Com. v. Speedwell, A. ( 2021 )

J-S08039-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ADRIAN LANIER SPEEDWELL :
:
: No. 1222 MDA 2020
APPEAL OF: FINANCIAL CASUALTY :
AND SURETY, INC., AND CARTER :
THOMAS MCCUE :
Appeal from the Order Entered September 9, 2020
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0003125-2019
BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 14, 2021
Financial Casualty and Surety, Inc. (“Financial Casualty”), and Carter
Thomas McCue (“Bondsman McCue”) (collectively “Appellants”) appeal from
the order entered in the Court of Common Pleas of Cumberland County
denying their “Motion to Vacate Bail Forfeiture and Exonerate Surety”
pursuant to 42 Pa.C.S.A. § 5747.1. After a careful review, we affirm.
The relevant facts and procedural history are as follows: Adrian Lanier
Speedwell (“Defendant Speedwell”) was arrested and charged with one count
of possession with the intent to deliver a controlled substance, 35 P.S. § 780-
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* Former Justice specially assigned to the Superior Court.
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113(a)(30), and one count of conspiracy, 18 Pa.C.S.A. § 903. On October 8,
2019, Bondsman McCue, who is a professional and licensed bondsman, posted
a surety bond in the amount of $50,000.00 for Defendant Speedwell’s bail.
Financial Casualty issued the surety bond.
On January 23, 2020, Defendant Speedwell appeared for
arraignment before the Honorable Edward Guido, and he
requested a continuance so that his attorney could be present at
the time of arraignment.
Judge Guido granted the request and issued an order on
January 23, 2020, continuing the arraignment as requested, but
continuing it in error to January 28, 2020. Defendant [Speedwell]
had requested that the next court date not be set for January 28[,
2020], as he had another court date in Philadelphia on the same
date. Accordingly, Judge Guido dictated on the record that the
next court date for arraignment, of which Defendant [Speedwell]
had notice, would be on February 11, 2020, at 9:30 a.m. See
Notes of Transcript of Arraignment, January 23, 2020.
Apparently, the court reporter typed the incorrect date into the
order that was filed of record.
On January 28, 2020, not being aware of the error in the
appearance date as set forth above, Jude [sic] Guido issued a
bench warrant for Defendant [Speedwell’s] arrest and forfeited
the bail.
On January 29, 2020, Judge Guido apparently became
aware of the error and issued an order the same date vacating the
bench warrant, reinstating bail, and specifically stating that the
“bench warrant was improvidently issued.” Judge Guido further
issued an amending order on the same day to reflect that
Defendant [Speedwell’s] arraignment was continued to Tuesday,
February 11, 2020, at 9:30 a.m., rather than January 28, 2020.
Defendant [Speedwell] did not fail to appear at
arraignment.[1]
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1 The record reveals Appellant signed an acknowledgement of arraignment
which, inter alia, directed him to appear on March 3, 2020, for a pre-trial
conference. The acknowledgment of arraignment was filed in the trial court
on February 11, 2020.
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***
On March 5, 2020, [the trial court] issued a bench warrant
and forfeited bail for Defendant [Speedwell’s] failure to appear for
a pre-trial conference.
On March 13, 2020, the Clerk of Court issued a notice of
revocation and intent to forfeit bail to Bondsman McCue, Financial
Casualty…, and Defendant Speedwell for his failure to appear at
the pre-trial conference. Bondsman McCue and a representative
from Financial Casualty signed the certified mail for same
thereafter.
On July 9, 2020, the Clerk of Court mailed a quarterly
statement noticing that any unpaid bail forfeitures that remained
unpaid 30 days after the date of the statement (here March 13,
2020) shall result in suspension of the bondsman’s ability to
conduct business in the county.
Trial Court Order, filed 9/9/2020, at 1-2 (paragraph numbers omitted)
(footnote added).
On August 4, 2020, Appellants filed a “Motion to Vacate Bail Forfeiture
and Exonerate Surety.” Therein, Appellants indicated the following:
[Appellants] are responsible for the bail in the above-
captioned criminal matter. Bondsman McCue is the posting agent.
He was duly licensed and authorized to serve in that capacity.
[Appellants] posted a bond in the amount of $50,000.00
with the Cumberland County Court of Common Pleas on behalf of
Defendant [Speedwell].
On January 28, 2020, [Defendant] Speedwell failed to
appear for arraignment. As a result, a bench warrant was issued
and bail forfeited pursuant to a court order.
On January 29, 2020, bail was reinstated pursuant to a
subsequent order.
Bondsman McCue was not notified and did not consent to
the reinstatement.
Per Title 42 Pa.C.S.A. Judiciary and Judicial Procedure,
Section 5747.1, no bail can be reinstated without the written
consent of the bail bondsman.
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***
Bail in the instant matter was reinstated without the consent
required by law.
[Appellants] aver that bail forfeiture in the instant matter
deprives them of property in a manner that violates the due
process protections set forth in the Constitutions of the United
States of America and the Commonwealth of Pennsylvania.
WHEREFORE: [Appellants] ask that bail forfeiture be vacated and
the bond exonerated.
Appellants’ Motion, filed 8/4/20, at 1-2 (paragraph numbers omitted).
Moreover, in the affidavit attached to the motion, Bondsman McCue
averred he “received a bail forfeiture notice via first class mail postmarked
02/25/2020, due to [Defendant Speedwell] missing arraignment in court on
date 01/28/2020.” McCue Affidavit, dated 7/27/20. He also averred that “[i]n
the same envelope…[he] received notice that the county of Cumberland
reinstated [Defendant Speedwell’s] bail on 01/29/2020 without [Bondsman
McCue’s] written permission as required by Title 42, Section 5747.1,
subsection (b)(2).” Id. He noted he never appeared in any court proceeding
or gave consent in any other manner for the bail to be reinstated. Id.
On September 9, 2020, the trial court filed an order denying Appellants’
“Motion to Vacate Bail Forfeiture and Exonerate Surety” under Section
5747.1.2 On September 23, 2020, Appellants filed a notice of appeal, as well
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2 In addition to the “Motion to Vacate Bail Forfeiture and Exonerate Surety,”
Appellants filed an emergency petition to make payments on the bail
forfeiture. On September 10, 2020, the trial court entered an order granting
Appellants permission to make payments in lieu of paying the lump sum of
$50,000.00.
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as a Pa.R.A.P. 1925(b) statement. On November 5, 2020, the trial court filed
a Rule 1925(a) opinion in further support of its September 9, 2020, order.
Appellants set forth the following issues in their “Statement of Questions
Presented”:
A. Is the court permitted to deviate from the requirement to notify
bondsman and surety when reinstating bail as set forth in Title
42 Chapter 57 “Bonds and Recognizances”[?]
B. Did the court’s denial [of] Appellants’ motion violate Due
Process rights under the constitutions of the United States of
America and the Commonwealth of Pennsylvania?
Appellants’ Brief at 4.
In their first issue, Appellants aver that, after the trial court ordered
Defendant Speedwell’s bail forfeited on January 28, 2020, the trial court erred
in reinstating the bail on January 29, 2020, without the written consent of
Bondsman McCue as is required by the plain and explicit language of 42
Pa.C.S.A. § 5747.1(b).
Initially, we note that Appellants’ issue involves statutory interpretation.
Statutory interpretation is a question of law. Commonwealth v. Hall, 622
Pa. 396, 80 A.3d 1204, 1211 (2013). Therefore, our standard of review is de
novo, and our scope of review is plenary. Id.As our Supreme Court has held:
In all matters involving statutory interpretation, we apply the
Statutory Construction Act, 1 Pa.C.S.[A.] §§ 1501 et seq., which
directs us to ascertain and effectuate the intent of the General
Assembly. 1 Pa.C.S.[A.] § 1921(a). To accomplish that goal, we
interpret statutory language not in isolation, but with reference to
the context in which it appears. A statute’s plain language
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generally provides the best indication of legislative intent. See
Penna. Fin. Responsibility Assigned Claims Plan v. English,
541 Pa. 424, 664 A.2d 84, 87 (1995) (“Where the words of a
statute are clear and free from ambiguity the legislative intent is
to be gleaned from those very words.”). Only where the words of
a statute are ambiguous will we resort to other considerations to
discern legislative intent. 1 Pa.C.S.[A.] § 1921(c)[.]
Commonwealth v. Kingston, 636 Pa. 438, 143 A.3d 917, 922 (2016)
(citations omitted).
The statute at issue, 42 Pa.C.S.A. § 5747.1,3 provides, in relevant part,
the following:
§ 5747.1. Forfeited undertaking
(a) General rule.--If a defendant in a criminal prosecution fails
to appear for any scheduled court proceeding, the defendant’s bail
may be revoked and notice of revocation shall serve as notice of
intent to forfeit the bail of the defendant. The notice or order of
revocation shall be served by the office of the clerk to the
defendant, surety or bail bondsman and insurer who has issued
the qualifying power of attorney for the bail bondsman by certified
mail, return receipt requested.
(b) Payment.--The following shall apply:
(1) Ninety days from the date of the service of the notice of
revocation or order of revocation, the revocation shall become a
judgment of forfeiture, payment of which shall be immediately
required by the defendant or surety. Failure of a bail bondsman
to make a timely payment of a forfeiture judgment shall result in
the district attorney or county solicitor commencing proceedings
to suspend or nonrenew the license of the bail bondsman
otherwise consistent with section 5746 (relating to suspension or
revocation of authority to conduct business in a county).
(2) Payment of forfeited undertaking shall be made directly to the
office of the clerk not later than the close of business on the 91st
day following the service of the notice of revocation. If the
defendant has been recovered and placed into custody through
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3 42 Pa.C.S.A. § 5747.1 became effective on October 30, 2015.
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the efforts of the bail bondsman or proof has been provided to the
court that the defendant was discovered by the bail bondsman to
be in custody in another jurisdiction prior to the 91st day, no
payment of the forfeited undertaking shall be required. If the
defendant is placed into custody or discovered to be in custody,
the court shall set aside the bail revocation and may release the
defendant with the reinstitution of bail pursuant to the
Pennsylvania Rules of Criminal Procedure. The bail bondsman
shall not be continued by the court as surety on reinstated bail
unless a written consent is signed by the bail bondsman agreeing
to such extension of suretyship.
42 Pa.C.S.A. § 5747.1 (a), (b)(1) and (2).
In the case sub judice, the trial court initially entered a bench warrant,
as well as forfeited bail, on January 28, 2020, because the trial court believed,
albeit mistakenly, that Defendant Speedwell had failed to appear for a
scheduled court proceeding (his arraignment). Upon discovering its error, on
January 29, 2020, the trial court vacated the bench warrant as improvidently
issued and reinstated bail.
Given this situation, namely that Defendant Speedwell did not fail to
appear at his arraignment and his bail was initially forfeited due to a court
error, the trial court reasoned that it was not obligated to secure the written
consent of Bondsman McCue to continue to hold him as surety on the
reinstated bail. See Trial Court Opinion, filed 11/5/20, at 1. Specifically, the
trial court reasoned that the written consent provision of Section 5747.1(b)(2)
was not “triggered.” Id.
In this vein, the trial court indicated the following:
[W]e find that because [Defendant Speedwell] did in fact
appear at arraignment and did not violate his bail conditions, the
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requirement to obtain a bondsman’s consent to continue the
suretyship was not triggered. The initial order forfeiting
[Defendant Speedwell’s] bail…lack[ed] statutory authority for
forfeiture in the first instance given that the defendant was in
compliance with bail conditions and not lawfully subject to
forfeiture. The order issued the very next day vacating the bench
warrant as having been improvidently issued evidences this fact.
Trial Court Opinion, filed 11/5/20, at 1 (citation omitted).
We agree with the trial court’s sound reasoning. The plain language of
Section 5747.1(a) indicates that the statute applies where “a defendant in a
criminal prosecution fails to appear for any scheduled court proceeding[.]” 42
Pa.C.S.A. § 5747.1(a). Here, the trial court found Defendant Speedwell did
not fail to appear at his arraignment.
Simply put, the plain language of the statute does not contemplate that
the trial court must secure the written consent of the bail bondsman in order
to continue suretyship where the initial forfeiture of bail was due to a court
error. See Kingston, supra (discussing rules of statutory interpretation). As
the trial court astutely acknowledged, “To conclude otherwise would create an
absurd result where a defendant who did not violate the conditions of his
bail…is nonetheless subject to the reaffirmed consent of the bondsman by no
error of his own.” Trial Court Opinion, filed 11/5/20, at 1. Accordingly, we
find no merit to Appellants’ contention that the trial court violated Section
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5747.1 in reinstating Defendant Speedwell’s bail and continuing Appellants’
surety without written consent on January 29, 2020.4
In their next issue, Appellants contend the trial court’s denial of their
“Motion to Vacate Bail Forfeiture and Exonerate Surety” violated their due
process rights under the United States and Pennsylvania Constitutions.
Specifically, they contend they will be unconstitutionally deprived of their
property ($50,000.00) since the trial court improperly reinstated Defendant
Speedwell’s bail without Bondsman McCue’s written consent as required by
Section 5747.1.
In this vein, they argue:
The money Appellants must pay is their property. It was
earned as proceeds from legitimate business operations here in
the Commonwealth of Pennsylvania. Appellants were entitled to
the process set forth in [Section 5747.1]; the requirement and
option to give their consent for a reinstated bail. They have been
denied that process.
Appellants’ Brief at 10.
As is evident, Appellants’ due process claim is premised upon their first
argument, i.e., that the trial court violated Section 5747.1 when it reinstated
Defendant Speedwell’s bail on January 29, 2020, without written consent from
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4We further find that, since the trial court properly reinstated bail on January
29, 2020, there is no merit to Appellants’ argument that bail was not validly
posted when Defendant Speedwell failed to appear at his pre-trial conference.
Accordingly, the March 5, 2020, forfeiture of bail is not a legal nullity as alleged
by Appellants.
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Bondsman McCue. However, inasmuch as we have found no merit to
Appellants’ first argument, we likewise find no merit to their due process
claim.
For all of the foregoing reasons, we affirm.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/14/2021
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