J-S04036-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    Appellee             :
                                         :
                    v.                   :
                                         :
VERNON HALL,                             :
                                         :
                     Appellant           :     No. 392 MDA 2014

           Appeal from the PCRA Order Entered January 28, 2014
           in the Court of Common Pleas of Lackawanna County,
           Criminal Division, at No(s): CP-35-CR-0000752-2012,
                          CP-35-CR-0001776-2011

BEFORE:     BOWES, ALLEN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED APRIL 10, 2015

      Vernon Hall (Appellant) appeals pro se from the order entered on

January 28, 2014, which dismissed his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.      We vacate the

order and remand for further proceedings.

      We glean the following from the certified record and the PCRA court’s

docket. At trial court docket number CP-35-0001976-2011, Appellant pled

guilty to criminal trespass.   At trial court docket number CP-35-0000752-

2012, Appellant pled guilty to possession with the intent to deliver a

controlled substance.     He was sentenced at both docket numbers on

September 25, 2012. Appellant timely filed a motion for reconsideration of

sentence, which the trial court denied on October 2, 2012. Appellant did not

pursue a direct appeal.

*Retired Senior Judge assigned to the Superior Court.
J-S04036-15


        After numerous filings not relevant to the current issue, on March 20,

2014, while a PCRA appeal was pending, Appellant pro se filed a Pa.R.A.P.

1925(b) statement, wherein Appellant asserted he was not credited for time

he spent in custody from January 26, 2012 to September 25, 2012. In his

pro se brief to this Court, Appellant asks us to consider one question,

namely, “Did the trial court err when it dismissed Appellant’s Petition for

[231] days time credit spent in custody of the county prison, dates being

January 26, 2012 to September 25, 2012[?]” Our standard of review of the

denial of a PCRA petition is limited to examining whether the court’s rulings

are supported by the evidence of record and free of legal error.

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).

        In support of his issue, Appellant inartfully argues that the sentencing

court erred by failing to give him credit for time he served in prison from

January 26, 2012 to September 25, 2012.               Because Appellant raised this

issue    for   the   first   time   in   his   Pa.R.A.P.   1925(b)   statement,   the

Commonwealth contends that Appellant has waived his issue. We disagree

with the Commonwealth.

        “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). Such a challenge is non-

waivable, even if it is raised for the first time in an appeal from an order that

disposed of a PCRA petition. See Commonwealth v. Seskey, 86 A.3d 237,



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241 (Pa. Super. 2014) (“Thus, even though [Seskey’s] claims were not first

presented to the PCRA court in [his] PCRA petition or in his Rule 1925(b)

concise statement as challenges to the legality of the sentence, they cannot

be waived.”).

      The PCRA court never addressed Appellant’s claim that he did not

receive the appropriate amount of credit for time served. Moreover, we are

unable to discern from the record whether Appellant’s claim has merit.

Consequently, we vacate the PCRA court’s order and remand the matter to

that court.     On remand, the PCRA court shall review Appellant’s claim

regarding his credit for time served and thereafter shall enter an appropriate

order.

      Order vacated.      Case remanded with instructions.        Jurisdiction

relinquished.

Judge Allen joins the memorandum.

Judge Bowes files a concurring statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/10/2015




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