Com. v. City of Phila. ( 2014 )

J-A12003-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
ex rel. UNITED EXPRESS JEWELRY : PENNSYLVANIA
:
v. :
:
CITY OF PHILADELPHIA :
(COMMISSION, POLICE DEPARTMENT) :
:
:
COMMONWEALTH OF PENNSYLVANIA, :
ex rel. MOHAMMED SAFA :
:
v. :
:
CITY OF PHILADELPHIA :
(COMMISSION, POLICE DEPARTMENT) :
:
APPEAL OF: :
UNITED EXPRESS JEWELRY : No. 1853 EDA 2013
Appeal from the Order Entered April 30, 2013,
In the Court of Common Pleas of Philadelphia County, Criminal Division,
at Nos. CP-51-MD-00001440-2012 and CP-51-MD-0007545-2011.
BEFORE: SHOGAN, STABILE and PLATT*, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JULY 31, 2014
Appellant, United Express Jewelry, appeals from the order denying its
motion for the return of property filed pursuant to Pa.R.Crim.P. 588. We
affirm.
We summarize the history of this case as follows. Mr. Safa and his
brother own a jewelry store in Philadelphia. Some of their jewelry inventory
is on consignment from jewelry wholesalers. In June of 2011, a Philadelphia
__________________
*Retired Senior Judge assigned to the Superior Court.
J-A12003-14
Police Detective arrived a
various jewelry wholesale companies were outside of the business seeking
money allegedly owed to the wholesalers. Mr. Safa indicated to the
detective that he owed no debt and refused to pay. Subsequently, the
individuals. The individuals then chaotically began grabbing various items
located within the store. All of the items were allegedly placed into
evidence. The City of Philadelphia considered prosecuting Mr. Safa for
receipt/possession of stolen goods, but the charges were dropped.
Subsequently, three New York based jewelry wholesalers filed dueling
motions for return of property, each claiming ownership of items taken from
motion for return of property. On May 29, 2012, Yellow Gold filed a motion
for return of property. On May 29, 2012, Italy in Gold Star filed a motion for
return of property. In addition, Mr. Safa filed a motion for return of
property, alleging that he was the true and real owner of the subject items
confiscated from his jewelry store on June 17, 2011.
On April 24, and April 30, 2013, the trial court held a return-of-
property hearing. Ultimately, the trial court determined that the confiscated
-2-
J-A12003-14
contraband, nor stolen property. The trial court further determined that Mr.
Safa and his store were the rightful owners of the items. On April 30, 2013,
conditions, and as against the other parties, United Express Jewelry, Yellow
items were to be returned in their entirety to Mr. Safa and his store. The
motions filed by United Express Jewelry, Yellow Gold, and Italy in Gold Star
were denied. This appeal by United Express Jewelry followed.
United Express Jewelry presents the following issues for our review:
1. Did not the trial court abuse its discretion and commit
reversible error by ruling that Max Weiner, proposed witness of
United Express Jewelry, was not qualified as an expert in the
field of jewelry design, manufacture, and wholesale distribution.
2. In that it was offered that proposed expert witness Max
Weiner would have testified to the contrary of Imad Safa and
consistent with United Express Jewelry principal Gabriel Nisanov,
that the jewelry identifying numbers on the transaction
contemporaneous United Express Jewelry marketing records
(memorandum, invoices, etc.) referred to manufacturer specific
model/design/style numbers and not industry generic style
numbers, consistent with industry practices, a critical factual
issue was not the proposed expert testimony material, and its
exclusion an abuse of discretion, constituting reversible error.
-4 (verbatim).
Initially,
comply with Pennsylvania Rule of Appellate Procedure 2119, which provides,
in pertinent part, as follows:
-3-
J-A12003-14
(a) General rule. The argument shall be divided into as
many parts as there are questions to be argued; and shall
have at the head of each part--in distinctive type or in type
distinctively displayed--the particular point treated therein,
followed by such discussion and citation of authorities as are
deemed pertinent.
Pa.R.A.P. 2119(a) (emphasis added). The argument portion of United
questions to be argued because the argument portion is divided into three
distinctive parts, yet United Express Jewelry lists a total of two issues in its
raised by United Express Jewelry in the argument portion of its appellate
lly challenge whether the trial court properly ruled that
Max Weiner, the proposed expert proffered by United Express Jewelry, was
not qualified to testify as an expert witness, we will consider United Express
As a prefatory matter, we observe that the standard of review applied
in cases involving motions for the return of property is an abuse of
discretion. Commonwealth v. Durham, 9 A.3d 641, 645 (Pa. Super.
2010) (citing Beaston v. Ebersole, 986 A.2d 876 (Pa. Super. 2009) (en
banc)). Likewise, the decision to admit or exclude evidence is committed to
-4-
J-A12003-14
reversed upon a showing that it abused that discretion. Commonwealth v.
Laird, 988 A.2d 618, 636 (Pa. 2010).
specialized knowledge beyond that possessed by a layperson will assist the
Pa.R.E. 702. Similarly, the admission of expert testimony is a matter of
discretion for the trial court and will not be remanded, overruled, or
disturbed unless there was a clear abuse of discretion. Commonwealth v.
Brewer, 876 A.2d 1029, 1035 (Pa. Super. 2005). A finding of abuse of
reached a different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support so as to be clear Laird, 988 A.2d at 636 (quoting
Commonwealth v. Sherwood, 982 A.2d 483, 495 (Pa. 2009)).
We have reviewed the briefs of the parties, the relevant law, the
Upon review, it is our determination that United Express Jewelry has failed
to establish that the trial court abused its discretion in this matter. Rather,
the trial court did not abuse its discretion in refusing to admit this evidence
-5-
J-A12003-14
decision on the basis of its well-reasoned discussion with regard to United
-19.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2014
-6-
Circulated 07/14/2014 10:20 AM
,
IN TIm COURT OF COMMON PLEAS OF rBILADELPl~A COUNTY
FIRST JUDICIAL DISTRICT OF l'ENNSYLVAl'\lA
CRIMINAL TRIAL DIVISION I
FI LED
AUG 29 lOu
COMMONWEALTHOFl'ENNSYLVANIA Criminal Appeals Unit
Ex. reL UnJted ExprC3$ ,Jewelry Firsl Judicial District of PA
AppcU.o.nt
v. 1.853 EDA 2013
CITY 01' PIDLADELPl;I:IA
(Commission, PoUce Department)
Appellee CP-51-MJ)-0001440-20121
IUld CP-51-MD·0007S45·2011
COMMONWEALTH OF PENNSYLVANIA
li:x. I'et. Mobamm,£d So.fa
Appellee
v.
CITY OF PHIT,ADELPWA
(Commission, police Department)
Appellee
OPJ:mON
Patriel" J. DATE, Augu", 26, 2013
Appellant, United Express Jewelry, appeals this Court's Order of Apri\ 30, 2013. denying
its Motion for Return of Property brought pursuant to PA. R. C~IM. p, 588. 1 This Court now
PA. R. CRfM. P.. 588 provides, In relevant pa.rt,:u follows:
(A) A pCl"'1:on aggrieved by n search and s::i7.ure, whether or t\ot executed pursuant to a
warrant, ml!.y mo ....o for the return of property on the ground that he o~ she is entitled to
lawful possession thereCIf. Suoh motion shall be filed in the oourt of ~ommon pleas fOI'
thejudici31 district ill which the property W(lS seized . I
(9) The-judge henring suah motion shnll receive evidence on Bny i83ue of fact necessary
to the decision thereon. If the motion is gmntcd, the property shaH be h:stored ~lllless the
r
I
Circulated 07/14/2014 10:20 AM
submit! the following Opinion in support of its ruling and in accordance )v;th the requirement! of
PA. R .A..P, 1925(a). fOT the reasons set forth below, this Cow'l'", dccisio~ should be affirmed.
FACTUAl, AND PRQCEDURAL mSTORY
On or about June 17,2011, vi!t'ious jewelry, p.e:ecious metals and other property were
seized from the Real Property situated ou 316 South Street, Philadelphia., PenD.3ylvania by
Detective Frank. Straup pursuant to 0 :{ea:tCh. and seizure wa.rrant (No. 158532) and district
complaint (NQ, 11-03-040869). These items W&I'C placed ob the following property receipts:
t. PWladelphia Police Property Receipt #2975650;
2. Philadelphia Police Property Reccipt #2975649;
3. Pllilodolphi. Police Property R«cipt #2975651 .
The subject property remained in the possession of the Philadelphia Police, the District
Attorney, and/or the City Solicitor until approximate1y May I, 2013, and these items ore the
subject of the above..capttoned matter. Tbe Commonwealth did not seclc to retain or forfeit the
propc::ny in this case nor did they pursue a c:riminal c:ase against Pctitioner.(s) Sara and/or Exotic
Diamond Jewelers ofPhiladelpbia, LLC, whose store is loeated. at the above address.
On February 15, 2012, United Expres!l Jewelry ftled n Motion 'for Return ofPropeny,
ollegtng that it was the true and real owner oftbe subject items confiscated 00 or about June 17,
201 \. On May 29. 20l2, Yellow Gold filed aMotion for Return of Property, aUeging that it was
tbe true and reol owner of the subjec:t items confiscated on Ot about June 17,201 I. On May 29.
court detem\ln~ thnt such property is contraband, in which CB,e the court may order the
propcrt)' fot:&itcd .
PA.. R. CRIM. P. 588. This rota was renumbcced as Rule .588 on March t. 2000j it was formerl)' PA. R.
CIUM.J24. &e fA. R. CRlM. P . 588, n. (2001) (detailing bistory of amendmmt~ to rule and that it was
renumbered in 2(00). I
Circulated 07/14/2014 10:20 AM
2012. italy in Gold Star filed. Motion for Return of Property. alleging thaI it was thc true and
real owner of the subject items confiscated Oll or about June 17, 2011. On June 28, 2011,
Mohammed Safa filed a Motion for Return of Property. aUeging lbat he was the ttUe and real
owner of the subject items confiscated on or about June 17. 20JI.
On April 24. 20(3 ."d April 30.2013. respectively. this Court held. Rcturo of Property
hearing/trial. At the culmination of the evidence preaented, this Court determined that the
subject property described a.bove was neither contraband, derivative' controblUld, nor stolen
property, It further detennined that Mobaroroed Safa and/or Exotic Diamond Jewelers of
Philadelphia, LLC (petitioner SafolF..xotic) were the rightful owners of this property. On April
30, 2013, Mobammed Safa's Motion for Return of Property was granted in its ClDtirety, without
oonditions, and n& against the other pWies, Yellow ~old, Italy in Gold Star, and Uxlited Express
Jewelry. Pw:suant to this Court's Qrder, the subject items were to be returned promptly, without
unnecessary delay or conditions, and in their entirety to Petltioner, Mohammed Sofa ancVor
Exotio Diamond lewelers ofPhil8delphia, LLC.
Accordingly. the Petition of United Express captioned under CP·51·MD·OOOI440·2012
was dented; the Petition of Yellow Gold Co"tptioned under CP-51-MO-0005324-2012 was denied;
and the Petition ofltaly in Gold Star captioned under CP-Sl·MD·0005n5·2012 was denied.
On May 30. 2013. Appellant, United Express Jewelry. appealed to the Superior Court
from this Court's Order entered in this matter on Apri130, 2013, denying its Motion for Return
of Properly brought pursuant to PA. R. COlM. P. 588. Tbjs Court ordered Appellant to me •
Concise Statemont of Errors Complainod of on Appeal ("Statemeo.f') pursuant to P...... R.A.P.
1925{b). On Ju.ne 27. 2013, Appellant filed Ii timely Statement.
3
Circulated 07/14/2014 10:20 AM
FINDINGS OF FACT
After a full and ftliI evidentiary hearing/trial was beld on APril (24, 2013 and April 30,
2013, thi" Court found that the subject property described above was neither contraband,
derivative contraband, nor stolen property. It further found that this property should be returned,
witbollt deJay, to Petitioner SafalExotic.
Based UPOD the evidence presented, admissible testimony. and credibility determinatioQS,
alon& with the record kept in UJis matter, this Court makes the followiug findings offset:
l, lmad Snfa and hi" brother Mohammed Safa arc the co~owoet! of a company
which operates under the banDer name "Exotic Diamond Jewelers," (Notes of Testimony I
Volume I. April 24, 2013, pp. 16, 122). The Sofa bl'Otl'er5 recently built a store and set up •
corporation on or about December. of20tO, Jd at l6. 'The Safa brothers buy and seJljewelry,
watches and othel" related m.erchandise at that store. Id. The store Is Jocated at 316 South Street,
Philadelphia, Pennsylvania; it became fully operational aD or about Marcb of20lt. ld. at 17
To date, the store remains in operation. !d.
2, Mr. Safa explained, llt the' bearing, that be bad working relationships with various
wholesalers around country. [d WholesaJers come into his store, give bim good! on credit, Rnd
he then pays those wholesalers on a weekly basis. Id. Irrespective of whether specific jewelry
goods are sold or not on any given week, these wholesalers expect to receive some 'corm of
payment for good! provjded all credit every week. Jd Mr. sara buys jewelry product.vgood8
from verious companies located ill Miami, New York. California, etc, [d.
4
Circulated 07/14/2014 10:20 AM
I
3. These jewelry goods ean be purchased on credit or wiVt cash---Mr. Safi) also
testified thnt there nre fTequently good buys or deals available for companies like his on the
internet. [d. Whenever one pays in casb for such items, he or she C8J1 often get better prices. ld
4. When Mr. Safa started the company located on South Street, he specifically
bought ite:lJ)S iiol11 Jabber Jewelry, Lee Jewelry. Nathania] Jewelry, City Jewelers. and various
pawn shops. Id. That is how he began to build up and amass his stOl(:'S inventory. Id Those
companies, other than the aforementioned pawn shops, are all wholesalers of jewell')' products
and related items. Id.
5. The otb.e( parties to this matter, to wit, Italy in Gold Star, Yellow Gold, and
United Express are also all wholesa1ers~ whose Opet&tio05/facilities are located in the g1eater
Now York City area. Id at 18.
6. Mr. Safa credibly testified that be bad never sold or purch.a:ied any inventory to or
from any oftlte above-mentioned wholesalers located in New York. id.
7. SOale of the jewelry items at issue in this case nre labeled or stamped by these
New York wholesalers. Id. A stemp is no indent or markmg that assistsljewe1ers in indentlfying
specific items or- goods. [d. All jewelry items have stamps of some kind or Iype. [d. at 18~ 19.
Essentially, where an item bears a company's stamp, this means or sigpifies that that company
ma.de or imported the item. Id at 19.
8. However, that an item bas a particular company's stamp does not in aoy way
mean that that originating or importing company retains any titJe to or iriterest in the item. Jd at
19. Jewelers may purchase those vcr.y same items which bear a specific company's stamp from
numerous locations or other companies. !d. rn :fact, nlmost idenHcaJ ,
looldng items may very
well have stamps from different companies. /d
5
Circulated 07/14/2014 10:20 AM
i
9. Although Mr. Safahad never personally bought or Purch+ed any items from any
of the other wholeSalers involved in this matter) be has frequent,ly seet) and come across items
whioh have their (the various New York wholesalers who e.re parties to this matter) stamps ot
Jabels. Id. He llas purchased such items bearing those stamps on many occasions. ld
Moreover. he bas a number of customers wbo apparently often, trade in items that have their
stamps or insignia. Id. at 19·20.
10. Mr. sarals father, Jamal Sara. elsa owned and operated a,jewelry storE: oompauy ,
Jd, at 20. It was catJed. New Diamond City. IUld was located in the Bronx Borougb of the City of
New York. [d. Mr. sara did not have any business interest at any time in his father's compnoy,
but he would help his father c;lUt during holiday season! on occasion (notably on Valentine's Day
and Christmas). Id. at 20.
I J, Jamal Safa's store is no longer operational in New York. Jd. When lmad Sara and
his brother opened their own store on South Street, they had absolutely no business ties to or
relationship with Ute company owned and operated by their father, Jamal, in New York. Id. at
21. Again. Mr. Sara wotild assist his father from tiIne to time during peok holiday SeasOrul with
seUiogjcwelry items. ld,
12. Mr. Safa never negotiated contracts with wholesalers or otherwise worked on his
father's behalf lit that time, however, [d at 21. He merely as~hrted with selling items to
customers who would frequcmt his father's store around busy hoUdays, ld.
13. In that capacity of helping out his father, [mad Sam never had any personal
dealings with any of the wholesalers involvt:d in this matter who oper&.te their companies out of
New Yod<. [d. at21 -22.
6
Circulated 07/14/2014 10:20 AM
14. Wh.en Mr. Sara opened bis store location in Philadelphia) be did not acquire any
of ru3 jewelry inventory from either his (ather or from bis father's tormer company) New
Diamond City. Id. ot 22. Further, lamal Safa o.ever gave any jewelry to Mr. Safa. [d.
15. Mr. sara credibly testified that jewelers typicnUy do Dot ma.intain tile most
SCr1.lIJulous of records of their inventoried item3. Id at 25. Specific jowclry pieces are often
identified by generic manufacturing (lumbers and by generic type (e.g., diamond ring or assorted
gold jewelry) or by carat weighl Jd. His business invoices, records, and receipts typically do
not display or shQw 5pccific identifying serial numbers for specific items. ld
16. Moreover, only speciaJir.ed items Jike Cattier items or Chanel items come with
specific or special mllllufacturing numbcn o.r ideotifiet'Sfserial nlunbers and certificates. Th03c
~orts of items arc thus much easier to keep track. of and catalogue than tess ex~nsive Bod mass
produced jewelry pieces. Jd. at 26.
17. Mr. sara crc:d.ibly testified Ulut he dJd not create his own Jist of specific numbers
for my mass produced items loctlted in his $Jre either. Id.
18. On or aboul June 17, 2011 J at around 7:00 a..m.. Mr. Sara opened up his store in
Philadelphia. Id. At thClt time, Detective Frank Straup came into Ute Slore alone, ld, at 26. Prior
to meeting Detective Straup that day) a representative ofHaly in Gold Star had apparently called
Mr. SatiI. aboUl a month Ix:fore, IcL at 27, 29, That individual, Aslam Nuwabi, stated that Mr,
Safa wouid have to pay him "his father's money" or cl.se he would file criminal chargC!l ngainst
Mr. Safa ld at 27,
19, Mr. Safe. made it pel'fectly clear that he did not owe tbis company any debt or
money Ot p.1'operty. Jd. at 27.
7
Circulated 07/14/2014 10:20 AM
20 . At that time, Mr. Safa had no working busines~ relationship with his father,
Jamal. or his father's company. New Dinmond City. Jd. at 28. His store did not have any such
reLationship with his father's company or his fnilier. either. Jd.
21. Detective Frank Straup initially knocked on the door on the date at issue. Jd. He
eame in by himself when Mr. Sma buzzed him in. Id The detective thea threatened Mr, Safa.
and said that he could do things the easy way or the hard way. Jd.
22. The detective infonned Mr. Safa that a number of individuals were waiting
outside and that they wished to be paid. Id. The deteotive then told Mr. Sara that he would make
this a very simple and easy situation for him--he Qffered to have Mr. Safa pay half of !lome
unknown/undisclosed sum or debt and if he did that, be would be fotgiven for the (est of this
unknown sum or debt, Id
23. Mr. Sara did not agree to this "bargain" deal or "offer." Id. He stated that he did
oat owe MY debt to these individuallj and therefore refused to m_ak.c ony such payments, Id. The
detectivel pursuant to a search and seizure wal;l'aQt, then came back into thE! store with about 8
other individuals. [d. at 28 -29.
24. It is not in dispute that the events which followed were chaotic and mossy .
Individuals apparently began grabbing various items located in the store. Id. at 29. Various
goods, particularly gold items, wel."e weighed on a seale and that property was appacently seized
by weight. Id. at 29.
25 . Mr. Sara has scales in his store wbich can weigh up to 2000 grruns. ld. T the
n
presence of Mr. Safa, the individuals placed bags on tbe scale and weighed them. ld,
8
Circulated 07/14/2014 10:20 AM
26. The police depanment would not allow Mr. Srua to stand up during this chaotic
event. rd. at 29. As these representativcs of the wholesalers were seizing the subject property,
they did not chec.k items off from a Ust or compare iteolS to invoices or receipts. ld. at 30.
27. Mr. Sofa credibly testified at the bearing that tbese folks arr;,cd with a plaiJl
white picce of paper. ld. It apparently said "5.8 kilos" and Utile: else. Id No one provided any
receipts to the detective in the presence of Mr. Safa. Id Detective Straup himself ac}c:nowledged
as much during his lestimoIl)' at Utis nearing. See id at 114-116.
Detective Strnup testified as follows:
THE COURT: But his [Attomcy Cevallos's] question was at the sarne time that
they were Si-yiJ1g to you this was their jewelry, at that time when they said this
piece is mine, did they produce A document at that time saying this was mine?
THE WITNESS : No.
TIlE COURT: How 100g thereafter did they produce any documcn~ if at all,
saying Utat?
THE WITNESS : Within two Of three days, you know. before I put this stuff into
evidence.
rtf. at 115-116.
28 . Mr. Safa subsequently offered to show the dEltective invoices and docuatentation
wbich would verify that he was the rightful owner of the items which were taken from hi$ store.
/d at 31. Mr. Sara was told that it was too late now and that he would be arrested. /d.
29. TIlls took pLace approximately one month after the search and seizure of the
subject property. /d.
30. TI1C Cjty ofPhiladelilhia attempted to prosecute Mr. Safa for receipt/possession of
these allegedLy stolen goods. Id. However. the cbarges were dropped ogninst Mr. S3£._ Id In
9
Circulated 07/14/2014 10:20 AM
ract, the Return of Property Hearing marked the first occasion on which Mr. Sofa bad appa=tly
been afforded the opportunity to speak to a Judge in open court about these eve,Qts. Id
3l . Mr. Sm provided this Court with invoices and records. Id. No specific items
(other than assorted jewelry or bunches of jowehy) could be identified by these documents for
the: ,easons already noted in the above. Those purchase invoices and receipts were kept in the
ordinary course of Exotic' s business. ld at 31 . 1'hey arc ordinarily filed and stored by the Sofas,
aIld they reflect purchases made by their company. Id. at 24, 31. The purchases listed on these
doel1111enlS were purportedJ,y made for the purpose of building up their store inventol'Y as the
brothers were in the process of creating/establishing their store in Philadelphia. It!. at 24. Mr.
Safa credibly testified to t.he authenticity of these business tecords and tbat these documents were
not created or drawn up in anticipation of nn.Y litigation. Jd. at 24.
32. Although tb~e invoices do not lis1 specifiC matching serial numbers for specific
items, Mr, Snfa credibly testified that these invoioe receipts concerned the subject items at issue
in dus cese. rd. at 25, 11\ey ideDtiiy tbose items as 83sorted. gold jewelry Md as bunches of
jewelty···ns suc.h, these descriptions refer to a variety of items which ate assorted and include
different types of jewelry like rosaries, pendants, rings, and so forth, Id. at 32. Those assorted
items were weighed by Mr. Safa, and they arc referenced it1 these invoices by their carat weight
and tbt'Ough gellCric descriptions (e.g., 987 grams, 14 cm:at assorted goJ.djewe1ry). Jd at 32.
33 . These Invoice receipts reflect and/or involve all tbe subject jewelry in dIspute in
this matter. ld, at25 . Approximately 5.8 kilogram! ofo.sllorted gold items were taken from Mr.
SaIa's store 8tld placed on property receipts by Detective Straup, ld,
34. Mr, Safapurebascd various items which have the stamp ofYe!1ow Gold and Italy,
Jd. at 39. These items are mass-produced jewelry. lei Model numbet3 afC generic ill the jewelry
[0
Circulated 07/14/2014 10:20 AM
industry, with the exception of novelty or !pecinlty iterm like Cartier pieces that corol!'.: with
specific serial numbers and certificates. Id Numerous items can have the same model numbers;
they can aJso bear the same insignia stamps as well. Jd at 42.
35. As. Mr. 8m's invoice:> do not rderence specific item3 by specific serial numbers
(00 sltch numbers apparently exist for mass produced jewelry at the moment), IDS records simply
refef'Cllce the weight o£his inventory items and utilize generic/gene):'&! dcscriptions. Id at 44.
36. He credibly testified that be has 0 good general sense afwhot bulk p.rod~d items
he hu at any given time in his store in inventory. however. Id
37. The .subject jewelry taken from Mr. Safa's stott was marked with various tags.
fd. at 48-49. TIUlSC tags rc:f)cet Ule specific values or suggemed retail prices ofparticu]ar items,
how many Clltats an item weighs, and also the generic general model nwnbers for such items. Id.
at 48-49, General. tags, which identify the mass-produced model number and/or its suggested
retail yalue, do not in any way demonstrate ownership or indicate who owns a particular piece of
Jewelry, Jd at 62,
38, This Court finds that tn. other partie. involved in thi. matter failed to produce MY
receipts or tnvoice.o; demonstrating that tho)' bad title to the subject goods.
39. This Court finds thnt none of the other part1~ were able to demonstrate that tbey
had superior title to these items or Utat they themselves had pureha.sed these items.
40. [t is not in dispute that all items at is.!lue in this hearing Were taken from Mr.
Saft's store. ld at 59. Mr. Safa saw eacb of these items taken ('rom his store by Detective
Strl\UP on the date in question. Id All oftb.ese items bore his tags. Jd Some of these tags were
apparently taken off by Detective Straup and/or the other parties to this action when they wete
seized on June 11th, 2013. Id,
II
Circulated 07/14/2014 10:20 AM
41. Mr. Sara identificId. at 84.
44, Those individuals h.ad the opport\lrlity to inspect these goods and look for
markings ond identifiers or serial numbers and the like. See Ed. They were present with the
Detective as he placed various jewelry items in property receipts Qn June 17"" 2011. ld at 85.
The detective c.onveniently received "memo('aoda" documents several days tater from United
Express Jewelry. Jd
45. Detective Straup admitted that he actually wrote on blank invoices of United
Express Jewelry-documents Which had already beeu signed by on Wlknown tbird party and
which had hoen provided to him by United Express }oweJry in an effort to demonstrate its
ownership of the $Ubject property days after the items had been confts~ted. Id. at 91, 94.
12
Circulated 07/14/2014 10:20 AM
46. This Court was deeply troubled by tbe ebnotic atld sloppy way in which this
investigation was handled by Dctect"ive Sunup. People were appat'ently, in the words of
Detective Straup, just "grabbing stuff" and oJahnlng that they owned various items located. in Mr.
Saia's store; they did so without pt'oviding the detective with any corroborating documentation
or evidence 0 f sucb ownership. Jd. at 111, I t 4. 116. AgllinJ no receipts or documented proof of
ownership of the subject goods wa.s provided to the: detective at the time of the execution of the
search and seizure watTant. Jd Only days later were allY such alleged documents provided to
this detective. Again, the detective subsequently altered or modified aU of these documents. fd.
at 94, 95, 114,116.
47. At the hee.ring, Detective Streup did not iudicate that he had ,my familiarity with
any of these parties' record keeping processes. See id, at 117-120. He readily acknowledged
that he. did not lJnve any familiarity with various terms of art utili:ud in the jeweJry industry, or
with whether g-e:necic ideDtifyiog serial numbers were Commonplace in the inctumy for mass
produced jewelry, or with whether stilmps are akin to brand l'IlUJle3 i.o the jewelry industry and
did Dot constitute proof of owne,.hip. Id. at 117-120.
48. Mr. Sofa explained to this CoUTt tbal he haa suffered !'Ilgnlfioaut .financial tosses as
a result of this property being eeized hy the Common.wealth. Jd. at 67. He poi.oted out that the
value of goods in tbe jewelry industry can be likened (0 goods in the fashion industry . Id
Different styles of products sell better wben they are "in style." Id. Many of the!!le items nre no
longeJ' "in style" nnd wilt prove difficu1L to sell movlnS forward. Jd
49. Mr. Sara lodicated thllt he bas lost custOmers and .sales as a result of these items
being sei~ed. fd. at 66-67. Mr. sara rolayed the follOwing information to this Court concerning
one such customer he Irnit 8S result of these items being aei7..ed:
J3
Circulated 07/14/2014 10:20 AM
niE WITNESS: I lost the ,.stomer. The sale I waS making a profit on it If It
cost me $7.000, I was going to sell it for $12,000. That alone is a S5,000 loss. I
hBd to .refund [tho custame..('] the money fot' it, but I still tried to win over the
customer .... It's embaaassing for you to cxplniD to somebody the Philadelpmn
Police Department cam trying to collect a debt.
[d. at 67.
so, "This Court did not fio,d Detective Stroup credibte at all. His investiga.tion Wa$
baseless 8Jld extremely prejudicial and suspect in the circwnstances. (Noles of Testtmoay,
Volume \ , April 30, 2013, p. 171),
51 , This Court did not find Mr. Gabriel from United Express Jewelry to be credible,
nor any of the representatives of Yellow Gold or Gold Star. Id
52. In contrast, this Court did find Mr. Safo'$ testimony credible.ld at 172
53 , At the cu1m;oation of the evidence presented at the Return of Property Hearing,
this Court fo\U1d that only Mr. sara had presented credible and colnpetcnt evidence that this
jewelry actually bdanged to him andlor his company. [d. at 172.
54. Accordingly, at the conclusion of the April 30th, 2011 hearing/trial, this Court
ruled that the property should be returned to the Petitioner Exotic Jewelry/Sm without delay .
[d. 0l172.
ISSUES
In Its 1925(b) StatemeDt of Matters Complained of OD Appeal, United Express
Jewelry, as appellant, raises the following issues:
1. The trial court committed error by ruling that Max Weiner, proposed
witness orUnitcd Express Jewelry, was not qualified as an expert in the field of
jewelry design, manufacture, and wholesale distribution.
2. In that it was offered that Max Weiner would have testified to the COlltrary
of Mohammed Sam snd consistent with United Express Jewelry principal Gabriel
NisUDOV, that the jewelry identifying numbc:13 OIl the transaction
cOIltemporancous United Express Jewelry marketing records (memoranda.
14
Circulated 07/14/2014 10:20 AM
invoices, etc.) re.fetTcd to specific manufacturer modeVdesignistyLe numbers and
pot industry generic style numbers, the exclusion of the said proposed expert
witness and testimony VlRS material, and was reversible error.
3. With respect to every United Express Jewelry and/or City of Philadelphia
Police Department document which tbe Trial CQurt refused to admit as busioess
record evidence, reversible error was committed.
This statement introduces alleged facts that are not part of the trial record and is thtnfOre
misleading. At the Rerun1 of Property trialiheating, this Court did not find Appellant's (Gabriel
Nisanov) testimony to be credible. In addition. tWs Court, as finder of fact, did not detenninc
based on credibility that the jewelry indeotifying D mbers noted in the above referred to specific
.u
manufacturer modeVdesignlstyle numbers. Virtunlly no ~dibility was givet'! tD the evidence
presented by United Express Jewelry In connectioo with this mattel. This Court also did not find
Detective Straup's testimony to be credible; his Investigation was extremely prejudicial.
baseless, and irregular, to say the very least. However, this COUI1 did fmd tllat the testimony of
Mr. Safa was credible.
With thnt said. this Court will address the substantive legal issues raised in the above
Statemenl
SIAlIDARt! OJ!' REVIEW
An ilppellf(t~ courtl~ review of a triol court's decision 00 petition for return of
property is limited to ascertD.ining: whether findings of fact made by the trial court are
supported by competent eyjdence and examining whether the trial court abused its
discretion or committed en:Or of law. Commonwealth v. Pena, 751 A.2d 709
(P .. Cmwlth. 2000).
15
Circulated 07/14/2014 10:20 AM
Absent a manifest abuse of its discretion. any and all evidentiary rulings lie within
the sound discretion of the trialjudge and will not be reversed. See, e,g., Copan Y. Divine
P,ovld.nco Hospital, 210 Pa.Super . 127, 410 A.2d 1282 (J'a.Super. 1980).
Finally~ it is within the providence of the finder of fact to pass upon the credibility of the
wilDElSSCS and the weight to be accorded the evidence presented. CommonwealJh v. Alston, 461
572. 403 A.2J 516 (1979). "The trier of fact, while passing upon the credibility of witnesses
and the weight of the evidence produced, j, free to believe all, part or none of the evidence."
Commonwealth v. Va/elle, 531 Pa. 384. 388 (pa. 1992), citing Commonweallh v. Grllcavage,
51t Po. 540, 5~3, 517 A.2d 1256,1257 (1986) .
DISCUSSION
Here, Appellant contends that this Court erred by ruling thll.t its proposed witness. Mmc
WelnO:, was not qualified as an expen in the field ofjewelry design, manufacture, and wholesale
distribution. For the reasons set forth below, this claim is without merit.
It is well sottlt:d In this Commonwealth tbllt the qualification of an expert witness lies
within the sound discretion of the trial judge. StU!, e.g., Miller Y Brass Rail Tavern, inc, 541 Pa.
.
474, 664 A.2d 525 (pI\. 1995). [t is equally well settled tha~ nbsent un abuse of the discretion,
the deci810n of the trial judge to refuse (0 pennit a witness from testifying should be upheld. {d.
at 528. The te..'il to be applied when qualifYing an expert witness is as follows: the trial judge
must dete.ttrl.iIle whether the witness has any teasomlbJe pretension to :specialized knowted&e on
the subjeGt under investigation beyond that of a laypocson. [d, Whe[e it 'oVitness demo,Q!ltrably
16
Circulated 07/14/2014 10:20 AM
possesses such specialized Im.owledge, sh~ may opiue at trial and the weight of such testimony is
for the trier of fact to determine, Id (citing CommonwrJalth v. GO,I2OI.z, 519 Pa. 116, 128,546
A.2d 26,31 (1988». Furth.er, a witness may be qlwified to render such an opWon through Ws
or her experience nod trainlng, ld, (citing Ruttflr v, NQrtheas/ern Beover County School District,
496 Po. 560, 598,437 A.2d 1198, 1202 (1981) (plurality opinion). A witness need not pos.. ",
any forinal schooling or education on (ile subject matter tutder investi.gation. See Id. a1 528.
What is required, however, is that the expert possess more knowledge ''than is otherwise within
the ordinal)' range of training» knowledge, intelligence 01 experience" in a partic.ular field or
area. ld
In thi~ co.se, AppellBllt failed to provide this Court at opposing colUlsel with any notice
that he intended to nnve aD expert witness testify at the hearing. the proposed witness. Max
Weiner, had never appeared oj' testified as an expert before in any IJ'lAltcr. The proposed wilness
had never been qualified to testify as an expat before in aoy matter, Moreover, tbe proposed
witness did not provide thU Court (or opposing counsel) with B copy of his curriculum vitae
detailing his credentials and experience in the jewelry i.ndustry. Consequently, Urls Court could
not accurately assess his credentials and qualifications in tbe ciNumstances.
Further, Mr. Weiner coufusingly testified that dlft'erent vendors usC! different tagging or
numbering systems to identify their goods.1 However, even if this Court were inclined to bcJ.ieve
l Mr, Weiner testified IS follows in regards to his familiarity with the tagging protocols/procedures
of various jewelry vendors: '1 worked/or somebody Ihat had :l tagging process. ssw how they developed
(helY l)I6tem with respect to coming up with numbers, J deVil/oped my own sylr.em lIS to come up with
numbers. J usc numerical order, and that '.I' how we do if. . . , Certain vendors put theIr Initiats in front or
their numb~rs, , . ," (Notes oft£:stimony, Volume I, A.pril30, 2013, p. 83-84) (CC"I1phasis added).
Here, Mr. Weiner doubtJe..~ intimated that diff'Crcllt vendors tllilize different markings)/stcm$ and
follow different protocols for identifying thelr goods. BVUl if we tAke him lit his word that this is true, he
never once indicated tbat be bad BIIY fam.ilim"ity wltb the !!IpcclfJe vendors who allegedly blgged or marked
\he spceifio il:tJm~ at woe in this matter. It should also be Dared ttlat Mr. Wei,ner', vague testimony that
17
Circulated 07/14/2014 10:20 AM
Ihalthls Were Ihe ellS', Appellant never established that Mr. Weiner had '!Dy familiari.ty with the
specific jewelry tags at issue in this case. Mr. Weiner vaguely 1lS8erted that he had some
familiarity with the various practices of other munufacturerslwholesalcrs and t1Jeir respective
tagging systems. Nevertheless, his confusing and vague testimony did not establish that he: had
any specialized knowledge about the i.tems at iS3\le in this case or with how these specific items
were allegedly m.arked or tagged by d1eit l'63pective manufacturers/distributors/vendors.
This claim must also fail for 8 separate and unrelated reason. According to Appellant,
Mr. Weiner wQuld have apparently testified that the jewelry identifying . lumbers listed on
t
vnrjOU5 United Express Jewelry marketing recotd9 referred to specific design/model/style
numbors and not to indu~ generic style munbers. TItis ('.Qurt already heard testimony to this
effect from, United Express Jewelry principle Gabriel Nisanov, and thus such testimony would
have been merely duplicative or cumulative in .effect. Appellant does not appear to deny that this
testimony would have been cumulative or dupli~tive; he acknowledges in his own 1925(b)
statement that such t~timo.ny would have been <'consistent with United Express Jewelry
principle Gabrief Nisanov." PenrlSylvania Role of Evidence 403 spedficaUy difec~ 11 trinl. QOurt
to exclude the presentation of duplicative or cumulative evidetlce in such circumstances. It
provides in ~elevant part: "Although reJevant. evidence may be excluded if its probative value is
outweighed by , . . needless presentation of cumulative evidence." PA.R.E. 403 (2013). As this
evidence muld ha.ve been merely repetitious of evidence already introduced by Appellant, this
Court also did not err in exaluding this "expert" from testifying on this ground. Sec, e.g., Boyd v.
Hertz. Corp., 281 A.2d 679. 634 (pa..Super. 1971) (holding that l1':ial court bas discretiol) to
he '"worked for sotllCbody" who "had Ii taggtng proocss" did not oxactly [eave this Court Wit11 a clcar
Impr~ion ofwttere/how he received his trAining and experience in this domain .
18
Circulated 07/14/2014 10:20 AM
impose limits 011 .!I. party's attempts to introduco fwther evidence which is repetitious and
duplica.tive of evidence it has already introduced),
For all tbese reasons, Ulis Court did not err in ruling that Mr. Weiner was not qualified to
testify as an expert in this matter.
PLR.A.P. J925(b)(4)(ii) provides that on appc.!lant's statement oflll,atters complain&d of
all appeal must "concisely identify each ruJiDg or ettor that the appellant intends to challenge
with sufficient detail to identify all pertinent issues for the judge." Pa,R.AP . 1925(b)(4)(vii)
provides that any issue.~ hot raised in accat'dMcc with subsection (b) of th.is rule are deemed
waived.
OUr courts have repeatedly held that any Issues which are not raised in a Rule J92S(b)
stateftlent will be deemed waived far review. S,t, e.g., Com7J1onwaalth v. Lord, 553 PL 415, 719
A2d 306 (pa. 1998). FlD1her, au Appellant is required to identify in hb or hor concise statement
the en-ores) which be or she wishes to be addressed by the court with specifiCity. See, e.g.,
Commonwealth v. Butler, 2000 Pa. Super. 187, 756 A.2d SS (pa. Super. 2000); set also.
CommolfWealth v. Dowling, 2001 Pa. Super. 166, 778 A.2d 683 (pa. Super. 200)). As Ihe
Supetior Court bos further elaborated: The statement tnust be "speciflc enough {Of the trial court
to identify and address th e issue [an appellant] wishes to caise on appeal!' Commonwealth "'.
Reeves, 200G PA Super 196,907 A.2d {, 2 (pa. Super. 2006) (emphasis added). Simply put, "(a)
[cjoncise [s]tatcment which is toQ vague to allow the court to identify the issues raised. on appeal
is the functional equivalent of no [oJonci.se (s1tatemea.l al all." Jd. (emphasis added). When a
19
Circulated 07/14/2014 10:20 AM
court has to guess at tp.e issues raised on appeal because the OlppelJant's concise statement is
overly vague or broad, the cowt may find waiver. Id.
In the instant case, Appellant complains that tbis Court erred by failing to admit into the
record !ill United Express Jewelry b~iness documents. Appellant, however, fails to make any
reference to what specific documonts tbis Court refused to admit into tbe recOJ:d or, for that
matter, why such evidence would be relevant and of nny probative value. AppeUant does Got
develop this contention in any more detail aud therefore has waived this i5sue. Here, too, it
should be noted that t4cl:e are over 300 pages of Notes of Testimony pertaining to this motter,
and this Court cao.oot reasonably guess or speculate £l..'J to Which specific document:! Appellant is
referencing In his poorly crafted and vague 1925(b) statement, Moreover, this Court is perplexed
by this allegation for another reason: All of AppeUnnt's bUsiness records and exhibits were
admitted into cyidence. It should be noted that this Court, in exercising its discretioA as finder of
met, did not givo very much credence or weight to those documents. However. n1I of
Appellant's business record!!. were admitted into eVidence.
CONCLUSION
For all the foregoing reasons, tbis Court's decision should be affinned .
BY THE COURT:
20