author: POPOVICH, Judge. McEWEN, Judge,

text:
    663 A.2d 712
    COMMONWEALTH of Pennsylvania, Appellee, v. James Irvin BREHM, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted April 24, 1995.
    Filed Aug. 1, 1995.

      Timothy L. Clawges, Public Defender, Carlisle, for appellant.
    Jamie M. Keating, Asst. Dist. Atty., Carlisle, for Com., appellee.
    Before McEWEN, CIRILLO and POPOVICH, JJ.
   POPOVICH, Judge.

This case involves an appeal from the judgment of sentence (1-2 years imprisonment ) for Driving While Under the Influence of Alcohol (75 Pa.C.S.A. § 3731(a)(5)) by the appellant, James Irvin Brehm, Jr. We affirm.

The facts are undisputed: At 11:00 p.m. on the 18th day of June, 1993, Carlisle Borough Police Officer Alan R. Mace was on patrol and observed that the motorcycle driven by the appellant did not have a license plate. The officer pursued the appellant for 2lk blocks with lights activated.

When the appellant came to a stop, the officer approached and “detected] an odor of an alcoholic beverage emanating from the mouth” of the appellant. N.T. 34. He also observed that the appellant had glassy eyes and his speech was slow. A “standard” field sobriety test was administered, following which the appellant was arrested and transported to the local hospital to have his blood drawn. Prior thereto, the appellant was advised of Pennsylvania’s Implied Consent Law, and he agreed to have his blood drawn, which took place at 11:40 p.m. Thereafter, the appellant was taken to police headquarters for processing.

The appellant was charged formally with violations of Subsections (a)(1) and (a)(4) of Section 3731, along with the summary offense of Driving While Under Suspension (75 Pa.C.S.A. § 1543). Following the preliminary hearing but before trial, the District Attorney amended the Criminal Information to charge a violation of Subsection (a)(5) of Section 3731. After a jury trial, the appellant was found guilty of violating Sections 3731(a)(5) and 1543. Sentence was imposed, and this appeal followed.

The first issue to be addressed attributes the trial court with the commission of error in permitting the Criminal Information to be amended by the District Attorney to include a violation of 75 Pa.C.S.A § 3731(a)(5).

In Commonwealth v. Slingerland, 358 Pa.Super. 531, 518 A.2d 266 (1986), the defendant was charged with violating Section 3731(a)(1). After a preliminary hearing, the charge was held over for court. This was followed by the Commonwealth filing an Information charging the defendant with violating Subsection (a)(1) and (a)(4) of Section 3731. The defendant was found guilty of (a)(4), but acquitted of the (a)(1) charge. On appeal, this Court ruled that Subsections (a)(1) and (a)(4) were cognate, and, therefore, the District Attorney acted properly in adding (a)(4) to the Information even though the offense had not been charged in the criminal complaint.

In Commonwealth v. Jacobs, 433 Pa.Super. 411, 640 A.2d 1326 (1994), this Court upheld the right of the District Attorney to include in the Information a charge for violating 75 Pa.C.S.A. § 3731(a)(4), even though that charge was dismissed at the preliminary hearing by a District Justice since the bound-over charge of violating Section 3731(a)(1) and the dismissed charge of violating Section 3731(a)(4) were cognate offenses.

Consistent with Jacobs and Slingerland, we extend their rationale to encompass Subsection (a)(5) of Section 3731 within the ambit of “cognate” offenses embracing Subsections (a)(1) and (a)(4) of Section 3731. Each subsection is aimed at penalizing the operator of a vehicle where his/her blood aleohol level impairs the ability to drive, is above a certain level and is tested within a specified period of time.

Section 3731(a)(1), (4) and (5) have the laudatory objective of curbing the senseless injury and death that invariably results from the operation of motor vehicles by intoxicated individuals. Each subsection effects that goal by criminalizing separate and distinct conduct on a continuum aimed at thwarting operation of a motor vehicle by an intoxicant. Because there is a common thread which runs through Subsections (a)(1), (4) and (5), i.e., eliminating the carnage on our highways caused by drunken drivers, we hold that (a)(5) is “cognate” to (a)(1) and (a)(4). Jacobs, supra, at 411, 640 A.2d 1326; Slingerland, supra, at 531, 518 A.2d 266.

Instantly, the criminal complaint charged the appellant with, inter alia, violations of 75 Pa.C.S.A. § 3731(a)(1) and (a)(4), both of which were held for court following the preliminary hearing. However, with the drafting of the Criminal Information by the District Attorney, he added the (a)(5) charge to the list of offenses against the appellant.

Albeit the elemental aspects of the offenses listed in Subsections (a)(1), (a)(4) and (a)(5) are not synonymous, they do share a commonality of objective and spring from the single concern of keeping (and penalizing) the motorist who has consumed alcohol to a degree rendering his/her driving hazardous off the roadway. We find, therefore, that the criminal complaint charged Brehm with driving while under the influence of alcohol to an extent which rendered him incapable of safe driving and having a blood alcohol reading of .10 percent or greater were sufficient to permit the District Attorney to add to the Criminal Information the cognate offense of driving while the appellant’s blood alcohol content exceeded .10 percent, a reading which was obtained within 3 hours after the accused operated the vehicle.

Likewise, the appellant’s contention that the absence of a preliminary hearing, to assess the prima facie level of proof required to be established by the Commonwealth as to Section 3731(a)(5) in order to hold it for court, constitutes a violation of his due process rights is meritless.

In this jurisdiction, “ ‘once a defendant has gone to trial and been found guilty of a crime, any defect in the preliminary hearing is rendered immaterial.’ ... Where, as in the instant case, ‘it is determined at trial that the evidence of the Commonwealth is sufficient to be submitted to the jury, then any deficiency in the presentation before the district justice would have been harmless.’ ” Jacobs, supra, 433 Pa.Super. at 420, 640 A.2d at 1330 (Citations omitted). Such is the case here.

The final issue raised urges that 75 Pa.C.S.A. § 3731(a)(5) violates the appellant’s due process rights under the United States and Pennsylvania Constitutions “in that it shifts the burden of proof to a criminal defendant, elevates that burden, creates an impermissible presumption of guilt, is overbroad and/or lacks a rational relationship to a legitimate state interest.” Appellant’s Brief at 4.

When the argument section of the appellant’s brief is examined, we find that the constitutional challenge to Section 3731(a)(5) is refined to claims that it is “overbroad” in that it does not give notice of the conduct prohibited; requires the presentment of a defense which shifts the burden of proof from the Commonwealth to the defendant; “increases” the burden from one “beyond a reasonable doubt” to a “preponderance of the evidence” and is not rationally related to a legitimate state purpose. Id. at 10-13.

Our analysis begins with the strong presumption of constitutionality and the heavy burden of persuasion upon one who challenges the constitutionality of an Act of the General Assembly. Accordingly, legislation will not be declared unconstitutional unless it “clearly, palpably and plainly” violates the constitution.
Moreover, it has been said that probably the most important function of government is the exercise of the police power for the purpose of preserving the public health, safety and welfare, and it is true that, to accomplish that purpose, the legislature may limit the enjoyment of personal liberty and property. * * * The police powers of the Commonwealth are particularly broad in matters pertaining to the safety and efficient functioning of the highways, and perhaps strongest in matters pertaining to the sale, consumption and regulation of alcoholic beverages.

Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339, 1340-41 (Citations omitted; footnote omitted).

With the preceding in mind, we begin our analysis with the appellant’s “overly broad” argument regarding the alleged lack of notice of the conduct proscribed by Section 3731(a)(5). In reviewing “overbreadth” claims, we first consider whether the statute infringes upon a “substantial amount of constitutionally protected conduct.” Village of Hoffman Estates v. Flipside, 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). Before doing so, however, a review of Section 3731(a)(5) is in order. It reads:

A person shall not drive, operate or be in actual physical control of the movement of any vehicle ...
(5) if the amount of alcohol by weight in the blood of the person is 0.10% or greater at the time of a chemical test of a. sample of the person’s breath, blood or urine, which sample is:
(i) obtained within three hours after the person drove, operated or was in actual physical control of the vehicle—

75 Pa.C.S.A. § 3731(a)(5).

Here, it is to be observed that the Commonwealth, in the exercise of its police powers, has a legitimate interest in enacting legislation controlling and regulating drunk driving. See Mikulan, supra. And the appellant cites no authority, nor have we been able to find any, for the proposition that driving while under the influence of alcohol is constitutionally protected. City of Fargo v. Stensland, 492 N.W.2d 591, 593 (N.D.1992); State v. Chirpich, 392 N.W.2d 34, 37 (Minn.Ct.App.1986). Moreover,

... there is no constitutional, statutory or common law right to the consumption of any quantity of alcohol before driving and there is little doubt that the legislature could, if it so chooses, prohibit driving within a certain reasonable time after drinking any amount of alcohol (so long as the prohibition was rationally related to the legitimate legislative purpose).

Mikulan, 504 Pa. at 254, 470 A.2d at 1344 (Citations omitted; emphasis in original). The reference in Mikulan to the Legislature having the authority to pass restrictions on the consumption of alcohol came to fruition with Section 3731(a)(5)’s time constraint, and we find that there is a rational relationship between the prohibition (of not having a blood alcohol reading of .10 percent or greater within 3 hours after ceasing to drive) and the legitimate state purpose of keeping such individuals who exhibit such characteristics off the roadway as a public hazard.

The Supreme Court of North Dakota has held that its state’s drunken driving law, which is similar to that under scrutiny here, passed constitutional muster under the “rational relationship” test. In doing so, the court made comments germane to our analysis here; to-wit:

It is true that a person with a blood alcohol content below .10% while driving may be convicted under the challenged statutes due to the time delay between arrest and testing. The appellants, however, miss the point. The precise blood alcohol content at the time of operation or control is not a element of the per se offense. The legislature, in adopting the statutes, apparently seeks to deter persons who consume a substantial amount of alcohol from driving. This may lead to convictions of those who drive, for example, with a blood-alcohol content of .09%. This result, however, is not unreasonable or arbitrary. In enacting the per se offense the legislature considered testimony regarding impairment levels and factors that affect alcohol absorption and reduction rates. House Judiciary Minutes, March 1, 1983, SB2373. The legislature could reasonably conclude that those who drive a vehicle with a blood-alcohol content that is .10% or greater, within two hours after relinquishing control of a vehicle, pose an unreasonable risk to the public safety. The statutes are rationally related to removing the risk. See Erickson v. Municipality of Anchorage, 662 P.2d 963, 969 (Alsaka App.1983) (Singleton, J., concurring); Knapp v. Miller, 165 Ariz. 527, 799 P.2d 868, 872 (App. 1990).

City of Fargo, supra, 492 N.W.2d at 594-95.

Albeit it is true that the time of testing may lead to convictions of some individuals who had a blood-alcohol level below .10% at the time of the operation or control of the vehicle, it is also likely that the time delay between arrest and testing will permit some individuals who drove with a blood-alcohol content of .10% or more to avoid conviction. Nonetheless, “[s]uch results are unavoidable since an arrest supported by probable cause must occur prior to administering a blood-alcohol content test.” Id, Consequently, we find that Section 3731(a)(5) is not “overly broad” and is rationally related to a legitimate state interest of protecting its citizenry against the devastation caused by drunken drivers. See Mikulan, supra, at 504 Pa. 244, 470 A.2d 1339 (Discussing constitutionality of Section 3731(a)(4)).

We next turn our attention to the claim that Subsection (a.l) of Section 3731(a)(5) shifts the burden of proof to the defendant to show that if he was .10% or more within 3 hours of driving, that he was not .10% or more at the time of driving. A similar argument was rejected by the Court of Appeals of Arizona in State v. Martin, 174 Ariz. 118, 847 P.2d 619, 624 (1992) which wrote that:

... in Cacavas [v. Bowen, 168 Ariz. 114, 811 P.2d 366 (1991) ] ... this court concluded that ... section 28-692(A)(2) is violated by “having the requisite BAC not only at the time of operating or controlling the motor vehicle but also within two hours thereafter.” Id., 168 Ariz. at 117, 811 P.2d at 369 ... We agree____ The essential element of 28-692(A)(2) is violated by “having the requisite BAC not only at the time of operating or controlling the motor vehicle but also within two hours thereafter.” Id., 168 Ariz. at 117, 811 P.2d at 369 ... We agree---- The essential element of 28-692(A)(2) is having a BAC of 0.10 percent within two hours after driving. Section 28-692(B) neither establishes that element nor places the burden of disproving it on the defendant. To convict a defendant of a violation of section 28-692(A)(2), the state must still prove beyond a reasonable doubt that defendant’s blood alcohol concentration was 0.10 or more within two hours of driving. [Emphasis in original]

As in Martin, we find that the prosecution has the never-shifting burden of proving every essential element of a crime. See Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880, 884 (1974); Commonwealth v. McFarland, 252 Pa.Super. 523, 382 A.2d 465, 468 (1977). Here, it is having a .10% or greater blood-alcohol level within 3 hours after driving. In rebuttal, the defendant may offer, if he so chooses, evidence that he consumed alcohol after driving which caused his blood alcohol level to increase to a .10% or greater level. This affirmative defense is, as has been traditionally acknowledged in this Commonwealth, the responsibility of a defendant to prove by a preponderance of the evidence. See Commonwealth v. Reilly, 519 Pa. 550, 549 A.2d 503 (1988) (insanity); Commonwealth v. Cropper, 463 Pa. 529, 345 A.2d 645, 649 n. 8 (1975) (Listing defenses to be proven by defendant by preponderance of evidence); Commonwealth v. Mance, 422 Pa.Super. 584, 619 A.2d 1378 (1993) (Entrapment); McFarland, supra, at 523, 382 A.2d 465 (Weapon lawfully possessed).

Instantly, Subsection (a.l) of Section 3731(a)(5) (consuming alcohol after driving but within 3 hours of testing caused .10% or greater reading of blood-alcohol) is not an element of the offense to be disproven by the prosecution. See Martin, supra. Since (a.l) is not an element of the crime, the defendant does not have any burden of persuasion as to it. Rose, supra; Martin, supra. And, because the prosecution still must prove beyond a reasonable doubt that the blood-alcohol concentration was .10% or more and expert testimony is available to both sides on the effects of alcohol on the blood over a period of time, there is no impermissible burden shift to the defendant in a prosecution under Section 3731(a)(5). See Martin, supra; Chirpich, supra.

Lastly, inasmuch as the appellant’s “overly broad” contention incorporates elements of a “lack of notice” equivalent to a “void-for-vagueness” argument, we will respond to such a claim.

The void-for-vagueness doctrine, as extensively developed by the United States Supreme Court, is a due process doctrine incorporating notions of fair notice and warning. Smith v. Goguen, 415 U.S. 566, 572, 94 S.Ct. 1242, 1246, 39 L.Ed.2d 605 (1974); Commonwealth v. Potts, 314 Pa.Super. 256, 460 A.2d 1127, 1133 (1983). Its purpose is to protect against statutes which preclude drivers from ascertaining whether their conduct comes within the ambit of the law or whether they, unknowingly, may expose themselves to civil or criminal repercussions by their actions. See Martin, supra; People v. Lebron, 130 Misc.2d 831, 501 N.Y.S.2d 975 (1986). As a corollary thereto, fundamental notions of due process require that the law enforcement community must be able to administer the law fairly. Lebron, supra.

The appellant asserts that the statute does not provide notice of the conduct proscribed. Section 3731(a)(5) was added to the arsenal of weapons to combat drunken driving and protect the public: driving to a point of being incapable of operating a vehicle safely (Section 3731(a)(1)); driving while one’s blood-alcohol level is .10% or greater (Section 3731(a)(4)).

By creating a specific, objective criterion for a predefined blood-alcohol content (BAC) with which to compare an individual’s BAC, the statute provides “notice” of the illegal behavior with sufficient particularity. Martin, supra. Also, the verbiage “within three hours after the person drove, operated or was in actual physical control of the vehicle” provides specific and objective guidelines to the potential offender and to those charged with enforcing the law. Id.

It would appear that Section 3731(a)(5) is a response by the Legislature to the Pennsylvania Supreme Court’s Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992) and Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992) decisions calling for “relation back” evidence linking the .10% or greater blood-alcohol test results to the period of time the defendant was operating the vehicle to obtain a conviction. Now, with (a)(5) no “relation back” proof is necessary to establish a violation of that subsection because the Legislature has concluded that a person with a BAC of .10% or greater within the 3-hour period poses a sufficient danger to the public to justify broadening the conduct. See Martin, supra.

From applying a common sense reading to the statute under attack (see 1 Pa.C.S.A § 1921), we find that the act gives fair notice to a driver who has consumed alcohol that testing may take place over a 3-hour period and that a BAC of .10% within that time-frame violates Section 3731(a)(5). Id. It also allows those assigned the responsibility of enforcing the law a clear standard for measuring violators. As such, we find no merit to the appellant’s “lack of notice” averment.

Finding no merit to any of the arguments presented for our scrutiny by the appellant, we affirm the judgment of sentence.

Judgment of sentence affirmed.

McEWEN, J., files a dissenting statement.

McEWEN, Judge,

dissenting.

While the expression of the majority reveals a particularly keen perception and provides a most persuasive presentation of view, I am compelled to this statement of dissent.

Nunc pro tunc is a most familiar phrase in the language of the law and means:

Now for then. In re Peter's Estate, 175 Okl. 90, 51 P.2d 272, 274. A phrase applied to acts allowed to be done after the time when they should be done, with a retroactive effect, i.e., with the same effect as if regularly done.
Nunc pro tunc signifies now for then, or, in other words, a thing is done now, which shall have same legal force and effect as if done at time when it ought to have been done. State v. Hatley, 72 N.M. 377, 384 P.2d 252, 254.

Black’s Law Dictionary 964 (5th ed. 1979).

Ex post facto is a hallowed phrase in the language of the law, and even so ancient that the nobles, when they imposed the Magna Carta upon King John in 1215, used the phrase to proscribe the subsequent declaration of earlier conduct as criminal. Surely, nunc pro tunc would also have been addressed by the lords, become part of the Magna Carta, and attained hallowed historical stature had the king been beheading subjects for a crime because they later smelled guilty— but even King John was not beheading citizens for acts that were ex post facto nunc pro tunc.

Thus, as admirable and necessary as is the mission of advocates against drunk driving and as worthy as are the advocates themselves, I am compelled, the Supreme Court of North Dakota notwithstanding, to the conclusion that the current text of subsection 5 of Section 3731 of the Vehicle Code casts a net beyond any lawful perimeter since it impermissibly encroaches upon the rights of an accused by relieving the prosecutor of establishing that any amount of alcohol was in the blood of the driver at the time the driver was operating the vehicle.

      . The appellant was also found guilty of the summary offense of driving while under suspension, for which he received a sentence of 90 days imprisonment to be served consecutively to the DUI conviction.
      Service of sentence was suspended pending the outcome of this appeal.

      . In Commonwealth v. Rishel, 441 Pa.Super. 584, 658 A.2d 352 (1995), this Court addressed some, but not all, of the constitutional challenges presented by the appellant here and found the same to be meritless. We now add to the Rishel analysis by upholding the constitutionality of Section 3731(a)(5).

      . Section 3731(a)(5) reads:
      (a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle ...
      (5) if the amount of alcohol by weight in the blood of the person is 0.10% or greater at the time of a chemical test of a sample of the person’s breath, blood or urine, which same is:
      (i) obtained within three hours after the person drove, operated or was in actual physical control of the vehicle; or
      (a.l) Defense. — It shall be a defense to a prosecution under subsection (a)(5) if the person proves by a preponderance of the evidence that the person consumed alcohol after the last instance in which he drove, operated or was in actual physical control of the vehicle and that the amount of alcohol by weight in his blood would not have exceeded 0.10% at the time of the test but for such consumption.

      . See note 3, supra.

      . Any "self-incrimination" argument posited by the appellant is rendered nugatory by the availability of expert testimony to the effect of alcohol consumption on the body. Although defendant would have to testify to consuming alcohol that does not violate a right against self-incrimination where the testimony will be for exculpatory purposes.

      . Briefly, we wish to reply to the appellant’s contention that the burden of proof is increased from that of "beyond a reasonable doubt” to a "preponderance of the evidence” under Section 3731(a)(5)(a.1). This is erroneous.
      The preponderance of the evidence standard is a step down from the higher beyond a reasonable doubt level of proof. See Black’s Law Dictionary 161 & 1182 (6th ed. 1990). Thus, the level of proof is decreased not increased in the wake of the preponderance of the evidence standard referred to in Section 3731(a)(5)(a.1) if the defendant wished to put on a defense.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    663 A.2d 720
    COMMONWEALTH of Pennsylvania v. Calvin JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Argued March 9, 1995.
    Filed Aug. 9, 1995.

      Bradley S. Bridge, Asst. Public Defender, Philadelphia, for appellant.
    Norman Gross and George S. Leone, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
    Before DEL SOLE, FORD ELLIOTT and CERCONE, JJ.
   DEL SOLE, Judge:

In this appeal, we must determine whether the trial court violated Appellant’s State and Federal Constitutional right to counsel when it removed trial counsel for unauthorized review of confidential information relating to a Commonwealth witness. We hold that the removal of Appellant’s counsel, under the circumstances of this case was not a violation of Appellant’s State or Federal guarantees.

Appellant was arrested in 1993 for the murder of Elvira Hayes who was killed in February of 1981. At the time of Ms. Hayes’ death, her son L.P. was 2}4 years old. Young L.P. was found sleeping on the body of his deceased mother as she laid in the second floor hallway of their home. Ms. Hayes died by strangulation, but no one was charged with the murder at the time. The victim’s sister, Brenda Thompson, and her husband adopted L.P., and he was taken to the Philadelphia Child Guidance Clinic for counseling shortly after the murder to help him cope with his mother’s death. When L.P. exhibited difficulties in learning and school behavior, he was evaluated at the Irving Schwartz Institutes. Then, in 1988, L.P. was placed in a partial hospitalization program at the Eastern Pennsylvania Psychiatric Institute (EPPI). At the end of 1990, he left the program and returned in January 1991 for one month of inpatient treatment. During the partial hospitalization program, L.P. was evaluated at Children’s Seashore House, and he was also evaluated by school personnel regularly-

Thirteen years after his mother’s death, L.P. provided a statement that prompted the arrest of Appellant. He recalled seeing the Defendant lying on top of his mother at the place where the body was found. He testified at the preliminary hearing that although he had not related this to anyone until recently, he “always had the picture” in his mind.

The Public Defender Association was appointed to represent appellant. In preparing for trial, Thomas Innes and William Bachmann, filed motions for discovery of Lamar’s entire psychiatric file from every institution that evaluated him. The defense argued that since L.P. did not disclose his memory of the night of the murder until thirteen years after the event, his psychiatric records were necessary for the proper preparation of the defense.

At a hearing on December 22, 1993, the defense informed the court that an order was necessary to obtain the psychological records of L.P. due to their confidential nature. The court determined that the proper procedure was to order the records be produced in court at a time certain for review by the judge who would determine whether relevant information was contained in the records that should be released to counsel. The records from the Child Guidance Clinic were produced in court, and, after judicial review, they were made available to defense counsel. Thereafter, the court issued a separate order dated December 29, 1993 to EPPI to produce in court on January 11, 1994 any and all records relating to L.P. Despite the court order, the EPPI records were hand delivered to defense counsel who read and copied them. The EPPI records also contained L.P.’s records from the Irving Schwartz Institute, Children’s Seashore House and the Philadelphia school system. When the trial court realized the extent to which the court order had been violated by defense counsel, it decided to provide both sides with L.P.’s psychological evaluations to remedy any unfair advantage the defense gained by perusing the EPPI records before sending it to the court. The Commonwealth, however, did not review the records but petitioned to have a child advocate appointed to protect L.P.’s rights.

The court appointed Louis Schoener, Esquire as child advocate for L.P. since neither he nor his guardian, Ms. Thompson, had waived his right to confidentiality regarding his mental health records. A hearing was held on July 12, 1994 where Mr. Schoener argued that L.P.’s records were absolutely privileged by 42 Pa.C.S.A. § 5944 and Common wealth v. Smith, 414 Pa.Super. 208, 606 A.2d 939, alloc. denied, 533 Pa. 624, 620 A.2d 490 (1992) and Commonwealth v. Kennedy, 413 Pa.Super. 95, 604 A.2d 1036 (1992) (en banc), alloc. denied, 531 Pa. 638, 611 A.2d 711 (1992). Mr. Schoener also suggested that the best recourse to protect confidentiality was to remove defense counsel. The Commonwealth also held the position that removing defense counsel was the only means to protect L.P.’s rights without jeopardizing Appellant’s right to a fair trial. After a hearing was held on August 2,1994, the court removed the Public Defender Association as counsel for Appellant and appointed new counsel. We now review this action.

We recognize the significance of the right to counsel. In Commonwealth v. Cassidy, 390 Pa.Super. 359, 568 A.2d 693 (1989), appeal denied, 525 Pa. 641, 581 A.2d 567 (1990), we stated:

Criminal defendants are given numerous rights under our state constitution: the right to counsel; the right to know the charges filed against them; the right to face the witnesses testifying against them; the right to subpoena individuals to testify in their defense; the right to a speedy trial; the right against self-incrimination; and the right to trial by jury. See Pa. Const. art. 1, § 9 (Supp.1989). Of all of these rights, the right to counsel is arguably the most important. It is the key which opens the door to all of a defendant’s other rights.

Id. at 390 Pa.Super. 364, 568 A.2d at 695-696.

Appellant correctly states that Article 1, Section 9, of the Pennsylvania Constitution and the Sixth Amendment of the U.S. Constitution provide a criminal defendant with the right to counsel of his choice. Commonwealth v. Novak, 395 Pa. 199, 150 A.2d 102 (1959).

“[T]he accused regardless of financial status is guaranteed the right to the assistance of counsel, either counsel of his own choosing, or if indigent or otherwise unable to secure counsel counsel [sic] assigned by the court. Gideon v. Wainwright, [372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) ].” (emphasis added).

Moore v. Jamieson, 451 Pa. 299, 307, 306 A.2d 283, 288 (1973). However, a criminal defendant is not entitled to court-appointed counsel of choice at the outset of representation, Commonwealth v. Stiles, 229 Pa.Super. 411, 323 A.2d 841 (1974), nor is the choice of retained counsel an absolute right. Commonwealth v. Baines, 480 Pa. 26, 389 A.2d 68 (1978). Instantly, the trial court determined that Lamar’s psychiatric records are protected from disclosure by 42 Pa.C.S.A. § 5944 and defense counsel’s action of reviewing the EPPI files prior to review by the trial court eradicated that protection. The trial court further stated that Appellant’s indigence was not a factor considered by the court when deciding whether to remove counsel. The court commented that “... if any defense counsel, privately retained or appointed, had acted as the Public Defender has, the court would have been in the same position and would have taken the same course of action.” (Trial court op. filed Sept. 14,1994 at 14). We agree that this is the appropriate standard where removal of court appointed counsel is being considered over the objection of both the defendant and counsel.

Appellant relies on several cases seeking to support his view that the trial court erred in ordering removal. Appellant’s reliance is misplaced. In Moore v. Jamieson, supra, at 299, 306 A.2d 283, our supreme court held that a court rule requiring attorneys to forego taking any additional criminal cases if the lawyer already has ten or more criminal cases which are over a year old was defective as too vague and overbroad due to lack of any standard to challenge the reason for the delay in any particular case. The court also decided that the rule unnecessarily infringed upon the defendants’ right to counsel of their choosing in violation of the Sixth Amendment, and to counsel’s right to pursue the profession because it is not reasonably related to the state interest in reducing the backlog of cases.

In Cassidy, supra, at 390 Pa.Super. 359, 568 A.2d 693, the trial court granted a motion to disqualify the defendant’s attorney because he represented a co-defendant in a federal prosecution. Following the co-defendant’s conviction, he cooperated with the state in prosecuting defendant Cassidy. The Commonwealth perceived counsel’s representation as a conflict of interest. We held that, under the Sixth Amendment, a presumption must be recognized in favor of the defendant’s counsel of choice, and to overcome that presumption, there must be a showing of actual conflict or a showing of a serious potential for conflict. Since the record did not show a conflict or potential for conflict, we determined that the right to counsel should not be interfered with in cases where the potential for conflicts of interest is highly speculative and the court should have afforded Cassidy the presumption in favor of his counsel of choice.

Commonwealth v. Hess, 532 Pa. 607, 617 A.2d 307 (1992) was also cited by Appellant. In that case, the trial court entered a temporary restraining order to require the defendant’s attorney in a drug case to preserve the retainer received for legal representation during pendency of the Commonwealth’s forfeiture claim. Our Supreme Court held that the Forfeiture statute violated Article 1, Section 9 of the Pennsylvania Constitution as it applies to the payment of attorney’s fees for criminal representation prior to conviction. Although the state has an interest in removing the profits of drug activity, this interest is not furthered by depriving the defendant of assets for obtaining an attorney prior to conviction. The state interest could be accomplished effectively without unduly infringing upon defendant’s right to counsel and the Forfeiture statute did not provide the narrowest infringement consistent with effectuating the state’s interest.

In the case before us, Appellant’s chosen counsel deliberately violated a court order requiring psychotherapy records be delivered to the trial court for review to determine whether they could be utilized by the attorneys. Nevertheless, Appellant asserts that the removal of his counsel for violating the court order interferes with his right to have counsel of his choice. It is well settled that the psychotherapeutic records of a witness are absolutely privileged, absent the consent of the patient. 42 Pa.C.S.A. § 5944.

In Commonwealth v. Kennedy, supra, at 413 Pa.Super. 95, 604 A.2d 1036, the defendant raised the issue of whether Appellant’s state constitutional rights of confrontation and compulsory process were violated by the denial of access to absolutely privileged psychotherapeutic files not in the possession of the prosecution. Relying on Commonwealth v. Kyle, 367 Pa.Super. 484, 533 A.2d 120 (1987), appeal denied, 518 Pa. 617, 541 A.2d 744 (1988), we held that the absolute privilege of confidentiality would not be subject to balancing against a defendant’s right of confrontation because that would destroy the right which the privilege sought to protect. We noted in Kennedy that the statutory privilege was created due to the state’s interest in promoting successful therapeutic treatment and in protecting the fundamental right of its citizens to the privacy of their most intimate statements communicated during psychotherapeutic sessions.

Unlike Moore v. Jamieson, Cassidy, and Hess, the case before us involves a statutorily enacted absolute privilege. As in the Kennedy case, we do not think that a balancing between Appellant’s constitutional right to counsel of choice against the statutory privilege would be appropriate. It is clear that these therapy records are unavailable for defense use. Our concern here is only whether the removal of defense counsel was an unwarranted measure to employ and unnecessarily infringed upon his constitutional right to counsel.

“When a defendant’s selection of counsel, under the particular facts and circumstances of a case, places the fairness and integrity of the defendant’s trial in jeopardy, the defendant’s right to counsel of choice may be justifiably denied.” Commonwealth v. Cassidy, 390 Pa.Super. 359, 369, 568 A.2d 693, 698, citing, Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). Here, the trial court remarked that it did not realize the magnitude of the violation committed by defense counsel until after they filed petitions to re-open the preliminary hearing and petitioned again to receive the entire record. The trial court believes that defense counsel would be unable to delete from their memories the information absorbed after reviewing the psychotherapeutic records. The trial court was also not convinced that less drastic measures, such as motions in limine, could successfully be utilized to prevent the use of the information derived from the privileged records.

It was defense counsel’s blatant disregard for the court’s unambiguous order and the child witness’s right to confidentiality which placed the fairness and integrity of Appellant’s trial in jeopardy. We conclude that the trial court did not abuse its discretion by removing counsel under the circumstances of this case, and such action does not constitute a violation of Appellant’s State or Federal Constitutional right to counsel. Therefore, we affirm the order removing defense counsel.

Order affirmed.

      . Confidential communications to psychiatrists or licensed psychologists
      No psychiatrist or person who has been licensed under the act of March 23, 1972 (P.L. 136, No. 52), to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.
      42 Pa.C.S.A. § 5944.

      . The Commonwealth moved to quash this appeal as interlocutory. It argued that since this appeal is from an order removing court-appointed counsel, the concerns expressed by this court in Commonwealth v. Cassidy, infra, involving the expenditure of money for privately retained counsel necessitating the right of immediate review of a removal order do not apply. The motion to quash was referred to the full-court and was denied.
      Appellant also relied on Cassidy, infra, for the proposition that a pretrial appeal of an order disqualifying defense counsel is immediately reviewable. In that case, we applied the test set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), for determining what constitutes a final order. An order that appears interlocutory on its face is considered final and appealable if: 1) it is separable from and collateral to the main cause of action; 2) the right involved is too important to be denied review; and 3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. This test is now codified by Pennsylvania Rule of Appellate Procedure 313.
      In Cassidy, where the defendant retained private counsel, we determined that the order removing counsel was appealable since it met the requirements of the Cohen test. We reasoned that the order disqualifying Cassidy’s counsel was separable from and collateral to the main cause of action, the right to counsel of one’s choice is protected by the Sixth Amendment and is too important to be denied review, and the right to counsel of choice will be irreparably lost if review is postponed until final judgment because the defendant would have been forced to pay for and proceed to trial without counsel of choice, and, if convicted. defendant would have to appeal to secure the right to be represented by counsel originally retained. Then, if awarded a new trial on appeal, the defendant may not possess sufficient funds to finance representation by originally retained counsel. We agree that unlike the situation in Cassidy, if review of the order removing court-appointed counsel had been postponed until final judgment, Appellant would not suffer the financial harm contemplated since he was not paying for counsel. However, the financial ability of the defendant is not the test for irreparable harm. Being required to proceed to trial where counsel of choice has involuntarily been removed can be devastating to a defendant. Tactics and strategy at the first trial can lead to disaster that cannot be remedied. Further, to permit an immediate appeal from an involuntary order removing counsel only in cases where counsel is privately retained implies a two tiered system of criminal justice, a situation that should be avoided.

      . Although not an issue in this case, even the trial court’s in camera review of Lamar Person’s psychotherapy files was error. See Commonwealth v. Kennedy, supra, at 413 Pa.Super. 95, 604 A.2d 1036 and Commonwealth v. Kyle, supra, at 484, 533 A.2d 120.


author: HUDOCK, Judge:

text:
    663 A.2d 725
    In re Petition of Ronald KOENIG. Appeal of Ronald KOENIG.
    Superior Court of Pennsylvania.
    Argued June 29, 1995.
    Filed Aug. 8, 1995.

      Michael S. Goodwin, New Britain, for appellant.
    Theodore Fritch, Jr., Asst. Dist. Atty., Doylestown, for the Com., participating party.
    Before ROWLEY, President Judge, and HUDOCK and CERCONE, JJ.
   HUDOCK, Judge:

Ronald Koenig (Appellant) appeals from the order of the trial court denying his petition for return of property pursuant to Rule 324 of the Pennsylvania Rules of Criminal Procedure, 42 Pa.C.S.A. We reverse.

The trial court summarized the facts underlying the present dispute as follows:

On April 24, 1994, the New Britain Township police went to the residence of [Appellant] in response to a call from his wife, Sharon Koenig. Mrs. Koenig testified that [Appellant] was intoxicated and threatened to kill her and their son. She stated that [Appellant] threatened “to blow us away”. This altercation occurred in the kitchen of the house.
The police responded with a commitment pursuant to the Mental Health Procedures Act, 50 P.S. § 7302 and found [Appellant] in his bedroom. In the bedroom was a rifle on a tripod, a handgun on a night table and an AK-47 in a box under the bed. Another firearm was found in an adjacent office.

Trial Court Opinion, 3/15/95, at p. I. Mrs. Koenig testified that the argument occurred at 4:30 a.m., she then left the residence and, at approximately 10:00 a.m., called the police to check on her husband. Mrs. Koenig claimed that she placed the call because she was afraid Appellant might kill himself. She also testified that she felt safe at the time she called the police and was only concerned with Appellant’s welfare. The trial court declined to accept this testimony, concluding that Mrs. Koenig was attempting to “sugar coat” her testimony because she had now reconciled with Appellant. N.T., 1/19/95, at p. 11. Indeed, the trial court stated its belief that Mrs. Koenig was terrified for her own safety when she made the call to police.

The guns discovered by the police, as well as ammunition and a hunting knife, were seized as derivative contraband. Appellant voluntarily entered an alcohol rehabilitation program and no criminal proceedings were instituted. Thereafter Appellant filed a petition seeking the return of his property. This petition, as well as a petition to reconsider, were denied by the trial court. This appeal followed.

The sole issue raised on appeal is whether the trial court abused its discretion in denying Appellant the return of his property. With regard to the return of property seized by police, this Court has stated:

On a motion for return of property, the moving party has the burden of proving ownership or lawful possession of the items. Commonwealth v. Pomerantz, 393 Pa.Super. 186, 573 A.2d 1149 (1989). The burden then shifts to the Commonwealth to prove, by a preponderance of the evidence, that the property is contraband. Id. Rule 324 was interpreted at length by this court in Petition of Maglisco, 341 Pa.Super. 525, 491 A.2d 1381 (1985). Maglisco reaffirmed the principle that where criminal charges have been dismissed, seized property may be retained by the Commonwealth only if it comprises contraband per se or derivative contraband.
Contraband per se is property whose possession is unlawful; derivative contraband is property which is innocent in itself but which has been used in the perpetration of an unlawful act. One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, [380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170] (1965); Commonwealth v. Fassnacht, 246 Pa.Super. 42, 369 A.2d 800 (1977), cert. denied, [439 U.S. 911, 99 S.Ct. 280, 58 L.Ed.2d 257]. Property is not derivative contraband, however, merely because it is owned or used by someone who has been engaged in criminal conduct. Commonwealth v. One 1985 Dark Blue Mercedes, 391 Pa.Super. 507, 571 A.2d 482 (1990), alloc. denied 526 Pa. 654, 586 A.2d 922 (1990). Rather, the Commonwealth must establish a specific nexus between the property and the alleged criminal activity. Id.; Petition of Maglisco, supra, at 525, 491 A.2d 1381 (although actual gun used in crime is derivative contraband, rifles not used in commission of crime must be returned).

Commonwealth v. Stipetich, 424 Pa.Super. 539, 544-45, 623 A.2d 360, 362 (1993). There is no real dispute as to whether Appellant lawfully possessed the items which were seized. Thus, the issue becomes whether the Commonwealth could prove, by a preponderance of the evidence, that these items were derivative contraband.

In Petition of Maglisco, 341 Pa.Super. 525, 491 A.2d 1381 (1985), wife shot her husband in the leg with a .38 caliber pistol. Upon responding to the residence, the police seized the pistol. A few horn's later, the police returned and confiscated several rifles in wife’s possession. Charges against wife were later dropped. Following a hearing, both the pistol and the rifles were forfeited. On appeal to this Court, the forfeiture of the pistol was upheld while the forfeiture of the rifles was reversed. In so doing, this Court stated:

In the instant case, the pistol was uncontrovertibly fired by appellant Maglisco with a bullet lodging in the leg of her husband. We do not hesitate to conclude that, by a preponderance of the evidence, a crime was committed with the pistol and it is, therefore, derivative contraband.
This conclusion cannot be reached with regard to the rifles. There was no evidence presented at the forfeiture hearing that the rifles had been used in the commission of any crime. Nor has extensive research disclosed a single case where the “guilt” of one object of derivative contraband was held to attach by association to other similar, but noneulpable objects owned by the same person. Such a theory has certain common-sense validity, which is well-illustrated by this very case. The court below was, by its own statements, seeking to avoid the recurrence of another firearm incident through the removal of the rifles from appellant Maglisco’s possession. But, if derivative contraband is defined only as those objects used in the commission of a crime, then the rifles cannot be so labelled, and, thus, cannot be forfeited.

Id. 341 Pa.Super. 531, 491 A.2d at 1384. See also Commonwealth v. One 1985 Dark Blue Mercedes, 391 Pa.Super. 507, 513-15, 571 A.2d 482, 485 (1990), alloc. den., 526 Pa. 654, 586 A.2d 922 (“Objects do not acquire ‘guilt by association’ merely because they are owned by a person who has been engaged in criminal conduct____ The requirement that a sufficient nexus exist between the property and the prohibited criminal activity serves to mitigate the potentially harsh results of permitting the Commonwealth to penalize a citizen by a civil action against his property rather than a criminal action against his person.”).

In the present case, the trial court found Maglisco distinguishable. It then reasoned as follows:

Here, [Appellant] made a threat to his wife and son that he would “blow them away”. The use of this phrase obviously implies that a firearm would be used. [Appellant’s] substantial arsenal, located in the house in which the threats were made, was certainly apparent to his wife and son at the time of his threat. [Appellant’s] threat to kill could have been easily carried out by using the handgun, the rifle, or the AK-47. The fact that [Appellant] had an ample choice of firearms and easy access to them must have made his wife’s fears all the more plausible and terrifying.
There is a substantial nexus between the imposing firearm collection of [Appellant], as a group and individually, to the terroristic threats made to his wife and son. See Comm. v. One 1985 Dark Blue Mercedes, 391 Pa.Super. 507, 571 A.2d 482 (1990). Therefore, each firearm in [Appellant’s] house was used in the commission of the unlawful act, the threats to his family.
Considering the threat to kill and “blow” away his family, and the easy access to firearms, it is appropriate that each firearm be deemed derivative contraband used in the commission of an unlawful act and properly forfeited.

Trial Court Opinion, 3/15/95, at pp. 2-3. We find the trial court’s reasoning unpersuasive.

It is undisputed that when Appellant threatened his wife and son he was in the kitchen of the home and had no gun or other weapon in his hand. Thus, it cannot be said that any of these guns were used in the perpetration of the crime. As noted in Maglisco, and reaffirmed in One 1985 Dark Blue Mercedes, guilt by association is not enough. In the present case, the fact that any of these guns could have been used to carry out the threat does not render them derivative contraband subject to forfeiture. See also Estate of Peetros v. County Detectives and District Attorney’s Office, 341 Pa.Super. 558, 560-62, 492 A.2d 6, 8 (1985) (“It is the status of the property when it was seized and the uses to which it had been put at the time which are determinative, not whether the property will be used for only lawful purposes in the future. To hold otherwise would be inconsistent with the entire concept of derivative contraband.”). It appears the trial court believed that Appellant’s “arsenal” posed a continued threat to Mrs. Koenig. This may be, but as stated by the Maglisco court, an item cannot be labelled derivative contraband merely to avoid the recurrence of criminal conduct.

Order reversed. The matter is “emanded for proceedings consistent with this memorandum. Jurisdiction relinquished.

      . On cross-examination a police officer conceded that the rifle was not positioned atop the tripod, but rather was leaning against a wall next to it. We also note that, at the time the threat was made, Appellant did not have any gun in his hand and Appellant’s son was not present.


author: KELLY, Judge:

text:
    663 A.2d 728
    COMMONWEALTH of Pennsylvania, Appellant, v. Andrew HENDERSON, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Robert KENNEDY, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Andre LONDON, Appellee.
    Superior Court of Pennsylvania.
    Argued May 10, 1995.
    Filed Aug. 10, 1995.

      Stuart B. Suss, Assistant District Attorney, West Chester, for Commonwealth, appellant.
    Jenny Steinen, Assistant Public Defender, West Chester, for appellees.
    Before ROWLEY, President Judge, and WIEAND, McEWEN, CIRILLO, DEL SOLE, KELLY, POPOVICH, FORD ELLIOTT, and SAYLOR, JJ.
   KELLY, Judge:

In this appeal we must determine whether the police may stop motor vehicles solely because their drivers and/or front-seat passengers over the age of four are not using seat belts. After careful consideration, we hold that the police lack the authority to stop motor vehicles under such circumstances. Thus, we affirm the suppression court’s February 1, 1994 order which suppressed all evidence accumulated against appellees, Andrew Henderson, Robert Kennedy, and Andre London, pursuant to East Fallowfield Township Police Chief Peter John Mango’s stop of the Ford LTD occupied by appellees.

The relevant facts and procedural history of this case are as follows. At approximately 9:22 p.m. on February 8, 1993, Chief Mango’s patrol car was parked off to the side of West Chester Road. Chief Mango’s patrol car was parked perpendicular to the roadway and its headlights were activated. The brown, four-door Ford LTD sedan occupied by appellees then drove through Chief Mango’s illuminated field of vision in an eastbound direction. At this point, Chief Mango noticed that the driver of the Ford LTD was not using his seat belt. Immediately, Chief Mango entered the eastbound lane of West Chester Road and proceeded to follow the Ford LTD. After approximately one-quarter mile of pursuit, Chief Mango noticed that the front-seat passenger of the Ford LTD was also not using his seat belt and Chief Mango stopped the vehicle.

When Chief Mango walked near the Ford LTD, he asked its driver, appellee-Kennedy, for his license, registration, and insurance card. Appellee-Kennedy told Chief Mango that he had no license or other identification with him. Dining this conversation, Chief Mango detected a strong odor of burning marijuana emanating from the Ford LTD. Consequently, Chief Mango asked the Ford LTD’s occupants who was smoking the marijuana. Appellee-Kennedy responded by telling Chief Mango that everyone inside the Ford LTD was smoking marijuana. At this point, Chief Mango arrested all of the occupants of the Ford LTD and requested the assistance of two other police officers.

When the additional police officers arrived to assist Chief Mango, all three appellees were searched at the site of their arrest. A pager and eight hundred, seventy-two dollars were found on appellee-Kennedy’s person. The search of appelleeHenderson’s person revealed a pager, seventy-one dollars and six .357 magnum rounds of ammunition inside a plastic bag. A pager, six hundred, fifty-two dollars and two plastic bags containing marijuana were found on appellee-London’s person. Finally, before leaving the site of appellees’ arrest, a search of the Ford LTD was conducted. This search revealed the butt of a marijuana cigarette, a package of cigarette rolling papers, a plastic bag containing cocaine residue, and another plastic bag containing marijuana.

Appellees were then transported to the police station where it was discovered that appellee-Kennedy had an outstanding bench warrant for violating his parole or probation, and appellee-London had outstanding summary traffic warrants. Additionally, more extensive searches of appellees’ persons were conducted at the police station. During these searches, thirty-one foil wrapped bags of cocaine were found inside appellee-Henderson’s underwear.

All three appellees were charged with possession of a controlled substance, possession with intent to deliver a controlled substance, possession of a small amount of marijuana, and criminal conspiracy. None of appellees were charged with violating any of the provisions of the Motor Vehicle Code. More specifically, none of appellees were charged with violating any of the provisions of the seat belt laws contained within the Motor Vehicle Code.

Appellee-Henderson and appellee-London each filed pretrial suppression motions. A suppression hearing on these motions was held on September 14, 1993, at which time the suppression court orally granted them. Subsequently, by order dated October 13, 1993, the suppression court vacated its September 14, 1993 suppression order and then held another suppression hearing in this matter on October 14, 1993. At this second suppression hearing, the suppression court permitted appellee-Kennedy to join appelleeHenderson’s suppression motion. Also, Chief Mango testified regarding the events that transpired on the evening of February 8, 1993 in order to establish a complete record for appeal.

By order dated February 1, 1994, the suppression court suppressed all statements and physical evidence associated with this case. In the opinion that the suppression court filed with this order, the Honorable Thomas G. Gavin opined that “the legislative intent in enacting 75 Pa.C.S.A. § 4581 was not to provide the police with an additional probable cause ground to make vehicular stops.” Suppression Court Opinion at 3. Thus, the suppression court concluded that Chief Mango’s stop of the Ford LTD was illegal. Id. at 5. Consequently, on February 16, 1994, the Commonwealth filed its notice of appeal. On March 2, 1994, the suppression court filed three opinions inviting this Court to examine its February 1, 1994 opinion for the reasoning behind its suppression order.

The Commonwealth raises the following issue for our review:

1. MAY A POLICE OFFICER WHO OBSERVES A SEAT BELT VIOLATION IN A PASSING VEHICLE STOP THAT VEHICLE TO WARN THE DRIVER AND OCCUPANTS OF THE VISIBLE SAFETY VIOLATION?

Commonwealth’s Brief at 3.

Preliminarily, we note that this Court’s standard of review in this case is as follows:

When reviewing the Commonwealth’s appeal from an adverse decision of the suppression court, we must consider “only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted.” Commonwealth v. Smith, 396 Pa.Super. 6, 8, 577 A.2d 1387, 1388 (1990). When the evidence supports the trial court’s findings of fact, we may reverse only when the legal conclusions drawn from these facts are erroneous. Id.

Commonwealth v. Quiles, 422 Pa.Super. 153, 156, 619 A.2d 291, 292 (1993) (en banc).

With this standard of review in mind, we will address the Commonwealth’s challenges to the suppression court’s February 1, 1994 suppression order. The Commonwealth contends that a police officer may stop a motor vehicle whenever the officer observes any of its front-seat occupants failing to use their seat belts. Specifically, the Commonwealth avers that the General Assembly intended to vest the police with the authority to stop a motor vehicle in order to issue oral hazard warnings if its front-seat occupants are not using seat belts. According to the Commonwealth, the authority of the police to stop motor vehicles whose front-seat occupants are not using seat belts in order to issue oral hazard warnings is derived from the police’s power under 75 Pa.C.S.A. § 6308(b) to enforce violations of the provisions of the Motor Vehicle Code. Finally, the Commonwealth contends that evidence gathered by a police officer when that officer stops a motor vehicle whose occupants are not using seat belts may be admissible in any criminal proceedings against the occupants.

A police officer is authorized to stop a motor vehicle to check the driver’s license, the vehicle’s registration, the vehicle’s identification number, the vehicle’s engine number, and proof of financial responsibility whenever that officer possesses articulable and reasonable grounds to suspect that the Motor Vehicle Code is being violated. 75 Pa.C.S.A. § 6308(b). See Commonwealth v. McElroy, 428 Pa.Super. 69, 630 A.2d 35 (1993) (en banc) (police officer’s opinion that motor vehicle was traveling forty-five miles per hour over posted speed limit constitutes articulable and reasonable grounds to stop motor vehicle). Although a motor vehicle’s driver and its front-seat passengers over the age of four are required to fasten their seat belts and the driver of a motor vehicle is responsible for securing the seat belts of front-seat passengers between the ages of four and eighteen, a conviction resulting from the failure of a person over the age of four to fasten his or her seat belt will “occur only as a secondary action when a driver of a motor vehicle has been convicted of any other provision of [the Motor Vehicle Code].” 75 Pa.C.S.A. § 4581(a)(2). Moreover, a motor vehicle driver or front-seat passenger over the age of eighteen cannot be convicted of a seat belt infraction and be sentenced to pay the ten dollar fine associated with such a conviction unless the driver is also convicted of simultaneously violating another Motor Vehicle Code provision. 75 Pa.C.S.A. § 4581(b). Thus, the seat belt laws mandate the use of seat belts by all front-seat occupants of motor vehicles, yet expressly prohibit anyone’s punishment for the non-use of seat belts unless a violation of another of the Motor Vehicle Code’s provisions first occurs or if the front-seat passenger is less than four years old. Consequently, because a driver of a motor vehicle or its front-seat passenger as explained above can only be punished for the non-use of a seat belt as a secondary action after another Motor Vehicle Code violation first occurs, it is unclear and ambiguous whether a person’s non-compliance with 75 Pa.C.S.A. § 4581(a)(2) actually is a violation of the Motor Vehicle Code when no other provisions of the Motor Vehicle Code are simultaneously violated. Accordingly, we must now consult the rules of statutory construction to interpret the seat belt laws in relation to 75 Pa.C.S.A. § 6308(b) as these laws are not entirely free from ambiguity in this regard. Commonwealth v. Dickerson, 533 Pa. 294, 300, 621 A.2d 990, 993 (1993); Commonwealth v. Berryman, 437 Pa.Super. 258, 266, 649 A.2d 961, 965 (1994) (en banc); Commonwealth v. Grayson, 379 Pa.Super. 55, 549 A.2d 593 (1988); 1 Pa.C.S.A. § 1901.

Under the rules of statutory construction, it is this Court’s duty to determine and give effect to the General Assembly’s intention when we construe its properly enacted statutes. Commonwealth v. Berryman, supra, at 258, 649 A.2d 961 (citing Commonwealth v. Runion, 427 Pa.Super. 217, 628 A.2d 904 (1993); Commonwealth v. Lundberg, 422 Pa.Super. 495, 619 A.2d 1066 (1993); Commonwealth v. Grayson, supra, at 55, 549 A.2d 593; 1 Pa.C.S.A. § 1921(a)). Some of the factors that we may consider to determine the General Assembly’s intent in enacting a statute are:

(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.
1 Pa.C.S.A. § 1921(c). See also Commonwealth v. Brown, [423 Pa.Super. 264, 620 A.2d 1213 (1993)]; Commonwealth v. Davis, 421 Pa.Super. 454, 618 A.2d 426 (1992)[,] allocatur denied, 535 Pa. 630, 631 A.2d 1004 (1993); Commonwealth v. Barone, 276 Pa.Super. 282, 419 A.2d 457 (1980) (en banc).

Without disregarding the intent of the General Assembly, penal statutes, i.e., statutes which define criminal offenses and specify their corresponding fines and punishments, must be strictly construed. Id. (citations omitted). See Commonwealth v. Wood, 432 Pa.Super. 183, 208, 637 A.2d 1335, 1348 (1994) (citations omitted) (statute imposing penal sanctions must be strictly construed); 1 Pa.C.S.A. § 1928(b)(1). Obviously, because the provisions of the Motor Vehicle Code governing the use of seat belts impose fines, they are penal in nature and must be strictly construed within the context of the General Assembly’s intent in enacting them. Accordingly, we must now analyze the intent of the General Assembly in enacting the laws regulating the use of seat belts as they relate to 75 Pa.C.S.A. § 6803(b) in this strict construction context.

By provisionally requiring all front-seat occupants of motor vehicles to be restrained in their seat in some manner, the General Assembly evidenced the necessity of reducing the risk of harm to motor vehicle travelers, not the need to expand the power of the police to conduct motor vehicle stops. Prior to 1987, only motor vehicle passengers under the age of four were required to be restrained in their seat; motor vehicle drivers and front-seat passengers over the age of four were not subject to any laws requiring the use of seat belts. Act of 1983, November 1, P.L. 195 No. 53, § 1. But, when the seat belt laws were amended in 1987 to provisionally require all motor vehicle drivers and front-seat passengers over the age of four to use seat belts, the General Assembly clearly set forth its intent in doing so as follows:

“Section 8. It is the policy of this Commonwealth that enactment of the mandatory safety seat belt system usage provision contained in 75 Pa.C.S.A. § 4581 (relating to restraint system) is intended to be compatible with support for Federal safety standards requiring automatic crash protection and shall not be used in any manner to rescind Federal automatic crash protection system requirements____”
“Section 9. The department shall initiate an educational program to begin immediately, to alert the public to the provisions of this act and the requirements and penalties specified in this act. The program shall also encourage the use of safety seat belt systems as a means of reducing the risk of harm to their users as well as to. others. The department shall submit to the General Assembly a report on the effects of 75 Pa.C.S. § 4581(a)(2) (relating to restraint systems) by August 31, 1989.\”]

Act of 1987, November 23, P.L. 399, No. 82 (emphasis added). These sections demonstrate the objective to be attained and the mischief to be remedied by the General Assembly when it amended 75 Pa.C.S.A. § 4581 in 1987. Its objective was to increase motor vehicle safety by penalizing the non-use of seat belts in certain limited situations; the mischief to be remedied was the risk of injury created by the non-use of seat belts in Pennsylvania. The enforcement of other criminal offenses and motor vehicle violations by the creation of another means by which a police officer could stop a motor vehicle was not contemplated by the General Assembly when it amended the seat belt laws in 1987.

In making the use of seat belts provisionally mandatory, the General Assembly expressly stated that it intended to enact laws which were in accord with Federal safety standards regarding automatic crash protection. More importantly, the General Assembly ordered the initiation of a program to encourage the use of seat belts by educating the public to the fact that using seat belts reduces the risk of harm to their users and others. Because the General Assembly ensured the allocation of the funds necessary to promote the use of seat belts by all occupants of motor vehicles and not just those occupants under the age of four, it is evident that it placed great importance on achieving this goal. According to the Pennsylvania Seatbelt Law Evaluation Report, infra, a report prepared by the Pennsylvania Department of Transportation in response to Section 9 of the Act of November 23,1987, P.L. 399, No. 82, many different methods were developed to encourage Pennsylvanians to voluntarily fasten their seat belts when traveling in motor vehicles. Yet, no statute or regulation specifically authorizes the police to stop motor vehicles whose passengers’ seat belts are unfastened to inform them of reduced risks of harm associated with the use of seat belts. Therefore, increasing motor vehicle safety was never intended to concurrently increase routine motor vehicle stops made by the police.

Significantly, prior to January 1, 1985, the Motor Vehicle Code explicitly permitted a police officer to issue an oral hazard warning solely for the purpose of inducing compliance with the seat belt laws if that officer observed a child under the age of four not properly restrained in a child passenger restraint system. 75 Pa.C.S.A. § 4584. Under the seat belt laws, a conviction can occur solely because an unrestrained child under the age of four is a passenger in a motor vehicle; a maximum fine of twenty-five dollars may be imposed on the vehicle’s operator. 75 Pa.C.S.A. § 4581(a)(1). In other words, a motor vehicle operator’s failure to secure a child under the age of four in a child passenger restraint system, in and of itself, is clearly a violation of the Motor Vehicle Code. See 75 Pa.C.S.A. §§ 4581(a)(1), (b), 4584. As such, a police officer can stop a motor vehicle if that officer observes an unrestrained child under the age of four in that vehicle. 75 Pa.C.S.A. § 6308(b).

But, drivers of motor vehicles and front-seat passengers over the age of eighteen cannot be convicted for their failure to use a seat belt unless another simultaneous conviction for a violation of another provision of the Motor Vehicle Code first occurs. 75 Pa.C.S.A. § 4581(a)(2), (b). Therefore, a violation of the Motor Vehicle Code does not occur simply because a motor vehicle driver or front-seat passenger over the age of four fails to use a seat belt; another simultaneous violation of the Motor Vehicle Code must first occur. See 75 Pa.C.S.A. § 4581(a)(2), (b). Hence, failure to comply with 75 Pa.C.S.A. § 4581(a)(2), in and of itself, was never intended to be a violation of the Motor Vehicle Code for which a motor vehicle could be stopped by a police officer pursuant to 75 Pa.C.S.A. § 6308(b). Additionally, nowhere in the Motor Vehicle Code is there a provision similar to 75 Pa.C.S.A. § 4584 which would permit a police officer to issue an oral hazard warning simply because a person over the age of four is observed with his or her seat belt unfastened. Accordingly, under Pennsylvania law, a police officer possesses no authority to stop a motor vehicle solely because its occupants are not in compliance with 75 Pa.C.S.A. § 4581(a)(2).

Not surprisingly, the inability of the police to enforce 75 Pa.C.S.A. § 4581(a)(2) was explicitly recognized during the debate on the floor of the House of Representatives prior to its enactment. Specifically, Representative Piccola stated as follows:

This amendment mandates nothing, Mr. Speaker; it mandates nothing. If you drive your vehicle in the Commonwealth of Pennsylvania and obey the laws of the Commonwealth of Pennsylvania while doing so, you are not required to do a thing with regard to your seatbelt. And if you are a passenger in a vehicle, even though this law says that you are supposed to wear your seatbelt, you cannot be charged with not wearing your seatbelt in the event you are caught doing so. There is absolutely no recourse for any law enforcement agency against the passenger in the vehicle where he is not wearing a seatbelt. Now, if that is a mandatory seatbelt law, then I think we do not know what we are talking about.
I think what we are doing here, Mr. Speaker, rather than passing a meaningful statute or even passing a meaningful policy which would tell the people of Pennsylvania what our intentions are and that seatbelts do save lives, we are merely cluttering up our statute books with a law that, in my view, is unenforceable; in my view, will seldom be enforced; and if it is ever enforced, it will be enforced unfairly.

Statements of Representative Piccola, 1987 Pa. Legislative Journal — House at 1636 (emphasis added). Representative Heckler further emphasized the police’s inability to enforce 75 Pa.C.S.A. § 4581(a)(2) when he said:

This bill says to the citizens of this Commonwealth, you must wear seatbelts because they will save your life, and that is something with which I agree, and I do not believe I have heard one person speak this afternoon who has not agreed with the proposition. However, this amendment goes on to say, but if you do not wear a seatbelt and the police officer sees you, he cannot do anything about it unless you violate another motor vehicle law as well____

Statements of Representative Heckler, id. at 1641 (emphasis added). In light of the statements of Representatives Piccola and Heckler, it is apparent that the General Assembly knew of the problems associated with enforcing 75 Pa.C.S.A. § 4581(a)(2) prior to its enactment. Thus, even the contemporaneous legislative history of the 1987 amendments to the seat belt laws demonstrate that a motor vehicle cannot be stopped by a police officer if its driver or front-seat passenger over the age of four does not use a seat belt unless another provision of the Motor Vehicle Code is simultaneously violated.

Finally, and perhaps most importantly, the consequences of interpreting the Motor Vehicle Code to allow police officers to stop motor vehicles solely because the seat belts of their drivers and front-seat passengers over the age of four are unfastened are undesirable. Hundreds of thousands of motor vehicles could be stopped at random each day in this Commonwealth if the Motor Vehicle Code were interpreted to authorize police stops of all motor vehicles whose front-seat occupants were not using their seat belts. The potential for abuse under such an interpretation is unquestionable. For example, police officers would be able to stop motor vehicles under the pretext of a seat belt infraction. Hence, in the words of Representative Piccola, an “unfair” enforcement of the seat belt laws would result. Clearly, the General Assembly did not intend this type of situation to spawn from its efforts to encourage the increased use of seat belts via its 1987 amendments to the seat belt laws of the Motor Vehicle Code. Therefore, when the enactment of the seat belt laws are viewed in this context, it is indisputable that the General Assembly never intended these laws to expand the frequency of motor vehicle stops by the police.

Additionally, another rule of statutory construction supports this interpretation of the seat belt laws. Where the general provisions of one statute conflict with the specific provisions of another statute, the two statutes must be construed to give effect to both unless the conflict is irreconcilable, in which case specific provisions govern general provisions as long as the general provisions were not enacted after the specific provisions and the General Assembly did not clearly indicate that the general provisions be given priority over the specific provisions. 1 Pa.C.S.A. § 1933. See Commonwealth v. Smith, 375 Pa.Super. 419, 433, 544 A.2d 991, 997-98 (1988) (en banc) (when two statutes irreconcilably conflict, specific statute governs general statute unless general statute was enacted after specific statute and general statute clearly indicates its priority). The general provisions of 75 Pa.C.S.A. § 6308(b), which were enacted prior to the 1987 amendments to the seat belt laws, permit a police officer to stop a motor vehicle whenever that officer possesses articulable and reasonable grounds to believe that a provision of the Motor Vehicle Code is being violated. But, none of the specific provisions of the seat belt laws permit a police officer to stop a motor vehicle solely because one of its occupants over the age of four is not wearing a seat belt, even though a police officer is expressly authorized to stop motor vehicles containing children under the age of four who are not properly restrained. See 75 Pa.C.S.A. §§ 4581-4586. Thus, because the failure of a motor vehicle driver or front seat passenger over the age of four to wear a seat belt, is not, in and of itself, a punishable violation of the Motor Vehicle Code, effect can be given to both 75 Pa.C.S.A. § 6308(b) and the seat belt laws.

In any event, the general provisions of 75 Pa.C.S.A. § 6308(b), allowing a police officer to stop a motor vehicle whenever that officer possesses articulable and reasonable grounds to believe that a provision of the Motor Vehicle Code is being violated, must yield to the specific provisions of the Motor Vehicle Code governing the use of seat belts if any irreconcilable conflict exists between them. Commonwealth v. Smith, supra; 1 Pa.C.S.A § 1933. Hence, the fact that the Motor Vehicle Code fails to specifically authorize a police officer to stop motor vehicles in order to issue an oral hazard warning if their drivers and/or front-seat passengers over the age of four have failed to fasten their seat belts cannot be underemphasized. If the General Assembly wanted to also permit a police officer to stop any motor vehicle in which a seat belt violation by a driver or front-seat passenger is observed for the purpose of issuing an oral hazard warning, then it would have specifically stated so in the Motor Vehicle Code instead of only specifically authorizing a police officer to issue an oral hazard warning (or a citation after January 1, 1985) where children under the age of four are not properly restrained by a child passenger restraint system as per 75 Pa.C.S.A. § 4584. Alternatively, a simultaneous conviction under another provision of the Motor Vehicle Code would not have been made a prerequisite to a conviction for violating 75 Pa.C.S.A. § 4581(a)(2). Therefore, the general provisions of 75 Pa.C.S.A. § 6808(b) are trumped by the specific provisions contained in the Motor Vehicle Code concerning the use of seat belts if any irreconcilable conflict between them exists.

Thus, in accordance with the rules of statutory construction, we hold that no violation of the Motor Vehicle Code occurs when a motor vehicle’s driver or front-seat passenger over the age of four fails to fasten his or her seat belt until the driver simultaneously violates another provision of the Motor Vehicle Code because the driver or front-seat passenger over the age of eighteen cannot be convicted of and punished for failing to use a seat belt unless the driver is simultaneously convicted of violating another provision of the Motor Vehicle Code. Accordingly, the fact that the occupants of a motor vehicle over the age of four are not using their seat belts, in and of itself, can never serve as articulable and reasonable grounds to stop a motor vehicle because the Motor Vehicle Code has not been violated under such circumstances.

Instantly, when the Ford LTD occupied by appellees drove past Chief Mango on West Chester Road on the evening of February 8, 1993, Chief Mango observed that the Ford LTD’s driver was not using his seat belt. Consequently, Chief Mango proceeded to follow the Ford LTD on West Chester Road. At this time, Chief Mango noticed that the front-seat passenger of the Ford LTD was also not using his seat belt. Chief Mango then stopped the Ford LTD solely because he had observed that two of its occupants’ seat belts were unfastened. Chief Mango possessed no other reason to stop the Ford LTD. Thus, because the failure of appellees to fasten their seat belts was not, in and of itself, a violation of the Motor Vehicle Code and Chief Mango had no other independent reason to stop the Ford LTD, we hold that Chief Mango’s stop of the Ford LTD was illegal and unconstitutional. Therefore, all evidence accumulated against appellees pursuant to this unlawful stop constitutes “the fruits of a poisonous tree” and must be suppressed. See Commonwealth v. Edwards, 355 Pa.Super. 311, 513 A.2d 445 (1986) (evidence accumulated pursuant to motor vehicle stop based solely upon police officer’s unreasonable belief that Motor Vehicle Code was being violated must be suppressed as fruit of an illegal stop). See e.g. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Based upon the foregoing, the suppression court’s order suppressing all statements and physical evidence derived from Chief Mango’s February 8, 1993 motor vehicle stop of the Ford LTD occupied by appellees is affirmed.

Order affirmed.

ROWLEY, President Judge, dissented.

      . 35 P.S. § 780-113(a)(16).

        . 35 P.S. § 780-113(a)(30).

      . 35 P.S. § 780-113(a)(31).

      . 18 Pa.C.S.A. § 903(a)(1).

      . 75 Pa.C.S.A. § 101 et seq.

      . 75 Pa.C.S.A. §§ 4581-4586.

      . This subsection fully states:
      (2) Except for children under four years of age and except as provided in paragraph (1), each driver and front seat occupant of a passenger car, Class I truck, Class II truck or motor home operated in this Commonwealth shall wear a properly adjusted and fastened safety seat belt system. A conviction under this paragraph by State or local law enforcement agencies shall occur only as a secondary action when a driver of a motor vehicle has been convicted of any other provision of this title. The driver of a passenger automobile shall secure or cause to be secured in a properly adjusted and fastened safety seat belt system any occupant in the front seat who is four years of age or older and less than 18 years of age. This paragraph shall not apply to:
      (i) A driver or front seat occupant of any vehicle manufactured before July 1, 1966.
      (ii) A driver or front seat occupant who possesses a written verification from a physician that he is unable to wear a safety seat belt system for physical or medical reasons, or from a psychiatrist or other specialist qualified to make an informed judgment that he is unable to wear a safety seat belt system for psychological reasons.
      (iii) A rural letter carrier while operating any motor vehicle during the performance of his duties as a United States postal service rural letter carrier only between the first and last delivery points.
      (iv) A driver who makes frequent stops and is traveling less than 15 miles per hour for the purpose of delivering goods or services while in the performance of his duties and only between the first and last delivery points.
      A violation of this paragraph shall not be subject to the assessment of any points under section 1535 (relating to schedule of convictions and points).
      75 Pa.C.S.A. § 4581(a)(2).

      . This subsection fully states:
      (b) Offense. — Anyone who fails to comply with the provisions of subsection (a)(1) shall be guilty of a summary offense with a maximum fine of $25. The court imposing and collecting any such fines shall transfer the fines thus collected to the State Treasurer for deposit in the Child Passenger Restraint Fund, pursuant to section 4582 (relating to Child Passenger Restraint Fund). Anyone who violates subsection (a)(2) commits a summary offense and shall, upon conviction, be sentenced to pay a fine of $10. No persons shall be convicted of a violation of subsection (a)(2) unless the person is also convicted of another violation of this title which occurred at the same time. No costs as described in 42 Pa.C.S.A. § 1725.1 (relating to costs) shall be imposed for summary conviction of subsection (a)(2). Conviction under this subsection shall not constitute a moving violation.
      75 Pa.C.S.A. § 4581(b).

      . Currently, 75 Pa.C.S.A. § 4581(a)(1) mandates the use of child passenger restraint systems by motor vehicle passengers under the age of four. This subsection fully states:
      Any person who is operating a passenger car, Class I truck, Class II truck, classic motor vehicle, antique motor vehicle or motor home and who transports a child under four years of age anywhere in the motor vehicle, including the cargo area, shall fasten such child securely in a child passenger restraint system, as defined in subsection (d). This subsection shall apply to all persons while they are operators of motor vehicles where a seating position is available which is equipped with a seat safety belt or other means to secure the systems or where the seating position was originally equipped with seat safety belts.
      75 Pa.C.S.A. § 4581(a)(1).

      . In fact, even prior to the 1987 amendments to the seat belt laws, programs existed to encourage the voluntary use of seat belts throughout Pennsylvania. For example, in 1983 and 1984, a “corporate seat belt initiative” was started. Center for Highway Safety, Pennsylvania Department of Transportation, Pennsylvania Seatbelt Law Evaluation Report, Attachment A at 3 (1990). By providing corporations with statistics regarding the expenses suffered by companies as a result of employees being injured in automobile accidents, these initiatives effectively encouraged corporations to add "the importance of existing seat belt usage to their existing safety programs and policies." Id. Resultantly, the first county seat belt programs grew out of the success of the "corporate seat belt initiatives.” Id. Let’s Lifebelt Lancaster, a program which used "educational materials, special events and the involvement of county businesses and the media ... to convince the public to buckle up voluntarily[J” began on October 1, 1984. Id. at 3-4. Because of the success of the Let’s Lifebelt Lancaster program, similar programs spread to other counties throughout Pennsylvania in 1985 and 1986. Id. at 4. By working with newspaper reporters, the county programs were able to include seat belt use information in articles about automobile accidents. Id. Moreover, in 1985, the Keystone Safety Belt Network, a grassroots organization formed to lobby for a seat belt use law in Pennsylvania, was formed. Id. at 5.
      After the enactment of the 1987 amendments to the seat belt laws, more programs to encourage the voluntary use of seat belts continued to develop. The first comprehensive highway safety program, The North Central Highway Safety Network, was established in 1989. Id. at 6. The coordinators of this network, an expanded version of the original county seat belt programs, devoted half of their activities towards the promotion of seat belt and child safety seat use. Id. In explaining the operations of the Network, the report states:
      By using a community immersion plan involving schools, community organizations, health care facilities, law enforcement agencies, and industry, the comprehensive projects are able to promote traffic safety issues in a highly visible manner. The project goals are achieved through a public awareness campaign and implementation of developed educational programs.

        Id. at 6-7. Additionally, joint highway safety initiatives conducted by the Department of Transportation and the Pennsylvania State Police developed. Id. at 7. For example, during Child Passenger Safety Week, state troopers recorded the license plate number of cars spotted using child safety seats and submitted them for commendation letters which were mailed to the vehicle's owner. Id.

      Thus, the methods developed to encourage the voluntary use of seat belts in Pennsylvania are best summarized as follows:
      Through the use of public information materials, posters, pamphlets, videos/films, - coloring books, luggage tags, stickers etc., highway safety messages have been dispersed to the public. These public information materials cover child safety seats, seat belts, drinking and driving, bicycle, motorcycle and pedestrian safety, safe driver characteristics, and vehicle safety programs. Available to all Pennsylvania citizens at no charge, these public information and education resources are widely utilized. In addition, curricula have been developed and used in the Commonwealth’s schools to promote safety messages. The Pennsylvania Department of Education has approved these curricula for use in the schools and has actively cooperated in dissemination of the materials.

        Id. at 8. Additionally, newsletters were initiated to further inform the public regarding the necessity of using seat belts. Id. at 9. Motor vehicle stops by police officers, however, were not mentioned anywhere in the report as a means of encouraging the use of seat belts in Pennsylvania. See id.

      . Section 10 of the Act of November 23, 1987, P.L. 399, No. 82, provides as follows:
      "Section 10. For a period of 120 days after enactment, oral hazard warnings shall be given by the Pennsylvania State Police or local enforcement officers to motor vehicle drivers and front seat passengers who are not wearing safety seat belts as required by 75 Pa.C.S. § 4581 (relating to restraint systems), but no citation shall be issued for such violation during said 120-day period.”
      Even if Section 10 could have been interpreted to permit a police officer to stop a motor vehicle whose driver or front-seat passenger over the age of four failed to use a seat belt without the simultaneous occurrence of another Motor Vehicle Code violation, such stops would have only been permitted for a limited period of time (one hundred, twenty days) that has long since expired.

      . After January 1, 1985, the imposition of a fine not to exceed twenty-five dollars replaced the issuance of oral hazard warnings in these circumstances. 75 Pa.C.S.A. §§ 4581(a)(1), (b), 4584.

      . In Pennsylvania, there are over nine million, two hundred, fifty-five thousand registered motor vehicles. Bureau of Motor Vehicles, Pennsylvania Department of Transportation, Report of Registrations 1 (1994). Additionally, as of 1993, Pennsylvania had over eight million, fifty-eight thousand licensed drivers. Pennsylvania Department of Transportation, Pennsylvania Crash Facts and Statistics 3 (1993). But, during the fall of 1994, only seventy-one percent of Pennsylvania’s licensed drivers were observed using seat belts. Pennsylvania Department of Transportation, Seat Belt Observational Survey (1994).

      . Hypothetically, based upon the statistics presented in footnote 13, supra, on a given day where only five million of Pennsylvania’s licensed drivers are driving motor vehicles on its roadways, the police would be able to stop roughly one million, four hundred, fifty thousand of them if the Motor Vehicle Code’s seat belt laws were interpreted to allow the police to stop a motor vehicle simply because a seat belt violation is observed. We conclude that such an interpretation would lead to an absurd result which we are to presume the General Assembly does not intend. See Commonwealth v. Berryman, supra at 268, 649 A.2d at 966 (citations omitted).

      . Some guidance in reaching this interpretation of our seat belt laws is derived from a scholarly interpretation of the seat belt laws of New Jersey as that state’s seat belt laws are quite similar to those of Pennsylvania. In New Jersey, enforcement of the seat belt laws pertaining to motor vehicle drivers and front-seat passengers over the age of five "shall be accomplished only as a secondary action when a driver of a passenger automobile has been detained for suspected violation of Title 39 of the Revised Statute or some other offense.” N.J.Stat.Ann. § 39:3-76.2i. In interpreting this provision, one scholar has stated:
      The most significant feature of the Garden State’s Seat Belt Act is that one cannot be stopped solely for not wearing a seat belt. Enforcement of the law can only be accomplished as secondary to another motor vehicle violation or some other offense. In fact, the law was purposely designed as a "piggyback” offense to prevent law enforcement officers from harassing motorists.
      Kropoth, M.S., Mandatory Seat Belt Usage in New Jersey, 9 Seton Hall Legis.J. 549, 553 (1986) (footnotes and citations omitted). Although this authority is far from binding upon this Court, we acknowledge it to demonstrate how seat belt laws similar to those of Pennsylvania have been interpreted.

        We note that the statutory provisions of other states that have held that police officers can lawfully stop motor vehicles based solely upon an officers observations of the non-use of seat belts by the motor vehicles’ occupants expressly provide that the non-use of seat belts, in and of itself, is a punishable violation of the law. See People v. Banks, 202 A.D.2d 902, 609 N.Y.S.2d 420 (3 Dept.1994); State v. Godfrey, 491 N.W.2d 173 (Iowa App.1992); State v. Apodaca, 112 N.M. 302, 814 P.2d 1030 (App.1991), cert. denied, 112 N.M. 220, 813 P.2d 1018 (1991); Rodriguez v. State, 776 S.W.2d 715 (Tex.App.—Corpus Christi 1989). See also State v. Cruz, 121 Or.App. 241, 855 P.2d 191 (1993). In other words, the laws of New York, Iowa, New Mexico, Texas, and Oregon provide for primary enforcement of seat belt infractions. National Highway Traffic Safety Adm., U.S. Dep’t of Transp., Key Provisions of Safety Belt Use Laws, 1 (May 1995). Only California, Connecticut, Hawaii, and North Carolina also have primarily enforceable seat belt laws. Id. In each of the thirty-nine other states that have seat belt laws, including Pennsylvania, seat belt infractions are only secondarily enforceable. Id. Hence, because our seat belt laws require that a seat belt infraction by a motor vehicle occupant over the age of four be brought only as a secondary action to another Motor Vehicle Code violation and in order to sustain a conviction under our seat belt laws a violator must first be convicted of another simultaneous violation of the Motor Vehicle Code, 75 Pa.C.S.A. §§ 4581(a)(2), (b), the holdings of the courts of New York, Iowa, New Mexico, Texas, and Oregon where statutory provisions mandate primary enforcement of seat belt laws cannot guide us in our interpretation of Pennsylvania’s seat belt laws.

      . Previously, in Commonwealth v. Sedgwick, 434 Pa.Super. 448, 644 A.2d 167 (1994), a three member panel of this Court held that a motor vehicle driver’s failure to use a seat belt constitutes a violation of the Motor Vehicle Code for which a police officer can stop the motor vehicle. But now, sitting as an en banc panel of this Court, we conclude that this is an inaccurate interpretation of the Motor Vehicle Code and we overrule Commonwealth v. Sedgwick, supra, to the extent that it held that a police officer could lawfully stop a motor vehicle solely because the seat belt of its driver or front-seat passenger over the age of four was unfastened.