March 17, 2011
COMMONWEALTH OF PENNSYLVANIA
ASSORTED CONSUMER FIREWORKS AND ONE (1) HEWLETT-PACKARD TOWER COMPUTER AND
COMMONWEALTH OF PENNSYLVANIA
BRUCE W. NILES, APPELLANT
Submitted: November 24, 2010
Bruce W. Niles, pro se, appeals an order of the Court of Common Pleas of the 37th Judicial District of Pennsylvania, Warren County Branch (trial court), ordering the forfeiture of consumer grade fireworks and a computer. The forfeiture resulted from Niles' offer to sell fireworks without a license, which violated the act herein called the Fireworks Act, Act of May 15, 1939, P.L. 134, as amended, 35 P.S. §§1271-1278. The trial court ordered the seized items forfeited as derivative contraband. Discerning no error in that order, we will affirm.
Niles is the owner of Niles Fireworks, a fireworks store he operates out of a barn on his property in Farmington Township, Warren County. The Pennsylvania State Police investigated Niles' retail operation when it learned that he was selling consumer grade fireworks, which are those used in public displays.*fn1
The sale of consumer grade fireworks requires a license, and Niles was not licensed.
Trooper Eric Rogers visited Niles' store and observed numerous fireworks displayed on tables with prices next to each item; additional stock was stored under the tables. Rogers asked Niles about purchasing fireworks for a neighborhood get-together and was told by Niles that he could put together a "nice display" for $500. See Notes of Testimony, 3/26/10 at 61 (N.T. ___) Niles proceeded to show Rogers the consumer grade fireworks that were available for sale, so long as Rogers provided him with out-of-state identification. When Rogers stated that he was a resident of New York but did not have identification, Niles declined to make the sale.
Based upon Rogers' report, the State Police obtained a search warrant. On June 28, 2007, the state police executed the warrant, accompanied by Kenneth Shelhamer from the Department of Agriculture, who advised the police about which fireworks should be confiscated. The police seized over 299 items, including fireworks, customer lists, brochures, a cash-register, and a HewlettPackard computer. The computer contained price lists dated February 5, April 18, and May 16, 2007, as well as promotional materials.
Niles was charged, criminally, with violating Section 4.3 of the Fireworks Act, which prohibits the sale of "consumer fireworks" without a license. 35 P.S. §1275.3.*fn2 In his defense, Niles argued that he did not need a license because he did not sell fireworks to Pennsylvania residents.*fn3 Notwithstanding this defense, Niles was convicted; he was sentenced to one year probation and ordered to pay costs and restitution in the amount of $1,570. Certified Record at 120 (C.R. ___). Niles appealed, and the Superior Court affirmed his conviction. Commonwealth v. Niles, (Pa. Super., No. 1681 WDA 2008, filed December 30, 2009). The Supreme Court denied his petition for allowance of appeal. Commonwealth v. Niles, (Pa., No. 48 WAL 2010, filed July 20, 2010).
While Niles' petition for allowance of appeal to the Supreme Court was pending, the Commonwealth filed a petition for forfeiture of the fireworks and computer that were seized during the search of Niles' business in June 2007. In his answer, Niles argued, inter alia, that the Commonwealth's criminal charges were unfounded and that it was improper for the Commonwealth to proceed with the forfeiture action until he had exhausted his criminal appeals.*fn4
The trial court conducted a forfeiture hearing on March 26, 2010. The Commonwealth called three witnesses: Trooper Edward Dorunda, Trooper Eric Rogers and Kenneth Shelhamer. All three of the Commonwealth's witnesses testified that Niles Fireworks was a retail outlet for the sale of consumer grade fireworks. Specifically, the witnesses stated that in the barn they found a cash register,*fn5 a photo copier, brochures and other promotional material and fireworks displayed on shelves with prices. Dorunda and Shelhamer testified that Niles Fireworks had been advertising online and on billboards in Warren County for some time.
Shelhamer also testified about his prior discussions with Niles. He explained that he had repeatedly advised Niles prior to his arrest that he needed a license to sell consumer fireworks. Each time, Niles responded that he did not need a license because he was selling fireworks only to out-of-state residents, and each time Shelhamer told Niles that he needed a license, regardless of where the buyer lived. Shelhamer acknowledged that the Act does not require a license to sell "novelties" like sparklers, smoke bombs and ground-based items. However, he explained that a license is needed to sell larger "consumer fireworks" like mortars and roman candles. Shelhamer testified that he confiscated consumer fireworks found on Niles' property and left behind the novelty items.*fn6
The trial court granted the Commonwealth's petition and ordered the forfeiture of the fireworks and computer. The trial court held that the fireworks were properly seized as derivative contraband since they were offered for sale without a license in violation of the Fireworks Act. The trial court also found a sufficient nexus between Niles' illegal acts and the computer. Niles now appeals to this Court.*fn7
On appeal, Niles raises three issues. First, Niles argues that the trial court erred by not addressing the issues from his criminal trial that he believes are unresolved. Second, Niles contends that it was improper for the trial court to conduct forfeiture proceedings while his appeal of the criminal conviction was still pending. Third, Niles asserts that the Commonwealth did not prove that he made any actual sales, to Rogers or others, of fireworks and, thus, did not prove a violation of the Fireworks Act.
We begin with Niles' argument that the trial court was required to address issues from his criminal trial that he believed were unresolved.*fn8 This argument lacks merit. In conducting the civil forfeiture proceeding the trial court lacked jurisdiction to decide anything relating to Niles' criminal proceeding. The time for Niles to raise those issues was in his direct appeal to the Superior Court, or in a petition under the Post Conviction Relief Act, 42 Pa. C.S. §§9541-9546.
Indeed, Niles did raise these contentions, and they were rejected.*fn9 In short, the trial court properly declined to consider issues relating to Niles' criminal trial in the course of the forfeiture proceeding.
Next, Niles contends that it was improper for the trial court to conduct a forfeiture proceeding while his criminal appeal was pending. Niles is wrong. Forfeiture is a civil consequence of violating a criminal statute. Commonwealth v. 542 Ontario Street, Bethlehem, Pa., 989 A.2d 411, 417 (Pa. Cmwlth. 2010). As such, property is forfeited not as a result of a criminal conviction but in a separate civil proceeding. There are two classifications of contraband subject to forfeiture: contraband per se and derivative contraband. Contraband per se is property the mere possession of which is prohibited, such as heroin. Derivative contraband is property innocent by itself, but used in the perpetration of an unlawful act, such as a truck used to transport illicit goods. Commonwealth v. Fassnacht, 369 A.2d 800, 802 (Pa. Super. 1977) (citations omitted). In a civil forfeiture proceeding the Commonwealth's burden of proof is by a preponderance of the evidence.*fn10 542
Ontario Street, 989 A.2d at 417. In sum, there need not be a criminal conviction in order to sustain a forfeiture, and Niles' effort to link the forfeiture proceeding to his criminal appeal lacks merit.
Finally, Niles argues that the Commonwealth did not satisfy its burden of proof because it did not produce any evidence of a sale of consumer fireworks. Niles also contends that the trial court did not understand the difference between legal and illegal fireworks.
Section 4.3 of the Fireworks Act provides that "consumer fireworks" may be sold only from facilities licensed by the Department of Agriculture. 35 P.S. §1275.3. The Fireworks Act establishes numerous standards for the licensing and operation of one selling consumer fireworks. See Sections 4.3 and 4.5 of the Fireworks Act, 35 P.S. §§1275.3, 1275.5.*fn11 The Fireworks Act does not excuse retailers who sell consumer fireworks to out-of-state residents from the licensing requirement. Section 4 of the Act states that licensed facilities may sell consumer fireworks year-round to out-of-state residents, if they meet certain recordkeeping requirements. Section 4 of the Fireworks Act, 35 P.S. §1275.*fn12 Significantly, Section 7.1 of the Fireworks Act authorizes law enforcement personnel to confiscate consumer fireworks "offered or exposed for sale, stored or held in violation of this act." 35 P.S. §1278 (emphasis added).*fn13 The operative act is having fireworks "offered" or "exposed" for sale, without regard to the residency of the buyer or whether an actual sale is made.
In a civil forfeiture proceeding the Commonwealth must establish by a preponderance of the evidence a nexus between the property seized and illegal activity. As such, the Commonwealth had to show that it was more likely than not that Niles was selling consumer fireworks without a license. The Commonwealth was not required to prove that Niles actually made a sale to Rogers. Niles' offer to sell was sufficient, and Rogers credibly testified that such an offer was made. The Commonwealth also introduced evidence that Niles was conducting a retail sales operation, including testimony that the consumer grade fireworks on display had prices affixed and that a cash register and promotional materials were present. Thus, the Commonwealth established a nexus between the illegal act, i.e., selling consumer fireworks without a license, and the property seized, consumer fireworks. Under the express wording of the Fireworks Act, a license is required to sell consumer fireworks, regardless of whether they are being sold to Pennsylvania or out-of-state residents, if the sale closes in Pennsylvania. Because Niles was selling consumer fireworks without a license, those fireworks were properly forfeited as derivative contraband.
The trial court also properly ordered the forfeiture of Niles' computer. The uncontradicted testimony of the Commonwealth's witnesses established that the computer contained price lists for the consumer fireworks that were created only months before the State Police executed the search warrant. The computer also contained promotional materials for Niles' fireworks business. Thus, the trial court was correct in holding the Commonwealth established the requisite nexus between the computer and the illegal sale of consumer fireworks.
For these reasons, the order of the trial court is affirmed.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania : : v. : : Assorted Consumer Fireworks and : One (1) Hewlett-Packard Tower : Computer and Commonwealth of : Pennsylvania : : v. : Bruce W. Niles, : Appellant
No. 737 C.D. 2010
AND NOW, this 17th day of March, 2011, the order of the Court of Common Pleas of the 37th Judicial District of Pennsylvania, Warren County Branch, dated March 29, 2010, in the above-captioned matter is hereby