          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania              :
                                          :
             v.                           :
                                          :
Marvase J. Spell,                         :   No. 1720 C.D. 2016
                    Appellant             :   Submitted: May 5, 2017


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COSGROVE                             FILED: November 9, 2017


             Marvase J. Spell (Appellant) appeals pro se from an Order of the Court
of Common Pleas of Allegheny County (trial court), which denied Appellant’s
application for restoration of his firearm rights. Upon review, we affirm.
             In 2015, this Court addressed a petition for review filed by Appellant
seeking relief from an order of an administrative law judge of the Office of Attorney
General that upheld the Pennsylvania State Police’s (PSP) refusal to restore
Appellant’s firearm rights. See Spell v. Pennsylvania State Police, (Pa. Cmwlth. No.
2267 C.D. 2014, filed November 18, 2015) (Brobson, J.), 2015 WL 7356222
(unreported) (Spell I). In that matter, Appellant did not dispute the accuracy of PSP’s
records indicating his application for restoration of rights had been denied “due to
his convictions for Unlawful Restraint, Terroristic Threats, and Possession of a
Controlled Substance,” crimes which render him ineligible to carry a firearm
pursuant to Section 6109(e) of the Pennsylvania Uniform Firearms Act of 1995
(Act).1 Id. In affirming, this Court acknowledged that the court of common pleas
was the venue in which Appellant would have to seek the relief he requested.
                On May 27, 2016, Appellant filed a petition with the trial court, seeking
restoration of his firearm rights. The trial court scheduled the matter for a motions
hearing to be held June 28, 2016, at which time Appellant failed to appear. As a
result, the trial court issued an order on July 1, 2016, denying relief. This appeal
followed.2
                The sole issue before this Court is whether the trial court erred in
denying Appellant’s request.
                Appellant argues he should be relieved of his firearms disability
pursuant to Sections 6105(d)(3)(ii) and 6105(e)(2) of the Act. 18 Pa.C.S. § 6105.
Appellant also argues Section 6105.1 of the Act is applicable in determining whether
restoration of his firearms rights is warranted. Section 6105.1 states, in pertinent
part, a court “shall grant restoration of firearms rights after a hearing in open court
to determine whether the requirements of this section have been met…” 18 Pa. C.S.
§ 6105.1. Essentially, Appellant is requesting this Court to address the merits of his
application filed with, and denied by, the trial court.

                By the terms of 18 Pa. C.S. § 6105, individuals who have been
convicted of enumerated offenses and individuals under other forms of disability are

       1
           18 Pa. C.S. § 6109(e).

       2
          Our standard of review of a decision of a trial court is limited to a determination of
whether the trial court abused its discretion, whether it committed an error of law, or whether
constitutional rights were violated. Azzarrelli v. City of Scranton, 655 A.2d 648 (Pa. Cmwlth.
1995).



                                               2
prohibited from possessing firearms.                A disqualified individual may make
application to the court of common pleas for relief from the disability imposed by
Section 6105. Specifically, as it relates to this case, under Subsection 6105(d)(3)(ii),
the court shall grant relief if the following condition3 is met: a period of ten years,
not including any time spent in incarceration, has elapsed since the most recent
conviction of the applicant of a crime enumerated in subsection (b), a felony
violation of The Controlled Substance, Drug, Device and Cosmetic Act4 or the
offense which resulted in the prohibition under 18 U.S.C. § 922(g)(9). 18 Pa. C.S.
§ 6105(d)(3)(ii).
                Upon receipt of Appellant's petition, the trial court scheduled a hearing.
On the date set for that hearing, Appellant failed to appear. The complete transcript
from that proceeding is as follows:

                THE COURT: Matter of Marvase Spell. What is this?

                MS. DIGIOVANNI [DEPUTY DISTRICT ATTORNEY]: Your
                Honor, Mr. Spell has a lengthy criminal record which prohibits
                him from having a firearm; and he has made a petition to the
                Court to have that prohibition lifted. Both the Allegheny County
                Sheriff and the Allegheny County District Attorney were here to
                oppose Mr. Spell's petition; but given that he scheduled it and
                failed to appear, I would ask the Court to deny it.

                THE COURT: It is denied. You can sort through that and figure
                out which orders you want me to sign.

       3
          Subsection 6105(d)(3) imposes an additional condition whereby the Secretary of the
Treasury of the United States must relieve the applicant of an applicable disability. However, the
court may waive this condition if it determines the Congress of the United States has not
appropriated sufficient funds to enable the Secretary of the Treasury to grant relief to applicants
eligible for the relief.

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

                                                3
                MS. DIGIOVANNI: Thank you, your Honor.
Trial Court Hearing, 6/28/16, Notes of Testimony at 1.5

                When reviewing matters in its appellate capacity, this Court is bound
by the facts certified in the record on appeal. Cambria County Mental Health/Mental
Retardation v. State Civil Service Commission, 756 A.2d 103, 106 n. 6 (Pa. Cmwlth.
2000). As a reviewing court, we cannot engage in the fact-finding required under
18 Pa. C.S. § 6105. “[This] Court is an appellate body and is not empowered to
conduct a new trial based on issues that were not raised below. To do so would not
only exceed our authority, but it would also prejudice opposing parties.” Busch v.
Department of Transportation, Bureau of Driver Licensing, 900 A.2d 992, 996 (Pa.
Cmwlth. 2006). “An appellate court does not sit to review questions that were
neither raised, tried, nor considered in the trial court.”                      Department of
Transportation, Bureau of Driver Licensing v. Boros, 620 A.2d 1139, 1143 (Pa.
Cmwlth. 1993).
                Here, Appellant failed to appear and thus failed to make a factual record
adequate for purposes of appellate review. As noted in the trial court's opinion of
March 14, 2017:

                Appellant failed to specifically or clearly state in his initial
                motion why he was entitled to have his firearms rights restored.
                Appellant has not provided the criminal information for the
                disabling offense(s) which, allegedly, originally resulted in the
                loss of Appellant's firearm rights. Furthermore, Appellant has
                failed to establish, with any particularity whatsoever, why he is
                entitled to have his firearm rights restored or how he has met the
                requirements for such restoration. Without this information, and

      5
          Appellant did not seek reconsideration of the trial court’s denial.

                                                  4
             with Appellant's failure to appear at his own scheduled hearing,
             the Motions Court could not address Appellant's motion, and
             thus it did not err in denying the motion.
Trial Court Opinion, 3/14/17 at 4-5.

             As this Court stated in Spell I, "upon application and hearing, the court
of common pleas ... shall grant such relief from the disability if it determines that the
applicant meets the criteria." Spell I, slip op. at 2, 2015 WL 7356222. On this record,
the court of common pleas was precluded from making such a determination and
thus precluded from granting the requested relief. Finding no error in its decision,
we affirm.




                                         ___________________________
                                         JOSEPH M. COSGROVE, Judge




                                           5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania          :
                                      :
            v.                        :
                                      :
Marvase J. Spell,                     :   No. 1720 C.D. 2016
                    Appellant         :


                                 ORDER


            AND NOW, this 9th day of November, 2017, the order of the Court of
Common Pleas of Allegheny County is affirmed.




                                   ___________________________
                                   JOSEPH M. COSGROVE, Judge
