             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania          :
                                      :
            v.                        :   No. 949 C.D. 2013
                                      :   Submitted: April 17, 2014
Steven J. Wolfgang,                   :
                  Appellant           :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE MARY HANNAH LEAVITT, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION
BY JUDGE LEAVITT                                           FILED: August 7, 2014

            Steven J. Wolfgang, pro se, appeals an order of the Court of Common
Pleas of the 39th Judicial District (Franklin County Branch) (trial court) granting
the Commonwealth’s petition for the forfeiture and destruction of firearms seized
from Wolfgang’s home, where he was arrested on several criminal charges. We
vacate and remand.
            State Police troopers went to Wolfgang’s home on July 20, 2010, to
investigate a tip that marijuana was being grown in a cornfield behind Wolfgang’s
house. One officer detected the odor of burnt marijuana on Wolfgang’s person,
and another officer observed marijuana plants growing in his back yard. Wolfgang
consented to a search of the home and property. The officers seized marijuana,
drug paraphernalia and 17 firearms from Wolfgang’s home.           Wolfgang was
arrested and charged with several drug offenses: unlawful manufacturing of a
controlled substance, unlawful possession of marijuana and unlawful possession of
drug paraphernalia.    Wolfgang was also charged with one count of illegal
possession of a firearm. The latter charge was based upon his prior 2007 felony
conviction, which conviction rendered him unable to possess a firearm. 18 Pa.
C.S. §6105.1
               Wolfgang pled guilty to one count of manufacturing a controlled
substance and one count of illegal possession of a firearm. At his sentencing
hearing on August 10, 2011, the trial court judge advised Wolfgang that he could
neither own nor possess a firearm. Notes of Testimony, August 10, 2011, at 6-7.
Wolfgang inquired about transferring the firearms, which Wolfgang described as
family heirlooms, to a family member. The trial court advised Wolfgang that he
could file a motion for return of property. Wolfgang did not file this motion.
               On October 16, 2012, the Commonwealth filed the instant forfeiture
petition. In his answer, Wolfgang raised procedural and substantive challenges to
the Commonwealth’s petition. Attached to his answer was a copy of a letter from
his sister and brother-in-law indicating their willingness to assume ownership of
the guns. At the forfeiture hearing, the Commonwealth asserted that the seized
firearms were contraband and subject to forfeiture because Wolfgang had been
convicted of illegal possession of firearms. The trial court granted the forfeiture
petition, holding that Wolfgang was “well outside the sixty day time period to
relinquish any firearms in his possession.”          Trial court op. at 3.       Wolfgang
appealed to this Court.
               On appeal,2 Wolfgang argues that the trial court erred by (1) refusing
to permit Wolfgang to introduce signed statements from his sister and brother-in-


1
 The text of 18 Pa. C.S. §6105 appears in the body of this opinion, infra.
2
  Our standard of review on appeal is limited to examining whether the trial court’s factual
determinations were supported by competent evidence and whether the trial court abused its
(Footnote continued on the next page . . . )
                                             2
law requesting that the seized firearms be transferred to them; (2) not allowing
testimony from the State Police that they had allowed Wolfgang to retain the
firearms after his prior felony conviction; and (3) allowing the Commonwealth to
destroy several of the seized firearms without a valid court order.3
               We begin with the applicable statute.                  Section 6105 of the
Pennsylvania Uniform Firearms Act of 1995 (Firearms Act) prohibits a person
convicted of certain crimes, including a felony, to possess or use a firearm. It
states, in relevant part, as follows:

               (a) Offense defined –
                      (1) A person who has been convicted of an
                          offense enumerated in subsection (b), within
                          or without this Commonwealth, regardless of
                          the length of sentence or whose conduct meets
                          the criteria in subsection (c) 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.
                      (2)(i) A person who is prohibited from possessing,
                           using, controlling, selling, transferring or

(continued . . . )
discretion or committed an error of law. Commonwealth v. Morelli, 55 A.3d 177, 179 (Pa.
Cmwlth. 2012).
3
  Wolfgang’s brief raises issues not listed in his Concise Statement of Errors Complained of on
Appeal, including prejudicial delay in filing the forfeiture petition; inadequate notice of the
forfeiture petition; failure to establish that the items were contraband or derivative contraband;
and ineffective assistance of counsel. Pursuant to PA. R.A.P. 1925(b)(4)(vii), issues not included
in Wolfgang’s statement of errors complained of on appeal are waived. Further, the above-listed
issues in Wolfgang’s brief are not facially subsidiary to any of the issues contained in
Wolfgang’s Concise Statement of Errors Complained of on Appeal. PA. R.A.P. 1925(b)(4)(v).
As such, these extraneous issues raised in Wolfgang’s brief are deemed waived. PA. R.A.P.
1925(b)(4)(vii). Those extraneous issues will be addressed in this opinion only insofar as they
arise in the course of examining the issues preserved for appeal.


                                                3
                          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. §6105(a) (emphasis added). There is no dispute that Wolfgang’s 2007
felony conviction was for an offense “enumerated in subsection (b).” Id. Thus, he
had 60 days from the “date of the imposition of the disability” to transfer his
firearms “to another eligible person.” Id. The “date of the imposition of the
disability” is the date on which a judgment of conviction is entered for an
enumerated offense. Commonwealth v. Appleby, 856 A.2d 191, 194-95 (Pa. Super.
2004). Wolfgang’s disability began in 2007. Notably, Section 6105 provides no
instruction on what was to happen to the firearms that Wolfgang failed to transfer
within 60 days of his statutory disability.
             By contrast, what is commonly referred to as the Controlled
Substances Forfeiture Act (Forfeiture Act), 42 Pa. C.S. §§6801-6802, provides
specific instructions with respect to firearms seized in connection with a drug
violation. The Forfeiture Act states, in pertinent part, as follows:

             (a) The following shall be subject to forfeiture to the
                 Commonwealth and no property right shall exist in them:

                                                  ***

                    (7)    Any firearms, including, but not limited to,
                           rifles, shotguns, pistols, revolvers, machine
                           guns, zip guns or any type of prohibited
                           offensive weapon, as that term is defined in
                           18 Pa. C.S. (relating to crimes and offenses),
                           which are used or intended for use to

                                              4
                               facilitate a violation of The Controlled
                               Substance, Drug, Device and Cosmetic
                               Act.[4] Such operable firearms as are found
                               in close proximity to illegally possessed
                               controlled substances shall be rebuttably
                               presumed to be used or intended for use to
                               facilitate a violation of The Controlled
                               Substance, Drug, Device and Cosmetic Act.
                               All weapons forfeited under this section
                               shall be immediately destroyed by the
                               receiving law enforcement agency.

42 Pa. C.S. §6801(a)(7) (emphasis added). Thus, there is no property right in
firearms used to facilitate a violation of the Controlled Substance, Drug, Device
and Cosmetic Act.
                 Here, the Commonwealth did not seek a forfeiture of Wolfgang’s
firearms under authority of the Forfeiture Act. The Commonwealth’s petition does
not identify the legal authority for its forfeiture request.               The Pennsylvania
Superior Court has construed the common law of criminal forfeiture to allow the
forfeiture of weapons seized from a person convicted under 18 Pa. C.S.
§6105(a)(1). See In re Firearms, Eleven, 922 A.2d 906 (Pa. Super. 2007). It is
presumed that, here, the Commonwealth’s request for forfeiture was based on the
common law of criminal forfeiture, as in Firearms, Eleven.
                 In Firearms, Eleven, the Superior Court held that firearms seized from
a person who has violated 18 Pa. C.S. §6105 can be forfeited. In doing so, the
Superior Court relied upon Commonwealth v. Crosby, 568 A.2d 233 (Pa. Super.
1990). In Crosby, the Superior Court noted problems, and even conflicts in its own
precedent, on whether derivative contraband can be forfeited as a matter of

4
    Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§780-101 – 780-144.


                                                5
common law upon the criminal conviction of its owner. Id. at 239-40. The
Superior Court concluded that forfeiture of derivative contraband at common law
was permissive but not compulsory. The Superior Court also acknowledged that in
the absence of legislation, many questions were left unanswered including, inter
alia, what should be done with the forfeited property. In Firearms, Eleven, the
Superior Court did not attempt to answer those questions.       Rather, it simply
concluded that it was bound by Crosby and, thus, held that firearms possessed in
violation of 18 Pa. C.S. §6105(a) may be forfeited under the common law of
criminal forfeiture.
             In this proceeding, as in any forfeiture, the Commonwealth bears the
burden of proof by a preponderance of the evidence that the property is
contraband. Commonwealth v. Howard, 713 A.2d 89, 92 (Pa. 1998). The law
recognizes two types of contraband: contraband per se, and derivative contraband.
As was explained in Howard,

             [c]ontraband per se is property the mere possession of which is
             unlawful…. Heroin and ‘moonshine’ whiskey are examples of
             contraband per se. Derivative contraband is property innocent
             by itself, but used in the perpetration of an unlawful act. An
             example of derivative contraband is a truck used to transport
             illicit goods.

Id. at 92 (quoting Commonwealth v. Fassnacht, 369 A.2d 800, 802 (Pa. Super.
1977)).   The Superior Court has held that firearms sought to be forfeited in
connection with a violation of 18 Pa. C.S. §6105 are derivative contraband.
Firearms, Eleven, 922 A.2d at 911. In so holding, the Superior Court reasoned that
“[g]uns are not contraband per se because, unlike heroin or moonshine, it is not
‘inherently illegal’ to possess a weapon.” Id. at 910.


                                          6
              Although the firearms are contraband when possessed by Wolfgang,
they are not contraband in the hands of Wolfgang’s sister or brother-in-law. These
firearms did not become contraband items, even as to Wolfgang, until 60 days had
passed from the date of his felony conviction in 2007, the inception of his statutory
disability. Stated otherwise, until 61 days passed from the date of his 2007 felony
conviction, Wolfgang could not be prosecuted for violating 18 Pa. C.S. §6105.
And until he was actually convicted of violating 18 Pa. C.S. §6105(a), the seized
firearms could not be the subject of a criminal common law forfeiture proceeding.
              The 60-day grace period in Section 6105(a)(2) is irrelevant to the
deadline for filing a motion for return of seized property under Pennsylvania Rule
of Criminal Procedure 588.5 A motion for return of property must be filed within
six years of the final disposition of the underlying criminal case, whether by
conviction, acquittal or withdrawal of the criminal charges. Commonwealth v.
Allen, 59 A.3d 677, 681 (Pa. Cmwlth. 2012), appeal granted, 74 A.3d 121 (Pa.
2013). The statute of limitations for a motion for return of confiscated property in
a criminal common law forfeiture proceeding has not been addressed previously by
this Court. Rule 588 authorizes a motion for return of property in any case where


5
 Rule 588 provides, in relevant 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 determines that such property is
            contraband, in which case the court may order the property to be forfeited.
PA. R.CRIM.P. 588.


                                               7
property has been seized by the Commonwealth, whether as evidence or as
contraband. We see no reason to impose a different statute of limitations for the
same motion where the Commonwealth chooses to pursue criminal common law
forfeiture as opposed to a statutory forfeiture.
              A party seeking return of confiscated property has the burden to prove
by a preponderance of the evidence that he is entitled to lawful possession of the
property at issue. Commonwealth v. Morelli, 55 A.3d 177, 180 (Pa. Cmwlth.
2012). A person prohibited from possessing firearms under Section 6105 of the
Firearms Act cannot, as a matter of law, meet the burden of proof necessary for
return of confiscated firearms to himself. We find no precedent for a motion for
return that would place the seized property not in the hands of the owner but,
rather, in the hands of a third person whose ownership of the property is legal.
However, we cannot rule out that a motion for return is an appropriate vehicle for
transferring firearms to a third person who is not prohibited from possessing
firearms and for whom the firearms are not contraband. Indeed, the trial court
advised Wolfgang to file a motion for return as the vehicle for transferring the
firearms to family members when he was sentenced on August 10, 2011, for
violating 18 Pa. C.S. §6105.
              Turning to Wolfgang’s issues on appeal, he first contends that the trial
court erred by refusing to permit him to introduce signed statements from his sister
and brother-in-law requesting that the court allow them to take ownership of the
seized firearms.6 Wolfgang views these statements as a substitute for the motion

6
  It is unclear from Wolfgang’s brief and Concise Statement of Errors Complained of on Appeal
exactly which signed statements from Wolfgang’s sister and brother-in-law are at issue.
Presumably, Wolfgang is referring to the letter from his sister and brother-in-law that was
attached as an exhibit to Wolfgang’s answer to the Commonwealth’s forfeiture petition.


                                             8
for return of property that he alleges his counsel intended to file but never did. We
disagree that this proffered evidence can serve as a substitute for a motion to
return. Nevertheless, we also disagree with the trial court’s stated reasons for
refusing to allow a transfer of the firearms to Wolfgang’s relatives and granting
their forfeiture.
              The trial court held that a transfer could not be done in 2011 because
it was more than 60 days after Wolfgang’s felony conviction in 2007. This was
error. The purpose of the statutory 60-day grace period is to allow the person with
the statutory “disability,” by reason of his conviction, to avoid the commission of
another crime by violating Section 6105 of the Firearms Act. The person with the
statutory disability cannot be prosecuted before day 61, and the trial court erred by
giving the 60-day grace period broader significance. Simply, Section 6105(b) does
not place a deadline on the transfer of the firearms. For example, Wolfgang could
have transferred his “family heirlooms” to his sister two years after his 2007 felony
conviction. That transfer would have been lawful. However, it would not have
resolved Wolfgang’s criminal liability. He could still be prosecuted for possessing
the firearms for one year and 10 months in violation of 18 Pa. C.S. §6105(a).
              Likewise, Section 6105(b) says nothing about whether the firearms
can or should be forfeited to the Commonwealth if not transferred to an eligible
person by day 61. Section 6105(b) does not abolish all property rights in the
firearms, as does, for example, the Forfeiture Act. Cf. 42 Pa. C.S. §6801(a)
(stating that “no property right shall exist” in items subject to forfeiture).
              A violation of Section 6105 does not, in itself, preclude the filing of a
motion to return (and transfer) the firearms within the applicable statute of
limitations, which, as noted above, is six years. Indeed, Wolfgang was invited to


                                            9
do so by the trial court at his sentencing. That limitations period commenced when
Wolfgang pled guilty and was sentenced on August 10, 2011. Allen, 59 A.3d at
681. The six-year statute of limitations has not yet expired.
               Wolfgang next contends that the trial court erred by not allowing state
police officers to testify that they permitted Wolfgang to retain possession of the
firearms after his prior felony conviction in 2007.                We find no such error.
Wolfgang did not subpoena any state police officers to appear at the forfeiture
hearing and no officers were listed as present at the hearing. There was no proffer
of any such testimony on the record or any discussion of how such testimony
would relate to Wolfgang’s case. There is nothing in the record to suggest the trial
court would not have allowed testimony from the state police.                       Wolfgang’s
assignment of error lacks merit.
               Finally, Wolfgang contends that the trial court erred by allowing the
Commonwealth to destroy several of the seized firearms without a valid court
order. Wolfgang avers that the police seized close to 100 firearms from his
property whereas only 16 firearms were designated in the Commonwealth’s
Petition for Forfeiture. Wolfgang’s estimate of the number of firearms seized is
inconsistent with the record.         The affidavit of probable cause stated that 17
firearms were found and seized at the time of arrest.7 Even if additional firearms
were seized, Wolfgang produced no evidence to support his contention that any
firearms were destroyed.          The Commonwealth argues that firearms can be
destroyed, citing Section 6801(a)(7) of the Forfeiture Act, 42 Pa. C.S. §6801(a)(7).
However, its petition was not filed under the Forfeiture Act.

7
  There is no explanation in the record for the discrepancy between the forfeiture petition, which
identified 16 firearms, and the affidavit of probable cause, which identified 17 firearms.


                                               10
              The trial court misapprehended the legal standard in holding that the
firearms could not be transferred to any person once 60 days had passed from the
inception of Wolfgang’s disability and, thus, had to be forfeited. Accordingly, we
vacate the forfeiture order and remand the matter for consideration under the
correct legal standard.8 Should Wolfgang, or his sister, file a motion for return
(and transfer) of the confiscated firearms, the trial court may consider that motion
on remand.9
                                                    ______________________________
                                                    MARY HANNAH LEAVITT, Judge




8
  Wolfgang asserted that at least some of the seized firearms were antiques. Section 6118 of the
Firearms Act, 18 Pa. C.S. §6118, excludes “antique firearms” from its provisions. Section
6118(c) defines an “antique firearm” as:
        (1) Any firearm with a matchlock, flintlock or percussion cap type of ignition
        system.
        (2) Any firearm manufactured on or before 1898.
        (3) Any replica of any firearm described in paragraph (2) if such replica:
               (i) Is not designed or redesigned for using rimfire or conventional
               center fire fixed ammunition; or
               (ii) Uses rimfire or conventional center fire fixed ammunition
               which is no longer manufactured in the United States and which is
               not readily available in the ordinary channels of commercial trade.
18 Pa. C.S. §6118(c). On remand, if Wolfgang proves that some of the firearms are, in fact and
in law, “antique firearms” under the Firearms Act, then the trial court must exclude those
firearms when considering whether any of the remaining firearms are subject to forfeiture.
9
  Wolfgang may not seek a return of the firearms to himself. However, his possessory interest
has not been abolished by 18 Pa. C.S. §6105(a). Rather, his possession has been rendered illegal.


                                               11
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania             :
                                         :
            v.                           :   No. 949 C.D. 2013
                                         :
Steven J. Wolfgang,                      :
                  Appellant              :


                                   ORDER

            AND NOW, this 7th day of August, 2014, the order of the Court of
Common Pleas of the 39th Judicial District (Franklin County Branch), dated April
23, 2013, in the above-captioned matter is hereby VACATED and the matter is
REMANDED in accordance with the foregoing opinion.
            Jurisdiction relinquished.
                                               ______________________________
                                               MARY HANNAH LEAVITT, Judge
