J-A24023-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

ANTHONY BOWSER, 

 Appellant No. 2567 EDA 2013 

Appeal from the Judgment of Sentence Entered November 8, 2011 

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0015974-2008 

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

 

MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 12, 2014 

 Appellant, Anthony Bowser, appeals from the judgment of sentence of 

31⁄2 to 7 years’ incarceration, imposed following the revocation of his prior 

term of probation. We affirm.

 The trial court set forth the facts and procedural history of this case as 

follows: 

 On June 30, 2009, Appellant entered a negotiated guilty 

plea to possession with intent to deliver [(PWID)] and ... criminal 

use of a communication device. Appellant’s crimes involved a 

controlled sale of marijuana where Appellant sold eight packets 

of marijuana to Police Officer Fitzgerald. The [c]ourt accepted 

the plea and sentenced Appellant to [111⁄2] to [23] months[’] 

incarceration plus [2] years[’] probation. The [c]ourt told 

Appellant at his sentencing that, in light of his extensive criminal 

background and the severity of the instant offense, he would 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court.
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receive a sentence of [8] years should he violate the terms of his 

supervision. 

 On October 1[8], 2011, Appellant appeared for a Gagnon 

II[1] violation hearing. Appellant [had been] arrested on July 8, 

2011, for possession of a controlled substance. Appellant had 

also missed six [probation] office visits, twice tested positive for 

benzodiazepines, tested positive for marijuana six times, and 

tested positive for opiates on one occasion. Appellant had 

enrolled in treatment at Parkside Recovery but only attended the 

intake meeting and was ultimately discharged due to his 

absences. 

 Based on these technical violations, Appellant’s probation 

was revoked and he was sentenced to [4] to [8] years[’] 

incarceration for [PWID] and [31⁄2] to [7] years[’] incarceration 

on the criminal use of a communication device to run concurrent. 

After a motion to reconsider the sentence, the sentence on 

[PWID] was reduced to [31⁄2] to [7] years.

Trial Court Opinion (TCO), 2/18/14, at 1-2 (citations to the record omitted).2 

 Appellant initially did not file an appeal from the imposition of his 31⁄2 

to 7 year aggregate sentence imposed on November 8, 2011. However, he 

subsequently filed a petition for relief under the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the restoration of his direct 

appeal rights nunc pro tunc. The court granted that petition and Appellant 

filed the instant appeal nunc pro tunc. Herein, he raises the following four 

issues for our review: 

____________________________________________ 

1 Gagnon v. Scarpelli, 411 U.S. 778 (1973). 

2

 The trial court indicated Appellant had prior convictions that increased the 

applicable statutory maximum term for his PWID offense to ten years’ 

incarceration. See TCO at 4 n.2 (citing 35 Pa.C.S. § 780-115). 
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A. Is it an abuse of discretion for the court to sentence Appellant 

to a significant, almost maximum, sentence of confinement for 

technical violations of his probation, without consideration or 

application of [section] 9711(c) of the Sentencing Code, 42 

Pa.C.S.A. §[]9771(c)? 

B. Is it an abuse of discretion for the court to sentence Appellant 

to a substantial term of confinement for technical violations of 

probation, without allowing him credit for the time he served in 

custody for that same offense as part of his original sentence? 

C. Is it an abuse of discretion for the court to sentence Appellant 

for technical violations of probation, taking into consideration as 

negative factors, impacting negatively on the sentence, “police 

contacts,” “including arrests,” which never became convictions of 

any wrong doing? 

D. Is it an abuse of discretion for the court to sentence Appellant 

for technical violations of probation without giving him positive 

considerations for the time he was on the street – trouble free, 

and able to resist temptations for further wrong doing? 

Appellant’s Brief at 5 (unnecessary capitalization omitted). 

 Initially, we note that on September 24, 2013, the trial court issued an 

order directing Appellant to file a Pa.R.A.P. 1925(b) concise statement of 

errors complained of on appeal. On October 9, 2013, the court issued an 

order granting Appellant’s request for an extension of time to file his Rule 

1925(b) statement, and directing that Appellant’s concise statement be filed 

“on or before November 6, 2013....” Trial Court Order, 10/9/13. While 

Appellant did not file his Rule 1925(b) statement until November 7, 2013, 

the trial court addressed the merits of Appellant’s claims in its Rule 1925(a) 

opinion without any mention of the untimeliness of Appellant’s concise 

statement. 
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 Recently, in Greater Erie Indus. Development Corp. v. Presque 

Isle Downs, 88 A.3d 222 (Pa. Super. 2014), this Court stated that: 

[I]t is no longer within this Court’s discretion to review the 

merits of an untimely Rule 1925(b) statement based solely on 

the trial court’s decision to address the merits of those untimely 

raised issues. Under current precedent, even if a trial court 

ignores the untimeliness of a Rule 1925(b) statement and 

addresses the merits, those claims still must be considered 

waived: “Whenever a trial court orders an appellant to file a 

concise statement of [errors] complained of on appeal pursuant 

to Rule 1925(b), the appellant must comply in a timely manner.” 

Hess v. Fox Rothschild, LLP, 925 A.2d 798, 803 

(Pa.Super.2007) (citing [Commonwealth v.] Castillo, 888 

A.2d [775,] 780 [(Pa. 2005)]) (emphasis in original); see 

Feingold v. Hendrzak, 15 A.3d 937, 940 (Pa.Super.2011). 

Id. at 225. 

 However, we went on in Greater Erie to acknowledge that “there are 

still operative exceptions to Rule 1925(b) waiver with regard to timeliness.” 

Id. First, we explained that we must “look first to the language” of the trial 

court’s Rule 1925(b) order to ensure it satisfied the dictates of Rule 

1925(b). Id. at 225-226. Then, we must ensure that the prothonotary 

provided the appellant with written notice of the court’s Rule 1925(b) order. 

Id. at 226. We stated that the failure of the prothonotary to do so “will 

prevent waiver for timeliness pursuant to [Rule] 1925(b).” Id. at 226 (citing 

In re L.M., 923 A.2d 505, 509-10 (Pa. Super. 2007)). 

In this case, the court’s September 24, 2013 order fully complied with 

the dictates of Rule 1925(b), and there was a “Proof of Service” document

attached to that order. However, the court’s October 9, 2013 order 
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extending the Rule 1925(b) filing deadline did not satisfy the requirements 

of Rule 1925(b). Most notably, that order did not inform Appellant “that any 

issue not properly included in the [s]tatement timely filed and served ... shall 

be deemed waived.” Pa.R.A.P. 1925(b)(3)(iv). Additionally, there is no 

indication in the record that the prothonotary provided notice to Appellant of 

the court’s issuance of that order; namely, there was no “Proof of Service” 

document attached. Under these circumstances, we decline to find 

Appellant’s issues waived on the basis of his untimely filed Rule 1925(b) 

statement. 

Nevertheless, Appellant’s issues regarding the discretionary aspects of 

his sentence are waived because he did not raise them in a post-sentence 

motion following the court’s November 8, 2011 imposition of the 31⁄2 to 7 

year sentence. See Commonwealth v. Bromley, 862 A.2d 598, 603 (Pa. 

Super. 2004) (“It is well settled that an [a]ppellant’s challenge to the 

discretionary aspects of his sentence is waived if the [a]ppellant has not filed 

a post-sentence motion challenging the discretionary aspects with the 

sentencing court.”) (citations omitted). We acknowledge that Appellant 

filed a motion for reconsideration from the imposition of his initial 4 to 8 

year term of incarceration.3

 However, after the court granted that motion 

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3

 While that motion is docketed, for some reason it is not contained in the 

certified record. 
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and resentenced Appellant to 31⁄2 to 7 years’ incarceration for PWID, 

Appellant did not file a post-sentence motion for reconsideration. 

This Court faced similar circumstances in Commonwealth v. Levy, 

83 A.3d 457 (Pa. Super. 2013). There, after Levy was sentenced, the 

Commonwealth filed a motion for reconsideration, arguing that the term of 

incarceration was too lenient. Id. at 467. The trial court agreed and resentenced Levy, which this Court stated was “in effect[,] ... a second 

judgment of sentence.” Id. Because Levy did not raise his sentencing 

challenges at the time of his resentencing, or “file a post-sentence motion 

for reconsideration of the second judgment of sentence[,]” we deemed his 

discretionary aspects of sentencing issues waived.4

 Id. 

We are compelled to reach the same conclusion in the instant case. 

Appellant did not file a motion for reconsideration of the sentence imposed 

on November 8, 2011. Accordingly, he has not preserved his challenges to 

the discretionary aspects of his sentence.5 

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4 See also Commonwealth v. Bullock, 948 A.2d 818 (Pa. Super. 2008) 

(stating the right to appeal a discretionary aspect of sentence is not absolute 

and is waived if the appellant does not challenge it in post-sentence motions 

or by raising the claim during the sentencing proceedings); Commonwealth 

v. Lloyd, 878 A.2d 867 (Pa. Super. 2005) (finding the appellant waived his 

challenge to his sentence where he failed to raise the issue at the sentencing 

hearing or in his post-sentence motion). 

5

 We acknowledge that the second issue raised by Appellant involves the 

court’s failure to give him credit for time served. Such claims have been 

considered a non-waivable challenge to the legality of the sentence imposed. 

(Footnote Continued Next Page) 
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 Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/12/2014 

(Footnote Continued) _______________________ 

Commonwealth v. Davis, 852 A.2d 392, 399 (Pa. Super. 2004) (citation 

omitted) (“An attack upon the court’s failure to give credit for time served is 

an attack upon the legality of the sentence and cannot be waived.”). 

However, in the “Argument” portion of Appellant’s brief, he offers no 

discussion of this issue. Consequently, we are unable meaningfully review 

Appellant’s contention that the court failed to give him credit for time 

served.