Commonwealth of PA v. One (1) 1992 Volkswagen Passat -- Appeal of: J. Kokinda ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
: No. 40 C.D. 2016
v. :
: Submitted: December 6, 2017
One (1) 1992 Volkswagen Passat :
GL VIN #WVWFB4310NE257007 :
:
Appeal of: Jason Kokinda :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: January 10, 2018
Jason Kokinda (Kokinda) appeals, pro se, from the September 18, 2015
order of the Court of Common Pleas of Lehigh County (trial court), which granted the
forfeiture petition of the Commonwealth seeking to obtain possession of and title to a
vehicle under section 3141 of the Crimes Code, 18 Pa.C.S. §3141. We conclude that
the trial court did not err in ordering forfeiture because the vehicle was the means by
which Kokinda carried out his plans to meet and have “unlawful contact” with a minor,
and it is a fair inference from the evidence that he intended to have sexual contact with
the minor in the vehicle, or at least transport the minor to a place where sexual contact
would occur. Finding no merit in Kokinda’s other arguments, we affirm.
Background
On November 12, 2009, Kokinda entered a plea of guilty but mentally ill
to four counts of unlawful contact with a minor and one count of criminal use of a
communication facility,1 after he engaged in online sexual communications with an
individual whom he believed was a 12-year-old minor female, but was actually an
undercover agent with the Attorney General’s Office.2 During the plea, Kokinda
admitted that he arrived at the Village West Shopping Center in Allentown, Lehigh
County, in a Volkswagen Passat GL (the Vehicle) to meet with a minor female for the
purpose of engaging in sexual contact. Kokinda also admitted that this meeting was
prearranged over the internet, and apparently, it was to occur in the Vehicle. Following
his plea of guilty but mentally ill, a trial court sentenced Kokinda to three to seven
years’ imprisonment.3 (Trial court op. at 2.)
On December 17, 2008, the Commonwealth filed a petition seeking
forfeiture of the Vehicle. In his answer, Kokinda conceded that he was the title owner
of the Vehicle and that the Vehicle was seized at the Village West Shopping Center on
August 15, 2007. Id. Kokinda further admitted that he intended to meet the minor
1
See Sections 6318(a) and 7512 of the Crimes Code, 18 Pa.C.S. §§6318(a), 7512,
respectively.
2
For purposes of the crime of unlawful contact with a minor, a “minor” includes a law
enforcement officer posing as a minor. See 18 Pa.C.S. §6318(a); Commonwealth v. Crabill, 926 A.2d
488, 492 (Pa. Super. 2007).
3
Although a verdict of guilty but mentally ill could potentially have an impact on the nature
of the sentence to be imposed, in all other respects it “is the same as that of a traditional guilty verdict
or plea” and “absolves a defendant of none of the consequences owing to him as a result of his guilt.”
Miskovitch v. Pennsylvania Board of Probation and Parole, 77 A.3d 66, 71-72 (Pa. Cmwlth. 2013).
2
female to “make-out” with her, “meaning [to] kiss and to have [her] masturbate him.”
(Answer at 2.)
On September 17, 2015, the trial court convened a hearing. The
Commonwealth submitted the testimony of Agent Kirk Smith, who stated that on
August 15, 2007, at approximately 1:00 p.m., he observed Kokinda enter the Vehicle
and travel to a Blockbuster parking lot where Kokinda had previously arranged to meet
with the minor female. Agent Smith also presented a Title/Lien Certification packet
from the Motor Vehicle Commission of the State of New Jersey, which was certified
as containing the true and accurate records of ownership for the Vehicle. According to
these documents, Harry Jahnke transferred title to the Vehicle to Kokinda, and Kokinda
was the title owner of the Vehicle at the time of the criminal episode. (Trial court op.
at 2.)
Kokinda testified that he was not the legal owner of the Vehicle. For
support, Kokinda submitted a letter/affidavit from Harry and Renate Jahnke, wherein
the two asserted that they are the current legal owners of the Vehicle. Based upon the
letter/affidavit, the Jahnkes attested that they entered into an oral agreement with
Kokinda in 2007, authorizing him to repair and possibly sell the Vehicle for them. Id.
at 3.
By order dated September 18, 2015, the trial court granted the
Commonwealth’s petition, concluding that a sufficient nexus existed between
Kokinda’s criminal conduct and the Vehicle: “Kokinda arrived in the [Vehicle] to the
prearranged meet location in Allentown, specifically the Blockbuster parking lot,
which created an inference that the [V]ehicle was used to facilitate the commission of
the crime.” Id. at 4. In so determining, the trial court rejected as not credible Kokinda’s
3
testimony and documentary evidence purporting to establish that he was not the legal
owner of the Vehicle. Id. at 3-5.
Discussion
On appeal to this Court,4 Kokinda asserts that the trial court erred in
ordering forfeiture because the evidence was insufficient to establish that the Vehicle
was used to facilitate the commission of a crime; his constitutional right to a jury trial
was infringed; he is not the legal owner of the Vehicle and is innocent of the underlying
criminal offenses; and, finally, the trial court was biased.
Forfeiture under Section 3141 of the Crimes Code
Kokinda contends that the Commonwealth failed to prove that a sufficient
nexus existed between his criminal conduct and the Vehicle.
In pertinent part, section 6138(a) of the Crimes Code states that a person
commits the offense of unlawful contact with a minor “if he is intentionally in contact
with a minor, or a law enforcement officer acting in the performance of his duties who
has assumed the identity of a minor, for the purpose of engaging in [prohibited sexual]
activity.” 18 Pa.C.S. §6138(a). The term “contact” is defined to include, among other
acts, “[d]irect or indirect contact or communication by any means . . . including contact
or communication in person.” Section 6318(c) of the Crimes Code, 18 Pa.C.S.
§6318(c).
Pursuant to section 3141 of the Crimes Code, an individual convicted of
unlawful contact with a minor forfeits property rights in objects that facilitated the
commission of the crime. 18 Pa.C.S. §3141. This section provides:
4
By order dated January 20, 2016, the Superior Court transferred the appeal to this Court.
4
A person:
* * *
may be required to forfeit property rights in any property
or assets used to implement or facilitate commission of
the crime or crimes of which the person has been convicted.
Such property may include, but is not limited to, a
computer or computers, telephone equipment, firearms, licit
or illicit prescription drugs or controlled substances, a motor
vehicle or such other property or assets as determined by
the court of common pleas to have facilitated the person’s
criminal misconduct.
18 Pa.C.S. §3141 (emphasis added).5, 6
Based upon the plain language of section 3141 of the Crimes Code, the
Commonwealth must prove that the Vehicle “facilitated” the crime of unlawful contact
with a minor. Out of concern that the term “facilitate” may be interpreted too broadly,
Pennsylvania’s appellate courts (along with many other jurisdictions) have defined that
term in forfeiture statutes to require that the Commonwealth demonstrate a “sufficient
or substantial nexus” between the property and the prohibited activity. Commonwealth
v. 502-504 Gordon Street, 607 A.2d 839, 843 (Pa. Cmwlth. 1992), aff’d, 636 A.2d 626
(Pa. 1994) (citing Commonwealth v. One 1985 Dark Blue Mercedes Benz Car, 571
A.2d 482, 485 (Pa. Super. 1990)).
5
The fact that this statute expressly authorizes forfeiture distinguishes the present matter from
Commonwealth v. Irland, 153 A.3d 469, 486 (Pa. Cmwlth. 2017) (en banc), appeal granted, __ A.3d
__, (Pa., No. 97 MAL 2017, filed July 18, 2017). In that case, this Court held that common law
forfeiture does not exist in Pennsylvania and that forfeiture is legally viable only to the extent that
there is explicit statutory authority.
6
Somewhat recently, this Court pointed out that “[t]here is a dearth of appellate case law on
the subject of forfeiture under this portion of the Crimes Code.” Commonwealth v. 2002 Subaru
Impreza, 122 A.3d 1196, 1198 (Pa. Cmwlth. 2015). This observation remains true as of the date of
this opinion.
5
Here, the Vehicle was the means by which Kokinda was able to travel to
and meet with a minor female for the unlawful purpose of engaging the minor in
prohibited conduct of a sexual nature. Although this case appears to present a novel
factual situation for purposes of section 3141 of the Crimes Code, the courts’
interpretation and application of similar language in analogous forfeiture statutes
provides us with ample guidance.
In particular, the federal district courts have interpreted and applied the
Civil Asset Forfeiture Reform Act of 2000 (Reform Act),7 which sanctions the
forfeiture of property that is used to “facilitate the commission of a criminal offense”
when the government establishes “a substantial connection between the property and
offense.” 18 U.S.C. §983(c)(1), (3). Importantly, these courts have determined under
what circumstances a vehicle can be forfeited when it is used in connection with a
violation of what is known as the Prosecutorial Remedies and Other Tools to End the
Exploitation of Children Today Act (Child Exploitation Act), making it illegal for one
to travel in interstate commerce “for the purpose of engaging in any illicit sexual
conduct with another person.” 18 U.S.C. §2423(b). In accordance with established
case law throughout the circuit courts of appeals,8 the federal district courts applying
7
Pub.L. No. 106-185, 114 Stat. 202, codified in part at 18 U.S.C. §983.
8
In interpreting the term “facilitate” in drug forfeiture statutes that operate similar to section
3141 of the Crimes Code, the federal courts of appeals have construed that term to require the
government to prove a substantial or sufficient nexus/connection, akin to Pennsylvania’s appellate
courts, and have held that a vehicle is forfeitable when its sole connection to the crime is its use in
transporting a buyer and/or seller to the actual scene of a drug transaction. More specifically, the
courts have concluded that a substantial or sufficient nexus exists between a vehicle and a drug
transaction when the defendant drives to the site of the drug transaction, regardless of whether
contraband was carried in the vehicle or whether the crime was committed within the vehicle. See,
e.g., United States v. One 1984 Cadillac, 888 F.2d 1133, 1137-38 (6th Cir. 1989) (discussing and
collecting cases) (“A review of relevant case law demonstrates that use of a vehicle only for
6
these statutory provisions have concluded that “[a] vehicle has a substantial connection
to illegal activity where the vehicle is used to transport an individual to the place where
the illegal activity is intended to occur,” i.e., the sexual conduct. United States v. One
2007 Toyota FJ Cruiser, VIN JTEBU11F670023522, 824 F. Supp. 2d 1369, 1377 (N.D.
Ga. 2011).
In One 2007 Toyota FJ Cruiser, the defendant arranged to meet an
undercover officer who was posing as a minor in order to engage in illicit sexual
contact. The defendant drove from Tennessee to Georgia and the law enforcement
authorities stopped him when he pulled into the place of the arranged meet. The court
concluded that the government established that the vehicle had “a substantial
connection to the illicit sexual activity” and, therefore, was forfeitable. Id. The court
transportation to the site of an illegal transaction has been held sufficient to warrant forfeiture, even
under the ‘substantial connection’ standard.”); United States v. One 1979 Porsche Coupe, 709 F.2d
1424, 1426-27 (11th Cir. 1983) (“[I]t is not necessary for the subject vehicle either to have transported
the illegal substance (or the purchase money) or to have served as the location for the transaction.”);
United States v. One 1977 Cadillac Coupe deVille, 644 F.2d 500, 503 (5th Cir. 1981) (“We conclude
such use of the vehicle to transport the dealer to the scene forms a sufficient nexus between the
vehicle and the transaction to validate forfeiture . . . .”) (emphasis added); see also United States v.
1990 Toyota 4Runner, 9 F.3d 651, 651-52 (7th Cir. 1993).
In Commonwealth v. One 1979 Lincoln Four Door Sedan, 496 A.2d 397 (Pa. Super. 1985),
the Superior Court affirmed the forfeiture of a vehicle where the causal connection between the
vehicle and the crime was much more tenuous than the above decisions of the federal courts of
appeals. In that case, the vehicle was used to bring food to workers at an illicit methamphetamine
lab, and the Superior Court determined that the food allowed “the process to continue without
interruption.” Id. at 400. Ultimately, the Superior Court concluded that, although no drugs or drug
paraphernalia were found in the vehicle or on its driver, the automobile, by virtue of being the device
to deliver food, “had a sufficient nexus with the drug manufacturing so as to justify application of the
forfeiture provision under ‘The Controlled Substance, Drug, Device and Cosmetic Act,’ [Act of April
14, 1972, P.L. 233, as amended, 35 P.S. §§780-101—780-144 (Drug Act)].” One 1979 Lincoln Four
Door Sedan, 496 A.2d at 401.
Through analogical reasoning, these decisions offer strong support for the conclusions of the
federal district courts with respect to the Reform Act and Child Exploitation Act.
7
reached this conclusion even though the minor had never entered the vehicle and no
sexual contact had occurred between the defendant and the minor.
Likewise, in United States v. One 2006 Toyota Camry Solara SLE, 181 F.
Supp. 3d 75 (D.D.C. 2013), the court addressed the following factual pattern:
Here, the facts and evidence in the record demonstrate that
[the defendant] used the vehicle to transport himself to the
place where illegal activity was intended to occur. [The
defendant] lived in Maryland and had explicit conversations
with an undercover officer about meeting at a location in
D.C. to engage in illicit sexual conduct. Upon [the
defendant’s] arrival at the location on foot, he was arrested
and gave the officers keys to the vehicle and indicated where
he had parked it nearby. The logical inference from [the
defendant’s] actions is that he drove the vehicle to the D.C.
meeting location. [The defendant] pled guilty to the offense
of Travel with Intent to Engage in Illicit Sexual Conduct.
Id. at 77. On these facts, the court concluded that the government “ha[d] established
by a preponderance of evidence that the vehicle had a substantial connection to the
criminal offense,” id., and ordered that the vehicle be forfeited.
Although the decisions of the federal courts are not binding on this Court,
they nonetheless provide persuasive guidance in this matter. Like Pennsylvania’s
appellate courts, the decisions of the federal courts interpret “facilitate” in statutory
forfeiture provisions to require a showing that there be a sufficient or substantial
nexus/connection between the property and the criminal conduct. See supra note 7.
While 18 U.S.C. §2423(b) requires a showing of interstate travel as part of the element
of the crime, the gist of the crime itself, similar to unlawful contact with a minor, is the
act of traveling to meet a minor with the intent of engaging the minor in illegal contact
of a sexual nature. Undoubtedly, there can be no meaningful distinction between the
situation where one travels via a vehicle thirty yards across a state boundary to meet a
minor for purposes of 18 U.S.C. §2423(b), and where one travels via a vehicle across
8
the entire Commonwealth to meet and have “contact” with the minor under section
6138 of the Crimes Code. In both instances, it is the vehicle that is the apparatus that
permits the defendant to meet the minor in person, regardless of whether one
transverses an imaginary line or not. Therefore, under the specific facts of this case,
Kokinda’s conduct made transportation essential to the offense itself because he chose
to meet and make “contact” with the minor by traveling in the Vehicle to the parking
lot, the situs of the prearranged meet and completion of the crime.
As these federal cases establish, if a defendant drives a vehicle to the place
where and/or in which the defendant intends the illegal activity to occur, that is, to
meet for illicit sexual contact with a minor, then a substantial nexus exists between the
two and the vehicle can be forfeited. Further, it is not necessary, in order to establish
a sufficient nexus, that the intended illegal conduct occur inside the vehicle. Indeed,
this case is materially indistinguishable from One 2007 Toyota FJ Cruiser and One
2006 Toyota Camry Solara SLE, and adherence to that case law would dictate that this
Court uphold the forfeiture of the Vehicle. In any event, the facts of record, and the
inferences therefrom, evidence a potentially greater connection between the Vehicle
and the crime than the scenarios presented in the decisions of the federal district courts.
Notably, the crime of unlawful contact with a minor is predominately one
of purpose and/or intent, which is typically a matter of inference to be gleaned from
the circumstances of the case. See Commonwealth v. Reed, 9 A.3d 1138, 1146 (Pa.
9
2010);9 Commonwealth v. Holley, 945 A.2d 241, 247 (Pa. Super. 2008).10 Here,
Kokinda made arrangements via his computer to meet the minor female – and did in
fact meet her – at a shopping mall, specifically a Blockbuster parking lot, in the middle
of the day, where the “contact” or, at the very least, the attempted “contact” occurred.
(Notes of Testimony (N.T.) at 14-16.)11 The purpose of the meeting was for Kokinda
9
As the Reed court explained: “[A] defendant need not be successful in completing the
purpose of his communication with a minor in order to be found guilty of §6318(a). For example,
the actual rape of a child is not an element of the crime under §6318(a); rather a defendant is guilty if
he contacts a minor for the purpose of engaging in that prohibited behavior.” Reed, 9 A.3d at 1146
(emphasis in original).
10
The court stated:
An intent is a subjective frame of mind, it is of necessity difficult of
direct proof. We must look to all the evidence to establish intent,
including, but not limited to, appellant’s conduct as it appeared to his
eyes. Intent can be proven by direct or circumstantial evidence; it may
be inferred from acts or conduct or from the attendant circumstances.
Holley, 945 A.2d at 247.
11
To the extent that one may question whether Kokinda’s plea to four counts of unlawful
contact with a minor involved his appearance at the parking lot and whether the vehicle was relevant
to the commission of the underlying offenses, these issue were never raised below, and they are not
raised before this Court. Thus, they are waived and cannot serve as a ground for reversing the trial
court. Commonwealth v. Colavita, 993 A.2d 874, 891 (Pa. 2010) (“It is a settled principle of appellate
review, of course, that courts should not reach claims that were not raised below. . . . This Court has
consistently held that an appellate court cannot reverse . . . on a basis that was not properly raised and
preserved by the parties.”).
Regardless, given the record in this case, this Court, like the parties and the trial court below,
must proceed on the assumption that Kokinda was in fact convicted of unlawful contact with a minor
for driving to the prearranged location. First, the criminal docket sheet shows that Kokinda pled
guilty to unlawful contact with a minor for conduct occurring on August 15, 2007, the date on which
he drove to the prearranged location and was arrested by the police. (Criminal Docket Sheet, at 1.)
Second, in upholding the validity of Kokinda’s guilty plea and the sufficiency of the admitted facts
in relation to the crimes charged, the criminal trial court concluded that Kokinda’s conduct in driving
10
to the location of the meeting established that he committed unlawful contact with a minor, and the
Superior Court affirmed this decision. See Commonwealth v. Kokinda, (Pa. Super., No. 2687 EDA
2012, filed December 13, 2013) (unpublished memorandum adopting the trial court opinion at n.28)
(“Kokinda”). Quite significantly, this Court lacks legal authority to second-guess the wisdom of
Kokinda’s guilty plea, or question the sufficiency of the evidence to support the crimes to which he
admitted guilt, see Commonwealth v. Rounsley, 717 A.2d 537, 538-39 (Pa. Super. 1998).
Accordingly, we will not speculate with respect to the factual bases that constituted Kokinda’s plea,
especially considering that the issue was never raised, the criminal trial court and the Superior Court
have already settled the issue, and there is nothing in the record to suggest that the guilty plea to all
four counts of unlawful contact with a minor pertained to an instrumentality other than the vehicle.
We do note, however, that pursuant to Pennsylvania law, Kokinda’s presence at the parking
lot to meet the minor is the final act that completes an independent count and crime of attempted
unlawful contact with a minor, and the Vehicle was the apparatus that transported Kokinda to the
parking lot to meet the minor. Our Supreme Court and trial courts have held that a defendant commits
criminal attempt to commit unlawful contact with a minor where the defendant engaged in sexually
illicit internet communications, made plans to meet a police officer pretending to be a minor, and was
immediately arrested upon arriving in a vehicle at the prearranged location. See Commonwealth v.
Reed, 9 A.3d 1138, 1140-41 (Pa. 2010) (affirming attempted unlawful contact with a minor conviction
where the defendant had an internet conversation with an undercover officer, made plans to meet the
officer in the parking lot of a doughnut shop, and the defendant was arrested while he was in his truck
in the parking lot waiting for the minor); Commonwealth v. Bakth, (Westmoreland Cnty., No. 1745
Criminal, 2005, filed April 27, 2006) (C.P. 2006), slip op. at 3 (unpublished), available at 2006 Pa.
Dist. & Cnty. Dec. Lexis 35; see also Commonwealth v. Jacob, 867 A.2d 614, 619 (Pa. Super. 2005).
Aside from the fact that an attempted crime involves a substantial step toward a crime, rather than its
full and completed commission, there is no meaningful distinction (at least for present purposes)
between the attempted and completed crime. Generally, in Pennsylvania, “the General Assembly has
authorized convictions for attempt crimes, no less than for completed crimes,” Commonwealth v.
Sims, 919 A.2d 931, 942 (Pa. 2007); criminal attempt is a “crime[] of the same grade and degree as
the most serious offense which is attempted,” section 905(a) of the Crimes Code, 18 Pa.C.S. §905(a);
and, because criminal attempt is a lesser-included offense of the substantive or completed crime, a
defendant can be found guilty of the attempted crime even when he or she is charged only with the
substantive or completed crime, Sims, 919 A.2d at 939-42. Codifying these principles, section 3141
of the Crimes Code and the pertinent sections of the Judicial Code authorize forfeiture in the case for
unlawful contact with a minor in both its completed and attempted forms. See 18 Pa.C.S. §3141(2)
(stating that forfeiture is applicable to offense that require registration of sexual offenders); section
9799.14(c)(5), (8) of the Judicial Code, 42 Pa.C.S. §9799.14(c)(5), (8) (stating that the crime of
unlawful contact with a minor, and “attempt, conspiracy or solicitation to commit” the crime of
unlawful contact with a minor, are sex offenses requiring the offender to register with the
Pennsylvania State Police). Therefore, irrespective of whether Kokinda had actual “contact” with the
11
and the minor to engage in sexual conduct. (N.T. at 8-9.) From these facts, the trial
court could reasonably infer that Kokinda intended to have sexual contact with the
minor in the Vehicle, or at least intended to drive the minor to some other place where
the sexual contact would occur. This inference, in turn, strengthens the connection
between the Vehicle and the crime because the Vehicle was the intended means by
which Kokinda would transport the minor. Therefore, we conclude that the trial court,
as fact-finder, did not err or commit an abuse of discretion in determining that there
was a significant or substantial connection between the Vehicle and the crime of
unlawful contact with a minor.12
Right to Jury Trial
Kokinda argues that he was denied his right to a jury trial under article I,
section 6 of the Pennsylvania Constitution,13 and that a jury should have determined
who was the lawful owner of the Vehicle.
Under our Constitution, there is a right to a jury trial in an in rem statutory
forfeiture proceeding when there are material issues of fact to be resolved. See
minor at the Blockbuster parking lot, or, as a direct result of his intervening arrest, only “attempted”
to have had physical “contact” with the minor, our result would remain the same.
12
Kokinda does not raise an excessive fines issue under the Eighth Amendment, U.S. CONST.
amend. VIII, and this is solely a matter of statutory forfeiture. In any event, for the reasons already
stated, we would conclude that the strength of the nexus that the Commonwealth has established here
is sufficient to render the vehicle an “instrumentality” for purposes of the excessive fines clause. See
Commonwealth v. 1997 Chevrolet, 160 A.3d 153, 184 (Pa. 2017) (“The instrumentality requirement
[of the Eighth Amendment] necessitates the establishment of a ‘significant relationship’ between the
offense and the property sought to be forfeited.”); id. at 183 n.23 (noting the overlap between the
“significant relationship” requirement of the instrumentality test, the courts’ “substantial nexus” test,
and the term “facilitate” in the Drug Act); Commonwealth v. Wingait Farms, 690 A.2d 222, 227 &
n.6 (Pa. 1997); Commonwealth v. Trayer, 680 A.2d 1166, 1167-68 (Pa. Super. 1996); see also In re
$137,325.00, 204 So. 3d 317, 324-25 (Miss. Ct. App. 2016); People v. 2010 Harley-Davidson, 64
N.E.3d 716, 724-25 (Ill. Ct. App., 5th Dist., 2016).
13
PA. CONST. art. I, §6.
12
Commonwealth v. One (1) 1984 Z-28 Camaro Coupe, 610 A.2d 36, 41 (Pa. 1992). In
Commonwealth v. Real Property and Improvements at 2338 N. Beechwood Street, 65
A.3d 1055 (Pa. Cmwlth. 2013) (en banc), this Court held that Pa.R.C.P. No. 1007.1,
governing waiver of the right to a jury trial, does not apply in forfeiture proceedings.
65 A.3d at 1065. However, our Supreme Court concluded otherwise and vacated our
decision. Commonwealth v. Real Property and Improvements at 2338 N. Beechwood
Street, 114 A.3d 1036 (Pa. 2015) (per curiam order) (citing Commonwealth v. All that
Certain Lot or Parcel of Land Located at 605 University Drive, 104 A.3d 411 (Pa.
2014)). Therefore, according to our Supreme Court, Pa.R.C.P. No. 1007.1 is applicable
to statutory forfeiture proceedings.
In relevant part, Pa.R.C.P. No. 1007.1 provides:
In any action in which the right to jury trial exists, that right
shall be deemed waived unless a party files and serves a
written demand for a jury trial not later than twenty days after
service of the last permissible pleading. The demand shall
be made by endorsement on a pleading or by a separate
writing.
Pa.R.C.P. No. 1007.1(a).
Here, Kokinda did not demand a jury trial in any of his pleadings or pre-
trial filings. Consequently, under Pa.R.C.P. No. 1007.1(a), Kokinda waived his right
to a jury trial. See Jones v. Van Norman, 522 A.2d 503, 509 (Pa. 1987) (concluding
that under Pa.R.C.P. No. 1007.1(a), the defendants waived their right to a jury trial
when their demand for a jury trial was first asserted in their pre-trial memorandum,
which was filed more than 20 days after the last permissible pleading).
Remaining Arguments
13
Kokinda argues that the Title/Lien Certification packet does not constitute
incontrovertible evidence of legal ownership. Even if this were so, in a forfeiture case
where the trial court conducts a bench trial, the trial court is the fact-finder and has the
power to weigh the evidence, make credibility determinations, and draw any reasonable
inferences from the evidence. Commonwealth v. $9,000.00 U.S. Currency, 8 A.3d 379,
383 n.6 (Pa. Cmwlth. 2010). Here, the trial court rejected Kokinda’s affidavit and
testimony and accepted the documents in the Title/Lien Certification packet. The
documents, coupled with the fact that Kokinda exercised possession and control over
the Vehicle, are sufficient evidence to establish that Kokinda was the legal owner of
the Vehicle. See Commonwealth v. One 1988 Suzuki Samurai, 589 A.2d 770, 773 (Pa.
Cmwlth. 1991) (stating that to be the legal owner of a vehicle, the “owner must have a
possessory interest in the property with attendant characteristics of dominion and
control.”); cf. Strand v. Chester Police Department, 687 A.2d 872, 876-77 (Pa.
Cmwlth. 1997).
Kokinda further asserts that he should have been permitted to prove his
innocence in the underlying criminal matter at the forfeiture hearing. To the contrary,
section 3141 of the Crimes Code only requires that the Commonwealth prove that an
individual has been “convicted” of an enumerated crime. See 18 Pa.C.S. §3141;
Commonwealth v. 2002 Subaru Impreza, 122 A.3d 1196, 1198 (Pa. Cmwlth. 2015)
(“Section 3141 of the Crimes Code expressly requires a conviction before the
Commonwealth may proceed with sex offense property forfeiture under that
subchapter.”). Here, the record demonstrates that Kokinda pled guilty to four counts
of unlawful contact with a minor. Because the validity of Kokinda’s convictions are
not at issue in the forfeiture proceedings, and the Commonwealth need only prove that
a conviction has occurred, Kokinda cannot collaterally attack the validity of his guilty
14
plea during the forfeiture proceedings. See also Piasecki v. Department of
Transportation, Bureau of Driver Licensing, 6 A.3d 1067, 1071 (Pa. Cmwlth. 2010)
(stating that, in a licensee suspension case, the Department need only submit proof that
the licensee was convicted and reiterating that the licensee may not collaterally attack
an underlying criminal conviction in a license suspension proceeding); J.G. v.
Department of Public Welfare, 795 A.2d 1089, 1093 (Pa. Cmwlth. 2002); supra note
10. We note that the Superior Court has affirmed the criminal trial court’s order
denying Kokinda’s petition under the Post-Conviction Relief Act (PCRA),14 and the
PCRA is “the sole and exclusive vehicle through which collateral relief from a
conviction or sentence may be obtained,” Commonwealth v. Lantzy, 736 A.2d 564, 568
(Pa. 1999). See Commonwealth v. Kokinda, (Pa. Super., No. 2687 EDA 2012, filed
December 13, 2013) (unpublished memorandum).
Finally, Kokinda advances an array of accusations against the trial court
and, in general, contends that the trial court acted in a fraudulent and biased manner.
(See Brief for Kokinda at 21-24.) We have thoroughly reviewed the record and
conclude that these assertions are baseless. An examination of the notes of testimony
demonstrates that Kokinda was provided with a full and fair opportunity to present his
defense, and the fact that the trial court ruled against him is markedly insufficient to
establish the requisite bias warranting recusal. Commonwealth v. Abu-Jamal, 720 A.2d
79, 90 (Pa. 1998). As such, we conclude that Kokinda’s arguments are meritless.
Conclusion
Based on the foregoing, we conclude that the Commonwealth adduced
sufficient evidence to establish that Kokinda’s use of the Vehicle “facilitated,” or had
14
42 Pa.C.S. §§9541-9546.
15
a sufficient or substantial nexus to, the crime of unlawful contact with a minor. We
further conclude that Kokinda’s remaining assertions of error do not merit relief.
Accordingly, we affirm the trial court’s order granting the
Commonwealth’s forfeiture petition.
________________________________
PATRICIA A. McCULLOUGH, Judge
Judge Wojcik dissents.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
: No. 40 C.D. 2016
v. :
:
One (1) 1992 Volkswagen Passat :
GL VIN #WVWFB4310NE257007 :
:
Appeal of: Jason Kokinda :
ORDER
AND NOW, this 10th day of January, 2018, the September 18, 2015
order of the Court of Common Pleas of Lehigh County is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
:
v. : No. 40 C.D. 2016
: Submitted: December 6, 2017
One (1) 1992 Volkswagen Passat :
GL VIN #WVWFB4310NE257007 :
:
Appeal of: Jason Kokinda :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY PRESIDENT JUDGE LEAVITT FILED: January10, 2018
The Commonwealth did not establish a nexus between the vehicle
Jason Kokinda used to drive to the point of his arrest and the specific crimes for
which he was convicted. The majority covers for the insufficiencies in the
Commonwealth’s case by the use of unfounded assumptions and inferences from a
very sparse record. Respectfully, I must dissent.
Kokinda was convicted of unlawful contact with a minor, a crime that
occurs when an individual “is intentionally in contact with a minor, or a law
enforcement officer acting in the performance of his duties who has assumed the
identity of a minor, for the purpose of engaging in [unlawful sexual] activity.” 18
Pa. C.S. §6318(a).1 For purposes of Section 6318 of the Crimes Code, “contacts”
are defined as
[d]irect or indirect contact or communication by any means,
method or device, including contact or communication in person
or through an agent or agency, through any print medium, the
mails, a common carrier or communication common carrier, any
electronic communication system and any telecommunications,
wire, computer or radio communications device or system.
18 Pa. C.S. §6318(c) (emphasis added). In short, the unlawful contact can take place
in person or by any communicative device.
Kokinda’s contacts took place online with a law enforcement officer
pretending to be a child. Accordingly, Kokinda was also convicted of criminal use
1
The crime of unlawful contact with a minor is defined as follows:
(a) Offense defined.--A person commits an offense if he is intentionally in
contact with a minor, or a law enforcement officer acting in the performance of his
duties who has assumed the identity of a minor, for the purpose of engaging in an
activity prohibited under any of the following, and either the person initiating the
contact or the person being contacted is within this Commonwealth:
(1) Any of the offenses enumerated in Chapter 31 (relating to
sexual offenses).
(2) Open lewdness as defined in section 5901 (relating to open
lewdness).
(3) Prostitution as defined in section 5902 (relating to prostitution
and related offenses).
(4) Obscene and other sexual materials and performances as
defined in section 5903 (relating to obscene and other sexual
materials and performances).
(5) Sexual abuse of children as defined in section 6312 (relating
to sexual abuse of children).
(6) Sexual exploitation of children as defined in section 6320
(relating to sexual exploitation of children).
18 Pa. C.S. §6318(a) (emphasis added).
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of a communication facility to attempt a felony. 18 Pa. C.S. §7512(a).2 It was
Kokinda’s crime of unlawful contact with a minor that triggered the criminal
forfeiture petition filed by the Commonwealth under 18 Pa. C.S. §3141.3 The
question is whether the Commonwealth proved that Kokinda used the vehicle to
implement or facilitate his unlawful contact with a minor.
The majority incorrectly assumes that “traveling” is part of
Pennsylvania’s crime of unlawful contact with a minor, stating that “the Vehicle was
2
Criminal use of a communication facility is defined as follows:
(a) Offense defined.--A person commits a felony of the third degree if that person
uses a communication facility to commit, cause or facilitate the commission or the
attempt thereof of any crime which constitutes a felony under this title or under the
act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug,
Device and Cosmetic Act. Every instance where the communication facility is
utilized constitutes a separate offense under this section.
18 Pa. C.S. §7512(a) (emphasis added).
3
The version of Section 3141 applicable in this case stated:
A person:
(1) convicted under section 3121 (relating to rape), 3122.1 (relating to
statutory sexual assault), 3123 (relating to involuntary deviate sexual
intercourse), 3124.1 (relating to sexual assault), 3125 (relating to
aggravated indecent assault) or 3126 (relating to indecent assault); or
(2) required to register with the Pennsylvania State Police under 42
Pa.C.S. Ch. 97 Subch. H (relating to registration of sexual offenders);
may be required to forfeit property rights in any property or assets used to
implement or facilitate commission of the crime or crimes of which the person has
been convicted. Such property may include, but is not limited to, a computer or
computers, telephone equipment, firearms, licit or illicit prescription drugs or
controlled substances, a motor vehicle or such other property or assets as
determined by the court of common pleas to have facilitated the person’s criminal
misconduct.
18 Pa. C.S §3141 (emphasis added). Section 3141 was amended by the Act of June 29, 2017, P.L.
247, effective July 1, 2017. Unlawful contact with a minor is an offense that requires registration
as a sexual offender.
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the means by which Kokinda was able to travel to and meet with a minor female for
the unlawful purpose of engaging the minor in prohibited conduct of a sexual
nature.” Majority, slip op. at 6. Simply, “traveling” is not an element of the crime
defined in 18 Pa. C.S. §6318 of which Kokinda was convicted.
The majority’s theory rests upon a federal statute, 18 U.S.C. §2423(b),
which prohibits the transportation of minors in interstate commerce for illicit sexual
activity. “Traveling” is an element of the federal crime. Indeed, Congress’ authority
to enact this criminal statute required a connection to the regulation of interstate
commerce. However, neither the federal statute nor cases decided thereunder have
any bearing on what is meant by unlawful “contact with a minor” under the
Pennsylvania Crimes Code. The majority tries to paper over this gap by stating that
“the gist” of the federal and state crimes is “the act of traveling to meet a minor.”
Majority, slip op. at 9. This attempt must fail because the Pennsylvania Crimes Code
contains no reference to traveling.4
Kokinda’s conviction for unlawful contact with a minor was based on
his internet contact with a law enforcement officer posing as a minor for the purpose
of engaging in illegal sexual activity. That crime was complete before Kokinda
entered the vehicle to drive to the designated meeting place. Allowing him to drive
to the parking lot may have facilitated his arrest, but the police could have arrested
him at his place of business or at his home. The vehicle was irrelevant to the
commission of Kokinda’s underlying offense because no criminal act occurred in
the parking lot. The Commonwealth presented zero evidence that Kokinda
physically met either a minor or an officer posing as a minor when he arrived there.
4
Rather, the examples of “contact” provided by the legislature principally involve methods of
interpersonal communication. 18 Pa. C.S. §6318(c).
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There is nothing in the record to support the majority’s suggestion that Kokinda
admitted the meeting “was to occur in the Vehicle.” Majority, slip op. at 2. Kokinda
was “in contact with” a supposed minor only via his computer. 5 His use of the
vehicle to travel to the point of his arrest did not “implement” or “facilitate” the
crime of unlawful contact with a minor or the crime of unlawful use of a
communication facility. 18 Pa. C.S. §3141.
The majority states that the Court “must proceed on the assumption that
Kokinda was in fact convicted of unlawful contact with a minor for driving to the
prearranged location.” Majority, slip op. at 10 n.10. By invoking this assumption,
the majority relieves the Commonwealth of its burden to establish the factual basis
of Kokinda’s criminal convictions and then relate those convictions to the vehicle.
If the majority is correct, then Kokinda’s charging document would have matched
Kokinda’s conduct to his convictions. The Commonwealth chose not to present
either the charging document or Kokinda’s guilty plea colloquy. The majority errs
by relying upon an assumption instead of record evidence.
In any event, the majority’s assumption is itself flawed. The majority
bases its assumption in part on the trial court’s criminal docket sheet, which is not
in the certified record but can be obtained by search of public records.6 The docket
sheet showed that Kokinda pled guilty to unlawful contact with a minor for conduct
occurring on August 15, 2007, i.e., the day he was arrested. The majority assumes
5
The computer Kokinda used to commit unlawful contact with a minor would be forfeitable under
Section 3141. 18 Pa. C.S. §3141. This is the type of forfeiture contemplated by Section 3141, and
it comports with the goal of preventing future criminal activity by depriving the perpetrator of the
instrumentality of his crime.
6
This docket sheet can be found through the AOPC’s public web portal. It should not be the job
of an appellate court to search for a document that the Commonwealth should have entered into
the record as part of its case.
MHL-5
that because he drove to the place of his arrest, the vehicle was part of the crime.
However, the docket sheet also shows that Kokinda pled guilty to criminal use of a
communication facility for conduct on that same day. The unlawful contact charge
was more likely related to Kokinda’s online communication with the supposed
minor, the only means of his unlawful contact.7 In any event, the debate over the
significance of the docket sheet illustrates why the Commonwealth bears the burden
in forfeiture cases to connect the seized property to the crime. The Commonwealth
utterly failed to carry its burden here.8
The majority also draws unwarranted inferences from the Superior
Court’s memorandum opinion in Commonwealth v. Kokinda, (Pa. Super., No. 2687
EDA 2012, filed December 13, 2013), 2013 WL 11248504, which adopted the trial
court’s opinion denying Kokinda’s petition for relief under the Post Conviction
Relief Act (PCRA), 42 Pa. C.S. §§9541 – 9546. The majority asserts that the PCRA
court “concluded that Kokinda’s conduct in driving to the location of the meeting
established that he committed unlawful contact with a minor, and the Superior Court
affirmed this decision.” Majority, slip op. at 11 n.10. The only part of the majority’s
7
The majority states that “there is nothing in the record to suggest that the guilty plea to all four
counts of unlawful contact with a minor pertained to an instrumentality other than the vehicle.”
Majority, slip op. at 11 n.10. I disagree. Two of the charges of unlawful contact with a minor
pertain to conduct before Kokinda’s arrest on August 15, 2007, and two others, along with the
charge of criminal use of a communication facility, pertain to conduct on August 15, 2007. This
at least suggests that the unlawful contact occurred via Kokinda’s computer.
8
It bears noting that under the Act of June 29, 2017, P.L. 247 (“Act 13”), the Commonwealth must
now establish “by clear and convincing evidence that the property in question was unlawfully used,
possessed or otherwise subject to the forfeiture.” 42 Pa. C.S. §5805(j)(3). By raising the
Commonwealth’s burden of proof, the legislature has signaled its intent to protect the rights of
owners of property subject to forfeiture by prohibiting the Commonwealth from “phoning in” its
case.
MHL-6
statement that is accurate is that the Superior Court affirmed the denial of collateral
relief.9 Because Kokinda’s guilty plea colloquy is not of record, there is no
foundation for the majority’s claim that Kokinda committed unlawful contact with
a minor by driving to his arrest.
Finally, the majority asserts that Kokinda’s presence at the parking lot
to meet the minor completed “an independent count and crime of attempted unlawful
contact with a minor, and the Vehicle was the apparatus[.]” Majority, slip op. at 11
n.10. The majority reasons that because criminal attempt is a lesser-included offense
of the completed crime, and because forfeiture is authorized for both, his vehicle is
forfeitable whether he had actual “contact” or only attempted to do so. I agree only
with the lesser-included offense analysis. However, Kokinda was neither charged
with nor convicted of attempted unlawful contact with a minor. See 18 Pa. C.S.
§§901, 905 (defining and grading criminal attempt). Perhaps this was an oversight
by the district attorney. In any event, because this is a criminal forfeiture case,
Kokinda had to be convicted of attempted unlawful contact with a minor to justify
the forfeiture of any property related to that crime. Simply, the cases cited by the
majority on the offense of attempted unlawful contact with a minor are inapposite.
Because the Commonwealth did not meet its evidentiary burden of
proving that Kokinda’s vehicle was used “to implement or facilitate commission of
the crime or crimes of which the person has been convicted,” 18 Pa. C.S. §3141, the
9
More to the point, the relevant issue before the Superior Court was Kokinda’s argument that his
trial counsel rendered ineffective assistance by recommending that Kokinda plead guilty but
mentally ill to unlawful contact with a minor instead of pursuing a defense that his communications
with the agent were part of a role-playing scenario. In addressing that issue, the PCRA court did
not analyze the factual basis of Kokinda’s guilty plea; it concluded that trial counsel’s tactical
decision did not violate Kokinda’s Sixth Amendment rights.
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forfeiture of Kokinda’s vehicle was not authorized by Section 3141 of the Crimes
Code. For these reasons, I would reverse the trial court’s order.
_____________________________________
MARY HANNAH LEAVITT, President Judge
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