J-A06035-15, J-A06036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                       Appellee

                  v.

JUSTIN LAMAR CULVER AND SENECA
INSURANCE COMPANY

APPEAL OF: SENECA INSURANCE
COMPANY
                    Appellant                   No. 1765 EDA 2014


                 Appeal from the Order May 21, 2014
            In the Court of Common Pleas of Pike County
         Criminal Division at No(s): CP-52-CR-0000062-2007
____________________________________________________________

COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                       Appellee

                  v.

JUSTIN LAMAR CULVER AND EVERGREEN
NATIONAL INDEMNITY COMPANY

APPEAL OF: EVERGREEN NATIONAL
INDEMNITY COMPANY
                   Appellant                    No. 1766 EDA 2014


                   Appeal from the Order May 21, 2014
              In the Court of Common Pleas of Pike County
           Criminal Division at No(s): CP-52-CR-0000119-2007


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED APRIL 13, 2015
J-A06035-15, J-A06036-15



       Appellants Seneca Insurance Company (“Seneca”) and Evergreen

National Indemnity Company (“Evergreen”) appeal from the order of the

Pike County Court of Common Pleas denying their petitions to vacate

forfeiture of bail and exonerate surety. After careful review, we affirm.

       The facts and procedural posture underlying this matter are as follows.

On February 2, 2007, police charged Justin Culver (“Culver”) with one count

each of burglary, criminal trespass, criminal mischief, and attempt to commit

theft by unlawful taking.1        On February 9, 2007, Seneca posted Culver’s

$25,000.00 bail.      The Magisterial District Court bound the charges over to

the Court of Common Pleas at Docket No. CP-52-CR-0000062-2007.

       Thereafter, on March 26, 2007, police charged Culver in a new criminal

complaint with false imprisonment, terroristic threats, simple assault, and

harassment.2 The Magisterial District Judge set Culver’s bail in this second

case at $100,000.00, and bound the matter over to the Court of Common

Pleas at Docket No. CP-52-CR-0000119-2007. On June 14, 2007, Evergreen

posted Culver’s $100,000.00 bail at Docket No. CP-52-CR-0000119-2007.

Culver was released from custody but remained subject to the bail conditions

set at each docket number.
____________________________________________


1
   18 Pa.C.S.       §§    5502(a),     3304(a)(5),   3503(a)(1)(ii),     and   901(a),
respectively.
2
   18 Pa.C.S.      §§    2903(a),     2706(a)(1),    2701(a)(1),   and    2709(a)(1),
respectively.




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       On September 10, 2007, police arrested and charged Culver with

second-degree murder, two counts of robbery, burglary, conspiracy to

commit robbery, conspiracy to commit burglary, firearms not to be carried

without a license, and possession of firearm prohibited, stemming from a

home invasion perpetrated on August 24, 2007.3      The Magisterial District

Court bound these charges over to the Court of Common Pleas at Docket No.

CR-0000298-2007.          On September 11, 2007, upon oral motion of the

Commonwealth, the trial court revoked Culver’s bail at Docket Nos. CP-52-

CR-0000062-2007 and CR-0000119-2007.

       On March 18, 2009, a jury convicted Culver of second-degree murder,

conspiracy, and the other charges at Docket No. CP-52-CR-0000298-2007.4

On March 19, 2009, the trial court granted a Commonwealth motion for

forfeiture of Culver’s bail at Docket Nos. CP-52-CR-0000062-2007 and CP-

52-CR-0000119-2007.

       On November 12, 2009, a jury convicted Culver of all the charges at

Docket No. CP-52-CR-0000062-2007, Seneca’s matter.5 On November 16,
____________________________________________


3
  18 Pa.C.S. §§ 2502(b), 3701, 3502(a), 903, 903, 6106(a)(1), and
6105(a)(1), respectively.
4
  In addition to the sentences imposed for the other convictions at Docket
No. CP-52-CR-0000298-2007, Culver received a life sentence for the
second-degree murder conviction.
5
  The trial court eventually sentenced Culver to an aggregate sentence of 3
to 10 years’ incarceration for his convictions at Docket No. CP-52-CR-
0000062-2007.



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2009, the Commonwealth nolle prossed the charges at Docket No. CP-52-

CR-0000119-2007, Evergreen’s matter.

        Both Evergreen and Seneca filed petitions to vacate forfeiture of bail

and exonerate surety, which the trial court denied on October 21, 2010.

Evergreen and Seneca filed notices of appeal on November 3, 2010, and

November 5, 2010, respectively.                A panel of this Court reviewed both

appeals and determined that the trial court had abused its discretion and

misinterpreted the law by refusing to set aside the forfeitures and to release

the sureties.    The Commonwealth filed an application for reargument with

this Court, which we granted.             The cases were then consolidated for

reargument before this Court en banc.

        On en banc review, this Court determined that the trial court had

misapplied the Ciotti6/Mayfield7 test for bail forfeitures,8 and reversed the

trial court. The Commonwealth filed a petition for allowance of appeal to our

Supreme Court.




____________________________________________


6
    United States v. Ciotti, 579 F.Supp. 276 (W.D.Pa.1984).
7
    Commonwealth v. Mayfield, 827 A.2d 462 (Pa.Super.2003).
8
  At the time of the en banc hearing, Pennsylvania courts followed the
Ciotti/Mayfield test. This test required that courts consider three factors in
forfeiture actions: (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. Mayfield, 827 A.2d at 468.



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      On October 30, 2013, during the pendency of the Commonwealth’s

petition for allowance of appeal, the Supreme Court of Pennsylvania decided

Commonwealth v. Hann, 81 A.3d 57 (Pa.2013), which abandoned the

Ciotti/Mayfield test in favor of a new set of factors courts should consider

to determine whether justice requires the enforcement of a forfeiture order

under Pa.R.Crim.P. 536(A)(2)(d).     On December 19, 2013, the Supreme

Court granted the Commonwealth’s petition for allowance of appeal, vacated

this Court’s en banc decision, and remanded the matter to the Pike County

Court of Common Pleas for a new forfeiture hearing in accordance with

Hann. See Commonwealth v. Culver, 82 A.3d 429 (Pa.2013).

      The trial court conducted the new forfeiture hearing on April 24, 2014,

and denied Evergreen’s and Seneca’s petitions to vacate and exonerate on

May 21, 2014. Seneca filed a notice of appeal on June 12, 2014. Evergreen

filed a notice of appeal on June 18, 2014. Seneca, Evergreen, and the trial

court complied with Pa.R.A.P. 1925. This Court consolidated the matters per

Pa.R.A.P. 513.

      Seneca raises the following two claims for review:

      I. Whether Seneca was discharged when Culver was arrested for
      a new crime and admitted to increased bail without notice to
      Seneca and without Seneca’s consent?

      II. Whether the [t]rial [c]ourt abused its discretion in failing to
      remit the bail forfeiture previously ordered in light of the
      mitigating factors presented by Seneca at the hearing held on
      Seneca’s petition to remit bail failure?

Seneca’s Brief, p. 4.



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      Evergreen raises the following claim for review:

      I. Whether the [t]rial [c]ourt abused its discretion in failing to
      remit the bail forfeiture previously ordered in light of the
      mitigating factors presented by Evergreen [] at the hearing held
      on Evergreen’s petition to remit bail failure?

Evergreen’s Brief, p. 4.

      This Court’s standard of review in cases involving remittance of bail

forfeiture is well-established:

      The decision to allow or deny a remittance of bail forfeiture lies
      within the sound discretion of the trial court. Accordingly, an
      appellate court’s 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. The scope of review on questions of law is
      plenary.

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

reargument denied (Oct. 1, 2013), appeal denied, 89 A.3d 1283 (Pa.2014).

      Both Seneca and Evergreen claim that the trial court abused its

discretion by not remitting their sureties.       See Seneca’s Brief, pp. 11-13;

Evergreen’s Brief, pp. 9-14. These claims lack merit.

      Regarding forfeiture of a bail bond, this Court has explained:

      Upon 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

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      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.

Gaines, 74 A.3d at 1050-51 (some citations omitted).

      In Hann, supra, the Supreme Court of Pennsylvania discarded the

Ciotti/Mayfield test.    The Court instead stated that, when considering

whether justice requires the enforcement of a forfeiture order under

Pa.R.Crim.P. 536(A)(2)(d), a court should consider several factors, including

the following:

      (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.

Hann, 81 A.3d at 67-68. The Supreme Court explained, however, that the

“list is not exhaustive, and trial courts may consider other factors as

interests of justice require.” Id. at 68. Further, Hann does not require trial

courts to discuss each of the enumerated factors in detail; the enumerated

factors are only some potentially relevant considerations.     See id. at 67

(emphasizing that “forfeiture decisions should be based upon an examination




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J-A06035-15, J-A06036-15



of the totality of the circumstances presented in the individual case, and no

one point or factor should be talismanic in making that determination”).

       At a forfeiture hearing, the Commonwealth maintains the initial burden

to prove, by a preponderance of the evidence, (1) that a defendant breached

a condition of a bail bond,9 and (2) that a surety had agreed to be bound by

the bail bond. Hann, 81 A.3d at 71-72. Once the Commonwealth proves

the above, the burden shifts to the defendant or the surety to prove, also by

a preponderance of the evidence, that the forfeiture is not warranted. Id.




____________________________________________


9
   In addition to the possible imposition of further monetary and non-
monetary conditions pursuant to Pa.R.Crim.P. 527 & 528, all Pennsylvania
criminal bail bonds require the released defendant to:

       (1) appear at all times required until full and final disposition of
       the case;

       (2) obey all further orders of the bail authority;

       (3) give written notice to the bail authority, the clerk of courts,
       the district attorney, and the court bail agency or other
       designated court bail officer, of any change of address within 48
       hours of the date of the change;

       (4) neither do, nor cause to be done, nor permit to be done on
       his or her behalf, any act 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; and

       (5) refrain from criminal activity.

Pa.R.Crim.P. 526(A) (emphasis provided).



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J-A06035-15, J-A06036-15



        Initially, we note that Seneca and Evergreen framed their claims in

terms of alleged “mitigating factors”10 they claim to have presented at the

April 24, 2014 forfeiture hearing.             See Seneca’s Brief, Statement of

Questions Involved, p. 4; Evergreen’s Brief, Statement of Question Involved,

p. 4. However, as this Court recently explained, “[w]hen read in context, it

____________________________________________


10
     Seneca claims the following as “mitigating factors”:

        -   No notice to Seneca when Culver was arrested in [Evergreen’s
            case] and Culver was permitted to post bond in the amount of
            $100,000.00 (four times the bond amount in Seneca’s case to
            reflect the risk Culver would not respect the conditions of his
            new bail [)];

        -   No costs incurred in the apprehension of Culver for the
            second offense [(Evergreen case)];

        -   No notice to Seneca after Culver was arrested in the
            [Evergreen case] although he was on release per Seneca’s
            bail in the Burglary Case;

        -   No costs incurred in the apprehension of Culver for the third
            offense (Homicide Case);

        -   Lion’s share of the cost incurred in the Homicide Case was for
            the stranger to the bail bond, namely [co-defendant] Maurice
            Keeys;

        -   Most of the Keeys’ costs in the Homicide Case were not costs
            of prosecution but defense costs required for indigent defense
            of capital cases; and

        -   Culver was not a fugitive when he committed new crimes.

Seneca’s Brief, pp. 12-13. Likewise, as its “mitigating factors”, Evergreen
argued that a bondsman is not a guarantor against criminal conduct,
forwarded a questionable deterrence argument, and noted that the
Commonwealth ultimately nolle prossed the Evergreen charges.            See
Evergreen’s Brief, pp. 11-14.



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is evident that the ‘mitigating factors’ [discussed in Hann] 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.”   In re Hann, --- A.3d ---, 2015 WL 904622 *5

(Pa.Super. March 4, 2015).       Seneca and Evergreen’s alleged “mitigating

factors” miss the point. Seneca and Evergreen did not present “mitigating

factors” as contemplated by Hann, meaning explanations of Culver’s

conduct in violating the terms of his bail bonds.    Instead, they presented

their argument on the Hann factors as “mitigating factors” to explain their

conduct, i.e., the conduct of the surety and why the results only minimally

prejudiced the Commonwealth.

      In its order denying Seneca and Evergreen’s petitions, the trial court

explained how it weighed the Hann factors as follows:

            Clearly, the commission of the crimes of [m]urder,
      [r]obbery, [b]urglary, etc., violate the terms of the [d]efendant’s
      bail which require [d]efendant to obey the law while released on
      bail.  Therefore, the Commonwealth has met its burden of
      demonstrating the breach of the [d]efendant’s bail conditions.
      The burden of proof thus shifts to the Sureties to present
      evidence justifying full or partial remission of the forfeiture.

            Based upon all the evidence presented it is clear that each
      Surety is a commercial bondsman. As a commercial bondsman
      each Surety is in the profit making business of providing bail to
      defendants, overseeing their activity while out on bail and trying
      to insure their compliance with the bail orders.

              Further, based upon the evidence presented, there was
      little indication of supervision of the [d]efendant other than the
      representative from the Surety indicat[ing] that they had
      telephone contact with the [d]efendant. There was no indication
      of any rules of bail imposed by the Surety to require [d]efendant

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     to report any arrest to them and no indication of any meeting
     with the [d]efendant or any research done by the Surety to
     insure compliance.

            Certainly, the breach of the bail conditions was clearly
     willful since it involved a voluntary burglary of a home and the
     murder of the homeowner who attempted to defend his home
     and daughter.

          No evidence of any mitigating factor of any type was
     presented by the Defendant or Surety.

            Certainly, there is a deterrence value of forfeiture under
     these circumstances.       Defendant was arrested for serious
     charges just one and one half months after Seneca posted the
     bail in this case. No effort was made by Seneca to investigate
     any actions of the [d]efendant nor to require the [d]efendant to
     meet with and report such arrests or other criminal activity. Five
     months      later   the    [d]efendant    participated   in    the
     robbery/burglary offence that resulted in the murder of an
     innocent party. Since bail by Seneca was $25,000 for the
     original felony charges of [b]urglary, etc., clearly the
     Commonwealth recognized the serious risk posed by the
     [d]efendant. However, the evidence presented at the hearing
     clearly indicates that neither Surety undertook any significant
     effort to oversee or supervise the [d]efendant while on bail. The
     deterrence value of forfeiture under such circumstances remains
     high.

           Certainly[,] the seriousness of the violation could not be
     higher since the last violation involved murder, robbery and
     burglary.

            Further, the amount of bail set in these matters was
     clearly appropriate. In the first felonies, bail was set at $25,000.
     Given the serious nature of the offenses, the age and actions of
     the [d]efendant, the bail posted by Seneca was clearly justified.
     In addition, the second set of charges filed just shortly after the
     first set certainly required an increase in the bail. Therefore,
     $100,000 was justified given the [d]efendant’s actions.
     Certainly, the Sureties were aware of the amount of bail and
     should have been aware of the [d]efendant’s past and current
     actions and they chose to issue that bail.

          Forfeiture will make a small step to vindicate the injury to
     the public interest suffered in this matter. While nothing can

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      alleviate the injury created by this murder, full forfeiture is the
      only way for the [c]ourt to vindicate the public interest and to
      attempt to insure that Sureties shall oversee and attempt to
      control the actions of defendants out on bail.

            The Commonwealth has presented certain evidence of the
      costs related to the [d]efendant’s breach of conditions. These
      costs included the cost of the trial for murder, the costs
      associated with the defense of a codefendant of the [defendant],
      [and] the time and effort involved in such a prosecution. While
      these costs are not directly attributable just to the [defendant],
      they are certainly related to his actions. These actual monetary
      costs exceed the amount of bail forfeited in this matter. These
      costs do not address the loss of life and the extensive effort
      these trials required.

Trial Court Order, May 21, 2014, pp. 4-6.             Ultimately, the trial court

concluded:

      Based upon all the evidence presented and the factors for this
      [c]ourt to consider, the [c]ourt finds that Suret[ies] Seneca and
      Evergreen have failed to prove any factor set forth in [Hann].
      Certainly, the evidence presented is nowhere near the
      preponderance of evidence required by applicable law.

Id. at 6.

      A review of the forfeiture hearing transcript reveals that the trial court

did not abuse its discretion in denying the petitions. See N.T. 4/24/2014,

Seneca R.R. 24-51, Evergreen R.R. 47-74. The transcript supports the trial

court’s conclusions as to the Hann factors. At the forfeiture hearing, Seneca

and Evergreen’s bail bondsmen testified that the sureties paid the bail bond

and then performed very little monitoring of Culver. In short, the evidence

revealed that, in pursuit of profit, Seneca and Evergreen took calculated

business    risks;   they   gambled   on   Culver’s   compliance   with   his   bail



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conditions11 and lost.       We find no abuse of discretion in the trial court’s

denial of Seneca’s and Evergreen’s petitions to remit the bail forfeiture.12

       In its second claim, Seneca argues that because “the Commonwealth

decided not to seek forfeiture and to waive the violation of Seneca’s bail

bond upon Culver’s new arrest, Seneca was denied the opportunity to

surrender Culver and/or revoke its bond.            Consequently, Seneca was

discharged as a matter of law.” See Seneca’s Brief, p. 7. This claim also

lacks merit.

       Initially, any onus to supervise a bailed defendant is on the surety who

stands to profit from the bail bond it provides, not the Commonwealth or the

trial court.   See Hann, 81 A.3d at 69-70 (citing Rochelle Bail Agency,

Inc. v. Maryland Nat. Ins. Co., 484 F.2d 877, 878-79 (7th Cir. 1973) to

note that, while a surety does not indemnify an absolute guarantee of a

defendant’s compliance with bail bond conditions, he may have a duty to

exercise some minimal supervision over the defendant to accomplish

compliance).       Additionally, Seneca cites no authority to support its

suggestion that the Commonwealth must notify sureties of the arrest of their
____________________________________________


11
  Specifically, that he refrain from criminal activity.       See Pa.R.Crim.P.
526(A)(5).
12
   That the Commonwealth ultimately nolle prossed the charges for which
Evergreen had provided its surety is of no moment. The Commonwealth’s
decision to nolle prosse the charges does not retroactively cure Culver’s
violation of the terms and conditions of his bail for which Evergreen provided
the surety.



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own bailees, and this Court is unaware of any statute or jurisprudence

requiring the trial court or the Commonwealth to monitor a surety’s bailee

on its behalf.

        Seneca had no excuse for not knowing about the arrest of its own

bailee. Upon Culver’s second arrest, Seneca could have filed a petition to

vacate its bond.    It did not.   Further, once police arrested Culver for the

second offense, it was too late – Culver had already violated the terms of

the bail for which Seneca had provided the surety. Because it did not file a

petition to vacate at the time of the second arrest, Seneca was still

responsible for its bail bond in the first case when the court released Culver

upon the posting of a higher bond by Evergreen in the second case, with or

without knowledge of such arrest and/or bail posting.

        Seneca’s argument cites only cases that require notice to a surety

where there has been a material modification in the terms of its bond. See

Seneca’s Brief, pp. 8-10.    These fact patterns are readily distinguishable.

The $100,000.00 bond Evergreen provided following Culver’s subsequent

arrest was not an alteration of the first bond provided by Seneca.

Evergreen’s bond was instead a completely separate bond on a different

case. As such, Culver’s arrest on new charges, and Evergreen’s subsequent

bond on those charges, did not discharge Seneca’s original $25,000.00

bond.

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2015




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