             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania              :
                                          : No. 287 C.D. 2015
                    v.                    : Submitted: October 6, 2015
                                          :
Ruger Revolver 38 Cal, Smith and          :
22 Cal Revolver, Model DM22 Cal,          :
S&W 45 Colt, et al.                       :
                                          :
In Re: Basil Skinner as Power of          :
Attorney for Brian Skinner                :
                                          :
Appeal of: Basil Skinner                  :


BEFORE:       HONORABLE DAN PELLEGRINI, President Judge
              HONORABLE ROBERT SIMPSON, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN                              FILED: October 28, 2015

              Basil Skinner appeals from the February 2, 2015, order of the Court of
Common Pleas of Delaware County (trial court), denying his petition for return of
property (Petition) seized by the Commonwealth of Pennsylvania (Commonwealth)
pursuant to a search warrant executed on March 2, 2010. We affirm.


              Skinner owns property at 361 Ivy Mills Road in Glen Mills,
Pennsylvania (Property), which is comprised of two structures. In 2010, Skinner, his
brother, Brian, and his sister-in-law, Valerie, lived at the Property, each in a separate
residence.
               On March 2, 2010, police executed a search warrant at the Property and
seized controlled substances, cash, and a large number of firearms. In 2010, Skinner
filed a petition for return of property, including firearms and cash, which the trial
court granted in 2012.


               In November 2014, Skinner, acting as Brian’s agent, filed the instant
Petition seeking the return of 56 firearms allegedly belonging to Brian. 1 Brian is a
fugitive facing federal charges relating to cocaine distribution.


               The trial court held a hearing on the Petition on February 2, 2015.
Skinner testified that he does not know Brian’s whereabouts and has not seen him in
four years. (N.T., 2/2/15, at 9.) Skinner also testified that in August 2013, while he
was winterizing the Property, he found a notarized, durable power of attorney, dated
November 3, 2011, naming Skinner as Brian’s agent. (Id. at 10.)2 Skinner signed the
acknowledgement of agency on August 13, 2013. (Id.) Skinner further testified that
Brian previously owned a gun shop, that he and Brian are hunters, and that he knows
that the firearms in question belong to Brian. (Id. at 11-12.)


               Skinner also presented the testimony of Thomas Milowicki. Milowicki
testified that he owns a local gun shop and that he is licensed to sell guns. (Id. at 21-




      1
         The police also seized $33,000 in cash during the March 2, 2010, search, which was
previously returned to Brian.

      2
          The power of attorney was admitted into evidence without objection. (N.T., 2/2/15, at 24.)

                                                  2
22.)3 Milowicki further testified that Skinner told him that he intends to sell his
brother’s guns and use the proceeds to pay taxes on the Property. (Id. at 23.)


              Following the hearing, the trial court denied the Petition. The trial court
discredited Skinner’s testimony and concluded that Skinner failed to meet his burden
of proving that Brian lawfully possessed the firearms at issue. Skinner now appeals
from that decision.4


              Skinner argues that the trial court erred in concluding that he failed to
satisfy his burden of proof. A proceeding seeking the return of seized property is
quasi-criminal in character but civil in form. Commonwealth v. Reynolds, 876 A.2d
1088, 1093 (Pa. Cmwlth. 2005). Pa. R. Crim. P. 588(A) provides that “[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.” To prevail on a motion under Pa. R. Crim. P. 588, the
moving party must prove by a preponderance of the evidence that he or she entitled to
lawful possession of the seized property. Commonwealth v. Morelli, 55 A.3d 177,
180 (Pa. Cmwlth. 2012). Once the moving party satisfies his or her burden, then the
burden shifts to the Commonwealth to prove that the property is contraband or
derivative contraband. Reynolds, 876 A.2d at 1092 n.16.


       3
          The Commonwealth stipulated on the record that Milowicki is legally authorized to buy
and sell weapons. (N.T., 2/2/15, at 22.)

       4
          Our scope of review of an order denying a motion for the return of property is limited to
determining whether the trial court’s findings are supported by competent evidence and whether the
trial court abused its discretion or committed an error of law. Commonwealth v. Reynolds, 876
A.2d 1088, 1092 n.16 (Pa. Cmwlth. 2005).

                                                3
             Skinner asserts that he established lawful possession of the firearms at
issue because he has a valid power of attorney naming him as Brian’s agent. Thus,
Skinner claims that his testimony that the guns belong to Brian was sufficient to
satisfy his burden of proof. We cannot agree.


             “‘[L]awful possession’ within the meaning of [Pa. R. Crim. P.] 588
means some possessory interest recognized by law, not mere physical possession in
the absence of personal wrongdoing.”        Commonwealth v. Personal Property of
Abendroth, 929 A.2d 690, 694 (Pa. Cmwlth. 2007). The fact that Skinner was named
as Brian’s agent does not establish Skinner’s lawful possession of the firearms. The
power of attorney does not transfer ownership of Brian’s property to Skinner. Rather,
it authorizes Skinner to “handle,” “sell,” or “otherwise dispose of” Brian’s property
and to “recover” any “goods, merchandise, chattels, effects and things . . . belonging
to [Brian].” (N.T., 2/2/15, Ex. A, at 1, 3 (emphasis added).) Thus, even as Brian’s
agent, Skinner had to establish that Brian lawfully possessed the firearms.         See
Abendroth, 929 A.2d at 694 (holding that the appellants, who sought the return of
property left in their care by their deceased brother, had to prove the decedent’s
lawful possession because, as bailees, they could acquire no interest in the property
greater than the decedent’s interest).


             Here, Skinner produced no evidence to show that Brian lawfully
obtained or possessed the firearms in question, other than Skinner’s own testimony,
which the trial court specifically discredited. (Trial Ct. Op. at 4.) Because Brian is a
fugitive and did not appear at the hearing to claim ownership of the firearms, Skinner




                                           4
had to produce some other credible indicia of Brian’s lawful ownership, which he
failed to do.5


                 Accordingly, we affirm the trial court’s order and grant the
Commonwealth’s motion to strike.




                                               ___________________________________
                                               ROCHELLE S. FRIEDMAN, Senior Judge




       5
          In its brief, the Commonwealth also moves to strike certain documents included in
Skinner’s reproduced record, as well as the portions of Skinner’s brief referencing those documents.
(Cmwlth.’s Br. at 5.) The documents include a deed, an indenture, and a realty transfer tax
statement. Because these documents were not admitted into evidence before the trial court and are
not part of the certified record on appeal, we cannot consider them. See Pa. R.A.P. 1921 (providing
that only original papers, exhibits, and transcripts filed in the trial court and certified docket entries
constitute the record on appeal); see also Commonwealth v. Bracalielly, 658 A.2d 755, 763 (Pa.
1995) (stating that a document does not become part of the certified record merely because a party
has included it in the reproduced record).

                                                    5
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania          :
                                      : No. 287 C.D. 2015
                  v.                  :
                                      :
Ruger Revolver 38 Cal, Smith and      :
22 Cal Revolver, Model DM22 Cal,      :
S&W 45 Colt, et al.                   :
                                      :
In Re: Basil Skinner as Power of      :
Attorney for Brian Skinner            :
                                      :
Appeal of: Basil Skinner              :


                                   ORDER


            AND NOW, this 28th day of October, 2015, we hereby affirm the
February 2, 2015, order of the Court of Common Pleas of Delaware County and grant
the Commonwealth of Pennsylvania’s motion to strike.




                                      ___________________________________
                                      ROCHELLE S. FRIEDMAN, Senior Judge
