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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ROBERT KANE, : No. 803 EDA 2016
:
Appellant :
Appeal from the Order, February 12, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0006611-2015
BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 25, 2017
Robert Kane appeals the February 12, 2016 order of the Court of
Common Pleas of Philadelphia County that granted the Commonwealth’s
motion to revoke appellant’s bail.
The trial court provided the following factual and procedural history:
Appellant . . . appeals this Court’s judgment
regarding the revocation of his bail in connection
with his charges for Rape by Forcible Compulsion,
18 Pa.C.S.A. § 3121(a)(1), Involuntary Deviate
Sexual Intercourse (IDSI) by Forcible Compulsion,
18 Pa.C.S.A. § 3123(a)(1), Aggravated Indecent
Assault Without Consent, 18 Pa.C.S.A. § 3125(a)(1),
Unlawful Contact with a Minor – Sexual Offenses,
18 Pa.C.S.A. § 6318(a)(1), Endangering Welfare of
Children, 18 Pa.C.S.A. § 4304(a)(1), Corruption of
Minors, 18 Pa.C.S.A. § 6301(a)(1)(i), Indecent
Assault Person Less than 13 Years of Age,
18 Pa.C.S.A. § 3126(a)(7), Indecent Exposure,
18 Pa.C.S.A. § 3127(a), and Simple Assault – Victim
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under 12, Defendant 18 or Older, 18 Pa.C.S.A.
§ 2701(b)(2). . . . .
PROCEDURAL HISTORY
. . . . On June 29, 2015, the Honorable Judge James
Lynn raised [a]ppellant’s bail to $800,000. On
February 12, 2016, this Court granted the
Commonwealth’s motion to revoke [a]ppellant’s bail.
Appellant filed a timely notice of appeal on March 14,
2016. On March 16, 2016, this Court ordered
[a]ppellant pursuant to Pa.R.A.P. 1925(b) to file with
the Court a Concise Statement of Matters
Complained of on Appeal. On April 4, 2016,
[a]ppellant filed a Statement of Errors Complained of
on Appeal. . . .
....
FACTS
On June 29, 2015, the Honorable Judge James
Lynn raised [a]ppellant’s bail to $800,000 at a
preliminary hearing. The Commonwealth provides
allegations that include that [a]ppellant first sexually
abused Complainant when she was six years old and
continued until she turned ten. [Appellant] orally,
vaginally and anally raped her. Appellant put his
mouth on Complainant’s vagina, put his fingers
inside her vagina, forced her to perform oral sex on
him and put his penis in her anus. He also would
touch her breasts and show her a picture of a naked
female teenager he claimed was her older sister. At
the preliminary hearing, Complainant, now an
eleven-year-old girl, testified in detail to the abuse
she incurred from [a]ppellant. Additionally, other
family members, specifically Complainant’s cousin,
reported inappropriate sexual comments directed at
her from [a]ppellant. Once the assigned detective
went to [a]ppellant’s home, he encountered
[a]ppellant and children present in their house in
their underwear. On February 12, 2016, this Court
heard the Commonwealth’s motion to revoke bail.
Appellant argued that he has no prior record and
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requested house arrest and GPS. The
Commonwealth asserted that because the charged
crimes are alleged to have happened in the home,
there is no way that electric monitoring would be
able to resolve the issue of safety. This Court
subsequently granted the Commonwealth’s motion to
revoke [a]ppellant’s bail.
Trial court opinion, 12/21/16 at 1-3 (citations to record omitted).
Before this court, appellant raises the following issue for our review:
“Did the [trial] court err in revoking appellant’s bail without any evidence
that appellant was a danger to society pursuant to Article I Section 14 of the
Pennsylvania Constitution, except for the present charge?” (Appellant’s brief
at 3 (capitalization omitted).)
On January 4, 2017, this court issued an order that directed appellant
to show cause within ten days of the date of the order why his appeal should
not be quashed as interlocutory. On January 17, 2017, appellant responded
and stated that he had not appealed a final order but had appealed a bail
revocation which should be treated as a petition for review of a decision of a
governmental unit under Chapter 15 of the Pennsylvania Rules of Appellate
Procedure and should not be quashed.
An order relating to bail is subject to review pursuant
to Chapter 15 of the Pennsylvania Rules of Appellate
Procedure. Pa.R.A.P. 1762(b)(2); Commonwealth
v. Heiser, 330 Pa.Super. 70, 478 A.2d 1355, 1356
n.1 (1984). If an appeal is taken improvidently from
an order of a government unit, the papers related to
that appeal shall be regarded and acted upon as a
petition for review. Pa.R.A.P. 1503. Any court of the
unified judicial system of the Commonwealth is
considered a “government unit.” Pa.R.A.P. 102.
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Commonwealth v. Jones, 899 A.2d 353, 354 n.1 (Pa.Super. 2006).
As in Jones, appellant filed a notice of appeal from an order regarding
his bail, here the revocation of bail. We will regard the appeal as a petition
for review pursuant to Chapter 15 of the Pennsylvania Rules of Appellate
Procedure.
Appellant contends that the trial court erred when it revoked his bail
because there was no evidence that he posed a danger to society other than
the current charges.
This court’s standard of review in bail cases is whether the trial court
abused its discretion. This court will only reverse if the trial court did not
properly apply the law, the judgment rendered is manifestly unreasonable,
or the decision is the result of partiality, bias, or ill will. Commonwealth v.
Bishop, 829 A.2d 1170, 1172 (Pa.Super. 2003).
Article 1, Section 14 of the Pennsylvania Constitution provides:
All prisoners shall be bailable by sufficient sureties,
unless for capital offenses or for offenses for which
the maximum sentence is life imprisonment or
unless no condition or combination of conditions
other than imprisonment will reasonably assure the
safety of any person and the community when the
proof is evident or presumption great; and the
privilege of the writ of habeas corpus shall not be
suspended, unless when in case of rebellion or
invasion the public safety may require it.
Pa.Const. Art. 1 § 14.
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First, appellant asserts that the trial court abused its discretion when it
granted the Commonwealth’s motion after the Commonwealth’s attorney
incorrectly stated that appellant was still living in the home of the alleged
victim, his stepdaughter. Appellant asserts that he was living with his
mother. However, when a detective visited appellant’s home, he found
appellant and several children present in their underwear.
(Commonwealth’s “Motion to Revoke Bail under Seection [sic] 14 of Article I
of the Pennsylvania Constitution,” 2/11/16 at 2, ¶4.) The trial court
reasoned that house arrest or a GPS device would not assure the safety of
any individual who set foot in appellant’s home. (Trial court opinion,
12/21/16 at 4.) That would be true whether appellant was living at his
residence or with his mother. On this point, this court finds no abuse of
discretion.
Similarly, appellant asserts that the trial court abused its discretion
when it revoked bail. Appellant argues that because he has no prior record,
there is no independent evidence of abuse other than the victim’s testimony,
and he could be placed under house arrest at his mother’s residence, there
was no need to revoke bail.
In its opinion, the trial court explained:
So in addition to the safety of Complainant, the
safety of society was properly considered in this
Court’s decision.
Additionally, this Court considered the strength
of the Commonwealth’s case and prior bail increase
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of [a]ppellant. The Commonwealth provided a
wealth of evidence at the preliminary hearing by way
of Complainant’s testimony. Complainant was able
to provide a detailed description of the abuse that
occurred. Following this evidence, Judge Lynn raised
[a]ppellant’s bail to $800,000. The nature and
seriousness of the offense and the strength of the
case against [a]ppellant raises a flight risk concern.
Although [a]ppellant had no prior record, there was
sufficient evidence to deem [a]ppellant as a danger
to society. Therefore, since there is no combination
of circumstances which could protect the community
and guarantee [a]ppellant’s appearance at trial, this
Court was proper when it granted the
Commonwealth’s motion to revoke bail.
Id. at 4.
Based on this reasoning, this court finds that the trial court did not
abuse its discretion when it granted the motion to revoke bail.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2017
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