J-S33023-19 & J-S33024-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES ROBERT OSTER, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 206 MDA 2019

Appeal from the Judgment of Sentence Entered January 9, 2019

In the Court of Common Pleas of Lancaster County 

Criminal Division at No(s): CP-36-CR-0007017-2018

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES R. OSTER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 207 MDA 2019

Appeal from the Judgment of Sentence Entered January 9, 2019

In the Court of Common Pleas of Lancaster County 

Criminal Division at No(s): CP-36-CR-0003944-2018

BEFORE: LAZARUS, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.: FILED AUGUST 07, 2019

In these related cases,1 James R. Oster appeals from the judgment of 

sentence imposed on January 9, 2019, in the Court of Common Pleas of 

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1 The cases are related because they concern the same facts, the same 

appellant, and raise the same issues. We note that the trial court issued a 

single opinion on both cases and the parties filed identical briefs. Therefore, 

we will dispose of these matters in one decision.
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Lancaster County. This follows his negotiated guilty pleas at case no. CP-36-

CR-0007017-2018 to two counts of possession with intent to deliver a 

controlled substance, one count of conspiracy, and one count of criminal use 

of a communications facility,2 and at case no. CP-36-CR-0003944-2018 to one 

count each of terroristic threats, simple assault, and disorderly conduct.3 That 

same day, in accordance with the terms of the plea agreement, the trial court 

sentenced Oster to an aggregate term of fifteen to forty-eight months’ 

imprisonment. The instant, timely appeals followed.4 Appointed counsel has 

filed an Anders brief along with a motion to withdraw as counsel in both cases. 

After a thorough review of the submissions by the parties, relevant law, and 

the certified record, we affirm and grant counsel’s petition to withdraw.5

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2 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 903 and 7512, respectively.

3 18 Pa.C.S.A. §§ 2706(a)(1), 2701(a)(3), 5503(a)(1).

4 Of relevance to this appeal, we note that Oster did not file a post-sentence 

motion. In response to the trial court’s order, Oster filed timely concise 

statements of errors complained of on appeal. Subsequently, the trial court 

issued an opinion.

5 By order of June 19, 2019, this Court directed counsel to file either a brief 

pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. 

Santiago, 978 A.2d 349, 351 (Pa. 2009) accompanied by a petition to 

withdraw, or a merits brief. Counsel complied with our order and filed a 

petition to withdraw and an Anders brief on July 2, 2019. The Commonwealth 

initially filed a brief in this matter, and on July 8, 2019, filed a letter stating it 

would not file an additional brief.
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Counsel has filed an Anders brief, explaining there are no meritorious 

issues. Therefore, we proceed “to make a full examination of the proceedings 

and make an independent judgment to decide whether the appeal is in fact 

wholly frivolous.” Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa. 

Super. 2015) (quotations and citation omitted). In so doing, we review not 

only the issues identified by appointed counsel in the Anders brief, but 

examine all of the proceedings to “make certain that appointed counsel has 

not overlooked the existence of potentially non-frivolous issues.” Id. at 1249 

(footnote omitted).

We begin by noting,

The standard of review when an Anders/McClendon brief has 

been presented is as follows:

To be permitted to withdraw pursuant to Anders, 

counsel must: (1) petition the court for leave to 

withdraw stating that after making a conscientious 

examination of the record it has been determined that 

the appeal would be frivolous; (2) file a brief referring 

to anything that might arguably support the appeal, 

but which does not resemble a “no merit” letter or 

amicus curiae brief; and (3) furnish a copy of the brief 

to the defendant and advise him of his right to retain 

new counsel or raise any additional points that he 

deems worthy of the court’s attention. 

If these requirements are met, the Court may then evaluate the 

record to determine whether the appeal is frivolous. 

Commonwealth v. McBride, 957 A.2d 752, 756-757 (Pa. Super. 2016) 

(citations omitted).
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Because counsel has complied with the technical requirements of 

Anders/McClendon, we will address the issues he raises therein as well as 

conducting “a simple review of the record to ascertain if there appear on its 

face to be arguably meritorious issues that counsel, intentionally or not, 

missed or misstated.” Commonwealth v. Dempster, 187 A.3d 266, 272 

(Pa. Super. 2018) (en banc). In the Anders/McClendon brief, counsel 

discusses the issues Oster sought to raise in this appeal: that the trial court 

failed to award him proper credit for time served and that trial counsel was 

ineffective for failing to raise this issue in a post-sentence motion. 

Oster contends that he received ineffective assistance of counsel. 

Oster’s Brief, at 8-9. This ineffectiveness claim, however, is premature. In 

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), the Pennsylvania 

Supreme Court reaffirmed the general rule first set forth in Commonwealth 

v. Grant, 813 A.2d 726 (Pa. 2002), that “claims of ineffective assistance of 

counsel are to be deferred to PCRA review; trial courts should not entertain 

claims of ineffectiveness upon post-verdict motions; and such claims should 

not be reviewed upon direct appeal.” Holmes, supra at 576. Although there 

are three recognized exceptions to that general rule, no exception is applicable 
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here.6 Accordingly, Oster’s ineffective assistance of counsel claim is not 

cognizable on direct appeal and must await collateral review.

Oster’s underlying premise, that counsel waived Oster’s challenge to the 

trial court’s alleged failure to award credit for time served on direct appeal 

because counsel did not file a post-sentence motion, is incorrect. Moreover, 

his claim that the trial court failed to award him credit for time served is belied 

by the record.

In its April 11, 2019 opinion, the trial court aptly disposes of Oster’s 

challenge to his sentence as follows:

[Oster’s] counsel did not raise [the issue of credit for time served] 

at sentencing or in a post-sentence motion. Pursuant to Pa.R.A.P. 

302(a), as a general rule, issues not raised in the lower court are 

waived and cannot be raised for the first time on appeal. 

However, challenges to the legality of a sentence cannot be 

waived. Commonwealth v. Redman, 864 A.2d 566, 569 (Pa. 

Super. 2004)[, appeal denied, 875 A.2d 1074 (Pa. 2005)]. A 

challenge to the trial court’s failure to award credit for time spent 

in custody prior to sentencing—as in the instant case—implicates 

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6 The Holmes Court recognized two exceptions: (1) where the trial court 

determines that a claim of ineffectiveness is “both meritorious and apparent 

from the record so that immediate consideration and relief is warranted[;]” or 

(2) where the trial court finds “good cause” for unitary review, and the 

defendant makes a “knowing and express waiver of his entitlement to seek 

PCRA review from his conviction and sentence, including an express 

recognition that the waiver subjects further collateral review to the time and 

serial petition restrictions of the PCRA.” Holmes, supra at 564, 577 (footnote 

omitted). A third exception was recently adopted by our Supreme Court for 

“claims challenging trial counsel’s performance where the defendant is 

statutorily precluded from obtaining PCRA review.” Commonwealth v. 

Delgros, 183 A.3d 352, 361 (Pa. 2018) (“[W]here the defendant is ineligible 

for PCRA review because he was sentenced only to pay a fine, we agree with 

Appellant that the reasoning in Holmes applies with equal force to these 

circumstances.”)
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the legality of sentence. Commonwealth v. Beck, 848 A.2d 987,

989 (Pa. Super. 2004). Therefore, [Oster’s] claim is not waived 

and the [trial court] will address it below.

In relevant part, the statutory provision governing credit for time 

served provides:

(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.

42 Pa.C.S.[A.] § 9760(1)

“The decided cases have held generally that 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. Credit is not given, however, for a 

commitment by reason of a separate and distinct offense.” 

Commonwealth v. Miller, 655 A.2d 1000, 1002 (Pa. Super. 

1995); see also Commonwealth v. Hollawell, 604 A.2d 723,

725 (Pa. Super. 1992) (“The principle underlying [§ 9760] is that 

a defendant should be given credit for time spent in custody prior 

to sentencing for a particular offense.”).

In Docket Number 3944-2018, the docket indicates bail was set 

and [Oster] was incarcerated on July 5, 2018. It further indicates 

that the 189 days between July 5, 2018 and January 9, 2019—the 

day upon which [Oster] was sentenced in the instant case—were 

credited toward [his] sentence. In Docket Number 70170-2018, 

the docket indicates bail was set on October 30, 2018, and the 72 

days between that date and January 9, 2019 were credited 

towards [Oster’s] sentence.

Although it is not entirely clear from [Oster’s] 1925(b) 

[s]tatement, it appears to the [trial court] that [Oster] alleges the 

[c]ourt should have awarded time-credit from July 5, 2018 on 

both dockets. The “double credit” [Oster] alleges he is entitled to 

“is prohibited both by the statutory language of Section 9760 and 

by the principle that a defendant be given credit only for time 
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spent in custody . . . for a particular offense.” Commonwealth 

v. Ellsworth, 97 A.3d 1255, 1257 ([Pa. Super.] 2014) (citations 

and quotation marks omitted); see also 42 Pa.C.S. § 9760(4).[a]

Oster’s issue therefore lacks merit.

[a] This provision provides: “If the defendant is 

arrested on one charge and later prosecuted on 

another charge growing out of an act or acts that 

occurred prior to his arrest, credit against the 

maximum term and any minimum term of any 

sentence resulting from such prosecution shall be 

given for all time spent in custody under the former 

charge that has not been credited against another 

sentence.”

Trial Court Opinion, 4/11/2019, at 2-3. Our independent review of the 

relevant law and the certified record confirms the trial court’s analysis. Oster’s 

contention that his sentence is illegal is frivolous. 

Moreover, we have reviewed the record and found that any other 

challenges to either the guilty plea or the sentence would also be frivolous. 

Thus, because the certified record amply demonstrates there are no 

meritorious issues on direct appeal, we affirm the judgment of sentence. 

Additionally, we grant counsel’s motion to withdraw from representation.

Judgment of sentence affirmed. Motion to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/7/2019