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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ANTHONY MICHAEL BOVE

                        Appellant                   No. 530 WDA 2015


           Appeal from the Judgment of Sentence March 3, 2015
            In the Court of Common Pleas of Armstrong County
            Criminal Division at No(s): CP-03-CR-0000281-2013


BEFORE: SHOGAN, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                         FILED DECEMBER 11, 2015

      Anthony Michael Bove appeals the judgment of sentence imposed

March 3, 2015, in the Armstrong County Court of Common Pleas. The trial

court sentenced Bove to a term of 20 to 60 months’ incarceration, following

his guilty plea to one count of involuntary manslaughter in the beating death

of James Sullivan. On appeal, Bove argues the trial court imposed an illegal

sentence because it refused to grant him credit for the time he served

awaiting trial on electronic monitoring. For the reasons below, we affirm.

      The facts underlying Bove’s guilty plea are as follows. On March 17,

2013, Bove and three other men were involved in an altercation with

Sullivan outside the Wick City Saloon in Kittanning Borough, Armstrong

County.   Bove and his cohorts beat Sullivan to death.     For his part, Bove

delivered a “soccer style kick” to the right side of Sullivan’s body as he lay
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on the street.      N.T., 12/5/2014, at 15. At the time of his death, Sullivan

suffered from a fractured skull, three fractured ribs and a torn inferior vena

cava artery.

        Bove was charged with criminal homicide, aggravated assault, simple

assault, recklessly endangering another person and harassment.1 Following

a preliminary hearing, Bove’s bail was set at $100,000.00. On May 6, 2013,

Bove filed a motion to reduce his bond. The trial court conducted a hearing

on June 6, 2013, and entered an order reducing Bove’s bail to an unsecured

$25,000.00 bond, with house arrest and electronic GPS monitoring.2        See

Order, 6/6/2013. Bove subsequently secured the bond and was released on

home monitoring.

        On February 7, 2014, the Commonwealth filed a petition to revoke

bail, contending Bove had violated the conditions of his house arrest,

namely, he made an unauthorized stop at a convenience store.3 Following a

____________________________________________


1
    See 18 Pa.C.S. §§ 2501, 2702, 2701, 2705, and 2709, respectively.
2
  The trial court explained that, at the bail hearing, the Commonwealth
conceded “the criminal homicide charge that [Bove] faces, does not rise to
the level of either murder of the first degree or second degree.” Trial Court
Memorandum, 6/6/2013, at 1.
3
   The Commonwealth filed an amended petition on February 14, 2014,
stating Bove had also failed to charge his electronic monitoring device on
four occasions, resulting in periods when Bove’s movements could not be
tracked by the probation department. See Amended Petition to Revoke Bail,
2/14/2014, at 4.




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hearing, on February 27, 2014, the trial court entered an order revoking

Bove’s bail and remanding him to the custody of the Armstrong County Jail.

Thereafter, on March 4, 2014, bail was re-instituted, and Bove was released

again on house arrest with electronic monitoring, where he remained until

sentencing.4

       On December 5, 2014, Bove entered a guilty plea to one count of

involuntary manslaughter. As noted above, he was sentenced on March 3,

2015, to a term of 20 to 60 months’ incarceration.5 Although the trial court


____________________________________________


4
   While he was on house arrest, Bove filed several petitions seeking
modification of his bail conditions. First, on October 30, 2013, Bove filed a
petition for modification, contending his electronic GPS monitoring prohibited
him from “searching for employment.” Petition to Modify Bail Conditions,
10/30/2013, at ¶ 5. The court denied the petition on December 2, 2013.
Next, on March 21, 2014, Bove filed a motion for furlough, requesting
permission to attend a funeral. That motion was denied the same day
because Bove failed “to state [the] familial relationship to decedent and lack
of consent from the Commonwealth.” Order, 3/21/2014. On June 27, 2014,
Bove petitioned for permission to attend doctor appointments with his
pregnant paramour. The court once again denied the petition that same
day. Next, on July 14, 2014, he filed a petition seeking permission to reside
with his paramour in Ford City. The court denied that petition on August 8,
2014, when Bove failed to appear for the modification hearing. Lastly, on
November 25, 2014, Bove filed another modification petition requesting to
live with his mother in Ford City. The court declined to rule on that petition
in light of Bove’s upcoming hearing set for December 5, 2014. It was during
that hearing that Bove entered a guilty plea.
5
  That same day, immediately before sentencing, Bove sought to withdraw
his guilty plea, claiming he was innocent of the crimes charged. See N.T.,
3/3/2015, at 3-6. The trial court denied the request based on Bove’s
statements during the plea colloquy. Id. at 7. Nevertheless, the court
permitted Bove to testify regarding his reasons for wanting to withdraw his
(Footnote Continued Next Page)


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credited Bove for time served when he was incarcerated both after his arrest

and during the time his bail was revoked, the court did not credit Bove for

the time he spent on house arrest with electronic monitoring.             This timely

appeal followed.6

      In his sole issue on appeal, Bove contends the trial court erred in

failing to give him credit for the time he served, prior to trial, on house

arrest with electronic monitoring.7          It is well-settled that “[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). Our standard of review is as follows:

      The issue of whether an individual is entitled to sentencing credit
      against a term of incarceration for time spent on bail release
      subject to electronic home monitoring is primarily one of
      statutory construction. Therefore, this Court’s review is plenary
      and we owe no deference to the lower courts’ legal conclusions.

Commonwealth v. Kyle, 874 A.2d 12, 17 (Pa. 2005).



                       _______________________
(Footnote Continued)

plea, which included he wanted “to go to trial so [he could] prove his
innocence” and he “kind of” felt pressured to take the plea. Id. at 11-12.
6
  On March 31, 2015, the trial court ordered Bove to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Bove
complied with the court’s directive, and filed a concise statement on April 21,
2015.
7
 Although Bove listed a second claim in his statement of questions involved,
he stated that “after further inspection of the relevant case law, this issue is
not being presented for … review.” Bove’s Brief at 2.



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       Pursuant to 42 Pa.C.S. § 9760, a defendant is entitled to receive credit

for certain periods of time served prior to sentencing, including,

       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.

42 Pa.C.S. § 9760(1) (emphasis supplied).

       Here, the trial court gave Bove credit for the 84 days he spent

incarcerated prior to trial, but not for the time he spent on house arrest with

electronic   monitoring.8        Although      he   acknowledges   the   Pennsylvania

Supreme Court, in Kyle, supra, held that defendants are generally not

entitled to credit for time served on electronic monitoring programs, he

asserts the Kyle Court specifically recognized there are exceptions to the

general rule “when equity [is] deemed to require it[.]”            Bove’s Brief at 5,

citing Kyle, supra. Bove contends that, under the facts of his case, “equity

requires that [he] receive credit for time served on electronic monitoring.”

Id.

       First, Bove claims “the conditions of his release were more stringent

than in a typical case.” Id. at 5-6. He emphasizes:
____________________________________________


8
  Although Bove does not specify the exact time credit he seeks in his brief,
pursuant to our calculations, if his time on house arrest was included, he
would receive an additional credit of more than 20 months, which would,
therefore, make him eligible for immediate parole. See supra at 2-3 (Bove
was on house arrest with electronic monitoring from 6/6/2013 to 2/27/2014,
and 3/3/2014 to 3/3/2015).



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      [He] was neither permitted to reside in his own residence during
      his time on electronic monitoring, nor permitted to seek
      employment, nor permitted to change his residence, nor
      permitted outside the confines of a relative’s home [where he
      was staying], except to travel to and from doctor’s appointments
      (for himself only) and legal appointments (specifically meeting
      with his attorney, meeting with a probation officer and court
      appearances).

Id. at 6. Moreover, Bove explains he filed four separate petitions to modify

the conditions of his bail – including requests to work, attend a relative’s

funeral, attend doctor appointments with his pregnant paramour, and

change the location of his house arrest – all of which the trial court denied.

Therefore,   he      claims   these   circumstances    surrounding   his    electronic

monitoring amount to incarceration. See id. at 7.

      Second, Bove argues he is entitled to credit for the time he served on

electronic monitoring based on the terms of his “Electronic Monitoring

Application.” Bove asserts the application, a copy of which he attached to

his brief, specifically states, “House Arrest is the same as incarceration[.]”

Id. at 7. See also Exhibit C. Therefore, he contends the parties “clearly

intended for the House Arrest to be considered as incarceration,” and he

should receive credit for time he served in that program. Id. at 8.

      The    trial   court,   however,   rejected     Bove’s   arguments,    in   toto,

concluding the Supreme Court’s decision in Kyle is controlling.             See Trial

Court Opinion, 5/7/2015, at 8. We agree.

      In Kyle, the Supreme Court attempted to clarify the law on credit for

time served as stated in its prior fractured decision, Commonwealth v.



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Chiappini, 782 A.2d 490 (Pa. 2001).          In Chiappini, the lead opinion,

authored by Justice Zappala and joined by then Chief Justice Flaherty and

Justice Newman, “suggested a case-by-case test for determining whether a

person on an electronic monitoring program has spent time in Section 9760

custody, which would require the examination of the extent of control

exercised by those in authority in the program.” Kyle, supra, 874 A.2d at

19. See Chiappini, supra, 782 A.2d at 501. Justice Zappala concluded the

electronic   monitoring   program   at   issue   therein   severely   limited   the

defendant’s freedom in such a way that the defendant was in custody for

purposes of Section 9760. Chiappini, supra, 782 A.2d at 501.

      In a concurring opinion, Justice Nigro expressed disfavor “upon a

process that allows people to serve sentences in the comforts of their own

home.” Id. at 502 (Nigro, J., concurring). Nevertheless, he concluded that

the defendant “should, on the basis of equity, receive credit” for the time he

spent on electronic monitoring while on bail awaiting retrial after an initial

guilty verdict.   Id.     Further, Justices Cappy, Castille and Saylor filed

separate Concurring and Dissenting Opinions, all of which advocated the

defendant receive no credit for time served on home arrest/electronic

monitoring as a condition of bail. See id. at 503 (Cappy, J., concurring and

dissenting), 503-507 (Castille, J., concurring and dissenting), 507-508

(Saylor, J., concurring and dissenting).

      The Kyle Court recognized that the case-by-case approach, set forth

in the lead opinion in Chiappini, was not supported by a majority of the

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Court and, as such, lacked precedential value.     Therefore, the Court held:

“Today, we make clear that time spent on bail release, subject to electronic

monitoring, does not qualify as custody for purposes of Section 9760 credit

against a sentence of incarceration.”    Kyle, supra, 874 A.2d at 20.        The

Court further opined:

      Release on any form of bail necessarily restricts one’s liberty, but
      release to one’s home on bail subject to electronic monitoring
      does not reach the level of restriction that necessarily attends
      placement in an institutional setting. Accordingly, we hold that
      time spent subject to electronic monitoring at home is not time
      spent in “custody” for purposes of credit under Section 9760.
      The case-by-case test proposed by the lead opinion in Chiappini
      is specifically disapproved. This interpretation and resulting
      bright-line rule will obviate the necessity of evidentiary hearings
      into the particulars of each electronic monitoring program
      around the Commonwealth, which would be necessary to
      implement a case-by-case test.        This holding also has the
      salutary benefit of avoiding inconsistent results in these matters,
      based on perceived nuances in various programs across the
      Commonwealth.

Id. at 22 (internal citation omitted).      Furthermore, although the Court

acknowledged that in prior cases, “credit has been awarded … based upon

equitable circumstances[,]” it found that no such circumstances were

present in that case. Id. at 22-23. The Court concluded:

      As a practical matter, defendants now must choose whether to
      accept the condition that they post bail and spend time on
      electronic monitoring, should the court so require—in which case
      credit will not be awarded—or to forgo release on bail restriction
      and immediately serve their prison sentences—for which credit
      will be available.

Id. at 23.




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        Bove seizes upon the language in the Kyle decision recognizing that

equitable considerations may entitle a defendant to credit for time served

under electronic monitoring, to assert that such considerations are present

in his case. We disagree.

        With regard to his first claim, that “the conditions of his release were

more stringent than in a typical case[,]”9 such a “case-by-case” analysis was

specifically rejected by the Kyle Court. Id. at 22. Moreover, in support of

his assertion, Bove overemphasizes the fact that the trial court denied each

of his petitions to modify the conditions of his bail. However, upon Bove’s

filing of each petition, the trial court scheduled a hearing.          Bove does not

provide this Court with any transcripts from those hearings, or any evidence

demonstrating the court abused its discretion in denying his requests.

Indeed, Bove appears to disregard that he was initially charged with

homicide, and subject to $100,000.00 bail.              The fact that the trial court

would not permit him to attend doctor appointments with his pregnant

girlfriend, or live with her during his house arrest, is of no moment.

        We also reject Bove’s second claim that the court was contractually

required to provide him with credit for time served under the terms of his

“Electronic Monitoring Application.”           First, the application Bove attached to

his brief is not included in the certified record. “The law of Pennsylvania is

____________________________________________


9
    Bove’s Brief at 5-6.




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well settled that matters which are not of record cannot be considered on

appeal.”     Commonwealth v. Manley, 985 A.2d 256, 263 (Pa. Super.

2009), appeal denied, 996 A.2d 491 (Pa. 2010). Further, even if we were to

consider the document, the application does not state or promise that Bove

will receive credit for time served on electronic monitoring while on bail. As

the trial court explains in its opinion:

      [Bove] does not argue, and there is no indication anywhere in
      the record, that [he] at any time was assured or promised in any
      way that he would receive [S]ection 9760 credit for the time he
      spent on this program.

Trial Court Opinion, 5/7/2015, at 9. But see Commonwealth v. Kriston,

588 A.2d 898, 901 (Pa. 1991) (holding defendant was entitled to credit for

time served on electronic monitoring when he was erroneously released to

program by prison authorities, and “assured … that time spent in the

monitoring    program    would    count    towards   his   minimum   sentence”).

Accordingly, we agree with the conclusion of the trial court that Bove was

not promised he would receive credit for time served, either by the court or

as part of his electronic monitoring agreement.

      Therefore, because we find Bove’s sole claim on appeal meritless, we

affirm the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2015




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