J-S27022-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL BRANCE MCCRAY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1453 WDA 2018

Appeal from the Judgment of Sentence Entered July 25, 2018

In the Court of Common Pleas of Cambria County 

Criminal Division at No(s): CP-11-CR-0002022-2016

BEFORE: OLSON, J., OTT, J., and COLINS, J.*

MEMORANDUM BY OTT, J.: FILED SEPTEMBER 9, 2019

Michael Brance McCray appeals from the judgment of sentence imposed 

on July 25, 2018, following entry of his nolo contendere plea to Attempted 

Homicide.1 McCray received a sentence of six to 16 years’ incarceration, with 

credit for time served prior to his plea. McCray filed a timely post-sentence 

motion seeking credit for additional time served; specifically time he spent on 

bail, in home confinement with an ankle monitor. The trial court denied the 

motion on September 6, 2018. This timely appeal followed. McCray claims 

the trial court erred in denying him credit for the time he spent prior to trial 

on home detention. After a thorough review of the submissions by the parties, 

relevant law, and the certified record, we affirm.

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 901/2501(a).
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In this appeal, McCray challenges the legality of his sentence. 

Accordingly, 

“When reviewing the legality of a sentence, our standard of 

review is de novo and our scope of review is plenary.”

Commonwealth v. Seskey, 170 A.3d 1105, 1107 (Pa. Super. 

2017). Where a sentence is found to be illegal, it must be vacated.

Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super. 2014).

Commonwealth v. Lekka, 210 A.3d 343, 355 (Pa. Super. 2019).

In denying McCray relief, the trial court succinctly noted there is no 

credit for time served when the defendant is on bail and subject to electronic 

monitoring. See Commonwealth v. Kyle, 874 A.2d 12 (Pa. 2005). The 

Kyle decision specifically abrogated the case-by-case approach to such 

determinations from Commonwealth v. Chiappini, 782 A.2d 490 (Pa. 

2001), and disapproved of the application of the case-by-case approach as 

exemplified in Commonwealth v. Vanskiver, 819 A.2d 69 (Pa. Super. 2003) 

(en banc). Our Supreme Court stated:

Today, we make clear that time spent on bail release, subject to 

electronic monitoring, does not qualify as custody for purposes 

of Section 9769 credit against a sentence of incarceration. As 

this author [Justice Castille] noted in Chiappini:

[T]he reality here is that [Chiappini] was subject to the 

home confinement/electronic monitoring program as a 

condition of his release on bail. Bail is neither a form of, 

nor in any way synonymous with, custody or 

imprisonment; rather it is a form of release from 

custody.

[Chiappini], at 503 (Castille, J. concurring and dissenting).

Commonwealth v. Kyle, 874 A.2d at 638.
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McCray analogizes his situation to Commonwealth v. Wegley, 829 

A.2d 1148 (Pa. 2003), wherein the Supreme Court determined a person 

subjected to electronic monitoring on house arrest as part of sentence, was 

considered to be detained for purposes of the application of a charge of 

escape. This reliance is unavailing.

First, Wegley’s electronic monitoring was part of his sentence; he was 

not subjected to electronic monitoring as a condition of pre-trial bail. The two 

situations are, therefore, distinguishable. The Kyle decision considered 

Wegley in distinguishing between electronic monitoring for pre-trial bail and 

actual sentence.2 Kyle set forth a bright line rule forbidding credit for time 

served for pre-trial electronic monitoring. Second, the Kyle decision postdates Wegley by almost two years. Our Supreme Court could well have 

applied Wegley as suggested by McCray, but it did not. Third, and finally, to 

the extent McCray’s argument can be seen as a plea to return to a case-bycase review, as noted above, that approach has been specifically rejected by 

Kyle.

In light of the above, we find no error of law in the trial court’s denial of 

McCray’s post-sentence motion seeking credit for time served while on 

electronic monitoring as part of pre-trial bail.

Judgment of sentence affirmed.

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2 Kyle, 874 A.3d at 630-31.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/9/2019