J-S14021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KASHIF M. ROBERTSON,

                            Appellant                No. 1595 MDA 2016


          Appeal from the Judgment of Sentence Entered April 26, 2016
                   In the Court of Common Pleas of Dauphin County
               Criminal Division at No(s): CP-22-CR-0002526-2012


BEFORE: GANTMAN, P.J., SHOGAN and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED JULY 18, 2017

       Appellant, Kashif M. Robertson, proceeding pro se, appeals from the

judgment of sentence entered on April 26, 2016, made final by the order

dated August 15, 2016, granting in part his post-sentence motion for

modification of sentence. Appellant also purports to appeal from the order

dated August 18, 2016, denying his post-sentence motion raising claims of

ineffective assistance of counsel.1 After careful review, we affirm.2

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    The unusual procedural posture of this case described in detail, infra,
requires some explanation. Appellant initially filed a petition for relief under
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, on
October 14, 2015. Counsel was appointed and an amended petition was
filed on January 4, 2016. The PCRA court entered its original order denying
PCRA relief on Appellant’s claims of ineffective assistance of suppression,
trial, and appellate counsel on April 26, 2016. However, due to Appellant’s
(Footnote Continued Next Page)
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                       _______________________
(Footnote Continued)

sentence being illegal as imposed, the court also resentenced Appellant that
same date. Appellant filed a post-sentence motion seeking credit for time
already served on May 2, 2016, which was docketed on May 5, 2016, and a
second post-sentence motion alleging ineffective assistance of counsel on
May 5, 2016, which was docketed on May 10, 2016. It appears that because
Appellant was incarcerated, the PCRA court deemed both of Appellant’s
motions timely and addressed Appellant’s allegations based on application of
the prisoner mailbox rule. See Pa.R.A.P. 121(a). The August 15, 2016
order granted the motion to modify sentence in part, which made final the
April 26, 2016 judgment of sentence, and the August 18, 2016 order denied
Appellant’s post-sentence motion alleging ineffective assistance of counsel.
2
  Further complicating matters, Appellant filed a single appeal from the two
separate orders.

      Where one or more orders resolves issues arising on more than
      one docket or relating to more than one judgment, separate
      notices of appeal must be filed. Note to Pa.R.A.P. 341, citing
      Commonwealth v. C.M.K., 932 A.2d 111, 113 n.3 (Pa. Super.
      2007). In C.M.K., this Court quashed a single appeal from two
      judgments of sentence imposed on codefendants who were
      convicted and sentenced individually on different charges.
      C.M.K., 932 A.2d at 112. We noted that the filing of the joint
      appeal in that instance was unworkable because the appeals
      required individualized arguments, separate appellate analyses
      of the evidence, and distinct examination of the different
      sentences imposed. Id.

                                           * * *

      While our Supreme Court recognized that the practice of
      appealing multiple orders in a single appeal is discouraged under
      Pa.R.A.P. 512 (joint appeals), it previously determined that
      appellate courts have not generally quashed such appeals,
      provided that the issues involved are nearly identical, no
      objection to the appeal has been raised, and the period for
      appeal has expired. K.H. v. J.R., 826 A.2d 863, 870 (Pa. 2003)
      (citation omitted).

(Footnote Continued Next Page)


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       On April 7, 2012, Appellant was arrested and charged with persons not

to own or possess firearms,3 carrying a firearm without a license,4

possession with intent to deliver a controlled substance (“PWID”), 5 unlawful

possession of drug paraphernalia,6 and tampering with or fabricating

physical evidence.7 Complaint, 4/7/12. On September 10, 2012, Appellant

filed a motion to suppress. After a hearing, the suppression court denied the

motion on December 27, 2012. Subsequently, suppression counsel sought

leave to withdraw, and the trial court granted the motion on January 31,

2013. On February 21, 2013, Appellant, acting pro se, filed an appeal from

the order denying his motion to suppress.         On April 22, 2013, after new

counsel entered his appearance on behalf of Appellant, this Court sua sponte

quashed Appellant’s pro se appeal as premature. See Commonwealth v.

Robertson, 420 MDA 2013 (unpublished order).



                       _______________________
(Footnote Continued)

In the Interest of: P.S., 158 A.3d 643, 648 (Pa. Super. 2017) (internal
footnote and quotations marks omitted). Under the facts presented here,
we decline to quash.
3
    18 Pa.C.S. § 6105(c)(2).
4
    18 Pa.C.S. § 6106(a)(1).
5
    35 P.S. § 780-113(a)(30).
6
    35 P.S. § 780-113(a)(32).
7
    18 Pa.C.S. § 4910(1).



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      A jury trial commenced on September 10, 2013, concluded in a

mistrial. On September 19, 2013, a jury convened for Appellant’s new trial

convicted Appellant of “PWID,” possession of drug paraphernalia, and

possession of a controlled substance.      That same day, the trial court

sentenced Appellant to an aggregate term of incarceration of not less than

three nor more than ten years, followed by a two-year term of probation,

plus fines and costs.

      On September 24, 2013, Appellant filed a pro se notice of appeal. On

October 1, 2013, new counsel filed an appeal on Appellant’s behalf. Eight

days later, new counsel sought leave to withdraw and forwarded Appellant’s

pro se Pa.R.A.P. 1925(b) statement of errors complained of on appeal to the

trial court. Subsequently, counsel withdrew the October 1, 2013 appeal. On

October 31, 2013, the trial court granted counsel’s motion to withdraw and

issued a new concise statement order. Thereafter, Appellant, again pro se,

filed a new Rule 1925(b) statement.             On December 16, 2013, and

January 23, 2014, the trial court and the suppression court, respectively,

filed opinions pursuant to Pa.R.A.P. 1925(a).

      On May 21, 2014, new counsel entered his appearance on behalf of

Appellant.    This Court affirmed Appellant’s judgment of sentence on

December 16, 2014, Commonwealth v. Robertson, 116 A.3d 689, 1730

MDA 2013 (Pa. Super. filed December 16, 2014) (unpublished memorandum

at *13), and the Pennsylvania Supreme Court denied Appellant’s petition for


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allowance of appeal.       Commonwealth v. Robertson, 116 A.3d 689, 117

MAL 2015 (Pa. filed June 30, 2015).

       The trial court summarized the ensuing proceedings, as follows:

             On October 14, 2015, Appellant [f]iled a pro se Petition for
       Relief Pursuant to the Post-Conviction Relief Act. Counsel was
       appointed and she filed a supplemental PCRA. Based upon that
       supplemental filing, we scheduled a hearing for April 26, 2016.

             At that hearing, based upon an illegal sentence, Appellant
       was resentenced.[8] The remaining PCRA claims were dismissed
       following the hearing.

             Appellant then filed a Motion for Imposition of Correct Time
       Credit on May 5, 2016 and a Post Sentence Motion on May 10,
       2016. Following a Grazier[9] hearing on June 23, 2016, Counsel
       was permitted to withdraw and the Commonwealth was granted
       time to respond to various motions.

              Based upon the Motion for Imposition of Correct Time
       Credit and the Commonwealth’s response, on August 15, 2016,
       this [c]ourt did grant Appellant time credit from April 7, 2012 to
       September 20, 2015.

            On August 18, 2016, this [c]ourt denied Appellant’s post
       sentence motion in an order and memorandum opinion.

            The Clerk of Courts received a Notice of Appeal of the
       August 15 and August 18, 2016 orders on or about September 7,
       2016. On September 26, 2016, we ordered Appellant to file a

____________________________________________


8
   In the April 26, 2016 resentencing order, the trial court sentenced
Appellant to an aggregate term of two to four years of incarceration followed
by one year of probation, plus fines and costs.
9
   See Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (stating
that when an appellant seeks to waive their right to counsel, the trial court
shall hold a hearing on the record to determine if the waiver of counsel is
knowing, intelligent, and voluntary).



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     statement of errors complained of on appeal. A timely statement
     was filed.

PCRA Court Opinion, 12/12/16, at 3.

     Appellant raises the following issues for appellate review:

           A. Did the PCRA court err in denying in part Appellant’s
      motion for time credit when he was not awarded his time on
      parole while on the original sentence and under the jurisdiction
      of the Pennsylvania Board of Probation and Parole, and was
      subject to 61 Pa.C.S. § 6138 (c)(2); (f) at the time he was re-
      sentenced, and is he deserving of time credit pursuant to state
      statute?

            B. Did the PCRA court err in denying Appellant’s claim that
      counsel was ineffective by failing to cross examine
      Commonwealth witnesses concerning contradictory testimony,
      was previously litigated, when the claim concerning
      contradicting testimony was never raised on appeal by
      Appellant, and does this finding conflict with Commonwealth v.
      Collins, 888 A.2d 564 (Pa. 2005)?

          C. Did the PCRA court err in denying Appellant’s claim that
      PCRA counsel was ineffective for failing to subpoena attorney
      Gary Kelley, Esq. to meet the (3) prong test of ineffective
      counsel of Mr. Kelley at the PCRA hearing?

            D. Did the PCRA court err in denying Appellant’s claim that
      trial counsel was ineffective for failing to assert his right under
      Pa.R.Crim.P. 581 (J), to reopen the suppression record to
      address previously unavailable evidence which was revealed
      during trial, under In Re L.J., 79 A.3d 1073 (Pa.2013); has been
      previously litigated on direct appeal?

            E. Did the PCRA court err in denying Appellant’s claim that
      PCRA counsel no-merit assertion was in error by finding his
      ineffective claims against appellate counsel for failing to assert
      his right under Pa.R.Crim.P. 581 (J), and In Re L.J., 79 A.3d
      1073 (Pa. 2013); and for failing to effectively challenge the
      reliability of the CI under both state and federal jurisprudence,
      and address the contradictory testimony adopted by the
      suppression judge and revealed in trial in his brief, was without
      merit and was previously litigated?

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Appellant’s Brief at vii (full capitalization omitted).10

       In his first issue, Appellant alleges that he was entitled to credit for

time spent on parole while under the jurisdiction of the Pennsylvania Board

of Probation and Parole pursuant to 61 Pa.C.S. § 6138 (c)(2) and (f). After

review, we conclude that this issue is meritless.

       A “challenge to the trial court’s failure to award credit for time served

prior to sentencing involves the legality of a sentence.” Commonwealth v.

Johnson, 967 A.2d 1001, 1003 (Pa. Super. 2009). “Our standard of review

over such questions is de novo and our scope of review is plenary.”

Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa. Super. 2009)

(citation omitted).

       During the post-conviction hearing, the PCRA court concluded that

Appellant’s original sentence was illegal and resentenced him on April 26,

2016. N.T. (PCRA Evidentiary Hearing), 4/26/16, at 34-36. As part of its

resentencing order, the PCRA court granted Appellant credit from April 12,

2015, to September 20, 2015.            Resentencing Order, 4/26/16.11   However,

on August 15, 2016, after considering Appellant’s post-sentence motion to

correct time credit, the PCRA court granted Appellant relief insofar as it

____________________________________________


10
   For purposes of our discussion, we have renumbered Appellant’s issues
presented.
11
   Despite the language in the PCRA court’s order, the docket entry reflects
that Appellant was to receive credit beginning on April 7, 2012.



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awarded    Appellant   credit    for   time   served     from   April   7,   2012,    to

September 20, 2015. Modification of Sentence Order, 8/15/16.

      While Appellant’s argument concerning the legality of his sentence is

muddled    and   peppered       with   references   to    the   jurisdiction   of    the

Pennsylvania Board of Probation and Parole and technical parole violations,

we interpret it as an assertion that Appellant is entitled to credit for the time

between September 20, 2015, when he was paroled on the underlying

charges, and March 17, 2016, when he was arrested on new unrelated

charges.

      The right to credit for time served is statutory in nature and arises

from 42 Pa.C.S. § 9760, which provides, in relevant part, as follows:

      § 9760. Credit for time served

      [T]he court shall give credit as follows:

            (1) Credit against the maximum term and any minimum
      term shall be given to the defendant for all time spent in
      custody as a result of the criminal charge for which a prison
      sentence is imposed or as a result of the conduct on which such
      a charge is based. Credit shall include credit for time spent in
      custody prior to trial, during trial, pending sentence, and
      pending the resolution of an appeal.

42 Pa.C.S. § 9760(1) (emphasis added).           “Thus, credit for time served is

generally reserved for situations where the defendant is ‘in custody.’”

Commonwealth v. Martz, 42 A.3d 1142, 1145-1146 (Pa. Super. 2012)

(quoting Commonwealth v. Stafford, 29 A.3d 800 (Pa. Super. 2011)).

“Pennsylvania appellate courts consistently have interpreted section 9760’s


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reference to ‘custody’ as confinement in prison or another institution.”

Martz, 42 A.3d at 1145 (quoting Commonwealth v. Maxwell, 932 A.2d

941, 944 (Pa. Super. 2007) (citations omitted)). Here, from September 20,

2015, to March 17, 2016, Appellant was on parole, i.e., released from

confinement. Thus, under section 9760, Appellant was not “in custody” and

was not entitled to receive credit for this period. See Commonwealth v.

Kyle, 874 A.2d 12, 18 (Pa. 2005) (holding the defendant was not entitled to

credit for time spent on release pending appeal subject to electronic home

monitoring because, under Section 9760, “in custody” means “time spent in

an institutional setting”). Therefore, Appellant’s challenge to the legality of

his sentence is meritless.

      Appellant’s remaining issues are claims of ineffective assistance of

counsel at various stages of the underlying proceedings. These claims were

addressed in the trial court’s August 18, 2016 order.      We affirm the trial

court’s denial of relief; however, we do so on different grounds.

      As we noted supra, the April 26, 2016 order granted relief on

Appellant’s credit-for-time-served issue, but it denied all other PCRA claims.

Appellant was resentenced that same day, and he did not appeal from the

denial of the PCRA claims. Rather, following resentencing, Appellant raised

his ineffectiveness issues in a post-sentence motion. This was improper.

      In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme

Court held that “claims of ineffective assistance of counsel are to be deferred


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to PCRA review; trial courts should not entertain claims of ineffectiveness

upon post-verdict motions; and such claims should not be reviewed upon

direct appeal.”     Id. at 576 (footnote omitted).   The Supreme Court noted

that under “extraordinary circumstances,” there are two narrow exceptions

to this rule: (1) where the trial court determines that the ineffectiveness

claim is “both meritorious and apparent from the record so that immediate

consideration and relief is warranted; or (2) where the trial court finds “good

cause” for review and the defendant makes a “knowing and express waiver

of his entitlement to seek PCRA review from his conviction and sentence,

including an express recognition that the waiver subjects further collateral

review to the time and serial petition restrictions of the PCRA.” Id. at 564,

577.

       Instantly, the trial court did not find Appellant’s claims meritorious,

and Appellant did not expressly waive his PCRA rights in his post-sentence

motion. Therefore, neither exception applies. Thus, Appellant’s ineffective-

assistance-of-counsel issues are premature.12        The ramifications of our

decision are that Appellant’s claims of ineffective assistance of counsel are




____________________________________________


12
  We may affirm the trial court’s determination on any correct basis, even
where those grounds were not relied upon by the trial court.
Commonwealth v. Colon, 708 A.2d 1279, 1282, n. 1 (Pa. Super. 1998).



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deemed denied without prejudice to Appellant’s ability to raise them in a

collateral petition under the PCRA. Holmes, 79 A.3d at 576.13

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/18/2017




____________________________________________


13
   Should Appellant opt to pursue collateral relief, we leave to the PCRA
court to determine what, if any issues, are properly preserved, what issues
were waived due to Appellant’s failure to pursue an appeal from the April 26,
2016 order, and what issues have been previously litigated.



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