J-S77015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TODD ERIC MESSNER,

                            Appellant                  No. 664 MDA 2017


                 Appeal from the Order Entered March 13, 2017
              In the Court of Common Pleas of Huntingdon County
              Criminal Division at No(s): CP-31-CR-0000025-2015


BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED FEBRUARY 02, 2018

        Todd Eric Messner, Appellant, appeals from the trial court’s March 13,

2017 order denying his “Motion for Return of Property Pursuant to

Pa.R.Crim.P. Rule 588” (hereinafter, “Motion”).       After careful review, we

affirm.

        Briefly, Appellant’s Motion sought the return of several firearms seized

by police during their investigation of his commission of various arson-

related offenses.       Appellant was ultimately arrested and charged with

numerous crimes.        On July 14, 2016, he pled nolo contendere to reckless

burning or exploding, 18 Pa.C.S. § 3301(d)(1), and possession of explosive

or incendiary material, 18 Pa.C.S. § 3301(f). Appellant was sentenced that

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*   Former Justice specially assigned to the Superior Court.
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same day to 18 to 36 months’ incarceration, followed by 3 years’ probation.

He was granted immediate parole.       Appellant did not file a direct appeal

from his judgment of sentence.

      On December 20, 2016, Appellant filed the at-issue Motion seeking the

return of the firearms seized during the investigation of his criminal matter.

Specifically, Appellant asked that the guns be returned to himself or his wife,

Alda Messner, or, alternatively, that he be permitted “to relinquish these

weapons to his uncle, Thomas Moffat, Jr.”       See Motion, 12/20/16, at 2

(unnumbered). The trial court conducted a hearing on the Motion on March

2, 2017, at which Appellant, Mrs. Messner, and Mr. Moffat each testified. On

March 13, 2017, the court issued an order denying Appellant’s Motion.

      Appellant filed a timely notice of appeal, and he also timely complied

with the court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Herein, he presents one issue for our review:

      A. Whether … the … trial court erred or abused its discretion
         when it denied [Appellant’s] Motion … pursuant to Rule of
         Criminal Procedure 588 and declined to return the requested
         firearms to Alda Messner and Tom Moffett?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

      Our Court has previously explained:

      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.


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      Pennsylvania Rule of Criminal Procedure … 588 addresses
      motions for the return of property and reads as follows:

         Motion for Return of Property

         (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 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).

                                      ***

      The law is well settled that:

         [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, 645–46 (Pa. Super. 2010)

(internal quotation marks, citations, and footnote omitted).

      In this case, the trial court denied Appellant’s Motion for return of the

firearms on the basis that Appellant had failed to meet his preliminary

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burden of proving that he, Mrs. Messner, or Mr. Moffat had a lawful

ownership interest in the guns. See Trial Court Opinion (TCO), 6/9/17, at 2.

For the following reasons, we discern no abuse of discretion in the court’s

decision.1

       Preliminarily, the court correctly determined that Appellant, himself,

can no longer lawfully possess the firearms in question, as his convictions in

this case preclude him from doing so. See TCO at 2; see also 18 Pa.C.S. §

6105(a)(1), (b) (directing that a person convicted of an offense set forth in

18 Pa.C.S. § 3301 “shall not possess, use, control, sell, transfer or

manufacture or obtain a license to possess, use, control, sell, transfer or

manufacture a firearm in this Commonwealth”). Notably, Appellant does not

challenge this determination on appeal, conceding “that he is no longer able

to possess firearms….” Appellant’s Brief at 17.

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1 This is especially true where Appellant offers minimal discussion of why the
court erred in determining that neither he, nor his wife or uncle, had a lawful
ownership interest in the firearms. Instead, he devotes the majority of his
argument to contending that the seized firearms are not contraband or
derivative contraband, and the cases on which he primarily relies also
address this issue, rather than the question of ownership of the firearms.
See, e.g., Commonwealth v. Howard, 713 A.2d 89 (Pa. 1998) (discussing
whether firearms seized from a seller’s private collection constituted
derivative contraband subject to forfeiture); Petition of Maglisco, 491 A.2d
1381 (Pa. Super. 1985) (discussing the law of derivative contraband, and
holding that, while a pistol used by the petitioner to shoot her husband was
clearly derivative contraband, other firearms that she owned, which were not
used in the crime, were not derivative contraband).




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        Appellant does challenge, however, the trial court’s determination that

neither his wife (Mrs. Messner), nor his uncle (Mr. Moffat), demonstrated an

ownership interest in the guns.      Id. at 18.   According to Appellant, “the

record is clear that at least two of the firearms, specifically one of the .380

rifles and a nine millimeter handgun, belonged to Mrs. Messner. There was

no testimony offered by the Commonwealth to rebut her claims.              As a

consequence, unless these firearms are derivative contraband, she is

entitled to their return.” Id. Appellant also claims that the other guns are

“family heirlooms,” and that the court should have permitted him to transfer

those    guns   Mr.   Moffat’s   ownership   to   ensure   that   they   can   be

“pass[ed] on to the next generation and generations thereafter.” Id. at 18.

        Appellant’s argument is unconvincing.     We initially note that neither

Mrs. Messner, nor Mr. Moffat, filed their own petition for the return of the

firearms to their possession; instead, Appellant simply named them in his

Motion for the return of that property.      Rule 588 states 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).        Thus, Rule 588 does not

seemingly permit Appellant to move for the return of the firearms on the

basis that Mrs. Messner and/or Mr. Moffat are entitled to lawful possession

thereof.    See In re Firearms, Eleven, 922 A.2d 906 (Pa. Super. 2007)

(considering whether a wife was entitled, under Rule 588, to the return of




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guns seized from her husband where the wife had filed a petition for the

return of that property).

       In any event, even if the Motion was properly framed, we would

conclude that the trial court did not abuse its discretion by denying

Appellant’s request for the return of the firearms to Mrs. Messner or Mr.

Moffat on the basis that neither individual had a lawful ownership interest in

the guns. First, the trial court clearly disbelieved Mrs. Messner’s testimony

that two of the guns belonged to her, stressing that she produced no

documentation to prove her ownership of those weapons.2 See TCO at 2.

The record supports the court’s determination.            Furthermore, we reject

Appellant’s    argument      that   because    the   Commonwealth   produced   no

evidence to refute Mrs. Messner’s testimony, the court was required to

accept it as proof of her ownership of two of the guns. As stated supra, “it is

the province of the trial court to judge the credibility of the witnesses and

weigh the testimony offered.” Durham, 9 A.3d at 645.

       Second, we ascertain no abuse of discretion in the trial court’s decision

that the guns should not be returned to Mr. Moffat. The court pointed out

that Mr. Moffat did not even suggest that he owned the firearms, let alone



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2 Indeed, Appellant’s wife acknowledged that documents proving she
purchased two of the guns would surely be “on file” at the business where
those sales were conducted, but she conceded that she had not brought that
documentation to the hearing. N.T. Hearing, 3/2/17, at 3.



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prove any ownership interest in that property. Again, the record supports

the court’s determination.

      Moreover, while we appreciate Appellant’s argument that the ‘family

heirloom’ guns should be transferred to Mr. Moffat’s ownership to preserve

them for future generations, Appellant unfortunately did not utilize the

proper method for transferring those firearms. Rule 588 is not, on its face, a

mechanism for transferring ownership of property; it is a mechanism for

seeking return of property that one already owns. Additionally, 18 Pa.C.S. §

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.”

See 18 Pa.C.S. § 6105(a)(2)(i). Here, Appellant did not seek to transfer the

firearms to Mr. Moffat’s possession within 60 days of his July 14, 2016

conviction; instead, he waited until December 20, 2016 to file his Motion

requesting that transfer. Because of Appellant’s delay, we cannot conclude

that the trial court abused its discretion by denying his Motion.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/18




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