J-S16022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

PETER A. HOWARD,

                            Appellant                 No. 16 MDA 2014


         Appeal from the Judgment of Sentence of November 19, 2013
              In the Court of Common Pleas of Schuylkill County
             Criminal Division at No(s): CP-54-CR-0000451-2012


BEFORE: PANELLA, OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.:                             FILED APRIL 07, 2015

        Appellant, Peter A. Howard, appeals from the judgment of sentence

entered on November 19, 2013, as made final by the denial of Appellant’s

post-sentence motion on December 3, 2013. We affirm.

        The trial court has thoroughly summarized the underlying facts of this

case. As the trial court explained:

          [On September 25, 2013, Appellant] entered a general nolo
          contendere plea [to charges of endangering the welfare of a
          child, simple assault, and recklessly endangering another
          person.1 The charges arose out of allegations that Appellant
          “handle[d] a two month old child in such a manner as to
          cause the child to suffer bruising to the facial area, a
          fracture of the left femur, and trauma to the brain which
          caused the child to suffer cardiac arrest.”         Criminal


____________________________________________


1
    18 Pa.C.S.A. §§ 4304(a)(1), 2701(a)(1), and 2705, respectively.
J-S16022-15


        Complaint, 12/15/12, at 2]. After the entry of his plea, the
        [trial] court ordered a pre-sentence investigation. . . .

        [Schuylkill County Adult Probation Department officers Neil
        Stefanisko and Kelly Chapman testified during Appellant’s
        November 19, 2013 sentencing hearing]. [The officers’]
        testimony established that[, following Appellant’s arrest,
        Appellant] was incarcerated for a period of [24] days in the
        Schuylkill County Prison. . . . On March 2, 2012, the
        Honorable C. Palmer Dolbin granted [Appellant’s]
        application for bail reduction [and ordered that Appellant
        was permitted] to remain on bail subject to electronic
        [home] monitoring. Judge Dolbin directed that [Appellant]
        reside at 112 East Main Street, Girardville, Pennsylvania,
        subject to electronic monitoring and pay any associated
        fees.     [Appellant] was also to obtain and maintain
        employment within [30] days, refrain from alcohol or illegal
        drugs, [] remain in strict compliance with the “Children and
        Youth Order,” and surrender his passport to the Clerk of
        Courts Office. . . .

        While on electronic monitoring, [Appellant] was permitted to
        seek employment, was permitted to attend medical and
        legal appointments [and] counseling sessions[,] and was
        permitted to perform work in his yard after obtaining
        approval from the Adult Probation Office to leave the
        premises. . . . The record establish[es] that [Appellant]
        spent [621] days [on] electronic [home] monitoring. . . .

        At his sentencing hearing, [Appellant] demanded credit for
        [the] time [he spent while] on electronic [home]
        monitoring. The [trial] court denied him such credit and
        gave him credit only for the [24] days [he spent while
        incarcerated in the Schuylkill County Prison].

Trial Court Opinion, 1/13/14, at 2-3 (internal citations and some internal

capitalization omitted).




                                   -2-
J-S16022-15



       Appellant filed a timely post-sentence motion on Monday, December 2,

2013.2 The trial court denied Appellant’s motion on December 3, 2013 and

Appellant filed a timely notice of appeal to this Court. Appellant raises one

claim on appeal:

          Did the trial court err by not awarding Appellant 621 days of
          [pre-trial] credit for time he spent on home confinement
          with electronic monitoring?

Appellant’s Brief at 4.

       Appellant’s claim fails.

       In Commonwealth v. Kyle, the                 Pennsylvania Supreme Court

established a bright-line rule and expressly held that “the time spent on bail

release, subject to electronic monitoring, does not qualify as custody for

purposes     of   [42    Pa.C.S.A.     § 9760]    credit    against    a   sentence     of

incarceration.” Commonwealth v. Kyle, 874 A.2d 12, 20 (Pa. 2005). On

appeal,    Appellant    recognizes     our     Supreme     Court’s    holding   in   Kyle.

Moreover, Appellant candidly acknowledges that Kyle’s holding precluded

the trial court from giving him credit for the 621 days he spent while on

electronic home monitoring.          Appellant’s Brief at 7-9.       However, Appellant

claims that “Kyle was wrongly decided” and Appellant requests this Court to

“revisit the matter” and reconsider whether an individual is entitled to credit
____________________________________________


2
  We note that the Schuylkill County Court of Common Pleas was closed on
Thursday, November 28, 2013 and Friday, November 29, 2013, for the
Thanksgiving holiday. Therefore, Appellant’s post-sentence motion was
timely, as it was filed on Monday, December 2, 2013.



                                           -3-
J-S16022-15



for time served while on electronic home monitoring. Appellant’s Brief at 7

and 9.

      Appellant’s claim on appeal necessarily and immediately fails, as we

have no authority to overrule the binding precedent from our Supreme

Court. Therefore, since our high Court has held that “the time spent on bail

release, subject to electronic monitoring, does not qualify as custody for

purposes   of    [42   Pa.C.S.A.   § 9760]   credit   against   a   sentence   of

incarceration,” we conclude that the trial court did not err when it refused to

grant Appellant credit for the 621 days he spent while on electronic

monitoring.     See, e.g., Preiser v. Rosenzweig, 614 A.2d 303, 306 (Pa.

Super. 1992) (“[a]s an intermediate appellate court, we are not free to

disregard the existing law of this Commonwealth and the decisions of our

[S]upreme [C]ourt”). Appellant’s claim to the contrary fails.

      Judgment of sentence affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2015




                                      -4-
