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Former Masontown police officer held for trial on theft, illegal possession charges

| Saturday, June 27, 2015, 12:01 a.m.

A former part-time Masontown police officer was held for trial on charges of theft and illegal possession of sawed-off shotguns, despite his attorney's contention that one of the guns did not belong to anyone because it was locked away for 25 years as evidence.

A visiting district judge from Somerset County, Arthur Cook, ordered Robert Lee Kelly Jr., 33, held for trial on Friday after a preliminary hearing on charges of theft, receiving stolen property and four counts of illegally possessing four sawed-off shotguns with altered serial numbers.

State police filed the charges when Uniontown police confiscated three of the weapons in September 2013. Detective Donald Gmitter of Uniontown police said the weapons were taken because they were in plain view when they responded to the domestic dispute on Union Street involving Kelly and Angela Shultz.

Gmitter testified Kelly was not at the house when the three shotguns and several handguns were taken, but he acknowledged ownership of them during a Sept. 24 interview at the police station.

Masontown police Chief Joseph Ryan testified he discovered the fourth shotgun was missing from his department's evidence locker when he conducted an inventory following the domestic incident involving Ryan.

Ryan testified the sawed-off shotgun was confiscated during a 1990 traffic stop and placed into the evidence locker. He said Kelly initially denied knowledge of the missing shotgun but called a few days later to set up a meeting to return it to the chief.

The shotgun was never returned to its owner because it was illegal, Ryan testified. In addition, with the serial number missing, its ownership could not be determined.

Trooper Patrick Nied, a state police criminal investigator with the Organized Crime Unit in Pittsburgh, testified a video found on Shultz's cellphone shows Kelly firing the sawed-off shotgun that was taken from Masontown police.

Nied testified state law requires shotgun barrels to be at least 18 inches long. The four sawed-off guns had lengths between 10 116 inches and 13 116 inches, he testified. Three of the weapons were 12-gauge shotguns, he testified, and the fourth was a 20-gauge.

Kelly's attorney, Sam Davis of Uniontown, wanted the theft charge involving the Masontown shotgun to be dismissed. He said the weapon was abandoned property because the owner never claimed it. Just because police had the shotgun in their possession didn't make them its owner, he argued.

Davis cited a 1982 case in which a court dismissed a larceny charge against a Bucks County police officer who was charged for keeping in evidence a pistol that was turned over by the father of a suicide victim. The court, he said, found the gun could not have been stolen because its owner never claimed it, making it abandoned property.

“Get rid of this case,” Davis argued. “It's settled law that abandoned property cannot be the subject of larceny.”

Patrick Schulte, deputy attorney general, argued it would be “absurd” to consider a weapon or any other item held in police custody as abandoned property. If so, police everywhere could be found not to have lawful control of various illegal confiscated items, including illicit drugs, he said.

He said the shotgun was not abandoned because it was in the custody and control of police, who could not legally return it to anyone or destroy it without a court order.

Cook sided with Schulte in finding that police had control of the weapon, as far as for purposes of supporting the theft charge.

“They were far from being abandoned,” Cook said. “They were in (police) custody, the same as with drugs.”

Kelly, who is free on bond, declined to comment after the hearing. Davis described him as “an outstanding police officer” who “did a good job.”

Kelly was fired from his police post in Masontown in 2014 for conduct unbecoming an officer, according to records. Borough officials never disclosed the details of his firing.

Shultz in 2014 filed a federal lawsuit alleging Fayette County Court Administrator Karen Kuhn and Assistant Court Administrator Tammy Lambie violated her civil rights when they fired her as a magistrate's secretary because of her association with Kelly.

The case was marked as settled and closed in February, but details regarding the settlement were not disclosed in court filings.

Liz Zemba is a staff writer for Trib Total Media. She can be reached at 412-601-2166 or lzemba@tribweb.co m.

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