J-S09021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

FRANK JOHNSON,

                        Appellant                 No. 1073 WDA 2014


                Appeal from the PCRA Order June 9, 2014
           In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0018920-2008


BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY BOWES, J.:                          FILED MARCH 13, 2015

     Frank Johnson appeals from the order entered June 9, 2014, denying

his PCRA petition. After careful review, we vacate and remand for additional

proceedings.

     On August 2, 2011, a jury found Appellant guilty of two counts of

possession with intent to deliver (“PWID”) cocaine, possession of cocaine,

possession of drug paraphernalia, possession of a small amount of

marijuana, and criminal conspiracy to commit PWID.      The court imposed

sentence on October 17, 2011.       Based on 18 Pa.C.S. § 7508, a drug

mandatory minimum statute relating to prior convictions and the weight of

the drugs involved, the court imposed a five to ten year sentence on one

count of PWID. The court further imposed a consecutive two and one-half to
J-S09021-15


five year sentence for the conspiracy charge. In addition, the court awarded

Appellant 453 days of credit for time served.

      Appellant filed a timely post-sentence motion and trial counsel also

sought to withdraw. Trial counsel was permitted to withdraw and substitute

counsel was appointed and filed a modified post-sentence motion. The trial

court denied that motion and Appellant timely appealed. This Court affirmed

the judgment of sentence.      Commonwealth v. Johnson, 63 A.3d 820

(Pa.Super. 2012) (unpublished memorandum). Thereafter, Appellant sought

review with the Pennsylvania Supreme Court, which denied his petition for

allowance of appeal on April 30, 2013.     Commonwealth v. Johnson, 65

A.3d 413 (Pa. 2013).

      Appellant timely filed a pro se PCRA petition on July 22, 2013.     The

PCRA court promptly appointed PCRA counsel on July 24, 2013, and directed

counsel to file an amended petition.     Initial PCRA counsel withdrew as a

result of a conflict of interest, and the court appointed substitute counsel.

New PCRA counsel then filed an amended petition arguing that Appellant’s

sentence was illegal based on Alleyne v. United States, 133 S.Ct. 2151

(2013), a decision filed after Appellant’s trial, sentencing, and this Court’s

decision on direct appeal.   Specifically, Appellant alleged that his sentence

was illegal because the jury did not determine the weight of the cocaine that

triggered application of the mandatory sentence. The Commonwealth filed a

response, and the PCRA court issued a Pa.R.Crim.P. 907 notice of dismissal


                                     -2-
J-S09021-15


on May 7, 2014. The PCRA court entered a final order denying Appellant’s

petition on May 28, 2014. New counsel was appointed on June 30, 2014,

and this timely appeal followed.

      The PCRA court directed Appellant to file and serve a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.           Appellant

complied, and the PCRA court authored its opinion. The matter is now ready

for this Court’s review.     Appellant raises three issues for this Court’s

consideration.

      1. Whether Defendant is entitled to additional credit for the
         period of February 12 to 27, 2009 because he was detained
         for that period on account of the instant matter and the
         period of February 28, 2009 to April 15, 2009 because he was
         detained for probation violation proceedings based, in part,
         upon the new charges in the instant matter and where credit
         for either of those periods was not applied to any other
         case/matter?

      2. Whether the sentence imposed was illegal as the jury did not
         find beyond a reasonable doubt that the defendant was in
         possession of more than 10 but less than 100 grams of
         cocaine as required under the Sixth Amendment to the United
         States Constitution and Alleyne v. United States, --- U.S. --
         -, 133 S.Ct. 2151 (2013)?

      3. Whether the decision in Alleyne v. United States, --- U.S. -
         --, 133 S.Ct. 2151 (2013) applies retroactively to cases on
         collateral review?

Appellant’s brief at 3.

      Appellant’s initial challenge is to the court’s failure to award credit for

time served from February 12, 2009 to April 15, 2009.         Claims related to

credit for time served for periods spent incarcerated prior to sentencing have



                                      -3-
J-S09021-15



been held to relate to the legality of one’s sentence.   Commonwealth v.

Hollawell, 604 A.2d 723 (Pa.Super. 1992); Commonwealth v. Beck, 848

A.2d 987 (Pa.Super. 2004); Commonwealth v. Davis, 852 A.2d 392

(Pa.Super. 2004). Accordingly, the issue, if raised in a timely PCRA matter,

is non-waivable. Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999).

Since the question is one of law, our standard of review is de novo and our

scope of review is plenary. Commonwealth v. Pander, 100 A.3d 626, 630

(Pa.Super. 2014) (en banc).

     Appellant argues that from February 12, 2009 until February 27, 2009,

he was incarcerated as a result of the charges in the instant case.       He

continues that from February 28, 2009 until April 15, 2009, he was detained

for a probation violation based, in part, on the charges in this case.

Importantly, Appellant maintains that he did not receive credit for these

periods at any other case.

     The PCRA court opined that Appellant had received credit for these

periods in separate contempt matters, citing four family division cases.

However, Appellant disputes that contention, and the Commonwealth

candidly acknowledges that the current record does not adequately indicate

that Appellant was awarded credit at either this case or the cases referenced




                                    -4-
J-S09021-15



by the PCRA court.1 Since Appellant has raised an issue of material fact, and

we are unable to discern from the certified record whether the issue has no

merit, we remand for the PCRA court to conduct a hearing to clarify and

make a record as to whether Appellant is entitled to credit for the periods

mentioned. See Pa.R.Crim.P. 908(A)(2).

       Appellant’s second and third issues are interrelated as they both

concern the United States Supreme Court decision in Alleyne, supra.                In

Alleyne, the High Court held that the constitutional jury trial right requires

any fact, other than a prior conviction, that triggers a mandatory minimum

sentence,     be   proven     beyond      a    reasonable   doubt   before   a   jury.

Subsequently, this Court, though recognizing the distinction between a jury

trial right claim and illegal sentencing issues, opined that an Alleyne claim

can implicate the illegal sentencing paradigm. Commonwealth v. Watley,

81 A.3d 108 (Pa.Super. 2013) (en banc).

       In addition, in a host of other decisions from this Court, involving

direct appeals, we have found that Alleyne issues are non-waivable illegal

sentencing claims.        Commonwealth v. Ferguson, 2015 PA Super 1;

Commonwealth v. Wolfe, 2014 PA Super 288; Commonwealth v.

Fennell, 2014 PA Super 261, Commonwealth v. Cardwell, 2014 PA Super


____________________________________________


1
  The dockets for the case numbers cited by the PCRA court do not contain
any orders that establish that Appellant was held in contempt and
incarceration was ordered in those cases.



                                           -5-
J-S09021-15



263; Commonwealth v. Valentine, 100 A.3d 801 (Pa.Super. 2014);

Commonwealth           v.    Lawrence,         99    A.3d    116    (Pa.Super.   2014);

Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc);

Commonwealth           v.   Matteson,          96    A.3d    1064   (Pa.Super.   2014);

Commonwealth           v.   Thompson,           93    A.3d    478   (Pa.Super.   2014);

Commonwealth v. Munday, 78 A.3d 661 (Pa.Super. 2013).2
____________________________________________


2
  Aside from Alleyne-related issues, in a long line of other cases, both this
Court and our Supreme Court have construed various mandatory minimum
sentencing claims as legality of sentence questions. See Commonwealth
v. Akbar, 91 A.3d 227 (Pa.Super. 2014); Commonwealth v. Armstrong,
74 A.3d 228 (Pa.Super. 2013); Commonwealth v. Baker, 72 A.3d 652
(Pa.Super. 2013); Commonwealth v. Hopkins, 67 A.3d 817 (Pa.Super.
2013); Commonwealth v. Hawkins, 45 A.3d 1123 (Pa.Super. 2012);
Commonwealth v. Stein, 39 A.3d 365 (Pa.Super. 2012), disapproved on
other grounds by, Commonwealth v. Hanson, 82 A.3d 1023 (Pa. 2013);
Commonwealth         v.   Stokes,    38  A.3d     846    (Pa.Super.   2012);
Commonwealth         v.   Poland,    26  A.3d     518    (Pa.Super.   2011);
Commonwealth         v.   Kittrell,  19   A.3d    532    (Pa.Super.   2011);
Commonwealth v. Carpio-Santiago, 14 A.3d 903 (Pa.Super. 2011);
Commonwealth v. Madeira, 982 A.2d 81 (Pa.Super. 2009);
Commonwealth v. McKibben, 977 A.2d 1188 (Pa.Super. 2009);
Commonwealth v. Foster, 960 A.2d 160 (Pa.Super. 2008), affirmed, 17
A.3d 332 (Pa. 2011) (OAJC); Commonwealth v. Rush, 959 A.2d 945
(Pa.Super. 2008); Commonwealth v. Love, 957 A.2d 765 (Pa.Super.
2008); Commonwealth v. Diamond, 945 A.2d 252 (Pa.Super. 2008);
Commonwealth v. Stafford, 932 A.2d 214 (Pa.Super. 2007);
Commonwealth v. Harley, 924 A.2d 1273 (Pa.Super. 2007);
Commonwealth v. Johnson, 920 A.2d 873 (Pa.Super. 2007);
Commonwealth v. Littlehales, 915 A.2d 662 (Pa.Super. 2007);
Commonwealth v. Bongiorno, 905 A.2d 998 (Pa.Super. 2006);
Commonwealth         v.   Bell,    901  A.2d    1033    (Pa.Super.    2006);
Commonwealth v. Jacobs, 900 A.2d 368 (Pa.Super. 2006) (en banc)
(noting in dicta that certain mandatory minimum sentencing claims present
legality of sentence issues); Commonwealth v. Edrington, 780 A.2d 721
(Pa.Super. 2001); Commonwealth v. Wynn, 760 A.2d 40 (Pa.Super.
(Footnote Continued Next Page)


                                           -6-
J-S09021-15



      In Watley, this Court also distinguished between applying Alleyne on

direct appeal and collateral review. We noted that a case may be retroactive

on direct appeal, but not during collateral proceedings. Watley, supra at

117 n.5. Thus, while this Court has held that Alleyne applies retroactively

on direct appeal, see Newman, supra, we have declined to construe that

decision   as    applying       retroactively     to   cases   during   PCRA   review.

Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014).

      In Miller, the PCRA petitioner attempted to utilize Alleyne as a

timeliness exception to the PCRA’s one-year-time-bar based on the

retroactive new constitutional rule exception.            Miller, however, had been

sentenced to a mandatory minimum based on prior convictions for violent

crimes and Alleyne itself held that it did not apply to prior convictions. See
                       _______________________
(Footnote Continued)

2000), reversed on other ground, 786 A.2d 202 (Pa. 2001); see also
Commonwealth v. Taylor, __ A.3d __ (Pa. 2014) (filed November 20,
2014) (failure to order mandatory drug and alcohol assessment prior to
sentencing, in violation of statutory language, presented legality of sentence
issue); Commonwealth v. Vasquez, 744 A.2d 1280 (Pa. 2000)
(Commonwealth’s issue on appeal, regarding failure to impose a mandatory
fine under 18 Pa.C.S. § 7508, was non-waivable illegal sentencing claim);
Commonwealth v. Eisenberg, 98 A.3d 1268 (Pa. 2014) (constitutional
challenge to mandatory minimum fine was illegal sentencing question).

      In Commonwealth v. Williams, 787 A.2d 1085 (Pa.Super. 2001), a
panel of this Court did hold that a constitutional challenge to 42 Pa.C.S.
§ 9712, based upon a violation of the defendant’s jury trial rights, was a
discretionary sentencing claim. That decision is no longer valid in light of
decisions such as Newman. Of course, in Commonwealth v. Lawrence,
99 A.3d 116 (Pa.Super. 2014), this Court held that constitutional challenges
based on equal protection and ex post facto claims, relative to a mandatory
minimum statute, did not present non-waivable illegal sentencing questions.



                                            -7-
J-S09021-15



Alleyne, supra at 2160 n.1; see also Watley, supra at 117 n.3. Thus,

Alleyne had no application to the petitioner therein. Cf. Commonwealth

v. Chambers, 35 A.3d 34 (Pa.Super. 2011) (holding of case and not its

rationale determines whether case meets retroactive new constitutional rule

exception).    However, the Miller panel discussed, in dicta, whether either

the United Supreme Court or Pennsylvania Supreme Court held Alleyne

retroactive.    The Miller Court opined that because neither high court

announced that Alleyne applied retroactively, it could not qualify as a

timeliness exception. The panel was not faced with the separate question of

whether it could consider Alleyne retroactive during a timely PCRA petition,

despite the United States Supreme Court not having held Alleyne to be

retroactive.   See Danforth v. Minnesota, 552 U.S. 264 (2008) (holding

that state courts may grant broader retroactive effect to a United States

Supreme Court constitutional ruling).

      Even construing much of the Miller decision as dicta, and recognizing

that Miller involved an untimely PCRA petition, Appellant is not entitled to

Alleyne relief during collateral review. The seminal test in determining

whether a constitutional rule is new and warrants retroactive application

during collateral review was delineated in Teague v. Lane, 489 U.S. 288

(1989) (plurality), and has been accepted by a majority of the United States

Supreme Court.     See Commonwealth v. Lesko, 15 A.3d 345, 363 (Pa.

2011) (citing Butler v. McKellar, 494 U.S. 407 (1990)). We are cognizant

that Teague involved federal habeas review and did not consider whether

                                     -8-
J-S09021-15



state courts “can provide remedies for violations of [newly-recognized

constitutional] rights in their own postconviction proceedings.”     Danforth,

supra at 275. As Danforth stated, Teague spoke only to the context of

federal habeas. Id. at 280-281.

      In addition, we acknowledge that in Commonwealth v. McCormick,

519 A.2d 442 (Pa.Super. 1986), this Court held in a pre-Teague direct

appeal case that Pennsylvania courts are not bound by United States

Supreme Court determinations that a new rule is not retroactive. This view

was accepted by the United States Supreme Court in Danforth, which, as

noted, permits state courts to declare a federal constitutional right

retroactive even if the United States Supreme Court has declined to do so.

This Court could, therefore, theoretically utilize the Teague test and

conclude a new constitutional rule was retroactive despite a contrary finding

by the Supreme Court in a timely PCRA matter. Danforth, supra; but see

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013). Of course, such a

ruling by this Court would not provide a timeliness exception for PCRA

petitioners who did not timely file a petition.

      “Under the Teague framework, an old rule applies both on direct and

collateral review, but a new rule is generally applicable only to cases that are

still on direct review.    A new rule applies retroactively in a collateral

proceeding only if (1) the rule is substantive or (2) the rule is a ‘watershed

rule of criminal procedure’ implicating the fundamental fairness and accuracy



                                      -9-
J-S09021-15


of the criminal proceeding.”         Whorton v. Bockting, 549 U.S. 406, 416

(2007) (internal citations omitted).3

       Our Supreme Court has utilized the Teague test in examining

retroactivity issues during state collateral review.     Commonwealth v.

Bracey, 986 A.2d 128 (Pa. 2009) (discussing Teague and substantive

Atkins rule); Commonwealth v. Hughes, 865 A.2d 761 (Pa. 2004)

(discussing Teague and whether a new rule was a watershed procedural

rule); see also Cunningham, supra at 8 (“This Court, however, generally

has looked to the Teague doctrine in determining retroactivity of new

federal constitutional rulings.”).

       In Cunningham, the Court acknowledged that “this practice is subject

to potential refinement” and “is not necessarily a natural model for

retroactivity jurisprudence as applied at the state level.”    Cunningham,

supra at 8.      However, it ultimately applied the Teague formulation.    In

Teague, the Supreme Court sua sponte addressed the issue of retroactivity

and stated, “[r]etroactivity is properly treated as a threshold question, for,

once a new rule is applied to the defendant in the case announcing the rule,


____________________________________________


3
   In Danforth v. Minnesota, 552 U.S. 264 (2008), the Supreme Court set
forth that it did not decide “whether States are required to apply ‘watershed’
rules in state post-conviction proceedings[.]” Danforth, supra at 269 n.4.
The dissent, however, opined, “a state court considering a federal
constitutional claim on collateral review should follow the federal rule on
whether new or old law applies.” Id. at 307 n.3 (Roberts, C.J. dissenting).



                                          - 10 -
J-S09021-15


evenhanded justice requires that it be applied retroactively to all who are

similarly situated.” Teague, supra at 300-01. The Court continued,

      It is admittedly often difficult to determine when a case
      announces a new rule, and we do not attempt to define the
      spectrum of what may or may not constitute a new rule for
      retroactivity purposes. In general, however, a case announces a
      new rule when it breaks new ground or imposes a new obligation
      on the States or the Federal Government. See, e.g., Rock v.
      Arkansas, 483 U.S. 44, 62, 107 S.Ct. 2704, 2714, 97 L.Ed.2d 37
      (1987) (per se rule excluding all hypnotically refreshed testimony
      infringes impermissibly on a criminal defendant's right to testify
      on his behalf); Ford v. Wainwright, 477 U.S. 399, 410, 106
      S.Ct. 2595, 2602, 91 L.Ed.2d 335 (1986) (Eighth Amendment
      prohibits the execution of prisoners who are insane). To put it
      differently, a case announces a new rule if the result was not
      dictated by precedent existing at the time the defendant's
      conviction became final.

Id. at 301 (emphasis in original); see also Hughes, supra at 780.

      We have little hesitation in holding that Alleyne was a new

constitutional rule as it expressly overruled Harris v. United States, 536

U.S. 545 (2002), and implicitly abrogated McMillan v. Pennsylvania, 477

U.S. 79 (1986). Of course, whether the constitutional rule announced is new

is merely the first step in examining the retroactive effect of a United States

Supreme    Court   decision.    The    Teague   Court   explained   that   new

constitutional rules “generally should not be applied retroactively to cases on

collateral review.” Teague, supra at 305-06. In Penry v. Lynaugh, 492

U.S. 302 (1989), abrogated on other grounds by Atkins, supra, the

Supreme Court more fully delineated the law governing retroactivity.

      In Teague, we concluded that a new rule will not be applied
      retroactively to defendants on collateral review unless it falls

                                      - 11 -
J-S09021-15


      within one of two exceptions. Under the first exception articulated
      by Justice Harlan, a new rule will be retroactive if it places
      “‘certain kinds of primary, private individual conduct beyond the
      power of the criminal law-making authority to proscribe.’”
      Teague, supra, at 307, 109 S.Ct., at 1073 (quoting Mackey,
      401 U.S., at 692, 91 S.Ct., at 1179 (Harlan, J., concurring in
      judgments in part and dissenting in part)). Although Teague
      read this exception as focusing solely on new rules according
      constitutional protection to an actor's primary conduct, Justice
      Harlan did speak in terms of substantive categorical guarantees
      accorded by the Constitution, regardless of the procedures
      followed.     This Court subsequently held that the Eighth
      Amendment, as a substantive matter, prohibits imposing the
      death penalty on a certain class of defendants because of their
      status, Ford v. Wainwright, supra, 477 U.S., at 410, 106
      S.Ct., at 2602 (insanity), or because of the nature of their
      offense, Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53
      L.Ed.2d 982 (1977) (rape) (plurality opinion). In our view, a new
      rule placing a certain class of individuals beyond the State's
      power to punish by death is analogous to a new rule placing
      certain conduct beyond the State's power to punish at all. In both
      cases, the Constitution itself deprives the State of the power to
      impose a certain penalty.

Penry, supra at 329-30; see also Schriro v. Summerlin, 542 U.S. 348,

352 n.4 (2004).

      As noted, the United States Supreme Court has utilized a substantive

and procedural rule dichotomy in analyzing retroactivity. Substantive rules

are those that decriminalize conduct or prohibit punishment against a class

of persons. See Hughes, supra at 781. Concomitantly, the Supreme Court

has made clear that “rules that regulate only the manner of determining

the defendant's culpability are procedural.” Schriro, supra at 353 (citation

omitted) (emphasis in original). A constitutional criminal procedural rule will

not apply retroactively unless it is a watershed rule that implicates the


                                    - 12 -
J-S09021-15


fundamental fairness and accuracy of the criminal proceeding. A procedural

rule is considered watershed if it is necessary to prevent an impermissibly

large risk of an inaccurate conviction and alters the understanding of the

bedrock procedural elements essential to the fairness of a proceeding. See

Whorton, supra at 418. The only rule explicitly recognized by the United

States Supreme Court as a watershed criminal procedural rule was

announced in Gideon v. Wainwright, 372 U.S. 335 (1963),4 i.e., the right

to counsel during a felony criminal prosecution. Whorton, supra at 419.

        Instantly, the Alleyne ruling does not prohibit punishment for a class

of offenders nor does it decriminalize conduct. Rather, Alleyne procedurally

mandates the inclusion of facts in an indictment or information, which will

increase a mandatory minimum sentence, and a determination by a fact-

finder of those facts beyond a reasonable doubt.    Alleyne, therefore, is not

substantive. Nor do we find Alleyne to consist of a watershed procedural

rule.   See also United States v. Reyes, 755 F.3d 210 (3rd Cir. 2014);

United States v. Redd, 735 F.3d 88, 91–92 (2d Cir.2013); In re Payne,

733 F.3d at 1029–30; In re Kemper, 735 F.3d 211, 212 (5th Cir. 2013);

Simpson v. United States, 721 F.3d 875 (7th Cir. 2013).

        In this regard, we find the United States Supreme Court decision in

Schriro, supra and its discussion of Ring v. Arizona, 536 U.S. 584 (2002),
____________________________________________


4
  Gideon v. Wainwright, 372 U.S. 335 (1963), involved a case arising from
Florida habeas review.



                                          - 13 -
J-S09021-15


instructive.   Preliminarily, Ring involved a successful Apprendi5 challenge

to a death penalty statute.           Alleyne, it should be remembered, relied

heavily on the Apprendi rationale. The High Court, in considering whether

Ring applied retroactively, ruled that whether a judge or jury determined

the facts essential to the increased punishment, beyond a reasonable doubt,

was not material to the fundamental fairness or accuracy of capital

sentencing.      See Schriro, supra.           Therefore, the distinction between

whether a judge or jury determines the facts at issue does not result in the

procedure announced in Alleyne being a watershed rule.

       We acknowledge that the Alleyne decision involves not just a change

in who determines the facts essential to punishment, but also the burden of

proof that is to be applied.6 This, however, is no different from Apprendi,

which no Pennsylvania court has found retroactive, and has not been held

retroactive by the United States Supreme Court.           Moreover, Alleyne does

not create an entirely new procedure.              Rather, it merely applies long

standing jury trial procedures into the setting of mandatory minimums, i.e.,

including facts in an indictment (or information) and requiring proof beyond

a reasonable doubt of those facts. Although submission to a jury of certain

facts may lead to more acquittals of the now “aggravated crime,” it does not
____________________________________________


5
    Apprendi v. New Jersey, 530 U.S. 466 (2000).
6
  In Ring v. Arizona, 536 U.S. 584 (2002), the judge was already required
to determine the aggravating facts beyond a reasonable doubt.



                                          - 14 -
J-S09021-15


undermine the underlying conviction or sentence of the “lesser crime.” This

is because, in Pennsylvania, absent the jury finding the applicable facts, the

defendant could receive the identical sentence for the “lesser crime.”

Phrased differently, it is immaterial whether a judge determines the weight

of the drugs by a preponderance of the evidence, or a jury finds the weight

of the drugs beyond a reasonable doubt. In each situation, the court could

have imposed a five to ten year sentence for the conviction of PWID cocaine,

irrespective of the then-applicable mandatory minimum sentencing statute.

See 35 P.S. § 780-113(f). Hence, the fundamental fairness of the trial or

sentencing is not seriously undermined.

      Appellant, nonetheless, argues that because he is entitled to a

resentencing hearing to award him credit for time served, his initial sentence

will no longer be final. Accordingly, he maintains that any appeal therefrom

would constitute a direct appeal subject to application of Alleyne. The

Commonwealth posits a different possibility not raised by Appellant. That is,

it asserts that Appellant’s petition for allowance of appeal was pending when

Alleyne was decided.      Thus, it submits that Alleyne may have been

applicable to Appellant while he was on direct appeal, although our Supreme

Court did not accept his case for review. As Appellant does not forward this

argument, we do not reach it.     See Commonwealth v. Briggs, 12 A.3d

291, 344 (Pa. 2011) (declining to review Eighth Amendment and Article I, §

13 claims due to inadequate briefing by the appellant); see also


                                    - 15 -
J-S09021-15


Commonwealth v. Belak, 825 A.2d 1252, 1256 n. 10 (Pa. 2003) (declining

to address legality of sentence question where issue was not included in

petition for allowance of appeal or original brief).

      To the extent Appellant’s argument is premised on a proceeding or

events that have not taken place, i.e., being awarded credit for time served,

it would be premature to consider whether an order directing Appellant to

receive such credit would allow him to attack his original sentence as illegal

under Alleyne in a subsequent appeal.

      Order vacated. Case remanded for additional proceedings. Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2015




                                      - 16 -
