Commonwealth v. Crosby

140

Finally, we find no merit to appellant’s assertion the by confession judgment opened should be he because did not receive notice of the judgment until he attempted to sell his fall of 1988. A petition open may be if granted only petitioner files his promptly petition. McKeesport Rosenthal, Nat. See Bank v. 355 Pa.Super. 291, (1986); 513 434 First Seneca Bank & Trust Co. v. A.2d Laurel Mountain Development Corp. 506 Pa. 439, (1984). A.2d 1086 Appellant claims he filed within 30 days receiving actual notice of the judgment, although this year was over a after entry of confession of judgment. This court has found a time lapse of nine months excessive in seeking to open. Cross v. 50th Ward Commu petition Co., Ambulance nity 74, Pa.Super. 528 A.2d 1369 (1987). In the instant case the record shows notice clearly judgment was sent to appellant by mail ordinary on the day same the prothonotary entered confession of judgment (Court Docket, 9/28/87). 2958(a), Under Pa.R.C.P. notice sent by ordinary mail is sufficient in these circumstances. Accordingly, appellant’s petition to open fails because it was untimely. reasons,

For all these we agree with the trial court’s decision and uphold thе confession of judgment.

Order affirmed.

568 A.2d 233 Pennsylvania COMMONWEALTH of v. CROSBY, Appellant.

Edwin R. Superior Pennsylvania. Court of 2,

Submitted Nov. 1988.

Filed Jan. 1990. Defender, Pittsburgh, for Jr., Corbett, Public H. John appellant. Pittsburgh, Dist. Atty., Asst. Streily, W.

Michael Com., appellee. MONTEMURO, JJ. BROSKY, and ROWLEY

Before ROWLEY, Judge: sentence, following of judgment from a appeal

This is an driving under counts to two guilty plea appellant’s of incarceration alcohol, period a imposed which influence condition of As a probation. by period a followed sponte appel- the trial court sua ordered that probation, time of the two driving at the truck, he was lant’s asserts Appellant forfeited. issue, incidents of a vehicle permitting authority is no there as a the influence driving crime involved argues also because Appellant of probation. condition sponte, sua were procedures no of forfeiture was order contra- derivative that the truck was to establish followed argues appellant Finally, court. the trial band, by as found in this the forfeiture authority for statutory nois that there can be there statutory authority, case, the absence in Pennsylvania. of derivative no forfeiture record, of the arguments of the consideration full Upon judg- affirm the we opinion, trial court’s and the parties, in part ment of sentence it in part, vacate remand proceedings. for further

I. FORFEITURE AS CONDITION OF PROBATION asserted,

The trial court and the Commonwealth argues, that appellant’s the forfeiture of as a truck condi probation 9754(c)(7) tion authorized Pa.C.S. § (13). regard With probation, 9754(b) an order of § provides:

(b) generally. Conditions court shall attach such —-The (c) reasonable conditions authorized by subsection of this as it section deems or necessary insure assist in leading defendant law-abiding life. (c) provides then Section as follows: (e) Specific court conditions.—-The may as condition of its require order the defendant:

(1) To meet his family responsibilities.

(2) To specific devote himself to a occupation or employment.

(2.1) participate To in a or public nonprofit communi- ty program service unless the defendant was convicted murder, rape, arson, aggravated assault, theft by threats, extortion, terroristic robbery kidnapping. (3) undergo To available medical or psychiatric treat- ment and enter and in specified institution, remain when required purpose.

(4) pursue prescribed To secular course оr study training. vocational

(5) To attend or in facility reside for the established instruction, recreation, or on persons pro- residence bation.

(6) To refrain from or frequenting disrepu- unlawful or places consorting persons. table with disreputable (7) possession To have no or firearm other his dangerous weapon granted permission. unless written

144 of his or to of the fruits crime

(8) To make restitution pay, he afford to in an amount can reparations, make damage thereby. or caused for the loss of the court and (9) jurisdiction remain within the To any probation court ‍​‌​‌‌‌​​​‌​‌​‌‌​​‌‌‌​​‌‌‌‌‌​‌‌​​‌​​‌‌​‌​​​​‌​​‌​‍or the officer notify employment. in his address or his change proba- directed to the court or the (10) To report officer visit permit probation and to tion officer his home. imposed. has

(11) such fine as been pay To and alcohol treatment (12) drug To participate programs. related reasonably other condition

(13) satisfy any To unduly and not of the defendant to the rehabilitation free- with his liberty incompatible his restrictive of dom of conscience. probation autho- specific conditions

These enumerated rеstric- classified as behavioral 9754 can all be rized § the manner in which relate to They or conditions. tions acting from or is directed is either restricted probationer probation conditions of authorized specific act. That (c)(7), condi- are behavioral 9754, including subsection § defendant, and are not tions, directed at rehabilitation Supreme Court. emphasized by has been punitive, Quinlan, 488 Pa. 255, 412 A.2d 494 v. Commonwealth (1980), the Court stated: on the variations are established probation

Parole and are primarily criminals and of convicted imprisonment restoration to a the rehabilitation concerned with or probationer. the parolee useful life of Common- 258, Similarly, at 496. Id., 488 Pa. at 412 A.2d (1979), Walton, A.2d Pa. v. wealth stated: Court significant restrictions though probation,

[Conditions effect- freedom, aimed at primarily are the offender’s on his imprisonment, alternative to a constructive ing, as as a society into law-abid- réintegration rehabilitation proper- traditionally citizen; courts therefore ing in fash- of discretion measure a broader invested with ly

145 ioning conditions of probation approрriate to the circum- stances of the individual case.

Id., 598, (footnote 483 Pa. omitted). A.2d at 1184

Not only probation are the conditions of authorized by 9754(c) directed toward the rehabilitation of a defendant’s § behavior, 9754(c)(8) but other than permitting an order of § restitution as a condition of probation, none of the specific conditions of probation authorized lawby pecuni- relates to 9754(c)(ll) matters. ary Although permits the court § probation fine, condition upon payment 9754(c)(ll) of a § imposing does not provide the authority fine; on 9754(c)(ll) the contrary, permits the condition of § has been payment a fine “as imposed.” None of the specific 9754(c) conditions in explicitly implicitly autho- § rize the deprivation economic as has been ordered in the present case. 9754(c)(7),

Section relied specifically upon Common- wealth, only authorizes of possession the restriction firearms or deadly weapons; it does permit accomplish possession restriction on of firearms. See Arthur, Commonwealth v. Pa.Super. 613, 559 A.2d 936 (1989). Therefore, too, solely relates to the behavioral conditions imposed on the defendant. 9754(c)(13),

Section also expressly relied by the Commonwealth, does not authorize the forfeiture as a con- probation dition of in this case. Subsection 13 enables a impose court any condition “reasonably related to the rehabilitation” of a defendant. Although in the present case trial court stated that the forfeiture was ordered to assist the rehabilitation defendant, the circum- stances of the order provide no foundation for such a conclusion. appellant’s Forfeiture of truck in no manner limits his ability purchase vehicle, or, another if he has already vehicle, access to another to drive that one. only thing The accomplished by the forfeiture is the seizure i.e., of valuable property, imposition of a fine “in kind.” The trial it, court had available to § means of effectively restricting the behavior of appellant by period, driving during probationary him from his

precluding assisting realistic manner rehabili- thereby a more imposed court no condi- appellant. of the The trial tation driving dur- of alcohol appellant’s consumption tions on the trial court’s directive probation despite of ing period safe alcohol evaluation and attend undergo appellant actually imposed under the conditions driving school. his the trial court regard probation, appellant on with truck, took no appellant’s but ordered the forfeiture probation an hour after was measure to ensure that even driving some other vehicle could not be imposed appellant facts, of these light of alcohol. under the influence while of the truck constitutes agree that forfeiture we cannot rehabilitation, forfeiture of the truck is not and therefore 9754(c)(13). we must va- Consequently, authorized under § imposing sentence portion judgment cate probation. a condition of forfeiture as LAW FORFEITURE II. COMMON conclusion that the not cease inquiry does Our ordering the forfeiture authority had no for trial court post-sentence In his probation. as a condition truck his sentenced to have appellant filed after was motions return of forfeited, filed a motion for appellant vehicle motion, along 324. This to Pa.R.Crim.P. pursuant property motions, and the was denied post-sentencing other with us for resolution Therefore before followed. appeal instant deny appel- proper it was also the issue whether the common law property for return of lant’s motion sepa- raises several This issue of contraband. of forfeiture of whether question First is the inquiries. distinct rate and contraband. constitutes the truck per of contraband: contraband types There are two se is some per Contraband se, contraband. and derivative such as heroin. Deriva illegal possess, it is thing which not inherent which is defined as contraband is tive an perpetration used illegal but which ly Fassnacht, Pa.Super. v. act. Commonwealth unlawful (1977). 369 A.2d 800 Inasmuch as appellant pled guilty driving alcohol, under the influence of undisput- and it is ed that the truck in question is the one he was driving at the time he was arrested on charges both driving alcohol, under the influence of the truck in this case falls within ‍​‌​‌‌‌​​​‌​‌​‌‌​​‌‌‌​​‌‌‌‌‌​‌‌​​‌​​‌‌​‌​​​​‌​​‌​‍the technical definition of derivative contraband because it used in “perpetration” of the crime. Thе significant questions more appeal, however, whether there is any authority truck, forfeiture of the so, if whether it is mandatory that the truck be forfeit- ed. courts,

In the federal “forfeiture is inan rem proceeding against property Congress has statutorily classified as ” Note, Constitutional ‘contraband.’ Law —Fourth Seizure Illegal Derivative Contraband Amendment — Bars 724, Forfeiture, Wash.U.L.Q. (1982) 60 725 (emphasis added). general It is also the rule in the United States that favored, “since forfeitures are not they ... will to, except statute, given effect by express terms aof purport and where the facts which to require such action come clearly plainly provisions within the of the law.” 5(a) 37 C.J.S. Forfeitures, added). (emphasis Similarly, § “the power government deprive the citizen of his statute, property by forfeiture must rest on and cannot be any supposed in inherent or judicial' common law found power: C.J.S., 25; 94 Weapons, AmJur., 56 Weapons, § Spisak, Commonwealth v. 659, 21.” 69 D. & C.2d 665- § (1974) added). 666 (emphasis Forfeiture has been defined as “the divestiture of property compensation, without in consequence offense, of a default of an and is a method by legislature necessary deemed restrain the com- mission of the in prevention.” offense to aid its 36 (emphasis added). Am.Jur.2d 1 It has also § Forfeitures said that the is basically statutory been “law forfeitures Annot., added). nature.” 38 A.L.R.4th 497 (emphasis 1980’s, Until the forfeiture cases in early Pennsylvania involved statutes which authorized the forfeiture. See Commonwealth v. 575, Blythe, Pa.Super. 178 115 A.2d 906

148 DiOrio, 641, (1955); Pa.Super. 159 49 Commonwealth v. (1946); Telephone 866 Commonwealth v. American A.2d 533, 126 191 A. 210 Appeal, Pa.Super. Co’s. Telegraph confiscated, (1937). fact, ordered the the Court return contraband, on the photographic equipment basis allegedly any providing for the “in the absence statute forfei its for the purpose a camera and accessories used ture of authority is not do so.” pictures, there taking obscene 361, 175 Pa.Super. Schilbe, 196 A.2d 539 v. Commonwealth opinion, reprinted trial at 175 (1961) (affirming on court 539-542). v. 240 Similarly, Landy, Commonwealth A.2d 458, (1976),the held that the 362 A.2d 999 Court Pa.Super. drugs of illegal from the sale could be obtained money statutory scheme part at because forfeited least drug provided for offenses for relating to pеnalties imposition funds means of the of a of such confiscation conviction, in an amount that “sufficient fine, following profits utilized in and the obtained to exhaust assets from Id., Pa.Superior Ct. 362 illegal activity.” original). (emphasis A.2d at re- Pennsylvania indicia the law these Despite derivative contraband quired authority before statutory forfeited, since there has been series could be held there which have opinions by Superior Court forfeiture of deriv- authority ordering common law however, the authorities Significantly, contraband. ative proposition were support in these opinions cited authority for the had been statutory which there cases forfeiture. 294 Pa.Super. v. example, Coghe, in Commonwealth

For (1982), upheld the court an order 207, A.2d 439 823 wherein $1,000 down of the defendant’s directing the forfeiture killed, only his on a to have wife contract payment its proposition “proper- cited the Court for authority to the be forfeited Common- ty may is contraband which for expressly providing wealth,” was the criminal statute offenses, in drug 35 P.S. items involved forfeiture certain

149 found supra, the court Landy, 780-128, § the forfeiture. for statutory authorization Supe- Thereafter, day, filed the same two decisions found that forfeiture was authorized again rior Court Maglisco, Petition authority. any statutory absence Estate Peetros (1985); 525, 1381 491 A.2d Pa.Super. 341 (1985). Detectives, 558, 492 A.2d 6 Pa.Super. 341 County v. 525, 491 A.2d Pa.Super. 341 Maglisco, Petition of Yet sup- cited to (1985), Pennsylvania authorities only of derivative finding of common law port them- of which Landy Coghe, both were contraband authority requiring statutory authorization on rely selves to be forfeitable. derivative contraband Detectives, Pa.Super. County Peetros v. Estate of support (1985), authority cited A.2d 6 to for- subject derivative contraband the conclusion that con- that when provides 324 which feiture is Pa.R.Crim.P. property, for the return of seized sidering petition proper- if it determines that may order forfeiture court authorizing However, the statute because is contraband. ty of Criminal the Rules promulgate Court to Supreme is empow- Court expressly provides Procedure rights enlarge nor the substantive “abridge, modify ered 1722(a)(1), unless there 42 Pa.C.S. litigant,” of any § forfeiture, to order for a court indeрendent authority some forfei- authorizing the interpreted as 324 should not be Rule the substantive forfeiture would affect such a ture because forfeited. property being parties rights highlights of the law review of the While this brief that there suggests of derivative contraband of forfeiture the conclusions support convincing authority no may “common and Peetros that there can be in Coghe, Maglisco, in the absence forfeiture of derivative law” we, panel three-judge as a authority, statutory express precedents three Court, to follow these are bound underpinnings, logical of their of the soundness regardless in the absence of particularly any and instruction from the on this issue.1 Supreme Court and Peetros Coghe, Maglisco, materially indistin- guishable present from case.2 Just as the in items Contrary selectively expe- 1. to the Dissent's assertion that we are diently applying concept by following Coghe, of stare decisis Peetros, Schilbe, Maglisco, Schilbe absence of a recognize rather holding than we in that there is to be no forfeiture of derivative contraband in the Howеver, legislative bearing mandate. in mind that the part developing former three cases are as much a of the common law Schilbe, Pennsylvania appears in cases evidence a as is it to us that these more recent changing pattern affecting in the law common law acknowledged. forfeiture which must be Maglisco 2. The bases which the Dissent finds and Peetros to be distinguishable lished supported by pub- from the case are not opinions Maglisco in those cases. The Dissent asserts that "can reasonably cited allow common law forfeiture of an instrumen- tality attempt injure used the deliberate or kill another individu- al,” (At 245), attempt and because there was no such deliberate in the nowhere in the However, present opinion deliberate intent to kill her husband. On the Maglisco distinguishable. case Maglisco Maglisco does the court indicate that Mrs. had the contrary, opinion charges against Maglisco dropped recites that the criminal despite Mrs. were lodged fact uncontroverted that the bullet which in Mr. Maglisco’sleg raised that Mrs. Maglisco. was fired Mrs. Thus the inference was Maglisco did not have the intent to her shoot hus- language Maglisco supports band. While the there was a the commission Maglisco “deliberately the conclusion that preponderance pistol of the evidence that the was used in crime, nothing of a there to indicate that Mrs. intentionally” shot her husband. agreed interpretation We also note that even if we with the Dissent’s holding Maglisco, Magliscoapplicable we would find because nothing suggest appellant there is deliberately in the record to did not deliberately drink the alcohol and did not then drive his fortuitously seriously injured vehicle. The fact that no one was significant appellant deliberately fact is irrelevant. The intentionally drunk, possibility drove while and the that someone seriously injured or killed as a result would undertaken thereof was the risk by appellant. distinguishable The Dissent also asserts that Peetros is from the present case because Peetros can be cited "to allow forfeiture of items essentially prospect are instruments of crime without much use," (At 245) legitimate but the lawful vehicle in the instant case Peetros, however, legitimate has a because there was a lawful could not be forfeited. In did not use. In the trial court had held that books, purpose loan-sharking they for the decision, reversing Superior Court disagree with the trial court's factual conclusion that there legitimate purpose loan-sharking was a put. property to which the books could be Rather, Superior Court held that to determine whether contraband, one is derivative must look at the status of the put when it was seized and the uses to which had been in crimes committed used in the cases were three former in case was present truck the cases, appellant’s the those counts of of the two in the commission used undeniably Therefore, as in of alcohol. influence the driving Peetros, derivative contraband the and Coghe, Magliseo, is forfeitable. case in the truck does truck is forfeitable determining that the However, to be some difference appears There inquiry. not end our Court, as evidenced deci by Superior opinion Peetros, as to whether derivative in Magliseо sions contra or whether derivative must forfeited contraband discussed Magliseo, In the Court forfeita&Ze. only band is It noted that under is property or not whether forfeitable. if there contraband Schilbe, “derivative forfeitable Landy Coghe suggest that authority,” but statutory of whether it is regardless that contraband forfeitable Ct. supra, Pa.Superior Maglisco, se or derivative. per in light of the Particularly A.2d at 1382-1383. of the counterbalances in Magliseo discussion Court’s showing minimal blamewor forfeiture —a harshness of crime committed between proportionality thiness and its conclusion forfeited —-and of the item be and the value that the rifles tests, for the fact these and but that under not used undeniably were had seized and which which been husband, the forfeiture she shot her the defendant when by reasonable,” “quite rifles would have been upon a is not automatic suggests forfeiture Opinion the technical satisfies property that certain determination contraband.” definition of “derivative Peetros, the Court re- hand, although the other On loan-sharking being as whether asserted the issue peatedly “subject derivаtive record books were were deriva- forfeiture,” determining that the books upon Court, of the advisa- contraband, discussion without tive Thus, items which have little not hold that Peetros does time. and other items legitimate” use are forfeitable “prospect of lawful or depends not, an item is forfeitable holds that whether but instead forfeited, it is in time when it is moment at the narrow whether purpose. illegal legitimate or an being for a used forfeiture, ordering reversed the trial court’s order bility motion for return of granting petitioner’s property Peetros, forfeited. subject property ordered order could interpreted applying Court’s principle that once is classified as derivative con- forfeited. traband must be opinion significant dangers We are of the are inher- for requirement mandatory ent all deriva- the forfeiture is one particularly tive contraband where pursuant ordered a court to the common and without law statutory authorization. those instances any legislature specifically has authorized forfeiture of de- contraband, also on provided rivаtive it has limitations potential problems forfeiture and has resolved numerous resulting from a blanket or automatic order of forfeiture. example, provides prop- For 35 P.S. that certain § 780-128 drug commission of offenses related to the shall be erty However, specifical- to forfeiture. while the statute subject drug to provides conveyances that all used facilitate ly forfeiture, the has includ- legislature offenses are to subject to innocent third provision protect parties ed in the statute a pro- of forfeiture. the statute from the harshness transportation a common carrier is used for vides that when statute, there shall not a forfeiture unless the under this be privy drug consented to or to the common carrier if to property the owner of the Similarly, ‍​‌​‌‌‌​​​‌​‌​‌‌​​‌‌‌​​‌‌‌‌‌​‌‌​​‌​​‌‌​‌​​​​‌​​‌​‍violation. to, of, or consent the use of his give did not know forfeited offense, drug property to facilitate the the property or her The forfeiture to prohibits forfeited. statute also cannot be interests in the security property. extent of fide the bona addition, custody is to have the statute establishes who forfeiture, prior to a final order of property, of forfeited proceeds done with the or property and what is to be Moreover, of forfeiture. the a final order thereof annually answerable Attorney statute renders the General property for a of all forfeited under legislature report to the from the accounting proceeds derived the statute and property. sale of forfeited exceptions forfeiture establishing to the

In addition innocent rights parties where third provisions involved, setting forth for requirements and addition to an such accounting and for property forfeited disposition drug explic- or statute also proceeds, forfeited procedures to be followed to effectuate sets forth itly These 35 P.S. 780-129. statute. § ensure all owners and provisions possessors notice to for provide opportunity respond, an both property, petition at a writing hearing, and Commonwealth’s forfeiture, proof set respective forth the burdens at the party hearing. of each rules, limitations, safeguards

The established authorizing forfeiture of certain deriv when legislature contraband, are to the orderly essential administration ative protection process to the of constitutional due justice, concerns, of innocent third affected rights parties However, where law by the forfeiture. the common limita statutory are no such applied forfeiture is and there impose we tions, procedures, will protections, judicially created automatic rule of forfeiture the ab impact thorough a careful and consideration of the sence of goals accomplished by of the forfeiture forfeiture. in all in which it

Automatic forfeiture of vehicles cases of that by can the evidence preponderance be established a person a under the a vehicle was used while particular less disparate impact upon of alcohol will influence have more The penalty than the affluent. people upon affluent less which one vehicle family only on a affluent has imposed obtaining food, medical assist- is their sole means of ance, transportation employment, to will be substantial- forfeitеd, the automatically if the than ly vehicle is worse person multiple on a has imposed of forfeiture who penalty buy the to immediately vehicles and means with which one used upon the forfeiture of the another car automatic Thus, if the of alcohol. driving while the influence one which penalty, of the is a is purpose forfeiture if against purpose discriminates the less affluent. And the of the is to the instruments which to penalty remove with Maglisco, supra (see commit the crime in the future 1381), again against 491 A.2d at the penalty only effective A uniformly the less affluent defendant. more effective one unrelated to the financial condition of penalty would be such as affecting legal right the defendant one the to drive legal right beverages. or the to consume alcoholic (which disturbing signifi- in the case Particularly from cantly appeal judgment an sentence rather than a civil action forfeiture, relating from an order as are Peetros) full Coghe, Maglisco, where no record has circumstances evidencing been established which warrant imposed the forfeiture is thе fact the trial court minimum of incarceration period provided by law “because of incarceration result in a severe lengthy period would children____” (Trial on his wife and court hardship opinion, 6.) However, p. nothing there is record to indicate that hardship equally forfeiture of the truck not work a would fact, term of al- lengthier imprisonment. severe as a opinion imposing the trial court recites in its though incarceration, period “spar[ed] young a minimum he breadwinner,” appellant’s post-tri- the loss of its sole family plea contrary al motion to withdraw his avers on the and that the vehicle involved is the employed, his wife is nothing There also is family one the owns. whether, vehicle, record to indicate food from the store family grocery will be able obtain or children if appellant, they the child whether get be able to to school. age, of school will case, of all forfeiture ordered without consideration forfeiture, concerning impact relevant evidence questions accomplishment raises serious about protect the innocent gоal family trial court’s laudable members. reasons, it would be better leave

For these determining deriva- exclusively the task what legislature forfeitable, circumstances under what tive contraband to be forfeited, procedures and be property may such However, we because forfeiture. accomplish followed to Maglisco, in Coghe, the decisions to follow are bound of law” sanction a “common Peetros, established the Court to forfeiture, responsibility it is also law, to be procedures establish, of the common part determined as property whether deciding followed may contraband to be derivative of common law matter forfeited. should the lack of about complained has appellant

In case that the to establish being followed procedure any to forfeiture subject derivative here was forfeited at it to be sponte ordered the trial court sua since Motion for Return fact, although appellant’s sentencing. hearing was held denied, evidentiary no Property was that “the provides that Pa.R.Grim.P. of the fact spitе property] shall motion return hearing such judge [for necessary issue of fact any on receive evidence Therefore, forfeiture the instant thereon.” decision notice to any advance in the absence case occurred the vehicle as might forfeit that the court appellant deter- sentence, hearing to any and without of the condition Even the Common- of the forfeiture. propriety mine the should hold brief that we appellate concedes in its wealth to order authority not have the trial court did that the case should be probation, as a condition to establish the Commonwealth hearing for a remanded the vehicle of the evidence preponderance contraband. derivative imposing of sentence judgment part

Since vacated, must be probation as a condition the forfeiture title to the truck legal has the Commonwealth since a record can hearing for a at which remand we will present, recognize matters. We regard to various with developed sentenced, the Court was appellant timе at the record: were of aware, certain facts which presumably damaged had crime, appellant appellant’s a result of that as car, and had done door of one front fender and left car; that to the front end of another was damage DUI; breathalyzer the of the appellant’s second results automobile, tests; and that it appellant “owned” the for; by appellant that the owned was the paid was vehicle make, crime; the year, one used in commission of the model, Knowledge of the car. these and license number of forfeiture is essential. imposition facts prior facts, however, essential which the court There are other of at the time of sentence and apparently apprised hearing ascertained at the on remand. will have the record all inter- it is essential that reveal example, For at the time of the commission of the ests in the vehicle interests, crime, legal, equitable, possessory including titled in the names of the vehicle is such as whether or the and a The appellant parent. and wife husband or not the is the should also reveal whether vehicle record family, whether the transportation sole means of breadwinner(s) the in the is the means which vehicle in present jobs, continue to their family employed can Upon needs of the are. transportation family and what the record, the developed consideration of these matters in then exercise his discretion determin- judge trial should ordered, forfeiture, if to order ing whether or the thereof proceeds the forfeitured to whom concerning these factors Failure to consider given. shall be the effect may and use of the vehicle have legal ownership innocent members. penalizing family of inappropriately imposes insofar as it Judgment of vacated sentence probation. respects all other forfeiture as a condition The case is remand- of sentence is affirmed. judgment relinquished. Jurisdiction is proceedings. ed for further BROSKY, Judge, dissenting. dispute of the instant contemplation considerable

Upon it, I express my must majority’s and of the resolution case. Al- inability join disposition their statu- thеir conclusion that the though readily agree I with imposition probationary governing tory provisions forfeiture, go I would the order not allow sentences will my opinion and indicate step forward another forfei- law guise of common result cannot follow either. ture there is notice escape it cannot starting point

As a opinion majority’s emitted suspicion sense of strong some of the soundness of legal logical regarding now, apparent majority to which precedent earlier concept reluctance, to. faithfulness submits Such opinion, yet, my commended is to be stare decisis than is concept to this more deferential perhaps majority of this case. considering the facts necessary from a review of all, discerned readily it can be First of Superior decisions of the that the opinion the majority’s significant in to a conflict question on the issue Court opinion, 239 of their page The asserts degree. majority Court, Superior the opinion” is a “difference there Maglisco, in Petition 341 opinions the by as evidenced Peetros and Estate (1985), 525, A.2d 1381 491 Pa.Suрer. (1985), Detectives, 558, 492 A.2d Pa.Super. County v. or is must forfeited contraband be as to whether derivative particular left out of this Although merely forfeitable. Superior the discussion, previously had noted majority the Schilbe, v. 196 A.2d Commonwealth holding in Court’s Maglis- to Peetros (1961), previous decided 175 A.2d 539 could not co, which held that derivative seem it would statutory authority. forfeited absent case, present by course of action taken us any banc, to the court en run afoul would short of certification ironic scenario as This is a rather prior authority. of some allegiance to the doc- pledge majority’s opportunity the only upon occasioned apparently trine of stare decisis of this court to do prior panels refusal of apparent circumstances, present under the Consequently, same. appearance takes on an prior precedent majority’s loyalty selective, application perhaps expedient, even and principled than some sort of faithful stare decisis rather Further, of authori- light of the conflict adherence to it. ty expressed and the own reservations on the majority’s logical authorizing of the cases legal underpinnings circumstances, present forfeiture under the it is indeed suggest rather that stare decisis hom- requires dubious It seems that the age paid suspect authority. present circumstances one of the rare situations but, departure principle when from the is not only allowable perhaps, necessary; particularly advisable when the concede, as the seems to weight authority, majority authority compelled contrasts the court feels with follow. confused,

I am to a degree, by majority’s further precedent, must certain feel they prior yet belief follow pronouncement proce- free to embark of extensive determining questions dures and standards for of forfeita- bility part responsibility of the court’s to define this area of common This effort is really nothing law. short of least, judicial legislation appears, to me at as invasive more, if not place, simply exercising and out of than court’s more to limit the accepted ability reaches of a common rule. This is not to that I am say against law I majority intent of the this endeavor. would welcome changes espoused far more so than I majority pronouncement would a that the must vehicle be forfeited. However, I majority feel that the must reach as far to make pronouncements changes they do as would be required to find that the is not simply subject vehicle forfeiture under presented. the circumstances Further- more, the made pronouncements by majority simply do go enough quite possibly not far and could create a whole instance, problems. new set of For the majority appears to establishing be a rule that if the vehicle is found to be “derivative contraband” the decision of whether or not it forfeited left to will be will be the discretion of the trial considering court all the facts of relevance.

case, practice appear this would a mere formality be preceding an order of forfeiture. Most of the factors suggested by consideration were in fact majority responded court and the trial trial court made aware to thе same Certainly the of forfeiture. sponte a sua order with a remand here. if to follow likely, possible, result the majority’s ordered after Further, ‍​‌​‌‌‌​​​‌​‌​‌‌​​‌‌‌​​‌‌‌‌‌​‌‌​​‌​​‌‌​‌​​​​‌​​‌​‍forfeiture be should deter- followed, degree will the forfeiture to what course standard of review will and what reviewable mination be subject to court’s determination be the trial Will apply? and, so, if courts what will the appellate review the order of forfei- upset to find to courts need appellate ture? begin actually area of law regarding concerns

My it, given the definition aspect fundamental a rather with Although supported by well contraband. to derivative law, difficulty I have considerable of case terms majority, If, opinion. majority’s expressed definition with the is used in the property here, piece legally possessed as contra- crime, it as “derivative” describing of a commission property, The true misnomer. to be a appears band all, as the activity at such, illegal from not “derived” the contraband Rather suggest. seem to term would from the said to be derived be possibly itself could status possibly could correctly, activity. More illegal contraband, lawfully as the “associative” considered its association with guilty by becomes possessed property However, calling it derivative a crime. the commission of I make this inappropriate. seems to be rather intuitively speaking, me appears because commentary considering difference between that, there is substantial of a contraband because possessed property lawfully one’s act, considering illegal with an transitory connection contraband, enterprise act or illegal from an gains derived correctly imply. more term seems to as the in our principle jurisprudence It is a well established illegal act. from an profit allowed one should not be seem to enterprise act or would Thus, gains illegal from an (of it as contraband forfeitable, qualifying thus properly However, of honest nature). to allow the fruits derivative alto- proposition to be another forfeited seems labor to be gether. insist, all, Our founders did after that we not be life, deprived liberty property without process due law. Their belief that individuals should be secure their possessions obviously played part in the inclusion of this Thus, language. although there may indeed be circum- stances where forfeiture of property due to its association with or utilization in illegal an act would offend neither concepts process of due nor justice, certainly such circum- stances are far more limited than a situation where the property forfeited is derived from illegal illegal acts or an enterprise. possible It is entirely that the term derivative has contraband been used loosely enough over the years to bring within its scope classification of property not prop- erly includable within so as to legitimize a type of forfeiture that should be utilized only very sparingly. It is this development with which I great have difficulty. In fact, only a few of the reported cases really apply principle utilized by the majority here.

Many reported forfeiture cases have resulted in the forfeiture of However, derivative contraband. they were representative more of a true “derivative” сontraband situa- tion. of these hinged Some cases upon question of lawful possession of the property opposed to those which rested upon mere usage property in an illegal act. In these cases, the items of question were not contra- However, per band se. just as like surely, items, there were impairments to a claim of good or lawful title. Doranzo, Commonwealth v. Pa.Super. 129, (1987), A.2d 6 is perhaps most representative of these cases. petitioner Doranzo the seeking a return of items which were found to be stolen. it would appear, case, the forfeiture was essentially predicated upon thqse that, fact circumstances, the petitiener ceuld not legitimate claim a right possession to this property. They were items to which petitioner had legitimate title but lost due to their usage in the commission of a

161 crime.1 of v. Sugalski are the cases large degree to

Similar a (1987), 370, A.2d 1104 Com- Cochran, 529 Pa.Super. 365 458, 362 A.2d 999 Pa.Super. 240 Landy, monwealth v. Pa.Super. v. (1976), Coghe, and Commonwealth not find a suc- (1982). which did Sugalski, 439 A.2d a true forfeiture, most similar to Landy and cessful arе, therefore, perhaps and contraband situation derivative alleged there, were the At issue even more instructive. drug selling and illegal gambling of proceeds monetary course, the could be money to the extent transactions. Of the illegal activity, from such to have been derived proven to its right to establish pressed would be hard petitioners in that money also somewhat similar the Coghe return. the of product or consideration sought to be returned was It assume that to the same logical contract. to illegal an for the performance not of sue extent one could enforce murderer, (the such in court had default of a contract civil act, conspira- sue be unable to the performed he the would contract) one unable nonpayment for would be tor either.2 of a Rule 324 context money seek return the question of right there was also a Coghe, rest, from separated these cases the possession. With can said to Maglisco Peetros Petition Estate present have similar to the one. involved situations fencing operation the were 1. Note that the houses used to facilitate theory by here the not If the asserted trial seized contraband. ostensibly, subject adopted, the houses would be to forfei- court were Sugalski. Needless to ture. The same statement could be made say, attempt property unduly seize and forfeit such would seem the harsh and controversial. procedural Although presenting Coghe, 2. itself the best context attempt by majority’s position would have been an the bolster upon, yet agreed unpaid, an but sum authorities forfeit Or, alternatively, attempt killing. to have forfeited the contract an paid but after the sum to the hired assassin returned to the husband truly attempt. money If the became contraband because its failed crime, usage posses- it would seem that in the commission of a then appellant order sion would not be of relevance forfeiture, circumstance, greater would have been of those significance. Peetros, both Maglisco found forfei- crime, table was used thus, commission providing And, for the case, basis forfeiture. like property was neither derivеd from illegal act, nor was there question Nevertheless, of lawful title. and appar- ently regard decision, without Schilbe the property was found to be derivative contraband subject to forfei- ture. The finds majority this authority materially indistin- thus, guishable and, follows it despite expressed reserva- This I part tion. is where the company with I majority, do believe there is a material difference between Maglisco, and Peetros the case. supra,

In Maglisco, Schilbe, we discussed and Landy as forfeiture, well as common law Coghe, and concluded that and Landy Coghe implied, contrary Schilbe, to that forfeiture was allowable without statutory authority. Yet, problems even in the Maglisco common law forfeiture it and the fact that is essentially penalty were acknowl- Further, edged. certain in reforms this area of law were also and acknowledged endorsed. Maglisco cannot as unequivocal be cited a uniform and adoption of common law forfeiture of property connected to the commission certainly crime. It implies that there exists a limitation reaches, although opinion its the silent is as to where the may question line be found. The that in light remains Peetros, is Maglisco whether all that in, to, used or connected the commission of a crime consti- tutes derivative If subject not, to forfeiture? then shall line where the be drawn?

In Maglisco, the subjects controversy pistol were a which had been in upon, per- used a deliberate assault an haps attempt kill, individual, even to another and some petitioner’s rifles found residence which were not used violation of the We law. concluded that there was no to support basis forfeiture of the rifles but that pistol properly was forfeitable derivative contraband. discussed, among things, We other concepts of blame- concluded, worthiness essence, proportionality in the assault the owner using the pistol in voluntarily that contempla- of it. possession her to right had “forfeited” see some of perhaps one can the Magliseo opinion tion of deriva- finding pistol that the was motivation behind First, inten- there was a deliberate tive contraband. Secondly, the another individual.3 attempt injure tional Magliseo my majority with characterization 3. The takes issue my by myself panel, saying opinion that opinion, characterization is Magliseo opinion. assaultive behavior information contained drafted an support lacking in on the face of the factual assertion, However, my general that there was reasonably Magliseo, inferable from the opinion. beginning of We at the state Although no there is direct Magliseo appellant shot her husband. accidental, shooting something more than expression included, panel, myself certainly plenty that the of indications there all, understanding or belief that was. First with the acted common somebody shot some- experience, individuals state when why behavior. That is one of intentional one there is a connotation “intentionally "accidentally phrase than sees shot” more often parlance, appears, in common read into Intention shot.” not, thus, necessitating qualifying phrase word than "shot” more often Secondly, applicable. we that a "accidentally” concluded where This, itself, pistol. rules out with the crime had been committed have be at least a any finding or accident. There would innocent behavior criminally negligent this conclusion. behavior make preventing Thirdly, another we mention the trial court’s motivation incident, unnecessary something seem if the which would firearm shooting actions Fourthly, appellant's purely we state that were accidental. “quite blameworthy”, 491 A.2d at and that forfei- were light appel- of "quite in of the seriousness ture would be reasonable believe, suggest, I deliberate and offense.” Id. These references lant’s Thus, explicitly the culpable entire tion, not so stated. when behavior even if majority’s opinion together asser- read I do not believe the is Magliseo Mrs. did not have there an inference raised that that is Rather, husband, rings true. I believe the the intent to shoot her operating panel assumption was under the inference is raised that the that shooting the was intentional. Magliseo they majority to read as as The further states that even were applicable dealing shooting they would still find it with a deliberate drinking driving not is were deliber- there no indication that they point my There is no I miss the of discussion. ate. believe appellant deliberately then dispute ately consumed alcohol and deliber- that However, substantial difference in nature drove. there a driving deliberately shooting culpability someone and vehicle of of or having The difference is the state mind consumed alcohol. after attempted appellant or intend- There is no indication that mens rea. ed to strike someone with vehicle, no his there is indication home, safely anything one appellant than to drive intended more Certainly, attempt. in presume, if was unsuccessful his would even he majority that there is a substantial would not contest the assertion the difference intending intending injure act kill an in to or someone resulting from the of loss was neither pistol me, in appear sense, nor does it to an substantial intuitive to disproportionate be crime committed. reviewing Peetros,

Similarly, supra, Estate perhaps opinion, the most theme in the dominant aside from holding that the subjects obvious loan controversy, books, sharking reсord were used commission crime, fact is the the books found forfeitable had no other or essentially legitimate purpose, use and although possess was necessarily illegal books, it to neither their truly foreseeable return would they legal serve any legitimate purpose. This is significant we Maglisco recognized because also that a goal forfeiture is to operating remove tools a crime from criminals. reasonably can cited Maglisco be to allow common of an instrumentality

law forfeiture used in the deliberate individual, attempt injure or kill another and Peetros reasonably could cited allow forfeiture of items which are instruments of essentially crime without much prospect legitimate However, of lawful or use. I remain uncon- vinced that these opinions compel extension the principle points unknown. The majority misses the thrust of my analysis of these I am not asserting decisions. that Maglis- co and can propositions Peetros cited I have However, attributed to them. can they certainly be reason- and, propositions, cited for these ably just as certainly they do not compel beyond citation these Part propositions. responsibility our as appellate an court is the interpretation, explanation, extension of prior precedent. limitation negligent safety of others. The difference potential homicide case the difference between a death sentence years imprisonment. and a few We treat the different crimes so differently importance place because of the we on the state of mind to Consequently, Maglisco the eventual same result. if we assume that shooting certainly with dealt a deliberate then a reasonable individual distinguishing would have to concede that there a exists factor in the case, eventually if one even concluded factor was not enough compel substantial a different result. read tenet that decisions be appellate a It is fundamental application legal and that their facts narrowly upon period exposure over a to various developed principle different ways, yet similar in some patterns, factual in Maglisco enunciated principle Undoubtedly, others. also, if here we wish —it could and Peetros can applied be to take a blind man’s applied logical standpoint, from a should he use it to jaywalk from him walking stick —but in important there a difference undoubtedly as just non-adherence, or, also would justify matters which factual stated, principle to extend the refusal accurately more if we find the vehicle importantly, More class of case. shall we draw the line? this case where forfeitable here, of an automobile allowable would If the forfeiture when an individual exceeds not also be allowable fails, light out a red but or speed attempts limit or beat changes lanes or makes a turn without an individual when short, will violation of the motor every signalling? forfeiture of one’s vehicle? require vehicle or allow code driving while intoxi- laws, prohibiting those just These like driving environment and cated, safe passed provide are of an creates an increased risk breach of them every majori- To collision or accident. use the or fаtal injurious deliberate of the law and be a breach ty’s analysis, it would killed injured no one was or fortuitously the fact that irrelevant. indiscretion would be of the driver’s result forfeiting substantial risk will one be under I one enters a vehicle? being every driven time vehicle trip even a routine to work that few drivers make doubt technically violating somewhere mall without shopping could set simply vehicle code. We section per 56 miles hour and confiscate highways on our radars vehicles thousands vehicles. What about and forfeit they away zones? towed parked in no Shall parking rightful again? These their owners never to be driven automobiles; I am certain that involving just examples in virtually found examples harsh could be many other every affecting facet life and all conceivable types if the property principle applied basic is without limitation. There significant difference, would seem to be a even if one, an declaring intuitive between or burglary tools gambling drug or paraphernalia and removing contraband such from one’s possession declaring one’s legally automobile or other held property contraband simply illegal because it can be connected to an It act. would seem apparent removing somewhat little property that has if any potential legal legitimate is use substantially removing different than from one’s possession legitimate legal that has been somewhat tainted transitory with a transgression brush law. The majority states their that the principle belief Peetros and Maglisco similarly applied must be in this case. Yet the here, appellant conduct, although engaging careless did deliberately another, not nor attempt injure is the auto- mobile an instrument of crime likely which will be used for I only illegitimate purposes. Thus, believe, the present case distinguishable degree is to a I which would consider mate- rial, and I more prudent believe the approach to leave to legislature any significant extension of the principle question: light particularly authority stating uncommon, statutory without authorization supra, authority indicating that forfeiture fa- See, Estate, vored law. In re Fisher’s 442 Pa. (1971). 276 A.2d 516 reasons,

For these I would find that principles common require law forfeiture neither ‍​‌​‌‌‌​​​‌​‌​‌‌​​‌‌‌​​‌‌‌‌‌​‌‌​​‌​​‌‌​‌​​​​‌​​‌​‍nor allow the forfei- ture of question here. I vehicle Thus dissent.

Case Details

Case Name: Commonwealth v. Crosby

Court Name: Supreme Court of Pennsylvania

Date Published: Jan 3, 1990

Citation: 568 A.2d 233

Docket Number: 405

Court Abbreviation: Pa.