Com. v. Rijo-Henriquez, Y.

J-A20019-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
YUNEY RIJO-HENRIQUEZ; SURETY: :
FINANCIAL CASUALTY AND SURETY, :
INC. : No. 1256 MDA 2022
:
Appellant :

Appeal from the Order Entered August 12, 2022
In the Court of Common Pleas of Berks County
Criminal Division at CP-06-CR-0001931-2020

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 19, 2023

Financial Casualty and Surety, Inc. (Appellant), which provided a bail

bond for Yuney Rijo-Henriquez (Defendant), appeals from the order denying

its petition to vacate bail forfeiture and exonerate surety. After careful review,

we affirm.

The trial court summarized the relevant background as follows:

Defendant was arrested on March 13, 2020, on charges
related to an alleged conspiracy and potential delivery of a large
quantity of fentanyl. … Bail was set … in the amount of $200,000,
secured. On March 17, 2020, bail was posted by [Appellant]. …
On October 10, 2020, a new and separate complaint for charges
of fleeing and eluding police … was filed against the Defendant and
the bail set at $250,000 secured in that matter. The Defendant
was taken into custody when he was not able to post bail on the
second set of charges and committed to Berks County Jail System
____________________________________________

* Former Justice specially assigned to the Superior Court.
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(“BCJS”). On Tuesday, October 22, 2020, [Appellant] brought a
bail piece[1] in [the original case] before the sitting emergency
motions judge … for signature.[2] … [Appellant] indicated on its
request for bail piece that the sole reason was the Defendant’s
failure to remain arrest free. On Friday, October 23, 2020, [the
judge] issued an order scheduling a bail piece hearing on Monday,
October 26, 2020 ….

On October 26, 2020, the Defendant was brought before the
court for two different proceedings. First, a bail reduction petition
in [the second case] was heard. The bail in that case was reduced
to $25,000 secured, and the Defendant remained in the custody
of the [BCJS] on that matter. Second, in the above-captioned
docket, the bail piece hearing was held. At that time, the bail
piece of [Appellant] was dissolved.[3] Ethan Klein was present at
the hearing on behalf of [Appellant]. He requested [Appellant] be
____________________________________________

1 “A bail piece is a warrant from the court that gives authority to a surety, or

other authorized person, to apprehend the Defendant and bring him before
the Court for an alleged violation of the bail.” Trial Court Opinion, 10/21/22,
at 4.

2 Pa.R.Crim.P. 536(B) provides “a surety or bail agency may apply to the court

for a bail piece,” and “[i]f the court is satisfied that a bail piece is required, it
may issue a bail piece authorizing the surety or bail agency to apprehend and
detain the defendant, and to bring the defendant before the bail authority
without unnecessary delay.” Here, the trial court signed the bail piece
authorizing Appellant

to apprehend and detain the defendant … wherever the defendant
may be found[] and bring the defendant without unnecessary
delay before a Judge of the Court of Common Pleas at the Berks
County Courthouse, Reading, Pennsylvania, to be further dealt
with according to law, and for such purposes this shall be your
sufficient warrant. The Surety shall inform the District Attorney’s
Office of the need to place the Defendant on the Jail List for the
next available court business day so that a hearing can be held.

Bail Piece, 10/22/20.

3 “The bail piece was dissolved by [the] court because the [D]efendant was

already in custody, albeit on other charges, and had been brought before the
court.” Trial Court Opinion, 10/21/22, at 5.

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removed from the bail. The motion was specifically denied. …
The [dissolution] order indicated that there was no motion
before the court for any change of bail, and that any implied
motion was a nullity and therefore denied. The dissolution
order specifically indicated the court would entertain
motions for changes to the bail or for release as surety
should they be filed through counsel. The Defendant posted
bail on the newly filed charges and he remained free in the
community pending disposition of his charges. No motion was
filed by [Appellant], or through counsel as directed, to be
removed as surety on the Defendant’s bail in this docket. The
District Attorney’s office also did not seek any bail modification or
revocation.

After a series of continuances and back up trial dates, on
November 9, 2021, the Defendant’s case was set for a primary
trial to occur on December 9, 2021. Subsequently, at the request
of counsel for the Defendant, a date was requested prior to the
trial date for a guilty plea and sentence. The date for a guilty plea
and sentencing was set for December 7, 2021. When the
Defendant failed to appear, a bench warrant was requested,
authorized, and ultimately issued on December 8, 2021. On
December 17, 2021, a notice of intention to forfeit the bail was
generated and served on [Appellant]. On March 4, 2022, counsel
for [Appellant] filed the petition to vacate bail forfeiture and
exonerate surety. Hearings on the petition of [Appellant] were
held on June 2, 2022 and August 3, 2022. The motion was denied
on August 12, 2022.

Trial Court Opinion, 10/21/22, at 2-4 (footnotes and emphasis added; original

footnotes and some capitalization omitted).4

Appellant filed a timely notice of appeal and court-ordered concise

statement pursuant to Pa.R.A.P. 1925(b). Appellant presents the following

question for review:

____________________________________________

4 Berks County indicated that Defendant had not been apprehended at the
time it filed its brief. Appellee’s Brief at 11.

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Did the trial court err in granting full forfeiture of the $200,000.00
bail after [Appellant] obtained a bail piece and requested to be
relieved of its bail obligation while the [D]efendant in the
underlying case was still in custody on charges in a new case?

Appellant’s Brief at 4 (some capitalization omitted).

Appellant argues it “is inconsequential that [D]efendant was

incarcerated” on the second set of charges when Appellant obtained the bail

piece. Id. at 12. Appellant emphasizes its prompt attainment of the bail piece

to prevent Defendant’s release. Id. at 14, 17. Appellant claims that by

obtaining the bail piece, it “insured the [D]efendant’s [c]ourt appearance

regardless of what could have transpired in the second case.” Id. at 12-13.

Appellant acknowledges Defendant willfully breached the bail conditions. Id.

at 16. However, Appellant maintains the trial court did not properly consider

its efforts to keep the Defendant incarcerated after his arrest in the second

case. Id. at 17. Appellant concludes the trial court abused its discretion in

denying Appellant relief while Defendant was in custody. Id. at 18.

We adhere to the following standard of review:

The decision to allow or deny a remission of bail forfeiture lies with
the sound discretion of the trial court. Trial courts unquestionably
have the authority to order the forfeiture of bail upon the breach
or violation of any condition of the bail bond. In bond forfeiture
cases, an abuse of that discretion or authority will only be found
if the aggrieved party demonstrates that the trial court misapplied
the law, exercised its judgment in a manifestly unreasonable
manner, or acted on the basis of bias, partiality, or ill-will. To the
extent the aggrieved party alleges an error of law, this Court will
correct that error and our scope of review in doing so is plenary.

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In re Hann, 111 A.3d 757, 760 (Pa. Super. 2015) (citations, quotation marks,

and brackets omitted).

Pennsylvania Rule of Criminal Procedure 536(A) provides for forfeiture

as a sanction for violation of bail:

(2) Forfeiture

(a) 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. When the surety is a third party, the
cash or other security may be ordered forfeited only when
the condition of the bail bond violated is that the defendant
has failed to appear for a scheduled court proceeding.

(b) Written notice of the forfeiture shall be given to the
defendant and any surety, either personally or by both first
class and certified mail at the defendant’s and the surety’s
last known addresses.

(c) The forfeiture shall not be executed until 90 days after
notice of the forfeiture order.

(d) The bail authority may direct that a forfeiture be
set aside or remitted as provided by law or if justice
does not require the full enforcement of the forfeiture
order.

(e) When a magisterial district judge orders bail forfeited
pursuant to this rule, the magisterial district judge shall
generate a check in the amount of the bail monies he or she
has on deposit in the case, and shall send the check and a
copy of the docket transcript to the clerk of courts for
processing and disbursement as provided by law.

Pa.R.Crim.P. 536(A)(2) (emphasis added).

Rule 536 further provides:

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(C) Exoneration

(1) A bail authority, as provided by law or as justice requires,
shall exonerate a surety who deposits cash in the amount of
any forfeiture ordered or who surrenders the defendant in a
timely manner.

(2) When the conditions of the bail bond have been satisfied,
or the forfeiture has been set aside or remitted, the bail
authority shall exonerate the obligors and release any bail.

Pa.R.C.P. 536(C).5

Under Rule 536(A)(2)(a), the Commonwealth may petition for forfeiture

when the defendant breaches a condition of release. See Commonwealth

v. Hann, 81 A.3d 57, 71 (Pa. 2013). The court has discretion to order

forfeiture and provide written notice to the defendant and his surety. Id. The

forfeiture may not be executed before 20 days have passed. Id. After

receiving notice, the defendant or his surety may oppose forfeiture, and

“[o]nly then may the court direct that a forfeiture be set aside or remitted if

justice does not require the full enforcement of the order.” Id. (citation and

quotation marks omitted).

Accordingly, in a case where the Commonwealth has sought
forfeiture, and the defendant or his surety opposes it, a hearing
should be held. At the hearing, the Commonwealth has the
burden of proving the conditions to bail forfeiture as aforesaid,
upon which the burden will shift to the defendant or his surety to
justify full or partial remission of bail forfeiture.

____________________________________________

5 Rule 536 also permits revocation as a sanction for violating bail. As the trial
court observed, the District Attorney did not seek revocation in this case. Trial
Court Opinion, 10/21/22, at 3.

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Id. at 71-72. Again, the Commonwealth did not pursue forfeiture in this case.

Rule 536(A)(2)(d) provides that a court may set aside or remit bail

forfeiture “if justice does not require the full enforcement of the forfeiture

order.” Historically, Pennsylvania courts relied on considerations expounded

by the United States District Court for the Western District of Pennsylvania:

When the 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.

Commonwealth v. Mayfield, 827 A.2d 462, 468 (Pa. Super. 2003) (citing

United States v. Ciotti, 579 F. Supp. 276, 278 (W.D.Pa. 1984)).

In 2013, our Supreme Court rejected a strict application of the Mayfield

factors. Hann, 81 A.3d at 66. The Court reviewed practices in other

jurisdictions and concluded the language of Rule 536(A)(2)(d) “implicates a

case-by-case analysis of when forfeiture is or is not proper, and whether that

forfeiture should be for the full sum of the bail or some reduced amount.” Id.

at 67. The Court referenced the “non-exclusive list” of factors identified by

the New Jersey Supreme Court:

(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

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suffered as a result of the breach; (8) the appropriateness of the
amount of the recognizance of bail; and (9) the cost,
inconvenience, prejudicial or potential prejudice suffered by the
[s]tate 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 (citing State v. Korecky, 777 A.2d 927, 934-35 (N.J. 2001)).

The Supreme Court instructed “that courts should look to these as well as

other factors as justice dictates on a case-by-case basis, understanding that

the parameters of each will be applied differently to each individual forfeiture

proceeding.” Id. at 68.

Instantly, the trial court addressed the Mayfield factors and stated it

had also considered the factors set forth in Hann. See Trial Court Opinion,

10/21/22, at 7-14. The trial court addressed the willfulness of Defendant’s

breach, stating:

The purpose of bail is to assure the Defendant’s appearance
in court, while being an amount that is potentially able to be
posted for the Defendant to allow the Defendant to remain in the
community in keeping with the presumption of innocence, while
still acknowledging the seriousness of the charge before the court
and community protection. As the main purpose of bail is to
assure court appearances, the failure to appear in court as
required is a serious violation of bail. The Defendant, through
[Appellant], posted bond on March 17, 2020. While this docket
was pending, the [D]efendant was arrested on additional (and
unrelated) charges. After posting bail in the second case, after
the modification on October 26, 2020, the Defendant continued to
appear as required in this docket. The Defendant set his case for
a primary trial set to occur on December 9, 2021. Within a week
of the scheduled trial date, the Defendant met with his attorney
in his office, on November 30, 2021, and determined the best
course of action was to enter a guilty plea. The paperwork was
prepared, and the case was set for a plea on December 7, 2021.
The Defendant failed to appear for the plea at which time a bench

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warrant was issued. The Defendant has not yet been
apprehended. Even giving the Defendant the benefit of the doubt
that perhaps he was unaware of the December 7, 2021 date, as
no scheduling order was issued, he still ultimately failed to appear
at the December 9, 2021 date that had been set for trial; a date
for which he had been provided a scheduling order. The
Defendant has not yet been apprehended on the bench warrant
that was issued for his failure to appear. Absent any justifiable
excuse, the [D]efendant’s failure to appear was willful.

Id. at 8-9.

The trial court next considered the cost, inconvenience, and prejudice

suffered by the government, recognizing that Appellant

alleges a deficiency as to testimony as to this prong. The assigned
district attorney and [D]efendant’s trial counsel gave testimony at
the hearing about the circumstances of the Defendant’s case
leading up to the issuance of the bench warrant. As the
[D]efendant was a fugitive, no trial was able to occur as scheduled
on December 9, 2021. 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 may
not be substantial. A financial detriment is not required under the
rule, as courts have applied the second prong of the forfeiture
framework … as factors the trial court must consider, not
conjunctive elements the Commonwealth must prove. The
Mayfield and Hann framework are factors to be considered but
are not a required checklist.

The Defendant failed to appear at his guilty plea[,] which
was set two days prior to trial at the request of his attorney. Had
the guilty plea not occurred for reasons beyond the failure to
appear, the trial of the Defendant would have occurred as
scheduled. … The Commonwealth prepared its case for trial on
December 9, 2021, which would include issuing subpoenas for
witnesses, although the witnesses were released upon the
authorization for the bench warrant.

The allegations against the Defendant are of the most
serious nature. Specifically, he was alleged to have committed a
conspiracy to deliver and then the delivery of approximately 100
grams of fentanyl, and other related charges under the Drug,

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Device and Cosmetic Act, along with receiving stolen property (a
gun). The high dollar amount of the bail is proportional to the
seriousness of his charges and in [an] amount that should have
assured his appearance, as even posting a portion should be a
significant expense for an average defendant. There is an
intangible element of injury to the public interest in almost any
case where a defendant deliberately breaches a condition of his
bail bond. The Commonwealth was prejudiced by [Defendant’s]
disappearance, which has delayed the disposition of his underlying
charges as he remains at large.

Id. at 9-10 (citations omitted).

In discussing any relevant explanation or mitigating factors, the trial

court opined:

It should be noted that [Appellant] is a commercial
bondsman. Courts have uniformly held that a surety’s status as
a bondsman tends to lead in favor of forfeiture. Hann, [81 A.3d
at 69; see also id. (“In making the business decision of whether
to take a bail bond, it is not unreasonable to conclude that a
bondsman should have been fully cognizant of his responsibilities
and the consequences of a defendant’s breach of the conditions of
the bond.” (citation, quotation marks and brackets omitted)]. The
driving force behind a surety’s provision of a bond is the profit
motive. This is the basis for the burden being placed on the
aggrieved party, the bondsman, to show that the court misapplied
the law, exercise manifestly unreasonable judgment, or acted on
the basis of bias, partiality, or ill-will to that party’s detriment on
appellate review.

[Appellant] asserts that its actions within the first ninety
(90) days to ascertain the whereabouts of [Defendant] were done
promptly and in good faith as required by 42 Pa.C.S.A. [§] 5747.1,
and therefore the forfeiture and remittal should be set aside. In
support of their position, [Appellant] presented testimony that
they attempted to be removed from the Defendant’s bail by the
filing of the bail piece on October 22, 2020, before the emergency
motions judge, after the Defendant was arrested on fleeing and
eluding charges. As previously discussed, the bail piece was
dissolved six days later, on October 26, 2020, with the issue of
removal of the surety addressed. The request to be removed from
the bail was denied on the record and again addressed specifically

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in the Dissolution Order. The [c]ourt communicated to
[Appellant] that it needed to file a motion through counsel
asking to be removed as surety. No further action was
taken by [Appellant] to be removed from the bail. There
was no further attempt to remove [Appellant] as surety,
only the request for a bail piece.

At the first hearing on [Appellant’s] motion, on June 2,
2022, Ms. Sheila Smith indicated the belief of [Appellant] that the
Defendant immediately absconded on October 27, 2020, following
the posting of the bail in the second matter and shortly after the
dissolution of the bail piece by the court. This was an unsuccessful
attempt to shift the responsibility for the Defendant’s appearance
(or lack thereof) on the [c]ourt or the District Attorney’s Office.
Additionally, contrary to Ms. Smith’s testimony, court records
indicate the Defendant had approximately a full year of proper
court attendance before his failure to appear and the issuance of
the warrant. There was testimony from the Defendant’s attorney,
Mr. Nigrini, that there was no contact from [Appellant], that he
recalls, from the time he filed the bail motion in the second case
until after the bench warrant was issued. This was not
contradicted by [Appellant]. This establishes the lack of the
extent of the bondman’s supervision of the Defendant considering
the large amount of the surety posted.

Further, the court file includes the preliminary arraignment
form of the Magisterial District Judge…. This form indicates the
Defendant was twenty-seven (27) years old, was not a U.S. citizen
(although he was a permanent resident)[] and had only part-time
employment (outside of Berks County) to support his family that
included six children. Further, the Clerk of Courts file reveals a
“pretrial defendant assessment,” dated March 13, 2020 (four days
prior to bail being posted by [Appellant]), … which indicated the
Defendant was from the Dominican Republic and had resided
there for twenty-four (24) years. This establishes significant ties
to his home country, and fairly recent immigration, which is
information [Appellant] should have been aware of when making
its determination of risk in posting the high amount of bail.
Further, [Appellant] did not present any testimony that they
attempted to secure [Defendant’s] passport as a condition of their
agency in posting the bail. There is no support for claims that the
Commonwealth’s failure to file modification or revocation of the
bail of the [D]efendant, or the court’s failure to impose a higher
bail (or in this case, the decision to reduce bail in a second

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docket), mitigates a surety’s duty to fully investigate a
defendant’s background before issuing a bail bond.

This is not to say that [Appellant] made no effort to find
their client following his failure to appear. [Appellant] presented
testimony from Mr. Mikhaeil, a bounty recovery agent, that he had
been given the case file for the Defendant on December 7, 2021,
which was the date of the [D]efendant’s failure to appear. This
was prompt action by [Appellant]. The bounty recovery agent met
with the Defendant’s “wife” who indicated that the last time she
heard from him was on November 30, 2021, or perhaps early
December, and that she believed he went to the Dominican
Republic. Although he could not give the name of the person to
whom he spoke, the bounty recovery agent indicated that he
placed a call to the warrants division of the Sheriff’s department
indicating that he had information that the Defendant was in the
Dominican Republic. He also further indicated that in mid-
December of 2021, he came to see the “DEA” detective from this
case and the arresting officer in the Defendant’s second case to
give them this information as well. The Defendant’s attorney in
this case, Mr. Nigrini, also indicated that after the bench warrant
was issued for the Defendant, Ms. Smith[, on behalf of Appellant,]
contacted him with the information provided by Defendant’s wife
that he had absconded to the Dominican Republic.

Id. at 10-13 (some citations and quotation marks omitted).

Finally, the trial court concluded:

Absent any justifiable excuse, the [D]efendant’s failure to
appear was willful. The question here is not whether [Appellant]
made any effort to recover [Defendant], but whether their efforts
had a substantial impact on his return. The efforts of [Appellant,]
while done promptly in response to the failure to appear[,] have
not had any impact on the [D]efendant’s apprehension or return,
as he remains at large. The Commonwealth was prejudiced by
[Defendant’s] disappearance, which delayed the disposition of his
underlying charges. It is no defense to the forfeiture of bail
given for an absconding defendant that the surety applied
for a bail piece. The Defendant was in custody on another
matter. [Appellant] made no further effort to file a motion
to be removed from the Defendant’s bail despite specific
direction from the court. As previously noted, this court
specifically prompted [Appellant] to file a proper motion upon the

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dissolution of the bail piece if they wished to be removed from the
[D]efendant’s bail. Accordingly, there is a deterrence value to the
forfeiture[, for Appellant] to be aware of court orders issued
prompting a process[,] even when they view such as a “non-
preferred” method. [Appellant], a commercial surety, took a
calculated business risk when it agreed to post bail for a defendant
with ties out of the country. Having applied the factors delineated
in Mayfield and in consideration of the additional factors of Hann,
justice requires full enforcement of the forfeiture order in this
matter.

Id. at 13-14 (emphasis added; paragraph break omitted).

We discern no abuse of the trial court’s discretion. The record reflects

the trial court considered the totality of the circumstances in reaching its

conclusion that justice required full forfeiture. See Hann, 81 A.3d at 67.

To the extent Appellant argues its efforts in seeking the bail piece should

be considered part of the “explanation and mitigating factors” prong of

Mayfield, this argument is unavailing. Following remand from the Supreme

Court in Hann, this Court observed “that ‘mitigating factors’ 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, 111 A.3d at 762-63 (emphasis

added). Appellant cannot shift blame to the trial court for reducing the amount

of bail in the Defendant’s second case.

Accordingly, we affirm the trial court’s denial of Appellant’s petition to

vacate bail forfeiture and exonerate surety.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 09/19/2023

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