commonwealth of pennsylvania, : in the superior … · subsequently, three new york based jewelry...

J-A12003-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

__________________ *Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA,

ex rel. UNITED EXPRESS JEWELRY

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

: IN THE SUPERIOR COURT OF

: PENNSYLVANIA :

: :

: :

: :

: :

:

: :

: :

: :

: 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

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Police Detective arrived at Mr. Safa’s store stating that individuals from

various jewelry wholesale companies were outside of the business seeking

money and the detective offered Mr. Safa a “deal” to pay off a portion of the

money allegedly owed to the wholesalers. Mr. Safa indicated to the

detective that he owed no debt and refused to pay. Subsequently, the

detective returned to Mr. Safa’s store with a search warrant and eight

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

Mr. Safa’s store. On February 15, 2012, United Express Jewelry filed a

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

items taken from Mr. Safa’s store were neither contraband, derivative

J-A12003-14

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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,

Mr. Safa’s Motion for Return of Property was granted in its entirety, without

conditions, and as against the other parties, United Express Jewelry, Yellow

Gold, and Italy in Gold Star. Pursuant to the trial court’s order, the subject

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.

Appellant’s Brief at 3-4 (verbatim).

Initially, we observe that United Express Jewelry’s brief does not

comply with Pennsylvania Rule of Appellate Procedure 2119, which provides,

in pertinent part, as follows:

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(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

Express Jewelry’s brief is not divided into as many parts as there are

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

“statement of the questions presented.” Because each of the three points

raised by United Express Jewelry in the argument portion of its appellate

brief and each of the two issues presented in its “statement of the questions

presented” essentially 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

Jewelry’s claims as a single issue.

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

the trial court’s sound discretion and its evidentiary rulings will only be

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reversed upon a showing that it abused that discretion. Commonwealth v.

Laird, 988 A.2d 618, 636 (Pa. 2010).

Expert testimony may be admitted “[i]f scientific, technical or other

specialized knowledge beyond that possessed by a layperson will assist the

trier of fact to understand the evidence or to determine a fact in issue[.]”

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

discretion may not be made “merely because an appellate court might have

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 clearly erroneous.” 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

certified record before us on appeal, and the trial court’s extensive opinion.

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,

we agree with the trial court’s analysis as to this matter and conclude that

the trial court did not abuse its discretion in refusing to admit this evidence

from the proffered expert witness. Hence, because the trial court’s opinion

J-A12003-14

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adequately disposes of the issue presented, we affirm the trial court’s

decision on the basis of its well-reasoned discussion with regard to United

Express Jewelry’s claim. Trial Court Opinion, 8/26/13, at 16-19.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/31/2014

Circulated 07/14/2014 10:20 AM

, IN TIm COURT OF COMMON PLEAS OF rBILADELPl~A COUNTY

FIRST JUDICIAL DISTRICT OF l'ENNSYLVAl'\lA FI LED CRIMINAL TRIAL DIVISION I

COMMONWEALTHOFl'ENNSYLVANIA Ex. reL UnJted ExprC3$ ,Jewelry

AppcU.o.nt

v.

CITY 01' PIDLADELPl;I:IA (Commission, PoUce Department)

Appellee IUld

COMMONWEALTH OF PENNSYLVANIA li:x. I'et. Mobamm,£d So.fa

Appellee

v.

CITY OF PHIT,ADELPWA (Commission, police Department)

Appellee

Patriel" J.

OPJ:mON

AUG 29 lOu

Criminal Appeals Unit Firsl Judicial District of PA

1.853 EDA 2013

CP-51-MJ)-0001440-20121 CP-51-MD·0007S45·2011

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


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


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


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


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


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


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


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. Tn the

presence of Mr. Safa, the individuals placed bags on tbe scale and weighed them. ld,

8


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


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


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


41. Mr. Sara identific<l aU of the items generically marked and listed on PfOporl)'

receipts as belonging to his company. Exotic Diamond Jewelers. fd. at 66. Mr. Safa. dld not

produce that Jist. Nevertheless. he did recognize the hems listed on that list DB belonging to bjs

store. ld at 6S~66,

42, None of the documents presented to thi! Court by any of the other parties to this

aotion bo(e Mr. sara.'s si.gnature. None of tho~e documents demonstrated ally wor.kin8

relationship amongst or between any of these parties and M!, Sa.ra or his place of business. None

of those documents established that any of these other parties had sUperior title, or even any tide,

to tbese goods.

43. On the dtlte that tbese Items were lSeized no.d placed on property receiptS,

Detective Stnlup was not provided with any documentation or receipts or proof of ownership by

an)' of the individuals (the other parties/petitioners) who claimed that they owned the subject

property . Id. 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.

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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:

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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


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.umbers noted in the above referred to specific

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).

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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 of jewelry 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


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


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 .tlumbers listed on

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


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 the 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


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:

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