Argued Nov. 27, 2012.
Appeal from the order of the Superior Court No. 968
MDA 2011 dated February 1, 2012, Reversing and Remanding the order of the
Fulton County Court of Common Pleas, Criminal Division, at No.
CP-29-MD-0000015-2011 dated May 3, 2011. Appeal allowed August 6, 2012 at
156 MAL 2012. Trial Court Judge: Angela R. Krom, Judge. Intermediate Court
Judges: Jack A. Panella, Paula Francisco Ott, William Platt, JJ.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Travis Logan Kendall, Esq., Fulton County District Attorney's Office, for Commonwealth of Pennsylvania.
Clinton T. Barkdoll, Esq., Kulla, Barkdoll, Ullman and Painter, P.C., Nicholas John Wachinski, Esq., Drexel Hill, for Paul Weachter.
Robert B. Hoffman, Esq., Eckert Seamans Cherin & Mellott, LLC, Harrisburg, for American Bail Coalition.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
This Court granted the Commonwealth's petition for allowance of appeal in this matter to determine whether the Superior Court erred in reversing a trial court's bail forfeiture order. For the reasons that follow, we vacate the order of the Superior Court and remand for proceedings consistent with this opinion.
The facts of this appeal are not in dispute. 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' statement, Trooper Gary Ford filed a criminal complaint against Hann, 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 Appellee, Paul Weachter, a professional and licensed bail bondsman, for bail to be posted to secure Hann's release. As part of his 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.
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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.
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AOPC Form 414A1-10, Bail Bond, dated Feb. 19, 2011, found at Reproduced Record (R.R.) 2a. 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." Id.
For his part, Appellee 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." AOPC Form 414A5-06, Surety Information Page, dated Feb. 19, 2011, found at R.R. 4a. Appellee also signed the bail bond. Hann was accordingly released from the Franklin County Prison.
The following day, Trooper Ford was dispatched to Souders' 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.
On March 1, 2011, the Commonwealth filed a petition for bail forfeiture, pursuant to Pa. R.Crim.P. 536(A)(2)(a), which provides:
When 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 and shall state in writing or on the record the reasons for so doing.
The Commonwealth contended that, by murdering Souders and killing himself, Hann violated the above-stated conditions of his bail bond and, therefore, Appellee and his surety were subject to forfeiture of the bail. Appellee opposed the petition, citing Rule 536(A)(2)(d), which permits a forfeiture order to be " set aside or remitted if justice does not require the full enforcement" of the order. Appellee cited to a three-part test, originally established by the United States District Court for the Western District of Pennsylvania and since heavily utilized by the Superior Court in considering whether justice does not require full enforcement of the forfeiture order:
When a defendant breaches a bail bond, without a justifiable excuse, and the government is prejudiced in any manner, the forfeiture should be enforced unless justice requires otherwise. When considering whether or not justice requires the enforcement of a forfeiture, a court must look at several factors, including: 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.
United States v. Ciotti,
579 F.Supp. 276
quoted in, e.g.,
Commonwealth v. Mayfield,
827 A.2d 462
Appellee contended that the second Ciotti / Mayfield prong requires a monetary expense or cost to the Commonwealth to be associated with Hann's breach of his bail bond conditions, and that the Commonwealth could not assert such a cost. Indeed, the Commonwealth admitted that " Ricky Hann killing Tina Souders was the cheapest thing that could happen for the Commonwealth in this case" because all prosecution was now foreclosed. Notes of Testimony, Bail Forfeiture Hearing (N.T.), Apr. 19, 2011 at 61-62. The Commonwealth contended, however, that it suffered inconvenience and prejudice by not being able to prosecute Hann, and thus forfeiture remained proper. Id.
After taking the matter under advisement, the trial court on May 2, 2011, issued a written opinion granting the Commonwealth's petition for full forfeiture of the bail. Accepting that Hann unquestionably violated the conditions of bail, the court proceeded to examine the case under the three Ciotti/ Mayfield prongs to determine whether justice required enforcement of the forfeiture order. First, in the court's view, there was little doubt that Hann willfully violated the conditions by driving to Souders' house, taking her by force into the wooded area behind her house, and shooting her twice with a sawed-off shotgun. Second, the trial court disagreed with Appellee that the Commonwealth was required to exhibit a financial cost associated with Hann's violation of the terms of his bail bond. The court held that while ...