Commonwealth v. Crosby , 390 Pa. Super. 140 ( 1990 )

ROWLEY, Judge:

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

I. FORFEITURE AS CONDITION OF PROBATION

The trial court asserted, and the Commonwealth argues, that the forfeiture of appellant’s truck as a condition of probation is authorized by 42 Pa.C.S. § 9754(c)(7) and (13). With regard to an order of probation, § 9754(b) provides:

(b) Conditions generally. — -The court shall attach such of the reasonable conditions authorized by subsection (c) of this section as it deems necessary to insure or assist the defendant in leading a law-abiding life.

Section (c) then provides as follows:

(e) Specific conditions. — -The court may as a condition of its order require the defendant:

(1) To meet his family responsibilities.

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

(2.1) To participate in a public or nonprofit community service program unless the defendant was convicted of murder, rape, aggravated assault, arson, theft by extortion, terroristic threats, robbery or kidnapping.

(3) To undergo available medical or psychiatric treatment and to enter and remain in a specified institution, when required for that purpose.

(4) To pursue a prescribed secular course of study or vocational training.

(5) To attend or reside in a facility established for the instruction, recreation, or residence of persons on probation.

(6) To refrain from frequenting unlawful or disreputable places or consorting with disreputable persons.

(7) To have in his possession no firearm or other dangerous weapon unless granted written permission.

(8) To make restitution of the fruits of his crime or to make reparations, in an amount he can afford to pay, for the loss or damage caused thereby.

(9) To remain within the jurisdiction of the court and to notify the court or the probation officer of any change in his address or his employment.

(10) To report as directed to the court or the probation officer and to permit the probation officer to visit his home.

(11) To pay such fine as has been imposed.

(12) To participate in drug and alcohol treatment programs.

(13) To satisfy any other condition reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.

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

Parole and probation are established variations on the imprisonment of convicted criminals and are primarily concerned with the rehabilitation and restoration to a useful life of the parolee or probationer.

Id., 488 Pa. at 258, 412 A.2d at 496. Similarly, in Commonwealth v. Walton, 483 Pa. 588, 397 A.2d 1179 (1979), the Court stated:

[Conditions of probation, though significant restrictions on the offender’s freedom, are primarily aimed at effecting, as a constructive alternative to imprisonment, his rehabilitation and réintegration into society as a law-abiding citizen; courts therefore are traditionally and properly invested with a broader measure of discretion in fashioning conditions of probation appropriate to the circumstances of the individual case.

Id., 483 Pa. at 598, 397 A.2d at 1184 (footnote omitted).

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

Section 9754(c)(7), specifically relied upon by the Commonwealth, only authorizes the restriction of possession of firearms or deadly weapons; it does not permit forfeiture to accomplish the restriction on possession of firearms. See Commonwealth v. Arthur, 384 Pa.Super. 613, 559 A.2d 936 (1989). Therefore, it too, relates solely to the behavioral conditions imposed on the defendant.

Section 9754(c)(13), also expressly relied upon by the Commonwealth, does not authorize the forfeiture as a condition of probation in this case. Subsection 13 enables a court to impose any condition “reasonably related to the rehabilitation” of a defendant. Although in the present case the trial court stated that the forfeiture was ordered to assist in the rehabilitation of the defendant, the circumstances of the order provide no foundation for such a conclusion. Forfeiture of appellant’s truck in no manner limits his ability to purchase another vehicle, or, if he already has access to another vehicle, to drive that one. The only thing accomplished by the forfeiture is the seizure of valuable property, i.e., imposition of a fine “in kind.”

The trial court had available to it, under § 9754, the means of effectively restricting the behavior of appellant by precluding him from driving during his probationary period, thereby in a more realistic manner assisting in the rehabilitation of the appellant. The trial court imposed no conditions on appellant’s consumption of alcohol or driving during the period of probation despite the trial court’s directive that appellant undergo alcohol evaluation and attend safe driving school. Thus, under the conditions actually imposed on appellant with regard to his probation, the trial court ordered the forfeiture of the appellant’s truck, but took no measure to ensure that even an hour after probation was imposed appellant could not be driving some other vehicle while under the influence of alcohol. In light of these facts, we cannot agree that forfeiture of the truck constitutes rehabilitation, and therefore forfeiture of the truck is not authorized under § 9754(c)(13). Consequently, we must vacate that portion of the judgment of sentence imposing forfeiture as a condition of probation.

II. COMMON LAW FORFEITURE

Our inquiry does not cease upon the conclusion that the trial court had no authority for ordering the forfeiture of the truck as a condition of probation. In his post-sentence motions filed after appellant was sentenced to have his vehicle forfeited, appellant filed a motion for return of property pursuant to Pa.R.Crim.P. 324. This motion, along with other post-sentencing motions, was denied and the instant appeal followed. Therefore before us for resolution is also the issue of whether it was proper to deny appellant’s motion for return of property under the common law of forfeiture of contraband. This issue raises several separate and distinct inquiries. First is the question of whether the truck constitutes contraband.

There are two types of contraband: contraband per se, and derivative contraband. Contraband per se is something which it is illegal to possess, such as heroin. Derivative contraband is defined as property which is not inherently illegal but which is used in the perpetration of an unlawful act. Commonwealth v. Fassnacht, 246 Pa.Super. 42, 369 A.2d 800 (1977). Inasmuch as appellant pled guilty to driving under the influence of alcohol, and it is undisputed that the truck in question is the one which he was driving at the time he was arrested on both charges of driving under the influence of alcohol, the truck in this case falls within the technical definition of derivative contraband because it was used in the “perpetration” of the crime. The more significant questions in this appeal, however, are whether there is any authority for forfeiture of the truck, and if so, whether it is mandatory that the truck be forfeited.

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

Until the early 1980’s, forfeiture cases in Pennsylvania involved statutes which authorized the forfeiture. See Commonwealth v. Blythe, 178 Pa.Super. 575, 115 A.2d 906 (1955); Commonwealth v. DiOrio, 159 Pa.Super. 641, 49 A.2d 866 (1946); Commonwealth v. American Telephone and Telegraph Co’s. Appeal, 126 Pa.Super. 533, 191 A. 210 (1937). In fact, the Court ordered the return of confiscated, allegedly contraband, photographic equipment on the basis that “in the absence of any statute providing for the forfeiture of a camera and its accessories used for the purpose of taking obscene pictures, there is not authority to do so.” Commonwealth v. Schilbe, 196 Pa.Super. 361, 175 A.2d 539 (1961) (affirming on trial court opinion, reprinted at 175 A.2d 539-542). Similarly, in Commonwealth v. Landy, 240 Pa.Super. 458, 362 A.2d 999 (1976), the Court held that the money obtained from the sale of illegal drugs could be forfeited at least in part because the statutory scheme relating to penalties for drug offenses provided for the confiscation of such funds by means of the imposition of a fine, following conviction, in an amount that is “sufficient to exhaust assets utilized in and the profits obtained from the illegal activity.” Id., 240 Pa.Superior Ct. at 464, 362 A.2d at 1002 (emphasis in the original).

Despite these indicia that the law in Pennsylvania required statutory authority before derivative contraband could be forfeited, since 1982 there has been a series of opinions by the Superior Court which have held that there was common law authority for ordering forfeiture of derivative contraband. Significantly, however, the authorities cited in these opinions to support this proposition were cases in which there had been statutory authority for the forfeiture.

For example, in Commonwealth v. Coghe, 294 Pa.Super. 207, 439 A.2d 823 (1982), wherein the court upheld an order directing the forfeiture of the defendant’s $1,000 down payment on a contract to have his wife killed, the only authority cited by the Court for its proposition that “property which is contraband may be forfeited to the Commonwealth,” was the criminal statute expressly providing for forfeiture of certain items involved in drug offenses, 35 P.S. § 780-128, and Landy, supra, in which the court found statutory authorization for the forfeiture.

Thereafter, in two decisions filed the same day, the Superior Court again found that forfeiture was authorized in the absence of any statutory authority. Petition of Maglisco, 341 Pa.Super. 525, 491 A.2d 1381 (1985); Estate of Peetros v. County Detectives, 341 Pa.Super. 558, 492 A.2d 6 (1985). Yet in Petition of Maglisco, 341 Pa.Super. 525, 491 A.2d 1381 (1985), the only Pennsylvania authorities cited to support the finding of common law forfeiture of derivative contraband were Landy and Coghe, both of which themselves rely on authority requiring statutory authorization for derivative contraband to be forfeitable.

In Estate of Peetros v. County Detectives, 341 Pa.Super. 558, 492 A.2d 6 (1985), the only authority cited to support the conclusion that derivative contraband is subject to forfeiture is Pa.R.Crim.P. 324 which provides that when considering a petition for the return of seized property, the court may order forfeiture if it determines that the property is contraband. However, because the statute authorizing the Supreme Court to promulgate the Rules of Criminal Procedure expressly provides that the Court is not empowered to “abridge, enlarge nor modify the substantive rights of any litigant,” 42 Pa.C.S. § 1722(a)(1), unless there is some independent authority for a court to order forfeiture, Rule 324 should not be interpreted as authorizing the forfeiture because such a forfeiture would affect the substantive rights of the parties to the property being forfeited.

While this brief review of the highlights of the law of forfeiture of derivative contraband suggests that there may be no convincing authority to support the conclusions in Coghe, Maglisco, and Peetros that there can be “common law” forfeiture of derivative contraband in the absence of express statutory authority, we, as a three-judge panel of this Court, are bound to follow these three precedents regardless of the soundness of their logical underpinnings, and particularly in the absence of any instruction from the Supreme Court on this issue.¹

Coghe, Maglisco, and Peetros are materially indistinguishable from the present case.² Just as the items in the former three cases were used in the crimes committed in those cases, the appellant’s truck in the present case was undeniably used in the commission of the two counts of driving under the influence of alcohol. Therefore, as in Coghe, Magliseo, and Peetros, the derivative contraband truck in the present case is forfeitable.

However, determining that the truck is forfeitable does not end our inquiry. There appears to be some difference of opinion in the Superior Court, as evidenced by the decisions in Magliseo and Peetros, as to whether derivative contraband must be forfeited or whether derivative contraband is only forfeita&Ze. In Magliseo, the Court discussed whether or not property is forfeitable. It noted that under Schilbe, “derivative contraband is forfeitable only if there is statutory authority,” but that Landy and Coghe suggest that contraband is forfeitable regardless of whether it is per se or derivative. Maglisco, supra, 341 Pa.Superior Ct. at 528, 491 A.2d at 1382-1383. Particularly in light of the Court’s discussion in Magliseo of the counterbalances to the harshness of forfeiture — a minimal showing of blameworthiness and proportionality between the crime committed and the value of the item to be forfeited — -and its conclusion that under these tests, and but for the fact that the rifles which had been seized and which were undeniably not used by the defendant when she shot her husband, the forfeiture of the rifles would have been “quite reasonable,” the Opinion suggests that forfeiture is not automatic upon a determination that certain property satisfies the technical definition of “derivative contraband.”

On the other hand, in Peetros, although the Court repeatedly asserted the issue as being whether loan-sharking record books were derivative contraband and “subject to forfeiture,” upon determining that the books were derivative contraband, the Court, without discussion of the advisability of ordering forfeiture, reversed the trial court’s order granting the petitioner’s motion for return of property and ordered the subject property forfeited. Thus, in Peetros, the Court’s order could be interpreted as applying the principle that once property is classified as derivative contraband it must be forfeited.

We are of the opinion that significant dangers are inherent in a requirement of mandatory forfeiture for all derivative contraband particularly where the forfeiture is one ordered by a court pursuant to the common law and without any statutory authorization. In those instances in which the legislature has specifically authorized forfeiture of derivative contraband, it has also provided for limitations on forfeiture and has resolved numerous potential problems resulting from a blanket or automatic order of forfeiture. For example, 35 P.S. § 780-128 provides that certain property related to the commission of drug offenses shall be subject to forfeiture. However, while the statute specifically provides that all conveyances used to facilitate drug offenses are subject to forfeiture, the legislature has included in the statute a provision to protect innocent third parties from the harshness of forfeiture. Thus, the statute provides that when a common carrier is used for transportation under this statute, there shall not be a forfeiture unless the common carrier consented to or was privy to the drug violation. Similarly, if the owner of the property to be forfeited did not know of, or give consent to, the use of his or her property to facilitate the drug offense, the property cannot be forfeited. The statute also prohibits forfeiture to the extent of bona fide security interests in the property. In addition, the statute establishes who is to have custody of forfeited property, prior to a final order of forfeiture, and what is to be done with the property or proceeds thereof upon a final order of forfeiture. Moreover, the statute renders the Attorney General answerable annually to the legislature for a report of all property forfeited under the statute and accounting of proceeds derived from the sale of forfeited property.

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

The limitations, rules, and safeguards established by the legislature when authorizing forfeiture of certain derivative contraband, are essential to the orderly administration of justice, to the protection of constitutional due process concerns, and to the rights of innocent third parties affected by the forfeiture. However, where the common law of forfeiture is applied and there are no such statutory limitations, protections, and procedures, we will not impose a judicially created automatic rule of forfeiture in the absence of a careful and thorough consideration of the impact of the forfeiture or the goals to be accomplished by the forfeiture.

Automatic forfeiture of vehicles in all cases in which it can be established by a preponderance of the evidence that a particular vehicle was used while a person was under the influence of alcohol will have a disparate impact upon less affluent people than upon the more affluent. The penalty imposed on a less affluent family which has only one vehicle which is their sole means of obtaining food, medical assistance, and transportation to employment, will be substantially worse if the vehicle is automatically forfeited, than the penalty of forfeiture imposed on a person who has multiple vehicles and the means with which immediately to buy another car upon the automatic forfeiture of the one used while driving under the influence of alcohol. Thus, if the purpose of the forfeiture is a penalty, it is one which discriminates against the less affluent. And if the purpose of the penalty is to remove the instruments with which to commit the crime in the future (see Maglisco, supra at 532, 491 A.2d at 1381), again the penalty is only effective against the less affluent defendant. A more uniformly effective penalty would be one unrelated to the financial condition of the defendant such as one affecting the legal right to drive or the legal right to consume alcoholic beverages.

Particularly disturbing in the present case (which significantly is an appeal from a judgment of sentence rather than from an order in a civil action relating to forfeiture, as are Coghe, Maglisco, and Peetros) where no full record has been established evidencing circumstances which warrant the forfeiture is the fact that the trial court imposed the minimum period of incarceration provided by law “because a lengthy period of incarceration would result in a severe hardship on his wife and children____” (Trial court opinion, p. 6.) However, there is nothing of record to indicate that forfeiture of the truck would not work a hardship equally severe as a lengthier term of imprisonment. In fact, although the trial court recites in its opinion that by imposing a minimum period of incarceration, he “spar[ed] the young family the loss of its sole breadwinner,” appellant’s post-trial motion to withdraw his plea avers on the contrary that his wife is employed, and that the vehicle involved is the only one the family owns. There also is nothing in the record to indicate whether, upon forfeiture of the vehicle, the family will be able to obtain food from the grocery store or whether the child or children of the appellant, if they are of school age, will be able to get to school. Thus, the forfeiture ordered in this case, without consideration of all relevant evidence concerning the impact of the forfeiture, raises serious questions about the accomplishment of the trial court’s laudable goal to protect the innocent family members.

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

In this case appellant has complained about the lack of any procedure being followed to establish that the property here was derivative contraband and subject to forfeiture since the trial court sua sponte ordered it to be forfeited at sentencing. In fact, although appellant’s Motion for Return of Property was denied, no evidentiary hearing was held in spite of the fact that Pa.R.Grim.P. 824 provides that “the judge hearing such motion [for return of property] shall receive evidence on any issue of fact necessary to the decision thereon.” Therefore, the forfeiture in the instant case occurred in the absence of any advance notice to appellant that the court might forfeit the vehicle as a condition of the sentence, and without any hearing to determine the propriety of the forfeiture. Even the Commonwealth concedes in its appellate brief that should we hold that the trial court did not have the authority to order forfeiture as a condition of probation, the case should be remanded for a hearing for the Commonwealth to establish by a preponderance of the evidence that the vehicle is derivative contraband.

Since that part of the judgment of sentence imposing the forfeiture as a condition of probation must be vacated, and since the Commonwealth has legal title to the truck at present, we will remand for a hearing at which a record can be developed with regard to various matters. We recognize that at the time appellant was sentenced, the Court was presumably aware, of certain facts which were of record: that as a result of appellant’s crime, appellant had damaged the left front fender and door of one car, and had done damage to the front end of another car; that this was appellant’s second DUI; the results of the breathalyzer tests; that appellant “owned” the automobile, and that it was paid for; that the vehicle owned by appellant was the one used in commission of the crime; the make, year, model, and license number of the car. Knowledge of these facts prior to imposition of forfeiture is essential.

There are other essential facts, however, which the court apparently was not apprised of at the time of sentence and which will have to be ascertained at the hearing on remand. For example, it is essential that the record reveal all interests in the vehicle at the time of the commission of the crime, including legal, equitable, and possessory interests, such as whether the vehicle is titled in the names of husband and wife or the appellant and a parent. The record should also reveal whether or not the vehicle is the sole means of transportation of the family, whether the vehicle is the only means by which the breadwinner(s) in the family can continue to be employed in their present jobs, and what the transportation needs of the family are. Upon consideration of these matters developed in the record, the trial judge should then exercise his discretion in determining whether to order forfeiture, and if forfeiture is ordered, to whom the forfeitured property or the proceeds thereof shall be given. Failure to consider these factors concerning legal ownership and use of the vehicle may have the effect of inappropriately penalizing innocent family members.

Judgment of sentence is vacated insofar as it imposes forfeiture as a condition of probation. In all other respects the judgment of sentence is affirmed. The case is remanded for further proceedings. Jurisdiction is relinquished.

1 . Contrary to the Dissent's assertion that we are selectively and expediently applying the concept of stare decisis by following Coghe, Maglisco, and Peetros, rather than Schilbe, we recognize the holding in Schilbe that there is to be no forfeiture of derivative contraband in the absence of a legislative mandate. However, bearing in mind that the former three cases are as much a part of the developing common law in Pennsylvania as is Schilbe, it appears to us that these more recent cases evidence a changing pattern in the law affecting common law forfeiture which must be acknowledged.

2 . The bases upon which the Dissent finds Maglisco and Peetros to be distinguishable from the present case are not supported by the published opinions in those cases. The Dissent asserts that Maglisco "can be reasonably cited to allow common law forfeiture of an instrumentality used in the deliberate attempt to injure or kill another individual,” (At 245), and because there was no such deliberate attempt in the present case Maglisco is distinguishable. However, nowhere in the opinion in Maglisco does the court indicate that Mrs. Maglisco had the deliberate intent to kill her husband. On the contrary, the opinion recites that the criminal charges against Mrs. Maglisco were dropped despite the uncontroverted fact that the bullet which lodged in Mr. Maglisco’s leg was fired by Mrs. Maglisco. Thus the inference was raised that Mrs. Maglisco did not have the intent to shoot her husband. While the language in Maglisco supports the conclusion that there was a preponderance of the evidence that the pistol was used in the commission of a crime, there is nothing to indicate that Mrs. Maglisco “deliberately and intentionally” shot her husband.

We also note that even if we agreed with the Dissent’s interpretation of the holding in Maglisco, we would find Maglisco applicable because there is nothing in the record to suggest that appellant did not deliberately drink the alcohol and did not then deliberately drive his vehicle. The fact that fortuitously no one was seriously injured is irrelevant. The significant fact is that appellant deliberately and intentionally drove while drunk, and the possibility that someone would be seriously injured or killed as a result thereof was the risk undertaken by appellant.

The Dissent also asserts that Peetros is distinguishable from the present case because Peetros can be cited "to allow forfeiture of items which essentially are instruments of crime without much prospect of lawful or legitimate use," (At 245) but the vehicle in the instant case has a legitimate use. In Peetros, however, the trial court had held that because there was a lawful purpose for the loan-sharking books, they could not be forfeited. In reversing this decision, the Superior Court did not disagree with the trial court's factual conclusion that there was a legitimate purpose to which the loan-sharking books could be put. Rather, the Superior Court only held that to determine whether property is derivative contraband, one must look at the status of the property when it was seized and the uses to which it had been put at that time. Thus, Peetros does not hold that items which have little “prospect of lawful or legitimate” use are forfeitable and other items are not, but instead holds that whether an item is forfeitable depends upon whether at the narrow moment in time when it is forfeited, it is being used for a legitimate or an illegal purpose.