September 7, 2012
COMMONWEALTH OF PENNSYLVANIA
JOHN MORELLI, APPELLANT
The opinion of the court was delivered by: James Gardner Colins, Senior Judge
Submitted: July 20, 2012
BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
SENIOR JUDGE COLINS
This matter is an appeal from an order of the Court of Common Pleas of
Lackawanna County (the trial court) denying a motion for return of
property. John Morelli (Morelli) pleaded guilty in 2006 to
Manufacture, Delivery or Possession of a Controlled Substance with
Intent to Manufacture or Deliver in violation of Section 13(a)(30) of
the Controlled Substance, Drug, Device and Cosmetic Act (the
Controlled Substance Act).*fn1
Morelli now appeals from the trial court's denial of his
motion for return of guns seized by the police at the time of his
arrest. For the reasons set forth below, we affirm.
On May 20, 2006, officers of the Dickson City Police Department responded to a call of gunfire at Morelli's residence and searched his residence pursuant to an authorized search warrant. (Appellant's Br. at 9; Memorandum of Law in Support of Defendant's Motion for Return of Seized Property at 1.) In this search, the police seized from Morelli's residence marijuana plants, bags of marijuana, drug paraphernalia, 13 guns, boxes of ammunition and ammunition magazines, and other items, including a law enforcement badge and a ballistics vest. (Inventory of May 20, 2006 Search, Exhibit A to Memorandum of Law in Support of Defendant's Motion for Return of Seized Property.)
Morelli was arrested and charged with Manufacture, Delivery or Possession of a Controlled Substance with Intent to Manufacture or Deliver, four other violations of the Controlled Substance Act, and Reckless Endangerment. (Trial Court Criminal Docket at 2.) Morelli pleaded guilty to Manufacture, Delivery or Possession of a Controlled Substance with Intent to Manufacture or Deliver on September 7, 2006, and was sentenced to 24 months of probation on January 23, 2007. (Trial Court Criminal Docket at 3, 7.) During his probation, Morelli was ordered imprisoned over ten times for violation of the conditions of his probation. (Trial Court Criminal Docket at 8-9.)
In July 2011, over four years after his guilty plea and sentencing,
Morelli filed a motion for return of property pursuant to Rule of
Criminal Procedure 588, seeking return and transfer to his father of
six of the guns seized by the police from his residence in the May 20,
2006 search: a .223 AR-15 Bushmaster rifle, a P94 Ruger semi-automatic
pistol, a 12-gauge shotgun, a .380 Kalteck [sic], a GAMO PT-80
semi-automatic air pistol, and a .45 Springfield Armory handgun.
(Appellant's Br at 9-10; Trial Court Opinion at 2.)*fn2
On August 30, 2011, the Commonwealth filed an answer opposing return and
transfer and moving for forfeiture of these weapons under the act
commonly known as the Controlled Substances Forfeiture Act (the
Forfeiture Act).*fn3 (Commonwealth Answer to Motion
for Return of Property; Trial Court Opinion at 2.) The trial court
held a hearing on the motions for return of property and for
forfeiture at which counsel argued their motions, but no sworn
testimony was presented. (Transcript of September 2, 2011 Hearing
(H.T.)) Following that hearing, on September 6, 2011, Morelli filed a
memorandum of law in support of his motion for return of property,
submitting the police inventory of the May 20, 2006 search as an
accurate record of the seizure and items seized. (Memorandum of Law in
Support of Defendant's Motion for Return of Seized Property at 1 &
Exhibit A thereto.)
The trial court, in separate orders on November 2, 2011, denied both
Morelli's motion for return of property and the Commonwealth's motion
for forfeiture. (Trial Court Criminal Docket at 10; Trial Court Orders
of November 2, 2011.) The trial court held that the Commonwealth had
met its burden for forfeiture by showing that the guns were found in
close proximity to the marijuana that was seized and, therefore, could
be presumed to have facilitated a violation of the Controlled
Substance Act under Section 6801(a)(7) of the Forfeiture Act, 42 Pa.
C.S. § 6801(a)(7). (Trial Court Opinion at 2-4.) The trial court
concluded, however, that the Commonwealth's motion for forfeiture was
time-barred because it was not filed until 2011, five years after the
2006 seizure. (Trial Court Opinion at 4.) The trial court denied
Morelli's motion for return of property on the grounds that he was not
entitled to lawful possession of the guns because his conviction for
Manufacture, Delivery or Possession of a Controlled Substance with
Intent to Manufacture or Deliver barred him from possessing firearms.
(Trial Court Opinion at 6-7.) On November 21, 2011, Morelli appealed
the trial court's order denying his motion for return of property.
(Trial Court Criminal Docket at 10; Notice of Appeal.)*fn4
The Commonwealth did not appeal the denial of its motion for
Our review on this appeal is limited to examining whether the trial court's factual determinations were supported by competent evidence and whether the trial court abused its discretion or committed an error of law. Boniella v. Commonwealth, 958 A.2d 1069, 1072 n.6 (Pa. Cmwlth. 2008); Commonwealth v. Johnson, 931 A.2d 781, 783 n.2 (Pa. Cmwlth. 2007). Morelli argues that the trial court erred in denying his motion for return of property because he allegedly established that he was the owner of the six guns at issue and the Commonwealth allegedly did not show that the guns were contraband. He further contends that his conviction does not constitute grounds for denial of his motion because the guns were seized prior to that conviction and because he sought transfer of the guns to his father, rather than return of them to his possession. We conclude that these arguments are not valid.
On a motion for return of property, it is the movant's burden to establish by a preponderance of the evidence that he is entitled to lawful possession of the property at issue. Johnson, 931 A.2d at 783; Commonwealth v. Howard, 931 A.2d 129, 131-32 (Pa. Cmwlth. 2007). To satisfy this burden, Morelli was required to introduce evidence showing that he was the owner of guns or had a right to possession of the guns. Johnson, 931 A.2d at 784; Commonwealth v. Pomerantz, 573 A.2d 1149, 1152 (Pa. Super. 1989). No such evidence was introduced.
No document or evidence of any kind was introduced or submitted to the trial court showing that the guns that were seized belonged to Morelli or how they came to be at his residence at the time of the search. Morelli gave no testimony at the hearing under oath and provided no affidavit or verification in support of his motion for return of property. The only assertions in the trial court record that the guns were his are his attorney's statements at the hearing. (H.T. at 3.) Such unsworn allegations are insufficient to permit a court to order the return of seized property. Johnson, 931 A.2d at 784; Howard, 931 A.2d at 131-32. "At a minimum, our rules and case law mandate [movant] properly allege, under oath, lawful possession." Johnson, 931 A.2d at 784 (emphasis in original). Because Morelli failed to satisfy his minimal burden of showing some right to the property that he sought to have returned, the trial court's denial of his motion for return of property was correct and must be affirmed. Johnson, 931 A.2d at 784; Pomerantz, 573 A.2d at 1152.
Moreover, even if he had satisfied his threshold burden of showing his ownership or possession at the time of the seizure, the motion was properly denied because Morelli was not entitled to lawful possession of these guns. Where the person seeking return of property is barred by law from possessing that property because of a criminal conviction, he cannot show entitlement to lawful possession. Boniella, 958 A.2d at 1075. The Pennsylvania Uniform Firearms Act of 1995 (the Uniform Firearms Act) provides that any "person who has been convicted of an offense under [the Controlled Substance Act] . . . punishable by a term of imprisonment exceeding two years" is prohibited from possession, control or transfer of firearms. 18 Pa. C.S. §§ 6105(a)(1), (c)(2). Morelli's conviction for Manufacture, Delivery or Possession of a Controlled Substance with Intent to Manufacture or Deliver is a conviction of an offense under the Controlled Substance Act punishable by up to five years' imprisonment. Sections 13(a)(30),
(f)(2) of the Controlled Substance Act, 35 P.S. §§ 780-113(a)(30), (f)(2). Morelli is therefore prohibited by law from possessing the guns which are the subject of his motion for return of property. 18 Pa. C.S. §§ 6105(a)(1), (c)(2).
The fact that Morelli's conviction was subsequent to the seizure of the guns does not change this. In Boniella, as here, the conviction which precluded the return of the movant's gun occurred after the seizure of the gun and the gun was seized at the time of his arrest that led to the conviction. 958 A.2d at 1071. Commonwealth v. Younge, 667 A.2d 739 (Pa. Super. 1995), relied on by Morelli, is not to the contrary. In Younge, the court held that it was "improper to rely upon the criminal infractions which gave rise to the seizure, if not relevant to the issue of the right to lawful possession." 667 A.2d at 745 (emphasis added). A subsequent conviction that bars the movant from possessing a gun is relevant to whether he has a right to lawful possession of a gun and is therefore a proper ground for denying return of such property to him. Boniella, 958 A.2d at 1075.
Morelli is also not entitled to transfer of the guns to his father. Because he failed to show ownership or any other legal rights to the guns, Morelli has no right to these guns that he could transfer to any other person. Moreover, even if his conviction were the sole basis for denying return of the guns, he would be legally barred from transferring them. The Uniform Firearms Act provides that persons convicted of the offenses that bar them from gun ownership "shall not possess, use, control, sell, transfer or manufacture . a firearm in this Commonwealth." 18 Pa. C.S. § 6105(a)(1) (emphasis added).
Because Morelli was not prohibited from owning guns prior to his conviction for Manufacture, Delivery or Possession of a Controlled Substance with Intent to Manufacture or Deliver, under 18 Pa. C.S. § 6105(a)(2)(i), he did have the right and opportunity, following his conviction, to transfer guns that he owned, but that right to transfer expired sixty days after his conviction. The Uniform Firearms Act provides:
(2)(i) A person who is prohibited from possessing, using, controlling, selling, transferring or manufacturing a firearm . 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)(2)(i) (emphasis added). Morelli's disability from possession and transfer of firearms was imposed by his guilty plea on September 7, 2006. Morelli's right to transfer any guns that belonged to him before his conviction therefore expired in November 2006, years before he moved for return and transfer of these guns. Because Morelli's right to transfer firearms was time-barred long before he filed his motion for return and transfer of the guns to his father in July 2011, the trial court was correct in holding that his conviction alone was a valid ground for denying the motion for return of property.
For all of the foregoing reasons, we affirm the trial court's order of November 2, 2011 denying Morelli's motion for return of property.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Commonwealth of Pennsylvania : v. John Morelli, : Appellant :
No. 2385 C.D. 2011 :
AND NOW, this 7th day of September, 2012, the order of November 2, 2011 of the Court of Common Pleas of Lackawanna County denying appellant John Morelli's motion for return of property in the above captioned matter is AFFIRMED.
JAMES GARDNER COLINS, Senior Judge