Concurring.
¶ 1 I concur in the result.
¶ 2 I fully join that portion of the majority opinion dealing with Appellant’s first issue.
¶ 3 I am unable to join the majority’s resolution of Appellant’s second issue. I agree that Appellant is not entitled to credit for time served for that period before his trial and conviction while he was subject to electronic home monitoring as a condition of bail. I reach that result, however, by a different route.
¶ 4 In reaching its conclusion that Appellant is not entitled to credit for the time he participated in Philadelphia County’s electronic home monitoring program as a condition of bail in relation to probation revocation proceedings7 the majority relies exclusively on the plurality opinion of our Supreme Court in Commonwealth v. Chiappini, 566 Pa. 507, 782 A.2d 490 (2001) (plurality). For the reasons that follow, I believe we should not follow that opinion when we are not bound to do so.
¶ 5 Our Supreme Court has explained: “If a majority of the Justices of [the Supreme] Court ... join in issuing an opinion, [that] opinion becomes binding precedent on the courts of this Commonwealth.” Commonwealth v. Tilghman, 543 Pa. 578, 673 A.2d 898, 903 (1996). Here, the Chiappini plurality relied on by the majority commanded the votes of only three members of a seven-member court: the author, Justice Zappala, then-Chief Justice Flah-erty, and Justice Newman. From that part of the opinion dealing with the issue of electronic home monitoring, three justices dissented with opinions: then-Justice, now Chief Justice Cappy, Justice Castille, and Justice Saylor (joining that part of Justice Castille’s dissenting opinion). Justice Nigro provided the critical fourth vote on this issue. He disagreed with the analysis of the “Opinion Announcing the Judgment of the Court” and its conclusion “that house arrest constitutes custody for purposes of 42 Pa.C.S.A. § 9760(1),” the credit for time served provision of the Sentencing *78Code, 42 Pa.C.S.A. §§ 9701-9799.7. However, “on the basis of equity,” Justice Nig-ro agreed that the defendant in Chiappini should “receive credit for the 518 days he spent in the electronic monitoring program” as a condition of bail following his conviction at his first trial while the trial court considered his motion for a new trial, while awaiting trial after a new trial had been ordered by the trial court, and after he was convicted after his second trial and while awaiting sentencing. A review of these several concurring and dissenting opinions leads to the inescapable conclusion that a majority of the justices participating in Chiappini rejected the analysis of the “Opinion Announcing the Judgment of the Court” on which the majority here relies.
¶ 6 Justice Nigro explained in his concurrence:
I cannot agree with the majority’s [sic] conclusion that house arrest constitutes “custody” for purposes of 42 Pa.C.S. § 9760(1), as I generally frown upon a process that allows people to serve sentences in the comforts of their own home. Instead, in my view, the Superior Court properly concluded in Commonwealth v. Shartle that time spent “in custody” must be the “equivalent of time served in an institutional setting.” [438 Pa.Super. 403] 652 A.2d 874, 877 ([Pa.Super.] 1995).
Chiappini, 782 A.2d at 502.
¶ 7 In his concurring and dissenting opinion, Justice (now Chief Justice) Cappy said:
I disagree with the majority [sic] on the second question presented. Where a defendant is permitted pretrial bail with home monitoring as a condition thereof, I do not believe that the defendant is entitled to credit on his sentence for time spent at home. Commonwealth v. Kriston, 527 Pa. 90, 588 A.2d 898 (1991); accord Commonwealth v. Conahan, 527 Pa. 199, 589 A.2d 1107 (1991).
Id. at 503 (footnote omitted).
¶ 8 In his concurring and dissenting opinion, Justice Castille, joined by Justice Saylor, synthesized these two views, explaining:
Like Justice Nigro, I find further support for this conclusion in the Superior Court’s decision in Commonwealth v. Shartle, 438 Pa.Super. 403, 652 A.2d 874 (1995). There, the Superior Court found that a defendant was not entitled to credit against her sentence for time spent in a home confinement program from the time of her arrest until her preliminary hearing. The court pointed to the non-custodial nature of a sentence served in one’s home and concluded that it is “not the equivalent of time served in an institutional setting.” Id. at 409, 652 A.2d at 877.
Finding the term “custody” in 42 Pa. C.S. § 9760 to be synonymous with the term “imprisonment” in 75 Pa.C.S. § 3731, the Superior Court applied this Court’s holdings in Commonwealth v. Kriston, 527 Pa. 90, 588 A.2d 898 (1991) (holding that sentences of imprisonment pursuant to 75 Pa.C.S. § 3731 must be served in institutional settings) and Commonwealth v. Conahan, 527 Pa. 199, 589 A.2d 1107 (1991) (credit for time served in an inpatient alcohol rehabilitation program is time served in an institutional setting and therefore imprisonment pursuant to 75 Pa.C.S. § 3731). In Conahan, this Court had expressed its concerns with awarding sentencing credit for time spent in a home confinement program:
In Kriston, we were concerned with the non-custodial nature of a sentence being served in a personal residence. While it is true that one subject to home monitoring has his liberty re*79strained and risks being sent to prison if he violates the terms of the program, we could not hold that such a sentence was sufficient to satisfy the goals of the Legislature given the abundant amenities and nonrehabilita-tive temptations present in the home. Id. at 203, 589 A.2d at 1109.
Our reasoning in Kriston and Conahan should apply with equal force here. Release on any form of bail necessarily restricts one’s liberty. But release to a home confinement program does not even begin to approach the sort of restrictions that necessarily attend an institutionalized setting. A defendant in a home confinement program is free to move about in his home, eat, watch television, sleep in his own bed, socialize with family and friends and otherwise enjoy the comforts of his home at will. Being told the judicial equivalent of “go to your room” in no way approaches being ordered to pack a few belongings, leave that home, and report to a prison cell. In light of the fundamental and obvious distinction between time spent in an institutional setting and time spent dallying at home subject only to sporadic monitoring, I would find that appellant is not entitled to credit against his prison sentence for time he spent at home on bail subject to electronic monitoring.
Id. at 504-05.
¶ 9 Kriston and Conahan (relied upon by Justice (now Chief Justice) Cappy) were the underpinings of our decision in Shartle (relied upon by Justices Nigro, Castille and Saylor). Thus these opinions, and not the opinion announcing the judgment of the Court in Chiappini, should guide us. I would follow Shartle and hold that Appellant’s “pre-trial confinement to [his] home was not the equivalent of time served in an institutional setting. Therefore, the [electronic] home monitoring program to which [he] was subjected did not meet the statutory requirement of custody as set forth at 42 Pa.C.S. § 9760(1). As such, the trial court did not err by refusing to give [Appellant] credit for time” spent in the electronic home monitoring program. Id. at 877.
¶ 10 I realize that as a court en bane we are not bound to follow prior panel decisions of this Court. Commonwealth v. Snyder, 761 A.2d 584 (Pa.Super.2000). Nonetheless, I believe that Shartle sets forth the better view and it, and not the opinion announcing the judgment of the Court in Chiappini, should be followed.
¶ 11 Moreover, Chiappini and the view expressed by the majority here, is fraught with practical difficulties. Chiappini and the majority both emphasize that whether a specific electronic home monitoring program employed as a condition of bail will satisfy the “custody” requirement of section 9760(1) must be determined on a case-by-case basis. Chiappini, 782 A.2d at 501 n. 12; Majority Opinion, at 74, 76-77. This conclusion will necessitate hearings, as utilized in this case, into the particulars of every such program around the Commonwealth. This case points out a particular problem in this regard. Here, the Delaware County Court of Common Pleas had to inquire into the particulars of the bail-related electronic home monitoring program of Philadelphia County. We have the great potential of a hodge-podge of differing results based on nuances or perceived nuances of all of the programs throughout the Commonwealth. These will undoubtedly lead to a plethora of appeals where we will be required to resolve what will largely be fact-based determinations. A bright line rule, as that established by Shartle, avoids these problems.
¶ 12 Additionally, the opinion announcing the judgment of the court in Chiappi-*80ni, in concluding its general discussion of the concept of “custody,” relied on Commonwealth ex rel. Paulinski v. Isaac, 483 Pa. 467, 397 A.2d 760, 763 (1979), for the proposition that “to satisfy the custody requirement for a habeas corpus petition, it was sufficient that a person demonstrate that they [sic] were subject to restraints on their [sic] liberty ‘not shared by the public generally.’ ” Chiappini, at 498. To be sure, the three-justice opinion in Chiappini apparently sought to temper this broad language. Immediately before noting that “[w]hether other [electronic home monitoring] programs fall within the meaning of the term custody is a question that will need to be examined in each individual case[,]” id., at 501, n. 12, the Chiappini plurality stated, “[t]he restrictions placed upon Appellant here went well beyond the restrictions typically employed by a court in releasing a defendant on his own recognizance or upon a condition that a defendant not leave the jurisdiction of the court.” Id. at 501. This caveat notwithstanding, it is easy to imagine the good defense counsel who will craft arguments that other conditions of bail equate to electronic home monitoring for purposes of receiving credit for time served. The courts, including this Court, will have to deal with these claims, too, on a case-by-case basis.8 Following Shartle avoids these problems.
¶ 13 Lastly, I take issue with the majority’s treatment of our panel decision in Commonwealth v. McCalman, 795 A.2d 412 (Pa.Super.2002). Whether it intended to or not, the McCalman panel elevated the opinion announcing the judgment of the court in Chiappini, which was not precedential as explained above, to binding precedent for the trial courts. See Commonwealth v. Travaglia, 792 A.2d 1261, 1266, n. 9 (Pa.Super.2002) (recognizing that Supreme Court’s opinion in Commonwealth v. Trivigno, 561 Pa. 232, 750 A.2d 243, 257 (2000) was plurality but adopting it nonetheless). Panel opinions of this Court are binding precedent' and must be followed by the trial courts until either reversed by a higher court or overruled by either this Court sitting en banc or by a higher court. Marks v. Nationwide Ins. Co., 762 A.2d 1098, 1101 (Pa.Super.2000), following Sorber v. American Motorists Ins. Co., 451 Pa.Super. 507, 680 A.2d 881, 882 (1996) (“as long as the decision has not been overturned by our Supreme Court, a decision of our Court remains binding precedent”). I believe McCalman was wrongly decided for the reasons set forth above. In order to avoid confusion on this point, I would clearly overrule McCalman.
¶ 14 Accordingly, I concur in the result reached by the majority.9
¶ 15 President Judge DEL SOLE and Judges JOYCE and TODD join the Concurring Opinion.
. When he was arrested for the current offenses in Delaware County. Appellant was on probation in Philadelphia County. The current charges were the basis for the Philadelphia County Probation Department lodging a detainer against Appellant. He was subsequently granted bail in Philadelphia County, conditioned on his participation in the electronic home monitoring program at issue here. He participated in that program from the date he was granted bail. July 9, 1998, until he was convicted, February 16, 1999.
. And the courts will also be faced, undoubtedly, with claims of ineffective assistance of counsel from those defendants whose lawyers did not advance these arguments.
. While the majority here has concluded that the electronic home monitoring involved in this case does not qualify for credit for time served, by adopting Chiappini's, several factor analysis, the opportunity for a windfall persists. Accordingly, I echo Justice Castille’s observation in Chiappini that "[t]he General Assembly, of course, is free to amend the subject legislation to prevent the windfall endorsed by the majority in future cases." Id. at 507, n. 3.