J-S03029-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ETHAN STEWART KENNEY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 640 WDA 2020

Appeal from the Judgment of Sentence Entered January 23, 2020

In the Court of Common Pleas of Fayette County Criminal Division at 

No(s): CP-26-CR-0001323-2014

BEFORE: DUBOW, J., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY MURRAY, J.: FILED: MARCH 18, 2021

Ethan Stewart Kenney (Appellant) appeals from the judgment of 

sentence imposed following remand for resentencing. We affirm. 

In Appellant’s prior appeal, we explained: 

This case arises out of a single-vehicle accident in the early 

morning hours of June 9, 2013, in which [Appellant] drove a truck 

into a guardrail, a bridge abutment, a second guardrail, and a 

tree, killing the passenger who was riding in his vehicle. 

[Appellant] was charged with homicide by vehicle while driving 

under the influence, driving under the influence (DUI), leaving the 

scene of an accident involving death, homicide by vehicle, and 10 

summary offenses, including disregarding traffic lane, driving at 

unsafe speed, careless driving, failure to notify police of an 

accident, and failure to use safety belt.[1] On March 19, 2018, the 

trial court ordered that the results of a blood alcohol test be 

suppressed under Birchfield v. North Dakota, --- U.S. ----, 136 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S.A. §§ 3735(a), 3802(e), 3742(a), 3732(a), 3309(1), 3361, 

3714(a), 3746(a)(1), and 4581(a)(2)(ii). 
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S.Ct. 2160, 195 L.Ed.2d 560 (2016), and Commonwealth v. 

Ennels, 167 A.3d 716 (Pa. Super. 2017). On May 21, 2018, 

[Appellant] pled guilty to leaving the scene of an accident 

involving death, homicide by vehicle, and the summary offenses 

of disregarding traffic lane, driving at unsafe speed, careless 

driving, failure to notify police of an accident, and failure to use 

safety belt. In conjunction with [Appellant’s] guilty pleas, the 

Commonwealth nol prossed the homicide by vehicle while driving 

under the influence, DUI, and remaining summary offense 

charges.

In 2013, when this crime occurred, Section 3742(b)(3) of 

the Vehicle Code required a minimum sentence of one year of 

imprisonment for leaving the scene of an accident involving death, 

provided that the Commonwealth gave notice of intent to seek the 

imposition of that mandatory minimum. 75 Pa.C.S. §§ 

3742(b)(3)(i), (ii). Prior to sentencing, the Commonwealth filed 

a notice of intent to seek the mandatory minimum sentence under 

Section 3742(b)(3) of the Vehicle Code, and [Appellant] and the 

Commonwealth submitted sentencing memoranda. [Appellant] 

argued that the sentencing court should impose a [county 

intermediate punishment (CIP)] sentence. The Commonwealth 

opposed this request and contended that Section 3742 of the 

Vehicle Code does not permit a CIP sentence for leaving the scene 

of an accident involving death. 

On October 30, 2018, the sentencing court imposed a CIP 

sentence for the leaving the scene of an accident involving death 

conviction, consisting of five years intermediate punishment, of 

which one year was to be served on house arrest with electronic 

monitoring. The court imposed a concurrent CIP sentence of five 

years intermediate punishment, of which 540 days were to be 

served on house arrest with electronic monitoring, for homicide 

by vehicle and no further penalty for the summary offenses. The 

CIP sentences did not include any term of imprisonment and also 

provided that the sentencing court could reduce the length of 

supervision after two years. The Commonwealth timely appealed 

from this judgment of sentence on November 8, 2018. 

Commonwealth v. Kenney, 210 A.3d 1077, 1078-79 (Pa. Super. 2019) 

(some citations and footnotes omitted; footnote added).
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In the prior appeal, the Commonwealth claimed the trial court erred by

failing to impose the mandatory one-year minimum term of imprisonment 

required by the version of 75 Pa.C.S.A. § 3742(b)(3) in effect at the time of 

Appellant’s crimes.

2

 Kenney, 210 A.3d at 1079. We agreed, and found that

the trial court imposed an illegal sentence because it was “required to impose 

the mandatory minimum sentence of imprisonment for one year for leaving 

the scene of an accident involving death in accordance with Section 

3742(b)(3) of the Vehicle Code, and lacked discretion to impose a CIP 

sentence without imprisonment for that offense.” Id. at 1082. Accordingly, 

we vacated Appellant’s judgment of sentence and remanded for resentencing 

“in accordance with Section 3742(b)(3) of the Vehicle Code.” Id. 

Appellant filed a petition for allowance of appeal with the Pennsylvania 

Supreme Court. On November 20, 2019, the Supreme Court denied 

Appellant’s petition. 

The case was remanded to the trial court. On January 23, 2020, the 

court resentenced Appellant to 1 to 2 years of incarceration; the court did not 

give Appellant credit for time he spent on house arrest prior to resentencing. 

See Order, 1/23/20. Appellant filed a timely post-sentence motion, which the 

trial court denied on May 29, 2020. Appellant filed this appeal on June 19, 

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2 The current version of 75 Pa.C.S.A. § 3742(b)(3) requires a trial court to 

impose a mandatory minimum sentence of 3 years of incarceration for a 

conviction of leaving the scene of an accident involving death.
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2020. Both the trial court and Appellant have complied with Pennsylvania 

Rule of Appellate Procedure 1925. 

Appellant presents a single issue for review: 

WHETHER THE SENTENCING COURT ERRED IN DENYING CREDIT 

TIME FOR FOUR HUNDRED AND FORTY-ONE (441) DAYS

APPELLANT SERVED ON ELECTRONIC MONITORING FROM THE 

DATE OF HIS INITIAL SENTENCING PROCEEDING TO THE DATE 

OF HIS RESENTENCING, WHEN THE SENTENCING COURT HELD 

THAT IT WAS FUNDAMENTALLY UNFAIR FOR APPELLANT NOT TO 

RECEIVE SAID CREDIT TIME; THE SENTENCING COURT WOULD 

HAVE GIVEN SAID CREDIT TIME TO APPELLANT IF IT WAS WITHIN 

THE COURT’S DISCRETION TO DO SO; AND THE PENNSYLVANIA 

SUPREME COURT’S DECISION IN COMMONWEALTH V. 

KRISTON, 588 A.2d 898 (Pa. 1991) ENTITLED APPELLANT TO 

SAID CREDIT TIME BASED ON THE SENTENCING COURT’S 

DETERMINATION THAT CREDIT WAS APPROPRIATE UNDER THE 

CIRCUMSTANCES. 

Appellant’s Brief at 4. 

Appellant claims the trial court erred in denying his request for credit

for the 441 days he spent on house arrest prior to his January 23, 2020 

resentencing. Appellant’s Brief at 8-13. “[A] claim based upon a trial court’s 

failure to give full credit for time served is a challenge implicating the legality 

of one’s sentence.” Commonwealth v. Lee, 182 A.3d 481, 483-84 (Pa. 

Super. 2018) (citations omitted).

If no statutory authorization exists for a particular sentence, that 

sentence is illegal and subject to correction. An illegal sentence 

must be vacated. In evaluating a trial court’s application of a 

statute, our standard of review is plenary and is limited to 

determining whether the trial court committed an error of law. 

Id. at 484 (citations omitted). 

42 Pa.C.S.A. § 9760(1) provides: 
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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. 

Id. (bold emphasis added).

We have explained:

Section 9760 of the Sentencing Code provides that a defendant is 

entitled to credit for “time spent in custody.” As this Court has 

recently summarized: 

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 prison. [] The 

plain and ordinary meaning of imprisonment is 

confinement in a correctional or similar rehabilitative 

institution. 

Commonwealth v. Fowler, [] 930 A.2d 586, 595-96 ([Pa. 

Super.] 2007) []. Indeed, Pennsylvania appellate courts 

consistently have interpreted [S]ection 9760’s reference to 

“custody” as confinement in prison or another institution. . . . Most 

recently, in [Commonwealth v. Kyle, 874 A.2d 12 (Pa. 2005)], 
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the Supreme Court reiterated that electronic home 

monitoring constituted neither imprisonment nor custody 

such that credit against a sentence of incarceration was 

warranted. 

Commonwealth v. Maxwell, 932 A.2d 941, 943-44 (Pa. Super. 2007) (some 

citations and footnote omitted, bold emphasis added).

Appellant argues that under Commonwealth v. Kriston, 588 A.2d 898 

(Pa. 1991), the trial court was required to credit him for time spent on house 

arrest prior to resentencing due to “considerations of fundamental fairness.” 

Appellant’s Brief at 11-13. We disagree.

More than 20 years ago, we rejected this same argument in 

Commonwealth v. Wilson, 744 A.2d 290, 291 (Pa. Super. 1999). In 

addressing an appellant’s claim that he was entitled to credit for time on house

arrest, Judge Beck addressed Kriston:

The defendant in Kriston was sentenced to serve a 30-day 

mandatory prison term for his second DUI conviction. Contrary to 

law, prison authorities erroneously released him to a homemonitoring program. In doing so, they assured the defendant that 

this time would be credited toward his sentence. When the error 

was discovered, the defendant sought to have the time credited. 

Our supreme court held that credit was appropriate since 

assurances had been made to the defendant that he would be 

given credit. Id. at [901]. The court reached this conclusion while 

recognizing that a defendant is required to serve his sentence in 

a prison, not a home, and that a defendant on home monitoring 

is not entitled to credit for time served. Id. 

Commonwealth v. Wilson, 744 A.2d 290, 291 (Pa. Super. 1999) (footnote 

omitted).

Judge Beck clarified:
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After careful consideration of the facts in this case and the 

applicable law, we conclude that appellant is not entitled to credit 

for time served while on house arrest. The statute limits time 

served to time in custody. Custody has been strictly defined 

and does not include house arrest. Kriston, supra; Shartle,

supra. The only precedent is found in the exception carved out 

in Kriston. That exception, however, was narrowly drawn and 

applied where the defendant was given assurances that he would 

be entitled to credit against his sentence for the period of home 

monitoring. In this case, appellant was given no such assurances.

Id. at 292 (bold emphasis added).

More recently, the Supreme Court stated:

This Court has emphasized that, because home release on 

electronic monitoring does not constitute custody, credit should 

not be awarded for it toward a prison sentence. Exceptions to this 

rule have been recognized only where equity was deemed to 

require it, such as when a defendant was assured that his time 

spent on electronic monitoring would count toward his sentence. 

Kyle, 874 A.2d 18 (citing Kriston, supra).3

Here, Appellant is not entitled to credit for time served on house arrest. 

Unlike the “narrowly drawn” exception for the defendant in Kriston, Appellant 

has never asserted that he received assurances of credit, and the record does 

not indicate that any assurances were given. See, e.g., Appellant’s Brief at

7-13. See also Commonwealth Brief at 8 (“Appellant was never incarcerated 

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3 The Supreme Court further observed: 

While at home, an offender enjoys unrestricted freedom of 

activity, movement, and association. He can eat, sleep, make 

phone calls, watch television, and entertain guests at his leisure. 

Furthermore, an offender confined to his home does not suffer the 

same surveillance and lack of privacy that he would if he were 

actually incarcerated. 

Kyle, 874 A.2d at 21 (citations omitted). 
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in a correctional facility, nor was he promised that his electronic monitoring 

time would be credited to him.”).

As Judge Beck stated, “Custody has been strictly defined and does not 

include house arrest.” Wilson, 744 A.2d at 292. See also Commonwealth 

v. Stevenson, 850 A.2d 1268, 1272 (Pa. Super. 2004) (“Our Supreme Court 

has held that credit for time served in a home electronic monitoring program 

may not be granted against a mandatory minimum sentence of imprisonment, 

absent equitable considerations which are not present in this case.”). Thus, 

Appellant is not entitled to relief.

Judgment of sentence affirmed.

Judge Dubow joins the memorandum.

Judge Strassburger did not participate.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/18/2021