Appeal from the Order in the Court of Common Pleas of Lycoming County, Criminal Division, No. 85-11, 144.
Tamilia, Johnson and Hester, JJ.
Dissenting Statement by Johnson, J.
ING STATEMENT BY JOHNSON, J.:
Because I do not believe that the appeal is moot, I must respectfully dissent.
The appeal in this case was taken from the trial court's order of January 26, 1986. That order found Appellant in contempt of its December 6, 1985 order which directed Appellant to surrender his vehicle pending future forfeiture proceedings. Appellant was ordered to surrender his vehicle pursuant to 35 Pa.C.S. § 780-128 after he was charged with possession and delivery of prescription drugs in violation of the Controlled Substance, Drug, Device and Cosmetic Act.
I view the order on contempt to be distinct from the subsequent conviction of Appellant on two counts of possession of a controlled substance. The December 6th order involved Appellant's right to continue to possess a particular vehicle and did not directly involve the specific drug offenses for which Appellant was later convicted.
I would agree that the contempt issue would be moot if the record reflected that the forfeiture issue had already been decided. However, the record as certified to this court makes no mention of the outcome of the forfeiture hearing. I note that the Commonwealth has attached to their brief a copy of a June 30, 1986 letter indicating that a forfeiture hearing was scheduled for August 5, 1986. Because this letter is not part of the official record, however, it should not be considered by us. Commonwealth v. Velez, 329 Pa. Super. 15, 477 A.2d 869 (1984); Pittsburgh's Airport Motel, Inc. v. Airport Asphalt and Excavating, Co., 322 Pa. Super. 149, 469 A.2d 226 (1983).
I would affirm the decision of the trial court based upon its Opinion and Order of February 13, 1986.