Opinion
No. 2306 C.D. 2010
12-18-2012
Commonwealth of Pennsylvania v. Daniel LaBrake, Appellant
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Daniel LaBrake, pro se, appeals an order of the Court of Common Pleas of Philadelphia County (trial court) denying his motion for return of property that he filed pursuant to Pennsylvania Rule of Criminal Procedure 588. Because the trial court erred in holding that LaBrake waived his right to seek return of his property, we reverse and remand.
LaBrake's wife, Roseann LaBrake, was shot to death on May 28, 1998. Following an investigation, LaBrake was indicted in May 1999 and charged with murder and possession of an instrument of crime. LaBrake proceeded to a jury trial and on November 30, 2000, was found guilty of third-degree murder and possession of an instrument of crime. On February 1, 2001, LaBrake's post-trial motions were denied and he was sentenced to 10 to 20 years in prison. LaBrake appealed, and the Superior Court affirmed the judgment of sentence on September 5, 2003. No further appeal was taken.
On May 12, 2004, LaBrake filed, pro se, a petition under the Post Conviction Relief Act (PCRA), 42 Pa. C.S. §§9541-9546. Court appointed counsel filed an amended petition on his behalf alleging ineffective assistance by trial counsel. On April 14, 2005, the court dismissed LaBrake's petition as frivolous. The Superior Court affirmed on May 4, 2006, and the Supreme Court denied allowance of appeal on November 1, 2006.
LaBrake petitioned for a writ of habeas corpus in federal court on January 17, 2007. A magistrate judge dismissed the petition on September 3, 2009. Claimant appealed to the United States Court of Appeals for the Third Circuit; the Third Circuit denied a certificate of appealability on April 28, 2010, and reargument en banc on June 1, 2010. Claimant sought a writ of certiorari in the United States Supreme Court, which was denied on November 29, 2010. LaBrake v. Stowitzky, ___ U.S. ___, 131 S.Ct. 668 (2010).
On February 24, 2010, while his habeas action was still pending in the Third Circuit, LaBrake filed a motion for return of property under Pennsylvania Rule of Criminal Procedure 588 seeking the return of $148 in cash and other personal effects removed from his home when he was first taken into custody in May 1998. The Commonwealth filed a motion to dismiss LaBrake's Rule 588 motion on the basis that it was untimely.
Rule 588 provides, in relevant 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.PA. R. CRIM. P. 588.
(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.
LaBrake identified property receipt 25839, which lists the following items: two guns, a photo album, paperwork, coins, bags, a phone and $148 in cash.
On July 15, 2010, the trial court issued five orders related to LaBrake's motion for return of property. One of these orders granted the Commonwealth's motion to dismiss and denied LaBrake's motion for return of property "with respect to $148.00 U.S. currency, two firearms and all property not specifically mentioned in the settlement agreements." Certified Record (C.R.) Item No. D-5.
The other four orders filed on July 15, 2010, pertained to a settlement agreement between LaBrake and the Commonwealth. These orders directed the Commonwealth to return the following specific items of property to LaBrake's daughter as his attorney-in-fact: photo albums, paperwork, coins, bags, handbags, contents of bags and a phone. See C.R. Item No.'s D-5A - D-5D. --------
On August 11, 2010, LaBrake filed a "praecipe for entry of judgment" requesting the trial court to enter judgment with regard to his motion for return of property and indicating that the trial court's July 15, 2010, orders did not constitute a final order for purposes of appeal because they did not dispose of all of his claims. LaBrake also filed a notice of appeal, requesting the right to appeal an interlocutory order under Pa. R.A.P. 311.
The trial court issued an opinion in support of its orders pursuant to Pa. R.A.P. 1925(a). Upon review, this Court questioned whether the original record was complete in light of the trial court's reference to a settlement agreement between the Commonwealth and LaBrake. We remitted the record to the trial court with direction to supplement the record or enter an order clarifying the status of LaBrake's motion for return of property, the Commonwealth's motion to dismiss and the settlement.
The trial court issued an amended Rule 1925(a) opinion characterizing LaBrake's appeal as an appeal of the trial court's "decision denying [LaBrake's] motion for return of property." The trial court's amended opinion indicated that the court approved a settlement agreement between the parties that provided for the return of some of LaBrake's property but excluded the confiscated guns and $148 in cash. The trial court held that, under Rule 588 and Commonwealth v. Setzer, 392 A.2d 772 (Pa. Super. 1978), a person seeking the return of confiscated property must file a motion during the criminal proceeding, i.e., in post-verdict motions or at sentencing. Because LaBrake filed his Rule 588 motion approximately four years after his conviction became final, the trial court held that his claim was untimely and, therefore, waived. LaBrake now appeals.
On appeal, LaBrake argues, inter alia, that the trial court erred in applying Setzer to find that his claim for return of property was waived. LaBrake contends that his motion for return of property, filed on February 24, 2010, was not untimely because his criminal case was active until November 29, 2010, when the U.S. Supreme Court denied his petition for certiorari in the collateral habeas action. LaBrake asserts that his case is distinguishable from Setzer, which involved a petition for return of property filed nearly two years after the final disposition of the criminal proceeding.
In an opinion also filed today, this Court rejects the waiver rule announced in Setzer and holds that a motion for return of property must be filed within six years of the conclusion of a criminal proceeding pursuant to 42 Pa. C.S. §5527(b). Commonwealth v. Allen, ___ A.3d ___ (Pa. Cmwlth., No. 1345 C.D. 2011, filed December 18, 2012). We further hold in Allen that the six-year limitation period begins to run at the conclusion of any collateral proceedings in federal court. Because LaBrake filed his motion under Pa. R. Crim. P. 588 while his habeas action was still pending in federal court, the trial court erred in finding that he waived his claim for return of property. Consequently, we reverse the trial court's order and remand for further proceedings on the merits of LaBrake's return motion.
/s/_________
MARY HANNAH LEAVITT, Judge Judge Leadbetter dissents.
Judge Brobson and Judge Covey concur in the result only. ORDER
AND NOW, this 18th day of December, 2012, the order of the Court of Common Pleas of Philadelphia County dated July 15, 2010, in the above-captioned matter dismissing and denying Daniel LaBrake's Petition for Return of Property with respect to $148.00 U.S. currency, two firearms and other property is REVERSED. This matter is REMANDED for further proceedings in accordance with the attached opinion.
Jurisdiction relinquished.
/s/_________
MARY HANNAH LEAVITT, Judge