Com. v. McCaskill, B.

J. S25045/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
BRYANT LAMONT McCASKILL, : No. 1246 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, January 20, 2016,
in the Court of Common Pleas of Monroe County
Criminal Division at No. CP-45-CR-0000084-2015
BEFORE: BENDER, P.J.E., RANSOM, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 27, 2017
Bryant Lamont McCaskill appeals pro se from the January 20, 2016
judgment of sentence entered in the Court of Common Pleas of Monroe
County after a jury convicted him of retail theft and receiving stolen
property.1 The trial court sentenced appellant to 21 months to 48 months of
imprisonment. We affirm appellant’s convictions and remand with
directions.
The trial court summarized the facts, as gleaned from the trial
transcript, as follows:
The theft that was the subject of these charges
occurred on October 23, 2014. Yavonne Howell was
the Commonwealth’s first witness. She testified that
she was the store manager of the Rite Aid store in
Mt. Pocono, Pennsylvania on the day the theft
1
18 Pa.C.S.A. §§ 3929(a)(1) and 3925(a).
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occurred. She opened the store at 7:00 a.m. and
worked until 4:00 p.m. that day. While she was
crouching down in the cosmetics aisle removing and
replacing merchandise, a man came up to her and
said[, “E]xcuse me, can I ask you where something
is?” He was looking for reusable shopping bags “for
trick or treat because it was in October.” The bags
were for sale, and were “purple and orange with
pictures of ghosts or goblins on them for Halloween.”
The man was African-American. He wore tan boots
“like a construction boot but newer.” He had on
white long johns with shorts over them. He wore a
vest with a hoodie underneath. He was walking with
a cane. Ms. Howell told the man where the bags
were and he walked away from her. She did not see
him in person again in the store.
The next shift supervisor came to work at the
end of the day and noticed that the store’s supply of
boxed condoms was missing. He also found a tag
from a Halloween bag on the floor near the condom
rack. There was also a “trail from the condom
section out to the door . . . there were four boxes,
maybe five that were dropped on the floor.”
The store had security cameras operating in
the store and microchips in the merchandise. The
Commonwealth introduced digital security footage of
the store that day. The video depicted a man
carrying three reusable shopping bags out of the
store. Ms. Howell identified him as the man she was
talking to earlier in the store. According to the store
“inventory gun” there were three reusable shopping
bags missing that had not been paid for. She
recalled that the alarm did sound at the rear exit
door that day. The inventory gun also showed that
“a ton of boxes of condoms” were missing. The
missing bags and condoms were valued at $814.48.
The inventory gun is linked to the cash register, so
Ms. Howell knew the items had not been paid for.
The Commonwealth called Charnae Warren as
its next witness. Ms. Warren was employed as a
pharmacy technician in the Rite Aid on the day of the
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theft. She was working the 11:30 to 7:00 shift. She
testified that a man by the name of
“Lamont McCaskill” came to the pharmacy station in
the Rite Aid seeking to fill a prescription. She
described him as having “really long hair, and he
was wearing like a hoodie type vest thing.” He had
on boots and was walking with a cane. She
identified the individual as [appellant], whom she
pointed out in the courtroom. She remembered that
he had produced a Pennsylvania driver’s license as
identification.
The Assistant District Attorney then played the
security video of the man walking through the store
carrying the full bags and she identified the person
depicted as [appellant].
[Appellant] testified that he did go to the
Rite Aid Pharmacy that day to pick up his pain
medication. He said he was wearing different
clothing than the description given of him by the
store clerks. He testified that he did not steal the
condoms that day. He was unable to fill his
prescription there, and went to another Rite Aid to
get his prescription filled.
Yavonne Howell testified on rebuttal that she
was at the store the whole day until after 5:00 p.m.
She did not see anyone else in the store with a
description similar to [appellant] that day. She saw
no one else with a cane.
Trial court opinion, 4/8/16 at 2-4, incorporated into statement pursuant to
Pa.R.A.P. 1925(a), 5/17/16 (citations to notes of testimony omitted).
The record reflects that Public Defender David W. Skutnik represented
appellant at trial. The record further reflects that the trial court ordered
appellant to appear for sentencing on June 29, 2015. Appellant failed to
appear, and the trial court issued a bench warrant. Following appellant’s
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arrest approximately 7 months later, the trial court imposed sentence on
January 20, 2016. Public Defender Skutnik filed timely post-sentence
motions, including a motion for judgment of acquittal that challenged the
sufficiency of the evidence and a motion for reconsideration of sentence.
The trial court then set a briefing and argument schedule. Appellant filed a
counseled brief, but also submitted a handwritten “Defendant Supplemental
Brief,” which was forwarded to Public Defender Skutnik pursuant to the
March 14, 2016 order of the trial court. (Order of court, 3/14/16.) On
April 8, 2016, the trial court denied appellant’s post-sentence motions.
On April 22, 2016, appellant filed a timely counseled notice of appeal
to this court. The trial court ordered appellant to file a concise statement of
errors complained of on appeal in accordance with Pa.R.A.P. 1925(b).
Appellant filed a timely counseled Rule 1925(b) statement wherein he raised
two issues: “the evidence presented at time of trial was insufficient for the
jury to convict him of retail theft and receiving stolen property” and the
“sentence imposed by the trial court was excessive.” (Appellant’s
“Cocise [sic] Statement of Matters Complained of,” 5/16/16.) During this
time period, appellant began writing letters to the Clerk of Courts of Monroe
County wherein he stated, among other things, that he “will not [and]
refuse[s] to be represented by David Stutnick [sic] or any attorney from
Monroe County’s Commonwealth Public Defender Office” and “inform[ing]
this court [that he will] proceed from this point forward in ‘propia persona’ or
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simply pro-per-pro se and in forma pauperism.” (Correspondence from
appellant to “Chief Deputy Clerks of Court of Count [sic] of Common Pleas
Monroe County,” dated 4/16/16 (capitalization and underscoring omitted;
errors in original). Then, on May 17, 2016, the trial court filed its Rule
1925(a) statement.
On July 7, 2016, appellant filed a pro se motion to this court
requesting to proceed with his direct appeal pro se. On the same day, this
court entered an order directing the trial court to conduct a Grazier2
hearing. On August 25, 2016, the trial court conducted the hearing and, on
the same day, entered an order granting appellant’s petition for leave to
proceed pro se and withdrawing the appearance of Public Defender Skutnik.
On September 6, 2016, appellant filed a pro se Rule 1925(b)
statement wherein he raised 9 claims of error. (Docket #35.) On
September 14, 2016, the trial court filed a response to appellant’s pro se
supplemental Rule 1925(b) statement finding the issues waived because
appellant did not request leave of court to file a supplemental statement and
because Pa.R.A.P. 1925 makes no provision for the filing of a supplemental
statement under such circumstances. (Docket #36.) Appellant then filed a
pro se motion to amend his Rule 1925(b) statement with this court. This
court granted appellant’s motion and afforded appellant 21 days to file his
supplemental statement and ordered the trial court to address appellant’s
2
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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supplemental statement by filing a supplemental Rule 1925(a) opinion.
Appellant timely complied and raised the following 6 issues, framed as
follows:
1. The trial court erred in allowing insufficient
evidence letting the Commonwealth’s
Prosecutrix perform Prosecutorial Misconduct
by Suppressing Destroying, Crucial evidence,
with holding Exculpatory evidence, by her
refusal to play the entire video surveillance
footage of the Rite aide pharmacy area.
2. Trial court erred allowing Commonwealth’s
witnesses Hearsay within Hearsay testimonies.
Where such testimonies evidence only proved
appellant’s “mere presence at or near the
scene of the crime”. Not committing or
participating in a crime, “where all Reasonable
Inferences” were equally consistent with
appellant’s innocence as with guilt.
3. Whether the trial court erred in allowance of
Police Officer Chafee’s Unnecessarily and
Unduly suggestive Police Identification,
immensely violated appellant’s Due process,
which was woefully incosistent and
inconclusive when compared to appellant’s
Physical composition, Stature and the
Commonwealth’s witnesses identity
testimonies at trial. Which resulted in an
Irreparable Misidentification of appellant as the
perpatrator. Which contributed to him being
wrongfully convicted under the totality of the
circumstances.
4. The trial court erred allowing the
Commonwealth to commit Constitutional
Violations in open court during the Voir Dire
Proceeding at the out-set of appellant’s trial.
With it’s exclusion of 90%-99% of all African
American jurors by race-base Peremptory
Challenge Strikes on solely African Americans.
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Resulting in only one African American male
present on appellant’s jury panel at trial.
5. Whether the trial court erred with the illegal
sentence imposed by the trial Judge was
Unconstitutional, by the use of prior Out-Of-
State felony convictions that were sealed over
22 years when calculating appellant’s record
score as Repeat Felony Offender,
simutanoeusly improperly increasing the
sentence floor based absent a Jury’s Finding of
Facts that support the Mandatory Sentence.
Appellant was incarcerated 109 days on the
offenses before sentencing January 20 2016.
Trial court denied the time credit refused to
credit appellant. Pursuant to 42. Pa.C.S.A.
9760 part(1)(3)(4) appellant is entitled to
credit.
6. The trial court erred when it failed to conduct a
cumulative evaluation, why such adeficient
representation by defense counselor David
Stunik prior to and during trial. Which violated
appellant’s 6th amendment right to a full
defense guaranteed under the united states
constitutional amendments. The defense
counselor’s ineffective assistance so
underminded the truth-determining process
that no reliable adjudication of guilt or
innocence could have taken place. That
significantly caused a Fundemental
Misscarriage of Justice in this case.
Appellant’s “Concise Supplemental Statement of Matters Complained of on
Appeal Pursuant to [Pa.R.A.P.] 1925(b), 10/28/16” (countless errors in
original). The trial court addressed appellant’s issues in its supplemental
Rule 1925(a) opinion.
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Appellant now raises 22 issues for our review.3 In reviewing the issues
raised in appellant’s supplemental Rule 1925(b) statement and the
3
Appellant frames his issues as follows:
1. Whether there was sufficient evidence to find
appellant guilty beyond a reasonable doubt?
2. Whether the Commonwealth proved all the
essential elements of the retail theft and
receiving stolen property offenses to a Rational
Trier Ot Fact that appellant committed such
crimes?
3. Did the Commonwealth violate appellant’s Due
Process by suppressing material exculpatory
evidence?
4. Whether the evidence and all Reasonable
Inferences were equally consistent with
appellant’s innocence?
5. Whether the Prosecutrix violated the Brady
Rule and performed Misconduct by refusing to
play the entire video surveillance footage of
Rite aide pharmacy area?
6. Whether the evidence was insufficient to
convict appellant in that commonwealth proved
only appellant’s Mere Presence At or Near the
Scene of the Crime?
7. Did the Commonwealth admit Unreliable,
Unconstittutional and Improper evidence in
violation of the 5th, 6th, 8th, and 14th
amendments of the United States
Constitutional Amendments?
8. Whether the prosecutor and trial court violated
appellant’s constitutional and civil rights with
illegal race-base [sic] peremptory challenge
strikes on solely African American jurors?
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9. Whether Officer Chaffee’s pretrial identification
so Unduly Suggestive that it created very
Substantial Likelihood of a irreparable
Misidentification?
10. Whether Commonwealth’s Chief witness
Ms. Howell entire testimony was Inadmissible
Hearsay within Hearsay?
11. Did the Commonwealth violated Federal Rule
of Evidence § viii 805?
12. Whether officer Chaffee ever found on or in
appellant’s possession any condoms or boxes
from Rite aide?
13. Whether any Employee of Rite aide seen
appellant conceal any condoms or merchandise
at anytime while in the store trying to get his
prescription filled?
14. Did the Video surveillance show appellant or
any African American male dropping
merchandise or merchandise falling out of any
bags period on the video footage at anytime
during trial?
15. Whether the video footage simply show an
African American male entering and leaving the
store which is not a crime?
16. Whether tyrranical bias trial Judge aggravated
and calculated appellant’s sentence at
sentencing proceedings off Out-of-State N.Y.
31 year old and 22 year old sealed convictions
that was past the legal staue limitations in
both the states of New York and Pennsylvania?
17. Did the trial court err when the court didnot
seek were prior out-of-state convictions
“Malum in Se” or “Malum Prohibitum” or
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arguments he attempts to make in his rambling and, for the most part,
incoherent brief, the gravamen of appellant’s complaints are (1) that the
evidence was insufficient to prove that appellant was the individual who stole
the condoms; and (2) that the trial court improperly considered appellant’s
prior convictions in New York when calculating his record score and failed to
give appellant credit for time served. To the extent that appellant raises
inchoate or specific to the commowealth’s
18 Pa. 3829(a)(1),3925(b)?
18. Did the trial court err by not taking into
account the “Actus Reus” and Mens Rea” of
N.Y.S. covictions?
19. Did the trial court err imposing a sentence for
Repeat Felony Offender 21-48 months for pior
out-of-state offenses not charged in the
Indictment nor Elements of the crime
sentencing appellant to illegal Mandatory
Minimum Sentence?
20. Whether the trial court err when it refused to
consider appellant’s Physical Disabilities and
Medical records as to corroborate appellant’s
incapability to commit the crimes he was
wrongly convicted of?
21. Whether the trial court err denying appellant’s
Supplementle Pro se post sentencing Brief,
Post Sentencing Motions?
22. Whether the trial Judge incorrectly disallowed
appellant his time credit for time served?
Appellant’s brief at 1-2 (countless errors in original; random bolding
omitted).
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new issues within the 22 issues that he sets forth in his “question for
grounds to rewiew [sic] for errors [and] violations” section of his brief,
appellant waives those issues on appeal for failure to include them in his
Rule 1925(b) statement. Pa.R.A.P. 1925(b)(4)(vii) (issues not included in
the Rule 1925(b) statement are waived).
Prior to addressing appellant’s sufficiency of the evidence claim and his
sentencing challenges, we will address appellant’s four other complaints.
Appellant complains that the trial court erred in permitting the
Commonwealth to play a portion of the Rite Aid surveillance video footage to
the jury, as opposed to the entire video, which was several hours long. Our
review of the record reveals that appellant failed to object when a portion of
the video was played for the jury and when the video was admitted into
evidence. It is well settled that a “[f]ailure to raise a contemporaneous
objection to the evidence at trial waives that claim on appeal.”
Commonwealth v. Thoeun Tha, 64 A.3d 704, 713 (Pa.Super. 2013)
(citations omitted); see also Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).
Therefore, appellant waives this issue on appeal.
Appellant next complains that the trial court erred when it permitted
Commonwealth witnesses to testify to “hearsay within hearsay.”
(Appellant’s brief at 20.) A reading of this section of appellant’s brief,
however, demonstrates that the crux of appellant’s complaint with respect to
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this issue is that there was inconsistent testimony presented at trial.
Appellant fails to cite to that portion of the trial transcript where he lodged a
hearsay objection that the trial court overruled, and our review of the record
reveals none. To the extent that appellant complains that the trial court
permitted “hearsay within hearsay” testimony that appellant failed to object
to, appellant waives the issue on appeal. See Thoeun Tha, 64 A.3d at 713;
see also Pa.R.A.P. 302(a).
Appellant next complains that the trial court erred in permitting a
police officer to identify appellant from video surveillance. Appellant
advances no argument in his brief with respect to this issue. Rather,
appellant complains that the police officer’s “pretrial identification on his
affidavit of probable cause was unreliable, and apart from that a woefully
suggestive police identification because it created a very substantial
likelihood of irreparable misidentification and was unnecessarily suggestive.”
(Appellant’s brief at 9.) Appellant waives this issue on appeal for failure to
develop a meaningful legal argument and failure to cite to relevant legal
authority). See Pa.R.A.P. 2119; see also Commonwealth v. Rhodes, 54
A.3d 908, 915 (Pa.Super. 2012) (an appellant’s failure to set forth a relevant
legal analysis and/or to cite to relevant legal authority results in waiver).
Appellant next complains that the Commonwealth utilized race-based
challenges to exclude African Americans, like appellant, from the jury.
Although appellant preserved this claim by objection during voir dire, he
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advances no meaningful legal argument to demonstrate that the trial court’s
decision on the ultimate question of discriminatory intent was clearly
erroneous. Rather, appellant makes bald assertions and cites to irrelevant
authority. For example, appellant states, “[a]s a further testament,
Commonwealth’s Prosecutrix invariably interspersed her racist and
mendacious declarations with pious avowals under the color [sic] the
Commonwealth of the State of Pennsylvania’s law,” followed by a citation to
a United States Supreme Court case that was decided in 1906. (Appellant’s
brief at 19.) Because appellant has failed to advance any meaningful legal
argument or citation to relevant law, appellant waives this issue on appeal.
See id.Nevertheless, we note that in Batson v. Kentucky, 476 U.S. 79, 106
S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court set
forth a three-step process to evaluate racial discrimination claims. First, the
defendant must make out a prima facie case that the prosecutor has
employed race-based challenges. Commonwealth v. Cook, 952 A.2d 594,
602-603 (Pa. 2008). Second, the prosecution must then offer a race-neutral
explanation for striking the juror. The second prong does not demand an
explanation that is persuasive, or even plausible. Rather, the issue at that
stage is the facial validity of the prosecutor’s explanation. Unless a
discriminatory intent is inherent in the prosecutor’s explanation, the reason
offered will be deemed race-neutral. Id. Third, the trial court must
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determine whether the defendant has proven purposeful discrimination.
“[T]he trial court’s decision on the ultimate question of discriminatory intent
represents a finding of fact of the sort accorded great deference on appeal
and will not be overturned unless clearly erroneous.” Id. at 603.
Here, our review of the record demonstrates that the following took
place:
[DEFENSE COUNSEL]: Judge, I wish to make a
challenge to the Commonwealth striking Juror No. 1
in this matter who is African American. And there
are about three African Americans on the panel, and
I think there are two Hispanics. The rest of the
panel is Caucasian. So I have a challenge as to why
the Commonwealth is striking an African American
from the panel.
THE COURT: You are just referring to the striking of
Juror No. 1?
[DEFENSE COUNSEL]: Yes, Juror No. 1.
[THE COMMONWEALTH]: It’s based on being a yes
answer to Question No. 9.
[DEFENSE COUNSEL]: Which is?
[THE COMMONWEALTH]: Are you less likely to
believe a police officer?
[DEFENSE COUNSEL]: That’s it?
[THE COMMONWEALTH]: It’s my procedure. Those
yes answers are always going.
[DEFENSE COUNSEL]: All right.
THE COURT: The challenge is noted and denied.
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Notes of testimony, 4/7/15 at 18. The record supports the trial court’s
conclusion that the Commonwealth gave a credible race-neutral reason for
excluding Juror Number 1, which was the stricken juror’s admission that he
was less likely to believe a police officer.
Appellant next complains that trial counsel was ineffective. Appellant’s
claim of ineffectiveness of counsel, however, must be deferred to collateral
review pursuant to the dictates of our supreme court in Commonwealth v.
Grant, 813 A.2d 726 (Pa. 2002), wherein our high court held that a claim of
ineffective assistance of counsel cannot be entertained on direct appeal.
See Commonwealth v. Barnett, 25 A.3d 371, 377 (Pa.Super. 2011)
(en banc) (pursuant to Grant’s refinement in Commonwealth v. Liston,
977 A.2d 1089 (Pa. 2009), and Commonwealth v. Wright, 961 A.2d 119,
148 n.22 (Pa. 2008), the Pennsylvania Superior Court is not permitted to
review ineffective assistance of counsel claims on direct appeal, unless the
defendant has expressly, knowingly, and voluntarily waived PCRA review).
Because nothing indicates that appellant expressly waived PCRA review, we
must defer resolution of his ineffective assistance of counsel claim to
collateral review pursuant to the dictates of Grant and its progeny.
With respect to appellant’s sufficiency claim, a review of appellant’s
brief on this issue demonstrates that appellant does nothing more than
challenge the trial evidence in an attempt to convince this court that he did
not steal the condoms. For example, he argues that the person seen on the
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video surveillance “walked normal” into the store and that appellant walks
with a limp and that just because appellant was in the store does not mean
that he committed the crime. (Appellant’s brief at 10, 12.) Essentially,
appellant argues that the jury should have believed appellant’s testimony
over the Commonwealth’s evidence. In so doing, appellant challenges the
weight of the evidence, not its sufficiency. See, e.g., Gibbs, 981 A.2d at
281-282 (an argument that the fact-finder should have credited one witness’
testimony over that of another witness goes to the weight of the evidence,
not the sufficiency of the evidence); Commonwealth v. Wilson, 825 A.2d
710, 713-714 (Pa.Super. 2003) (a review of the sufficiency of the evidence
does not include a credibility assessment; such a claim goes to the weight of
the evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super.
1997) (the fact-finder makes credibility determinations, and challenges to
those determinations go to the weight of the evidence, not the sufficiency of
the evidence).
At the outset, we note that we will give appellant the benefit of the
doubt in finding that he preserved his weight claim in his post-sentence
motion for a new trial. See Pa.R.Crim.P. 607(A)(3).
The essence of appellate review for a weight claim
appears to lie in ensuring that the trial court’s
decision has record support. Where the record
adequately supports the trial court, the trial court
has acted within the limits of its discretion.
....
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A motion for a new trial based on a claim that the
verdict is against the weight of the evidence is
addressed to the discretion of the trial court. A new
trial should not be granted because of a mere conflict
in the testimony or because the judge on the same
facts would have arrived at a different conclusion.
Rather, the role of the trial judge is to determine
that notwithstanding all the facts, certain facts are so
clearly of greater weight that to ignore them or to
give them equal weight with all the facts is to deny
justice.
....
An appellate court’s standard of review when
presented with a weight of the evidence claim is
distinct from the standard of review applied by the
trial court. Appellate review of a weight claim is a
review of the exercise of discretion, not of the
underlying question of whether the verdict is against
the weight of the evidence.
Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013) (citations
and quotation marks omitted). “In order for a defendant to prevail on a
challenge to the weight of the evidence, ‘the evidence must be so tenuous,
vague and uncertain that the verdict shocks the conscience of the court.’”
Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.Super. 2013).
Here, appellant invites this court to reassess his credibility and reweigh
the Commonwealth’s evidence. We decline his invitation to do so. The jury,
as fact-finder, had the duty to determine the credibility of the testimony and
evidence presented at trial. Talbert, 129 A.3d at 546 (citation omitted).
Appellate courts cannot and do not substitute their judgment for that of the
fact-finder. See id. Here, a jury of appellant’s peers found the
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Commonwealth’s evidence to be credible. After carefully reviewing the
record, we conclude that the trial court properly exercised its discretion in
denying appellant’s motion for a new trial.
Finally, in a rambling, convoluted argument, appellant advances two
sentencing challenges. Appellant first claims that his sentence is illegal
because the trial court considered previous out-of-state convictions when
calculating his prior record score which, according to appellant, is a fact that
increased the penalty for the crime that must be treated as an element of
the offense pursuant to Alleyne v. United States, 133 S. Ct. 2151, 2163,
186 L. Ed. 2d 314, (2013). Appellant is mistaken. A claim that the
sentencing court miscalculated a defendant’s prior record score is a
challenge to the discretionary aspects of sentence. See Commonwealth v.
Provenzano, 50 A.3d 148, 154 (Pa.Super. 2012) (the improper calculation
of a prior record score based on out-of-state offenses raises a substantial
question for purposes of discretionary review of a sentencing challenge). In
Alleyne, the United States Supreme Court held that a criminal defendant
has a constitutional right to have a jury decide the existence of any fact,
other than a prior conviction, beyond a reasonable doubt if that fact triggers
application of a mandatory minimum sentence. Here, Alleyne is not
implicated because it does not provide a constitutional right for a jury to
decide the existence of a prior conviction and the crimes for which appellant
was convicted carry no mandatory minimum sentences because both
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offenses were graded as first-degree misdemeanors. See 18 Pa.C.S.A.
§ 106(b)(6) (“a person convicted [of a first-degree misdemeanor] may be
sentenced to a term of imprisonment, the maximum of which is not more
than five years”). Therefore, appellant’s challenge to the computation of his
prior record score is a challenge to the discretionary aspects of his sentence.
[T]he proper standard of review when considering
whether to affirm the sentencing court’s
determination is an abuse of discretion. . . . [A]n
abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have
abused its discretion unless the record discloses that
the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court
recently offered: An abuse of discretion may not be
found merely because an appellate court might have
reached a different conclusion, but requires a result
of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate
review is that the sentencing court is in the best
position to determine the proper penalty for a
particular offense based upon an evaluation of the
individual circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)
(citation omitted; brackets in original).
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. An appellant challenging the
discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
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[W]e conduct a four-part analysis to
determine: (1) whether appellant has
filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at
sentencing or in a motion to reconsider
and modify sentence, see Pa.R.Crim.P.
[720]; (3) whether appellant’s brief has
a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial
question that the sentence appealed
from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A.
§ 9781(b).
Moury, 992 A.2d at 170 (citation omitted; brackets in original).
Here, the record reflects that appellant filed a timely notice of appeal.
In his post-sentence motion, appellant raised two sentencing challenges. In
his first challenge, appellant claimed that “the sentence imposed was
excessive for the nature of the offenses for which [appellant] was found
guilty” and appellant “believes that he is entitled to a time credit from
October 28, 2015 which is when he completed serving a twenty day
sentence in Kings County, New York.” (Motion for reconsideration of
sentence, 2/1/16 at 7 ¶ 14.) In his brief in support of post-sentence motion,
appellant advances no argument on his sentencing challenges except that
appellant “requests [that the trial court] reconsider the sentence imposed in
light of [appellant’s] age.” (Brief in support of post-sentence motion,
3/14/16 at 5.) Appellant, therefore, failed to preserve his challenge that the
trial court miscalculated his prior record score.
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In his final issue, appellant challenges the legality of his sentence
contending that he was not given credit for time served.
It is axiomatic that “challenges to an illegal sentence can never be
waived and may be reviewed sua sponte by this Court.” Commonwealth v.
Tanner, 61 A.3d 1043, 1046 (Pa.Super. 2013) (citation omitted). It is
equally well established that Pennsylvania law does not tolerate an illegal
sentence, for “[a] challenge to the legality of a sentence . . . may be
entertained as long as the reviewing court has jurisdiction.”
Commonwealth v. Borovichka, 18 A.3d 1242, 1254 (Pa.Super. 2011)
(citation omitted). “If no statutory authorization exists for a particular
sentence, that sentence is illegal and subject to correction.”
Commonwealth v. Hopkins, 67 A.3d 817, 821 (Pa.Super. 2013) (citation
omitted), appeal denied, 78 A.3d 1090 (Pa. 2013). “An illegal sentence
must be vacated.” Id. “Issues relating to the legality of a sentence are
questions of law[; as a result, o]ur standard of review over such questions is
de novo, and our scope of review is plenary.” Commonwealth v. Delvalle,
74 A.3d 1081, 1087 (Pa.Super. 2013) (citations omitted). In sentencing a
defendant, the trial court is bound by the statutory provision mandating
credit for time served found at 42 Pa.C.S.A. § 9760.
Here, the issue of credit for time served was addressed at appellant’s
sentencing hearing as follows:
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[DEFENSE COUNSEL]: [Appellant], the first question
you have to answer to the Court is why didn’t you
appear for sentencing?
[APPELLANT]: I didn’t appear for sentencing -- I had
a civil suit in New York, that I went to go get my
money from over there. After that I had to call and
tell him I was going to come back, but I got into
trouble.
[DEFENSE COUNSE]: He had litigation in New York
and he didn’t appear. Then subsequent to that, Your
Honor, he was arrested in New York and did 30 days.
I was in touch with counsel from New York, and I
explained to them that there was a bench warrant
that had been issued by Your Honor for him.
In talking with the sheriff’s department, my
understanding is that he signed a waiver of
extradition to come back to Pennsylvania to deal
with this.
[APPELLANT]: I was locked up 109 days. Out of
that 109 days I did 30. My case was over on
October 28th, 2015. So they held me up until
yesterday, all that time just sitting there waiting. I
kept asking and everybody [sic]. I’m still here.
[DEFENSE COUNSEL]: So apparently he did his
30 days in New York, and since that time he’s
hopefully been accruing time with regards to the
sentence that was imposed on him.
THE COURT: Accruing time on what?
[DEFENSE COUNSEL]: Accruing time on this case for
a time credit, hopefully, when the sentence is
imposed in this matter. He was sentenced to
30 days in New York.
How many days were you sitting in the jail in
New York?
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[APPELLANT]: Like 79 or 80, just sitting there
waiting.
[DEFENSE COUNSEL]: Does that include the 30 days
that you did?
[APPELLANT]: Yes.
[DEFENSE COUNSEL]: All right. You were sitting in
New York [sic] jail for 80 days. Out of that 80 days,
30 days were part and parcel of the sentence that
the New York judge imposed?
[APPELLANT]: Out of 109 days, 30 days was for the
sentence that they gave me for a misdemeanor.
[DEFENSE COUNSEL]: We’ve gone from 80 days to
109 days.
[APPELLANT]: That’s excluded 30 days because I
was locked up. I got locked up October 7th. The
case was over October 28th. November 28th,
December 28th, and the 19th was yesterday -- that’s
79 days.
THE COURT: Do we know anything about time credit
on the New York sentence?
[THE COMMONWEALTH]: Judge, probation doesn’t
know. What I have here is I have paperwork -- I can
provide the Court a copy -- from New York where it
indicates [appellant] was in their custody on
October 8th, 2015, that he refused extradition. And
we had to go and get a Governor’s warrant, which I
have right here, to get him extradited here.
It indicates that he was given -- I don’t know.
It has 90 days. The 90 days were up on
January 6th, I guess, 2016. That’s when he was
released into our custody. I don’t know if he
received a 90-day sentence in New York or what
happened. I’ll show it to Defense Counsel, Judge,
and then I’ll show it to the Court.
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This is from New York where it says he refused
extradition.
(Brief pause)
THE COURT: How many did he waive after the fact?
I’m not quite sure about that.
DEPUTY SHERIFF: I think Carol Doss called me and
said after they received the Governor’s warrant he
decided to waive before that made it there.
New York gives us a set date and time to pick up,
which was yesterday at 10:00 a.m.
(Brief pause.)
THE COURT: So from the Commonwealth’s
perspective, [appellant] has accrued time on this
sentence from January 6th?
[THE COMMONWEALTH]: Yes, Judge, that’s what I
would say. Because I don’t know what held him in
New York, if it’s additional charges. It looks like
there’s something with 90 days. He might receive a
90-day sentence.
I would say right now, without some kind of
verification, it would be from January 6th from our
perspective. That’s when it looks like he was eligible
to be released.
THE COURT: There’s a note here saying 90 days,
January 6th, 2016.
[THE COMMONWEALTH]: That would be 90 days
from October 8th when he was apprehended.
[DEFENSE COUNSEL]: I will have to look into that,
Judge.
THE COURT: What’s that?
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[DEFENSE COUNSEL]: I’ll have to look into that with
the authorities of New York. [Appellant] is telling me
something else, but I will have to figure that out.
THE COURT: I will give [appellant] 14 days[’] credit
on his sentence today, and if there’s some other
evidence saying that number is wrong, then you can
file a motion --
[DEFENSE COUNSEL]: That will be taken care of.
THE COURT: -- for modification of sentence.
[DEFENSE COUNSEL]: That will be fine.
Notes of testimony, 1/20/16 at 2-6.
The record reflects that in his post-sentence motion, appellant sought
reconsideration of sentence based on his “belie[f] that he is entitled to credit
from October 28, 2015 which is when he completed serving a twenty day
sentence in Kings County, New York.” (Appellant’s post-sentence motion,
2/1/16 at 7, ¶ 14(b).) Appellant failed to brief the issue and offered no
evidence to show that he was entitled to credit for time served beyond the
14 days that the trial court determined was due at sentencing based on
evidence presented at that time.
The record further reflects that following the filing of his notice of
appeal to this court on April 22, 2016, the trial court entered an order dated
October 4, 2016 in which it ordered a hearing to be held on appellant’s
“petition for time credit filed on August 29, 2016.” The certified record
before us does not contain appellant’s August 29, 2016 petition for time
credit. It does, however, contain the transcript of proceedings held on
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October 25, 2016. At that time, this court had remanded the case to the
trial court for the limited purpose of permitting appellant to file a
supplemental Rule 1925(b) statement and for the court to file a
supplemental Rule 1925(a) opinion in response, but this court retained
jurisdiction. As such, the trial court found that it did not have jurisdiction to
entertain appellant’s petition for time credit. (Notes of testimony, 10/25/16
at 3-7.)
Because the trial court never entertained appellant’s petition for time
credit for lack of jurisdiction and because the certified record before us fails
to establish that appellant has been credited for all time served, we will
affirm appellant’s convictions, but must remand and direct the trial court to
hold a hearing on appellant’s petition for time credit within 60 days.
Following the trial court’s resolution, it should resentence appellant.
Convictions affirmed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2017
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