J

### -S10036-17 NON-PRECEDENTIALDECISION - SEE 

### SUPERIORCOURT

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA

1 IN THE SUPERIORCOURT OF PENNSYLVANIA

v. THOMAS GUILFORD Appellee



### Appellant No. 1534 EDA 2016 Appeal

### from theJudgmentofSentencedatedApril 22, 2016 In the CourtofCommon Pleas 

### of Philadelphia County Criminal Division at No(s): 

### CP-51-CR-0000322-2015 BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J. MEMORANDUM BY SOLANO, J.: 

### FILED MAY

### 09, 2017 Appellant, Thomas 

### Guildford, appeals 

### from the

### judgment of sentence imposed by the 

### trial court 

### after it convicted him of illegal possession of a 

### firearm, carrying a 

### firearm

### without a license, and 

### illegally carrying a

### firearm in public in 

### Philadelphia.' We 

### affirm Appellant'sconvictions, butvacate the 

### judgmentofsentence. The 

### trial court summarized the factual background underlying Appellant's convictions as

### follows: On November 26, 2014, Philadelphia Police Officers 

### Tritz and D'Alesio received a radio call concerning a 

### light blue two- door vehicle casing a 

### jewelry store in the shopping 

### strip mall near City Line and Haverford Avenues. The 

### officers observed a car 

### fitting that description pulling 

### out of 

### that location 

### with its 

### center brake 

### light malfunctioning. When the officers activated 

### their lights, the vehicle fled, making several 

### quick 

### turns and 

### ' 18 Pa.C.S. §§ 6105, 6106 and 

### 6108, respectively.J

### -S10036-17 striking two parked cars on the south side 

### of Brentwood Road and then crashing into a parked car on 

### the other side of Brentwood Road. During 

### this car chase, 

### [Appellant] could be observed in the backseat, removing the Muslim garb inwhich he was dressed. At

### thattime, [Appellant] 

## - the rear seat passenger of his two door sedan, 

### jumped out of the vehicle and ran westbound on Brentwood Road. 

### [Appellant] was captured in the middle ofthe block by two 

### other responding 

### patrolmen. Officers 

### Tritz and D'Alesio 

### took the 

### driver and 

### front seat passenger into custody, observing as 

### they did, a loaded 

### silver Colt 

### semiautomatic handgun on the rear seat passenger-side 

### floorboard, where 

### [Appellant] had been seated. From the 

### front passenger seat

### floorboard a handgun was recovered 

### [and] later determined to be a BB gun. Rubber surgical gloveswere found on the 

### floor beneath the 

### driver. Also 

### retrieved from the back seat was the Muslim garb 

### [Appellant] was seen removing during the car chase. 

### It was 

### later determined 

### that [Appellant] was the owner of the fleeing vehicle. The prosecution 

### submitted a 

### Certificateof Non-Licensure as well as a 

### criminal 

### extract showing 

### that [Appellant] was not licensed as well as 

### ineligible to possess theweapon. Trial Ct. Op., 

### 7/18/16, at 3 

### (citationsto notes of

### testimony omitted). Appellant was charged

### with theaforementionedfirearmsviolations and convicted following a December9, 2015 bench 

### trial. On April 22, 2016, the 

### trial court sentenced him to 5 to 10 

### years' incarceration 

### for illegally possessing a 

### firearm, with a consecutive 5 

### years' probation 

### for carrying a 

### firearm 

### without a license, and a 

### concurrent 5 

### years' probation 

### for illegally carrying a 

### firearm in public in Philadelphia. He filed a 

### motion 

### for reconsideration of sentence on April 29, 2016 in which he asserted 

### that his 

### convictionswere against thesufficiency and the 

### weight of the evidence and his sentence was excessive. Before the 

### trial court ruled on his 

### motion for



## -2J

### -S10036-17
reconsideration ofsentence, 

### Appellantfiled a notice ofappeal.2 On May 21, 2016, the 

### trial court denied 

### Appellant's motion 

### for reconsideration of sentence. 

### That same day, the 

### trial court ordered 

### Appellant to file a 

### statement of 

### matters complained of on appeal 

### pursuant to Pa.R.A.P. 

### 1925(b). Appellant complied by 

### filing a 

### statement which in its 

### entirety reads: STATEMENT OF ERRORS COMPLAINED OF ON APPEAL PURSUANT TO Pa.R.A.P. 

### 1925(b) I. 

### Whethertheweight ofthe evidencewas enoughto sustain a 

### conviction pursuant to Rule 607. The evidence was not 

### sufficient to sustain a 

### conviction pursuantto Rule 606 and the 

### weight of the evidence was not enough to sustain a 

### conviction pursuantto Rule 607. 

### II. TheTrial Court erred by imposing an 

### "excessive sentence" violating the Pennsylvania Sentencing Code, 42 Pa. C.S. § 9701 et seq. by not

### following the general principle 

### thatthe sentenceimposed should call

### for 1)

### confinement consistent with the protection of the public, 2) the 

### gravity of the offense as it relates to the impact on the life ofthe

### victim; and 3) the 

### rehabilitative needs of the 

### defendant, and amounted to an abuse of 

### discretion. See, 42 Pa. C.S. § 

### 9721(B). Statement of Errors and Matters Complained of Pursuant to Pa.R.A.P. 

### 1925(b), 

### 6/13/16.

2 

### Although the 

### trial court did not 

### enter its 

### order denying 

### Appellant's motion for reconsideration of sentence 

### until May 31, 2016, Pa.R.A.P. 

### 905(a)(5) provides"A noticeofappeal filed 

### afterthe announcement of a 

### determination but before the 

### entry of an appealable 

### order shall be 

### treated as filed 

### after such

### entry and onthe day

### thereof."

## -3J

### -S10036-17 Conversely, in his 

### appellate brief, Appellant presents the following three issues: 1. 

### Whether the Court 

### improperly denied the defense Motion to Dismiss 

### pursuantto 

### 600(A)(2)(a)? 2. 

### Whether the Court 

### improperly denied the defense Motion to Suppress

### Arrestand Evidence? 3. 

### Whether there is needed a Correction of Sentence 

### for Credit 

### forTimeServed? 

### Appellant's Briefat 7. The

### three issues briefed and argued by

### Appellant on appeal are absent from his Pa.R.A.P. 

### 1925(b) statement.3 Clearly the 

### first two issues 

## - asserting 

### errors pertaining to Rule 600 and suppression 

## - are being raised 

### for the

### firsttime, as shown bythe certified record as well as the

### trial court's Rule 

### 1925(a) opinion discussingthe 

### sufficiency and

### weight issues set

### forth in 

### Appellant's Rule 

### 1925(b) statement. See Trial Ct. Op., 

### 7/18/16, at 

### 4-6. The Rules of 

### Appellate Procedure 

### state unequivocally 

### that "[i]ssues not included in the 

### Statement and/or not raised in accordance 

### with the provisions ofthis [Rule 1925] 

### (b)(4) are

### waived." Pa.R.A.P. 

### 1925(b)(4)(vii); see

### also

### Commonwealth v. 

### Smith, 917A.2d 848, 855 (Pa. Super. 

### 2007), 

### citing Commonwealth v. 

### Lord, 719 A.2d 306 (Pa. 1998) 

### (allegation not contained in 

### appellant's court-ordered Rule 

### 1925(b) 

### statement of 

### matters complained of on appeal is waived 

### for purposes of appeal). The Rule

3

### Appellant has had 

### the samecounsel 

### throughoutthis case. 

## -4J

### -S10036-17 requiring a 

### defendantto provide a 

### trial courtwith a 

### statement identifying in

a concise 

### mannerthe issue 

### sought to be pursued on appeal is intended to aid 

### trial judges in 

### identifying and focusing upon those issues which the 

### defendant plans to raise on appeal, 

### andthusis a 

### crucialcomponent

## of the

### appellate process. 

### Commonwealth v. 

### Lemon, 804 A.2d 34, 

### 36-37 (Pa. Super. 

### 2002). For these reasons, we are constrained to conclude 

### that
we cannot reviewAppellant's 

### firsttwo issues as

### they have not been 

### properly preserved and are

### thereforewaived. With regard to 

### Appellant's third issue asserting 

### that he is 

### entitled to sentencing 

### credit for time served, we note 

### that in his 

### motion 

### for reconsideration, in 

### addition to raising the sufficiency and 

### weight of the evidence, 

### Appellant asked the 

### trial court to consider a reduced, 

### county sentence; he did not 

### mention credit 

### for time served. Mot. 

### for Reconsideration of Sentence, 

### 4/29/16, at 

### 3-4. Also, 

### Appellant has failed to include a Pa.R.A.P 

### 2119(f) statement in his 

### brief relative to allowance of appeal 

### from the discretionary aspects 

### of his sentence. Nonetheless, his claim 

### for credit for time served cannot be waived because it "goes to the 

### legality of [Appellant's] sentence." See Commonwealth's Briefat 19, 

### citing Commonwealth v. 

### Hollawell, 604 A.2d 723, 725 (Pa. Super. 1992) 

### (failure to award 

### credit fortime-served implicates the 

### legality of a 

### sentence). See

### also Commonwealth v. 

### Davis, 852A.2d 392, 399 (Pa. Super. 

### 2004) ("An 

### attackupon 

### thecourt's failure to give 

### creditfortime served is an 

### attack 

## -5J

### -S10036-17

upon the 

### legality of the sentence and cannot be 

### waived"), 

### appealdenied, 868A.2d 1197 (Pa. 

### 2005). The 

### Commonwealth states 

### that 

### "[a] thorough review of the record reveals 

### that [Appellant] requested a 

### time-credit in his counsel's sentencing 

### recommendation but 

### that the 

### trial court did not declare the 

### grant of the 

### credit during the imposition of his sentence or 

### incorporate a reference to a 

### time-credit in his sentencing 

### order (N.T. 

### 4/22/16, 9) ('My 

### argument on him is

### that, Your Honor, 

### that he be credited 

### fortime 

### served')." Commonwealth's Brief at 19. The 

### Commonwealth adds 

### that it 

### "would not have opposed a remand 

### for the limited purpose of amending 

### [Appellant's] sentencing 

### order to 

### reflect his 

### entitlement to any applicable 

### credit for 

### time-served." 

### Id. at 20. In 

### view of the 

### foregoing, we vacate Appellant's 

### judgment of sentence and remand 

### for the 

### trial court to issue a sentencing 

### orderwhich takes into account

### Appellant's 

### entitlementto

### creditfortime served. In sum, we 

### affirm Appellant's convictions because he has failed to preserve his 

### first and second issues 

### for appellate review. With respect to 

### Appellant's 

### third issue, we vacate the 

### judgment of sentence and remand solely 

### for the 

### court to impose a 

### judgment of sentence which reflects 

### Appellant's 

### entitlementto 

### creditfortime served. 

### Judgment of sentence vacated. Case remanded 

### for the limited purpose stated in 

### this memorandum. Jurisdiction relinquished.



## -6J

### -S10036-17

Judgment Entered.

J seph D. 

### Seletyn, Prothonotary

Date: 

### 5/9/2017



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