J-A31029-14


                                   2015 PA Super 44

IN RE: HANN, RICKY LYNN                           IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: PAUL WEACHTER

                                                      No. 571 MDA 2014


                 Appeal from the Order Entered March 21, 2014
                 In the Court of Common Pleas of Fulton County
              Criminal Division at No(s): CP-29-MD-0000015-2011


BEFORE: BOWES, J., OTT, J., and STABILE, J.

OPINION BY OTT, J.:                                   FILED MARCH 04, 2015

       Paul Weachter, bail bondsman to Ricky Lynn Hann, appeals from the

order entered March 21, 2014, in the Fulton County Court of Common Pleas,

granting the Commonwealth’s petition for bail forfeiture.1 Weachter posted

a $100,000 bail bond for Hann’s release on February 19, 2011.       The next

day, Hann killed his girlfriend and himself. On appeal, Weachter argues the

____________________________________________


1
  This is the second time the trial court has granted the Commonwealth’s
petition for bail forfeiture in this case. As we will discuss in more detail
infra, the trial court initially granted the petition, following a hearing, in
2011. Weachter appealed to this Court, which reversed the trial court’s
order. However, the Commonwealth then appealed to the Pennsylvania
Supreme Court, which vacated this Court’s decision, adopted a new test for
determining whether justice requires full forfeiture of a bail bond, and
remanded the case to the trial court for a new forfeiture hearing. See
Commonwealth v. Hann, 46 A.3d 803 (unpublished memorandum) (Pa.
Super. 2012), rev’d, 81 A.3d 57 (Pa. 2013).         The order sub judice was
issued following the second hearing.
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trial court abused its discretion when it ordered full forfeiture of the bail

bond because (1) all of the other parties involved had the same information

as Weachter regarding Hann’s potential dangerousness, and (2) a surety

should not be held responsible for the post-bail criminal conduct of a

defendant. For the reasons that follow, we affirm.

       The relevant facts were summarized by the Pennsylvania Supreme

Court in a prior appeal as follows:

       In September of 2010, Pennsylvania State Police arrested Ricky
       Lynn Hann for assaulting his then-girlfriend, Lisa Souders.
       Following an initial bail hearing, he was released on his own
       recognizance. Contemporaneous to Hann's arrest and release,
       Souders obtained a protection from abuse (PFA) order against
       him.

             In November of 2010, police again arrested Hann and
       charged him with indirect criminal contempt for violating the PFA
       order.   He was subsequently found guilty, but apparently
       remained free. Then, on February 19, 2011, Souders reported
       to State Police that the previous day Hann had kidnapped her,
       and kept her against her will for approximately 24 hours before
       she was able to escape. Based upon Souders’[s] statement,
       Trooper Gary Ford filed a criminal complaint against Hann,[2] and
       received and executed an arrest warrant against him. Hann was
       arraigned and bail was set at $100,000.

             Following the arraignment, arrangements were made with
       … Paul Weachter, a professional and licensed bail bondsman, for
       bail to be posted to secure Hann’s release. As part of his
____________________________________________


2
   The criminal complaint included the following charges:      kidnapping,
burglary, unlawful restraint, terroristic threats, recklessly endangering
another person, and simple assault.       See 18 Pa.C.S. §§ 2901(a)(3),
3502(a), 2902(a)(1), 2706(a)(1), 2705(a)(2), and 2701(a)(3), respectively.
The complaint specifically alleged that Hann threatened Souders with a
loaded shotgun. See Criminal Complaint, 2/18/2011, at 4.



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     agreement leading to his release, Hann agreed to the following
     conditions, relevant to this appeal:

        1. The defendant must appear at all times required until
        full and final disposition of the case.

        2. The defendant must obey all further orders of the bail
        authority.

        ***

        4. The defendant must neither do, nor cause to be done,
        nor permit to be done on his/her behalf, any act as
        proscribed by Section 4952 of the Crimes Code (relating to
        intimidation of witnesses or victims) or by Section 4953
        (relating to retaliation against witnesses or victims), 18
        Pa.C.S. §§ 4952, 4953.

        5. The defendant must refrain from criminal activity.

        ***

     By signing the bail bond, Hann agreed to “appear at all
     subsequent proceedings as required and comply with all the
     conditions of the bail bond.”

           For his part, [Weachter] executed a surety agreement,
     whereby he acknowledged that he or his heirs and assigns could
     be responsible for forfeiting the $100,000 bail should Hann fail to
     appear for a court proceeding or “comply with the conditions of
     the bail bond.” [Weachter] also signed the bail bond. Hann was
     accordingly released from the Franklin County Prison.

           The following day, Trooper Ford was dispatched to
     Souders’[s] residence, after receiving a report that Hann had
     accosted Souders and taken her to a wooded area behind her
     house. Upon his arrival, Trooper Ford heard three gunshots
     from the area behind the home.          Trooper Ford carefully
     investigated the area and discovered the bodies of Souders and
     Hann, each dead of apparent shotgun wounds. The county
     coroner would determine that Souders died of wounds to her
     abdomen, which caused extensive damage to her liver, lungs,
     and aorta. Hann succumbed to a shotgun wound to the face.
     The coroner determined the manners of death of Souders and
     Hann to be homicide and suicide, respectively. While no inquest
     was held into the incident, no one disputes the causes or
     manners of death.

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J-A31029-14



Commonwealth v. Hann, 81 A.3d 57, 60-61 (Pa. 2013) (record citations

omitted).

       On March 1, 2011, pursuant to Pa.R.Crim.P. 536(A)(2)(a), the

Commonwealth filed a petition for forfeiture of the $100,000 bail bond

Weachter posted for Hann.3 Following a hearing, on May 2, 2011, the trial

court granted the Commonwealth’s petition for bail forfeiture.          Thereafter,

Weachter filed a timely appeal.

       On appeal, a panel of this Court reversed the trial court’s order based

upon its determination that “the Commonwealth ha[d] failed to establish any

legally cognizable financial prejudice related to the breach to justify

forfeiture.”4     Commonwealth v. Hann,              46   A.3d   803   (unpublished

memorandum at 7) (Pa. Super. 2012).              The Commonwealth then filed an

appeal to the Pennsylvania Supreme Court, which reversed the order of the

Superior Court and remanded the case to the trial court for a new forfeiture

hearing.    The trial court conducted the second forfeiture hearing, and on
____________________________________________


3
  The Rule provides, in relevant part, that “[w]hen a monetary condition of
release has been imposed and the defendant has violated a condition of the
bail bond, the bail authority may order the cash or other security
forfeited[.]” Pa.R.Crim.P. 536(A)(2)(a).
4
  The panel found particularly relevant the fact that the Commonwealth
admitted, during the forfeiture hearing, “Ricky Hann killing Tina Souders was
the cheapest thing that could happen for the Commonwealth in this case. …
The Commonwealth is better off financially by this murder/suicide.” Hann,
supra, 46 A.3d 803 (unpublished memorandum at 6) (citing N.T.,
4/19/2011, at 61-62).




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March 20, 2014, entered an order directing Weachter to forfeit the $100,000

bail bond in full. This timely appeal follows.5

       Our well-established standard of review in bail forfeiture appeals is as

follows:

       “[T]he decision to allow or deny a remission of bail forfeiture lies
       with the sound discretion of the trial court.” Commonwealth v.
       Chopak, 532 Pa. 227, 615 A.2d 696, 701 (1992). Trial courts
       unquestionably have the authority to order the forfeiture of bail
       upon the breach or violation of any condition of the bail bond.
       Id. at 701–02. In bond forfeiture cases, an abuse of that
       discretion or authority will only be found if the aggrieved party
       demonstrates that the trial court misapplied the law, exercised
       its judgment in a manifestly unreasonable manner, or acted on
       the basis of bias, partiality, or ill-will. [Commonwealth v.
       ]Culver, 46 A.3d [786,] 790 [(Pa. Super. 2012)]. To the extent
       the aggrieved party alleges an error of law, this Court will
       correct that error, and our scope of review in doing so is plenary.
       Id.

Hann, supra, 81 A.3d at 65.

       Pennsylvania Rule of Criminal Procedure 536 provides two sanctions

when a defendant violates a condition of his bail – revocation of the

defendant’s release or forfeiture of the posted bail bond.          Pa.R.Crim.P.
____________________________________________


5
  On April 1, 2014, the trial court ordered Weachter to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Weachter complied with the court’s directive and filed a concise statement
on May 15, 2014.

       The trial court filed two opinions in this case. The first, dated March
20, 2014, accompanied the trial court’s order directing forfeiture of the bail
bond. We will refer to this as the “Remand Opinion.” The second, dated
May 15, 2014, was filed in response to Weachter’s concise statement. We
will refer to this as the “Rule 1925 Opinion.”




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536(A)(1)-(2). Here, there is no dispute Hann violated the conditions of his

bail.   Moreover, because Hann killed himself after murdering Souders, the

revocation of his release was clearly not a sanction available under the facts

of this case. Therefore, the Commonwealth only petitioned for forfeiture of

the $100,000 bail bond Weachter posted upon Hann’s release. However, the

Rule further provides that “[t]he bail authority may direct that a forfeiture be

set aside or remitted if justice does not require the full enforcement of

the forfeiture order.” Pa.R.Crim.P. 536(A)(2)(d) (emphasis supplied).

        Previously, when considering whether justice requires full forfeiture of

a bail bond, this Court has deliberated three factors, outlined by the federal

district court in United States v. Ciotti, 579 F.Supp. 276 (W.D. Pa. 1984):

        1) the willfulness of the defendant’s breach of the bond, 2) the
        cost, inconvenience and prejudice suffered by the government,
        and 3) any explanation or mitigating factors.

Commonwealth v. Mayfield, 827 A.2d 462, 468 (Pa. Super. 2003).

Indeed, the panel of this Court that considered Weachter’s original appeal,

reversed the trial court’s original order of forfeiture because it concluded

“the Commonwealth [] failed to establish any legally cognizable financial

prejudice related to the breach to justify forfeiture.” Hann, supra, 46 A.3d

803 (unpublished memorandum at 7).

        However,   when   reviewing   the   initial   appeal   in   this   case,   the

Pennsylvania Supreme Court found “a strict reading of the Ciotti/ Mayfield

construct” was inconsistent with law and justice, and stated that while the

cost and inconvenience to the Commonwealth are “significant factors …

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J-A31029-14



neither the lack of pecuniary loss or monetary prejudice should outweigh the

totality of other concerns presented by an individual case.” Hann, supra,

81 A.3d at 66, 69. Rather, the Court emphasized that “the decision to order

forfeiture in the first instance belongs solely to the discretion of the trial

court,” and adopted the following multi-factor test, set forth by the New

Jersey Supreme Court in State v. Korecky, 777 A.2d 927, 934 (N.J. 2001),

“for determining whether justice required full enforcement of a forfeiture

order”:

      1) whether the applicant is a commercial bondsman; (2) the
      extent of the bondsman’s supervision of the defendant; (3)
      whether the defendant’s breach of the recognizance of bail
      conditions was willful; (4) any explanation or mitigating factors
      presented by the defendant; (5) the deterrence value of
      forfeiture; (6) the seriousness of the condition violated; (7)
      whether forfeiture will vindicate the injury to public interest
      suffered as a result of the breach; (8) the appropriateness of the
      amount of the recognizance of bail; and (9) the cost,
      inconvenience, prejudice or potential prejudice suffered by the
      State as a result of the breach.

Id. at 67-68. The Court noted the “list is not exhaustive, and trial courts

may consider other factors as interests of justice require.” Id. at 68.

      As this was the Supreme Court’s first decision interpreting Rule 536,

the Hann Court also provided guidance concerning the burden of proof in

forfeiture cases. The Court stated:

      [I]n a case where the Commonwealth has sought forfeiture, and
      the defendant or his surety opposes it, a hearing should be held.
      At that hearing, the Commonwealth has the burden of proving
      the conditions to bail forfeiture as aforesaid, upon which the
      burden will shift to the defendant or his surety to justify full or
      partial remission of bail forfeiture.


                                      -7-
J-A31029-14



Id. at 71-72.    Because a forfeiture proceeding is collateral to a criminal

prosecution and civil in nature, the Court further determined the proper

burden should be by a preponderance of the evidence standard. Id. at 72.

      Accordingly, recognizing that the decision whether to grant bail

forfeiture is within the trial court’s discretion, and “should be exercised on a

case-by-case basis under the analysis given [therein],” the Hann Court

remanded the case to the trial court for a new forfeiture hearing. Id. As

noted above, on remand, the trial court conducted a hearing, and ultimately

determined “justice demands forfeiture of the bail bond posted by

Weachter.” Trial Court Opinion, 5/20/2014, at 17.

      In his first issue on appeal, Weachter contends the trial court

misapplied the law and abused its discretion when it disregarded the fact

that the other parties involved, i.e., the police, the district attorney and the

magisterial district justice, had the same information regarding Hann’s

potential   dangerousness    as   Weachter,    and   improperly    focused   on

“Weachter’s lack of due diligence in failing to thoroughly investigate Hann’s

background before bailing him out of jail.” Weachter’s Brief at 11-12. He

notes that at the second forfeiture hearing, the arresting state trooper

testified that he requested Hann’s bail be set at $500,000, but the

magisterial district justice set bail at only $100,000. See N.T., 1/23/2014,

at 51-52.   Moreover, Weachter points out that the trooper stated he had

attempted to contact the district attorney before bail was set but was unable

to reach him, and acknowledged that his failure to charge Hann with

                                     -8-
J-A31029-14



additional crimes, such as witness intimidation and illegal possession of a

firearm, “might have been an oversight at that point.”           Id. at 53-54, 56.

Weachter argues the trial court “established a double standard whereby a

surety is held to a much higher level of scrutiny than the police, the district

attorney, and the court system itself.” Weachter’s Brief at 14. Further, he

asserts “the systematic breakdown within the criminal justice system, which

failed to further detain Hann, and/or the failure to impose additional bail

restrictions,   weighs   heavily   as   an   ‘explanation   or   mitigating   factor’

contemplated by [the Supreme Court in] Hann.” Id. at 15-16.

      The trial court, however, concluded that “neither the Supreme Court in

Hann nor Pa.R.Crim.P. 536 permit the blame-sharing result Weachter

seeks.” Rule 1925 Opinion at 6. We agree.

      It is clear the focus of the multi-factor test outlined in Hann is on the

actions of the defendant and the surety. Although Weachter suggests

the inaction of the police, the district attorney and the magisterial district

justice, are relevant mitigating factors under the facts of this case, we

disagree. Indeed, the Supreme Court explained in Hann:

      Instantly, there is little dispute that Hann’s breach of his bail
      bond conditions was willful, and that there can be no explanation
      of mitigating factors presented by a representative of Hann or
      [Weachter]; thus, the evidence in this case clearly weighs in
      favor of forfeiture.     Indeed, for purposes of the whole of
      Pennsylvania law, these two factors need not be extensively
      examined, as any evidence of willful misconduct or mitigation by
      either a defendant or his surety, and whether that evidence
      militates in favor of or against forfeiture, should be self-
      explanatory.


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Hann, supra, 81 A.3d at 68.

       When read in context, it is evident that “mitigating factors” refer to

any explanation for the defendant’s conduct in violating the terms of his bail

bond, i.e., the defendant failed to appear for a court date because he was

caring for his sick child. There is no support for Weachter’s claim that the

Commonwealth’s failure to file additional charges against a defendant, or the

court’s failure to impose a higher bail, mitigates a surety’s duty to fully

investigate a defendant’s background before issuing a bail bond.

       Moreover, the Hann Court emphasized the financial aspects of a

commercial surety’s relationship with a defendant:

       Courts have uniformly held that a surety’s status as a bondsman
       tends to lean in favor of forfeiture. “The driving force behind a
       surety’s provision of a bond is the profit motive.” In making
       the business decision of whether to take a bail bond, “it is
       not unreasonable to conclude that [a bondsman] should
       have been fully cognizant of his responsibilities and the
       consequences of [a defendant’s] breach of the conditions
       of the bond.” Indeed, such calculation involves “a known
       business risk ... for economic gain-the premium paid for the
       bond.”

Id. at 69 (citations omitted and emphasis supplied).            Weachter, as a

commercial surety, took a calculated business risk when he agreed to post

bail for Hann, who was charged with kidnapping his ex-girlfriend and

threatening her at gunpoint.6          See Criminal Complaint, 2/18/2011, at 4.
____________________________________________


6
  During the second forfeiture hearing, Weachter testified that he saw the
criminal complaint and probable cause affidavit issued against Hann on the
night he posted the bail bond securing Hann’s release. N.T., 1/23/2014, at
(Footnote Continued Next Page)


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J-A31029-14



Accordingly, the fact that the state trooper did not file additional charges

against Hann, and that the magisterial district justice declined to set bail at

$500,000 as requested by the trooper, is not relevant to the question of

whether the trial court should have ordered the forfeiture of the $100,000

bond that was posted.7 Therefore, Weachter is entitled to no relief on this

claim.

      Next, Weachter contends the trial court abused its discretion when it

held a surety responsible for the post-bail criminal conduct of the defendant.

He asserts that while the extent of a surety’s supervision of the defendant is

a relevant factor in Hann, in this case, the trial court acted unreasonably

when it “criticize[d] Weachter for having no contact with Hann in the very

brief window of time after Hann’s release from jail.” Weachter’s Brief at 17.

Furthermore, Weachter argues that since a surety has no power to arrest or

otherwise prevent a defendant from engaging in post-bail criminal activity,

“[i]t is completely inconsistent to require a surety to forfeit a bail, on the

grounds that the defendant failed to refrain from criminal activity[.]” Id. at

18.
                       _______________________
(Footnote Continued)

42-43. Specifically, he acknowledged that he knew Hann had “[h]eld
[Souders] with a gun for a day[.]” Id. at 43.
7
  We note Weachter does not allege that the Commonwealth intentionally hid
information concerning Hann’s potential dangerousness from the surety. If
that had been the case, we would be inclined to find that a relevant factor in
evaluating the surety’s decision to post bond for the defendant.




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      However, the Hann Court made clear that a surety may be held

responsible for the post-bail criminal conduct of a defendant.         The Court

opined:

      Deterring defendants in general from breaching bail bond
      conditions, and the seriousness of the condition breached, are
      equally important considerations. “If a violation of a condition of
      release is more than technical, the court may require a
      substantial forfeiture to deter not only the defendant but others
      from future violations.”     The instant case provides a stark
      example of a violation that “is more than technical”: where the
      defendant willfully murdered the victim of a prior crime, and
      accordingly, the government’s lone witness in a prosecution, and
      then turned the gun on himself, preventing any further
      prosecution. Indeed, even if Hann had not committed suicide,
      his   murder     of   Souders    would     have   destroyed     the
      Commonwealth’s case. “It undercut what trial courts seek to
      prevent here and in future cases-obstruction of justice.”
      Further, it is self-evident that violating no-contact orders,
      intimidating     or    physically    harming     witnesses,      or
      committing other crimes while free on bail all constitute
      serious bail bond breaches, to which courts may be
      inclined to respond with forfeiture orders in order to deter
      future misconduct.

                                     ****

      We do not portend to render bail bondsmen, or any surety for
      that matter, the guarantors of a defendant’s conduct while the
      defendant is released on bail. However, the express language of
      the Pennsylvania Rules of Criminal Procedure concerning bail,
      bail bonds, and forfeiture do not limit the availability of forfeiture
      exclusively to abscondment cases; indeed, the rules permit
      forfeiture for any breach of a bail condition.

Hann, supra, 81 A.3d at 70, 72 (footnotes and citations omitted; emphasis

supplied). Accordingly, in balancing all the relevant considerations, the trial




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court may conclude, as it did here, that justice requires full forfeiture of a

bail bond when a defendant commits a serious crime while on bail.

        Furthermore, while the trial court acknowledged Weachter “had little

opportunity to supervise Hann,” it noted that Weachter “did not attempt to

contact Hann” in any manner, after his release. Remand Opinion, at 12.

We find no abuse of discretion on the part of the trial court in considering

Weachter’s lack of any supervision of Hann in determining that forfeiture

of the bail bond was warranted.                Moreover, with respect to Weachter’s

contention that a “surety has no power under the law to intervene” when a

defendant engages in post-bail criminal conduct, other than to file for a bail

piece,8 we find this claim specious.            Although Weachter had no power to

arrest Hann if he was aware Hann was contacting Souders, the victim of the

criminal charges, he certainly could have alerted the police.          Accordingly,

this claim also fails.

        While Weachter only challenged two of the Hann factors on appeal, a

review of the trial court’s remand opinion reveals that the court considered

each of the nine factors outlined by the Supreme Court in Hann,9 before
____________________________________________


8
    Weachter’s Brief at 18.
9
  Specifically, the trial court determined: (1) Weachter is a licensed bail
bondsmen who made a business decision to bond Hann; (2) Weachter made
no attempt to contact Hann after his release from prison; (3) Hann’s actions,
in violating the terms of his bond, were willful; (4) “no evidence of
explanation of Hann’s breach or of mitigation was offered by Weachter[;]”
(5) “[t]o the extent that forfeiture is a deterrent to future violation,
(Footnote Continued Next Page)


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concluding that “forfeiture [was] warranted based on Hann’s violation of the

conditions of bail,” and that Weachter failed to demonstrate “by a

preponderance of the evidence that full or partial remission [was] required

by the interests of justice.” Remand Opinion, at 17. Because we detect no

abuse of discretion on the part of the trial court, we affirm the order

granting the Commonwealth’s petition for forfeiture.10

      Order affirmed.




                       _______________________
(Footnote Continued)

substantial forfeiture is warranted by the facts of this case[;]” (6) “the bail
condition violated was extremely serious, as [the victim] lost her life and the
Commonwealth lost the ability to prosecute Hann for his alleged crimes[;]”
(7) because the breach was serious, forfeiture of the bond will vindicate the
public interest in the “orderly, effective administration of justice[;]” (8) the
bail amount set by the court was not excessive, and Hann’s actions may
have justified an even higher bail amount; and (9) while the Commonwealth
did not suffer a monetary loss as a result of Hann’s actions, “the ultimate
‘costs’ to Fulton County are an inability to prosecute Hann for his alleged
criminal activity and the loss of Souder’s life, costs which cannot be
quantitatively measured.” Remand Opinion, at 10-17.
10
  We note that the trial court, in its Rule 1925 Opinion, asked this Court for
guidance and direction if we determined that a partial remission of the
$100,000 bail bond was warranted. See Rule 1925 Opinion, at 10 n.5.
However, because Weachter did not provide any argument to justify a
partial remission of the bail bond, or any proposed calculation method, we
need not address this issue further at this time.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2015




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