J-S74024-16 

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

COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

v. 

TARIK SAUNDERS 

Appellee 

Appellant No. 34 EDA 2016 

Appeal from the Judgment of Sentence January 11, 2013 

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP- 51 -CR- 0511531 -2005 

CP- 51 -CR- 1000241 -2003 

BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.* 

MEMORANDUM BY OTT, J.: FILED January 17, 2017 

Tarik Saunders appeals, nunc pro tunc, from the judgment of sentence 

imposed on January 11, 2013, in the Philadelphia County Court of Common 

Pleas, after he was granted reinstatement of his direct appeal rights under 

the Post -Conviction Relief Act ( "PCRA ").1 Following the revocation of 

Saunders' probation in two cases, the trial court imposed an aggregate term 

of 54 to 120 months' incarceration, with two years of consecutive probation. 

On appeal, Saunders challenges the discretionary aspects of his violation of 

probation sentence, as well as the court's failure to give him credit for time 

served. He also contends the PCRA court abused its discretion in denying 

* Former Justice specially assigned to the Superior Court. 

1 42 Pa.C.S. §§ 9541 -9546. 
J-S74024-16 

him the right to file post- sentence motions nunc pro tunc. For the reasons 

below, we vacate the order granting PCRA relief, and remand for an 

evidentiary hearing. 

The relevant facts and procedural history were aptly summarized by 

the PCRA court as follows: 

[Saunders] was convicted under two separate bills of 

information that have been consolidated for this appeal, a 2003 

gun case (CP- 51 -CR- 1000241 -2003) and a 2005 drug case (CP51-CR- 0511531 -2005). In the first case, [Saunders] was 

arrested on April 1, 2003, and charged with aggravated assault, 

violations of the Uniform Firearms Act, possessing the 

instruments of a crime, simple assault, terroristic threats and 

recklessly endangering another person [( "REAP ")]. On February 

26, 2004, Saunders pled guilty to carrying a firearm without a 

license and [REAP2] before now retired Judge Chris Wogan. 

[Saunders] was sentenced to [four years' probation] for the 

violation of the Uniform Firearms Act, and two years 

[concurrent] probation for [REAP]. 

Probation wanted cards were issued March 31, 2005. 

[Saunders] was subsequently sentenced to four years probation 

for that violation on May 5, 2009. A month later, on June 12, 

2009, a bench warrant was once more issued for probation 

violations; however[,] Saunders' probation was continued by the 

court on December 18, 2009. New technical and direct 

violations were again alleged and a hearing was held on 

November 14, 2012. [Saunders] was found to have violated his 

probation for failing to report as well as his new convictions in 

Delaware County for resisting arrest and providing false 

identification to law enforcement. As a result, a Pre -Sentence 

Investigation was ordered. On January 11, 2013, Saunders was 

sentenced to six to twenty -three months in a state correctional 

system[, plus two years' probation], consecutive to his drug case 

sentence. 

2 18 Pa.C.S. §§ 6106 and 2705, respectively. 

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[Saunders'] second case is a drug case with an arrest date 

of March 4, 2005, wherein Saunders was charged with 

possessing a controlled substance with intent to deliver, along 

with knowing and intentional possession of that drug. Saunders 

entered a no /o contendere plea before now retired Judge Wogan 

on July 19, 2005, and was sentenced to nine to twenty -four 

months incarceration followed by four years probation. As noted 

above, Saunders was found in violation on May 5, 2009, and 

resentenced to four years probation. Saunders was further 

found in technical and direct violation on November 14, 2012 for 

failing to report to probation as well as his new convictions in 

Delaware County. [Saunders] was subsequently resentenced to 

four to eight years incarceration followed by one year probation. 

PCRA Court Opinion, 2/22/2016, at 2 -3. 

On January 25, 2013, Saunders filed a pro se post- sentence motion 

seeking modification of his drug sentence. However, it does not appear the 

motion was ever considered by the trial court, and Saunders did not file a 

direct appeal. On November 5, 2013, Saunders filed a consolidated, pro se 

PCRA petition seeking relief from both the drug and gun convictions. He 

averred, inter a /ia, that trial counsel "refused to put [an] appeal, 

reconsideration in for [him] because [counsel] said its (sic) a waste of time." 

Motion for Post Conviction Collateral Relief, 11/5/2013, at 3. Counsel was 

appointed and filed a Turner /Finley3 "no merit" letter on August 14, 2014. 

While it appears the PCRA court initially denied relief,4 at some point, new 

counsel was appointed, and filed an amended petition on February 25, 2015, 

3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 4 See Order, 12/23/2014; Order, 2/3/2015. 

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which the PCRA court accepted. New counsel raised one claim in the 

amended petition, namely, that prior counsel was ineffective for failing to file 

a direct appeal when requested to do so by Saunders. See Amended 

Petition Under Post -Conviction Relief Act, 2/25/2015, at 2; Memorandum of 

Law, 2/25/2015, at 2. In the prayer for relief, however, counsel requested 

Saunders "be allowed to file post sentence motions and an appeal nunc pro 

tunc[.]" Id. In an order entered December 18, 2015, the PCRA court 

reinstated Saunders' direct appeal rights nunc pro tunc, but specifically 

denied his request to file a post- sentence motion. Order, 12/18/2015. This 

timely nunc pro tunc appeal followed.5 

We will address Saunders' last issue first, since his claim that the PCRA 

court abused its discretion in denying his request to file post- sentence 

motions nunc pro tunc is dispositive. 

In Commonwealth v. Liston, 977 A.2d 1089 (Pa. 2009), the 

Pennsylvania Supreme Court held that a defendant who is granted the right 

to file a direct appeal nunc pro tunc, is not automatically entitled to file 

post- sentence motions nunc pro tunc. Nevertheless, the Court recognized 

that reinstatement of a defendant's right to file post- sentence motions is 

warranted in some cases: 

5 On January 4, 2016, the PCRA court ordered Saunders to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Saunders complied with the court's directive and filed a concise statement 

on January 15, 2016. 

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Our holding should not be construed as prohibiting a PCRA court 

from reinstating a defendant's right to file post- sentence motions 

nunc pro tunc. If a defendant successfully pleads and proves 

that he was deprived of the right to file and litigate said motions 

as a result of the ineffective assistance of counsel, a PCRA court 

is free to grant such relief. Presumably, since post- sentence 

motions are optional, see Pa.R.Crim.P. 720(B), rarely will 

counsel be deemed to have been ineffective for failing to file 

them except, for example, when the claim involves the 

discretionary aspects of sentence or a challenge to a verdict on 

weight of the evidence grounds, claims which must be raised in 

the trial court to be preserved for purposes of appellate review. 

Id. at 1095 n.9. In interpreting Liston, a panel of this Court explained that 

a PCRA petitioner may not be granted reinstatement of his post- sentence 

motion rights "if he has not requested such relief with the PCRA court, and if 

the court did not hold an evidentiary hearing on that issue." 

Commonwealth v. Fransen, 986 A.2d 154, 155 (Pa. Super. 2009). 

Indeed, we also recognized that counsel's failure to file post- sentence 

motions is not ineffectiveness per se; instead, "[a] petitioner alleging that 

counsel was ineffective for failing to file a post- sentence motion must [] 

satisfy the Pierce three -part test for ineffectiveness." Commonwealth v. 

Hill, A.3d 1 2016 PA Super 226, *4 (Pa. Super. Oct. 20, 2016). 

In the present case, the Commonwealth argues this claim is waived 

because Saunders "did not include it in the substantive portion of his PCRA 

petition[,]" but rather, requested such relief only in the "prayer for relief" 

paragraph. Commonwealth's Brief at 15. It asserts, correctly, that issues 

not included in a PCRA petition are waived. Id. 

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However, our review of the record reveals this claim was adequately 

raised in Saunders' pro se PCRA petition. As noted above, Saunders 

averred, inter alia, that trial counsel "refused to put [an] appeal, 

reconsideration in for me because he said its (sic) a waste of time." Petition 

for Post Conviction Collateral Relief, 11/5/2013, at 3. This statement, at the 

very least, implies Saunders requested counsel file a motion for 

reconsideration of sentence. Moreover, the Commonwealth ignores the fact 

that Saunders did, himself, file a pro se post- sentence motion for 

reconsideration of sentence, which was never addressed by the trial court. 

Accordingly, we refuse to find Saunders waived this claim on appeal. 

Nonetheless, pursuant to Fransen, supra, Saunders is not entitled to 

relief per se. Rather, he must demonstrate at an evidentiary hearing that he 

requested counsel file post- sentence motions, that counsel had no 

reasonable basis to refuse his request, and that he was prejudiced as a 

result. See Hill, supra. Accordingly, we vacate the order granting PCRA 

relief, and remand for an evidentiary hearing concerning Saunders' request 

to file post- sentence motions nunc pro tunc. 

We are also precluded from addressing Saunders' first issue on appeal, 

a challenge to the discretionary aspects of his sentence. It is well - established that such a claim is considered a petition for permission to 

appeal, and must be first presented to the trial court either during the 

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sentencing hearing or in a post- sentence motion.6 Commonwealth v. 

McAfee, 849 A.2d 270, 274 -275 (Pa. Super. 2004), appeal denied, 860 A.2d 

122 (Pa. 2004). "Absent such efforts, an objection to a discretionary aspect 

of a sentence is waived." Id. at 275. Therefore, unless Saunders is granted 

permission to file post- sentence motions nunc pro tunc, his challenge to the 

discretionary aspects of his sentence is waived. Accordingly, this issue is 

dependent upon resolution of his ineffectiveness claim.' 

In his remaining issue, Saunders argues his probation violation 

sentence is illegal because the trial court failed to give him credit for time 

served. See Saunders' Brief at 10. Specifically, he asserts he was entitled 

to credit for his time in custody from October 19, 2012, until the violation 

hearing on November 14, 2012, and for the initial term of nine to 23 

months' incarceration he served on the drug conviction. See id. Because a 

claim that the trial court failed to award credit for time served invokes the 

legality of a sentence, Saunders contends his claim is cognizable despite the 

fact he raised it for the first time on appeal. See id. See also 

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

6 Here, Saunders does not assert he raised these claims during the 

sentencing hearing. 

Should the PCRA court grant Saunders permission to file post- sentence 

motions nunc pro tunc, he may raise his challenge to the discretionary 

aspects of his sentence at that time. 

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challenge to the trial court's failure to award credit for time spent in custody 

prior to sentencing involves the legality of sentence and is cognizable under 

the PCRA. ") (quotation omitted), appeal denied, 944 A.2d 756 (Pa. 2008). 

Pursuant to Section 9760 of the Sentencing Code, a trial court is 

required to give credit to a defendant for time served "in custody prior to 

trial, during trial, pending sentence, and pending the resolution of an 

appeal." 42 Pa.C.S. § 9760(1). Furthermore, 

where an offender is incarcerated on both a [Probation] Board 

detainer and new criminal charges, all time spent in confinement 

must be credited to either the new sentence or the original 

sentence. 

Commonwealth v. Clark, 885 A.2d 1030, 1033 (Pa. Super. 2005) 

(quotation omitted). 

First, with regard to Saunders' contention that he is entitled to credit 

against his probation violation sentence for the time he served in prison 

under his original sentence, we find such a claim specious. His nine to 23 

month prison term was not time spent in custody before trial, during trial, 

before sentencing or pending an appeal. See 42 Pa.C.S. § 9760(1). 

Saunders provides no authority for his assertion that he should receive 

credit on a violation of probation sentence for prison time he served under 

the original sentence, which was independent of the probationary sentence 

at issue. No relief is warranted. 

However, Saunders correctly maintains that he is entitled to credit for 

time he served in custody awaiting his violation hearing, presuming he did 

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not receive credit for the time on the new criminal charges. See Clark, 

supra. The Commonwealth states Saunders' "time in 'from 10- 19 -12' was 

credited to his Delaware County sentence." Commonwealth's Brief at 14. In 

support of this contention, the Commonwealth refers to Saunders' Delaware 

County criminal docket, which reveals he received 127 days credit for time 

served on that conviction. See Docket No. CP- 23 -CR- 0005685 -2012. 

However, our review of that docket reveals Saunders was sentenced for the 

Delaware County offenses on October 9, 2012. The docket indicates 

Saunders received 127 days credit for time served and was placed on 

immediate parole. See Docket No. CP- 23 -CR- 0005685 -2012. However, 

because that sentence was imposed on October 9, 2012, Saunders could not 

have received credit for time spent in custody from October 19, 2012, until 

November 14, 2012. 

Unfortunately, the PCRA court did not address this issue in its opinion. 

Consequently, we are unable to determine whether Saunders was actually in 

custody during the relevant period, and whether he received credit on any 

sentence for that time served. Because we are already remanding this 

appeal for an evidentiary hearing on Saunders' ineffectiveness claim, we 

direct the PCRA court to also consider Saunders' request for time served 

credit. 

Therefore, we vacate the order granting PCRA relief, and remand for 

an evidentiary hearing so the PCRA court may consider: (1) Saunders' 

assertion that counsel was ineffective for failing to file post- sentence 

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motions, and (2) Saunders' claim that he is entitled to credit for time served 

awaiting his probation violation hearing. 

Order vacated. Case remanded for proceedings consistent with this 

memorandum. Jurisdiction relinquished. 

Judgment Entered. 

J: seph D. Seletyn, 

Prothonotary 

Date: 1/17/2017 

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