                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania                  :
                                              :
                     v.                       :
                                              :
David Herpin,                                 :    No. 74 C.D. 2016
                             Appellant        :    Submitted: January 6, 2017


BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE JOSEPH M. COSGROVE, Judge1


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                        FILED: January 4, 2018

              David Herpin (Herpin) appeals from the Philadelphia County Common
Pleas Court’s (trial court) September 10, 2015 order granting the Commonwealth of
Pennsylvania’s (Commonwealth) forfeiture petition (Forfeiture Petition) and
directing that Herpin’s 2007 Mercedes Benz (Vehicle) and its contents be forfeited to
the Commonwealth pursuant to the act commonly referred to as the Controlled
Substances Forfeiture Act (Forfeiture Act).2 There are two issues for this Court’s
review: (1) whether the trial court erred by granting the Commonwealth’s forfeiture
motion; and (2) whether the Vehicle’s forfeiture constitutes an excessive fine. After
review, we affirm.



       1
          This decision was reached before the conclusion of Judge Cosgrove’s service with this
Court on December 31, 2017.
        2
          The Forfeiture Act was codified at 42 Pa.C.S. §§ 6801-6802. Those sections were repealed
by the Act of June 29, 2017, P.L. 247 (effective July 1, 2017). The Forfeiture Act is now codified
at 42 Pa.C.S. §§ 5801-5808 (effective July 1, 2017). The Court herein references the earlier
Forfeiture Act, as it was in effect at the time the Vehicle was forfeited.
              On July 1, 2013, Herpin was arrested and charged with multiple criminal
violations, including Possession with Intent to Deliver Controlled Substances (PWID)
and the Criminal Use of a Communication Facility.                    On July 22, 2013, the
Commonwealth filed the Forfeiture Petition to confiscate Herpin’s Vehicle pursuant
to the Forfeiture Act. On August 12, 2014, Herpin entered into a negotiated plea
agreement relative to the PWID and the Criminal Use of a Communication Facility
charges.3 On July 6, 2015, the trial court held a hearing on the Forfeiture Petition,
during which Herpin and Police Officer Frank Bonett (Officer Bonett) testified.
Officer Bonett described his surveillance and investigation which led to Herpin’s
arrest. The trial court granted the Forfeiture Petition that same day. On July 13,
2015, the trial court vacated its July 6, 2015 order, and heard additional argument on
July 27, 2015. On September 10, 2015, the trial court again granted the Forfeiture
Petition. Herpin appealed to the Superior Court which transferred the matter to this
Court.4
              Initially,

              [t]he plain language of [Section 6801(a)(4) of] the
              Forfeiture Act prohibits the use of a vehicle which ‘in
              any manner . . . facilitate[s] the transportation, sale,
              receipt, possession, or concealment’ of proscribed
              substances under the Drug Act.[5] 42 Pa.C.S. § 6801(a)(4).
              This language has been interpreted broadly so that the
              Commonwealth is not required to show that drugs were
              actually found on the vehicle, or on the driver of the
              vehicle, in order for the property to be forfeited. Rather,
              the Commonwealth must merely establish ‘a sufficient

       3
          The other charges were nolle prossed.
       4
          Where the trial court grants a forfeiture petition, this Court “determine[s] ‘whether the
findings of fact made by the trial court are supported by competent evidence and whether the trial
court abused its discretion or committed an error of law.’ Commonwealth v. Marshall, . . . 698 A.2d
576, 578 n.2 ([Pa.] 1997).” Commonwealth v. Neighbor’s First Fed. Credit Union Check in the
Amount of $76,389.27, 134 A.3d 149, 155 n.6 (Pa. Cmwlth. 2016).
        5
          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.
                                                2
            or substantial nexus between the property and the
            prohibited activity.’ Commonwealth v. 502-504 Gordon
            St[.], . . . 607 A.2d 839, 842 ([Pa. Cmwlth.] 1992), aff’d, . . .
            636 A.2d 626 ([Pa.] 1994).

Strand v. Chester Police Dep’t, 687 A.2d 872, 876 (Pa. Cmwlth. 1997) (citation
omitted; emphasis added).
            Herpin first argues the trial court erred by granting the Commonwealth’s
forfeiture motion because the Commonwealth failed to show the requisite nexus
between the Vehicle and the criminal activity. We disagree.
            In Forfeiture Act proceedings, “[t]he Commonwealth has the burden of
proving, by a preponderance of the evidence, the nexus between the crime and the
property subject to forfeiture.” Commonwealth v. One 1988 Suzuki Samurai, 589
A.2d 770, 771 n.2 (Pa. Cmwlth. 1991). “The preponderance of the evidence standard
does not require the Commonwealth to produce evidence directly linking seized
property to illegal activity.” Commonwealth v. McJett, 811 A.2d 104, 110 (Pa.
Cmwlth. 2002). Instead, our Supreme Court has held that “circumstantial evidence
can be used in order to establish the requisite nexus.” Commonwealth v. $6,425.00
Seized from Esquilin, 880 A.2d 523, 533 (Pa. 2005); see also Commonwealth v.
$15,000 U.S. Currency, 31 A.3d 768 (Pa. Cmwlth. 2011).               “The credibility of
witnesses and the weight to be accorded to the evidence produced are matters within
the province of the fact finder, who is free to believe all, some or none of the
evidence.” In re Return of Prop. Confiscated, 856 A.2d 238, 249 (Pa. Cmwlth.
2004).
            Recently, our Supreme Court in Commonwealth v. 1997 Chevrolet &
Contents Seized from Young (1997 Chevrolet), 160 A.3d 153, 191 (Pa. 2017),
confirmed that as part of an excessive fine analysis, a court must conduct an




                                           3
instrumentality determination, evaluating the nexus between the property to be
forfeited and the illegal activity.6 The Supreme Court explained:

              In making the instrumentality determination, a court should
              consider, inter alia:
                 (1) whether the property was uniquely important to the
                 success of the illegal activity;
                 (2) whether the use of the property was deliberate and
                 planned or was merely incidental and fortuitous to the
                 illegal enterprise;
                 (3) whether the illegal use of the property was an isolated
                 event or repeated;
                 (4) whether the purpose of acquiring, maintaining or
                 using the property was to carry out the offense;
                 (5) whether the illegal use of the property was extensive
                 spatially and/or temporally; and
                 (6) whether the property is divisible with respect to the
                 subject of forfeiture, allowing forfeiture of only that
                 discrete property which has a significant relationship to
                 the underlying offense.

1997 Chevrolet, 160 krista75@example.net. “When [the Commonwealth’s] burden is sustained,
the burden shifts to the property owner to disprove the Commonwealth’s evidence or
to establish a statutory defense to avoid forfeiture.” Commonwealth v. Schill, 643
A.2d 1143, 1145 (Pa. Cmwlth. 1994). On appeal, “the evidence must be viewed in
the light most favorable to the Commonwealth as the prevailing party.”
Commonwealth v. $259.00 Cash U.S. Currency, 860 A.2d 228, 232 n.8 (Pa. Cmwlth.
2004).
              Here, Herpin contends that he “did not use the [V]ehicle in any of the
drug transactions alleged by the Commonwealth[, and that the Commonwealth] did

       6
         Although the Court set forth the factors to be considered in an excessive fine context, we
find them instructive in determining whether the requisite nexus for forfeiture exists.
                                                4
not arrest anyone in several of the transactions that were allegedly observed by the
police. [Herpin] testified that he purchased the [Vehicle] with insurance money and
[that he] had a job.” Herpin’s Amended Br. at 12-13. However, based on the
evidence presented at the July 6, 2015 hearing, the trial court found the following:

             Officer Bonett was assigned to the District Attorney’s
             Dangerous Drug Offenders Unit, which is responsible for
             long-term drug investigations. While assigned to this Unit
             in June of 2013, Officer Bonett began investigating
             [Herpin], aka Julio Dollars. During surveillance at 439
             West Cayuga Street in Philadelphia, officers observed
             [Herpin] driving [the Vehicle]. [Herpin] owned the
             [Vehicle] and occupied the 439 West Cayuga Street
             home.[FN]1 Officer Bonett showed a confidential source
             (‘CS’) a driver’s license photo of [Herpin], whom [the CS]
             identified as Julio Dollars, his [cocaine] supplier.
             Around 8:30 p.m. on June 13, 2013, Officer Bonett set up
             surveillance on West Cayuga Street.          He observed
             [Herpin] arrive at that location in the [Vehicle] and then
             enter the home. Shortly after, [Herpin] exited the house,
             entered the driver’s seat of his [Vehicle], and drove to
             the East Falls section of Philadelphia. Once there,
             [Herpin] met a male who approached [Herpin] in his
             [Vehicle], and they engaged in a hand-to-hand
             transaction through the driver’s window of the
             [Vehicle]. [Herpin] then left the area and officers stopped
             the male, who turned over a clear baggy containing 4.2
             grams of cocaine.
             On June 20, 2013, officers used a CS to purchase cocaine
             from [Herpin] at a Ride Aid. After the CS made a series of
             calls to [Herpin], officers observed [Herpin] exit the West
             Cayuga Street location and go in his [Vehicle] to a Rite
             Aid located in the East Falls section of Philadelphia.
             The CS approached [Herpin] at the driver’s side of his
             [Vehicle], while [Herpin] stayed in the vehicle. After an
             exchange of the $300[.00] buy money for drugs, the CS
             walked back to the officers and handed them ten grams
             of cocaine.
             Around 9:00 p.m. on June 25, 2013, Officer Bonett
             observed [Herpin] driving the [Vehicle] to the Lawncrest
                                           5
              section of Philadelphia. Here, [Herpin] pulled over, a male
              came out of a house, entered the front passenger seat of
              [Herpin]’s [Vehicle], and exited roughly five minutes later,
              returning to the house. That individual was not stopped by
              police. [Herpin] then drove down Rising Sun Avenue in
              Philadelphia, where he pulled over at Rockland Street.
              Here, a woman got into [Herpin]’s [V]ehicle for a short
              period of time, got out, and they both left the area.
              On July 1, 2013, officers had a CS call [Herpin] to
              purchase cocaine. Officers observed [Herpin] leave
              work in the [Vehicle] and go to the West Cayuga Street
              location. [Herpin] was stopped in the [Vehicle] by
              Philadelphia [Police Department’s Special Weapons and
              Tactics Unit (]SWAT[)]. Officers had search warrants
              for [Herpin]’s [Vehicle], the West Cayuga Street
              location, and the Marshall Street location. When
              Philadelphia SWAT stopped [Herpin] in [the V]ehicle,
              they recovered five clear packages that contained 3.6
              grams of cocaine, a second baggie containing 4.2 grams
              of cocaine, two cell phones, and $1,500.00. In the
              Marshall Street location, officers recovered $23,000[.00]
              and $12,010[.00] from two safes, a silver revolver with six
              live rounds and no serial number, a yellow citation and
              vehicle information for the [Vehicle], and mail addressed to
              [Herpin]. Lastly, at the West Cayuga Street location,
              officers recovered one clear baggy containing 20 grams of
              cocaine, a black handgun loaded with six live rounds with
              the serial number scratched off, two digital scales, two
              boxes of clear baggies and numerous new and unused
              packets, one clear baggy with white powder, a money
              counter, and a digital scale. Here, police also recovered two
              pieces of mail in [Herpin]’s name.
              [Herpin] bought his [Vehicle] in the beginning of 2013 for
              approximately $17,000.00. [Herpin] also owns a 2002
              Lexus, which his girlfriend drove. Bluebook values
              [Herpin]’s [Vehicle] between $12,000[.00]-$19,000[.00].
                    FN 1. Investigation also showed that [Herpin]
                    was also connected to another location, 2431
                    North Marshall Street.[7]


       7
         Officer Bonett described the Marshall Street address as Herpin’s mother’s home, which is
the address on Herpin’s driver’s license and the location at which the Vehicle is registered.
                                               6
Trial Ct. Op. at 2-3 (emphasis added; footnote and citations omitted).
             Although Herpin insists the Vehicle was not used in any of the alleged
drug transactions, the trial court was tasked with making its own credibility
determinations and factual findings. In re Return of Prop. Confiscated. Based on the
evidence presented, the trial court concluded that the Vehicle was an instrumentality
of Herpin’s offense. It found that Herpin “used [the Vehicle] to travel to meet his
customers/buyers, sold cocaine out of the driver’s window of the [Vehicle] while he
was sitting in it, and drug paraphernalia was recovered from [the Vehicle] during the
warrant search of the [V]ehicle.” Trial Ct. Op. at 5. If the trial court’s findings are
supported by substantial evidence, those findings are conclusive on appeal.
Commonwealth v. Freeman, 142 A.3d 156 (Pa. Cmwlth. 2016). After a thorough
review of the record, this Court concludes that the trial court’s findings that Herpin
used his Vehicle in the unlawful transactions are supported by Officer Bonett’s
testimony. These factual findings demonstrate that Herpin’s uses of the Vehicle were
“uniquely important to the success of the illegal [drug] activity[,]” were “deliberate”
and were “repeated[.]” 1997 Chevrolet, 160 krista75@example.net. Further, Herpin’s purpose
for using the Vehicle “was to carry out [his unlawful drug activity,]” and his “illegal
use of the property was extensive . . . .”      Id.   Accordingly, we hold that the
Commonwealth established the requisite nexus between the Vehicle and the unlawful
activity.
             Herpin next contends that the Vehicle’s forfeiture constitutes an
unconstitutional, excessive fine. We disagree. Apart from setting forth the relevant
law in his brief, Herpin’s excessive fine argument consists only of the following four
sentences:

             In the instant matter, [Herpin] argues that the punishment
             was excessive in light of the crime that was committed.
             The [Vehicle] was a Mercedes Benz and was valued at
             several thousand dollars. [Herpin] was arrested for a single
                                          7
              drug transaction. The penalty of forfeiting the [Vehicle] is
              grossly disproportionate to the gravity of the offense and
              the trial court[’]s decision should be reversed.

Herpin’s Amended Br. at 15.
              Our Supreme Court has explained:

              The Eighth Amendment to the U.S. Constitution provides
              that ‘[e]xcessive bail shall not be required, nor excessive
              fines imposed, nor cruel and unusual punishments
              inflicted.’   U.S. Const. amend. VIII.         The Eighth
              Amendment is made applicable to the states through the
              Fourteenth Amendment. This Court has held that Article I,
              Section 13 of the Pennsylvania Constitution is coextensive
              with the Eighth Amendment. In [In re] King Properties[,
              635 A.2d 128 (Pa. 1993),] this Court reasoned that the
              ‘excessive fines’ provision of Article I, Section 13 of the
              Pennsylvania Constitution is governed by the federal
              treatment of the Eighth Amendment.
              To determine whether the Excessive Fines Clause has been
              violated, a court must consider whether the statutory
              provision imposes punishment; and if so, whether the fine is
              excessive. ‘The first question determines whether the
              Eighth Amendment applies; the second determines whether
              the Eighth Amendment is violated.’ Wright v. Riveland,
              219 F.3d 905, 915 (9th Cir. 2000).
              It is settled law in Pennsylvania that a forfeiture effected
              pursuant to the Forfeiture Act is a fine and thus subject to
              review under the Excessive Fines Clause.

Commonwealth v. Real Prop. & Improvements Commonly Known As 5444 Spruce
St., Phila., 832 A.2d 396, 398-99 (Pa. 2003) (5444 Spruce Street) (citations and
footnote omitted).
              In 5444 Spruce Street, the Pennsylvania Supreme Court considered the
applicability of the United States Supreme Court’s decision in United States v.
Bajakajian, 524 U.S. 321 (1998),8 (which applied a gross disproportionality test to an

       8
        Bajakajian was superceded by statute. However, the Bajakajian factors are still relevant as
evidenced by the Pennsylvania Supreme Court’s discussion thereof in 1997 Chevrolet.
                                                8
in personam forfeiture) to a case involving “punitive civil in rem forfeitures, where
the government has established a significant relationship between the property sought
to be forfeited and the underlying criminal offense.” 5444 Spruce St., 832 krista75@example.net. Bajakajian’s gross proportionality test “compare[s] the amount of the forfeiture
to the gravity of the defendant’s offense. If the amount of the forfeiture is grossly
disproportional to the gravity of the defendant’s offense, it is unconstitutional.”
Bajakajian, 524 U.S. at 336-37.
            The 5444 Spruce Street Court described the application of the
Bajakajian gravity factor as follows:

            [A] court may measure the gravity of the offense [based
            upon several factors,] each of which is limited to the
            conduct of the defendant: the penalty imposed as
            compared to the maximum penalty available; whether
            the violation was isolated or part of a pattern of
            misbehavior; and, the harm resulting from the crime
            charged.

5444 Spruce St., 832 A.2d at 402 (emphasis added). Our Supreme Court ultimately
concluded that “Bajakajian’s gross disproportionality test applies to all punitive
forfeitures regardless of the form of the underlying proceedings.” 5444 Spruce St.,
832 krista75@example.net.
            In the instant matter, the trial court evaluated the gravity of Herpin’s
offense by considering the three Bajakajian factors discussed in 5444 Spruce Street.
First, the trial court compared Herpin’s 2½ to 5-year imprisonment penalty to the
potential statutory maximum penalty of 10 to 20 years plus a $200,000.00 fine. The
trial court acknowledged that the first Bajakajian factor weighed in Herpin’s favor
because Herpin’s actual sentence represented only a small percentage of what the trial




                                          9
court was statutorily authorized to impose.9 With respect to the second Bajakajian
factor, the trial court concluded that the record evidence of repeated drug sales on
different days using the Vehicle demonstrated a “pattern of misbehavior[.]” 5444
Spruce St., 832 krista75@example.net.             Finally, relative to the third Bajakajian factor,
contemplating the resulting harm from Herpin’s violation, the trial court concluded
that Herpin inflicted harm on citizens who were not merely the confidential
informants and police sources, but individuals who purchased drugs from him for
their actual use. Based on its consideration of these factors, the trial court concluded
that the gravity of Herpin’s offense warranted the $15,000.0010 Vehicle’s forfeiture.
               Our Supreme Court’s decision in 1997 Chevrolet, issued on May 25,
2017, significantly clarified the applicable criteria for evaluating whether a forfeiture
constitutes an excessive fine:

               [F]or purposes of an Excessive Fines Clause challenge to a
               civil in rem forfeiture, a court must first assess whether the
               property sought to be forfeited is an instrumentality of the
               underlying offense. If the property is not found to be an
               instrumentality of the criminal conduct, the inquiry is
               dispositive and ends, and the forfeiture is unconstitutional.
               If the property is an instrumentality, the inquiry continues to
               the proportionality prong and an assessment of whether the
               value of the property sought to be forfeited is grossly
               disproportional to the gravity of the underlying offense. If
               it is grossly disproportional, the forfeiture is
               unconstitutional.
1997 Chevrolet, 160 krista75@example.net.




       9
          Notwithstanding, the trial court explained that Herpin’s 5-year sentence is significant, and
the lack of an accompanying fine is not unusual in Philadelphia since “[d]efendants seldom have the
resources to pay these fines[.]” Trial Ct. Op. at 7.
        10
           The trial court explained that it estimated the amount of the forfeiture at $15,000.00
because Herpin purchased the vehicle for $17,000.00, and its current value was between $12,000.00
and $19,000.00.
                                                 10
             In addition to the instrumentality test discussed, supra, the Supreme
Court described the factors to be considered in valuing the property and weighing the
gravity of the offense:

             The factors, among others, to be considered in assessing the
             value of the property are:
                (1) the fair market value of the property;
                (2) the subjective value of the property taking into
                account whether the property is a family residence or if
                the property is essential to the owner’s livelihood;
                (3) the harm forfeiture would bring to the owner or
                innocent third parties; and
                (4) whether the forfeiture would deprive the property
                owner of his or her livelihood.
             The factors to be considered in gauging the gravity of the
             offense include:
                (1) the nature of the underlying offense;
                (2) the relation of the violation of the offense to any other
                illegal activity and whether the offender fit into the class
                of persons for whom the offense was designed should be
                considered;
                (3) the maximum authorized penalty as compared to the
                actual penalty imposed upon the criminal offender;
                (4) the regularity of the criminal conduct—whether the
                illegal acts were isolated or frequent, constituting a
                pattern of misbehavior;
                (5) the actual harm resulting from the crime charged,
                beyond a generalized harm to society; and
                (6) the culpability of the property owner.

1997 Chevrolet, 160 krista75@example.net.
             At the time the trial court rendered its decision in the instant matter, the
Supreme Court had not issued its decision in 1997 Chevrolet specifying the elements
                                           11
to be considered in assessing whether a fine is excessive. Thus, based on the record
evidence and the trial court’s factual findings which are supported by substantial
evidence, we decide whether the fine herein is excessive in light of 1997 Chevrolet.
               With respect to the instrumentality determination, as addressed infra, the
evidence established that the Vehicle was important to the success of the illegal
activity because it was used in Herpin’s illegal drug activities as a method for
transporting Herpin to conduct drug transactions and for the delivery of the illegal
drugs. In fact, Herpin was observed selling drugs through the Vehicle’s window.
Accordingly, the Vehicle’s use was not “merely incidental and fortuitous to the
illegal enterprise[.]” Id. at 191. Further, record evidence reflects that Herpin used the
vehicle on repeated occasions to conduct the illegal activities during the approximate
one-month surveillance period.
               Regarding the property valuation, Herpin’s counsel represented that the
fair market value of the property was between $12,000.00 and $19,000.00, and the
trial court valued the Vehicle at $15,000.00. Further, Herpin’s ownership of another
vehicle mitigates his loss of the Vehicle’s use. Herpin did not offer any evidence to
demonstrate that innocent third parties would be harmed by the forfeiture.11 In
addition, despite Herpin’s testimony that he worked as a car salesman from 2005 until
the date of his arrest, there is no record evidence that he is currently employed and/or
that the Vehicle’s forfeiture would deprive him of his livelihood.
               Relative to the gravity of the offense, Herpin was convicted of PWID
and the Criminal Use of a Communication Facility. He received a 2½ to 5-year
imprisonment penalty in contrast to the potential statutory maximum penalty of 10 to
20 years plus a $200,000.00 fine. Notwithstanding, this Court agrees with the trial


       11
        Herpin testified that his girlfriend and children use the other automobile titled in his name.
He did not testify that his loss of the Vehicle would harm them. Herpin further stated that his
mother owned a vehicle.
                                                 12
court that Herpin’s 5-year sentence is significant.              He was observed repeatedly
engaging in illegal drug activity, specifically, selling illegal drugs to private citizens,
in addition to the confidential informants. Herpin’s conduct directly harmed those
private citizens, and required the expenditure of police resources in numerous areas,
including conducting the investigation, performing surveillance, using confidential
informants, and executing the searches of Herpin’s residences.12 Finally, Herpin, the
Vehicle owner, was fully and directly culpable for the illegal activity.
               The record evidence clearly reflects that Herpin engaged in repeated,
unlawful and harmful behavior, negatively affecting both individual citizens to whom
he sold illegal drugs, and the Police Department required to expend resources to
address his unlawful activities. Thus, the gravity of his offense was significant.
Herpin’s Vehicle was valued by the trial court at $15,000.00. Given that Herpin
owns another vehicle and the loss of the Vehicle would not leave him without
transportation, that there is no evidence that innocent third parties would be harmed
by the forfeiture, or that the Vehicle’s forfeiture would deprive him of his livelihood,
we conclude that “the value of the property sought to be forfeited is [not] grossly
disproportional to the gravity of [Herpin’s] underlying offense.” 1997 Chevrolet, 160
krista75@example.net. Under these circumstances, the trial court properly concluded that the
Vehicle’s forfeiture does not constitute an unconstitutional, excessive fine.




       12
         It is undisputed that drug addiction is an epidemic. Its effects on individual users and its
consequences on society are dramatic and costly.
                                                 13
               For all of the above reasons, the trial court’s order is affirmed.13


                                             ___________________________
                                             ANNE E. COVEY, Judge




       13
           The Dissent contends “it is not for [this Court] to now sift through the record and
determine whether the strictures of [1997 Chevrolet] were met[,]” and thus, this Court should
remand the matter to the trial court so that it may develop the record consistent with the factors
described in 1997 Chevrolet. Dissenting Op. at 1. In 1997 Chevrolet, the Supreme Court clarified
the law on excessive fines. Therein, the Court remanded not for additional hearings, but for
reconsideration of the trial court’s flawed analysis, given the Supreme Court’s clarification of the
relevant factors. A remand is not necessary in the instant matter. “Whether a fine is excessive
under our Constitution is a question of law[.]” Commonwealth v. Eisenberg, 98 A.3d 1268, 1279
(Pa. 2014). “[I]t is well settled that this Court may affirm the trial court’s order on any basis
appearing in the record.” Victoria Gardens Condo. Ass’n v. Kennett Twp., 23 A.3d 1098, 1103 n.10
(Pa. Cmwlth. 2011). Further, “[w]here, as here, an issue may be resolved as a matter of law based
on the existing record, a remand is unnecessary.” 41 Valley Assocs. v. Bd. of Supervisors of London
Grove Twp., 882 A.2d 5, 17 (Pa. Cmwlth. 2005), appeal discontinued, (Pa., No. 60 MAP 2006,
filed March 21, 2007). This Court reviewed the record evidence and the trial court’s factual
findings, concludes that there was sufficient record evidence to address the 1997 Chevrolet criteria,
and rules that the trial court’s rationale was consistent therewith.
                                                 14
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania          :
                                      :
                  v.                  :
                                      :
David Herpin,                         :   No. 74 C.D. 2016
                        Appellant     :

                                    ORDER


            AND NOW, this 4th day of January, 2018, the Philadelphia County
Common Pleas Court’s September 10, 2015 order is affirmed.


                                    ___________________________
                                    ANNE E. COVEY, Judge
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania               :
                                           :
             v.                            :
                                           :
David Herpin,                              :   No. 74 C.D. 2016
                    Appellant              :   Submitted: January 6, 2017



BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE COSGROVE                              FILED: January 4, 2018


             Although I find the Majority opinion well-reasoned, I must dissent. The
trial court conducted several hearings in this matter and issued its decision granting
forfeiture of the vehicle in question in 2015. Two years later, the Supreme Court
issued its opinion in Commonwealth v. 1997 Chevrolet & Contents Seized from
Young (1997 Chevrolet), 160 A.3 153 (Pa. 2017) outlining the detailed analysis
which a trial court must apply to questions such as those posed in this case. As the
trial court, obviously, did not have the benefit of 1997 Chevrolet's guidance, it is not
for us to now sift through the record and determine whether the strictures of that
holding were met. This is especially so given that counsel below did not have the
opportunity to argue whether the facts of this case fit within those strictures. The
better course would be to remand this matter for development of a record at the trial
level consistent with the Supreme Court's most recent directive.1




                                               ___________________________
                                               JOSEPH M. COSGROVE, Judge




       1
         The Majority addresses this dissent in footnote 13, suggesting that despite the Supreme
Court's holding in 1997 Chevrolet, remand in this matter is not necessary. I agree with the Majority
that questions of law may sometimes be decided on the record presented, but that is not the
appropriate step in this case. What the Majority attempts to do is shoehorn the trial court's analysis
into the 1997 Chevrolet Court's mandate, something which is unwise and misdirected since the
trial court did not have the benefit of that decision when this matter was before it.



                                              JMC-2
