Com. v. Palmer, D.

• Court: Superior Court of Pennsylvania
• Decided: February 24, 2025
• Docket: 94 WDM 2024
• Status: Unpublished

Opinion

J-M06007-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DEJOUR PALMER : : Petitioner : No. 94 WDM 2024

Appeal from the Order Dated November 13, 2024 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0005096-2024

BEFORE: SULLIVAN, J., LANE, J., and BENDER, P.J.E.

MEMORANDUM BY SULLIVAN, J.: FILED: FEBRUARY 24, 2025

Petitioner, Dejour Palmer (“Palmer”), filed a Petition for Specialized

Review” pursuant to Pa.R.A.P. 1610 (“Petition”), which denied his petition to

modify the non-monetary conditions of bail. Upon review, we affirm.

The underlying facts in the criminal complaint allege that on May 14,

2024, while Palmer was driving his mother’s car, police officers conducted a

vehicle stop, and after discovering Palmer in possession of marijuana, police

obtained a search warrant and upon execution of the warrant recovered a gun

from the glove compartment. The gun is allegedly registered to Palmer’s

girlfriend. Police arrested Palmer and charged him with carrying a firearm

without a license, persons not to possess a firearm, possession of marijuana,

and various Vehicle Code violations.

District magistrate Lisa Caufield denied bail. On May 21,2024 Judge

Elliott C. Howsie conducted a bail review hearing at which time Erin Spicuzza J-M06007-24

(“Ms. Spicuzza”) of the Pretrial Services Unit noted Palmer had serious medical

issues requiring treatment and requested electronic home monitoring (“EHM”)

and medical “windows” to allow Palmer to receive that treatment. See N.T.,

5/21/24, at 2. Ms. Spicuzza also noted Palmer had a previous firearms

conviction in 2017. Id. Assistant District Attorney Carey (“ADA Carey)

concurred with Ms. Spicuzza and noted that this subsequent gun related arrest

raised community safety concerns. See id. at 4. Per the request of counsel,

the court granted Palmer non-monetary bail with EHM and “windows” for

medical treatment and/or work (“if he is working”). See id. at 4-5.

In November 2024, Palmer filed an omnibus pretrial motion that

included a petition to modify his non-monetary bail with EHM conditions to

unsecured bail with no conditions, citing his medical condition and

employment schedule. On November 13, 2024 Judge Edward J. Borkowski

held a hearing on this second request to modify Palmer’s non-monetary bail.

During the hearing Ms. Spicuzza testified Palmer purported to make multiple

visits to the emergency room (“ER”) while on EHM for sickle cell anemia

treatment but when asked to provide documentation he failed to provide it.

See N.T., 11/13/24, at 2, 5. She also testified that Palmer’s ankle bracelet

had been removed with dull scissors or torn apart, which required the assigned

probation officer to replace it. See id. at 2-3. In addition, Palmer failed to

provide proper documentation of his employment or schedules from his

employer to his probation officer, house arrest case manager, or house arrest

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supervisor, despite specific instructions to do so. See id. at 3. Ms. Spicuzza

also testified Palmer left home without authorization on November 5, 2024,

and when his probation officer called him the next day, Palmer became

argumentative, cursed at the officer, said that it was the officer’s job to

contact his employer, and he was going to work with or without a window.

See id. at 3-4. Although Palmer later apologized, he continued to have

multiple-hour periods on unauthorized leave between November 6th and

November 11th. See id. at 3-4.

Palmer’s counsel asserted Palmer had sent screenshots of his work

schedule to the proper authorities. See id. at 8. He also asserted Palmer

would be acquitted on the gun charge. See id. at 8. Counsel argued Palmer

did not represent a danger to the community and again requested unsecured

monetary bond. See id. at 8-9. The hearing transcript reveals that Judge

Borkowski was thorough in his review. He denied any bail modifications and

directed Palmer’s work “window” be removed unless he provided a schedule

from his employer, and Palmer’s EHM would be revoked unless he provided

documentation for his unaccounted-for ER visits. See id. at 9-10. It must be

noted that based on the various bail condition violations Judge Borkowski

could have revoked the non-monetary bail, taken Palmer into custody and

impose monetary bail.

Palmer testified his employer had no means to send a work schedule to

the court. See id. at 10-11. He testified the ankle monitor had broken as he

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tried to adjust it, and he notified pretrial services immediately. See id. at 11.

The court ordered Palmer to obtain some proof of employment and to provide

proof of his emergency room visits See id. at 12-13. The court also

expressed doubt the ankle monitor could have come off as Palmer said it had.

See id. at 13.

Palmer’s brother, Albery Bosley (“Bosley”), testified and corroborated

most of Palmer’s testimony. Bosley testified the nurses’ busy schedules at

the emergency room prevented them from contacting Palmer’s probation

officers. See id. at 15-17. Palmer then testified his probation officer was

satisfied with his proof of employment. See id. at 18. The court ordered

Palmer to give Ms. Spicuzza a receipt from his employer with his supervisor’s

name and phone number. See id. at 18-19. The court stated that its concern

for Palmer’s medical condition convinced him not to send Palmer back to

prison. The trial court noted on the record that with the violations expressed

at the hearing he could have sent him back to jail. The court, however,

empathized with Palmer’s serious medical condition and made no

modifications either way. The court entered an order revoking Palmer’s work

“windows” until he provided proper work verification, and requiring

authentication of emergency room visits within three days. See Bail

Certification, 11/13/24.

On December 11, 2024, Palmer timely filed the instant petition

presenting a single issue for review:

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Did the motions court abuse its discretion when it denied the motion for modification of bail from nonmonetary with an EHM condition to an unsecured monetary bail based on its incorrect understanding of the purpose of bail and the purpose of electronic home monitoring, which is not to inflict pre-conviction punishment or to compel rehabilitation, but rather, to ensure the defendant’s appearance at court?

Palmer’s Petition for Specialized Review Pursuant to Pa.R.A.P. 1610,

12/11/24, at 9.

At the outset, we observe that, in light of our Supreme Court’s decision

in In the Interest of N.E.M., 311 A.3d 1088 (Pa. 2024), wherein the Court

held that this Court “lacks discretion to decide whether to grant or deny these

petitions for specialized review,” review of the merits of the instant petition is

now mandatory. Id. at 1101. Although N.E.M. addressed Rule 1612 petitions

for specialized review relating to juvenile out-of-home placement, its rationale

is equally applicable to Rule 1610 petitions for specialized review of bail. See

Commonwealth v. Miller, 319 A.2d 575, 580 (Pa. Super. 2024). The N.E.M.

Court explained that, unlike Chapter 13 of our Rules of Appellate Procedure,

which governs interlocutory appeals by permission, Chapter 16 evidences a

“mandatory nature” for petitions for specialized review and provides a

“procedure for appellate review of certain discrete issues.” N.E.M., 311 A.3d

at 1099 (citation omitted). The Court further explained that Rule 1610

“controls how appellate review will be afforded, not how a party can seek

permission to appeal.” Id. Thus, we turn to the merits of the instant petition.

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The instant case involves not the denial of bail, but whether the

conditions attached to the nonmonetary bail based on nonmonetary conditions

per Pa.R.Crim.P. 524 (c)(2) are appropriate. Absent case law stating the

standard of review for a trial court’s imposition of conditions to the bail bond,

and in recognition of the fact the trial court sees and hears the witnesses at

bail hearings whereas we review a cold record, we apply the abuse of

discretion standard applicable to review of bail forfeitures to Palmer’s petition.

See Commonwealth v. Riley, 946 A.2d 696, 698 (Pa. Super. 2008).

As our Supreme Court has held, Pa.R.Crim.P. 526, “Conditions of Bail

Bond,” provides conditions which shall be imposed “[i]n every case in which a

defendant is released on bail[.]” See Commonwealth v. Sloan, 907 A.2d

460, 466 (Pa. 2006). At least three conditions in any case where a defendant

is granted release on nominal bail: (1) the defendant must appear at all times

until the final disposition of the case, (2) the defendant may not intimidate

witnesses or victims, and (3) the defendant must refrain from criminal activity.

See id., citing Pa.R.Crim.P. 526.1 Rule 526 invokes Rules 524, 527, and 528,

____________________________________________

1 Pennsylvania Rule of Criminal Procedure 526 states, in pertinent part:

(A) In every case in which a defendant is released on bail, the conditions of the bail bond shall be that the defendant will:

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

(Footnote Continued Next Page)

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pertaining to “Types of Release on Bail,” “Nonmonetary Conditions of Release

on Bail,” and “Monetary Conditions of Release on Bail,” respectively.

Although Rule 526 does not invoke or cite Rule 523, Palmer’s underlying

motion to modify from EHM to unsecured bond may implicate Rule 523. See

Pa.R.Crim.P. 529, Comment (“In making a decision to modify a bail order, the

issuing authority or judge should evaluate the information about the

defendant as it relates to the release criteria in Rule 523 and the types of

release on bail set forth in Rule 524.”). The Rule 523(A) release criteria factors

include:

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

*** (B) If the bail authority determines that it is necessary to impose conditions of release in addition to the conditions required in paragraph (A) to ensure the defendant's appearance and compliance, the bail authority may impose such conditions as provided in Rules 524, 527, and 528.

(C) The bail authority shall set forth in the bail bond all conditions of release imposed pursuant to this rule.

Comment: This rule continues the practice that all defendants released on bail under these rules are subject to an order of the bail authority that they comply with all the conditions of the bail bond. Paragraph (A)(4) effectuates the Crimes Code requirement set forth in 18 Pa.C.S.A. § 4956. All the conditions of the bail bond set forth in paragraph (A) must be imposed in every criminal case in which a defendant is released on bail. In addition to these conditions of the bail bond, in the appropriate case, the bail authority may also impose a condition of release on bail as provided in Rules 524, 527 and 528.

Pa.R.Crim.P. 526.

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(1) the nature of the offense charged and any mitigating or aggravating factors that may bear upon the likelihood of conviction and possible penalty; (2) the defendant’s employment status and history, and financial condition; (3) the nature of the defendant’s family relationships; (4) the length and nature of the defendant’s residence in the community, and any past residences; (5) the defendant’s age, character, reputation, mental condition, and whether addicted to alcohol or drugs; (6) if the defendant has previously been released on bail, whether he or she appeared as required and complied with the conditions of the bail bond; (7) whether the defendant has any record of flight to avoid arrest or prosecution, or of escape or attempted escape; (8) the defendant’s prior criminal record; (9) any use of false identification; and (10) any other factors relevant to whether the defendant will appear as required and comply with the conditions of the bail bond.

See Pa.R.Crim.P. 523.

Palmer asserts EHM and the other conditions of his bail are not

reasonably related to the purposes of bail of ensuring the accused’s

appearance in court and protecting the community. See Petition at 10 (citing

Sloan, 907 A.2d at 468). He argues there is no logical connection between

requiring his employer to send his work schedule to his bail agent in advance

or requiring him to confirm his hospitalizations and ensuring his appearance

in court. See id. at 11. Palmer further asserts that nothing about him or the

facts of the case justified the imposition of EHM because he was not alleged

to have engaged in criminal activity or used illegal drugs while on bail, nor

was it alleged he lied about his whereabouts. See id. He thus states EHM

and the accompanying conditions are excessively burdensome and constitute

pre-conviction punishment. See id.

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Palmer also contends that none of Pa.R.Crim.P. 523’s release criteria

justify EHM and the additional conditions in his case. He asserts his likelihood

of conviction is low; he is employed and lives with his brother; he suffers from

sickle cell anemia; no information was provided at the bail hearing about his

previous bail forfeiture; his two prior convictions were for misdemeanor

offenses; he did not use false identification during the vehicle stop; and any

problems with his complaint with his bail conditions were because they were

excessive. See id. at 11-14.

In response to this Court’s direction, the trial court provided a statement

of its reasons for denying Palmer’s petition to modify bail. The court stated it

found no change in circumstances to support modification of the original bail

order, and it found the assertions Palmer violated his bond credible, which

would have supported revocation of EHM and re-invoking monetary bail. The

court further noted Palmer’s removal of his ankle bracelet, his five-times

repeated failure to comply with his EHM conditions, his cursing and

argumentative behavior after his November 5, 2024 EHM violations, and his

failure to provide work documentation. See Trial Court Statement, 12/20/24,

at 1-2. The court also noted Palmer’s criminal history and the fact the instant

charges involved a traffic stop at which police found a firearm. See id.

Based upon our review of the record, we cannot conclude that the trial

court abused its discretion by denying bail modification given Palmer’s

repeated violations of bail conditions, including the removal of his physical

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monitor, his repeated violations of EHM, and his declaration that he would not

be bound by his court-ordered requirements, which suggests EHM is necessary

to ensure his presence in court. Additionally, we do not find onerous the

court’s requirements that Palmer prove where he was on the multiple

occasions, he violated EHM and note he failed to provide such proof despite

being given the opportunity to do so. Finally, we note the court had grounds

based on Palmer’s conduct to revoke the nonmonetary bail and EHM condition

entirely but elected not to do so. The trial court’s restraint and empathy is

noted and his thorough hearing and analysis of the situation is emphasized.

Accordingly, in light of the foregoing, and pursuant to N.E.M.’s and

Miller’s mandate to consider petitions for specialized review on their merits,

we affirm the trial court’s November 13, 2024 order.

Order affirmed.

DATE: 2/24/2025

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