J-S56034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

EDWIN COLON-RODRIGUEZ,

                        Appellant                   No. 129 MDA 2016


         Appeal from the Judgment of Sentence December 2, 2015
              In the Court of Common Pleas of Berks County
           Criminal Division at No(s): CP-06-CR-0004476-2014

BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                    FILED AUGUST 24, 2016

     Edwin Colon Rodriguez (“Appellant”) appeals from the judgment of

sentence entered in the Court of Common Pleas of Berks County after

Appellant entered a negotiated guilty plea of not less than five years, nor

more than ten years’ incarceration on two counts of Possession with Intent

to Deliver a Controlled Substance, Criminal Conspiracy to Deliver a

Controlled Substance, Possession of Firearms Prohibited, and Possession of a

Firearm with Manufacture Number Altered or Obliterated.           Appellant

contends the trial court’s refusal to award him time credit toward his

sentence renders his sentence illegal.      Additionally, Appellant's court-

appointed counsel, Jay M. Nigrini, Esquire, has filed an application to

withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967)

and Commonwealth v. Santiago, 978 A.2d 349 (Pa.2009). We affirm the

judgment of sentence and grant counsel's petition to withdraw.

*Former Justice specially assigned to the Superior Court.
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      As noted, Attorney Nigrini has requested to withdraw and has

submitted an Anders brief in support thereof contending that Appellant's

appeal is frivolous.   The Pennsylvania Supreme Court has articulated the

procedure to be followed when court-appointed counsel seeks to withdraw

from representing an appellant on direct appeal:

      [I]n the Anders brief that accompanies court-appointed counsel's
      petition to withdraw, counsel must: (1) provide a summary of
      the procedural history and facts, with citations to the record; (2)
      refer to anything in the record that counsel believes arguably
      supports the appeal; (3) set forth counsel's conclusion that the
      appeal is frivolous; and (4) state counsel's reasons for
      concluding that the appeal is frivolous. Counsel should articulate
      the relevant facts of record, controlling case law, and/or statutes
      on point that have led to the conclusion that the appeal is
      frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). If counsel's

petition and brief satisfy Anders, we will then undertake our own review of

the appeal to determine if it is wholly frivolous. If the appeal is frivolous, we

will grant the withdrawal petition and affirm the judgment of sentence. If,

however, there are non-frivolous issues, we will deny the petition and

remand for the filing of an advocate's brief. Commonwealth v. Wrecks,

931 A.2d 717, 720–21 (Pa.Super. 2007) (citations omitted).

      Counsel has substantially complied with the technical requirements of

Anders as articulated in Santiago. Additionally, counsel confirms that he

sent a copy of the Anders brief to Appellant, as well as a letter explaining

that Appellant has the right to proceed pro se or the right to retain new

counsel.   Counsel has appropriately appended a copy of the letter to the


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motion to withdraw, as required by this Court's decision in Commonwealth

v. Millisock, 873 A.2d 748 (Pa.Super. 2005). See also Commonwealth v.

Daniels, 999 A.2d 599, 594 (Pa.Super. 2010).            Appellant has not filed a

response to the petition.

         We now proceed to examine the issue counsel sets forth in the Anders

brief:

         Whether the trial court erred in failing to give credit for time
         served from the date secured bail was set on September 15,
         2014, until the date of his plea and sentence on December 2,
         2015, as the Appellant was never released from custody?

Appellant’s Anders brief at 5.

         With this claim, Appellant challenges the legality of his sentence. See

Commonwealth v. Tobin, 89 A.3d 663, 669 (Pa.Super. 2014) (recognizing

a claim based upon the failure to give credit for time served as a challenge

to the legality of a sentence).            In raising this issue, however, he

acknowledges that he was charged for his offenses in two separate cases

with different docket numbers and received credit for the pre-trial detention

time served in the other case.

         Sentencing credit for time served is provided for pursuant to 42

Pa.C.S.A. § 9760, which states, in pertinent part, 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.


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             ***
      (4)    If the defendant is arrested on one charge and later
             prosecuted on another charge growing out of an act or
             acts that occurred prior to his arrest, credit against the
             maximum term and any minimum term of any sentence
             resulting from such prosecution shall be given for all time
             spent in custody under the former charge that has not
             been credited against another sentence.

42 Pa.C.S.A. § 9760(1) (emphasis added).

      “This Court has held that a defendant is not entitled to ‘receiv[e] credit

against     more    than   one   sentence   for   the   same   time   served.’”

Commonwealth v. Ellsworth, 97 A.3d 1255, 1257 (Pa.Super. 2014)

(quoting Commonwealth v. Merigis, 681 A.2d 194, 195 (Pa.Super.

1994)). In that vein, it is well-settled that a defendant shall be given credit

for any days spent in custody prior to the imposition of sentence, but only if

such commitment is on the offense for which sentence is imposed.           See

Commonwealth v. Clark, 885 A.2d 1030, 1034 (Pa.Super. 2005). Credit

is not given, however, for a commitment by reason of a separate and

distinct offense.    See Commonwealth v. Miller, 655 A.2d 1000, 1002

(Pa.Super. 1995).

      In light of such authority, we agree with the trial court and appellate

counsel that Appellant’s claim is frivolous. Accordingly, we affirm judgment

of sentence and grant counsel’s petition to withdraw.

      Judgment of Sentence is AFFIRMED. Petition to Withdraw as Counsel

is GRANTED.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/2016




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