author: TAMILIA, Judge:

text:
    568 A.2d 228
    COMMONWEALTH of Pennsylvania v. Joseph P. MILLER, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1989.
    Filed Jan. 8, 1990.

      Joseph J. Marinaro, Philadelphia, for appellant.
    Kathy Echternach, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
    Before McEWEN, OLSZEWSKI and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from the judgment of sentence for appellant’s convictions of third degree murder, aggravated assault, criminal conspiracy and possession of an instrument of crime. He was sentenced to an aggregate term of imprisonment of ten to thirty years. Appellant was jointly tried by a jury with his father, Joseph Miller, Sr., and Ernest Colding.

The evidence produced at trial shows that at the time of the incident appellant and his co-defendants lived at 910 North 29th Street in Philadelphia and the victim lived at 912 North 29th Street. Appellant and his father had a history of quarreling with the victim’s household (which included a nephew of Joseph Miller, Sr.) requiring police intervention. On August 1, 1986 appellant and co-defendants sent their children away from the house and armed themselves with guns. That night, after an argument, the victim Eric Levetter, along with Kenneth Miller, Marlon Burton (Kenneth’s thirteen year old son), and Walter Johnson walked over to appellant and his co-defendants who were sitting on their front steps. As Levetter and his cohorts approached, Joseph Miller, Sr. passed a gun to appellant, his son, who shot Kenneth Miller in the thigh. As Kenneth retreated, Ernest Colding opened fire on the unarmed Levetter as he attempted to get away. Levetter fell in front of his house and Colding shot him repeatedly as he tried to get up, one bullet entering his hand when he held it up to protect himself.

Prior to trial, a suppression hearing was held on appellant’s motion to suppress statements he had made to George J. Shotzbarger, assistant district attorney. On September 18, 1986, appellant called Shotzbarger’s office and left a message for him to return the call. Shotzbarger did so and appellant expressed the desire to get his father out of jail. In the course of the conversation, appellant, after being given his rights, told Shotzbarger that Joseph Miller, Sr. was innocent and that he (appellant) and Colding were the only ones with weapons.

Appellant claims he and Shotzbarger discussed possible plea agreements and, therefore, appellant’s statements from this conversation should be suppressed. Since trial counsel failed to raise this argument at the suppression hearing, appellant claims his counsel was ineffective. Trial counsel did raise the failure of counsel to be present during the telephone conversation saying that should result in suppression of the conversation. It is only on appeal that appellate counsel shifts the theory for suppressing the statement alleging counsel’s ineffectiveness in failing to base a suppression claim on the plea bargain theory. The Commonwealth claims the record is clear appellant and Shotzbarger were not engaged in plea bargaining; therefore, counsel was not ineffective for failing to pursue this theory.

The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989).

Thus we must first ascertain whether the conversation between appellant and Shotzbarger amounted to plea bargaining.

Initially, ... it must be determined in such cases whether or not the statement or statements made by an accused are in connection with plea negotiations. US. v. Robertson, 582 F.2d 1356 (5th Cir.1978) provides a workable analytical framework to determine the appropriate characterization:
... first, whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and second, whether the accused’s expectation was reasonable given the totality of the objective circumstances. Id. at 1366.
Of primary importance in assessing an accused’s subjective expectation of negotiating a plea is whether the Commonwealth showed an interest in participating in such discussions. In line with this reasoning, voluntary, unsolicited statements uttered by an accused to authorities cannot be said to be made in furtherance of striking a plea bargain.

Commonwealth v. Calloway, 313 Pa.Super. 173, 184-85, 459 A.2d 795, 800-01 (1983).

Our review of the testimony elicited during the hearing on the suppression motion leads us to find appellant’s statements were not made in the course of plea negotiations.

The call from appellant was returned by Mr. Shotzberger who, before any discussion, advised appellant he should say nothing and should have his attorney present, which the assistant district attorney would arrange, perhaps by conference call. He was also informed that if he continued, anything he said could and would be used against him in court. Appellant’s response was, “Well, I don’t care about that. What I want to do is I want to get something off my chest.” He went on to say his father was innocent and he (appellant) shot two guys and “Codeine [sic] did it too.” (S.T. 5/18/87, pp. 56-57.) From this point the conversation segued into a discussion of taking the matter up with appellant’s counsel and what procedures would follow to pursue that aspect of the case. The statement at that point was clearly admissible as a voluntary statement, which was inculpatory and in conflict with a previous statement denying culpability. The entire initial aspect of the conversation was focused on appellant getting his father out of jail and shifting responsibility for the actual shooting from his father to himself. Thus, the requirement espoused by Calloway, supra, that the accused exhibit an actual subjective expectation of plea negotiation and that such an expectation was reasonable, has not been met.

The discussion of a possible plea came only later in the conversation when Mr. Shotzberger informed appellant that if he was found to be the shooter, he faced a possible life sentence or death by electrocution (S.T. at 60-61). The conversation then turned to possible plea negotiations. The subsequent discussion of possible plea negotiations does not taint the voluntary unsolicited statements uttered by the accused as those statements were not made with the expectation of furthering a plea bargain.

Under this set of circumstances, Calloway, cited by appellant, does not apply because the admission was not in furtherance of a plea bargain, but a voluntary admission, following Miranda warnings, which subsequently lead to discussion about the procedure to be followed to arrange for negotiating a plea bargain. Calloway refers, in dicta to Federal Rules of Evidence 410, Inadmissibility of pleas, plea discussions and related statements, as guidance in this area. That rule does not aid appellant but makes it clear that this situation is excluded from the rule.

Federal Rule 410 clearly relates to an admission entered into as part of the plea bargain negotiations, not to an admission which thereafter led to a discussion of how plea negotiations could be pursued at a later time. As such, there is no chilling effect on plea negotiations alluded to in Calloway. It is only those admissions arising out of and inherent in the plea discussion which are protected by the theory that to permit their admission in evidence at trial, if negotiations fail or the plea is withdrawn, would be to place a chilling effect on such discussions. That rationale does not apply here and to permit it would be to paralyze legitimate interchange between the district attorney and persons charged with a crime. A balance must be retained between reasonable intercourse between the prosecutor and a defendant and protection of a defendant seeking to explore a settlement. Appellant’s belated allegation of ineffectiveness of counsel in this case, under these facts, would alter that balance impermissibly in favor of appellant.

Appellant does not allege that trial counsel’s suppression argument was without reasonable basis but instead, alleges counsel chose to pursue the wrong argument and should have based his suppression motion on the fact that the statements were made during plea bargaining. As we said earlier, that argument is without merit. The argument we have under discussion is properly reviewable as having been advanced at the earliest possible time by new counsel. “The test for competency ‘is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record’, but whether counsel’s assessment of appellant’s case and his advice were reasonable.” Commonwealth v. Vesay, 318 Pa.Super. 320, 326, 464 A.2d 1363, 1366-67 (1983), quoting Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352-53 (1967). We find trial counsel’s course of action and assessment of appellant’s case were reasonable and, therefore, find this ineffectiveness claim is without merit. It cannot be said that the claim now presented by appellate counsel was one which reasonably should have been presented at the suppression hearing.

Appellant’s second and final argument is the case should have been dismissed due to a violation of Pa.R. Crim.P. 1100 which required that trial was to occur no later than 180 days after the criminal complaint was filed. Under this rule, appellant contends the last date for trial to commence was February 1, 1987, however, trial did not commence until May 19,1987. The Commonwealth and the trial court both advise that the delay occurred due to the unavailability of any of the homicide judges and the Commonwealth was forced to request an extension of time even though the case had been in the “ready pool” for two months. Since the Commonwealth has shown it was ready for trial, the extension was properly granted due to judicial delay. See Commonwealth v. Bogan, 355 Pa.Super. 32, 512 A.2d 1194 (1986) (judicial delay provides a basis for granting a petition to extend where the Commonwealth shows due diligence in getting, the case to trial at the earliest possible date).

Judgment of sentence affirmed.

      . Colding was convicted of first degree murder and sentenced to life imprisonment. This Court affirmed the judgment of sentence (No. 717 Philadelphia, 1988) and the Supreme Court denied the petition for allocatur (No. 18 E.D. Allocatur Docket 1989). Joseph Miller, Sr., was acquitted on all charges.

      . While appellant raises the ineffectiveness claim in the argument section of his brief, his statement of questions only alleges trial court error in failing to grant the suppression motion based upon the alleged right to counsel violation. This issue is waived, however, as appellant fails to argue it in his brief. See Commonwealth v. Anderson, 381 Pa.Super. 1, 552 A.2d 1064 (1988). In any event, we have reviewed the issue and find it to be without merit.

      . The trial court sets the date as May 26, 1987. See Slip Op., Durham, J., p. 4.


source: Caselaw Access Project

license: Public Domain

text:
    568 A.2d 231
    Alonso DUQUE v. Ottavio D. D’ANGELIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1989.
    Filed Jan. 8, 1990.

      John P. Haskins, Jr., Norristown, for appellant.
    Richard J. Hodgson, Norristown, for appellee.
    Before McEWEN, OLSZEWSKI and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from the trial court’s Order denying appellant/defendant’s petition to open and/or strike confessed judgment.

In the summer of 1986, appellant and appellee discussed plans to form a partnership to develop a shopping center in Chester County with two other individuals, Francis Allison and James Crowse. At the time, appellant owned and operated Tavio’s Mini Mart along with Allison, and appellee was the bookkeeper. Appellee purchased equipment for the business and also funded extensive renovations on the premises. Additionally, appellant received a loan from appellee to make a down-payment on a home. In all, appellee invested $83,570 for the benefit of appellant.

In the spring of 1987, the plans for a shopping center fell through, at which time appellant signed a note confessing judgment in favor of appellee in the aforesaid amount. Appellee recorded the note and an affidavit of waiver of rights on September 28, 1987. The prothonotary posted a notice of judgment, by ordinary mail, to appellant in accordance with Pa.R.C.P. 236.

On October 5, 1988, appellant filed a petition to open and/or strike the confessed judgment, which the court denied on April 17, 1989 after hearing arguments and reviewing briefs.

Appellant contends the trial court erred in refusing to open the judgment by confession because the note in question was altered after he signed it. The trial court’s decision regarding whether or not to open a confessed judgment will not be overruled unless the court has committed an error of law or clearly and manifestly abused its discretion. Continental Bank v. Axler, 353 Pa.Super. 409, 510 A.2d 726 (1986). Appellee does not deny the alteration, namely that the name of Francis W. Allison was stricken from the note at appellee’s request, but claims the alteration is immaterial (Appellee’s brief p. 5). An immaterial change in the wording of a judgment note does not prevent the entry of judgment by confession. Krantz v. Kazenstein, 22 Pa.Super. 275 (1903). By signing the note, appellant recognized he owed $83,570 jointly and severally to appellee upon demand. By the very nature of joint and several liability, appellant authorized a judgment by confession against himself. See Pa. Confession of Judgment § 6.10.2. Consequently, the deletion of Allison’s name does not affect appellant’s liability to appellee or the amount of judgment. Moreover, a petitioner must not only aver a valid defense to open judgment, but he must also establish equitable considerations, which impress the court with the need for relief. McDonald v. Allen, 416 Pa. 397, 206 A.2d 395 (1965). Since appellant would be liable to appellee for the full amount of the note even with Allison’s signature, we do not see the need for relief as suggested by appellant. The lack of Allison’s signature does not change appellant’s liability. We agree then with appellee that the alteration was immaterial and insufficient to warrant the judgment by confession.

Appellant claims further error by the trial court because the face amount of the note was incorrect. Pa.R. C.P. 2951(a) provides, in pertinent part the prothonotary may enter judgment by confession “for the amount which may appear to be due from the instrument.” Here, the judgment matches the amount of money appellant promised to pay appellee. Moreover, appellant, at the time of execution, did not contest the amount, nor did he raise the issue in his petition to strike and/or open confessed judgment. Such a defense is waived if not timely included in the petition to open or in the answer. Estate of Silvestri v. Kinest, 318 Pa.Super. 14, 464 A.2d 494 (1983); Pa.R.C.P. 2959(c). Hence, appellee cannot now raise this issue on appeal.

Finally, we find no merit to appellant’s assertion the judgment by confession should be opened because he did not receive notice of the judgment until he attempted to sell his property in the fall of 1988. A petition to open may be granted only if the petitioner promptly files his petition. See McKeesport Nat. Bank v. Rosenthal, 355 Pa.Super. 291, 513 A.2d 434 (1986); First Seneca Bank & Trust Co. v. Laurel Mountain Development Corp. 506 Pa. 439, 485 A.2d 1086 (1984). Appellant claims he filed within 30 days of receiving actual notice of the judgment, although this was over a year after entry of confession of judgment. This court has found a time lapse of nine months excessive in seeking a petition to open. Cross v. 50th Ward Community Ambulance Co., 365 Pa.Super. 74, 528 A.2d 1369 (1987). In the instant case the record clearly shows notice of judgment was sent to appellant by ordinary mail on the same day the prothonotary entered confession of judgment (Court Docket, 9/28/87). Under Pa.R.C.P. 2958(a), notice sent by ordinary mail is sufficient in these circumstances. Accordingly, appellant’s petition to open fails because it was untimely.

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

Order affirmed.

      . We also note the Supreme Court, in Liberty National Bank of Pittston v. Degillio, 406 Pa. 127, 176 A.2d 446 (1962) found a mere technical irregularity insufficient to open judgment, and this Court, in Cam Vending Service v. Kessler, 204 Pa.Super. 400, 204 A.2d 490 (1964), held a mistake in the nature of a clerical error was not a proper ground for invalidating the entry of judgment by confession.


author: ROWLEY, Judge: BROSKY, Judge,

text:
    568 A.2d 233
    COMMONWEALTH of Pennsylvania v. Edwin R. CROSBY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 2, 1988.
    Filed Jan. 3, 1990.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Michael W. Streily, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before BROSKY, ROWLEY and MONTEMURO, JJ.
   ROWLEY, Judge:

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

I. FORFEITURE AS CONDITION OF PROBATION

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

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

Section (c) then provides as follows:

(e) Specific conditions. — -The court may as a condition of its order require the defendant:
(1) To meet his family responsibilities.
(2) To devote himself to a specific occupation or employment.
(2.1) To participate in a public or nonprofit community service program unless the defendant was convicted of murder, rape, aggravated assault, arson, theft by extortion, terroristic threats, robbery or kidnapping.
(3) To undergo available medical or psychiatric treatment and to enter and remain in a specified institution, when required for that purpose.
(4) To pursue a prescribed secular course of study or vocational training.
(5) To attend or reside in a facility established for the instruction, recreation, or residence of persons on probation.
(6) To refrain from frequenting unlawful or disreputable places or consorting with disreputable persons.
(7) To have in his possession no firearm or other dangerous weapon unless granted written permission.
(8) To make restitution of the fruits of his crime or to make reparations, in an amount he can afford to pay, for the loss or damage caused thereby.
(9) To remain within the jurisdiction of the court and to notify the court or the probation officer of any change in his address or his employment.
(10) To report as directed to the court or the probation officer and to permit the probation officer to visit his home.
(11) To pay such fine as has been imposed.
(12) To participate in drug and alcohol treatment programs.
(13) To satisfy any other condition reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.

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

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

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

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

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

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

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

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

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

II. COMMON LAW FORFEITURE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

BROSKY, Judge,

dissenting.

Upon considerable contemplation of the instant dispute and of the majority’s resolution of it, I must express my inability to join their disposition in the present case. Although I readily agree with their conclusion that the statutory provisions governing the imposition of probationary sentences will not allow the order of forfeiture, I would go another step forward and indicate my opinion that the result cannot follow under the guise of common law forfeiture either.

As a starting point it cannot escape notice that there is a strong sense of suspicion emitted in the majority’s opinion regarding the logical and legal soundness of some of the earlier precedent to which the majority now, in apparent reluctance, submits to. Such faithfulness to the concept of stare decisis is to be commended yet, in my opinion, the majority is perhaps more deferential to this concept than is necessary considering the facts of this case.

First of all, it can be readily discerned from a review of the majority’s opinion that the decisions of the Superior Court on the issue in question are in conflict to a significant degree. The majority asserts at page 239 of their opinion, that there is a “difference of opinion” in the Superior Court, as evidenced by the opinions in Petition of Maglisco, 341 Pa.Super. 525, 491 A.2d 1381 (1985), and Estate of Peetros v. County Detectives, 341 Pa.Super. 558, 492 A.2d 6 (1985), as to whether derivative contraband must be forfeited or is merely forfeitable. Although left out of this particular discussion, the majority had previously noted the Superior Court’s holding in Commonwealth v. Schilbe, 196 A.2d 361, 175 A.2d 539 (1961), decided previous to Peetros and Maglisco, which held that derivative contraband could not be forfeited absent statutory authority. Thus, it would seem that any course of action taken by us in the present case, short of certification to the court en banc, would run afoul of some prior authority. This is a rather ironic scenario as the majority’s opportunity to pledge allegiance to the doctrine of stare decisis is apparently occasioned only upon the apparent refusal of prior panels of this court to do the same. Consequently, under the present circumstances, the majority’s loyalty to prior precedent takes on an appearance of selective, and perhaps even expedient, application of stare decisis rather than some sort of faithful and principled adherence to it. Further, in light of the conflict of authority and the majority’s own expressed reservations on the logical and legal underpinnings of the cases authorizing forfeiture under the present circumstances, it is indeed rather dubious to suggest that stare decisis requires homage be paid to the suspect authority. It seems that the present circumstances present one of the rare situations when departure from the principle is not only allowable but, perhaps, advisable or necessary; particularly when the weight of the authority, as the majority seems to concede, contrasts with the authority the court feels compelled to follow.

I am further confused, to a degree, by the majority’s belief that they must follow certain prior precedent, yet feel free to embark upon a pronouncement of extensive procedures and standards for determining questions of forfeitability as part of the court’s responsibility to define this area of common law. This effort is really nothing short of judicial legislation and appears, to me at least, as invasive and out of place, if not more, than simply exercising the court’s more accepted ability to limit the reaches of a common law rule. This is not to say that I am against the intent of the majority in this endeavor. I would welcome the changes espoused by the majority far more so than I would a pronouncement that the vehicle must be forfeited. However, I feel that the majority must reach as far to make the pronouncements and changes they do as would be required to simply find that the vehicle is not subject to forfeiture under the circumstances presented. Furthermore, the pronouncements made by the majority simply do not go far enough and could quite possibly create a whole new set of problems. For instance, the majority appears to be establishing a rule that if the vehicle is found to be “derivative contraband” the decision of whether or not it will be forfeited will be left to the discretion of the trial court considering all the facts of relevance. In the present case, this practice would appear to be a mere formality preceding an order of forfeiture. Most of the factors suggested for consideration by the majority were in fact made aware to the trial court and the trial court responded with a sua sponte order of forfeiture. Certainly the same result is possible, if not likely, to follow a remand here. Further, should forfeiture be ordered after the majority’s course is followed, to what degree will the forfeiture determination be reviewable and what standard of review will apply? Will the trial court’s determination be subject to review by the appellate courts and, if so, what will the appellate courts need to find to upset the order of forfeiture?

My concerns regarding this area of law actually begin with a rather fundamental aspect of it, the definition given to derivative contraband. Although well supported by the majority, in terms of case law, I have considerable difficulty with the definition expressed in the majority’s opinion. If, as here, a legally possessed piece of property is used in the commission of a crime, describing it as “derivative” contraband appears to be a true misnomer. The property, as such, is not “derived” from illegal activity at all, as the term would seem to suggest. Rather only the contraband status itself could possibly be said to be derived from the illegal activity. More correctly, the property could possibly be considered “associative” contraband, as the lawfully possessed property becomes guilty by its association with the commission of a crime. However, calling it derivative contraband seems to be rather inappropriate. I make this commentary because it appears to me intuitively speaking, that, there is a substantial difference between considering one’s lawfully possessed property contraband because of a transitory connection with an illegal act, and considering gains derived from an illegal act or enterprise contraband, as the term seems to more correctly imply.

It is a well established principle in our jurisprudence that one should not be allowed to profit from an illegal act. Thus, gains from an illegal act or enterprise would seem to be properly forfeitable, thus qualifying it as contraband (of a derivative nature). However, to allow the fruits of honest labor to be forfeited seems to be another proposition altogether. Our founders did insist, after all, that we not be deprived of life, liberty or property without due process of law. Their belief that individuals should be secure in their possessions obviously played a part in the inclusion of this language. Thus, although there may indeed be circumstances where forfeiture of property due to its association with or utilization in an illegal act would offend neither concepts of due process nor justice, certainly such circumstances are far more limited than a situation where the forfeited property is derived from illegal acts or an illegal enterprise. It is entirely possible that the term derivative contraband has been used loosely enough over the years to bring within its scope a classification of property not properly includable within it so as to legitimize a type of forfeiture that should be utilized only very sparingly. It is this development with which I have great difficulty. In fact, only a few of the reported cases really apply the principle utilized by the majority here.

Many of the reported forfeiture cases have resulted in the forfeiture of derivative contraband. However, they were more representative of a true “derivative” contraband situation. Some of these cases hinged upon a question of lawful possession of the property as opposed to those which rested upon mere usage of the property in an illegal act. In these cases, the items of property in question were not contraband per se. However, just as surely, like contraband items, there were impairments to a claim of good or lawful title. Commonwealth v. Doranzo, 365 Pa.Super. 129, 529 A.2d 6 (1987), is perhaps most representative of these cases. In Doranzo the petitioner was seeking a return of items which were found to be stolen. Thus, it would appear, in that case, the forfeiture was essentially predicated upon the fact that, under thqse circumstances, the petitiener ceuld not claim a legitimate right of possession to this property. They were not items to which the petitioner had legitimate title but lost due to their usage in the commission of a crime.

Similar to a large degree are the cases of Sugalski v. Cochran, 365 Pa.Super. 370, 529 A.2d 1104 (1987), Commonwealth v. Landy, 240 Pa.Super. 458, 362 A.2d 999 (1976), and Commonwealth v. Coghe, 294 Pa.Super. 207, 439 A.2d 823 (1982). Sugalski, which did not find a successful forfeiture, and Landy are most similar to a true derivative contraband situation and are, therefore, perhaps even more instructive. At issue there, were the alleged monetary proceeds of illegal gambling and drug selling transactions. Of course, to the extent the money could be proven to have been derived from such illegal activity, the petitioners would be hard pressed to establish a right to its return. Coghe is also somewhat similar in that the money sought to be returned was the product or consideration of an illegal contract. It is logical to assume that to the same extent one could not enforce performance of or sue for the default of such a contract in civil court (the murderer, had he performed the act, would be unable to sue the conspirator for nonpayment of the contract) one would be unable to seek return of the money in a Rule 324 context either. Thus, in Coghe, there was also a question of right of possession. With these cases separated from the rest, only Estate of Peetros and Petition of Maglisco can be said to have involved situations similar to the present one.

In both Maglisco and Peetros, the property found forfeitable was used in the commission of a crime, thus, providing the basis for the forfeiture. And, like the present case, the property was neither derived from the illegal act, nor was there a question of lawful title. Nevertheless, and apparently without regard to the Schilbe decision, the property was found to be derivative contraband and subject to forfeiture. The majority finds this authority materially indistinguishable and, thus, follows it despite expressed reservation. This is where I part company with the majority, I do believe there is a material difference between Maglisco, Peetros and the present case.

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

In Maglisco, the subjects of controversy were a pistol which had been used in a deliberate assault upon, or perhaps even an attempt to kill, another individual, and some rifles found at the petitioner’s residence which were not used in violation of the law. We concluded that there was no basis to support forfeiture of the rifles but that the pistol was properly forfeitable as derivative contraband. We discussed, among other things, the concepts of blameworthiness and proportionality and concluded, in essence, that in voluntarily using the pistol in the assault the owner had “forfeited” her right to possession of it. In contemplation of the Magliseo opinion one can perhaps see some of the motivation behind a finding that the pistol was derivative contraband. First, there was a deliberate and intentional attempt to injure another individual. Secondly, the loss resulting from the forfeiture of the pistol was neither substantial nor does it appear to me, in an intuitive sense, to be disproportionate to the crime committed.

Similarly, in reviewing Estate of Peetros, supra, perhaps the most dominant theme in the opinion, aside from the obvious holding that the subjects of controversy, loan sharking record books, were used in the commission of a crime, is the fact that the books found forfeitable had essentially no other legitimate use or purpose, and although it was not necessarily illegal to possess the books, neither was it truly foreseeable that upon their return they would serve any legal or legitimate purpose. This is significant because in Maglisco we also recognized that a goal of forfeiture is to remove the operating tools of a crime from criminals.

Thus, Maglisco can be reasonably cited to allow common law forfeiture of an instrumentality used in the deliberate attempt to injure or kill another individual, and Peetros could be reasonably cited to allow forfeiture of items which essentially are instruments of crime without much prospect of lawful or legitimate use. However, I remain unconvinced that these opinions compel extension of the principle to points unknown. The majority misses the thrust of my analysis of these decisions. I am not asserting that Maglisco and Peetros can only be cited for the propositions I have attributed to them. However, they can certainly be reasonably cited for these propositions, and, just as certainly they do not compel citation beyond these propositions. Part of our responsibility as an appellate court is the interpretation, explanation, extension and limitation of prior precedent. It is a fundamental appellate tenet that decisions be read narrowly upon their facts and that the application of legal principle is developed over a period of exposure to various factual patterns, similar in some ways, yet different in others. Undoubtedly, the principle enunciated in Maglisco and Peetros can be applied here if we wish — it could also, from a logical standpoint, be applied to take a blind man’s walking stick from him should he use it to jaywalk — but just as undoubtedly there is a difference in important factual matters which also would justify non-adherence, or, more accurately stated, refusal to extend the principle to this class of case. More importantly, if we find the vehicle forfeitable in this case where shall we draw the line?

If the forfeiture of an automobile is allowable here, would it not also be allowable when an individual exceeds the speed limit or attempts to beat out a red light but fails, or when an individual changes lanes or makes a turn without signalling? In short, will every violation of the motor vehicle code require or allow forfeiture of one’s vehicle? These laws, just like those prohibiting driving while intoxicated, are passed to provide a safe driving environment and every breach of them creates an increased risk of an injurious or fatal collision or accident. To use the majority’s analysis, it would be a deliberate breach of the law and the fact that fortuitously no one was injured or killed as a result of the driver’s indiscretion would be irrelevant. Thus, will one be under substantial risk of forfeiting the vehicle being driven every time one enters a vehicle? I doubt that few drivers make even a routine trip to work or the shopping mall without somewhere technically violating a section of the vehicle code. We could simply set the radars on our highways at 56 miles per hour and confiscate and forfeit thousands of vehicles. What about vehicles parked in no parking zones? Shall they be towed away never to be driven by their rightful owners again? These are just examples involving automobiles; I am certain that many other harsh examples could be found in virtually every facet of life and affecting all conceivable types of property if the basic principle is applied without limitation.

There would seem to be a significant difference, even if only an intuitive one, between declaring burglary tools or gambling or drug paraphernalia contraband and removing such contraband from one’s possession and declaring one’s automobile or other legally held property contraband simply because it can be connected to an illegal act. It would seem somewhat apparent that removing property that has little if any potential for legal or legitimate use is substantially different than removing from one’s possession legitimate and legal property that has been somewhat tainted by a transitory brush with a transgression of the law. The majority states their belief that the principle of Peetros and Maglisco must be similarly applied in this case. Yet the appellant here, although engaging in careless conduct, did not deliberately attempt to injure another, nor is the automobile an instrument of crime which will likely be used for only illegitimate purposes. Thus, I believe, the present case is distinguishable to a degree which I would consider material, and I believe the more prudent approach is to leave to the legislature any significant extension of the principle in question: particularly in light of the authority stating that forfeiture without statutory authorization is uncommon, supra, and authority indicating that forfeiture is not favored in the law. See, In re Fisher’s Estate, 442 Pa. 421, 276 A.2d 516 (1971).

For these reasons, I would find that the principles of common law forfeiture neither require nor allow the forfeiture of the vehicle in question here. Thus I dissent.

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

      . The bases upon which the Dissent finds Maglisco and Peetros to be distinguishable from the present case are not supported by the published opinions in those cases. The Dissent asserts that Maglisco "can be reasonably cited to allow common law forfeiture of an instrumentality used in the deliberate attempt to injure or kill another individual,” (At 245), and because there was no such deliberate attempt in the present case Maglisco is distinguishable. However, nowhere in the opinion in Maglisco does the court indicate that Mrs. Maglisco had the deliberate intent to kill her husband. On the contrary, the opinion recites that the criminal charges against Mrs. Maglisco were dropped despite the uncontroverted fact that the bullet which lodged in Mr. Maglisco’s leg was fired by Mrs. Maglisco. Thus the inference was raised that Mrs. Maglisco did not have the intent to shoot her husband. While the language in Maglisco supports the conclusion that there was a preponderance of the evidence that the pistol was used in the commission of a crime, there is nothing to indicate that Mrs. Maglisco “deliberately and intentionally” shot her husband.
      We also note that even if we agreed with the Dissent’s interpretation of the holding in Maglisco, we would find Maglisco applicable because there is nothing in the record to suggest that appellant did not deliberately drink the alcohol and did not then deliberately drive his vehicle. The fact that fortuitously no one was seriously injured is irrelevant. The significant fact is that appellant deliberately and intentionally drove while drunk, and the possibility that someone would be seriously injured or killed as a result thereof was the risk undertaken by appellant.
      The Dissent also asserts that Peetros is distinguishable from the present case because Peetros can be cited "to allow forfeiture of items which essentially are instruments of crime without much prospect of lawful or legitimate use," (At 245) but the vehicle in the instant case has a legitimate use. In Peetros, however, the trial court had held that because there was a lawful purpose for the loan-sharking books, they could not be forfeited. In reversing this decision, the Superior Court did not disagree with the trial court's factual conclusion that there was a legitimate purpose to which the loan-sharking books could be put. Rather, the Superior Court only held that to determine whether property is derivative contraband, one must look at the status of the property when it was seized and the uses to which it had been put at that time. Thus, Peetros does not hold that items which have little “prospect of lawful or legitimate” use are forfeitable and other items are not, but instead holds that whether an item is forfeitable depends upon whether at the narrow moment in time when it is forfeited, it is being used for a legitimate or an illegal purpose.

      . Note that the houses used to facilitate the fencing operation were not seized as contraband. If the theory asserted here by the trial court were adopted, ostensibly, the houses would be subject to forfeiture. The same statement could be made in Sugalski. Needless to say, the attempt to seize and forfeit such property would seem unduly harsh and controversial.

      . Although not presenting itself in Coghe, the best procedural context to bolster the majority’s position would have been an attempt by the authorities to forfeit an agreed upon, but yet unpaid, sum for the contract killing. Or, alternatively, an attempt to have forfeited the sum paid to the hired assassin but returned to the husband after the failed attempt. If the money truly became contraband because of its usage in the commission of a crime, then it would seem that possession of it by the appellant would not be of relevance and the order of forfeiture, under those circumstance, would have been of greater significance.

      . The majority takes issue with my characterization of the Magliseo opinion, an opinion drafted by myself for the panel, saying that my characterization is lacking in factual support on the face of the Magliseo opinion. However, my general assertion, that there was assaultive behavior in Magliseo, is reasonably inferable from the information contained in the opinion. We state at the beginning of Magliseo that appellant shot her husband. Although there is no direct expression that the shooting was something more than accidental, there is certainly plenty of indications that the panel, myself included, acted with the understanding or belief that it was. First of all, in common experience, when individuals state that somebody shot someone there is a connotation of intentional behavior. That is why one more often sees the phrase "accidentally shot” than “intentionally shot.” Intention appears, in common parlance, to be read into the phrase "shot” more often than not, thus, necessitating the qualifying word "accidentally” where applicable. Secondly, we concluded that a crime had been committed with the pistol. This, by itself, rules out any innocent behavior or accident. There would have to be at least a finding of criminally negligent behavior to make this conclusion. Thirdly, we mention the trial court’s motivation of preventing another firearm incident, something which would seem unnecessary if the shooting were purely accidental. Fourthly, we state that appellant's actions were “quite blameworthy”, 491 A.2d at 1385, and that forfeiture would be "quite reasonable in light of the seriousness of appellant’s offense.” Id. These references suggest, I believe, deliberate and culpable behavior even if not explicitly so stated. Thus, when the entire opinion is read together I do not believe the majority’s assertion, that there is an inference raised that Mrs. Magliseo did not have the intent to shoot her husband, rings true. Rather, I believe the inference is raised that the panel was operating under the assumption that the shooting was intentional.
      The majority further states that even were they to read Magliseo as dealing with a deliberate shooting they would still find it applicable as there is no indication that the drinking and driving were not deliberate. I believe they miss the point of my discussion. There is no dispute that appellant deliberately consumed alcohol and then deliberately drove. However, there is a substantial difference in the nature and culpability of deliberately shooting someone and driving a vehicle after having consumed alcohol. The difference is the state of mind or mens rea. There is no indication that appellant attempted or intended to strike someone with his vehicle, there is no indication that appellant intended anything more than to drive home, safely one would presume, even if he was unsuccessful in his attempt. Certainly, the majority would not contest the assertion that there is a substantial difference in intending to injure or kill someone and intending an act which is negligent as to the safety of others. The difference in a homicide case is the difference between a potential death sentence and a few years imprisonment. We treat the different crimes so differently because of the importance we place on the state of mind to the eventual same result. Consequently, if we assume that Maglisco dealt with a deliberate shooting then certainly a reasonable individual would have to concede that there exists a distinguishing factor in the present case, even if one eventually concluded that that factor was not substantial enough to compel a different result.


text:
    568 A.2d 247
    COMMONWEALTH of Pennsylvania, Appellant, v. Gerard P. CEPULL.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1989.
    Filed Jan. 3, 1990.
    Petition for Allowance of Appeal Denied June 11,1990.

      John L. Brown Jr., Asst. Dist. Atty., Beaver, for Com., appellant.
    Debra A. Genevie, Beaver Falls, for appellee.
    Before WIEAND, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

This is an appeal from the January 25, 1989 Order of Court, granting appellee’s motion for a new trial. The trial court en banc granted the motion because it found error in allowing an expert witness to testify, over objection, “as to the general condition known as ‘rape trauma syndrome.’ ” Slip Op., Per Curiam, 1/25/89, p. 1.

Appellee was charged by information and convicted of rape by forcible compulsion and rape by threat of forcible compulsion. The incident which gave rise to the charges occurred in August 1983. The facts are as follows. The victim, not yet eleven years old at the time, went to bed by herself the evening of the incident. Shortly thereafter, appellee, who was a family friend, went up to her attic bedroom, turned on the stereo, and lay down beside her in bed. Victim’s numerous attempts to face the wall and fall asleep were forcibly rebuffed by appellee. While forcing his arm under victim’s neck, appellee removed his underwear and told the victim to take off her pajamas, which she eventually did. Despite the victim’s protestations, appellee started rubbing her stomach, back, chest and legs, and after he removed her underwear, he started rubbing her private parts. The victim once again tried to get away, but appellee exerted more strength. At this point, the victim felt something going inside her, which caused her extreme pain. She tried to call for her mother, but appellee pulled her tight and covered her mouth, letting only the last part of her call out. The victim felt a sensation as if appellee had urinated on her, and then appellee pushed her toward the wall. As the victim got up to leave, appellee grabbed her arm and told her everything was her fault, and it would hurt her parents if she ever revealed any of what had transpired to anyone else. Appellee released the victim, who immediately went to the bathroom to clean herself and found she was bleeding. The victim did not tell her mother, but because she felt safer with her parents, she asked if she could sleep with them. The next day, her mother noticed the bleeding, and she mentioned it to the victim’s grandmother a day later.

Subsequently, the victim became very withdrawn, quiet and unhappy according to her mother, and by her own admission, she began to hate men. After her father died, her mother began dating another man, and the victim disliked him. Finally two-and-one-half years (2V2) after the incident, the victim confided in a neighbor what had happened and later told her mother.

At trial, the Commonwealth introduced Diane McQuillen as an expert witness. The prosecutor offered McQuillen would be testifying as to the general condition of “rape trauma syndrome,” which is evidenced by a marked pattern including withdrawal, insecurity, attempts to avoid contact with members of the sex who inflicted the crime and reluctance to tell anyone about the crime. Although appellee objected, the trial court permitted McQuillen’s generalized testimony, but after the trial and upon appellee’s motion for a new trial, the court granted a new trial based on the inadmissibility of McQuillen’s testimony.

Commonwealth/appellant contends the trial court erred in reversing itself to declare the expert testimony on behalf of the Commonwealth was inadmissible. Expert testimony is admissible in all cases, civil and criminal alike, where it involves explanations and inferences not within the range of ordinary training, knowledge, intelligence and experience. Commonwealth v. Leslie, 424 Pa. 331, 227 A.2d 900 (1967). The law regarding testimony by an expert relating to the capacity of a child witness to tell the truth in an abuse case is clearly stated and follows a distinct pattern in Pennsylvania and a majority of the. jurisdictions throughout the nation. Expert testimony in sexual abuse cases frequently relates to bolstering the credibility of child sexual abuse victims by describing behavior of sexually abused children, which may be similar to that exhibited by the victim in the case, or by confirming, through recitation of reports and studies, the general reliability of victim reports of sexual abuse.

In awarding a new trial, the trial court primarily relied on two cases stating the general rule, Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986) and Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988), to conclude the expert’s testimony was inadmissible because it improperly encroached on the jury’s function of determining the credibility of a witness. In Seese, the Supreme Court held expert testimony as to the general credibility of eight-year-old children who claim to have been sexually abused encroached on the province of the jury and as such was inadmissible. The Supreme Court, in Gallagher, held expert testimony regarding the effect of “rape trauma syndrome” on the victim specifically and her ability to identify her assailant four years after the attack but not two weeks after the attack improperly enhanced the victim’s credibility in the eyes of the jury and thus was inadmissible.

Upon closer examination, the cases relied on by the trial court are to some degree distinguishable from the instant case. In Seese, the testimony elicited from the expert was a direct attempt to establish the victim’s credibility. Specifically, the expert in Seese testified “[i]t is very unusual that a child would lie about sexual abuse____ They don’t know what to say. It’s not part of the life experience, so everything they say is something they have seen or experienced. It would be very unusual for them to lie.” Seese, supra, 512 Pa. at 442, 517 A.2d at 921. To the extent the testimony here concerned only a generalized description of rape trauma syndrome, it did not conflict with Seese. Appellee even concedes Seese is not on point because in the case at bar McQuillen “did not directly say the victim was not lying.” (Appellee brief, p. 14.) Since the controlling factor for the Supreme Court’s decision in Seese was that the expert actually testified child sexual abuse victims do not lie, it is not directly applicable here. However, a close review of the record establishes the Commonwealth did introduce evidence which we believe invaded the province of the jury by quoting studies establishing the extent to which rape victims lie or tell the truth (T.T. 1/13/88, pp. 413-414).

We can distinguish Gallagher because the expert in that case testified she examined the victim, diagnosed the victim as suffering from rape trauma syndrome and believed the syndrome affected the victim’s ability to identify the assailant, which improperly enhanced the victim’s credibility in the eyes of the jury, which was impermissible. Here, McQuillen never examined the victim and never diagnosed her as suffering from rape trauma syndrome. Instead, McQuillen merely testified as to the generalized symptoms of the syndrome. In fact under cross-examination, McQuillen also described similar behavioral patterns resulting not from rape but from the death or terminal illness of a loved one. The father, in the instant case, was suffering from juvenile diabetes at the time of the alleged rape and subsequently died from the disease. As such, the expert’s testimony did not improperly enhance the victim’s credibility because the jury still had to pass on the credibility of the expert witness and whether this victim suffered from rape trauma syndrome or if the victim’s behavioral changes resulted not from rape but from the agony of watching her father slowly die. Clearly, the jury function of determining credibility was still intact in this respect, however, as stated above, the balance shifted and the line was crossed when the expert testified as to studies which established that victims of rape lie only in three per cent of the cases.

Expert testimony is permitted as an aid to the jury where the subject is beyond the knowledge or experience of the average layman. Commonwealth v. O’Searo, 466 Pa. 224, 352 A.2d 30 (1976). Consequently, we find McQuillen’s initial testimony was a proper comment and subject for expert testimony, without invasion of the jury’s function of determining credibility. However, we must depart from the Commonwealth’s contention of relevancy as it relates to the testimony concerning the studies quoted by McQuillen as follows:

THE COURT: Let’s have the question.
BY MR. BROWN:
Q Are you familiar with the studies that were done by Harry O’Reilly in New York City in regards to a number of founded and unfounded rape and sexual assault cases?
A Yes, I am.
Q What were the results of those studies?
THE COURT: Just a moment.
MR. HUDACSEK: This is my objection. The best evidence would be the studies, themselves, Your Honor.
THE COURT: We think you opened the door, Mr. Hudacsek. The objection is overruled.
MR. HUDACSEK: Okay. Whatever you rule, sir.
BY MR. BROWN:
(continuing)
A According to that study, Mr. O’Reilly found that less than 3 percent of all women and children turned in false reports for rape and that that’s the same statistic that they have as for false reportings for most other felony crimes, such as robbery and burglary.
Q Now, were you familiar with a study also conducted by the F.B.I. on the same subject?
A Yes, I am.
Q What was the result of that study?
MR. HUDACSEK: Same objection, Your Honor.
THE COURT: Overruled.
BY MR. BROWN:
(continuing)
A The F.B.I. study paralleled that of the study conducted by Mr. O’Reilly, and their study was a nationwide study, and they found only 3 percent of all women who reported being sexually assaulted had in fact lied or made up a story about that; and again, it was the same rate of false reports as they had for any other crime, such as robbery or burglary.

T.T. at 413-414.

While the trial court found the victim’s testimony alone would convict appellee (Slip Op., Reed, J., p. 2), the testimony by the expert Ms. McQuillen, concerning studies which established that only three per cent of rape victims lie, in conjunction with the extensive testimony about the rape trauma syndrome, could have had a substantial prejudicial effect on the jury’s deliberations, in that they could have accepted the testimony by the expert as conclusive of defendant’s guilt without making an independent determination of the victim’s credibility. At this stage of the development in Pennsylvania law, since the rape trauma syndrome has not been documented as a diagnostic tool having probative value, as is the case with the “battered child” — “battered wife” syndromes, its use in any fashion will create appeal-able issues. In making an analogy between the “battered child” — “battered wife” syndromes and the “sexual accommodation” syndrome (which has the same elements as rape trauma syndrome), Commonwealth v. Baldwin, 348 Pa.Super. 368, 502 A.2d 253 (1983), as relied upon by the Commonwealth, is in error and has been repudiated by implication. See Gallagher, supra. It is noted that in Baldwin all authority for this analysis was derived from case law of states other than Pennsylvania.

For the above reasons, the trial court was correct in granting a new trial, and we affirm that decision.

Order affirmed.

Jurisdiction relinquished.

WIEAND, J., concurs in the result.

      . 18 Pa.C.S. § 3121(1).

      . 18 Pa.C.S. § 3121(2).


author: POPOVICH, Judge:

text:
    568 A.2d 250
    Jan Crockett MOORE, Appellee, v. Gary J. MOORE, Appellant. Jan Crockett MOORE, Appellant, v. Gary J. MOORE, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1989.
    Filed Jan. 5, 1990.

      Kenneth L. Baker, Washington, for appellant (at 430) and appellee (at 375).
    Before McEWEN, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the Court of Common Pleas of Washington County awarding appellant, Jan Moore, child support of $300.00 per month. Appellee, Gary Moore, filed a timely appeal to this court on March 6, 1989, and appellant filed a timely cross-appeal on March 10, 1989. For the reasons set forth herein, we dismiss appellee’s appeal, vacate the awarded support and remand for proceedings consistent with this opinion.

Appellant has raised several issues for our review. Initially, appellant argues that the Washington County Support Guidelines fail to comply with Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). Appellant also contends that the trial court failed to make proper application of Melzer in the instant case. Additionally, appellant alleges that the child support was inadequate in light of appellee’s paramour’s household contribution. Next, appellant claims that the lower court erred in allocating to each party one (1) income tax deduction, since neither party raised the issue. Finally, appellant believes that the court erred by failing to direct appellee to pay one-half (V2) of medical and orthodontic expenses subject to appellant’s insurer paying one-half (V2).

The record reveals that appellant filed a complaint for support of the parties two (2) daughters, ages nine (9) and five (5), on September 7, 1988. On October 29, 1988, after a conciliation and support hearing, a provisional assessment of $175.00 was entered. Additionally, appellee was to provide medical and hospital coverage and pay one-half of dental or medical expenses not covered by insurance. Both parties filed an appeal of the provisional assessment.

A hearing was held on February 6, 1989. Appellant testified to having a net income of $2,080.00 and net expenses of $2,468.00 per month. Appellant’s child care expenses for her five year-old amounts to $2,880 each year, increasing to $3480.00 during the nine year-old’s summer vacation. By comparison, appellee earns a net monthly income of $1300.00, excluding monies earned working at his parents’ farm and construction work done at a local school. The record does not contain a definitive amount of appellee’s monthly expenses, though the figure appears to be over $1,200. Also, the record fails to reveal the type of compensation appellee receives working his parents’ farm, though he received $10,000 in 1987.

The record indicates that appellee will be receiving pay raises totaling $6,000.00 over the next three (3) years. Appellant is a salaried employee with no raise expected in the near future. At the hearing’s conclusion, the Honorable David L. Gilmore entered an order setting the reasonable needs of the children at $700.00 per month. Judge Gilmore ordered appellee to pay $300.00 for support and directed each parent to claim one (1) child as an income tax deduction.

Appellee filed a timely appeal to this court on March 6, 1989. Appellant filed her appeal on March 10,1989. Appellee failed to file an appellate brief and on September 1, 1989, appellant filed a motion to dismiss appellee’s appeal.

Initially, we will address appellant’s motion to dismiss. We agree that appellee’s appeal should be dismissed due to violation of Pa.R.A.P. 2188, 42 PaC.S.A., which states:

Rule 2188. Consequence of Failure To File Brief and Reproduced Records
If an appellant fails to file his designation of reproduced record, brief or any required reproduced record within the time prescribed by these rules, or within the time as extended, an appellee may move for dismissal of the matter. If an appellee fails to file his brief within the time prescribed by these rules, or within the time as extended, he will not be heard at oral argument except by permission of the court.

Instantly, appellee did not file a brief in support of his appeal or an answer to appellant’s cross-appeal. Appellee’s status does not change this determination. When a cross-appeal is filed, the party filing the cross-appeal is designated as the appellant for the purposes of the appeals. Pa.R. A.P. 2136, 42 Pa.C.S.A. This does not relieve appellee from submitting a brief for his appeal or answering appellant’s cross-appeal brief. Therefore, we grant appellant’s motion to dismiss appellee’s appeal.

While appellant has raised many issues, we, however, remand to the lower court without addressing these issues. Two weeks after this case was argued, the Pennsylvania Supreme Court amended the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. 1910.16-1, et seq., 42 Pa.C.S.A., effective September 30, 1989, adopting uniform support guidelines. In the instant case, the appeal and cross-appeal were filed prior to the effective date of the adoption of the uniform support guidelines. This court has applied new or amended rules to actions commenced prior to the effective date of the adoption or amendment of the rule. See, Joseph Palermo Development Corp. v. Thomas Bowers, 388 Pa. Super. 49, 564 A.2d 996 (1989).

There exists a need for support order uniformity, the guidelines’ end. The guidelines will be used for support determination throughout the Commonwealth, including Washington County. We anticipate ensuing confusion if the instant issues were decided by outdated methods. Future petitions for support modification will be addressed by the newly adopted uniform support guidelines, and we hesitate to address current issues which may be resolved by the new guidelines.

If we decided the issues raised on appeal, we are confident that one of the parties would seek an immediate modification based upon the new support guidelines. In the interest of judicial economy, we believe that the lower court should have the opportunity to address and apply the new guidelines. The lower court may wish to take further testimony as to any change of circumstance which would influence support. Future appeals, following the lower court’s redetermination of support, would not be prohibited. We believe that the best interest of the parties is to remand and allow the lower court to apply the uniform support guidelines.

Due to the pendency of this case during the adoption of the uniform support guidelines, the need for uniformity, and anticipated future modification of any order entered prior to the adoption of the uniform support guidelines, we dismiss appellee’s appeal, vacate the support order and remand to the lower court for application of the guidelines to this case. Judicial economy and the best interest of the parties is most effectively served by this order.

Appeal dismissed, support order vacated, remanded, jurisdiction relinquished.

MONTGOMERY, J., concurs in the result.

      . Pursuant to Pa.R.A.P. 2136, 42 Pa.C.S.A., Jan Moore is deemed the appellant for this consolidation of appeal and cross-appeal, due to her status as plaintiff below.

      . This court excluded appellee from oral argument in Pittsburgh on September 19, 1989. Pa.R.A.P. 2188, 42 Pa.C.S.A., allows appellee to be excluded from argument when no responsive brief is filed.


author: OLSZEWSKI, Judge:

text:
    568 A.2d 253
    Patricia RILEY, as Parent and Natural Guardian of Todd Riley, a Minor, and Patricia Riley in her Own Right, Appellants, v. TRAVELERS INSURANCE COMPANY and William Shields, Appellees.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1989.
    Filed Jan. 10, 1990.

      John Enright, Philadelphia, for appellants.
    Jeffrey P. Hoyle, Philadelphia, for appellee.
    Before McEWEN, OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

Patricia Riley (hereinafter, “appellant”) appeals the order of the trial court granting summary judgment to Travelers Insurance Company, the assignee of a claim under the Pennsylvania Assigned Claims Plan, 75 Pa.C.S.A. § 1751, et seq. This case arises from a traffic accident between an automobile and a bicycle equipped with a motor. The trial court granted Travelers’ motion for summary judgment because the vehicle on which Todd Riley was riding is ineligible for benefits under the Assigned Claims Plan. On appeal, appellant asserts that the vehicle was not a “motorized pedalcycle” as described by the Plan because the motor was not engaged at the time of the accident and because the vehicle is not “required to be registered.” We agree with trial court’s characterization of the vehicle; accordingly, we affirm.

Upon a motion for summary judgment, the court must accept all well-pleaded facts, resolving all factual disputes in favor of the non-moving party and giving her the benefit of all reasonable inferences. Mattia v. Employers Mut. Co., 294 Pa.Super. 577, 440 A.2d 616 (1982). Accordingly, we state the facts as alleged by appellant.

On September 18, 1986, Todd Riley was a passenger on a bicycle equipped with a motor. The motor was not engaged at the time in question; the vehicle was being powered by pedals only. The vehicle entered the intersection of Lindley Street and 13th Street and was struck by a car. Appellant applied to the Assigned Claims Plan for benefits. Appellee Travelers Insurance Company was assigned to service the claim.

Travelers moved for summary judgment, noting that occupants of motor-driven cycles and motorized pedalcycles are ineligible for benefits under the Assigned Claims Plan. The trial court agreed that the vehicle was a motorized pedalcycle and granted Travelers’ motion. The only issue on appeal is the characterization of the vehicle in question.

The Assigned Claims Plan provides that, “A person is eligible to recover benefits from the Assigned Claims Plan if the person ... is not the operator or occupant of a ... motor-driven cycle or motorized pedalcycle or other like type vehicle required to be registered under this title and involved in the accident.” 75 Pa.C.S.A. § 1752(a)(7). Appellant claims that § 1752(a)(7) does not apply to her son because the motor on the vehicle was not in operation at the time of the accident.

Appellant’s argument misses the point. Ineligibility for benefits under this section is determined by the type of vehicle, not the means by which it is propelled at the time of the accident. If the vehicle is a motor-driven cycle or motorized pedalcycle, then the owner or occupant is ineligible for benefits. Appellant admits that the vehicle in question is a bicycle with a motor attached. This clearly falls within the category of vehicles excluded under § 1752(a)(7).

Appellant further argues that she is not ineligible for benefits because the vehicle in question is not “required to be registered.” In support of this argument, she cites Siefert v. Nationwide Ins. Co., 289 Pa.Super. 160, 432 A.2d 1101 (1980), and Bindernagel v. Nationwide Mutual Auto. Ins. Co., 335 Pa.Super. 419, 484 A.2d 773 (1984). These cases noted that trail bikes lack certain equipment necessary for registration of vehicles; therefore, the court held that these vehicles are not “required to be registered” and are not motor vehicles for the purposes of the No-Fault Act. Appellant points out that the vehicle in this case lacked similar equipment; therefore, it is not required to be registered and does not fall into this ineligible category.

Siefert and its progeny are inapposite to this case. Those cases relate only to characterization as a “motor vehicle” under the No-Fault Act. Under the No-Fault Act, benefits were available only if the injury arose from the maintenance or use of a motor vehicle, and motor vehicles were defined in terms of registrability. The line of cases cited by appellant excludes from No-Fault coverage those vehicles which “are not registrable or operable on any Commonwealth highways.” Bindernagel, 335 Pa.Super. at 423, 484 A.2d at 775.

The situation in the present case is quite different. Motorized pedalcycles, unlike trail bikes, are required to be registered under the Vehicle Code. Compare Pistorius v. Travelers’ Ins. Co., 348 Pa.Super. 527, 502 A.2d 670 (1985) with Myers v. State Farm Mut. Auto Ins. Co., 348 Pa.Super. 539, 502 A.2d 676 (1985). This Court distinguished dirt bikes, designed for off-road recreational use, from motorcycles and mopeds, designed for use on public roads, and found that motorized pedalcycles are required to be registered. Myers, 348 Pa.Super. at 542-44, 502 A.2d at 678. The vehicle in the present case was being used on a public road at the time of the accident.

Furthermore, the rationale of Siefert and Bindernagel does not apply to the Assigned Claims Plan. The legislature has chosen to exclude certain vehicles from coverage under the Assigned Claims Plan, presumably because those vehicles are more dangerous than other vehicles. Cf. Samsel v. Travelers Indemnity Company, 295 Pa.Super. 188, 441 A.2d 412 (1982). Appellant would have us find that her son is eligible to recover benefits because the vehicle on which he rode lacked certain required equipment, undoubtedly making the vehicle less safe. We cannot approve such an incongruous result. Instead, we find that under § 1752(a)(7), the term “required to be registered” refers to all vehicles not exempted from registration under 75 Pa.C. S.A. § 1302. Lack of required equipment does not exempt a vehicle from registration requirements. See Commonwealth v. Eliason, 353 Pa.Super. 321, 509 A.2d 1296 (1986).

The vehicle in the present case is a motorized pedalcycle. It is not powered solely by human or animal power, 75 Pa.C.S.A. § 1302(7), because it has a motor attached. Motorized pedalcycles are motor vehicles which are required to be registered under the Vehicle Code. Myers v. State Farm Mut. Auto Ins. Co., 348 Pa.Super. 539, 542-44, 502 A.2d 676, 678 (1985). It is required to be registered. Therefore, appellant is ineligible for benefits under the Assigned Claims Plan.

Order affirmed.

      . Bindernagel was partially overruled on grounds not relevant to this appeal. Phillips v. Nationwide Ins. Co., 348 Pa.Super. 351, 502 A.2d 244 (1985).

      . In Eliason, appellant was adjudged guilty of driving an unregistered vehicle for driving an all-terrain vehicle on a public highway. Eliason argued that his vehicle was not required to be registered, citing Siefert v. Nationwide Ins. Co., 289 Pa.Super. 160, 432 A.2d 1101 (1980). This Court rejected his argument, finding that the lack of appropriate equipment does not exempt a vehicle from registration requirements. Eliason, 353 Pa.Super. at 324-27, 509 A.2d at 1298-1299.