In an unreported, memorandum decision, the Commonwealth Court has decided the case of Commonwealth of Pennsylvania One (1) 1992 Volkswagen Passat, No. 40 C.D. 2016, January 10, 2018, holding that it was proper for the trial court to order the forfeiture of Kokinda’s vehicle because it was the means by which he carried out his plans to meet and have “unlawful contact” with a minor and, there was a fair inference that he intended to have sexual contact with the minor in the vehicle or, at least, transport the minor in the vehicle to a place where sexual contact would occur.

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, 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. During the plea, Kokinda admitted that he arrived at a pre-arranged location in a Volkswagen Passat GL to meet with a minor female for the purpose of engaging in sexual contact. Kokinda also admitted that this meeting was pre-arranged over the internet, and apparently, it was to occur in the Passat.

After Kokinda’s plea and sentencing, the Commonwealth filed a petition seeking forfeiture of the Passat pursuant to the Crimes Code which states that an individual convicted of unlawful contact with a minor forfeits property rights in objects that facilitated the commission of the crime. After a hearing, the trial court ordered the forfeiture of the vehicle.

Kokinda appealed, asserting that the trial court erred in ordering forfeiture because, among other reasons, the evidence was insufficient to establish that the Passat was used to facilitate the commission of a crime.  Specifically, he contended that the Commonwealth failed to prove that a sufficient nexus existed between his criminal conduct and the vehicle.

On appeal, the Commonwealth Court looked to the Crimes Code which states, in pertinent part, 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.” The term “contact” is further defined to include, among other acts, “[d]irect or indirect contact or communication by any means . . . including contact or communication in person.”

The Crimes Code also states that an individual convicted of unlawful contact with a minor forfeits property rights in objects that facilitated the commission of the crime. Specifically, “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 … 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.”

The Commonwealth Court then noted that Pennsylvania’s appellate courts (along with many other jurisdictions) have defined the term “facilitate” in forfeiture statutes to require that the Commonwealth demonstrate a “sufficient or substantial nexus” between the property and the prohibited activity. Additionally, the Court noted that federal courts applying similar 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.

Here, the Court concluded that it was not necessary that the unlawful contact itself occur inside the vehicle. Rather, 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 in question to the parking lot, the situs of the prearranged meet and completion of the crime. This, in the Court’s view, was sufficient to demonstrate a “sufficient or substantial nexus” between the vehicle and the prohibited activity.  



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