Com. v. Kitko, W. ( 2018 )

J-A06002-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 & CAMERON
KITKO,
Appellants No. 748 WDA 2017
Appeal from the Order Entered May 4, 2017
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-MD-0000045-2015
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 29, 2018
Appellants, Walter James Kitko (“Walter”) and Cameron Kitko
(“Cameron”), appeal from the trial court’s order granting in part, and
denying in part, their joint motion for return of property; and granting in
part, and denying in part, the Commonwealth’s petition for forfeiture with
respect to the same seized property. After careful review, we affirm.
This Court previously recounted the history of this case as follows:
[Walter]’s paramour, the victim herein, complained to the
DuBois Police Department, Clearfield County, that [Walter] used
electronic surveillance equipment to record her without her
consent while she was either in [a] state[] of undress or
engaged in intimate sexual acts and [he] disseminated the
explicit recordings to her and her ex-husband. The
Commonwealth initially charged [Walter] with sixty-three counts
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A06002-18
of various criminal violations, including invasion of privacy,
harassment, terroristic threats, obscene and other 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 [Walter]’s
and his brother [Cameron]’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,
[Cameron] filed a pro se “Petition for Return of Property” in the
Clearfield County trial court. On March 8, 2011, the trial court
denied [his] petition. Citing Pa.R.Crim.P. 588, the trial court
explained that [Cameron] “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 a negotiated
plea agreement whereby [Walter] 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 [Walter] 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.
While [Walter]’s petition was pending in Jefferson County, the
Commonwealth filed [a] Forfeiture Motion with [the] Clearfield
County trial court. The seized items subject to [Walter]’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;
-2-
J-A06002-18
(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;
(g) (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
-3-
J-A06002-18
(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, [Walter] transferred all seized property to his brother.
On June 16, 2015, the Clearfield County trial court held a
hearing on the Commonwealth’s Forfeiture Motion, at which both
parties presented only arguments. 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 [Walter].
[Walter] timely appealed to this Court.
Commonwealth v. Kitko, No. 977 WDA 2015, unpublished memorandum
at 1-5 (Pa. Super. filed September 16, 2016) (footnotes omitted).
On appeal from that decision, we vacated the June 16, 2015 order,
and remanded “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.” Id. at 8.
-4-
J-A06002-18
On February 14, 2017, the Jefferson County trial court held a hearing
to consider Walter and Cameron’s joint forfeiture motion. 1 “There the
Commonwealth asked the Court to also entertain its request to forfeit the
property. Both brothers testified, as did the officer who investigated the
underlying criminal allegations, and both parties submitted post-hearing
briefs.” Trial Court Opinion (TCO), 5/4/17, at 1. The trial court’s findings of
fact from that hearing are detailed in its contemporaneous opinion. Id. at 1-
4. Ultimately, the trial court granted “Cameron’s request for the computer,”
deemed moot a request for a “8mm tape of his grandmother’s funeral[,]”
and denied the petition for return of property “in all other respects.” Order,
5/4/17, at 1.
Appellants timely filed a notice of appeal and a court-ordered Pa.R.A.P.
1925(b) statement. The trial court issued a one-page Rule 1925(a) opinion
on June 7, 2017.2 Appellants now present the following claims for our
review:
1. The lower Court erred or abused its discretion by ruling or
finding that the provisions of 18 Pa.C.S. § 3141 were binding or
relevant to a proceeding under Pa.R.Crim.P. [] 588 (Return of
Property).
____________________________________________
1 The April 16, 2015 motion for return of property was jointly filed by the
Kitko brothers, a fact which was unclear at the time of our September 16,
2016 memorandum.
2 The court’s brief Rule 1925(a) opinion implicitly incorporates its more
substantial opinion issued contemporaneously to the May 4, 2017 order.
-5-
J-A06002-18
2. The lower Court erred by refusing to recognize a transfer of
personal Property to a family relation which prevented forfeiture
of the property.
Appellants’ Brief at 2.
The standard of review applied in cases involving motions
for the return of property is an abuse of discretion. Beaston v.
Ebersole, 986 A.2d 876 (Pa. Super. 2009) (en banc). In
conducting our review, we bear in mind that “it is the province of
the trial court to judge the credibility of the witnesses and weigh
the testimony offered.” Commonwealth v. Younge, 446 Pa.
Super. 541, 667 A.2d 739, 741 (1995) (citation omitted). “It is
not the duty of an appellate court to act as fact-finder, but to
determine whether there is sufficient evidence in the record to
support the facts as found by the trial court.” Id. (citation
omitted).
Commonwealth v. Durham, 9 A.3d 641, 645 (Pa. Super. 2010).
Appellant’s first claim is that the trial court erred by applying the
forfeiture provisions applicable to sex offenders, 18 Pa.C.S. § 3141. Section
3141 provides that persons convicted of certain sexual offenses, or persons
required to register under Pennsylvania’s Sex Offender Registration and
Notification Act (SORNA),3
may be required to forfeit property rights in any property or
assets used to implement or facilitate commission of the crime
or crimes of which the person has been convicted. The forfeiture
shall be conducted in accordance with 42 Pa.C.S. §§ 5803
(relating to asset forfeiture), 5805 (relating to forfeiture
procedure), 5806 (relating to motion for return of property),
5807 (relating to restrictions on use), 5807.1 (relating to
prohibition on adoptive seizures) and 5808 (relating to
exceptions).
____________________________________________
3 42 Pa.C.S. §§ 9799.10-9799.41.
-6-
J-A06002-18
18 Pa.C.S. § 3141.
Indeed, the trial court refused to recognize Walter’s attempt to
transfer his interest in the seized property to Cameron (specifically, the two
cell phones), in part, because “Walter … lacked the legal authority on May 5,
2015 to vest in Cameron legal title to property still in the Commonwealth’s
possession, including the two cell phones in question,” pursuant to 18
Pa.C.S. § 1343 (repealed July 1, 2017). Section 1343 provided that:
Property taken or detained under this subchapter is deemed to
be the property of the law enforcement authority having custody
thereof and is subject only to the court of common pleas having
jurisdiction over the criminal or forfeiture proceedings, the
district attorney in the matter or the Attorney General.
18 Pa.C.S. § 3143 (repealed July 1, 2017).
At the time of the trial court’s decision in this matter, Appellant was
required to register under SORNA. See TCO at 5 (“Walter … is currently a
Megan’s Law registrant”).4 However, this Court recently “vacate[d the] May
18, 2016 order directing Appellant to report and register pursuant to
SORNA.” Commonwealth v. Kitko, No. 802 WDA 2016, unpublished
memorandum at 2 (Pa. Super. filed October 23, 2017) (applying
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), which held that
retroactive application of SORNA’s reporting and registration requirements
violates the ex post facto clause of the United States Constitution). Thus,
____________________________________________
4 SORNA is the most recent incarnation of “Megan’s Law.”
-7-
J-A06002-18
we agree with Appellants that the trial court’s reasoning – insofar as it was
based on Walter’s status as a sex offender – is retroactively unsound.
However, the Commonwealth maintains that the trial court provided
alternate grounds for forfeiture that were unaffected by the change in
Walter’s status as a sex offender. In this vein, the Commonwealth contends
that “any error alleged by Appellants with regard to the applicability of 18
Pa.C.S. §§ 3141-3144 to [Pa.R.Crim.P.] 588 proceedings was not outcome
determinative in this matter.” Commonwealth’s Brief at 4. For the reasons
that follow, we agree with the Commonwealth.
The trial court ruled that, under the statutory forfeiture provisions for
sex offenders, see 18 Pa.C.S. § 3143, as well as those set forth in the
Controlled Substance, Drug, Device, and Cosmetic Act, 42 Pa.C.S. §
6801(d), ownership of the seized property cannot be transferred by the
original owner prior to judicial resolution of forfeiture proceedings. TCO at
4-5. The court did not end its analysis there, as it further deduced that “it
only stands to reason that property seized under common law authority is
likewise beyond the control of its original owner” and, therefore, that the
court would not have reached “a different result under common law
analysis.” Id. at 5.
Notably, the Commonwealth Court recently held that “common law
forfeiture does not exist in Pennsylvania.” Commonwealth v. Irland, 153
A.3d 469, 486 (Pa. Cmwlth. 2017), appeal granted, 169 A.3d 1052 (Pa.
2017). Nevertheless, our Supreme Court granted the Commonwealth’s
-8-
J-A06002-18
Petition for Allowance of Appeal from the Irland decision on the question of
whether it “conflicts with both the Commonwealth Court’s prior holdings and
with those of the Superior Court[.]” Commonwealth v. Irland, 169 A.3d
1052, 1053 (Pa. 2017) (order granting the Commonwealth’s petition for
allowance of appeal). Indeed, controlling authority in the Superior Court still
recognizes the existence of common law forfeiture. See Commonwealth v.
Salamone, 897 A.2d 1209, 1215-17 (Pa. Super. 2006). However, as this
Court recognized in Salamone:
Until 1982, forfeiture cases in this Commonwealth involved only
statutorily authorized forfeiture. [Commonwealth v.] Crosby,
[568 A.2d 233,] 237 [(Pa. Super. 1990)]. After 1982, however,
there was “a series of opinions by the Superior Court” finding
common law authority for the forfeiture of derivative contraband.
Id. Nevertheless, those opinions ultimately relied on statutory
authority.
Salamone, 897 A.2d at 1216.
Here, despite its citation of “common law forfeiture” rules, see TCO at
5, the trial court did ultimately apply statutory authority, specifically,
Pa.R.Crim.P. 588, in concluding that Appellants were not entitled to the
return of the seized property. Rule 588 governs motions for return of
property generally, and provides, 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
-9-
J-A06002-18
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 (emphasis added).
Walter testified that he had no knowledge of the seized camcorder.
N.T., 2/14/17, at 22. He then implausibly claimed that he had filmed Victim
on a digital camera, transferred those digital images to VHS tapes, and then
later threw away the digital camera before the seizures occurred. Id.Thus, only Cameron claimed ownership of the camcorder, asserting
that it was “a piece of junk that I picked up for free.” Id. at 33. He later
explained that he “found it at a Goodwill drop, left outside the Goodwill
drop.” Id. at 44. In other words, Cameron’s claim to the camcorder was
that he had taken it from a location that received donations intended for
Goodwill, not that he had purchased it or received it as a gift. Yet, the police
testified that the camcorder was “the only device located at either residence
capable of recording directly onto the seized VHS tapes depicting Walter and
[Victim] engaged in sex acts.” TCO at 3.
The trial court found Walter’s and Cameron’s testimony concerning the
camcorder not credible. We note that “on any motion for return of property,
the moving party must establish by a preponderance of the evidence
entitlement to lawful possession.” Commonwealth v. Matsinger, 68 A.3d
390, 397 (Pa. Cmwlth. 2013). Here, the trial court found that Cameron
“lacked standing to seek the camcorder’s return,” TCO at 4, which is an
inartful way of stating that he did not establish lawful possession by a
- 10 -
J-A06002-18
preponderance of the evidence. The court speculated that Walter had
delivered it to Goodwill, where Cameron later picked it up. Regardless of
such speculation, Walter disavowed ownership, let alone any knowledge of
the camcorder and, therefore, he could not simultaneously claim he was
entitled to lawful possession of it. Indeed, Appellants concede that the
“camcorder was never owned by Walter….” Appellants’ Brief at 25.
The trial court also determined that Cameron did not lawfully possess
the camcorder, finding he “did not acquire a possessory interest recognized
by law.” TCO at 4. As noted above, Walter did not claim to have ever
owned the camcorder and, therefore, it could not have been transmitted to
Cameron via the transfer agreement. Moreover, even if Cameron’s
testimony was credible, he admitted that he acquired possession of it by
taking it from a Goodwill drop site. Thus, he claims to have acquired
possession by taking a charitable donation that had been intended for
Goodwill. He did not pay for it, nor did he receive it as a gift. Consequently,
the trial court found that Cameron was also not “entitled to lawful
possession” of the camcorder. Pa.R.Crim.P. 588.
Appellants argue that “no evidence of record exists that Cameron …
removed the Camcorder in question contrary to the ownership right of any
other.” Appellants’ Brief at 25. This claim is belied by the record: Cameron
testified that he effectively took a donation intended for Goodwill from their
drop site. Appellants further argue that it was “wrongful” for the
Commonwealth to resort to the argument that Cameron had effectively
- 11 -
J-A06002-18
stolen the camcorder, “without any evidence of competing ownership to the
device,” citing Commonwealth v. Fontanez, 739 A.2d 152 (Pa. 1999).
Appellants’ Brief at 25. Again, this assertion is belied by the same
testimony, which was evidence that Cameron did not have lawful possession
of the camcorder. Moreover, Appellants conflate a lack of lawful possession
with a theft conviction.
In Fontanez, an officer seized $2,650 in cash from the appellant. It
was “undisputed that the officer did not see any transaction or activity
involving Appellant or his vehicle that would have tied the money to illegal
activity and no criminal charges were ever filed in relation to the seized
cash.” Fontanez, 739 A.2d at 153–54. Our Supreme Court noted that,
although not “dispositive,” the fact that the appellant had not been charged
with a crime was “probative of whether the money was indeed contraband.”
Id. at 154.
Fontanez does not entitle Appellant to relief, as it is easily
distinguishable from the instant matter. First, there was a criminal
conviction in this case, involving Walter, and there was a reasonable
inference that the camcorder had been the device that had recorded Victim,
which was the subject of the criminal charges of invasion of privacy. There
were no criminal charges at issue in Fontanez. Second, the trial court
found both Appellants’ testimony concerning the camcorder not credible,
indicating that it believed the camcorder originally belonged to Walter, not
Cameron. Nevertheless, even crediting Cameron’s testimony, the trial court
- 12 -
J-A06002-18
found that his story undermined his own claim to lawful possession of the
camcorder. No comparable testimony or evidence was at issue in the
Fontanez case. Finally, by its own terms, Fontanez instructs that the
existence of criminal charges is not dispositive as to whether seized property
is contraband. The absence of criminal charges against Cameron for theft
are, therefore, merely probative of, not conclusive evidence of, his lawful
possession of the camcorder. However, countervailing evidence – his own
testimony – supported the trial court’s determination that he did not lawfully
possess it.
In sum, we conclude that the trial court did not exclusively rely on 18
Pa.C.S. § 3141 with regard to the forfeiture of the camcorder. Instead, the
court found that, under Rule 588, the camcorder was not lawfully possessed
by either Walter or Cameron, and therefore, neither of them had standing to
seek its return under that rule.
Cameron also sought the return of the two cell phones. The trial court
determined that only Walter was “entitled to lawful possession” of the cell
phones, because:
Walter testified that he executed the “Personal Property Transfer
Agreement” innocently and in good faith, but the timing of the
transfer renders that testimony highly suspect. As the record
reflects, he and Cameron filed their joint Motion on April 16,
2015, and the Commonwealth filed a petition for forfeiture in
Clearfield County on May 1, 2015. Walter “gave” the subject
property to his brother just four days later, at which point he
knew beyond any doubt that the Commonwealth was alleging
that it was contraband that should not be returned to him. The
most reasonable inference to be drawn from his actions, and
- 13 -
J-A06002-18
what the Court finds to be the case here, then, is that Walter
was attempting to manipulate the outcome of the proceedings
by creating an “innocent owner” defense for Cameron to assert.
Insofar as it was created for fraudulent purposes, therefore, the
Court will not recognize the transfer as valid….
TCO at 6.
Thus, it is clear that, again, the forfeiture of the cell phones was not
based or premised on the application of 18 Pa.C.S. § 3143. Thus, Section
3143 was not dispositive in the forfeiture/return-of-property proceedings.
Accordingly, we ascertain no abuse of discretion in this regard.
Next, Appellants claim that the trial court abused its discretion by not
recognizing the transfer agreement. As noted above, the trial court ruled
that the transfer agreement was a transparent and fraudulent attempt to
subvert the forfeiture/return-of-property proceedings. Id.
Appellants argue that the trial court erred in this determination
because, ostensibly, no “evidence exists that the transfer occurred to ‘thwart
the Commonwealth’s interest’” in the cell phones. Appellants’ Brief at 26.
We disagree, as this claim is plainly belied by the record. The suspicious
timing and circumstances of the transfer were, as the trial court found,
evidence of an intent to subvert the forfeiture/return of property
proceedings. As the trial court’s determination was supported by evidence
of record, we discern no abuse of discretion in its rejection of the transfer
agreement.
Order affirmed.
- 14 -
J-A06002-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/29/2018
- 15 -