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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JUSTIN LAMAR CULVER AND SENECA 

INSURANCE COMPANY

APPEAL OF: SENECA INSURANCE 

COMPANY

Appellant No. 1765 EDA 2014

Appeal from the Order May 21, 2014

In the Court of Common Pleas of Pike County

Criminal Division at No(s): CP-52-CR-0000062-2007

____________________________________________________________

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JUSTIN LAMAR CULVER AND EVERGREEN 

NATIONAL INDEMNITY COMPANY

APPEAL OF: EVERGREEN NATIONAL 

INDEMNITY COMPANY

Appellant No. 1766 EDA 2014

Appeal from the Order May 21, 2014

In the Court of Common Pleas of Pike County

Criminal Division at No(s): CP-52-CR-0000119-2007

BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED APRIL 13, 2015
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Appellants Seneca Insurance Company (“Seneca”) and Evergreen 

National Indemnity Company (“Evergreen”) appeal from the order of the 

Pike County Court of Common Pleas denying their petitions to vacate 

forfeiture of bail and exonerate surety. After careful review, we affirm.

The facts and procedural posture underlying this matter are as follows. 

On February 2, 2007, police charged Justin Culver (“Culver”) with one count 

each of burglary, criminal trespass, criminal mischief, and attempt to commit 

theft by unlawful taking.1 On February 9, 2007, Seneca posted Culver’s 

$25,000.00 bail. The Magisterial District Court bound the charges over to 

the Court of Common Pleas at Docket No. CP-52-CR-0000062-2007. 

Thereafter, on March 26, 2007, police charged Culver in a new criminal 

complaint with false imprisonment, terroristic threats, simple assault, and 

harassment.2 The Magisterial District Judge set Culver’s bail in this second 

case at $100,000.00, and bound the matter over to the Court of Common 

Pleas at Docket No. CP-52-CR-0000119-2007. On June 14, 2007, Evergreen 

posted Culver’s $100,000.00 bail at Docket No. CP-52-CR-0000119-2007. 

Culver was released from custody but remained subject to the bail conditions 

set at each docket number.

____________________________________________

1 18 Pa.C.S. §§ 5502(a), 3304(a)(5), 3503(a)(1)(ii), and 901(a), 

respectively.

2 18 Pa.C.S. §§ 2903(a), 2706(a)(1), 2701(a)(1), and 2709(a)(1), 

respectively.
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On September 10, 2007, police arrested and charged Culver with 

second-degree murder, two counts of robbery, burglary, conspiracy to 

commit robbery, conspiracy to commit burglary, firearms not to be carried 

without a license, and possession of firearm prohibited, stemming from a 

home invasion perpetrated on August 24, 2007.3 The Magisterial District 

Court bound these charges over to the Court of Common Pleas at Docket No. 

CR-0000298-2007. On September 11, 2007, upon oral motion of the 

Commonwealth, the trial court revoked Culver’s bail at Docket Nos. CP-52-

CR-0000062-2007 and CR-0000119-2007. 

On March 18, 2009, a jury convicted Culver of second-degree murder, 

conspiracy, and the other charges at Docket No. CP-52-CR-0000298-2007.4 

On March 19, 2009, the trial court granted a Commonwealth motion for 

forfeiture of Culver’s bail at Docket Nos. CP-52-CR-0000062-2007 and CP52-CR-0000119-2007. 

On November 12, 2009, a jury convicted Culver of all the charges at 

Docket No. CP-52-CR-0000062-2007, Seneca’s matter.5 On November 16, 

____________________________________________

3 18 Pa.C.S. §§ 2502(b), 3701, 3502(a), 903, 903, 6106(a)(1), and 

6105(a)(1), respectively.

4

In addition to the sentences imposed for the other convictions at Docket 

No. CP-52-CR-0000298-2007, Culver received a life sentence for the 

second-degree murder conviction.

5 The trial court eventually sentenced Culver to an aggregate sentence of 3 

to 10 years’ incarceration for his convictions at Docket No. CP-52-CR0000062-2007.
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2009, the Commonwealth nolle prossed the charges at Docket No. CP-52-

CR-0000119-2007, Evergreen’s matter.

Both Evergreen and Seneca filed petitions to vacate forfeiture of bail 

and exonerate surety, which the trial court denied on October 21, 2010. 

Evergreen and Seneca filed notices of appeal on November 3, 2010, and 

November 5, 2010, respectively. A panel of this Court reviewed both 

appeals and determined that the trial court had abused its discretion and 

misinterpreted the law by refusing to set aside the forfeitures and to release 

the sureties. The Commonwealth filed an application for reargument with 

this Court, which we granted. The cases were then consolidated for 

reargument before this Court en banc.

On en banc review, this Court determined that the trial court had 

misapplied the Ciotti6/Mayfield7test for bail forfeitures,8and reversed the 

trial court. The Commonwealth filed a petition for allowance of appeal to our 

Supreme Court.

____________________________________________

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

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

8 At the time of the en banc hearing, Pennsylvania courts followed the 

Ciotti/Mayfield test. This test required that courts consider three factors in 

forfeiture actions: (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. Mayfield, 827 A.2d at 468.
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On October 30, 2013, during the pendency of the Commonwealth’s 

petition for allowance of appeal, the Supreme Court of Pennsylvania decided 

Commonwealth v. Hann, 81 A.3d 57 (Pa.2013), which abandoned the 

Ciotti/Mayfield test in favor of a new set of factors courts should consider 

to determine whether justice requires the enforcement of a forfeiture order 

under Pa.R.Crim.P. 536(A)(2)(d). On December 19, 2013, the Supreme 

Court granted the Commonwealth’s petition for allowance of appeal, vacated 

this Court’s en banc decision, and remanded the matter to the Pike County 

Court of Common Pleas for a new forfeiture hearing in accordance with 

Hann. See Commonwealth v. Culver, 82 A.3d 429 (Pa.2013). 

The trial court conducted the new forfeiture hearing on April 24, 2014, 

and denied Evergreen’s and Seneca’s petitions to vacate and exonerate on 

May 21, 2014. Seneca filed a notice of appeal on June 12, 2014. Evergreen 

filed a notice of appeal on June 18, 2014. Seneca, Evergreen, and the trial 

court complied with Pa.R.A.P. 1925. This Court consolidated the matters per 

Pa.R.A.P. 513.

Seneca raises the following two claims for review:

I. Whether Seneca was discharged when Culver was arrested for 

a new crime and admitted to increased bail without notice to

Seneca and without Seneca’s consent?

II. Whether the [t]rial [c]ourt abused its discretion in failing to 

remit the bail forfeiture previously ordered in light of the 

mitigating factors presented by Seneca at the hearing held on 

Seneca’s petition to remit bail failure?

Seneca’s Brief, p. 4.
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Evergreen raises the following claim for review:

I. Whether the [t]rial [c]ourt abused its discretion in failing to 

remit the bail forfeiture previously ordered in light of the 

mitigating factors presented by Evergreen [] at the hearing held 

on Evergreen’s petition to remit bail failure?

Evergreen’s Brief, p. 4.

This Court’s standard of review in cases involving remittance of bail 

forfeiture is well-established:

The decision to allow or deny a remittance of bail forfeiture lies 

within the sound discretion of the trial court. Accordingly, an 

appellate court’s review is limited to a determination of whether 

the court abused its discretion in refusing to vacate the 

underlying forfeiture order. To establish such an abuse, the 

aggrieved party must show that the court misapplied the law, 

exercised manifestly unreasonable judgment, or acted on the 

basis of bias, partiality, or ill-will to that party’s detriment. If a 

trial court erred in its application of the law, an appellate court 

will correct the error. The scope of review on questions of law is 

plenary.

Commonwealth v. Gaines, 74 A.3d 1047, 1050 (Pa.Super.2013), 

reargument denied (Oct. 1, 2013), appeal denied, 89 A.3d 1283 (Pa.2014).

Both Seneca and Evergreen claim that the trial court abused its 

discretion by not remitting their sureties. See Seneca’s Brief, pp. 11-13; 

Evergreen’s Brief, pp. 9-14. These claims lack merit.

Regarding forfeiture of a bail bond, this Court has explained:

Upon a defendant’s violation of any bail condition, under 

Pennsylvania law[,] the bail may be subject to forfeiture. 

Pa.R.Crim.P. 536. After forfeiture, the money deposited to 

secure the defendant’s appearance or compliance with the 

conditions of the bail bond technically becomes the property of 

the county. Pa.R.Crim.P. 536(A)(2)(e). However, the bail bond 
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remains subject to exoneration, set-aside, or remittance by the 

court. See Pa.R.Crim.P. 536(C). A forfeiture, once declared by 

the court, may be set aside or remitted as justice requires. 

Pa.R.Crim.P. 536(A)(2)(d). Equitable principles apply when a 

court is faced with the decision whether to modify or remit a 

forfeiture.

Gaines, 74 A.3d at 1050-51 (some citations omitted).

In Hann, supra, the Supreme Court of Pennsylvania discarded the 

Ciotti/Mayfield test. The Court instead stated that, when considering 

whether justice requires the enforcement of a forfeiture order under 

Pa.R.Crim.P. 536(A)(2)(d), a court should consider several factors, including 

the following:

(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 

suffered as a result of the breach; (8) the appropriateness of the 

amount of the recognizance of bail; and (9) the cost, 

inconvenience, prejudice or potential prejudice suffered by the 

State as a result of the breach.

Hann, 81 A.3d at 67-68. The Supreme Court explained, however, that the 

“list is not exhaustive, and trial courts may consider other factors as 

interests of justice require.” Id. at 68. Further, Hann does not require trial 

courts to discuss each of the enumerated factors in detail; the enumerated 

factors are only some potentially relevant considerations. See id. at 67 

(emphasizing that “forfeiture decisions should be based upon an examination 
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of the totality of the circumstances presented in the individual case, and no 

one point or factor should be talismanic in making that determination”).

At a forfeiture hearing, the Commonwealth maintains the initial burden 

to prove, by a preponderance of the evidence, (1) that a defendant breached 

a condition of a bail bond,9and (2) that a surety had agreed to be bound by 

the bail bond. Hann, 81 A.3d at 71-72. Once the Commonwealth proves 

the above, the burden shifts to the defendant or the surety to prove, also by 

a preponderance of the evidence, that the forfeiture is not warranted. Id.

____________________________________________

9

In addition to the possible imposition of further monetary and nonmonetary conditions pursuant to Pa.R.Crim.P. 527 & 528, all Pennsylvania 

criminal bail bonds require the released defendant to:

(1) appear at all times required until full and final disposition of 

the case;

(2) obey all further orders of the bail authority;

(3) give written notice to the bail authority, the clerk of courts, 

the district attorney, and the court bail agency or other 

designated court bail officer, of any change of address within 48 

hours of the date of the change;

(4) neither do, nor cause to be done, nor permit to be done on 

his or her behalf, any act 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; and

(5) refrain from criminal activity.

Pa.R.Crim.P. 526(A) (emphasis provided).
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Initially, we note that Seneca and Evergreen framed their claims in 

terms of alleged “mitigating factors”10 they claim to have presented at the 

April 24, 2014 forfeiture hearing. See Seneca’s Brief, Statement of 

Questions Involved, p. 4; Evergreen’s Brief, Statement of Question Involved, 

p. 4. However, as this Court recently explained, “[w]hen read in context, it 

____________________________________________

10 Seneca claims the following as “mitigating factors”:

- No notice to Seneca when Culver was arrested in [Evergreen’s 

case] and Culver was permitted to post bond in the amount of 

$100,000.00 (four times the bond amount in Seneca’s case to 

reflect the risk Culver would not respect the conditions of his 

new bail [)];

- No costs incurred in the apprehension of Culver for the 

second offense [(Evergreen case)];

- No notice to Seneca after Culver was arrested in the 

[Evergreen case] although he was on release per Seneca’s 

bail in the Burglary Case;

- No costs incurred in the apprehension of Culver for the third

offense (Homicide Case);

- Lion’s share of the cost incurred in the Homicide Case was for 

the stranger to the bail bond, namely [co-defendant] Maurice 

Keeys;

- Most of the Keeys’ costs in the Homicide Case were not costs 

of prosecution but defense costs required for indigent defense 

of capital cases; and 

- Culver was not a fugitive when he committed new crimes.

Seneca’s Brief, pp. 12-13. Likewise, as its “mitigating factors”, Evergreen 

argued that a bondsman is not a guarantor against criminal conduct, 

forwarded a questionable deterrence argument, and noted that the 

Commonwealth ultimately nolle prossed the Evergreen charges. See

Evergreen’s Brief, pp. 11-14.
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is evident that the ‘mitigating factors’ [discussed in Hann] 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, --- A.3d ---, 2015 WL 904622 *5 

(Pa.Super. March 4, 2015). Seneca and Evergreen’s alleged “mitigating 

factors” miss the point. Seneca and Evergreen did not present “mitigating 

factors” as contemplated by Hann, meaning explanations of Culver’s 

conduct in violating the terms of his bail bonds. Instead, they presented 

their argument on the Hann factors as “mitigating factors” to explain their 

conduct, i.e., the conduct of the surety and why the results only minimally 

prejudiced the Commonwealth.

In its order denying Seneca and Evergreen’s petitions, the trial court 

explained how it weighed the Hann factors as follows:

Clearly, the commission of the crimes of [m]urder, 

[r]obbery, [b]urglary, etc., violate the terms of the [d]efendant’s 

bail which require [d]efendant to obey the law while released on 

bail. Therefore, the Commonwealth has met its burden of 

demonstrating the breach of the [d]efendant’s bail conditions. 

The burden of proof thus shifts to the Sureties to present 

evidence justifying full or partial remission of the forfeiture.

Based upon all the evidence presented it is clear that each 

Surety is a commercial bondsman. As a commercial bondsman 

each Surety is in the profit making business of providing bail to 

defendants, overseeing their activity while out on bail and trying 

to insure their compliance with the bail orders.

Further, based upon the evidence presented, there was 

little indication of supervision of the [d]efendant other than the 

representative from the Surety indicat[ing] that they had 

telephone contact with the [d]efendant. There was no indication 

of any rules of bail imposed by the Surety to require [d]efendant 
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to report any arrest to them and no indication of any meeting 

with the [d]efendant or any research done by the Surety to 

insure compliance.

Certainly, the breach of the bail conditions was clearly 

willful since it involved a voluntary burglary of a home and the 

murder of the homeowner who attempted to defend his home 

and daughter.

No evidence of any mitigating factor of any type was 

presented by the Defendant or Surety.

Certainly, there is a deterrence value of forfeiture under 

these circumstances. Defendant was arrested for serious 

charges just one and one half months after Seneca posted the 

bail in this case. No effort was made by Seneca to investigate 

any actions of the [d]efendant nor to require the [d]efendant to 

meet with and report such arrests or other criminal activity. Five 

months later the [d]efendant participated in the 

robbery/burglary offence that resulted in the murder of an 

innocent party. Since bail by Seneca was $25,000 for the 

original felony charges of [b]urglary, etc., clearly the 

Commonwealth recognized the serious risk posed by the 

[d]efendant. However, the evidence presented at the hearing 

clearly indicates that neither Surety undertook any significant 

effort to oversee or supervise the [d]efendant while on bail. The 

deterrence value of forfeiture under such circumstances remains 

high.

Certainly[,] the seriousness of the violation could not be 

higher since the last violation involved murder, robbery and 

burglary.

Further, the amount of bail set in these matters was 

clearly appropriate. In the first felonies, bail was set at $25,000. 

Given the serious nature of the offenses, the age and actions of 

the [d]efendant, the bail posted by Seneca was clearly justified. 

In addition, the second set of charges filed just shortly after the 

first set certainly required an increase in the bail. Therefore, 

$100,000 was justified given the [d]efendant’s actions. 

Certainly, the Sureties were aware of the amount of bail and 

should have been aware of the [d]efendant’s past and current 

actions and they chose to issue that bail.

Forfeiture will make a small step to vindicate the injury to 

the public interest suffered in this matter. While nothing can 
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alleviate the injury created by this murder, full forfeiture is the 

only way for the [c]ourt to vindicate the public interest and to 

attempt to insure that Sureties shall oversee and attempt to 

control the actions of defendants out on bail.

The Commonwealth has presented certain evidence of the 

costs related to the [d]efendant’s breach of conditions. These 

costs included the cost of the trial for murder, the costs 

associated with the defense of a codefendant of the [defendant], 

[and] the time and effort involved in such a prosecution. While 

these costs are not directly attributable just to the [defendant], 

they are certainly related to his actions. These actual monetary 

costs exceed the amount of bail forfeited in this matter. These 

costs do not address the loss of life and the extensive effort 

these trials required.

Trial Court Order, May 21, 2014, pp. 4-6. Ultimately, the trial court 

concluded:

Based upon all the evidence presented and the factors for this 

[c]ourt to consider, the [c]ourt finds that Suret[ies] Seneca and 

Evergreen have failed to prove any factor set forth in [Hann]. 

Certainly, the evidence presented is nowhere near the 

preponderance of evidence required by applicable law.

Id. at 6.

A review of the forfeiture hearing transcript reveals that the trial court 

did not abuse its discretion in denying the petitions. See N.T. 4/24/2014, 

Seneca R.R. 24-51, Evergreen R.R. 47-74. The transcript supports the trial 

court’s conclusions as to the Hann factors. At the forfeiture hearing, Seneca 

and Evergreen’s bail bondsmen testified that the sureties paid the bail bond 

and then performed very little monitoring of Culver. In short, the evidence 

revealed that, in pursuit of profit, Seneca and Evergreen took calculated 

business risks; they gambled on Culver’s compliance with his bail 
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conditions11 and lost. We find no abuse of discretion in the trial court’s 

denial of Seneca’s and Evergreen’s petitions to remit the bail forfeiture.12

In its second claim, Seneca argues that because “the Commonwealth 

decided not to seek forfeiture and to waive the violation of Seneca’s bail 

bond upon Culver’s new arrest, Seneca was denied the opportunity to 

surrender Culver and/or revoke its bond. Consequently, Seneca was 

discharged as a matter of law.” See Seneca’s Brief, p. 7. This claim also 

lacks merit. 

Initially, any onus to supervise a bailed defendant is on the surety who 

stands to profit from the bail bond it provides, not the Commonwealth or the 

trial court. See Hann, 81 A.3d at 69-70 (citing Rochelle Bail Agency, 

Inc. v. Maryland Nat. Ins. Co., 484 F.2d 877, 878-79 (7th Cir. 1973) to 

note that, while a surety does not indemnify an absolute guarantee of a 

defendant’s compliance with bail bond conditions, he may have a duty to 

exercise some minimal supervision over the defendant to accomplish 

compliance). Additionally, Seneca cites no authority to support its 

suggestion that the Commonwealth must notify sureties of the arrest of their 

____________________________________________

11 Specifically, that he refrain from criminal activity. See Pa.R.Crim.P. 

526(A)(5).

12 That the Commonwealth ultimately nolle prossed the charges for which 

Evergreen had provided its surety is of no moment. The Commonwealth’s 

decision to nolle prosse the charges does not retroactively cure Culver’s 

violation of the terms and conditions of his bail for which Evergreen provided 

the surety.
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own bailees, and this Court is unaware of any statute or jurisprudence 

requiring the trial court or the Commonwealth to monitor a surety’s bailee 

on its behalf.

Seneca had no excuse for not knowing about the arrest of its own 

bailee. Upon Culver’s second arrest, Seneca could have filed a petition to 

vacate its bond. It did not. Further, once police arrested Culver for the 

second offense, it was too late – Culver had already violated the terms of 

the bail for which Seneca had provided the surety. Because it did not file a 

petition to vacate at the time of the second arrest, Seneca was still 

responsible for its bail bond in the first case when the court released Culver 

upon the posting of a higher bond by Evergreen in the second case, with or 

without knowledge of such arrest and/or bail posting. 

Seneca’s argument cites only cases that require notice to a surety 

where there has been a material modification in the terms of its bond. See

Seneca’s Brief, pp. 8-10. These fact patterns are readily distinguishable. 

The $100,000.00 bond Evergreen provided following Culver’s subsequent 

arrest was not an alteration of the first bond provided by Seneca. 

Evergreen’s bond was instead a completely separate bond on a different 

case. As such, Culver’s arrest on new charges, and Evergreen’s subsequent 

bond on those charges, did not discharge Seneca’s original $25,000.00 

bond.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/13/2015