J-S08002-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

ERIN ELIZABETH HARRIGAN 

Appellant No. 980 MDA 2020

Appeal from the Judgment of Sentence entered July 9, 2020

In the Court of Common Pleas of Bradford County

Criminal Division at No: CP-08-CR-0000150-2020

BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:0 FILED MAY 26, 2021

Appellant, Erin Elizabeth Harrigan, appeals from the judgment of 

sentence imposed in the Court of Common Pleas of Bradford County on July 

9, 2020. Counsel has filed a brief and petition to withdraw pursuant to 

Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. 

Santiago, 978 A.2d 349 (Pa. 2009), challenging the discretionary aspects of 

Appellant’s sentence. We grant counsel’s petition to withdraw and affirm 

Appellant’s judgment of sentence. 

The factual and procedural background is not at issue. Briefly, “[o]n 

July 9, 2020[,] Appellant was sentenced to imprisonment the minimum of 

which is 90 days and the maximum of which is 36 months on the offense of 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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possession of drug paraphernalia, 35 P.S. § 780-113(a)(16), an ungraded 

misdemeanor. [On July 13, 2020, a] post sentence motion was filed and 

denied.” Trial Court Opinion, 10/14/20, at 1 (unnecessary capitalization 

omitted). This appeal followed.

The Anders brief challenges the discretionary aspects of Appellant’s 

sentence.1 Before we address the merits of the challenge, however, we 

must consider the adequacy of counsel’s compliance with Anders and 

Santiago. Our Supreme Court requires counsel to do the following. 

____________________________________________

1 Specifically, Appellant argues that the trial court erred in not granting 28 

days of inpatient rehabilitation toward time served. Generally, issues 

involving credit for time spent in custody involve the legality of the sentence. 

Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa. Super. 2007). 

However, as explained infra, 

whether a defendant is entitled to credit for time spent in an 

inpatient drug or alcohol rehabilitation facility turns on the 

question of voluntariness. If a defendant is ordered into 

inpatient treatment by the court, . . . then he is entitled to credit 

for that time against his sentence. By contrast, if a defendant 

chooses to voluntarily commit himself to inpatient rehabilitation, 

then whether to approve credit for such commitment is a matter 

within the sound discretion of the court.

Commonwealth v. Toland, 995 A.2d 1242, 1250-51 (Pa. Super. 2010). 

Here, it is uncontested that Appellant voluntarily entered the rehabilitation 

facility. Accordingly, it was “within the trial court’s discretion whether to 

credit time spent in an institutionalized rehabilitation and treatment program 

as time served ‘in custody.’” Commonwealth v. Conahan, 589 A.2d 1107, 

1110 (Pa. 1991). See also Commonwealth v. Shull, 148 A.3d 820, 847 

(Pa. Super. 2016), and Commonwealth v. Mincone, 592 A.2d 1375, 1376-

77 (Pa. Super. 1991) (en banc). 
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Prior to withdrawing as counsel on a direct appeal under 

Anders, counsel must file a brief that meets the requirements 

established by our Supreme Court in Santiago. The brief must:

(1) provide a summary of the procedural history and facts, 

with citations to the record;

(2) refer to anything in the record that counsel believes 

arguably supports the appeal;

(3) set forth counsel’s conclusion that the appeal is 

frivolous; and

(4) state counsel’s reasons for concluding that the appeal 

is frivolous. Counsel should articulate the relevant facts of 

record, controlling case law, and/or statutes on point that have 

led to the conclusion that the appeal is frivolous.

Counsel also must provide a copy of the Anders brief to his 

client. Attending the brief must be a letter that advises the 

client of his right to: (1) retain new counsel to pursue the 

appeal; (2) proceed pro se on appeal; or (3) raise any points 

that the appellant deems worthy of the court[’]s attention in 

addition to the points raised by counsel in the Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). 

Counsel’s brief substantially complies with these requirements by (1) 

providing a summary of the procedural history and facts; (2) referring to 

matters of record relevant to this appeal; and (3) explaining why the appeal 

is frivolous. Counsel also sent his brief to Appellant with a letter advising 

her of the rights listed in Orellana. Accordingly, all Anders’ requirements 

are satisfied. 

As noted, Appellant argues that the trial court abused its discretion by 

refusing to grant credit for time she spent in an inpatient rehabilitation 

institution. We disagree. 
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Because “there is no absolute right to appeal when challenging the 

discretionary aspect of a sentence,” Commonwealth v. Dodge, 77 A.3d 

1263, 1268 (Pa. Super. 2013), an appellant challenging the discretionary 

aspects of a sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test. We must determine: 1) whether the appellant has filed a 

timely notice of appeal; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify sentence; (3) whether 

the appellant’s brief has a fatal defect; and (4) whether there is a substantial 

question that the sentence appealed from is not appropriate under the 

Sentencing Code. Commonwealth v. Moury, 992 A.2d 162, 169-70 (Pa. 

Super. 2010). 

Upon review, we find that Appellant has timely appealed, the issue 

presented was properly preserved, and Appellant’s brief contains no fatal 

defect. We now address whether Appellant has presented a substantial 

question for review. As previously indicated, a challenge that a trial court 

failed to award credit for time served in custody prior to sentencing involves 

the legality of a sentence. Fowler, supra. Claims that allege sentencing 

illegality cannot be waived and may be raised for the first time on appeal, 

even sua sponte by this Court. See, e.g., Commonwealth v. Kitchen,

814 A.2d 209, 214-15 (Pa. Super. 2002). As such, illegality claims do not 

fall within those discretionary claims that must satisfy Rule 2119(f) before 

they may be heard on appeal by this Court. We do not have before us 
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however, an illegality claim, since as stated, the decision whether to grant 

credit for time voluntarily spent in a rehabilitative facility is left to the 

discretion of a trial court. Toland, supra; Conahan, supra; Shull, supra;

Mincone, supra. For our present purposes, we will accept that Appellant 

has presented a substantial question for our review, as we have addressed 

these claims in the past. See Shull, 148 A.2d at 847 (Pa. Super. 2016) 

(discussing the merits of Shull’s claim that the trial court erred in failing to 

award him credit for time spent in a rehabilitation center); Toland, supra.

When reviewing a challenge to the trial court’s discretion, our 

standard of review is as follows: 

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. An abuse of discretion is 

more than just an error in judgment and, on appeal, the trial 

court will not be found to have abused its discretion unless the 

record discloses that the judgment exercised was manifestly 

unreasonable, or the result of partiality, prejudice, bias, or illwill.

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012)

(quoting Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 

2002)).

The Sentencing Code provides that a defendant shall receive credit for 

all time spent in custody prior to trial:

§ 9760. Credit for time served

(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 
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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.A. § 9760(1). “The principle underlying [Section 9760] is that a 

defendant should be given credit for time spent in custody prior to 

sentencing for a particular offense.” Fowler, 930 A.2d at 595. 

The easiest application of [42 Pa.C.S.A. § 9760(1)] is when an 

individual is held in prison pending trial, or pending appeal, and 

faces a sentence of incarceration: in such a case, credit clearly 

would be awarded. However, the statute provides little explicit 

guidance in resolving the issue before us now, where [the 

defendant] spent time [somewhere other] than in prison. This 

difficulty results in part from the fact that neither Section 9760, 

nor any other provision of the Sentencing Code, defines the 

phrase “time spent in custody.” The difficulty is also a function 

of the fact that there are many forms of sentence, and many 

forms of pre-sentencing release, which involve restrictions far 

short of incarceration in a prison.

Id. at 595–96 (quotation omitted). 

In Toland we discussed how precedent distinguishes voluntary from 

court-ordered pretrial, inpatient admissions when inquiring into whether 

credit for time served should be granted or denied, explaining:

Looking at these cases together, therefore, it seems that 

whether a defendant is entitled to credit for time spent in an 

inpatient drug or alcohol rehabilitation facility turns on the 

question of voluntariness. If a defendant is ordered into 

inpatient treatment by the court, e.g., as an express condition of 

pre-trial bail, then he is entitled to credit for that time against 

his sentence. [Commonwealth v. Cozzone, 593 A.2d 860 (Pa. 

Super. 1991)]. By contrast, if a defendant chooses to voluntarily 

commit himself to inpatient rehabilitation, then whether to 

approve credit for such commitment is a matter within the sound 

discretion of the court. [Conahan, supra]. See also

[Mincone, supra] (trial court may exercise its discretion in 
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determining whether to grant defendant credit towards his 

mandatory minimum sentence of imprisonment for time 

voluntarily spent at . . . an institutionalized rehabilitation facility) 

(discussing Conahan, supra).

Toland, 995 A.2d at 1250–51.

Here, the trial court determined, and Appellant does not contest, that 

Appellant voluntarily admitted herself into rehabilitation. See Trial Court 

Opinion, 10/14/20, at 1-2; Anders Brief at 6. Given this finding, and in 

light of the authorities cited above, we decline to find the trial court abused 

its discretion in refusing to credit time served for time she spent in voluntary 

rehabilitation. Toland, supra; Shull, supra.

Appellant next argues the trial court abused its discretion in not 

allowing Appellant to serve the remainder of her sentence in a rehabilitation 

facility. 

The trial court, which had the benefit of the presentence investigation 

report, and sentenced her within the standard range of the sentencing 

guidelines, addressed this matter at the time of sentencing. In essence, the 

trial court declined Appellant’s request to serve the remainder of her 

sentence in a rehabilitation facility because she was not “taking [her 

predicament] seriously, . . . because she continues to com[m]it crimes . . .,

[and because] she performed poorly on supervised bail.” N.T. Sentencing, 

7/9/20, at 6-8. Given that the sentencing court imposed a standard-range 

sentence with the benefit of a presentence report, and that the trial court 

provided ample reasons for not granting Appellant’s request to serve the 
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remainder of her sentence in a rehabilitation facility, we will not disturb the 

trial court’s exercise of discretion. Bowen, supra.

We have conducted an independent review of the record and have 

addressed Appellant’s arguments on appeal. Based on our conclusions 

above, we agree with Appellant’s counsel that the issues Appellant seeks to 

litigate in this appeal are without merit, and our independent review of the 

record has not revealed any other meritorious issues. We affirm the 

judgment of sentence and grant counsel’s application to withdraw.

Counsel’s petition to withdraw granted. Judgment of sentence 

affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/26/2021