J-S27022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL BRANCE MCCRAY                      :
                                               :
                       Appellant               :   No. 1453 WDA 2018

          Appeal from the Judgment of Sentence Entered July 25, 2018
               In the Court of Common Pleas of Cambria County
             Criminal Division at No(s): CP-11-CR-0002022-2016


BEFORE:      OLSON, J., OTT, J., and COLINS, J.*

MEMORANDUM BY OTT, J.:                              FILED SEPTEMBER 9, 2019

        Michael Brance McCray appeals from the judgment of sentence imposed

on July 25, 2018, following entry of his nolo contendere plea to Attempted

Homicide.1 McCray received a sentence of six to 16 years’ incarceration, with

credit for time served prior to his plea. McCray filed a timely post-sentence

motion seeking credit for additional time served; specifically time he spent on

bail, in home confinement with an ankle monitor. The trial court denied the

motion on September 6, 2018. This timely appeal followed. McCray claims

the trial court erred in denying him credit for the time he spent prior to trial

on home detention. After a thorough review of the submissions by the parties,

relevant law, and the certified record, we affirm.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 901/2501(a).
J-S27022-19



      In this appeal, McCray challenges the legality of his sentence.

Accordingly,

      “When reviewing the legality of a sentence, our standard of
      review is de novo and our scope of review is plenary.”
      Commonwealth v. Seskey, 170 A.3d 1105, 1107 (Pa. Super.
      2017). Where a sentence is found to be illegal, it must be vacated.
      Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super. 2014).

Commonwealth v. Lekka, 210 A.3d 343, 355 (Pa. Super. 2019).

      In denying McCray relief, the trial court succinctly noted there is no

credit for time served when the defendant is on bail and subject to electronic

monitoring. See Commonwealth v. Kyle, 874 A.2d 12 (Pa. 2005). The

Kyle decision specifically abrogated the case-by-case approach to such

determinations from Commonwealth v. Chiappini, 782 A.2d 490 (Pa.

2001), and disapproved of the application of the case-by-case approach as

exemplified in Commonwealth v. Vanskiver, 819 A.2d 69 (Pa. Super. 2003)

(en banc). Our Supreme Court stated:

       Today, we make clear that time spent on bail release, subject to
       electronic monitoring, does not qualify as custody for purposes
       of Section 9769 credit against a sentence of incarceration. As
       this author [Justice Castille] noted in Chiappini:

          [T]he reality here is that [Chiappini] was subject to the
          home confinement/electronic monitoring program as a
          condition of his release on bail. Bail is neither a form of,
          nor in any way synonymous with, custody or
          imprisonment; rather it is a form of release from
          custody.

       [Chiappini], at 503 (Castille, J. concurring and dissenting).

Commonwealth v. Kyle, 874 A.2d at 638.



                                     -2-
J-S27022-19



        McCray analogizes his situation to Commonwealth v. Wegley, 829

A.2d 1148 (Pa. 2003), wherein the Supreme Court determined a person

subjected to electronic monitoring on house arrest as part of sentence, was

considered to be detained for purposes of the application of a charge of

escape. This reliance is unavailing.

        First, Wegley’s electronic monitoring was part of his sentence; he was

not subjected to electronic monitoring as a condition of pre-trial bail. The two

situations are, therefore, distinguishable.         The Kyle decision considered

Wegley in distinguishing between electronic monitoring for pre-trial bail and

actual sentence.2 Kyle set forth a bright line rule forbidding credit for time

served for pre-trial electronic monitoring. Second, the Kyle decision post-

dates Wegley by almost two years.              Our Supreme Court could well have

applied Wegley as suggested by McCray, but it did not. Third, and finally, to

the extent McCray’s argument can be seen as a plea to return to a case-by-

case review, as noted above, that approach has been specifically rejected by

Kyle.

        In light of the above, we find no error of law in the trial court’s denial of

McCray’s post-sentence motion seeking credit for time served while on

electronic monitoring as part of pre-trial bail.

        Judgment of sentence affirmed.




____________________________________________


2   Kyle, 874 A.3d at 630-31.

                                           -3-
J-S27022-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2019




                          -4-
