J-S32034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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