J-S56029-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

GARY L. GEROW JR. 

 Appellant No. 193 MDA 2014 

Appeal from the Judgment of Sentence of December 2, 2013 

In the Court of Common Pleas of Bradford County 

Criminal Division at No.: CP-08-CR-0000517-2013 

BEFORE: PANELLA, J., WECHT, J., and PLATT, J.* 

MEMORANDUM BY WECHT, J.: FILED SEPTEMBER 23, 2014 

Gary Gerow (“Gerow”) appeals his December 2, 20131

 judgment of 

sentence. Because Gerow was entitled to credit for time served in an 

inpatient treatment facility as a condition of his bail, we vacate the judgment 

of sentence and remand with instructions. 

 On May 14, 2013, Gerow grabbed a purse from an eighty-six-year-old 

woman who was walking home from church. Approximately twelve days 

later, Gerow went to the police station because he was aware that he was 

wanted for questioning. Gerow admitted to the police that he stole the 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 

1

 Although the trial court states that Gerow was sentenced on December 

5, 2013, the docket reflects December 2 as the date sentence was imposed. 
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victim’s purse. He was charged with robbery, theft by unlawful taking, and 

receiving stolen property.2

 

 On June 26, 2013, Gerow was released on pre-trial bail. Among the 

conditions of bail, Gerow was to “report to Rehab after Release.” Order, 

6/26/2013, at 2 (unnumbered). Gerow entered a detoxification program on 

July 24, 2013, entered inpatient treatment on July 29, 2013, and was 

discharged on August 14, 2013. However, he did not successfully complete 

the program.3

 Notes of Testimony (“N.T.”), 1/27/2014, at 3.

 On September 30, 2013, Gerow pled guilty to robbery graded as a 

third-degree felony. On December 2, 2013, Gerow was sentenced to six to 

twenty-three months of incarceration and was made eligible for work 

release. The remaining charges were dismissed. 

On December 19, 2013, Gerow filed a counseled “Petition for Leave to 

File Post-Sentence Motion to Modify Nunc Pro Tunc.” In the petition, Gerow 

alleged that he declined to file a post-sentence motion for fear of 

jeopardizing his eligibility for work release. When his work release 

____________________________________________ 

2

 18 Pa.C.S.A. §§ 3701(a)(1)(v), 3921(a), and 3925(a), respectively. 

3

 According to his discharge summary, Gerow attended daily meetings 

and education sessions, including life skills, anger management, and relapse 

prevention. Gerow also participated in individual sessions. Gerow did not 

relapse while in the program. However, Gerow “was unable to demonstrate 

any progress on goals and objectives as well as gain any kind of 

understanding of the disease concept and relapse prevention.” Inpatient 

Discharge Summary, 8/14/2013, Exh. 2 to Gerow’s Brief in Support of 

Petition for Leave to File Post Sentence Motion to Modify Nunc Pro Tunc. 
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application was denied, Gerow sought to pursue modification of his 

sentence, raising the issues of excessiveness of his sentence and failure to 

credit time served at the treatment facility. 

 On January 27, 2014, the trial court heard argument on the motion. 

On the same day, the court issued an oral order, indicating that it would 

permit the motion nunc pro tunc and would treat it as timely filed. N.T. at 

10. After hearing the arguments on the merits of the motion, the court 

denied the request to credit time served and to modify the sentence. Id. at 

11.

 On January 30, 2014, Gerow filed a notice of appeal. The trial court 

ordered, and Gerow timely filed, a concise statement of errors complained of 

on appeal pursuant to Pa.R.A.P. 1925(b). The trial court filed its Pa.R.A.P. 

1925(a) opinion. 

 Gerow raises two issues for our consideration: 

I. Whether the sentencing court erred in failing to grant

[Gerow] credit toward his sentence for time served in an 

inpatient drug and alcohol rehabilitation facility when it 

was a pre-trial bail condition? 

II. Whether the sentence imposed by the trial court of six (6) 

to twenty-three (23) months of incarceration for one (1) 

count of robbery, a [felony] of the third degree, was 

excessive? 

Gerow’s Brief at 5.
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Gerow first challenges the trial court’s failure to credit him for the time 

he served in the inpatient rehabilitation facility. Credit for time served is 

controlled by statute, which states in pertinent part: 

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. 

42 Pa.C.S.A. § 9760. 

 Our Supreme Court addressed a similar issue in Commonwealth v. 

Conahan, 589 A.2d 1107 (Pa. 1991). In Conahan, the defendant 

voluntarily entered into an inpatient treatment facility following an arrest for 

driving under the influence. Id. at 1108. The defendant was in the program 

for ninety-five days. After his treatment was completed, the trial court 

sentenced him to thirty days to one year of incarceration, provided credit for 

the ninety-five days that he spent in the treatment program, and 

immediately paroled the defendant. On appeal, this Court reversed, holding 

that “imprisonment” did not include inpatient treatment. Id.

 The Supreme Court disagreed and held that a defendant must be given 

credit for time served in custody, pursuant to section 9760. However, the 

Court explained that custody “includes time spent in institutionalized 
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rehabilitation and treatment programs.” Id. at 1109. The Court also 

enumerated the following factors that persuaded it that the time spent in 

inpatient treatment should be credited toward the defendant’s sentence: the 

defendant’s voluntary commitment exceeded the applicable statutory 

minimum sentence; the defendant’s right of movement was restricted in the 

program and had he not completed the program, credit would not have been 

due; and the defendant had taken responsibility for his actions and 

maintained sobriety. Id. Finally, the Court determined that credit for time 

served was not an entitlement, but was within the discretion of the 

sentencing court. The Court concluded that the sentencing court had acted 

within its discretion in granting the defendant credit for the ninety-five days 

spent in the treatment program. Id. at 1110. 

 Later that year, this Court resolved a similar issue in which 

participation in the treatment program was required by the trial court as a 

condition of bail. In that case, the defendant was arrested for driving under 

the influence. Commonwealth v. Cozzone, 593 A.2d 860, 861 (Pa. Super. 

1991). After being convicted, but before he was sentenced, the defendant 

was arrested again for driving under the influence. He was released on bail 

with the condition that he enter an inpatient alcohol treatment center. He 

did so and stayed in treatment for thirty-two days, but was not credited for 

that time when the trial court sentenced him. One of his issues on appeal 

was the trial court’s failure to credit him with those thirty-two days. Id.
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 Reviewing prior cases that gave credit for time served in a state 

hospital for a mental health evaluation and a juvenile residential drug and 

alcohol treatment program, we held that the defendant had been in custody 

during the time that he spent in the inpatient treatment center. Id. at 866-

67. We noted that, in Conahan, the defendant entered treatment 

voluntarily, but that in Cozzone, the treatment was required as a condition 

of bail. Therefore, we concluded that the defendant was “entitled to credit,” 

and credit was not a matter of the court’s discretion. Id. at 867-68.

 More recently, we held that a PCRA court did not abuse its discretion in 

not giving credit for twenty-five months that the defendant spent in a drug 

treatment court program or the time that the defendant spent in inpatient 

treatment that was ordered by the court. Commonwealth v. Fowler, 930 

A.2d 586, 599 (Pa. Super. 2007). In that case, the defendant was admitted 

into a drug treatment court, but ultimately his participation was revoked 

based upon violations of the conditions of his treatment. Id. at 589. In not 

awarding credit, the PCRA court focused upon the facts that the defendant’s 

participation in the drug court was voluntary and that the inpatient facility 

“was not so restrictive as to constitute custody.” Id. at 597. Based upon 

these findings, we determined that there was no abuse of discretion in the 

failure to give credit. Id. at 599. 

 Finally, in Commonwealth v. Toland, 995 A.2d 1242 (Pa. Super. 

2010), we addressed the seeming contradiction between Conahan’s abuse 

of discretion standard and Cozzone’s entitlement to credit. In Toland, the 
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defendant, who was convicted of driving under the influence, sought credit 

for the time that he served in an inpatient alcohol rehabilitation center. Id.

at 1243. The bail information stated that the defendant “shall enter and 

complete [a] comprehensive in-patient alcohol/drug treatment program.” 

Id. at 1247. While on bail, the defendant was arrested for public 

drunkenness. Soon after, the defendant entered a treatment program in 

Oregon, followed by a second program in Arizona, for a total of 354 days. 

After completing these programs, the defendant was tried and found guilty 

of driving under the influence. Prior to trial, the defendant averred that he 

entered the treatment programs voluntarily. Id. at 1248. In reconciling the 

holdings of Conahan and Cozzone, we stated: 

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. 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. 

Id. at 1250-51 (citations omitted). Despite the bail information, the trial 

court found that inpatient treatment was not a bail condition. We concluded 

that the record supported that finding. Id. at 1251. We then affirmed the 

trial court’s refusal to award credit as an appropriate use of its discretion, in 

part because the treatment program in which the defendant was admitted 

did not restrict or restrain his freedom. Id. at 1251-52. 
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 Gerow urges us to follow Cozzone. He argues that treatment was a 

condition of his bail and that he did not enter voluntarily. Therefore, he 

asserts that he is entitled to credit. Gerow argues that his success or failure 

in the program is not relevant to that entitlement. Gerow’s Brief at 11-14. 

 The trial court acknowledged that Gerow entered treatment as a 

condition of bail. Trial Court Opinion (“T.C.O.”), 5/19/2014, at 6. However, 

the court noted that no evidence was presented that the program restricted 

Gerow’s freedom. Additionally, the court noted that Gerow did not return to 

jail after his discharge, but remained free on bail. Id. The court recognized 

Cozzone, but believed that the failure to complete the program sufficiently 

distinguished that case. The trial court concluded that cooperation with the 

treatment program was an implicit condition of bail and that, because Gerow 

did not comply with that condition, he should not receive credit. Id. at 7. 

The Commonwealth concurred with the trial court’s conclusions. 

Commonwealth’s Brief at 3. 

The Cozzone Court distinguished Conahan, in which a defendant 

voluntarily entered a treatment program and the court was required to 

consider the characteristics of the treatment facility to determine whether 

the program constituted custody. Cozzone, 593 A.2d at 867. Instead, we 

held that, when the treatment was involuntary, that time was “time spent in 

custody.” We did so without reference to the restrictions on the defendant’s 

freedom or to his success (or failure) in the treatment program, both of 

which were highlighted in Conahan. Id. at 867-68. Therefore, to reconcile 
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the cases, as in Toland, we conclude that when the entry into treatment is 

voluntary, the restrictions placed on the defendant and the defendant’s 

success in the program should factor into the trial court’s discretion in 

awarding credit. However, when the treatment is mandated as a condition 

of bail, the involuntariness of the decision to enter treatment is sufficient in 

and of itself to entitle the defendant to credit pursuant to Cozzone. Here, 

the trial court found that the treatment program was a condition of bail. 

T.C.O. at 6, 7 (“his bail condition to be in a rehabilitation program”). Gerow 

should have received credit. Therefore, we vacate the judgment of sentence 

and remand the case to the trial court to provide Gerow with the credit to 

which he is entitled for the time he served at an inpatient treatment facility 

as a condition of his bail. 

In his second issue, Gerow challenges the discretionary aspects of his 

sentence. Because his judgment of sentence has been vacated, this issue is 

mooted.4

 Judgment of sentence vacated. Case remanded with instructions. 

Jurisdiction relinquished. 

____________________________________________ 

4

 However, we note that had we reached this issue, Gerow’s Rule 

2119(f) statement does not raise a substantial question. The statement 

does not contain “a plausible argument that [the] sentence is contrary to the 

Sentencing Code or the fundamental norms underlying the sentencing 

process.” Commonwealth v. Mouzon, 812 A.2d 617, 627-28 (Pa. 2002). 

At best, Gerow offers a bald assertion that the court abused its discretion. A 

bald assertion will not raise a substantial question. 
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 Panella, J. joins the memorandum. 

 Platt, J. concurs in the result. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/23/2014