OPINION BY WECHT, J.:
Matthew Myers challenges the judgment of sentence entered on October 4, 2012. For the reasons that follow, we affirm Myers' judgment of sentence, but remand for further proceedings concerning Myers' bail status.
The trial court has provided the following account of the factual history underlying Myers' conviction:
Trial Court Opinion ("T.C.O."), 2/8/2013, at 1-2 (record citations omitted).
Based upon the above, evidence, on August 16, 2012, Myers was convicted by a jury of theft of services, theft by unlawful taking or disposition, and receiving stolen property.
On October 4, 2012, Myers was sentenced in the standard range of the sentencing guidelines to an aggregate six to twenty-three months' incarceration, to be followed by two years' probation. On October 5, 2012, Myers filed post-sentence motions. Among his claims for relief, Myers asked the court to defer his reporting date and asserted a request for bail pending appeal. Post Sentence Motion for Reconsideration, for Appointment of Counsel, 10/5/2012, at 2-3 ¶¶ 6-10 (unpaginated). The trial court denied Myers' motion on the same day.
On October 23, 2012, the trial court ordered Myers to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) within twenty-one days. On November 7, 2012, Myers filed a motion requesting an extension of the time to file his Rule 1925 statement, which was granted by trial court order entered on November 8, 2012. In that order, the trial court afforded thirty additional days from that date for Myers to file his concise statement. Myers filed his concise statement on December 12, 2012.
We pause to note that, unfortunately, the order extending the time for filing of the Rule 1925(b) statement is ambiguous on its face. The November 8, 2012 order provided as follows: "Petition for
While it is clear that, whatever else we may do, we may not consider the merits of an appeal when the Rule 1925 statement was untimely filed, Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775, 780 (2005), we find that this rule does not apply under the circumstances of this case. In the interest of the just and expedient disposition of the instant appeal, and in light of the fact that the trial court filed a Rule 1925(a) opinion addressing in detail the issues Myers has raised for our consideration, we will construe the trial court's November 8, 2012 order as reflecting the court's intention to provide thirty days in addition to the twenty-one days provided in the October 23, order. Consequently, pursuant to the November 8 order, Myers had fifty-one days from October 23, to file his statement. The fifty-first day was December 13. Myers filed his Rule 1925(b) statement on December 12, 2012. Consequently, Myers' statement was filed timely, and we may address the merits of his appeal.
Before this Court, Myers raises the following issues:
Brief for Myers at 3.
In the interests of clarity, we address ourselves first to Myers' unavailing sufficiency
Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1130 (2007) (citing Commonwealth v. Ockenhouse, 562 Pa. 481, 756 A.2d 1130, 1135 (2000)).
In support of his sufficiency challenge, Myers contends that the evidence failed to establish that he authorized the work performed on his vehicle. In support of this argument, he contends as follows:
Brief for Myers at 9-10.
As noted supra, Myers was convicted of theft of services, theft by unlawful taking or disposition, and receiving stolen property. However, in his argument, he does not address his convictions discretely, or tailor his argument to the different elements that must be established to convict a defendant on each such charge. Rather, he relies solely on the above-stated testimony. Notably, he provides no authority or argument in support of the proposition that a lack of authorization is a defense to these crimes. However, we assume arguendo that, were his assessment of the evidence correct, he could prevail as to all charges.
The infirmity of Myers' contention is effectively set forth in his own argument. As set forth above, Myers concedes that, "based on his recollection and review of the work order, [Mr. McManus testified that Myers] approved the work done that was listed in the work order." Brief for Myers at 9; see Notes of Testimony ("N.T."), 8/15/2012, at 49 (Mr. McManus responding (during direct examination) "Yes" to the query "based on your recollection and review of the work order, did the customer who was responsible for this Cadillac DeVille approve the work done as listed on the work order?"). However, he argues that McManus' later testimony on cross-examination fatally undermined by
In effect, Myers does not contest that Mr. McManus testified that he obtained authorization from Myers. Instead, he notes that Mr. McManus later testified with some uncertainty regarding when calls were placed to McManus and who placed them. See N.T. at 61 ("I definitely called him the initial time. I could not remember the second, if it was me or somebody else.").
As noted, supra, in reviewing the sufficiency of the evidence, we defer to the jury's findings of fact, provided that there is evidentiary support in the record. In making our assessment, we review all evidence in the light most favorable to the Commonwealth as prevailing party, and we further grant the Commonwealth the benefit of all favorable inferences that may be drawn from that evidence. See Eichinger, supra. Mr. McManus undisputedly testified that Myers authorized the work performed upon Myers' vehicle. Thus, the evidence was sufficient to sustain his conviction over Myers' contention that he did not authorize the work in question.
With respect to the trial court's denial of bail pending appeal pursuant to Pa. R.Crim.P. 521, we find that the trial court erred in effectively revoking Myers' standing non-monetary bail order without expressly doing so, and without adhering to the procedural requirements of Pa. R.Crim.P. 521, which provides, in relevant part, as follows:
Pa.R.Crim.P. 521.
Rule of Criminal Procedure 534 provides further insight into a defendant's bail status following sentencing but prior to the expiration of the time for filing an appeal, before which the judgment of sentence is not final. Specifically, Rule 534 provides that, "
Notably, our review of the record discloses no proper revocation of Myers' standing bond. Following arrest and before trial, Myers was released on an unsecured $25,000 bond, pursuant to Pa. R.Crim.P. 524(C)(3). As noted in the comment to Pa.R.Crim.P. 521, that bail bond, unless revoked, was "valid until full and final disposition of the case." Rule 534's contingent language "
In this connection, we observe that neither the trial court nor the Commonwealth expressed any concern that Myers would remain at liberty following his conviction, while sentencing was deferred for the preparation of a pre-sentencing investigation. The trial record from the day the guilty verdict was returned on August 16, 2012, reveals that the parties' and the court's only concern was scheduling sentencing at a time that allowed for the preparation of that report. See Notes of Testimony, 8/16/2012, at 57-58. After the imposition of sentence, during a hearing that occurred nearly two months later, the parties focused solely on the question of how long to defer Myers' reporting date.
Under the circumstances of this case, nothing in the applicable rules required Myers to reestablish a basis for his release pending appeal. Rather, as can be gleaned from the terms of Rule 521(C) ("
In this case, it appears that Myers and the Commonwealth, by focusing upon negotiating the terms of his reporting to serve his sentence, essentially presumed that his bond would be revoked. The trial court, in turn, did the same. We cannot find that this ameliorated the trial court's omission.
We recognize that Myers not only began to serve his sentence shortly after sentencing, but that he has served better than half of his sentence to date. Indeed, because Myers appears to have served more than his minimum sentence by now, he may not even be incarcerated as of this writing. However, because we cannot overlook the trial court's error, we must remand this case for a bail hearing, unless Myers has completed his term of confinement.
If such a hearing is necessary, we direct the trial court to determine whether a restoration of bail is warranted, under whatever terms are deemed appropriate by that court. Among the circumstances the court may consider is whether Myers intends to seek review of this Court's decision by petition to the Pennsylvania Supreme Court. Indeed, it would serve no purpose to release Myers on bail if he did not so intend. For precisely this reason, Rule 521(B)(3) directs a trial court that opts to release a defendant on bail pending appeal to require, as a term of his release, that the defendant, in fact, file the appeal or petition in question. Even if Myers intends to seek review, the trial court retains discretion to modify, revoke, or deny bail pursuant to the factors set forth in Rule 521(D), provided that the court adheres to the requirements for such proceedings set forth in that rule.
Judgment of sentence affirmed. Case remanded with instructions. Jurisdiction relinquished.
Brief for Myers at 7. An assertion that a given sentence is excessive constitutes a challenge to the discretionary aspects of that sentence. Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa.Super.2008). In order to preserve such a challenge for purposes of appeal, an appellant must provide "a concise statement of reasons for allowance of appeal demonstrating a substantial question that the sentence imposed was not appropriate under the Sentencing Code." Commonwealth v. Penrod, 396 Pa.Super. 221, 578 A.2d 486, 490 (1990); see Pa. R.A.P. 2119(f). When an appellant fails to provide such a statement (not to mention no material argument to the effect that his challenge presents a substantial question) and the Commonwealth objects to the omission, we must deem that challenge waived. Commonwealth v. Bruce, 207 Pa.Super. 4, 916 A.2d 657, 666-67 (2007). Accordingly, we will not consider the merits of Myers' sentencing challenge.