Opinion
J-S44035-18 No. 700 EDA 2018
11-20-2018
COMMONWEALTH OF PENNSYLVANIA v. JUSTIN BAATZ, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered February 1, 2018 in the Court of Common Pleas of Lehigh County, Criminal Division at No(s): CP-39-MD-0002886-2017 BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
Justin Baatz ("Baatz") appeals, pro se, from the Order denying his Petition for return of property filed pursuant to Pennsylvania Rule of Criminal Procedure 588. We affirm.
On August 26, 2017, Baatz shot and killed Alberto Montanez ("Montanez") with a nine-millimeter handgun. Police seized the gun as part of their investigation. Police subsequently determined that Baatz had shot Montanez in self-defense, and decided to not file charges. However, police retained possession of the handgun.
On November 6, 2017, Baatz filed the instant pro se Petition for the return of the gun. Following a hearing, the trial court denied Baatz's Petition. Baatz filed a timely Notice of Appeal and court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
On appeal, Baatz raises the following claim for our review: "Whether the trial court abused its discretion in denying [Baatz] the [r]eturn of his [p]roperty?"
"Our review of a trial court's decision on a petition for return of property is limited to examining whether the findings of fact were supported by competent evidence and whether the trial court abused its discretion or committed legal error." Commonwealth v. Janda , 14 A.3d 147, 167 (Pa. Super. 2011).
Baatz alleges that the Commonwealth failed to meet its burden of proving that the gun was contraband. Brief for Appellant at 8-9. Baatz argues that the gun is not contraband, because he was legally permitted to possess the gun, and the gun is not derivative contraband, because it was not used in the perpetration of an illegal act. Id. at 9-10. Baatz claims that self-defense is not an act that can label the gun as derivative contraband. Id. at 9. According to Baatz, the Commonwealth cannot retain the seized property solely because the trial court believes that the property could be used for future unlawful conduct. Id. at 10.
Pennsylvania Rule of Criminal Procedure 588 states, in part, as follows:
(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. ...
(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.
Under this rule, ... the moving party must establish[,] by a preponderance of the evidence[,] entitlement to lawful possession. Once that is established, unless there is countervailing evidence to defeat the claim, the moving party is entitled to the return of the identified property. A claim for return of property can be defeated in two ways: an opposing party can establish that it, not the moving party, is entitled to lawful possession to the property[,] or the Commonwealth can seek forfeiture[,] claiming that property for which return is sought is derivative contraband. To meet its burden to defeat the motion for return of property, the Commonwealth must make out more than simply demonstrating that the property was in the possession of someone who has engaged in criminal conduct. It must establish a specific nexus between the property and the criminal activity.Commonwealth v. Durham , 9 A.3d 641, 645-46 (Pa. Super. 2010) (citation omitted); see also Janda , 14 A.3d at 166-67 (stating that "[t]he movant bears the initial burden of coming forth with evidence of lawful entitlement to possession of the property. If the movant meets this initial burden, the Commonwealth bears the burden of proving by a preponderance of the evidence that the items in question are contraband.").
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Derivative contraband is property which is innocent in itself but which has been used in the perpetration of an unlawful act. Property is not derivative contraband, however, merely because it is owned or used by someone who has been engaged in criminal conduct. Rather, the Commonwealth must establish a specific nexus between the property and the alleged criminal activity.
In order for the petitioner to meet his burden of proof, he must provide credible evidence that (1) he is the owner of the property, and (2) he may lawfully possess the property. See In re Firearms , Eleven , 922 A.2d 906, 912 (Pa. Super. 2007) (stating that petitioner must "make a preliminary showing that the property belongs to him" and that he is legally permitted to possess the property). "Where the trial court is not provided with credible evidence as to ownership or entitlement, a motion for return of [property] should not be granted." Id.
Here, Baatz alleged in his Petition that the handgun is his "exclusive and lawful property." See Petition, 11/6/17, at ¶ 7. However, Baatz did not present any evidence indicating that he was the owner of the handgun, or that he could lawfully possess the handgun. Baatz did not testify, or attempt to submit his Petition as evidence. Thus, Baatz failed to meet his preliminary burden of proof. See Commonwealth v. Pomerantz , 573 A.2d 1149, 1150 (Pa. Super. 1989) (stating that the petitioner fails to sustain his burden where the petitioner does not testify at the hearing, his "only claim to possession [is] an averment in the petition" that he is entitled to lawful possession of the property, and the petition was not submitted into evidence); see also In re Firearms , Eleven , supra. Accordingly, we conclude that the trial court did not err or abuse its discretion in denying Baatz's Petition.
We note that testimony was presented by the Commonwealth that Baatz lacked any criminal convictions that would disqualify him from possessing a firearm. See N.T., 2/1/18, at 3. Regardless, no evidence was presented regarding the legal ownership of the handgun. --------
Order affirmed.
Judge Murray joins the memorandum.
Judge Lazarus files a dissenting memorandum. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/20/18