Case Information
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA [1] IN THE SUPERIOR COURT OF PENNSYLVANIA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. 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. FILED MAY 09, 2017
MEMORANDUM BY SOLANO, J.: Appellant, Thomas Guildford, appeals from judgment sentence imposed trial court after it convicted him of illegal possession of firearm, carrying firearm without license, illegally carrying firearm public Philadelphia.' We affirm Appellant's convictions, but vacate the judgment of sentence. summarized factual background underlying
The Appellant's convictions follows: November Philadelphia Police Officers Tritz D'Alesio received radio call concerning light blue two -
door vehicle casing jewelry store shopping strip mall near City Line and Haverford Avenues. officers observed car fitting that description pulling out location its center brake light malfunctioning. When the officers activated their lights, the vehicle fled, making several quick turns ' 18 Pa.C.S. §§ 6105, 6106 6108, respectively.
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 two door sedan, jumped out of the vehicle and ran westbound on Brentwood Road. [Appellant] was captured in the middle of the block other responding patrolmen. Officers Tritz D'Alesio took the driver front seat passenger into they did, a loaded silver Colt custody, observing as semiautomatic handgun on the rear seat passenger -side floorboard, where [Appellant] had been seated. From front passenger seat floorboard a handgun was recovered [and] later determined a BB gun. Rubber surgical gloves were found floor beneath the driver. Also retrieved from the back seat was Muslim garb [Appellant] was seen removing during car chase. It was later determined that [Appellant] was owner of the fleeing vehicle. prosecution submitted a Certificate of Non-Licensure as well as a criminal extract showing [Appellant] was licensed well ineligible to possess the weapon.
Trial Ct. Op., 3 (citations to notes of testimony omitted). was charged with the aforementioned firearms violations and convicted following December 2015 bench trial. April 22, 2016, the trial court sentenced him to 5 10 years' incarceration illegally possessing firearm, with consecutive years' probation carrying firearm without license, concurrent years' probation illegally carrying firearm public Philadelphia. He filed motion for reconsideration of sentence April which he asserted his convictions were against the sufficiency of the evidence sentence was excessive. Before ruled on his motion for reconsideration of sentence, filed notice of appeal.2 May 21, 2016, the trial court denied Appellant's motion reconsideration of sentence. That same day, ordered to file statement matters complained of pursuant to Pa.R.A.P. 1925(b). Appellant complied by filing which 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 conviction pursuant to Rule 607. The evidence was not sufficient sustain conviction pursuant to Rule 606 and of the evidence was not enough to sustain conviction pursuant Rule
II. Trial Court erred imposing an "excessive sentence" violating the Pennsylvania Sentencing Code, 42 Pa. C.S. § et seq. by not following the general principle sentence imposed should call 1) confinement consistent the protection of the public, gravity offense it relates the impact life of the victim; and 3) rehabilitative needs of the defendant, amounted an abuse of discretion. See, Pa. C.S. § 9721(B).
Statement of Errors Matters Complained of Pursuant Pa.R.A.P. 1925(b), 6/13/16. Although the enter its order denying Appellant's motion
for reconsideration of sentence until May Pa.R.A.P. 905(a)(5) provides "A notice of appeal filed after the announcement of determination but before the entry an appealable order shall treated filed after such entry and on day thereof."
Conversely, appellate brief, Appellant presents the following three issues:
1. Whether the Court improperly denied defense Motion to Dismiss pursuant 600(A)(2)(a)?
2. Whether the Court improperly denied defense Motion to Suppress Arrest Evidence?
3. Whether there is needed Correction of Sentence for Credit Time Served?
Appellant's Brief at
The three issues briefed argued by appeal are absent from his Pa.R.A.P. 1925(b) statement.3 Clearly the first issues - asserting errors pertaining Rule suppression are being raised time, shown the certified record well as trial court's Rule 1925(a) opinion discussing the sufficiency issues set forth in Appellant's Rule 1925(b) statement. See Trial Ct. Op., 4-6. The Rules Appellate Procedure state unequivocally that "[i]ssues not included in Statement and/or raised accordance 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 (Pa. Super. 2007), citing v. Lord, 719 A.2d 306 (allegation not contained appellant's court -ordered Rule 1925(b) matters complained of waived purposes of appeal). Rule has had same counsel throughout this case. requiring defendant to provide a court with a identifying in concise manner the issue sought to be pursued appeal is intended to aid trial judges in identifying focusing upon those issues which the defendant plans to raise appeal, and thus is crucial component of the appellate process. Commonwealth v. Lemon, A.2d 34, 36-37 (Pa. Super. 2002). For these reasons, we are constrained to conclude that we cannot review Appellant's issues they have not been properly preserved are therefore waived.
With regard to Appellant's third issue asserting he is entitled to his motion for sentencing credit for time served, we note reconsideration, addition to raising the sufficiency evidence, asked consider reduced, county sentence; he mention credit for time served. Mot. for Reconsideration of Sentence, 3-4. Also, has failed to include Pa.R.A.P 2119(f) statement brief relative allowance of from the discretionary aspects sentence. Nonetheless, his claim for credit for time served cannot waived because it "goes legality of [Appellant's] sentence." See Commonwealth's Brief at citing v. Hollawell, 604 A.2d 723, (Pa. Super. 1992) (failure award credit for time -served implicates the legality of sentence). See also Commonwealth v. Davis, 852 A.2d 392, 399 Super. 2004) ("An attack upon the court's failure give credit for time served an attack upon legality of the sentence cannot waived"), denied, 868 A.2d 1197 2005).
The Commonwealth states that "[a] thorough review of the record reveals that [Appellant] requested time -credit his counsel's sentencing recommendation but that court not declare the grant credit during the imposition of his sentence or incorporate reference time -credit his sentencing order (N.T. ('My argument him that, Your Honor, he be credited for time served')." Commonwealth's Brief at 19. adds it "would have opposed remand for the limited purpose of amending [Appellant's] sentencing order reflect entitlement any applicable credit for time -served." Id. at In view of the foregoing, we vacate Appellant's judgment of sentence remand for to issue sentencing order which takes into account Appellant's entitlement credit for time served.
In sum, we affirm Appellant's convictions because he has failed to preserve second issues appellate review. With respect to Appellant's third issue, we vacate the judgment of sentence remand solely to impose judgment of sentence which reflects Appellant's entitlement credit for time served.
Judgment of sentence vacated. Case remanded the limited purpose stated this memorandum. Jurisdiction relinquished.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 5/9/2017
