The Commonwealth Court has recently reversed a trial court’s order directing that Appellant’s firearm be sold and the proceeds given to him, rather than returning the firearm to him.
Appellant, Kenneth Trainer, “was the subject of an ‘unsupported’ criminal complaint arising from an allegation of domestic assault,” resulting in the police seizing his lawfully possessed Glock 22, .40 caliber semi-automatic pistol. The underlying criminal charges were ultimately withdrawn. Trainer filed a Motion for Return of Property after police retained possession of the pistol.
During a telephonic hearing on Trainer’s Motion, the Commonwealth alleged that Trainer had “brandished the pistol and threatened to kill his girlfriend and that this was [his] third arrest for simple assault (each of which the Commonwealth acknowledged were withdrawn or nolle prossed).” However, the Commonwealth did not offer, nor did the trial court require, proof of the allegations “despite the explicit acknowledgment by the Commonwealth that all criminal charges against [Trainer] were withdrawn or nolle prossed.”
Nonetheless, the trial court, suggesting that Trainer did not appear to be a responsible gun owner, directed that the pistol be transferred from the possession of the police department to the possession of a licensed gun dealer “to be sold at fair market value” after which time the proceeds were to be returned to Trainer (less the standard commission being retained by the gun dealer). Trainer appealed.
On appeal, the Commonwealth Court concluded that the trial court’s decision was clearly erroneous. Citing Pa. Rule of Criminal Procedure, Rule 588, the Commonwealth Court noted that “on any motion for return of property, the moving party must establish by a preponderance of the evidence entitlement to lawful possession. 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. [And], 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.” [citations omitted.]
In Trainer’s case,“the pistol is not contraband per se because its possession, in itself, is not illegal.” And, “[t]o meet its burden to prove that an item is derivative contraband, the Commonwealth must establish a specific nexus between the property and criminal activity.” However, the failure of the trial court to require evidence during the hearing failed to meet the “mandatory requirement” that the Court “shall receive evidence on any issue of fact necessary to the decision thereon.”
Accordingly, the Commonwealth Court reversed trial court’s order and remanded the matter with directions to issue an order compelling the police department to return the pistol to Trainer.