IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania :

:

 v. : No. 748 C.D. 2021

: ARGUED: October 11, 2022

Kenneth L. Trainer, Jr., :

Appellant :

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: November 17, 2022

This case raises the novel question of whether a trial court may resolve 

a motion for return of property under Pennsylvania Rule of Criminal Procedure 588,

where there is no evidence presented by the Commonwealth, if it orders sale of the

property and return of the cash proceeds to the owner. It cannot. As such, we reverse

the order of the trial court and remand with directions to enter an order directing the

return of the property.

1

Appellant, Kenneth L. Trainer, Jr., appeals from the order of the Court 

of Common Pleas of Allegheny County directing that a pistol owned by him be 

transferred from the possession of the Pittsburgh Police Department to the 

1 The Commonwealth Court generally maintains jurisdiction over appeals from civil forfeiture 

decisions. See Section 762 of the Judicial Code, 42 Pa.C.S. § 762; Commonwealth v. Irland, 193 

A.3d 370, 372 n.4 (Pa. 2018). Although, unlike Irland, no formal forfeiture proceeding has been 

instituted, and the Commonwealth denies that it is seeking forfeiture, our jurisdiction over appeals 

from adjudications of petitions for return of property is clear and is not here questioned.
2

possession of a licensed gun dealer “to be sold at fair market value.” Order, 

Commonwealth v. Trainer (Allegheny C.C.P., Crim. Div., MD No. 1354-2021, filed 

June 8, 2021). The trial court continued, “[a]fter retaining a standard commission, 

proceeds are to be remitted to [Appellant].” (Id.)

The record in this case is sparse. The motion for return of property, 

brought under Pennsylvania Rule of Criminal Procedure 588 and filed April 21, 

2021, avers that Appellant was the subject of an “unsupported” criminal complaint 

arising from an allegation of domestic assault on November 4, 2020. (Mot., 

Reproduced Record “R.R.” at 2.) As a result of these allegations, the police took

one Glock 22, .40 caliber semi-automatic pistol bearing serial number BHPB204, 

that the Commonwealth has stipulated Appellant owns (see Hr’g Tr. at 4, R.R. at 

11). On April 6, 2021, the underlying criminal charges were withdrawn in Pittsburgh 

Municipal Court. After the withdrawal of the charges, the police retained possession 

of the pistol and Appellant filed his motion for return of property.

The trial court held a telephonic hearing on the matter on June 8, 2021. 

The Commonwealth objected to the return and made various allegations concerning 

Appellant’s conduct underlying the seizure of the gun and prior conduct. 

Specifically, the Commonwealth alleged that the underlying facts leading to the 

withdrawn charges were that Appellant had brandished the pistol and threatened to 

kill his girlfriend and that this was Appellant’s third arrest for simple assault (each 

of which the Commonwealth acknowledged were withdrawn or nolle prossed). This 

being the case, the Commonwealth stated that it “cannot in good conscious [sic] 

agree to the return” of the pistol. (Id. at 2-3, R.R. at 9-10.) Appellant argued that 

with the stipulation of his ownership of the pistol, the burden shifted to the 
3

Commonwealth to show that the pistol was contraband and that there was no 

evidence to that effect. (Id. at 5, R.R. at 12.)

During the hearing, the trial court stated as follows:

Under [Pennsylvania Rule of Criminal Procedure] 588 . . 

. the Commonwealth is required to return the gun if, in 

fact, that [sic] he legally owns it and he has not been 

convicted of a crime, rather than request that the Court 

order it sold and proceeds returned. When the 

Commonwealth has submitted evidence of three incidents 

involving him brandishing the firearm, the last one, at his 

girlfriend, where he allegedly made threats to kill her, even 

when those cases are nolle prossed, because it does seem 

to me that the Sheriff’s Department would have the right 

to deny him a conceal [sic] carry permit under those 

circumstances.

[Id. at 5-6, R.R. at 12-13 (emphasis supplied)]. Counsel for Appellant argued that 

the issue of a concealed carry permit was separate from his right to the return of the 

pistol, to which the trial court replied:

No, I understand that. What I’m saying, though, is if the 

Sheriff’s Department has the authority to do that, would 

the Court also have the authority, where there are 

allegations concerning enough that he is not a responsible 

gun owner, to require that a gun that he legally purchased 

be sold and the proceeds returned[?]

(Id. at 6, R.R. at 13.) The Commonwealth noted that the conversion of firearms to 

cash and return of cash, instead of the firearms, to the owners is “done on a daily 

basis in the Court of Common Pleas of Allegheny County under such 

circumstances.” (Id.)

2

 The trial court agreed that the Court of Common Pleas of 

Allegheny County “does this routinely” and agreed to sign an order to sell the pistol 

2 The circumstances under which this procedure is invoked are not further described in the 

record, but such clarification is not relevant to our disposition here.
4

and return the proceeds. (Id. at 7, R.R. at 14.) Appellant then stated his intention to 

pursue an appeal and the trial court agreed to stay its order pending the appeal. In 

an opinion filed under Pennsylvania Rule of Appellate Procedure 1925(a), the trial 

court determined that the pistol was derivative contraband and affirmed its order.

On appeal, Appellant presents one question: whether the trial court 

erred by denying his motion for return of property where the Commonwealth 

produced no evidence to show that Appellant’s firearm was derivative contraband. 

The Commonwealth presents a counterstatement of the question presented: whether 

the trial court permissibly ordered the sale of the pistol, with the proceeds to be 

remitted to him, in lieu of returning the pistol itself.3 Under either phrasing, we 

believe the order of the trial court was clearly erroneous.

Rule 588 provides in relevant 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. Such motion 

shall be filed in the court of common pleas for the 

judicial district in which the property was seized.

3 Appellant, in his Concise Statement of Errors Complained of on Appeal under Pennsylvania 

Rule of Appellate Procedure 1925(b) (Appellant Br. at Ex. B), raised two constitutional questions. 

The first pertained to takings under article I, section 10 of the Pennsylvania Constitution, with 

regard to the “transfer-sell-then-pay” nature of the trial court’s order as violating the prohibition 

against “private property be[ing] taken . . . without authority of law and without just compensation 

being first made or secured,” Pa. Const., art. I, § 10. The second pertained to the order’s deduction 

of a “standard commission” for the sale of the pistol violating Appellant’s right to “just 

compensation” under both the federal and state constitutions. Because they were not raised at the 

hearing, the trial court deemed these issues waived. (Trial Ct. Op. at 2-3.) Despite reservations 

about whether there was actually a previous opportunity to raise these issues, Appellant abandoned 

them on appeal in favor of pursuing the question not raising a constitutional dimension. (Appellant 

Br. at 7 n.1.) At all events, where a case can be resolved on other grounds, we should not reach 

constitutional issues. Ballou v. State Ethics Comm’n, 436 A.2d 186 (Pa. 1981).
5

(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(A)-(B) (emphasis supplied). Under this rule, on any motion for 

return of property, the moving party must establish by a preponderance of the 

evidence entitlement to lawful possession. Commonwealth v. Mosley, 702 A.2d 857, 

859 (Pa. 1997). 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.

Singleton v. Johnson, 929 A.2d 1224, 1227 (Pa. Cmwlth. 2007). If the 

Commonwealth seeks to defeat the claim, it bears the burden to prove, by a 

preponderance of the evidence, that the items are either “contraband per se” or 

“derivative contraband,” and therefore should not be returned to the moving party. 

Commonwealth v. Crespo, 884 A.2d 960, 961 n.4 (Pa. Cmwlth. 2005). Clearly, the 

pistol is not contraband per se because its possession, in itself, is not illegal. See

Commonwealth v. Howard, 713 A.2d 89, 92 (Pa. 1998) [quoting Commonwealth v. 

Fassnacht, 359 A.2d 800, 802 (Pa. Super. 1977)]. To meet its burden to prove that 

an item is derivative contraband, the Commonwealth must establish a specific nexus 

between the property and criminal activity. Commonwealth v. Howard, 713 A.2d 

89, 92 (Pa. 1998). In this case, the trial court concluded, and the Commonwealth

argues, that the pistol is derivative contraband because it has been “used in the 

perpetration of unlawful acts.” Id.

In this case, the trial court erred by not requiring any evidence, first 

because that is a mandatory requirement under both Rule 588(B) (“[t]he judge 

hearing such motion shall receive evidence on any issue of fact necessary to the 
6

decision thereon”), Pa. R. Crim. P. 588(B) (emphasis supplied), and because case 

law requires the demonstration by a preponderance of evidence of a nexus between 

criminal activity and the property. Of course, these are no more than specific 

directives in accordance with the general principle that any adjudication that 

involves resolution of disputed facts must be based on competent evidence. The trial 

court accepted the prosecutor’s allegations of Appellant’s criminal activity, rather 

than requiring evidentiary proof, despite the explicit acknowledgment by the 

Commonwealth that all criminal charges against Appellant were withdrawn or nolle 

prossed. The trial court correctly noted that “[e]ven where there is an acquittal, 

derivative contraband may be subject to forfeiture.” (Trial Ct. Op. at 4). 

Nonetheless, the trial court’s citation to cases stating that a conviction is not required 

to support a finding that property is derivative contraband is beside the point—the 

issue here is a lack of evidence, not the lack of a conviction. “Generally, an 

attorney’s statement in an argument does not constitute evidence.” Sch. Dist. of 

Phila. v. Bd. Revision of Taxes, 217 A.3d 472, 485 (Pa. Cmwlth. 2019) [citing E. 

Norriton Twp. v. Gill Quarries, Inc., 604 A.2d 763, 766 n.9 (Pa. Cmwlth. 1992)

(“[S]elf-serving, unsubstantiated and unsworn statements by counsel are not 

competent evidence.”)]. We have carefully reviewed the original record and found 

nothing other than the prosecutor’s statements to support the trial court’s finding.4

4 The Commonwealth also relies on Section 5806 of the Judicial Code, 42 Pa.C.S. § 5806

(relating to motion for return of property), which provides: 

Contents of motion.--A motion under this section shall:

. . . .

(3) Identify the relief sought, which may include:

(i) Return of the petitioner’s property.

(Footnote continued on next page...)
7

We understand the public safety concerns of the Commonwealth and 

the trial court about the gravity and number of offenses alleged to have been 

committed by Appellant but in the absence of evidence, a motion for return of 

property must be granted and the seized property must be returned. Accordingly, 

we reverse the trial court’s order and remand with directions to issue an order

compelling the Pittsburgh Police Department to return the pistol to Appellant.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita

(ii) Reimbursement for the petitioner’s legal interest in the 

property.

(iii) Severance of the petitioner’s property from the forfeited 

property.

(iv) Any relief the court deems appropriate and just.

42 Pa.C.S. § 5806(b)(3). We need not consider whether the type of relief ordered here might be 

appropriate in other circumstances not present in this case. Suffice it to say that, in all cases, in the 

absence of competent evidence justifying a different result, the property must be returned.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania :

:

 v. : No. 748 C.D. 2021

:

Kenneth L. Trainer, Jr., :

Appellant :

O R D E R

AND NOW, this 17th day of November, 2022, the Order of the Court 

of Common Pleas of Allegheny County is REVERSED and this matter is 

REMANDED. The Court of Common Pleas of Allegheny County is directed to 

issue an order to the Pittsburgh Police Department returning the Glock 22, .40 caliber 

semi-automatic pistol bearing serial number BHPB204 to Kenneth L. Trainer, Jr., 

WITHIN 30 DAYS OF THE DATE OF THIS ORDER.

Jurisdiction is relinquished.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita