J-S16004-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DENA MARIE DAVIS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2950 EDA 2022

Appeal from the Judgment of Sentence Entered October 27, 2022

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

No(s): CP-45-CR-0002517-2020

BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.

MEMORANDUM BY DUBOW, J.: FILED JUNE 9, 2023

Appellant, Dena Marie Davis, appeals from the judgment of sentence 

entered on October 27, 2022,1 after the court sentenced her to a 1-to-2-year

term of county confinement. Appellant challenges the discretionary aspects of 

her sentence and the trial court’s calculation of her credit for time served. 

After careful review, we remand for further proceedings.

On September 8, 2020, police arrested Appellant for, inter alia, 

Possession of a Controlled Substance and Possession of Drug Paraphernalia.2

Appellant was unable to furnish bail and, thus, remained confined.

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1 Appellant characterized her appeal as being from the “order entered in this 

matter on the 24th of October, 2022.” Notice of Appeal, 11/17/22. That order, 

which the prothonotary docketed on October 27, 2022, imposed an amended 

judgment of sentence. We have adjusted the caption accordingly.

2 35 P.S. §§ 780-113(a)(16), (32).
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On September 24, 2020, on a separate, unrelated docket, the court 

found Appellant in violation of her probation, revoked probation, and 

resentenced her to 3 to 6 months’ confinement (the “VOP Sentence”).

3

On December 1, 2020, while Appellant was serving the VOP Sentence, 

the court in the instant case granted Appellant’s request to change her bail to 

unsecured. Appellant, however, remained confined on the VOP Sentence until 

March 2021.

4

On May 23, 2022, Appellant pleaded guilty in the instant case to the 

above crimes. The court scheduled sentencing for July 25, 2022, and ordered 

the Monroe County Probation Department to prepare a pre-sentence 

investigation report. In preparation of the report, the probation department 

requested that Appellant provide a urine sample for drug screening. Appellant, 

however, refused to provide a urine sample.

At the July 25, 2022 sentencing hearing, the trial court entered an order 

continuing sentencing to August 29, 2022. In the same order, the court 

commanded Appellant to report to the probation department the following 

day, July 26, 2022, to submit a urine sample. Appellant failed to do so.

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3 See docket number CP-45-CR-0000878-2017. The docket lists the 

disposition date as September 25, 2020, but indicates that Appellant began 

serving the VOP Sentence the day before, on September 24, 2020. 

4

It appears that Appellant requested the change of bail in anticipation of a

motion for parole on the VOP Sentence. On December 31, 2020, however, the 

VOP court denied Appellant’s parole request. Appellant, thus, appears to have 

served the maximum term of the VOP sentence. 
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On July 29, 2022, the Commonwealth filed a motion to revoke 

Appellant’s bail. On August 11, 2022, the court held a hearing at which 

Appellant failed to appear. As a result, the court revoked Appellant’s bail and

issued a bench warrant for her arrest. Appellant failed to appear for the August 

29, 2022 sentencing hearing.

At some point between August 29 and September 6, 2022, Appellant 

returned to the Commonwealth’s custody. On October 27, 2022, the trial court 

sentenced Appellant to an aggregate term of 1 to 2 years’ county 

confinement.

5 The court awarded Appellant a 25-day credit for time served.

Appellant timely filed a Notice of Appeal and both she and the trial court 

complied with Pa.R.A.P. 1925.

Appellant raises challenges to the discretionary aspects of her sentence

and the legality of her sentence. Appellant’s Br. at 9-14 (unpaginated). Before 

we can address the merits of these issues, however, we must address a 

briefing defect that precludes our review of Appellant’s discretionary 

sentencing claim. 

Pa.R.A.P. 2116 requires that an appellant include in her brief a 

Statement of Questions Involved. Of particular importance to this appeal, the 

failure to raise a discretionary sentencing claim in the Rule 2116 Statement 

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5 The court had initially sentenced Appellant on September 26, 2022, to a 

term of 1 to 2 years’ incarceration. Appellant timely filed a post-sentence 

motion requesting that the court impose county confinement, so that she 

could receive county-level addiction treatment. The court granted Appellant’s 

motion and resentenced her on October 27, 2022. 
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results in waiver of that claim on appeal. Pa.R.A.P. 2116(b) (“Failure to comply 

with [Pa.R.A.P. 2116(b)] shall constitute a waiver of all issues relating to the 

discretionary aspects of sentence.”). 

Appellant failed to include in her brief a Rule 2116 Statement of 

Questions Involved.

6 We are, thus, constrained to find Appellant’s 

discretionary sentencing claim waived.

We will, however, address Appellant’s legality claim, because such a 

claim cannot be waived. Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. 

Super. 2013). See also Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa. 

Super. 2007) (observing that the failure to award credit for time served prior 

to sentencing involves the legality of sentence). Issues relating to the legality 

of a sentence are questions of law over which we exercise a de novo standard 

of review and plenary scope of review. Commonwealth v. Gibbs, 181 A.3d 

1165, 1166 (Pa. Super. 2018). 

At sentencing, the trial court awarded Appellant a 25-day credit for time 

served. Appellant argues that she was entitled to an 84-day credit, for the 

period from September 8, 2020, when police arrested her in the underlying 

case, to December 1, 2020, when the court amended her bail to unsecured. 

Appellant’s Br. at 12-13. 

The trial court opined that Appellant was entitled to credit for only the 

period from September 8, 2020, to September 24, 2020. Trial Ct. Op., 

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6 Appellant’s brief is likewise missing a Statement of the Case and Summary 

of Argument, as required by Pa.R.A.P. 2117 and 2118, respectively. 
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12/28/22, at 2. The court explained that when it imposed the VOP sentence

on September 24, 2020, which Appellant began serving immediately,

Appellant could no longer accrue credit toward the instant sentence. Id. We 

agree. 

“A defendant shall be given credit for any days spent in custody prior to 

the imposition of sentence, but only if such commitment is on the offense for 

which sentence is imposed.” Infante, 63 A.3d at 367 (citation omitted). A 

defendant is not, however, entitled to have a time-credit double counted.

Commonwealth v. Vidal, 198 A.3d 1097, 1101 (Pa. Super. 2018). In other 

words, once a defendant is serving time on a sentence, that time cannot be 

credited toward another sentence. See id.

Here, Appellant was entitled to a time credit from the date that she was 

arrested on the instant charges to the date that the court imposed the 

unrelated VOP Sentence. Appellant was, thus, entitled to credit for the period 

from September 8, 2020, to September 24, 2020.

7

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7 Appellant also requests that this Court vacate her sentence and remand for 

resentencing because “nowhere in the record does it reflect that Appellant was 

incarcerated for other cases” between September 8, 2020, and December 1, 

2020. Appellant’s Br. at 12. This argument is disingenuous at best, as 

Appellant is certainly aware that on September 24, 2020, the VOP court 

sentenced her to a term of incarceration on Docket 878-2017. Additionally, it 

appears that the sentencing court was aided by a presentence investigation

(PSI) report and, thus, would have been aware of Appellant’s criminal history.

Moreover, even if the court was not aided by a PSI report, it was within the 

court’s power to take judicial notice of other trial court dockets. Pa.R.E. 201. 
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It is unclear, however, how the trial court determined that Appellant is 

entitled to 25 days of time credit.8 The period from September 8, 2020, to 

September 24, 2020, is only 16 days. We, thus, remand the instant case to 

the trial court for it to recalculate Appellant’s credit for time served, to ensure 

that Appellant receives the credit to which she is entitled. We affirm 

Appellant’s judgment of sentence in all other respects. 

Case remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/9/2023

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8

In its October 27, 2022 sentencing order, the court adopted the 25-day timecredit it imposed in the September 26, 2022 sentence. Order, 10/27/22, at ¶ 

2. The September 26, 2022 sentencing order, however, does not explain the 

rationale for the 25-day credit, and Appellant failed to have either sentencing 

hearing transcribed. Moreover, the trial court did not explain its time-credit 

calculation in its Rule 1925(a) opinion. A remand is, thus, necessary.