In re McLaughlin

OLSZEWSKI, Judge,

concurring and dissenting:

I agree with the majority that the petition of Emil Massad should not be reviewed as he neither filed an appeal nor joined in the appeal of Ms. McLaughlin. I take issue, however, with the majority’s decision to remand the case for an unnecessary determination that the Ford Bronco was used to “store, possess or transport” the marijuana.

As the majority correctly notes, the statutory authority for the confiscation and, subsequently, the forfeiture of vehicles provides as follows:

*65§ 831.1. Forfeiture for storage or transportation of narcotics or drugs

Any wagon, buggy, motor vehicle, water or air craft or other vehicle or conveyance in which is stored, contained or transported any narcotics or drugs, the possession or transportation of which is in violation of any law of this Commonwealth, shall be forfeited to the Commonwealth subject to the provisions hereafter set forth[.]

35 Pa.S.A. § 831.1 (Purdon’s Supp.1987) (emphasis added). Upon taking possession of a vehicle, the Commonwealth is obliged to deliver it to the district attorney, subject, however, to be returned to the owner upon execution of a bond. 35 Pa.C.S.A. § 831.2. Thereafter, the forfeiture procedure is governed by § 831.3 which provides:

§ 831.3. Vehicle adjudged forfeited after hearing

If upon hearing it appears that any such vehicle has been used to store, possess or transport any narcotic or drug, the transportation or possession of which is unlawful, such vehicle shall be adjudged forfeited and condemned and shall be disposed of as hereinafter provided.

35 Pa.S.A. § 831.3 (emphasis added). As this section makes clear, a vehicle may not be forfeited unless the evidence shows that it had been used to store, possess or transport any drug.

In rendering a decision that the Ford Bronco was forfeited to the Commonwealth, the hearing court stated:

It is further this Court’s opinion that the marijuana was in fact stored in the vehicle. The vehicle was, therefore, used for the purpose of either storing—and also been used in transporting is irrelevant [sic] as to whether he brought the marijuana to the scene of the Casa Maria or not because he did in fact have it there.

(N.T. 7/3/86 at 38) (emphasis added). A review of the hearing testimony shows that the court’s decision was well-founded.

The arrest of Paul Massad on the charge of possession of marijuana culminated a long-term undercover investigation *66by the members of the Narcotics Enforcement Team of the Montgomery County District Attorney’s Office. A member of that team, Detective Raymond Kuter, testified that for several months he had purchased marijuana from Paul Massad. During a telephone conversation on March 12, 1986, Massad advised the detective that the source of the marijuana was in Willow Grove, Pennsylvania, and that Massad had to drive there to complete a transaction. Detective Kuter agreed to meet Massad later that same evening at a restaurant in King of Prussia, Pennsylvania, in order to purchase some marijuana.

Detective Sherman Nowlin, also of the Narcotics Enforcement Team, testified that he and three other units were assigned to surveil Massad. After the telephone conversation between Detective Kuter and Massad, Detective Nowlin and the other units followed Massad from his home in King of Prussia to a residence in Willow Grove. The officers also followed Massad to the restaurant in King of Prussia where he was to meet with Detective Kuter. Detective Nowlin recalled that when he and the other police units arrived at the restaurant to set up surveillance, he observed two males in a car which was parked behind the restaurant. Massad arrived alone in the Ford Bronco, drove up to the unidentified car, and talked to one of the males. The car then left the parking lot. Thereafter, Detective Kuter arrived. Detective Kuter explained that he joined Massad in the front seat of the Ford Bronco. At that time, Massad showed the detective a paper bag containing marijuana.1 The marijuana was located between the driver’s seat and the passenger’s seat of the Bronco. Massad was then arrested and the Ford Bronco impounded.

Based upon this testimony of the officers, I am satisfied that the evidence supports the hearing court’s finding that the marijuana was stored in the Ford Bronco. Thus, the vehicle was properly forfeited to the Commonwealth.

I agree with the majority that the hearing court improperly relied upon § 831.1 in rendering its decision. (N.T. *677/30/86 at 39; Opinion pursuant to Pa.R.App.P. 1925(c)2 10/29/86 at 3). As noted above, § 831.3, not § 831.1, sets forth the circumstances under which an order of forfeiture may be entered. I believe, however, that this error is of no consequence. Although § 831.1 authorizes the confiscation of vehicles and § 831.3 determines when forfeiture is proper, both sections are satisfied here since the hearing court held that the marijuana was “stored” in the Ford Bronco.3 Compare 35 Pa.C.S.A. § 831.1 with 35 Pa.S.A. § 831.3.

I believe the decision to remand the matter is unnecessary and, consequently, is an unproductive use of judicial resources. I would therefore affirm the order.

. It was stipulated that the bag contained marijuana. (N.T. 7/30/86 at 31-32).

. In a Rule 1925(c) “Opinion,” the court merely explains the reasons for its prior order. See Commonwealth v. Crowley, 259 Pa.Super. 204, 209, 393 A.2d 789, 792-793 (1978); see generally Pines, Pennsylvania Appellate Practice: The Appellate Journey (From Filing the Appeal to Briefing), 91 Dick.L.Rev. 377, 421 (1986).

. According to the docket sheet, the Opinion pursuant to Pa.R.App.R. 1925(c) was filed on October 29, 1986; however, the transcript of notes of testimony was filed several days later, on November 3, 1986. I believe that the court’s ruling of July 30, 1986 controls, not the explanation given in the Rule 1925(c) Opinion (which was filed prior to the time the transcript was completed).