Commonwealth v. Trainer
| Decision Date | 17 November 2022 |
| Docket Number | 748 C.D. 2021,No. 748 C.D. 2021 |
| Citation | 287 A.3d 960 |
| Parties | COMMONWEALTH of Pennsylvania v. Kenneth L. TRAINER, Jr., Appellant |
| Court | Pennsylvania Commonwealth Court |
Ryan H. James, White Oak, for Appellant.
Daniel A. Vernacchio, Pittsburgh, for Appellee.
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE LORI A. DUMAS, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY SENIOR JUDGE LEADBETTER
This case raises the novel question of whether a trial court may resolve a motion for return of property under Pennsylvania Rule of Criminal Procedure 588, where there is no evidence presented by the Commonwealth, by ordering sale of the property and return of the cash proceeds to the owner. It cannot. As such, we reverse the order of the trial court and remand with directions to enter an order directing the return of the property.1
Appellant, Kenneth L. Trainer, Jr., appeals from the order of the Court of Common Pleas of Allegheny County directing that a pistol owned by him be transferred from the possession of the Pittsburgh Police Department to the possession of a licensed gun dealer "to be sold at fair market value." Order, Commonwealth v. Trainer (Allegheny C.C.P., Crim. Div., MD No. 1354-2021, filed June 8, 2021). The trial court continued, "[a]fter retaining a standard commission, proceeds are to be remitted to [Appellant]." (Id. )
The record in this case is sparse. The motion for return of property, brought under Pennsylvania Rule of Criminal Procedure 588 and filed April 21, 2021, avers that Appellant was the subject of an "unsupported" criminal complaint arising from an allegation of domestic assault on November 4, 2020. (Mot., Reproduced Record "R.R." at 2.) As a result of these allegations, the police took one Glock 22, .40 caliber semi-automatic pistol bearing serial number BHPB204, that the Commonwealth has stipulated Appellant owns (see Hr'g Tr. at 4, R.R. at 11). On April 6, 2021, the underlying criminal charges were withdrawn in Pittsburgh Municipal Court. After the withdrawal of the charges, the police retained possession of the pistol and Appellant filed his motion for return of property.
The trial court held a telephonic hearing on the matter on June 8, 2021. The Commonwealth objected to the return and made various allegations concerning Appellant's conduct underlying the seizure of the gun and prior conduct. Specifically, the Commonwealth alleged that the underlying facts leading to the withdrawn charges were that Appellant had brandished the pistol and threatened to kill his girlfriend and that this was Appellant's third arrest for simple assault (each of which the Commonwealth acknowledged were withdrawn or nolle prossed). This being the case, the Commonwealth stated that it "cannot in good conscious [sic] agree to the return" of the pistol. (Id. at 2-3, R.R. at 9-10.) Appellant argued that with the stipulation of his ownership of the pistol, the burden shifted to the Commonwealth to show that the pistol was contraband and that there was no evidence to that effect. (Id. at 5, R.R. at 12.)
During the hearing, the trial court stated as follows:
Under [Pennsylvania Rule of Criminal Procedure] 588 ... the Commonwealth is required to return the gun if, in fact, that [sic] he legally owns it and he has not been convicted of a crime, rather than request that the Court order it sold and proceeds returned. When the Commonwealth has submitted evidence of three incidents involving him brandishing the firearm, the last one, at his girlfriend, where he allegedly made threats to kill her, even when those cases are nolle prossed, because it does seem to me that the Sheriff's Department would have the right to deny him a conceal [sic] carry permit under those circumstances.
[Id. at 5-6, R.R. at 12-13 (emphasis supplied)]. Counsel for Appellant argued that the issue of a concealed carry permit was separate from his right to the return of the pistol, to which the trial court replied:
No, I understand that. What I'm saying, though, is if the Sheriff's Department has the authority to do that, would the Court also have the authority, where there are allegations concerning enough that he is not a responsible gun owner, to require that a gun that he legally purchased be sold and the proceeds returned[?]
(Id. at 6, R.R. at 13.) The Commonwealth noted that the conversion of firearms to cash and return of cash, instead of the firearms, to the owners is "done on a daily basis in the Court of Common Pleas of Allegheny County under such circumstances." (Id. )2 The trial court agreed that the Court of Common Pleas of Allegheny County "does this routinely" and agreed to sign an order to sell the pistol and return the proceeds. (Id. at 7, R.R. at 14.) Appellant then stated his intention to pursue an appeal and the trial court agreed to stay its order pending the appeal. In an opinion filed under Pennsylvania Rule of Appellate Procedure 1925(a), the trial court determined that the pistol was derivative contraband and affirmed its order.
On appeal, Appellant presents one question: whether the trial court erred by denying his motion for return of property where the Commonwealth produced no evidence to show that Appellant's firearm was derivative contraband.3 The Commonwealth presents a counterstatement of the question presented: whether the trial court permissibly ordered the sale of the pistol, with the proceeds to be remitted to him, in lieu of returning the pistol itself. Under either phrasing, we believe the order of the trial court was clearly erroneous.
Rule 588 provides in relevant part as follows:
Pa. R. Crim. P. 588(A)-(B) (emphasis supplied). Under this rule, on any motion for return of property, the moving party must establish by a preponderance of the evidence entitlement to lawful possession. Commonwealth v. Mosley , 549 Pa. 627, 702 A.2d 857, 859 (1997). Once that is established, unless there is countervailing evidence to defeat the claim, the moving party is entitled to the return of the identified property. Singleton v. Johnson , 929 A.2d 1224, 1227 (Pa. Cmwlth. 2007). If the Commonwealth seeks to defeat the claim, it bears the burden to prove, by a preponderance of the evidence, that the items are either "contraband per se" or "derivative contraband," and therefore should not be returned to the moving party. Commonwealth v. Crespo , 884 A.2d 960, 961 n.4 (Pa. Cmwlth. 2005). Clearly, the pistol is not contraband per se because its possession, in itself, is not illegal. See Commonwealth v. Howard , 552 Pa. 27, 713 A.2d 89, 92 (1998) [quoting Commonwealth v. Fassnacht , 369 A.2d 800, 802 (Pa. Super. 1977) ]. To meet its burden to prove that an item is derivative contraband, the Commonwealth must establish a specific nexus between the property and criminal activity. Howard , 713 A.2d at 92. In this case, the trial court concluded, and the Commonwealth argues, that the pistol is derivative contraband because it has been "used in the perpetration of unlawful acts." Id.
In this case, the trial court erred by not requiring any evidence, first because that is a mandatory requirement under both Rule 588(B) (), Pa. R. Crim. P. 588(B) (emphasis supplied), and because case law requires the demonstration by a preponderance of evidence of a nexus between criminal activity and the property. Of course, these are no more than specific directives in accordance with the general principle that any adjudication that involves resolution of disputed facts must be based on competent evidence. The trial court accepted the prosecutor's allegations of Appellant's criminal activity, rather than requiring evidentiary proof, despite the explicit acknowledgment by the Commonwealth that all criminal charges against Appellant were withdrawn or nolle prossed. The trial court correctly noted that "[e]ven where there is an acquittal, derivative contraband may be subject to forfeiture." (Trial Ct. Op. at 4). Nonetheless, the...
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