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PETITION TERRY MAGLISCO. PETITION HELEN I. MOORE (04/19/85)

filed: April 19, 1985.

PETITION OF TERRY MAGLISCO. PETITION OF HELEN I. MOORE


Appeal from the Order of the Court of Common Pleas, Allegheny County, Criminal Division, at No. Misc. 52 January 1983. Appeal from the Order of the Court of Common Pleas, Allegheny County, Criminal Division, at No. Misc. 142 March, 1983.

COUNSEL

Gary M. Lang, Pittsburgh, for appellants (at 350 and 528).

Brosky, Rowley and Johnson, JJ.

Author: Brosky

[ 341 Pa. Super. Page 527]

These consolidated appeals are from the forfeiture of a pistol and several rifles. Appellant contends that the forfeiture was improper. As to the rifles, we agree and reverse; as to the pistol, we affirm.

The relevant facts are as follows. Appellant Maglisco shot her husband with a .38 caliber revolver. The pistol was seized by the police when they arrived on the scene to arrest her. A few hours later, the police returned and confiscated several rifles in her possession. Charges were later dropped. At the forfeiture proceeding,*fn1 it was alleged that the rifles belonged to Maglisco's mother, appellant Moore. Both the pistol and the rifles were forfeited and this appeal followed.

Common law forfeiture

There is no specific statutory provision which would support the instant forfeitures. It therefore must be determined whether there is a common law power to effect these forfeitures. In 1961, this court concluded that, while some pornography was forfeitable under the terms of a statute, a camera used in the production of that pornography was not forfeitable. See Commonwealth v. Schilbe, 196 Pa. Super. 361, 175 A.2d 539 (1961). "Obviously, 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 no authority to do so." Id., 196 Pa. Superior Ct. at

[ 341 Pa. Super. Page 528361]

, 175 A.2d at 541; see also Commonwealth v. Spisak, 69 D & C2d 659 (Somerset 1974); Commonwealth v. Stimer, 8 D & C3d 317 (Somerset 1977). Thus, Schilbe held that while contraband per se is forfeitable, derivative contraband is forfeitable only if there is statutory authority making it so.

The difference between these types of contraband was explained in Commonwealth v. Fassnacht, 246 Pa. Super. 42, 46, 369 A.2d 800, 802 (1977):

In this evolution, two distinct classifications of contraband have been developed; contraband per se and derivative contraband. Contraband per se is property the mere possession of which is unlawful. One 1958 Plymouth Sedan, [ v. Commonwealth of Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965)], supra; United States v. One Lot of Eighteen Firearms, 325 F.Supp. 1326 (D.N.H. 1971). Heroin and "moonshine" whiskey are examples of contraband per se. Derivative contraband is property innocent by itself, but used in the perpetration of an unlawful act. An example of derivative contraband is a truck used to transport illicit goods.

While reference to a statute is necessary even vis-a-vis derivative contraband, it need not be a reference to the specific item (as it would be in contraband per se) but need only be to the outlawed activity in which the item was used. "In order to determine whether property is contraband, therefore, reference must be made to the statute that outlaws the property or the particular use of the property." Commonwealth v. Landy, 240 Pa. Super. 458, 463, 362 A.2d 999, 1001 (1976) (emphasis added). Both Landy, supra, and Commonwealth v. Coghe, 294 Pa. Super. 207, 209, 439 A.2d 823, 824 (1982) affirmed the forfeiture of items involved in the perpetration of a crime without any ...


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