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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ERIC S. WHISTLER :
:
Appellant : No. 18 MDA 2018
Appeal from the Order Entered November 17, 2017
in the Court of Common Pleas of Cumberland County
Criminal Division at No.: CP-21-CR-0002613-2015
BEFORE: PANELLA, J., NICHOLS, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED AUGUST 27, 2018
Appellant, Eric S. Whistler, appeals pro se from the November 17, 2017
order denying his motion for the return of property, filed pursuant to
Pennsylvania Rule of Criminal Procedure 588. We affirm.
We take the underlying facts and procedural history in this matter from
the trial court’s February 15, 2018 opinion and our independent review of the
certified record. The record reveals that on June 7, 2011, Appellant was
arrested for an incident of domestic violence involving his ex-wife. In
connection with that incident, he pleaded guilty to simple assault on August
22, 2011.
On September 25, 2015, Appellant was charged at Docket No. 2612-
2015, with one count each of rape of a child, statutory sexual assault,
involuntary deviate sexual intercourse, unlawful contact, aggravated indecent
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* Retired Senior Judge assigned to the Superior Court.
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assault, indecent assault, and corruption of a minor. (See Commonwealth’s
Brief, at 2). A few days later, pursuant to two search warrants, the
Pennsylvania State Police searched the home of Appellant’s girlfriend and
seized twenty-nine firearms belonging to Appellant. (See N.T. Hearing,
11/16/17 at 4). On October 5, 2015, Appellant was charged with twenty-nine
counts of persons not to possess or own firearms.
On July 5, 2016, Appellant pleaded guilty to one consolidated charge of
person not to possess or own firearms at Docket No. 2613-2015,1 and one
count each of statutory sexual assault, aggravated indecent assault, and
corruption of minors at Docket No. 2612-2015.
On November 9, 2016, the trial court sentenced him to an aggregate
term of incarceration of not less than eight nor more than twenty-four years
in a state correctional institution.
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1 18 Pa.C.S.A. § 6105.
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Because of his domestic violence conviction, Appellant was not
permitted to possess or own firearms.2 Therefore, pursuant to two search
warrant, the Pennsylvania State Police confiscated his firearms.3
On July 31, 2017, Appellant filed a pro se petition for a return of the
firearms, or, in the alternative, their transfer to his mother. (See Petition for
Return of Property, 7/31/17, at unnumbered pages 1-2). Following a
November 16, 2017 hearing, the trial court denied his petition. (See Order,
11/17/17).
The instant, timely appeal followed.4 The trial court directed Appellant
to file a concise statement of errors complained of on appeal and Appellant
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2 See 18 U.S.C.A. § 922(g)(9) (possession prohibited to person convicted in
any court of a misdemeanor crime of domestic violence). See also Binderup
v. Attorney Gen. United States of Am., 836 F.3d 336, 339 (3d Cir. 2016),
cert. denied sub nom. Sessions v. Binderup, 137 S. Ct. 2323, (2017), and
cert. denied sub nom. Binderup v. Sessions, 137 S. Ct. 2323, (2017), which,
in a “fractured vote” addressed the impact of section 922(g)(1) on the
constitutional right to keep and bear arms. It bears noting here that by the
time of Appellant’s motion, he was also prohibited from possessing firearms
based on the numerous subsequent convictions under state law.
3The state police found four firearms based on the first search warrant. They
executed a second search warrant after they obtained the combination to
Appellant’s safe where he kept the rest of the firearms.
4“[T]he prisoner mailbox rule provides that a pro se prisoner’s document is
deemed filed on the date he delivers it to prison authorities for mailing.”
Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011), appeal
denied, 46 A.3d 715 (Pa. 2012) (citation omitted). Here, the envelope for
Appellant’s notice of appeal is date-stamped December 18, 2017, the thirtieth
day. Thus, the appeal is timely.
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timely complied on January 12, 2018. See Pa.R.A.P. 1925(b). On February
15, 2018, the trial court issued an opinion. See Pa.R.A.P. 1925(a).
On appeal, Appellant presents the following question for our review:
A. [Did Appellant] establish the right to a lawful
possession of the [twenty-nine] firearms, because at the time of
seizure, he was not a convicted felon, had a valid Pa. [g]un
[l]icense, and did not commit a crime with any of the guns[?] Did
the [trial] court abuse its discretion and commit legal error by
labeling these firearms contraband and denying his petition for
return of property?
(Appellant’s Brief, at 4).
Our standard of review in these cases is well-settled:
The standard of review applied in cases involving motions
for the return of property is an abuse of discretion. In conducting
our review, we bear in mind that it is the province of the trial court
to judge the credibility of the witnesses and weigh the testimony
offered. It is not the duty of an appellate court to act as fact-
finder, but to determine whether there is sufficient evidence in the
record to support the facts as found by the trial court.
Commonwealth v. Rodriguez, 172 A.3d 1162, 1165 (Pa. Super. 2017)
(citation omitted).
Pennsylvania Rule of Criminal Procedure 588, Motion for Return of
Property, provides in pertinent part:
(A) A person aggrieved by a search and seizure, whether or
not executed pursuant to a warrant, may move for the return of
the property on the ground that he or she is entitled to lawful
possession thereof. Such motion shall be filed in the court of
common pleas for the judicial district in which the property was
seized.
(B) The judge hearing such motion shall receive evidence
on any issue of fact necessary to the decision thereon. If the
motion is granted, the property shall be restored unless the court
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determines that such property is contraband, in which case the
court may order the property to be forfeited.
Pa.R.Crim.P. 588(A) and (B).
This Court has stated:
[o]n a motion for return of property, the moving party has
the burden of proving ownership or lawful possession of the items.
The burden then shifts to the Commonwealth to prove, by a
preponderance of the evidence, that the property is contraband.
[D]erivative contraband is property which is innocent in
itself but which has been used in the perpetration of an unlawful
act. Property is not derivative contraband, however, merely
because it is owned or used by someone who has been engaged
in criminal conduct. Rather, the Commonwealth must establish a
specific nexus between the property and the alleged criminal
activity.
Commonwealth v. Durham, 9 A.3d 641, 646 (Pa. Super. 2010), appeal
denied, 19 A.3d 1050 (Pa. 2011) (citation omitted).
In the instant matter, the trial court found that Appellant had failed to
meet his preliminary burden of proving that he or his mother, Grace Grimm,
had a lawful ownership interest in the firearms. (See Trial Ct. Op., at 2-5).
We agree.
Initially, the court correctly determined that Appellant could no longer
lawfully possess the firearms in question, as his convictions, noted above,
precluded him from doing so. (See id. at 3); see also 18 Pa.C.S.A.
§ 6105(a)(1) (directing that person convicted of offenses set forth in
§ 6105(b) “shall not possess, use, control, sell, transfer or manufacture or
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obtain a license to possess, use, control, sell, transfer or manufacture a
firearm in this Commonwealth.”).
In his brief, Appellant in effect ignores the fact that he can no longer
possess a firearm, and, instead argues that, because he believes he was
entitled to possess the firearms at the time of seizure, he is still entitled to
their return. (See Appellant’s Brief, at 8-12). We disagree.
The record confirms that Appellant had a conviction for simple assault
in 2011, which arose out of an incident of domestic violence with his ex-wife.
(See Trial Ct. Op., at 3). Thus, pursuant to both state and federal law,
Appellant could not lawfully possess a firearm. See 18 U.S.C. § 922(g)(9);
see also 18 Pa.C.S.A. § 6105(c)(9).5 This Court has stated that, where a
person is prohibited from having a firearm, the mere fact of possessing one
is a violation of Section 6105. See In re Firearms, Eleven, 922 A.2d 906,
911-12 (Pa. Super. 2007), appeal denied, 932 A.2d 1289 (Pa. 2007) (citations
omitted). Because the operative conditions are conviction and possession,
Appellant’s assertion that the Commonwealth had the burden to establish that
the firearms were derivative contraband is incorrect and unavailing. Thus, the
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5 (9) has been convicted in any court of a misdemeanor crime of domestic
violence.
18 U.S.C.A. § 922 (g) (9).
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trial court did not err or abuse its discretion in determining that Appellant was
not entitled to the return of the firearms. See id.
Appellant also challenges the trial court’s determination that his mother,
Ms. Grimm, was not entitled to return of the weapons. (See Appellant’s Brief,
at 12-13). Appellant argues the Commonwealth’s refusal to return Whistler’s
property violates Pa.R.Crim.P. 588 and is unconstitutional. We disagree.
We agree with the trial court that Appellant’s mother failed to establish
that she was entitled to lawful possession of the firearms. To the contrary,
she disclaimed ownership. (See N.T. Proceedings – Motion For Return of
Property, 11/16/17, at 11). Moreover, Ms. Grimm did not file her own petition
for the return of the firearms to her possession; instead, Appellant simply
named her in his petition for the return of that property. (See Petition for
Return of Property, supra at unnumbered page 2). Rule 588 provides that
“[a] person aggrieved by a search and seizure . . . may move for the return
of the property on the ground that he or she is entitled to lawful
possession thereof.” Pa.R.Crim.P. 588(A) (emphasis added).
Thus, Rule 588 does not permit Ms. Grimm to move for the return of the
firearms on the basis that she is entitled to lawful possession thereof. See In
re Firearms, Eleven, supra at 912 (petitioner must make a preliminary
showing that the property belongs to him or her). (See N.T. Hearing,
11/16/17, at 7).
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Moreover, we note that Rule 588 is not, on its face, a procedure for
transferring ownership of property; it is a procedure for the return of property
that one already owns.
Additionally, 18 Pa.C.S.A. § 6105 provides that “[a] person who is
prohibited from possessing, using, controlling, selling, transferring or
manufacturing a firearm under paragraph (1) or subsection (b) or (c) shall
have a reasonable period of time, not to exceed 60 days from the date of
the imposition of the disability under this subsection, in which to sell or
transfer that person’s firearms to another eligible person who is not a member
of the prohibited person’s household.” 18 Pa.C.S.A. § 6105(a)(2)(i)
(emphasis added).
Here, Appellant did not seek to transfer the firearms to his mother’s
possession within sixty days of his July 5, 2016 conviction. Instead, he waited
a year until July 2017 to file his motion requesting that transfer.
In addition to the other reasons noted, because of Appellant’s delay, we
cannot conclude that the trial court abused its discretion by denying his
motion. Our reasoning differs somewhat from that of the trial court, but we
may affirm its decision on any basis which is correct under the law.6
Order affirmed.
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6 See Commonwealth v Hunter, 60 A.3d 156, 162 n.18 (Pa. Super. 2013).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/27/2018
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Com. v. Whistler, E.
Combined Opinion