J-S16022-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PETER A. HOWARD,
Appellant No. 16 MDA 2014
Appeal from the Judgment of Sentence of November 19, 2013
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0000451-2012
BEFORE: PANELLA, OLSON AND OTT, JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 07, 2015
Appellant, Peter A. Howard, appeals from the judgment of sentence
entered on November 19, 2013, as made final by the denial of Appellant’s
post-sentence motion on December 3, 2013. We affirm.
The trial court has thoroughly summarized the underlying facts of this
case. As the trial court explained:
[On September 25, 2013, Appellant] entered a general nolo
contendere plea [to charges of endangering the welfare of a
child, simple assault, and recklessly endangering another
person.1 The charges arose out of allegations that Appellant
“handle[d] a two month old child in such a manner as to
cause the child to suffer bruising to the facial area, a
fracture of the left femur, and trauma to the brain which
caused the child to suffer cardiac arrest.” Criminal
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1
18 Pa.C.S.A. §§ 4304(a)(1), 2701(a)(1), and 2705, respectively.
J-S16022-15
Complaint, 12/15/12, at 2]. After the entry of his plea, the
[trial] court ordered a pre-sentence investigation. . . .
[Schuylkill County Adult Probation Department officers Neil
Stefanisko and Kelly Chapman testified during Appellant’s
November 19, 2013 sentencing hearing]. [The officers’]
testimony established that[, following Appellant’s arrest,
Appellant] was incarcerated for a period of [24] days in the
Schuylkill County Prison. . . . On March 2, 2012, the
Honorable C. Palmer Dolbin granted [Appellant’s]
application for bail reduction [and ordered that Appellant
was permitted] to remain on bail subject to electronic
[home] monitoring. Judge Dolbin directed that [Appellant]
reside at 112 East Main Street, Girardville, Pennsylvania,
subject to electronic monitoring and pay any associated
fees. [Appellant] was also to obtain and maintain
employment within [30] days, refrain from alcohol or illegal
drugs, [] remain in strict compliance with the “Children and
Youth Order,” and surrender his passport to the Clerk of
Courts Office. . . .
While on electronic monitoring, [Appellant] was permitted to
seek employment, was permitted to attend medical and
legal appointments [and] counseling sessions[,] and was
permitted to perform work in his yard after obtaining
approval from the Adult Probation Office to leave the
premises. . . . The record establish[es] that [Appellant]
spent [621] days [on] electronic [home] monitoring. . . .
At his sentencing hearing, [Appellant] demanded credit for
[the] time [he spent while] on electronic [home]
monitoring. The [trial] court denied him such credit and
gave him credit only for the [24] days [he spent while
incarcerated in the Schuylkill County Prison].
Trial Court Opinion, 1/13/14, at 2-3 (internal citations and some internal
capitalization omitted).
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Appellant filed a timely post-sentence motion on Monday, December 2,
2013.2 The trial court denied Appellant’s motion on December 3, 2013 and
Appellant filed a timely notice of appeal to this Court. Appellant raises one
claim on appeal:
Did the trial court err by not awarding Appellant 621 days of
[pre-trial] credit for time he spent on home confinement
with electronic monitoring?
Appellant’s Brief at 4.
Appellant’s claim fails.
In Commonwealth v. Kyle, the Pennsylvania Supreme Court
established a bright-line rule and expressly held that “the time spent on bail
release, subject to electronic monitoring, does not qualify as custody for
purposes of [42 Pa.C.S.A. § 9760] credit against a sentence of
incarceration.” Commonwealth v. Kyle, 874 A.2d 12, 20 (Pa. 2005). On
appeal, Appellant recognizes our Supreme Court’s holding in Kyle.
Moreover, Appellant candidly acknowledges that Kyle’s holding precluded
the trial court from giving him credit for the 621 days he spent while on
electronic home monitoring. Appellant’s Brief at 7-9. However, Appellant
claims that “Kyle was wrongly decided” and Appellant requests this Court to
“revisit the matter” and reconsider whether an individual is entitled to credit
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2
We note that the Schuylkill County Court of Common Pleas was closed on
Thursday, November 28, 2013 and Friday, November 29, 2013, for the
Thanksgiving holiday. Therefore, Appellant’s post-sentence motion was
timely, as it was filed on Monday, December 2, 2013.
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for time served while on electronic home monitoring. Appellant’s Brief at 7
and 9.
Appellant’s claim on appeal necessarily and immediately fails, as we
have no authority to overrule the binding precedent from our Supreme
Court. Therefore, since our high Court has held that “the time spent on bail
release, subject to electronic monitoring, does not qualify as custody for
purposes of [42 Pa.C.S.A. § 9760] credit against a sentence of
incarceration,” we conclude that the trial court did not err when it refused to
grant Appellant credit for the 621 days he spent while on electronic
monitoring. See, e.g., Preiser v. Rosenzweig, 614 A.2d 303, 306 (Pa.
Super. 1992) (“[a]s an intermediate appellate court, we are not free to
disregard the existing law of this Commonwealth and the decisions of our
[S]upreme [C]ourt”). Appellant’s claim to the contrary fails.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2015
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