J-A28038-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSEPH WOODROW MCCAIN

APPEAL OF: ALEXANDER A. 

YAROSHENKO

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 654 EDA 2023

Appeal from the Order Entered February 9, 2023

In the Court of Common Pleas of Pike County Criminal Division at No(s): 

CP-52-CR-0000701-2016

BEFORE: OLSON, J., STABILE, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED DECEMBER 1, 2023

Appellant, Alexander A. Yaroshenko of the Sun Surety Insurance 

Company, appeals an order of the Court of Common Pleas of Pike County that 

denied his motion for remission of bond estreature and granted the 

Commonwealth’s motion to deny remission of forfeited bail payments. As this 

case remains pending for argument, we remand for the transcription of the 

relevant notes of testimony. 

Appellant acted as a bail agent for defendant Joseph Woodrow McCain

in a criminal case in which McCain was charged with rape and related offenses. 

Certification of Bail and Discharge, 12/5/16, 1. A bench warrant was issued 

for McCain after he failed to appear for a scheduled arraignment on March 2, 

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* Retired Senior Judge assigned to the Superior Court.
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2017. Order, 3/2/17, 1. A second bench warrant was issued after McCain 

failed to appear for scheduled jury selection on November 3, 2017. Order, 

11/3/17, 1. On November 13, 2017, the Commonwealth filed a motion to 

revoke and forfeit bail which at that time had been in the amount of 

$100,000.00 posted by Appellant. Motion to Revoke, 11/13/17, ¶ 3. On 

November 16, 2017, the court granted the revocation and forfeiture motion. 

Order, 11/16/17, 1. 

On December 1, 2017, the lower court granted defendant McCain’s oral 

motion to reinstate bail and increased his bail amount to $150,000.00. Order, 

12/1/17, ¶ 2. Appellant continued to act as bail agent for McCain following 

the increase. Certification of Bail and Discharge, 1/22/18, 1. A third bench 

warrant was issued for McCain after he failed to appear for jury selection on 

January 3, 2020. Order, 1/3/20, 1. On May 11, 2020, the Commonwealth 

filed a second motion to revoke and forfeit bail. On May 12, 2020, the lower 

court granted the second revocation and forfeiture motion. Order, 5/12/20, 

1.

On November 20, 2020, Appellant filed a motion to request a partial 

payment schedule on the forfeited funds. The lower court denied that motion 

without prejudice and granted Appellant leave to file an amended petition. 

Order, 12/28/20, 1. The parties later entered a joint stipulation which agreed 

that Appellant would make an initial payment of $75,000.00 of the forfeited 

bail funds, to be followed by seven monthly installment payments of 

$10,000.00 and a $5,000.00 final payment on September 1, 2021. Motion for 
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Hearing, 1/7/21, attached Exhibit A, Stipulation, 1/7/21. The lower court 

approved the stipulation on February 11, 2021. Order, 2/11/21, 1.

On January 31, 2022, Appellant filed a motion for remission of bond 

estreature in which he acknowledged the payment of $125,000.00 toward the 

$150,000.00 of forfeited bail and sought remission of $100,000.00 of the 

payments pursuant to 42 Pa.C.S. § 5747.1(b)(5), minus unspecified costs for 

transporting defendant McCain back to the Commonwealth. First Bond 

Estreature Motion, 1/31/22, ¶¶ 3, 8-10. On March 3, 2022, the 

Commonwealth filed a motion to deny remission of the forfeited payments. 

On March 24, 2022, the lower court denied Appellant’s bond estreature 

motion, ruled that the Commonwealth’s remission denial motion was moot, 

and vacated a scheduled hearing on the opposing motions. Order, 3/24/22, 

1.

On June 23, 2022, Appellant filed a second bond estreature motion in 

which he sought remission of $62,500.00 of the $125,000.00 in forfeited bail 

payments, minus the cost of transporting defendant McCain back to the 

Commonwealth. Second Bond Estreature Motion, 6/23/22, ¶¶ 3, 8. On June 

26, 2022, the Commonwealth filed a responsive motion to deny remission of 

the forfeited bail payments. A hearing on the opposing motions was continued 

until November 3, 2022. See Commonwealth v. Gaines, 74 A.3d 1047, 

1051 (Pa. Super. 2013) (“if a refund of forfeited monies is requested by a 

surety, the court is obligated to hold a hearing and consider the equities of 

the claim”); Commonwealth v. Nolan, 432 A.2d 616, 618 (Pa. Super. 1981) 
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(hearing required on bail bondsman’s request for remittance of forfeited 

money). On February 9, 2023, the lower court issued an order denying 

Appellant’s second bond estreature motion and granting the Commonwealth’s 

remission denial motion. Order, 2/9/23, 1-3. The court ruled that Appellant 

was barred from any right of remission pursuant to 42 Pa.C.S. § 5743(b)(3) 

based on his failure to pay the forfeited bail within 91 days of the forfeiture 

order. Id. at 2.

Appellant timely filed a notice of appeal.1 Notice of Appeal, 3/8/23, 1. 

He attached to the notice a request for a transcript that did not specify any 

dates for the proceedings before the lower court. Notice of Appeal, 3/8/23, 

attached Request for Transcript, 3/8/23, 1 (“the official court reporter is 

hereby ordered to produce and file the transcript in this matter in conformity 

with Rule 1922 of the Pennsylvania Rules of Appellate Procedure”). This 

matter is currently scheduled for argument before the instant panel on 

December 14, 2023.

The relevant proceedings for transcription for purposes of this appeal 

would consist of the hearing scheduled on November 3, 2022, and any 

proceedings that transpired on the date that the lower court issued its final 

order on February 9, 2023. The record certified for this appeal does not 

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1 We note that Appellant also timely filed a court-ordered concise statement 

of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Rule 

1925(a) Order, 3/9/23, 1; Rule 1925(b) Statement, 3/28/23, 1-3.
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presently contain any notes of testimony for those dates.2 On September 11, 

2023, the Commonwealth filed a motion to dismiss this appeal due to

Appellant’s failure to ensure that necessary transcripts were included in the 

certified record. Application to Dismiss, 9/11/23, 1-3. To date, Appellant has 

not filed a response to the Commonwealth’s motion to dismiss. On October 

10, 2023, the dismissal motion was deferred to the instant argument panel. 

Per Curiam Order, 10/10/23, 1.

While Appellant did request a transcript with his notice of appeal, we 

can only assume that the relevant proceedings below were not transcribed 

based on Appellant’s failure to specify which transcript he was requesting. The 

absence of any relevant transcripts thwarts our ability to meaningfully address 

any arguments that the parties would make at the pending argument session. 

However, because counsel did submit a request for a transcript and we “may 

take such actions as [we] deem[ ] appropriate” in this situation, we decline to 

outright dismiss the appeal. Pa.R.A.P. 1911(d). Instead, we direct the lower 

court to order the transcription of the proceedings on November 3, 2022, and 

February 9, 2023, within thirty days. Once the proceedings have been 

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2 The certified record only contains notes of testimony for proceedings on 

February 11, 2021, and July 9, 2021, neither of which are directly relevant to 

the order on appeal. On the former date, the lower court accepted the parties’ 

stipulation concerning their agreed-upon repayment schedule for the forfeited 

bail. N.T. 2/11/21, 3. On the latter date, the court presided over an 

arraignment of defendant McCain on a bench warrant in his underlying 

criminal matter. N.T. 7/9/21, 1.
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transcribed, the lower court should submit the transcripts as a supplemental 

record pursuant to Pa.R.A.P. 1926(b)(1).

We will strike the existing briefs as neither party had access to a 

complete certified record at the time of their drafting. Upon the filing of the 

new notes of testimony, Appellant will have thirty days to file an Appellant’s 

brief addressing the substance of the new notes of testimony. We further 

direct Appellant’s counsel to file a letter with the brief indicating whether oral 

argument will be requested. The Commonwealth will then have thirty days 

from the filing and service of Appellant’s brief to file an Appellee’s brief. 

Given our remand for transcription, we deny the Commonwealth’s 

motion to dismiss. Further, we remove the above-captioned matter from the 

December 14, 2023 argument list without prejudice to the Appellant’s right to 

request oral argument following the supplementation of the certified record. 

Case remanded. Briefs stricken. Case removed from argument list. 

Lower court directed to order within thirty days of this memorandum the 

transcription of any notes of testimony for any proceedings for this matter 

that occurred on November 3, 2022, and February 9, 2023. The lower court 

should thereafter transmit the ordered notes of testimony to this Court. 

Appellant to file a brief within thirty days of the new notes of testimony being 

filed. Appellant is directed to file, contemporaneously with the Appellant’s 

brief, a document indicating whether Appellant requests oral argument. 

Commonwealth to have thirty days from the filing of Appellant’s brief to file 
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an Appellee’s brief. Commonwealth’s motion to dismiss this appeal is denied. 

Jurisdiction retained. 

Judge Stabile joins this memorandum.

Judge Olson concurs in the result.