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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 1534 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.

MEMORANDUM BY SOLANO, J.:                                               FILED MAY 09, 2017

        Appellant, Thomas Guildford, appeals from the judgment of sentence

imposed by the trial court after it convicted him of illegal possession of                    a


firearm, carrying      a   firearm without   a   license, and illegally carrying    a   firearm

in public in   Philadelphia.' We affirm Appellant's convictions, but vacate the

judgment of sentence.

        The    trial   court     summarized       the       factual   background   underlying

Appellant's convictions as follows:

               On November 26, 2014, Philadelphia Police Officers Tritz
        and D'Alesio received a radio call concerning a light blue two -
        door vehicle casing a jewelry store in the shopping strip mall
        near City Line and Haverford Avenues. The officers observed a
        car fitting that description pulling out of that location with its
        center brake light malfunctioning. When the officers activated
        their lights, the vehicle fled, making several quick turns and

'   18 Pa.C.S. §§ 6105, 6106 and 6108, respectively.
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        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
        of his two door sedan, jumped out of the vehicle and ran
        westbound on Brentwood Road. [Appellant] was captured in the
        middle of the block by two other responding patrolmen. Officers
        Tritz and D'Alesio took the driver and front seat passenger into
        custody, observing as they did, a loaded silver Colt
        semiautomatic handgun on the rear seat passenger -side
        floorboard, where [Appellant] had been seated. From the front
        passenger seat floorboard a handgun was recovered [and] later
        determined to be a BB gun. Rubber surgical gloves were found
        on the floor beneath the driver. Also retrieved from the back
        seat was the Muslim garb [Appellant] was seen removing during
        the car chase. It was later determined that [Appellant] was the
        owner of the fleeing vehicle.      The prosecution submitted a
        Certificate of Non-Licensure as well as a criminal extract showing
        that [Appellant] was not licensed as well as ineligible to possess
        the weapon.

Trial Ct. Op., 7/18/16, at             3   (citations to notes of testimony omitted).

        Appellant was charged with the aforementioned firearms violations and

convicted following           a   December 9, 2015 bench trial. On April 22, 2016, the

trial court sentenced him to                     5    to 10 years' incarceration for illegally

possessing      a    firearm, with         a   consecutive    5   years' probation for carrying     a


firearm without        a   license, and         a    concurrent   5   years' probation for illegally

carrying    a       firearm       in   public in       Philadelphia.      He   filed   a   motion for

reconsideration of sentence on April 29, 2016 in which he asserted that his

convictions were against the sufficiency and the weight of the evidence and

his sentence was excessive.                    Before the trial court ruled on his motion for




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reconsideration of sentence, Appellant filed      a   notice of appeal.2 On May 21,

2016, the trial court denied Appellant's motion for reconsideration of

sentence.       That same day, the trial court ordered Appellant to file          a


statement of matters complained of on appeal pursuant to Pa.R.A.P.

1925(b).       Appellant complied by filing   a   statement which in 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
               a conviction pursuant to Rule 607. The evidence was not
               sufficient to sustain a conviction pursuant to Rule 606 and
               the weight of the evidence was not enough to sustain a
               conviction pursuant to Rule 607.

         II.   The Trial Court erred by imposing an "excessive sentence"
               violating the Pennsylvania Sentencing Code, 42 Pa. C.S. §
               9701 et seq. by not following the general principle that the
               sentence imposed should call for 1) confinement consistent
               with the protection of the public, 2) the gravity of the
               offense as it relates to the impact on the life of the victim;
               and 3) the rehabilitative needs of the defendant, and
               amounted to an abuse of discretion. See, 42 Pa. C.S. §
               9721(B).

Statement of Errors and Matters Complained of Pursuant to Pa.R.A.P.

1925(b), 6/13/16.




2 Although the trial court did not enter its order denying Appellant's motion
for reconsideration of sentence until May 31, 2016, Pa.R.A.P. 905(a)(5)
provides "A notice of appeal filed after the announcement of a determination
but before the entry of an appealable order shall be treated as filed after
such entry and on the day thereof."


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        Conversely, in his appellate brief, Appellant presents the following

three issues:

        1.   Whether the Court improperly denied the defense Motion to
             Dismiss pursuant to 600(A)(2)(a)?

        2. Whether the Court         improperly denied the defense Motion to
             Suppress Arrest and Evidence?

        3. Whether there is needed a Correction of Sentence for Credit
             for Time Served?

Appellant's Brief at 7.

        The three issues briefed and argued by Appellant on appeal are absent

from his Pa.R.A.P.        1925(b) statement.3       Clearly the first two issues    -
asserting errors pertaining to Rule 600 and suppression           -   are being raised

for the first time, as shown by the certified record as well as the trial court's

Rule 1925(a) opinion discussing the sufficiency and weight issues set forth in

Appellant's Rule 1925(b) statement.             See Trial Ct. Op., 7/18/16, at 4-6.

The Rules of Appellate Procedure state unequivocally that "[i]ssues not

included in the Statement and/or not raised                in   accordance with the

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 848, 855 (Pa. Super. 2007),

citing Commonwealth           v. Lord, 719 A.2d 306 (Pa. 1998) (allegation not

contained in appellant's court -ordered Rule 1925(b) statement of matters

complained of on appeal         is    waived for purposes of appeal).       The Rule


3
    Appellant has had the same counsel throughout this case.

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requiring     a   defendant to provide   a   trial court with   a   statement identifying in

a    concise manner the issue sought to be pursued on appeal is intended to

aid trial judges in identifying and focusing upon those issues which the

defendant plans to raise on appeal, and thus is a crucial component                             of
the appellate process. Commonwealth v. Lemon, 804 A.2d 34, 36-37
(Pa. Super. 2002).           For these reasons, we are constrained to conclude that

we cannot review Appellant's first two issues as they have not been properly

preserved and are therefore waived.

        With regard to Appellant's third issue asserting that he is entitled to

sentencing        credit for time     served,     we   note     that    in   his       motion for

reconsideration, in addition to raising the sufficiency and weight of the

evidence, Appellant asked the trial court to consider                   a    reduced, county

sentence;         he   did   not   mention    credit   for time        served.           Mot.   for

Reconsideration of Sentence, 4/29/16, at 3-4. Also, Appellant has failed to

include   a   Pa.R.A.P 2119(f) statement in his brief relative to allowance of

appeal from the discretionary aspects of his sentence.                       Nonetheless, his

claim for credit for time served cannot be waived because it "goes to the

legality of [Appellant's] sentence." See Commonwealth's Brief at 19, citing

Commonwealth v. Hollawell, 604 A.2d 723, 725                            (Pa.   Super. 1992)

(failure to award credit for time -served implicates the legality of               a   sentence).

See also Commonwealth v. Davis, 852 A.2d 392, 399 (Pa. Super. 2004)

("An attack upon the court's failure to give credit for time served is an attack


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upon the legality of the sentence and cannot be waived"),          appeal denied,
868 A.2d 1197 (Pa. 2005).

        The Commonwealth states that          "[a] thorough review of the record
reveals that [Appellant] requested   a    time -credit in his counsel's sentencing

recommendation but that the trial court did not declare the grant of the

credit during the imposition of his sentence or incorporate        a   reference to   a


time -credit in his sentencing order (N.T. 4/22/16, 9) ('My argument on him

is   that, Your Honor, that he be credited for time served')." Commonwealth's

Brief at 19.     The Commonwealth adds that it "would not have opposed                a


remand for the limited purpose of amending [Appellant's] sentencing order

to reflect his entitlement to any applicable credit for time -served."         Id. at
20.    In view of the foregoing, we vacate Appellant's judgment of sentence

and remand for the trial court to issue       a   sentencing order which takes into

account Appellant's entitlement to credit for time served.

        In sum, we affirm Appellant's convictions because he has failed to

preserve his first and second issues for appellate review.         With respect to

Appellant's third issue, we vacate the judgment of sentence and remand

solely for the court to impose       a   judgment of sentence which reflects

Appellant's entitlement to credit for time served.

        Judgment of sentence vacated.             Case remanded    for the limited

purpose stated in this memorandum. Jurisdiction relinquished.




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Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 5/9/2017




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