Com. v. Guilford, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMAS GUILFORD
Appellant No. 1534 EDA 2016
Appeal from the Judgment of Sentence dated April 22, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000322-2015
BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.
MEMORANDUM BY SOLANO, J.: FILED MAY 09, 2017
Appellant, Thomas Guildford, appeals from the judgment of sentence
imposed by the trial court after it convicted him of illegal possession of a
firearm, carrying a firearm without a license, and illegally carrying a firearm
in public in Philadelphia.' We affirm Appellant's convictions, but vacate the
judgment of sentence.
The trial court summarized the factual background underlying
Appellant's convictions as follows:
On November 26, 2014, Philadelphia Police Officers Tritz
and D'Alesio received a radio call concerning a light blue two -
door vehicle casing a jewelry store in the shopping strip mall
near City Line and Haverford Avenues. The officers observed a
car fitting that description pulling out of that location with its
center brake light malfunctioning. When the officers activated
their lights, the vehicle fled, making several quick turns and
' 18 Pa.C.S. §§ 6105, 6106 and 6108, respectively.
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striking two parked cars on the south side of Brentwood Road
and then crashing into a parked car on the other side of
Brentwood Road. During this car chase, [Appellant] could be
observed in the back seat, removing the Muslim garb in which he
was dressed. At that time, [Appellant] - the rear seat passenger
of his two door sedan, jumped out of the vehicle and ran
westbound on Brentwood Road. [Appellant] was captured in the
middle of the block by two other responding patrolmen. Officers
Tritz and D'Alesio took the driver and front seat passenger into
custody, observing as they did, a loaded silver Colt
semiautomatic handgun on the rear seat passenger -side
floorboard, where [Appellant] had been seated. From the front
passenger seat floorboard a handgun was recovered [and] later
determined to be a BB gun. Rubber surgical gloves were found
on the floor beneath the driver. Also retrieved from the back
seat was the Muslim garb [Appellant] was seen removing during
the car chase. It was later determined that [Appellant] was the
owner of the fleeing vehicle. The prosecution submitted a
Certificate of Non-Licensure as well as a criminal extract showing
that [Appellant] was not licensed as well as ineligible to possess
the weapon.
Trial Ct. Op., 7/18/16, at 3 (citations to notes of testimony omitted).
Appellant was charged with the aforementioned firearms violations and
convicted following a December 9, 2015 bench trial. On April 22, 2016, the
trial court sentenced him to 5 to 10 years' incarceration for illegally
possessing a firearm, with a consecutive 5 years' probation for carrying a
firearm without a license, and a concurrent 5 years' probation for illegally
carrying a firearm in public in Philadelphia. He filed a motion for
reconsideration of sentence on April 29, 2016 in which he asserted that his
convictions were against the sufficiency and the weight of the evidence and
his sentence was excessive. Before the trial court ruled on his motion for
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reconsideration of sentence, Appellant filed a notice of appeal.2 On May 21,
2016, the trial court denied Appellant's motion for reconsideration of
sentence. That same day, the trial court ordered Appellant to file a
statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b). Appellant complied by filing a statement which in its entirety
reads:
STATEMENT OF ERRORS COMPLAINED OF ON APPEAL PURSUANT TO
Pa.R.A.P. 1925(b)
I. Whether the weight of the evidence was enough to sustain
a conviction pursuant to Rule 607. The evidence was not
sufficient to sustain a conviction pursuant to Rule 606 and
the weight of the evidence was not enough to sustain a
conviction pursuant to Rule 607.
II. The Trial Court erred by imposing an "excessive sentence"
violating the Pennsylvania Sentencing Code, 42 Pa. C.S. §
9701 et seq. by not following the general principle that the
sentence imposed should call for 1) confinement consistent
with the protection of the public, 2) the gravity of the
offense as it relates to the impact on the life of the victim;
and 3) the rehabilitative needs of the defendant, and
amounted to an abuse of discretion. See, 42 Pa. C.S. §
9721(B).
Statement of Errors and Matters Complained of Pursuant to Pa.R.A.P.
1925(b), 6/13/16.
2 Although the trial court did not enter its order denying Appellant's motion
for reconsideration of sentence until May 31, 2016, Pa.R.A.P. 905(a)(5)
provides "A notice of appeal filed after the announcement of a determination
but before the entry of an appealable order shall be treated as filed after
such entry and on the day thereof."
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Conversely, in his appellate brief, Appellant presents the following
three issues:
1. Whether the Court improperly denied the defense Motion to
Dismiss pursuant to 600(A)(2)(a)?
2. Whether the Court improperly denied the defense Motion to
Suppress Arrest and Evidence?
3. Whether there is needed a Correction of Sentence for Credit
for Time Served?
Appellant's Brief at 7.
The three issues briefed and argued by Appellant on appeal are absent
from his Pa.R.A.P. 1925(b) statement.3 Clearly the first two issues -
asserting errors pertaining to Rule 600 and suppression - are being raised
for the first time, as shown by the certified record as well as the trial court's
Rule 1925(a) opinion discussing the sufficiency and weight issues set forth in
Appellant's Rule 1925(b) statement. See Trial Ct. Op., 7/18/16, at 4-6.
The Rules of Appellate Procedure state unequivocally that "[i]ssues not
included in the Statement and/or not raised in accordance with the
provisions of this [Rule 1925] (b)(4) are waived." Pa.R.A.P. 1925(b)(4)(vii);
see also Commonwealth v. Smith, 917 A.2d 848, 855 (Pa. Super. 2007),
citing Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) (allegation not
contained in appellant's court -ordered Rule 1925(b) statement of matters
complained of on appeal is waived for purposes of appeal). The Rule
3
Appellant has had the same counsel throughout this case.
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requiring a defendant to provide a trial court with a statement identifying in
a concise manner the issue sought to be pursued on appeal is intended to
aid trial judges in identifying and focusing upon those issues which the
defendant plans to raise on appeal, and thus is a crucial component of
the appellate process. Commonwealth v. Lemon, 804 A.2d 34, 36-37
(Pa. Super. 2002). For these reasons, we are constrained to conclude that
we cannot review Appellant's first two issues as they have not been properly
preserved and are therefore waived.
With regard to Appellant's third issue asserting that he is entitled to
sentencing credit for time served, we note that in his motion for
reconsideration, in addition to raising the sufficiency and weight of the
evidence, Appellant asked the trial court to consider a reduced, county
sentence; he did not mention credit for time served. Mot. for
Reconsideration of Sentence, 4/29/16, at 3-4. Also, Appellant has failed to
include a Pa.R.A.P 2119(f) statement in his brief relative to allowance of
appeal from the discretionary aspects of his sentence. Nonetheless, his
claim for credit for time served cannot be waived because it "goes to the
legality of [Appellant's] sentence." See Commonwealth's Brief at 19, citing
Commonwealth v. Hollawell, 604 A.2d 723, 725 (Pa. Super. 1992)
(failure to award credit for time -served implicates the legality of a sentence).
See also Commonwealth v. Davis, 852 A.2d 392, 399 (Pa. Super. 2004)
("An attack upon the court's failure to give credit for time served is an attack
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upon the legality of the sentence and cannot be waived"), appeal denied,
868 A.2d 1197 (Pa. 2005).
The Commonwealth states that "[a] thorough review of the record
reveals that [Appellant] requested a time -credit in his counsel's sentencing
recommendation but that the trial court did not declare the grant of the
credit during the imposition of his sentence or incorporate a reference to a
time -credit in his sentencing order (N.T. 4/22/16, 9) ('My argument on him
is that, Your Honor, that he be credited for time served')." Commonwealth's
Brief at 19. The Commonwealth adds that it "would not have opposed a
remand for the limited purpose of amending [Appellant's] sentencing order
to reflect his entitlement to any applicable credit for time -served." Id. at
20. In view of the foregoing, we vacate Appellant's judgment of sentence
and remand for the trial court to issue a sentencing order which takes into
account Appellant's entitlement to credit for time served.
In sum, we affirm Appellant's convictions because he has failed to
preserve his first and second issues for appellate review. With respect to
Appellant's third issue, we vacate the judgment of sentence and remand
solely for the court to impose a judgment of sentence which reflects
Appellant's entitlement to credit for time served.
Judgment of sentence vacated. Case remanded for the limited
purpose stated in this memorandum. Jurisdiction relinquished.
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Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 5/9/2017
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