J-S26038-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD SCOTT WANAMAKER
Appellant No. 1678 MDA 2014
Appeal from the Judgment of Sentence September 3, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0003715-2004
BEFORE: OTT, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MAY 15, 2015
Appellant Richard Scott Wanamaker appeals from the judgment of
sentence entered in the Lancaster County Court of Common Pleas following
his convictions for statutory sexual assault, indecent assault of a person less
than 13 years of age, and corruption of minors. 1 We affirm Appellant’s
convictions, but vacate his judgment of sentence and remand for
resentencing.
The trial court set forth the relevant facts and procedural history of
this appeal as follows:
Appellant sexually assaulted his female cousin an
estimated 50 times between January 1, 2002, and March
3, 2004, in Conestoga Township, Lancaster County.
During this time, when the victim was between the ages of
____________________________________________
1
18 Pa.C.S. §§ 3122.1, 3126(a)(7), and 6301(a), respectively.
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nine and eleven, Appellant engaged in sexual intercourse
with her, and fondled her vagina and buttocks.
Additionally, he showed her pornography and threatened
harm if she disclosed the sexual contact. By criminal
Information docketed to No. 3715 of 2004, Appellant was
charged on June 30, 2004, with rape, statutory sexual
assault, aggravated indecent assault, indecent assault of a
person less than 13 years of age, and corruption of
minors.
Appellant originally entered a straight guilty plea before
the Honorable Paul K. Allison on January 30, 2006, to the
charges of statutory sexual assault, indecent assault and
corruption of minors. The remaining two charges were
nolle prossed. Appellant’s conviction for these offenses
triggered the provisions of the Pennsylvania statute
commonly referred to as “Megan's Law,” 42 [Pa.C.S.] §§
9791 et seq.[2] Accordingly, sentencing was deferred
pending the completion of an evaluation conducted by the
Pennsylvania Sexual Offender Assessment Board (SOAB).
Upon completion of the evaluation, a sexually violent
predator (SVP) hearing was scheduled for July 19, 2006.
At the hearing on July 19, 2006, Appellant presented a
motion to withdraw his guilty plea. Judge Allison granted
Appellant’s request at that time, and ordered the case
listed for trial during the September 2006 Session of
Criminal Court. Appellant once again changed his mind
and on November 6, 2006, Appellant tendered a straight
guilty plea to the charges of statutory sexual assault,
indecent assault and corruption of minors. As before, the
remaining two charges were nolle prossed.
A hearing to determine whether Appellant was an SVP
pursuant to 42 [Pa.C.S.] § 9795.4(e)[3] was held at the
time of the guilty plea on November 6, 2006. At the
hearing, the Commonwealth and Appellant stipulated to
assessments done by Dr. Robert Stein, the Commonwealth
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2
This statute has been replaced by 42 Pa.C.S. § 9799.41.
3
This statute has been replaced by 42 Pa.C.S. § 9799.24.
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expert, and Dr. Timothy Foley, the defense expert. After
considering both expert reports and the arguments of
counsel, Judge Allison found that the Commonwealth had
proven, by clear and convincing evidence, that Appellant
was an SVP.
Appellant received a split sentence of 9 to 23 months,
followed by 8 years of probation, for the offense of
statutory sexual assault, and a concurrent sentence of 5
years of probation for the indecent assault charge. The
corruption of minors charge merged for sentencing
purposes with the statutory sexual assault charge. As a
result of his conviction, Appellant is required to register
with the Pennsylvania State Police for his lifetime.
Appellant filed a timely direct appeal to the Superior Court
of Pennsylvania challenging the trial court’s finding that he
was an SVP. On April 21, 2008, a three-judge panel of the
Superior Court affirmed the November 6, 2006, judgment
of sentence, which included a determination of SVP status,
in an unpublished memorandum. Appellant’s petition for
allowance of appeal was denied by the Supreme Court of
Pennsylvania on March 20, 2008.
Appellant served the maximum of the jail component of his
split sentence on Count 1 and commenced his probation on
October 10, 2008. On May 22, 2009, a capias and bench
warrant were issued for (1) failure to report for a probation
appointment on May 21, 2009, (2) failure to maintain
financial accountability (failure to pay for the polygraph),
and (3) ongoing denial of the incident offense. On June
15, 2009, the capias was amended to include an additional
allegation that Appellant was charged with a new criminal
offense. On June 11, 2009, Appellant had been charged at
Information No. 3182-2009 with the offense of Failure to
Comply with Registration of Sexual Offender
2
Requirements.
2
18 [Pa.C.S.] § 4915(a)(1).[4]
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4
This statute has been replaced by 18 Pa.C.S. § 4915.1.
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On July 23, 2009, at a parole violation hearing before the
Honorable Margaret C. Miller, Appellant was found to have
violated the conditions of probation and parole. Parole was
revoked but sentencing was deferred pending resolution of
the new charge at No. 3182-2009. On November 12,
2009, Appellant appeared before Judge Miller and was
sentenced on No. 3182-2009, Failure to Register, to 6 to
23 months incarceration followed by 5 years of probation,
with credit served from June 11, 2009. On that same
date, Appellant was sentenced on the parole violation
docketed at No. 3715-2004. On Count 1 (statutory sexual
assault) Appellant received a split sentence of one year
less a day to two years[’] less a day incarceration, to be
followed by six years of probation. Appellant was
sentenced on Count 2 (indecent assault) to a five year
probationary period concurrent with Count 1. It was
specifically noted that the sentence on this docket began
that day (November 11, 2009) and credit was given from
June 9, 2009 to June 11, 2009, due to bail being set on
No. 3182-2009 on June 11, 2009, and Appellant was
detained on the violation on the docket at issue on June 9,
2009. The time credit from June 11, 2009, until November
11, 2009, went to No. 3182-2009.
Appellant filed a motion for modification of sentence on
December 11, 2009, which was denied by Judge Miller on
December 28, 2009. On July 27, 2010, Appellant filed a
pro se petition for early parole, which was denied by Judge
Miller on July 30, 2010. [Appellant] was paroled on
November 4, 2010.
On August 11, 2011, a capias and bench warrant were
issued on Nos. 3715-2004 and 3182-2009, for Appellant’s
discharge from sex offender treatment at Commonwealth
Clinical Group on August 9, 2011, for failure to comply
with the treatment contract. Specifically, Appellant was
non-compliant with attendance at weekly groups.
On September 21, 2011, at a parole violation hearing
before the Honorable James P. Cullen, Appellant was found
to have violated the conditions of probation and parole at
Docket Nos. 3715-2004 and 3182-2009, and was
sentenced as follows. At Docket No. 3715-2004, on Count
1 (statutory sexual assault), Appellant’s parole was
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revoked and he was sentenced to serve the unexpired
balance. Judge Cullen also directed Appellant to serve a
consecutive probation of five years on Count 1. On Count
2 (indecent assault), Appellant’s probation was revoked
and he received a new five year term of probation,
consecutive to the parole sentence at Count 1. At Docket
No. 3182-2009, Appellant’s parole was revoked on Count 1
and Appellant was sentenced to the balance of the
maximum sentence. Appellant served the maximum of the
jail component of his second split sentence on Count 1 at
No. 3715-2004, and commenced his probation on August
28, 2012.
On May 21, 2013, a walk-in capias was issued on Nos.
3715-2004 and 3182-2009, for Appellant’s failure to
comply with registration of sexual offenders in October of
2012. Appellant was served with a copy of the walk-in
capias on May 31, 2013. On August 8, 2013, a marijuana
pipe and K2 synthetic marijuana were found in Appellant’s
residence during a home visit by staff from the York
County Adult Probation and Parole Office. Appellant
admitted the contraband belonged to him. Therefore, on
August 29, 2013, the walk-in capias was amended to
include the new drug charges in York County and the
Honorable Jeffery D. Wright revoked the walk-in status,
and issued a bench warrant for Appellant’s arrest.
On October 30, 2013, [the c]ourt found a probation
violation at Nos. 3715-2004 and 3182-2009, and
remanded Appellant to Lancaster County Prison for a later
sentencing following the filing of a pre-sentence
investigation report. On February 12, 2014, Appellant was
sentenced as follows. At No. 3715-2004, as to each count,
Appellant received a split sentence of 11-1/2 to 23
months[’] incarceration at LCP, followed by 3 years of
consecutive probation. The sentences were ordered to be
served concurrently. Appellant was eligible for parole
without petition after successfully completing two sessions
of sex offender counseling. The probation was terminated
as to the charge at No. 3182-2009. Parole was ultimately
granted on March 11, 2014, and was due to expire on July
28, 2015, on both counts of indecent assault and statutory
sexual assault at No. 3714-2004.
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On April 9, 2014, a capias and bench warrant were issued
on No. 3715-2004 for Appellant’s violation of Condition No.
2 of the Lancaster County Adult Probation and Parole
Office Sex Offender Program in that he failed to maintain
an approved address. Through a series of circumstances,
Appellant was reduced to a state of homelessness from
March 11, 2014, through April 9, 2014. On July 16, 2014,
[the c]ourt found a probation and parole violation and each
were revoked. Sentencing was deferred pending an
update of Appellant’s pre-sentence investigation report.
On September 3, 2014, Appellant stood for sentencing.
This Court imposed the statutory maximum sentence on
both counts; that is, a sentence of five to ten years[’]
incarceration on Count 1 (statutory sexual assault) and a
sentence of two and one-half to five years[’] incarceration
on Count 2 (indecent assault). The sentences were to be
served concurrently. Appellant was given pre-sentence
credit totaling 1,418 days on Count 1 and 369 days on
Count 2. [The c]ourt based those totals on information
provided by the Adult Probation and Parole Office as set
forth at page 2 of the PSI report. An additional 149 days
of pre-sentence incarceration stemming from the issuance
of the last capias on April 9, 2014, was also added to
Appellant’s time credit.
Appellant filed a motion to modify sentence on September
15, 2014, claiming the [c]ourt’s sentence on Count 1 was
illegal under 42 [Pa C.S.] § 9760 because Appellant did not
receive an additional 148 days of credit for the time period
from June 9, 2009, through November 4, 2009, and an
additional 370 days of credit for the time period from
August 10, 2011, through August 15, 2012. Appellant
further claims that the [c]ourt’s sentence, although within
the sentencing guidelines, was manifestly excessive and an
abuse of discretion. This [c]ourt failed to act on the
motion prior to the 30th day, and Appellant filed a timely
notice of appeal from his judgment of sentence on October
3, 2014, following his revocation of probation. See
Commonwealth v. Coleman, 721 A.2d 798
(Pa.Super.1998) (holding that the filing of a motion to
modify sentence, following a revocation of probation, does
not extend the appeal period; a defendant seeking to
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appeal a revocation order must do so within the thirty-day
time period prescribed by Pa. R.A.P. 903(a)).
Trial Court Opinion, filed November 14, 2014, at 1-7 (citations to the record
and one footnote omitted).
On October 6, 2014, the court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
and he timely complied on October 27, 2014. Appellant raises the following
issues for our review:
IN REVOKING THE PROBATION COMPONENT OF AN
ORIGINAL SENTENCE THAT WAS OF THE TYPE KNOWN AS
A “SPLIT SENTENCE,” WAS NOT THE COURT’S
IMPOSITION OF A MAXIMUM SENTENCE OF 5 TO 10 YEARS
ILLEGAL UNDER 42 PA.C.S. §9760 BECAUSE IT EXCEEDED
THE STATUTORY MAXIMUMS FOR A FELONY OF THE
SECOND DEGREE AFTER ACCOUNTING FOR PERIODS OF
TIME THAT [APPELLANT] SERVED IN JAIL THROUGHOUT
THE PROCEDURAL HISTORY OF THIS DOCKET NUMBER?
WAS THE IMPOSITION OF AN AGGREGATE PROBATION
VIOLATION SENTENCE OF 5 TO 10 YEARS[’]
INCARCERATION CLEARLY UNREASONABLE, SO
MANIFESTLY EXCESSIVE AS TO CONSTITUTE AN ABUSE
OF DISCRETION, AND INCONSISTENT WITH THE
PROTECTION OF THE PUBLIC, THE GRAVITY OF THE
OFFENSES, AND [APPELLANT’S] REHABILITATIVE NEEDS
WHERE [APPELLANT] COMMITTED TECHNICAL
VIOLATIONS ONLY AND WHERE THE SENTENCE
CONSTITUTED THE STATUTORY MAXIMUM?
Appellant’s Brief at 6.
For purposes of disposition, we will first address Appellant’s second
issue. In his second issue, Appellant challenges the discretionary aspects of
his sentence. Appellant argues his sentence was manifestly excessive in
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light of the fact that the revocation proceeding was based on technical
violations alone. He claims that the court abused its discretion by applying
the guidelines when it was clearly unreasonable to do so. We disagree.
Challenges to the discretionary aspects of sentencing do not entitle a
petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa.Super.2011). Before this Court can address such a discretionary
challenge, an appellant must comply with the following requirements:
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying
a four-part test: (1) whether appellant has filed a timely
notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether
the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is
not appropriate under the Sentencing Code.
Id.
Presently, Appellant filed a timely notice of appeal and preserved his
issues in a post-sentence motion. Further, Appellant’s brief includes a
concise statement of reasons relied upon for allowance of appeal with
respect to the discretionary aspects of his sentence pursuant to Pa.R.A.P.
2119(f). See Appellant’s Brief at 21-24. We now must determine whether
Appellant presents a substantial question that the sentence appealed from is
not appropriate under the Sentencing Code.
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“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d
526, 533 (Pa.Super.2011). Further:
A substantial question exists only when the appellant
advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.
Id. (internal citations omitted).
“An appellant making an excessiveness claim raises a substantial
question when he sufficiently articulates the manner in which the sentence
violates either a specific provision of the sentencing scheme set forth in the
Sentencing Code or a particular fundamental norm underlying the sentencing
process.” Commonwealth v. Raven, 97 A.3d 1244, 1253
(Pa.Super.2014), appeal denied, 105 A.3d 736 (Pa.2014) (internal citations
omitted).
An appellant presents a substantial question “when a sentence of total
confinement, in excess of the original sentence, is imposed as a result of a
technical violation of parole or probation.” Commonwealth v. Sierra, 752
A.2d 910, 913 (Pa.Super.2000).
Here, the trial court originally sentenced Appellant to a split sentence
of 9-23 months of incarceration, followed by 8 years of probation for
statutory sexual assault, and a concurrent sentence of 5 years of probation
for indecent assault. After serving the maximum of the jail component of his
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split sentence, Appellant commenced his probation on October 10, 2008. He
violated the terms of his probation several times, and the court sentenced
him for each violation. Most recently, the court sentenced Appellant to
concurrent terms of 5-10 years’ incarceration for statutory sexual assault
and 2½-5 years’ incarceration for indecent assault. Because Appellant’s
sentence of total confinement imposed as a result of a technical probation
violation exceeds his original sentence, Appellant raises a substantial
question for our review.
We observe:
The imposition of sentence following the revocation of
probation is vested within the sound discretion of the trial
court, which, absent an abuse of that discretion, will not be
disturbed on appeal. An abuse of discretion is more than
an error in judgment – a sentencing court has not abused
its discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will.
Commonwealth v. Simmons, 56 A.3d 1280, 1283-84 (Pa.Super.2012).
Upon revoking probation, a sentencing court may choose from any of the
sentencing options that existed at the time of the original sentencing,
including incarceration. 42 Pa.C.S. § 9771(b). However, the imposition of
total confinement upon revocation requires a finding that either “(1) the
defendant has been convicted of another crime; or (2) the conduct of the
defendant indicates that it is likely that he will commit another crime if he is
not imprisoned, or (3) such a sentence is essential to vindicate the authority
of the court.” 42 Pa.C.S. § 9771(c).
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Technical probation violations “can support revocation and a sentence
of incarceration when such violations are flagrant and indicate an inability to
reform.” Commonwealth v. Carver, 923 A.2d 495, 498 (Pa.Super.2007);
see also Sierra, 752 A.2d at 912 (incarceration was proper after appellant
failed to keep probation appointments).
Although Appellant maintains that his probation violation was not
flagrant as he only failed to report a change of address, his repeated
probation violations indicate an inability to reform. At sentencing, the court
reasoned:
[W]hat concerns me more than anything else is…your lack
of honesty and candor, the manipulation, the deception,
and the downright lies to the Probation Department. You
have been under court supervision since 2004. You’re not
a rookie to this process. You know what is required of
you. Ongoing manipulation, deception and lies with people
who have been found to be [SVPs] is dangerous because
those are the tools of people who victimize others.
You have been given many opportunities and you know
how this works; and yet even as the process was going on
to verify your address, you continued with this charade[.]
[Y]ou continued with the lies.
* * *
The court has considered the pre-sentence investigation
and all of the attachments in detail. I have considered the
guidelines of the Sentencing Code and the sentencing
guidelines. I have considered the character of [Appellant].
I have considered arguments of counsel, as well as the
statement of [Appellant]. The court has considered the
penalties authorized by the legislature.
Incarceration is warranted because a lesser sentence
would depreciate the seriousness of the crime and prevent
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a danger to the community, given [Appellant’s] ongoing
behavior.
It cannot be said, [Appellant], that you have not been
given the opportunity to comply. Again, you know what
you’re required to do and you choose to continue to lie and
manipulate.
N.T., 9/3/14, at 12-14 (some capitalization omitted).
Upon revoking Appellant’s probation, the court sentenced Appellant to
incarceration, which was one of the options that existed at the time of
original sentencing. See 42 Pa.C.S. § 9771(b). The court explained that
Appellant’s probation violation was flagrant and indicated an inability to
reform. See Carver, supra. We find no abuse of discretion in the court’s
sentence.
In his other issue on appeal, Appellant argues his sentence is illegal
because it exceeds the statutory maximum allowed by law. Specifically, he
contends the imposition of 5-10 years’ incarceration following the revocation
of his probation exceeds the statutory maximum for statutory sexual assault
because he was previously sentenced to a period of incarceration ranging
from a minimum of nine months to a maximum of twenty-three months and
has not been given credit for all of the time served on the earlier sentence.
Appellant concludes, and both the trial court and the Commonwealth
concede, that the court erred by failing to award Appellant an additional 383
days of sentencing credit for time served. We agree.
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“The issue of whether a sentence is illegal is a question of law and our
scope of review is plenary.” Commonwealth v. Crump, 995 A.2d 1280,
1283 (Pa.Super.2010) (quoting Commonwealth v. Maxwell, 932 A.2d
941, 942 (Pa.Super.2007)).
When determining the lawful maximum allowable on a split
sentence, the time originally imposed cannot exceed the
statutory maximum. See 42 Pa.C.S. § 9754; 42 Pa.C.S. §
9756; Commonwealth v. Nickens, 393 A.2d 758, 759
([Pa.Super.]1978); Commonwealth v. Perkins, 448 A.2d
70 ([Pa.Super.1982). Thus, where the maximum is ten
years, a defendant cannot receive a term of incarceration
of three to six years followed by five years[’] probation.
However, in a situation where probation is revoked on a
split sentence, as in the case sub judice, a defendant is not
entitled to credit for time spent on probation. 42 Pa.C.S. §
9771(b); see also 42 Pa.C.S. § 9760 (credit for time
served). Nor is a defendant automatically granted credit
for time served while incarcerated on the original sentence
unless the court imposes a new sentence that would result
in the defendant serving time in prison in excess of the
statutory maximum. Commonwealth v. Yakell, 876
A.2d 1040 (Pa.Super.2005); Commonwealth v.
Williams, 662 A.2d 658 ([Pa.Super.]1995).
Id. at 1284-84.
Here, Appellant has already spent 2,170 days (5.95 years) in prison,
and the court sentenced him to the maximum sentence of 5-10 years’
incarceration for statutory sexual assault. Thus, Appellant is correct that the
sentence, when combined with the time he has already served, exceeds the
statutory maximum unless he is given credit for time previously served.
Although the court gave Appellant credit for most of his days of
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incarceration, the court failed to give him credit for 383 days of that time
served, and he is entitled to it.
The relevant statute provides, in pertinent part:
§ 9760. Credit for time served
After reviewing the information submitted under section
9737 (relating to report of outstanding charges and
sentences) the court shall give credit as follows:
(1) Credit against the maximum term and any minimum
term shall be given to the defendant for 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.
(2) Credit against the maximum term and any minimum
term shall be given to the defendant for all time spent in
custody under a prior sentence if he is later reprosecuted
and resentenced for the same offense or for another
offense based on the same act or acts. This shall include
credit in accordance with paragraph (1) of this section for
all time spent in custody as a result of both the original
charge and any subsequent charge for the same offense or
for another offense based on the same act or acts.
(3) If the defendant is serving multiple sentences, and if
one of the sentences is set aside as the result of direct or
collateral attack, credit against the maximum and any
minimum term of the remaining sentences shall be given
for all time served in relation to the sentence set aside
since the commission of the offenses on which the
sentences were based.
(4) If the defendant is arrested on one charge and later
prosecuted on another charge growing out of an act or
acts that occurred prior to his arrest, credit against the
maximum term and any minimum term of any sentence
resulting from such prosecution shall be given for all time
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spent in custody under the former charge that has not
been credited against another sentence.
42 Pa.C.S. § 9760.
Here, the trial court explains:
The summary in the PSI gives Appellant no credit
whatsoever for the periods of incarceration on the second
violation proceeding. Appellant was incarcerated on
August 10, 2011, received the unexpired balance on Count
1 at No. 3715-2004 on September 21, 2011, and was
released on August 28, 2012. Appellant is entitled to 383
days of additional credit for the time period from August
10, 2011, through August 28, 2012.
Trial Court Opinion at 9.
Accordingly, we vacate the judgment of sentence, and remand with
instructions that the sentencing court apply credit to the balance of
Appellant’s sentence for 383 days he was incarcerated from August 10,
2011, through August 28, 2012.
Convictions affirmed. Judgment of sentence vacated. Remanded with
instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/2015
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