Commonwealth v. Crosby

• Decision Date: 03 January 1990
• Citation: 568 A.2d 233,390 Pa.Super. 140
• Parties: COMMONWEALTH of Pennsylvania v. Edwin R. CROSBY, Appellant.
• Court: Pennsylvania Superior Court

568 A.2d 233

390 Pa.Super. 140

COMMONWEALTH of Pennsylvania v. Edwin R. CROSBY, Appellant.

Superior Court of Pennsylvania.

January 3, 1990

Submitted Nov. 2, 1988.

John H. Corbett, Jr., Public Defender Pittsburgh, for appellant.

Michael W. Streily, Asst. Dist. Atty., Pittsburgh, for Com appellee.

Before BROSKY, ROWLEY and MONTEMURO, JJ.

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:

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

[C]onditions of probation, though significant restrictions on the offender's freedom, are primarily aimed at effecting, as a constructive alternative to imprisonment, his rehabilitation and reintegration 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. 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)(11) permits the court to condition probation upon payment of a fine, § 9754(c)(11) does not provide the authority for imposing the fine; on the contrary, § 9754(c)(11) 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...