J-S14031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA, :            IN THE SUPERIOR COURT OF
                                   :                PENNSYLVANIA
                                   :
                v.                 :
                                   :
                                   :
    GUILFORD BROWN                 :
                                   :
    APPEAL OF: ACE BAIL BONDS, LLC :            No. 1074 MDA 2016

                  Appeal from the Order Entered June 7, 2016
                 in the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0001574-2014

BEFORE:      GANTMAN, P.J., SHOGAN, and STRASSBURGER*, JJ

MEMORANDUM BY STRASSBURGER, J.:                            FILED MAY 03, 2017

        Appellant, ACE Bail Bonds, LLC (ACE) appeals from the order granting

partial remittance of bail paid to secure the appearance of Guilford Brown

(Brown). We affirm.

        The certified record reveals the following.   Brown was arrested on

March 9, 2014, and charged with multiple offenses. Following a preliminary

arraignment, Brown’s bail was set at $25,000 secured. ACE posted bail for

Brown on March 13, 2014.         Brown’s charges were bound over for trial

following his preliminary hearing and a trial date was set for May 6, 2014.

From May 6, 2014 through December 4, 2014, Brown’s case underwent a

series of postponements. The docket indicates that Brown appeared at, or

was excused from, six court dates. Forfeiture Court Opinion, 6/7/2016, at 1.

However, Brown failed to appear for a court date on February 3, 2015. A




*
    Retired Senior Judge assigned to the Superior Court.
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bench warrant was issued and the court forfeited Brown’s bail. On February

24, 2015, the forfeiture court issued a bail piece1 upon application of ACE.

       Nearly ten months later, on December 18, 2015, ACE filed with the

court a motion for extension of time to apprehend and surrender Brown.

The forfeiture court granted ACE an additional ninety days. On March 11,

2016, within the extended deadline, ACE apprehended Brown and, on March

12, 2016, Brown was committed to the Berks County Jail on the outstanding

bench warrant. Following a hearing, Brown’s bail was set at $100,000.

       On March 21, 2016, Brown pled guilty and was sentenced. Later that

day, the court convened a hearing to determine whether bail should be

forfeited or remitted to ACE.         Following that hearing, the forfeiture court

issued an order remitting half of Brown’s bail bond, $12,500, to ACE. The

remaining half of the bond was forfeited. This appeal followed. Both ACE

and the forfeiture court complied with the mandates of Pa.R.A.P. 1925.

       ACE presents two questions for our review.

       I. Did the [forfeiture] court abuse its discretion or commit an
       error of law[] when it failed to remit the … bail bond in full?

       II. Did the [forfeiture] court abuse its discretion or commit an
       error of law[] when it failed to have … Brown[] present at the
       bail bond forfeiture hearing?

ACE’s Brief at 4 (unnecessary capitalization omitted).
____________________________________________


1
  A bail piece is a court order “authorizing the surety or bail agency to
apprehend and detain the defendant, and to bring the defendant before the
bail authority without unnecessary delay.” Pa.R.Crim.P. 536.



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      We review orders denying remittance of bail forfeitures according to

the following standard.

      The decision to allow or deny a remission of bail forfeiture lies
      within the sound discretion of the trial court. Accordingly, our
      review is limited to a determination of whether the court abused
      its discretion in refusing to vacate the underlying forfeiture
      order. To establish such an abuse, the aggrieved party must
      show that the court misapplied the law, exercised manifestly
      unreasonable judgment, or acted on the basis of bias, partiality,
      or ill-will to that party’s detriment. If a trial court erred in its
      application of the law, an appellate court will correct the error.
      Our scope of review on questions of law is plenary.

Commonwealth v. Culver, 46 A.3d 786, 790 (Pa. Super. 2012) (citation

omitted). Regarding forfeiture of a bail bond, this Court has explained that

      [u]pon a defendant’s violation of any bail condition, under
      Pennsylvania law[,] the bail may be subject to forfeiture.
      Pa.R.Crim.P. 536. After forfeiture, the money deposited to
      secure the defendant’s appearance or compliance with the
      conditions of the bail bond technically becomes the property of
      the county. Pa.R.Crim.P. 536(A)(2)(e). However, the bail bond
      remains subject to exoneration, set-aside, or remittance by the
      court. See Pa.R.Crim.P. 536(C). A forfeiture, once declared by
      the court, may be set aside or remitted as justice requires.
      Pa.R.Crim.P. 536(A)(2)(d). Equitable principles apply when a
      court is faced with the decision whether to modify or remit a
      forfeiture.

Commonwealth v. Gaines, 74 A.3d 1047, 1050-51 (Pa. Super. 2013).

      Our Supreme Court has identified a non-exhaustive list of factors

relevant to the determination of whether a bail forfeiture order should be

enforced. See Commonwealth v. Hann, 81 A.3d 57, 67-68 (Pa. 2013).

Those factors include

      (1) whether the applicant is a commercial bondsman; (2) the
      extent of the bondsman’s supervision of the defendant; (3)

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       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
       [Commonwealth] as a result of the breach. That list is not
       exhaustive, and trial courts may consider other factors as
       interests of justice require.

Id. at 67-68 (citation omitted).2

       In its first issue, ACE challenges the court’s determination with respect

to the ninth Hann factor and contends that, because Berks County

“expended very little expense due to Brown’s failure to appear” and did not

search for or apprehend Brown, “justice requires” full remittance of Brown’s

bail bond. ACE’s Brief at 10.

       With respect to the ninth Hann factor, the court credited ACE with

apprehending Brown and noted that the Commonwealth spent minimal effort

in attempting to locate him. Forfeiture Court Opinion, 6/7/2016, at 11. The
____________________________________________


2
  We are cognizant that, in July of 2015, our legislature enacted 42 Pa.C.S.
§ 5747.1, which governs forfeited undertakings. The statute, which became
effective on October 30, 2015, sets forth, inter alia, procedure for bail
revocation upon non-appearance of a criminal defendant and rules regarding
payment. The revocation court concluded that, because the docket indicates
Brown’s bail was forfeited and not revoked, the mandates of section 5747.1
are inapplicable. Forfeiture Court Opinion, 6/7/2016, at 8. Further, the court
determined that, because the clerk of courts, ACE, and the Berks County
solicitor failed to follow the relatively new procedural mandates outlined in
section 5747.1, it would decline to apply the statute herein and instead
evaluated this matter pursuant to Pa.R.Crim.P. 536 and the factors outlined
in Hann. ACE does not challenge the court’s determination in this regard.



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court then evaluated “the cost, inconvenience, prejudice or potential

prejudice suffered by the [Commonwealth] as a result of the breach” of

Brown’s bail conditions, explaining as follows.

             In addressing the issue of costs as they relate to forfeiture,
      our Supreme Court noted that while forfeiture amount should
      bear some reasonable relation to the cost and inconvenience of
      the government, the government has no obligation to furnish a
      bill of costs, nor can the cost and inconvenience factor be
      dismissed [against the government] simply because they were
      not substantial…. The fair conclusion, then, is that cost,
      inconvenience, and prejudice are significant factors but remain
      only one of multiple dynamics for the trial court to weigh in
      deciding whether justice requires full, partial, or no forfeiture of
      bail. Further, and equally important, neither the lack of
      pecuniary loss or monetary prejudice should outweigh the
      totality of other concerns presented by an individual case.

             Though the actual costs on the record before us appear
      nominal, and the [plea c]ourt assigned costs to [Brown] at his
      bail hearing on [March 14, 2016], there were nevertheless costs
      incurred by the government in the various hearings, however
      brief, scheduled in the case (not to mention the costs associated
      with    the   preparation    and    presentation  of    the   bail
      forfeiture/exoneration hearing). With respect to prejudice and
      inconvenience, [Brown’s] failure to appear and fugitive status did
      not prejudice the Commonwealth in the end, as [Brown] entered
      a guilty plea and was sentenced shortly after apprehension. The
      delay in achieving this desired result would cause inconvenience
      to the Commonwealth, if for no reason other than the ongoing
      need to monitor the status of the case….

            We are mindful of the Supreme Court’s admonition that
      courts must be careful when examining the potential vindication
      of a general, public harm that they act in a non-punitive manner,
      as the object of bail forfeiture is not to enrich the government or
      punish the defendant. Nor can it be used as a balm to soothe the
      disappointment resulting from the inability to punish and
      rehabilitate.

Id. at 12-13 (citations and quotation marks omitted).


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       As the Hann Court explained, “forfeiture decisions should be based

upon an examination of the totality of the circumstances presented in the

individual case, and no one point or factor should be talismanic in making

that determination.” 81 A.3d at 67. The record indicates that, with respect

to the ninth factor, the forfeiture court determined that the costs and

prejudice to the Commonwealth during the 13-month delay in apprehending

Brown were nominal. Thus, the court concluded that, after weighing all of

the factors and equitable considerations presented here, justice did not

require full forfeiture or full remission of bail.         Nothing in ACE’s argument

convinces us that the court committed reversible error in this regard.3

       ACE next argues that it was error to proceed at the forfeiture hearing

without    Brown     present    to   give      testimony   as   to   the   circumstances
____________________________________________


3
  ACE also makes an argument that Brown’s bond was forfeited “in response
to ACE’s use of fraudulent bonds in other cases.” ACE’s Brief at 10. Because
this claim was not raised before the revocation court at the hearing in this
matter or in ACE’s concise statement of errors complained of on appeal, it is
waived. Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal.”). Even if this claim were
not waived, the record does not support ACE’s contention. In making its
determination on forfeiture, the court did not discuss allegations of prior
fraud, except to note that Brown’s file was among those seized from ACE via
warrant at some point during the pendency of his case. However, the court
noted that Brown’s file was returned to ACE three months prior to Brown’s
failure to appear. Forfeiture Court Opinion, 6/7/2016, at 10. The court
concluded that while the seizure likely had some adverse effect on ACE’s
record keeping, it did not play a significant role in the delay in apprehending
Brown. Id. Rather, as discussed thoroughly in the court’s opinion, its
decision to forfeit half of Brown’s bond was based on its consideration of all
of the factors outlined in Hann. Accordingly, we conclude that ACE’s claim of
bias is without merit.



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surrounding his failure to appear at trial. ACE’s Brief at 11-12. Arguably,

because Brown had pled guilty and was sentenced prior to the bail forfeiture

hearing, he was not a party to that action. However, our Supreme Court has

noted that “any explanation or mitigating factors presented by the

defendant” is a factor relevant to the enforcement of a forfeiture. Hann, 81

A.3d at 67-68. In this case, however, the revocation court noted that “the

question of whether or not [Brown] should have been present was addressed

at the commencement of the bail forfeiture hearing[.]        Not only did the

interested parties conclude that there was no reason for him to be physically

present, ACE, through its counsel, stipulated that [Brown’s] violation

of bail condition by nonappearance at a hearing was willful.”

Forfeiture Court Opinion, 9/2/2016, at 5-6 (emphasis added); N.T.,

3/22/2016, at 4-7, 13. Thus, ACE is not entitled to relief on this claim.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2017




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