J-A22031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                    Appellant            :
                                         :
                                         :
              v.                         :
                                         :
                                         :   No. 3647 EDA 2016
 AHMED NABIL DARWISH

         Appeal from the Judgment of Sentence September 1, 2016
    In the Court of Common Pleas of Monroe County Criminal Division at
                      No(s): CP-45-CR-0002402-2015


BEFORE:    BOWES, J., LAZARUS, J., and PLATT*, J.

DISSENTING MEMORANDUM BY LAZARUS, J.:             FILED OCTOBER 31, 2017

      I respectfully dissent.

      Whether a defendant is entitled to credit for time spent in an inpatient

drug or alcohol rehabilitation facility turns on the question of voluntariness.

Commonwealth v. Toland, 995 A.2d 1242 (Pa. Super. 2010). There is no

automatic entitlement to credit for time a defendant voluntarily spends in

inpatient treatment. Id. Rather, if a defendant chooses to voluntarily commit

himself to such treatment, the sentencing court in its discretion may grant

credit for this time. Id.

      In the instant case, I believe that Darwish voluntarily committed himself

to the Salvation Army Adult Rehabilitation Program (“the Program”). Despite

the trial court’s conclusion to the contrary, the record supports the fact that

Darwish filed a petition to modify bail, specifically seeking release into the


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A22031-17



Program as a bail modification. See Petition to Modify Bail for Release into

Rehabilitation Center, 1/19/16; see also N.T. Reconsideration of Sentence

Hearing, 9/19/16, at 9 (“[i]t was the defendant’s petition to modify bail and

release him to a rehabilitation facility with the Commonwealth’s concurrence.

He’s the one who said he wanted treatment.”). In lieu of posting bail, Darwish

had been incarcerated on the instant charges on October 23, 2015; inpatient

treatment had not been an original condition of Darwish’s bail. However, on

January 19, 2016, Darwish filed the aforementioned petition, informing the

court that he had been accepted into the 6½ month Program, with an

admission date of January 21, 2016. The Program’s admission letter indicates

that Darwish had filed a beneficiary application for admission, supplemented

by a medical information form and interview.         See Salvation Army Adult

Rehabilitation Intake Coordinator Letter, 1/14/16.

      In addition, the trial court specifically conditioned the modification of

bail on Darwish’s successful completion of the Program.        N.T. Guilty Plea

Hearing, 1/20/16, at 12 (“All right. So if you don’t, if you walk away from it,

that’s a violation of your bail condition.”); id. (“You’re going to need to stay

there until you’re successfully discharged to fulfill that bail condition; do you

understand that?”).    In fact, the Commonwealth would only agree to his

admission “with the condition that [Darwish] attend and complete the

[P]rogram.” Id.

      Darwish absconded from the Program after only three months, failed to

report his discharge to the court, failed to appear for sentencing, was wanted

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J-A22031-17



on a bench warrant, and continued to use illegal drugs and commit additional

crimes while a fugitive. Under such circumstances, I believe that the trial

court abused its discretion in granting Darwish credit for time served in the

Program where the trial court and Commonwealth clearly premised Darwish’s

bail modification on his successful completion of the Program.            Cf.

Commonwealth v. Conahan, 589 A.2d 1107, 1109 (Pa. 1991) (court did

not abuse discretion in crediting defendant for time spent in inpatient

treatment facility following DUI arrest where:     defendant’s commitment

exceeded statutory applicable minimum sentence;1 defendant’s right of

movement restricted in program and where had he not completed program,

credit would not have been due; and defendant had taken responsibility for

actions and maintained sobriety). Darwish clearly failed to benefit from the

truncated time he voluntarily spent in the Program; awarding Darwish credit

for that time is inappropriate. Accordingly, I would reverse and remand for

resentencing.




____________________________________________


1  Here, the trial court initially sentenced Darwish to 9-24 month’s
imprisonment, with 108 days of credit. That sentence was subsequently
modified to reflect an additional 99 days of credit – the time served in the
Program.

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