary evidence constituted unauthenticated hearsay in violation of

Pa.R.E. 901(a) and 801, respectively. Id. at 10-11.

First, we note that the trial court did not rely on the prosecutor’s

statements in making its decision. Rather, the court cites Appellant’s

testimony, which it found not credible, and the Commonwealth’s documentary

evidence. Trial Ct. Op. at 5-6.

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Next, we observe that to preserve evidentiary challenges for appellate

review, a litigant must object at trial. See Commonwealth v. Thoeun Tha,

64 A.3d 704, 713 (Pa. Super. 2013) (citing Pa.R.A.P. 302(a) and noting that

the “failure to raise a contemporaneous objection to the evidence at trial

waives that claim on appeal”) (citation omitted). This requirement applies

equally to pro se litigants. Commonwealth v. Williams, 896 A.2d 523, 535

(Pa. 2006). Our review of the record reveals that Appellant failed to object at

trial. She, therefore, failed to preserve this issue for our review.

Moreover, the record supports the trial court’s determination that the

Commonwealth met its burden to establish, by a preponderance of the

evidence, that Appellant used the firearm during criminal activity and thus,

met its burden under Rule 588. The trial court stated that the “Commonwealth

produced sufficient credible evidence to establish by a preponderance of the

evidence, that [] Appellant used her firearm to perpetrate an unlawful act,”

pointing her firearm at her unarmed neighbors during an altercation. Trial Ct.

Op., 12/22/22, at 4. That evidence included the police incident report and the

complaining witness’s statement, both of which the court found credible.

After the Commonwealth met its burden to establish that the firearm

was contraband, the burden shifted back to Appellant to disprove the

Commonwealth’s evidence. Beaston, 986 A.2d at 881. Appellant did not

challenge the Commonwealth’s evidence showing that she pointed a gun at

her neighbors. N.T. Trial at 12-13. In fact, Appellant admitted during her

testimony that she asked her daughter to retrieve Appellant’s gun to help her

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husband during the fight. Id. at 12. Although Appellant tried to paint the

neighbors as the aggressors, the trial court did not find her testimony credible.

Trial Ct. Op. at 5. Accordingly, Appellant failed to meet her burden.

We have reviewed the record and the record supports the trial court’s

determination that the Commonwealth met its burden of proof. Appellant has

presented no argument to persuade this Court that the trial court abused its

discretion or erred as a matter of law in reaching its conclusion. This

argument, thus, garners no relief.

E.

We conclude that the record supports the trial court’s factual findings,

and we discern no abuse of discretion or error of law in the court's denial of

Appellant's Motions for Return of Property. Accordingly, we affirm.

Order affirmed.

Date: 12/13/2023

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