dissenting:
I disagree with the Majority’s decision to vacate that part of appellant’s sentence which requires appellant to pay *41$500.00 to the county for services rendered by the Public Defender.
In Commonwealth v. Martin, 233 Pa.Super. 231, 335 A.2d 424 (1975), a common pleas court judge in Bucks County, after finding indigency, granted a defendant’s application for assignment of counsel. The defendant was tried and found guilty and was ordered by the trial judge (a judge other than the one who had granted the application for assignment of counsel), to pay a fine of $5,000, an amount which the judge stated would represent “the minimal fee that [the defendant would] have paid to private counsel for the able representation that he received . . . .” The trial court made no fresh inquiry into the defendant’s financial condition, and had before it only such information as had been available to the judge who had made the finding of indigency—information which indicated that the defendant had only a 1964 automobile worth approximately $200, plus $358 in cash and savings, and was unemployed and initially unable to even make bail. In addition to (in effect) overruling another lower court judge’s finding of indigency without making a fresh inquiry into the defendant’s financial condition, the trial judge sentenced the defendant to a term of imprisonment, thereby, our court noted, further curtailing the defendant’s ability to pay a $5,000 fine. We vacated that portion of the judgment of sentence which required the defendant to pay a fine.
A year after the Martin decision, our court confronted a similar problem in Commonwealth v. Opara, 240 Pa.Super. 511, 362 A.2d 305 (1976). In Opara, a Philadelphia trial judge had sentenced a defendant to pay $750 without 60 days to the City of Philadelphia for use of the Philadelphia Defender Association, or spend 30 days in jail for contempt. Our court vacated the sentence. In Opara, as in Martin, no support could be found in the record for a finding of ability to pay; furthermore, in Opara the lower court denied the defendant the opportunity to be heard and to present evidence on the question of his indigency.
*42In the case before us, the lower court held a hearing (on October 8, 1975) to determine appellant’s financial status. Appellant testified that he was unmarried, with no dependents, living with his mother, paying $25-$30 per week rent, that he owned a fully paid 1969 Dodge Coronet, and that he was earning (net) $80 to $100 per week. The lower court judge, after hearing this testimony, indicated that he intended to order appellant at the time of sentencing to pay for the services of his public defender. On October 15,1975, the same judge placed appellant on one year of reporting probation and ordered him to pay $500 within 31 days “to the Clerk of Quarter Session Court for the use of the Public Defender’s Office.” Although appellant’s attorney then informed the court that he personally believed that appellant had in fact not been working, and though appellant made some remarks indicating that his job had been only a prospective one, the lower court evidently believed that appellant had been telling the truth on October 7 when he testified that he was working. The record in the case before us (unlike the record in the Martin and Opara cases) supports a finding of the appellant’s ability to pay for the services rendered him by the Public Defender.
The question remains whether the lower court had the authority to order appellant to reimburse the county for the services of the public defender’s office. The Acts of 19091 and 19112 authorize our courts to order persons convicted of certain crimes (not including rape, the crime involved in the case before us) to pay money for use of the county as a condition of probation; the Act of 19413 authorizes probation for every offense except first degree murder but makes no specific reference to imposing terms and conditions. In Commonwealth v. Peterson, 172 Pa.Super. 341, 94 A.2d 582 (1953), our court reconciled the Act of 1941 and the Act of *431911, finding that the 1941 Act had not repealed the 1911 Act’s provisions authorizing the imposition of terms and conditions on probation orders. Although the defendant had been sentenced under the Act of 1941, our court indicated that the lower court could properly have placed the defendant on probation and imposed conditions (payment of the prosecutrix’s doctor bill and attorney fee) on the order of probation. In at least two other cases, Commonwealth v. Preininger, 230 Pa.Super. 39, 326 A.2d 612 (1974) and Commonwealth ex rel. Kosele v. Keenan, 178 Pa.Super. 461, 116 A.2d 314 (1955), our court upheld probation orders (under the 1941 Act) which had conditions attached, although the specific issue of the legality of the conditions (restitution in Preminger, payment of $150 for use of the county in Kosele ) was not raised in either case. The practice was for the courts to attach conditions to probation orders under the 1941 Act. With the new Sentencing Code, 18 Pa.C.S. §§ 1301-1382, the legislature, without repealing the older sentencing statutes, added a section which specifically authorized the imposition of conditions on probation orders. § 1354(c)(13) provides that the courts may attach “any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.” I interpret the Act of 1941 and § 1354(c)(13) of the Sentencing Code as permitting the imposition of probation conditioned on payment by a defendant of the cost of his representation by the public defender. The amount payable may not exceed the amount of any fine that the defendant could be obligated to pay, and such an order must be predicated on the defendant’s ability to pay; furthermore, a defendant can always petition the lower court if his financial condition changes and he becomes unable to comply with the order. See Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974) and Opara, 240 Pa.Super. at 516, 362 A.2d 305.
In the case before us, the lower court held a hearing prior to sentencing to inquire into appellant’s financial resources. *44Relying on information received at that time, the court placed appellant on probation and ordered him to pay the county $500, an amount which the court felt was “very modest” for the representation provided appellant by the public defender at arraignment, preliminary hearing, trial and post-trial motions. Full inquiry was made into appellant’s financial condition, and the court obviously concluded that appellant would be able to pay the money without undue hardship. No allegation has been made by appellant that this amount exceeds the value of the services he received, or that he would be unable to pay the $500; the only argument is that the lower court was without authority to issue such an order. I would find that the lower court’s order that appellant reimburse the county for part of the cost of his defense was a reasonable condition of his probation, permissible under the Act of 1941 and § 1354(c)(13) of the Sentencing Code.4 The Majority vacates a part of the sentence, i. e., the sentence to pay $500 for the services of the Voluntary Defender Association. The court below may desire to impose a fine, since we are vacating its order to pay the said $500. In implementing the Majority’s decision I believe that the sentence should be vacated and the case remanded to the court below for resentencing.
WATKINS, President Judge, joins this dissenting opinion.. Act of May 10, 1909, P.L. 495, § 1, 19 P.S. § 1081 (1964).
. Act of June 19, 1911, P.L. 1055, § 1, as amended May 7, 1925, P.L. 554, No. 297, § 1, 19 P.S. § 1051 (1964).
. Act of August 6, 1941, P.L. 861, § 25, 61 P.S. § 331.25 (1964).
. In Commonwealth v. Terry, 470 Pa. 234, 368 A.2d 279 (1977), our Supreme Court vacated a lower court order requiring an accused who had been found innocent to reimburse the City of Philadelphia for services provided the accused by the public defender’s office. The Supreme Court noted that the lower court had cited no authority for its actions, and that the authority proposed by the district attorney, § 3 of the Act of January 19, 1968, P.L. (1967) 984, 19 P.S. § 793, was by its own terms inapplicable. Terry, of course, involved a situation totally different from the one in the case before us; the appellant in Terry had not been found guilty and therefore could not have been placed on probation. The statutes (the Act of 1941 and § 1354 of the Sentencing Code) upon which 1 would rely in affirming the lower court’s sentence in the case before us would not have been applicable in the Terry case.