Full Opinion

J-S30011-26 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RAYMOND W. PRIESTER : : Appellant : No. 1137 WDA 2025 Appeal from the Judgment of Sentence Entered August 26, 2025 In the Court of Common Pleas of Butler County Criminal Division at No: CP-10-CR-0000646-2023 BEFORE: STABILE, J., LANE, J., and BENDER, P.J.E. MEMORANDUM BY STABILE, J.: FILED: October 22, 2026 Appellant, Raymond W. Priester, appeals from the judgment of sentence imposed following revocation of his parole on August 26, 2025, by the Court of Common Pleas of Butler County. Upon review, we affirm. On January 4, 2024, Appellant pleaded guilty to theft of secondary metal1 and driving while operating privilege is suspended – 3rd or subsequent violation2. He was sentenced on February 8, 2024, to an aggregate of six to 12 months imprisonment and 12 consecutive months of probation. Appellant was immediately paroled. On January 9, 2025, the Commonwealth filed a request to schedule a violation of parole (“VOP”) hearing because Appellant incurred nine new ____________________________________________ 1 18 Pa.C.S.A. § 3935.1(A). 2 75 Pa.C.S.A. § 1543(b)(1)(iii). J-S30011-26 criminal charges. A Gagnon I3 hearing was held on February 7, 2025, wherein Appellant admitted to the violations. The Gagnon II hearing was deferred pending disposition of the new charges or upon motion of either party. Appellant’s detainer was lifted, and in exchange, Appellant agreed to cooperate with Detective Matthew Irvin on unrelated investigations. N.T. VOP Hearing, 8/21/25, at 15. Appellant was ordered to appear at the Butler County Adult Probation Department every Monday following his release. A violation would result in immediate detention. Appellant was released from the Butler County jail on February 7, 2025, and never reported to the probation department. As a result, the Commonwealth filed a second request to schedule a VOP hearing. The VOP court scheduled a Gagnon II hearing for March 21, 2025, but was continued pending disposition of the new charges or upon motion of either party. On March 27, 2025, defense counsel, Joseph L. Smith, Esquire, filed a motion to withdraw and request for appointment of new counsel.4 Counsel averred that he received a letter from Appellant which alleged “ineffective assistance and unfounded allegations about working for the Commonwealth’s interest.” Motion to Withdraw as Counsel, 3/27/25, at ¶ 4. Therefore, counsel sought to withdraw due to a breakdown in the attorney-client relationship. ____________________________________________ 3 Gagnon v. Scarpelli, 411 U.S. 778 (1973). 4 Attorney Smith represented Appellant on 10 total dockets, including the one subject to this appeal. He filed a motion to withdraw from all of Appellant’s cases. -2- J-S30011-26 Id. at ¶ 5. A hearing was scheduled for April 24, 2025. However, there is no indication in the record whether that hearing occurred. Counsel filed a second motion to withdraw and request for appointment of new counsel on July 30, 2025. In addition to the averments in counsel’s first motion, he added that Appellant “renewed his allegations against undersigned counsel on the record with the trial court at the last status conference.” Motion to Withdraw as Counsel, 7/30/25, at ¶ 7. A hearing was scheduled for August 21, 2025. On August 4, 2025, the Commonwealth filed a motion to revoke bond and schedule a Gagnon II hearing. The Gagnon II hearing was scheduled for the same date that the VOP court was scheduled to address counsel’s request to withdraw – August 21, 2025. At the hearing on August 21, 2025, the VOP court first addressed the parole violation and the Commonwealth’s request to revoke bond. The VOP court found that Appellant violated his parole and ordered him to serve his back time. The VOP court then addressed counsel’s motion to withdraw. At the conclusion of the hearing, the VOP court took the matter of counsel’s withdraw under advisement. On August 26, 2025, the VOP court entered two separate orders: (1) finding Appellant violated his parole and sentencing him to serve his back time and (2) granting counsel’s motion to withdraw and -3- J-S30011-26 appointing new counsel, Joel Hills, Esquire.5 This timely appeal followed. Both Appellant and the VOP court complied with Pa.R.A.P. 1925. Appellant raises the following issues for our review: I. Whether the [VOP] court abused its discretion in failing to permit counsel to withdraw prior to addressing the merits of the alleged parole violation at the Gagnon II hearing, thereby violating Appellant’s right to proceed pro se when it was clear from the record that Appellant vehemently objected to trial counsel’s continued representation. II. Whether the [VOP] court abused its discretion in failing to permit Appellant to proceed pro se at the Gagnon II hearing which prevented Appellant from zealously cross- examining witnesses at said hearing as to their conflicting and false testimony. III. Whether the evidence was insufficient to find Appellant had violated the terms of his parole. IV. Whether Appellant was not afforded with properly/timely notice of the Gagnon II hearing in violation of his due process rights which prevented him from properly defending the allegations and/or confront witnesses, especially in light of the fact that he was forced to proceed with counsel he vehemently objected to given the motion to withdraw pending before the court at the time of the Gagnon II hearing. V. Whether Appellant’s sentence to serve the balance of the maximum with no credit for “street time” was excessive given the allegations lodged against him and the fact that Appellant had not been convicted of any further crimes at the time of the Gagnon II hearing. ____________________________________________ 5 On October 20, 2025, Attorney Hills filed to withdraw with this Court.We directed the VOP court to conduct a Grazier hearing to determine whether Appellant wanted to proceed pro se or appoint substitute counsel. Following the Grazier hearing, the VOP court appointed Christy P. Foreman, Esquire, to represent Appellant on appeal. -4- J-S30011-26 VI. Whether Appellant’s credit time has been improperly calculated thus affecting the release dates as to the state sentence he is currently serving for retail theft at CP-10-CR- 651-2025, which was ordered to run concurrent to any other sentence. Appellant’s Brief, at 7-8. In Appellant’s first issue, he contends that the VOP court abused its discretion when it failed to address counsel’s request to withdraw before commencement of the Gagnon II hearing. See Appellant’s Brief, at 15-18. He argues this failure amounted to a violation of his Sixth Amendment right to proceed pro se. See id. at 15. He cites no relevant authority to support his position. “A criminal defendant’s right to counsel under the Sixth Amendment includes the concomitant right to waive counsel’s assistance and proceed to represent oneself at criminal proceedings.” Commonwealth v. El, 977 A.2d 1158, 1162 (Pa. 2009). The right to represent oneself is guaranteed where a defendant “understands the nature of his choice” and “knowingly, voluntarily, and intelligently seeks to waive his right to counsel[.]” Id.; see also Pa.R.Crim.P. 121. However, the right to represent oneself is not automatic and the request must be made timely and must be clear and unequivocal. See id. at 1163; see also Commonwealth v. Davido, 868 A.2d 431, 438 (Pa. 2005). A request is timely when it is asserted before “meaningful trial proceedings” have begun. El, 977 A.2d at 1163. “[T]he inquiry surrounding whether a request to proceed pro se is unequivocal is fact intensive and should -5- J-S30011-26 be based on the totality of the circumstances surrounding the request.” Davido, 868 A.2d at 439. Here, as the VOP court correctly points out, Appellant never made a clear and unequivocal request to proceed pro se. Attorney Smith filed two motions to withdraw; on March 27, 2025 and July 30, 2025. In both, Attorney Smith requested appointment of new counsel and did not assert that Appellant wished to proceed pro se. When given the opportunity to address the VOP court regarding Attorney Smith’s motion to withdraw, the focus was on Appellant’s dissatisfaction with and distrust of his current counsel. See N.T. VOP Hearing, 8/21/25, at 34-37. Appellant never explicitly requested to proceed pro se. Based on the totality of the circumstances, we conclude that Appellant did not make a clear and unequivocal request to proceed pro se. Accordingly, Appellant never invoked his Sixth Amendment right of self-representation, and the VOP court did not err in failing to address counsel’s request prior to commencement of the Gagnon II hearing. Relatedly, in Appellant’s second issue, he argues that the VOP court abused its discretion by not allowing him to proceed pro se at the Gagnon II hearing. See Appellant’s Brief, at 19-23. “This flagrant abuse completely thwarted Appellant’s ability to defend against the Commonwealth’s evidence, which included zealously cross-examining conflicting and false testimony.” Id. at 19. -6- J-S30011-26 Appellant’s argument on this issue, practically speaking, is that counsel was ineffective. He essentially argues that he would have done a better job questioning the Commonwealth’s witness than his counsel. Absent established exceptions not present here, “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.” Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013). Thus, we are unable to review this claim.6 Appellant’s third issue challenges the sufficiency of the evidence to find that he violated his parole. See Appellant’s Brief, at 23-27. He claims that the Commonwealth failed to meet its burden because: (1) his counsel failed to object to the playing of a recorded prison call between Appellant and his paramour where he admitted to committing the new crimes; and (2) the “evidence was clearly insufficient given the credible testimony offered by Appellant.” Id. at 2 “Unlike a probation revocation, a parole revocation does not involve the imposition of a new sentence.” Commonwealth v. Kalichak, 943 A.2d 285, 290 (Pa. Super. 2008). “The Commonwealth must prove the violation by a preponderance of the evidence, and once it does so, the decision to revoke parole is a matter for the court’s discretion.” Id. “[T]he only option for a ____________________________________________ 6 Additionally, Appellant does not explicitly claim counsel was ineffective and does not assert an exception to the rule that ineffectiveness claims must be deferred to collateral review. -7- J-S30011-26 court that decides to revoke parole is to recommit the defendant to serve the already-imposed, original sentence.” Id. As such, our review is limited to determining whether the VOP court erred as a matter of law in deciding to revoke parole and recommitting the defendant to confinement. Id. at 291. This third issue is without merit. Appellant was sentenced on February 8, 2024, to serve six to 12 months in prison and 12 consecutive months of probation. One of the conditions of Appellant’s probation and parole was to comply with all laws and to notify his probation officer within 72 hours of any arrest. See Butler County Conditions of Probation and Parole, 2/8/24. To prove Appellant violated his parole, the Commonwealth played portions of a recorded prison call on July 29, 2025, between Appellant and his paramour. See N.T. VOP Hearing, 8/21/25, at 19-20, Commonwealth’s Exhibit 1. On the call, Appellant states, “From day 1, I’ve admitted I fucking stole this shit from the stores. I never once argued that I did not take that shit. You got me.” Id., Exhibit 1 at 18:55-19:05. Additionally, Appellant admitted that he violated his parole during the February 7, 2025, Gagnon I hearing, and confirmed that admission during the Gagnon II hearing. See id. at 22. Accordingly, the VOP court found the Commonwealth met its burden, revoked Appellant’s parole and ordered him to serve his back time. We find no abuse of discretion. To the extent Appellant argues that his counsel was ineffective, that issue must be deferred to post-conviction review. See Holmes, supra. To the extent Appellant challenges the VOP court’s credibility determinations, -8- J-S30011-26 those are within the sole discretion of the VOP court. See Commonwealth v. Myers, 722 A.2d 649, 651-52 (Pa. 1998) (“questions of credibility and conflicts in the evidence presented are for the trial court to resolve, not our appellate courts” so long as the determination is supported by the record). No relief is due. In Appellant’s fourth issue, he contends that his due process rights were violated because he did not receive timely notice of the VOP hearing. See Appellant’s Brief, at 27-29. “[T]his lack of prior notice prevented him from properly defending the allegations and confront the witnesses against him, especially given that he was forced to proceed with counsel he had clearly terminated prior to the revocation hearing.” Id. at 27. This issue is without merit. The order scheduling the VOP hearing was filed on August 14, 2025 – one week prior to the hearing. The distribution list on the order indicates that a copy of the order was provided to Appellant at Butler County Prison. See Order, 8/14/25. Moreover, Appellant’s argument that had he been provided ample notice, he would have subpoenaed witnesses and gathered evidence to negate the allegations is unavailing. His parole violations consisted of incurring nine new criminal charges and not paying his fines, costs, and/or restitution. Appellant admitted to the violations during the Gagnon I hearing and confirmed that admission during the Gagnon II hearing. No relief is due. Appellant’s fifth issue appears to challenge the discretionary aspects of his sentence. He argues: -9- J-S30011-26 Appellant alleges that the sentence to serve the balance of the maximum with no credit for his “street time” was excessive in light of the unsubstantiated allegations lodged against him, especially in light of the fact that he appeared before the [VOP court] with no additional convictions. **** [This] was clearly an abuse of discretion and unambiguously excessive under the circumstances given the fact that Appellant was not a “convicted violator” at the time the parole was revoked. Appellant’s Brief, at 29-31. Based on this argument, Appellant seems to challenge the sufficiency of the evidence to prove that he violated his parole disguised as a challenge to the discretionary aspects of sentencing. Under either theory, Appellant’s argument fails. As previously discussed, there was sufficient evidence to prove Appellant violated his parole. To the extent Appellant challenges the discretionary aspects of his sentence, that challenge is improper. “[A]n appeal of a parole revocation is not an appeal of the discretionary aspects of sentence.” Kalichak, 943 A.2d at 291. We explained: As such, a defendant appealing recommitment cannot contend, for example, that the sentence is harsh and excessive. Such a claim might implicate discretionary sentencing but it is improper in a parole-revocation appeal. Similarly, it is inappropriate for a parole-revocation appellant to challenge the sentence by arguing that the court failed to consider mitigating factors or failed to place reasons for sentence on the record. Challenges of those types again implicate the discretionary aspects of the underlying sentence, not the legal propriety of revoking parole. Id. (citations omitted). Because Appellant’s challenge that the sentence was excessive is improper, we need not address this issue further. - 10 - J-S30011-26 In Appellant’s eighth issue, he argues “that appropriate time credit in this matter has been improperly calculated, thus effecting the release date for his state sentence imposed at CP-10-CR-651-2025, which was ordered to run concurrent with any other sentence he was serving, i.e., this parole revocation sentence.” Appellant’s Brief, at 32. A claim that the trial court failed to award credit for time spent in custody implicates the legality of sentence. Commonwealth v. Nobles, 198 A.3d 1101, 1105 (Pa. Super. 2018). The scope and standard of review to determine the legality of a sentence are well established: If not statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. In evaluating a trial court’s application of a statute, our standard of review is plenary and is limited to determining whether the trial court committed an error of law. Commonwealth v. Whatley, 221 A.3d 651, 653 (Pa. Super. 2019) (citation omitted). Time credit is governed by 42 Pa.C.S.A. § 9760: 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). “Section 9760 does not contemplate [or authorize] credit for time served to be awarded twice.” Barndt v. PA Dept. of Corrections, 902 A.2d 589, 595 (Pa. Commw. Ct. 2006); see also Taglienti v. Dept. of Corrections, 806 A.2d 988, 993 (Pa. Commw. Ct. 2002) (“[C]redit for time served prior to the sentencing date is governed by Section - 11 - J-S30011-26 9760 which does not provide for credit for time served on unrelated offenses or when credit has been already credited against another sentence.”). Here, at the time Appellant was sentenced on this charge, he was already serving multiple sentences. After he was sentenced on this charge, Appellant received 10 new sentences. In addressing Appellant’s claim, the trial court explained: Appellant fails to specify how the credit time was improperly calculated or how much credit he is due. The Butler County Prison records indicate that Appellant was credited with [165] days served in the above-captioned matter. Appellant’s remaining time incarcerated during the pendency of this case was properly credited to Appellant’s other cases. See CP-10-CR-0000525- 2023; CP-10-CR-0000997-2021; CP-10-CR-0000651-2025. The credit time available from January 7, 2025 to February 7, 2025, that was attributed to 651-2025 [Appellant’s state sentence] could have been credited to this case, however, it was more beneficial to Appellant to apply the credit to his state sentence. Trial Court Opinion, 2/13/26, at 5 (our pagination). Appellant’s argument on this issue is as follows: At the time of the revocation hearing, Appellant had served approximately 11 months of “street time” after parole from the original sentence. It should be noted that the original sentence imposed on February 8, 2024, was a period of 12 months’ probation at count one (1) and a term of imprisonment of six to twelve months at count two (2), with the sentence to run concurrent to any other sentence. Appellant submits that appropriate credit time in this matter has been improperly calculated, thus effecting the release date for his state sentence imposed at CP-10-CR-651-2025, which was ordered to run concurrent with any other sentence he was serving, i.e., this parole revocation sentence. Court records allot only 165 days credit time to this particular case, March 4, 2025-August 15, 2025, which Appellant purports is incorrect given the length of time he has been incarcerated related to this offense. As such, - 12 - J-S30011-26 this miscalculation as to proper credit time is affecting his parole date related to [CP-10-CR-651-2025]. To allow this egregious error to remain will in essence increase his punishment in relation to his original sentence, this violating double jeopardy. Appellant is entitled to a proper calculation as to credit time and relief is warranted. Appellant’s Brief, at 31-32. In challenging the trial court’s decision, Appellant does not indicate how the decision was wrong, what time credit he is owed or how it should be applied. We are unable to review this issue because Appellant is not specific to where the error occurred and does not cite any authority for how the credit should be applied. To the extent Appellant contends he was entitled to double time credit, that claim is without merit. See Bardnt, Taglienti, supra. To the extent Appellant alleges that the Department of Corrections erred in the computation of sentence, that claim must be addressed to the Commonwealth Court. See Commonwealth v. Wyatt, 115 A.3d 876, 879 (Pa. Super. 2015). To the extent Appellant challenges the VOP court’s decision to not award him credit for time spent on parole, that claim is without merit. Offenders who are recommitted following a parole violation are not entitled to credit for time spent at liberty on parole. See Commonwealth v. Fair, 497 A.2d 643, 645 (Pa. Super. 1985); see also Commonwealth v. Chambers, 2023 WL 6459356 at *3 (Pa. Super. filed Oct. 4, 2023) (unpublished memorandum) 7. Thus, no relief is due. ____________________________________________ 7 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the Superior Court filed after May 1, 2019, may be cited for their persuasive value). - 13 - J-S30011-26 Judgment of sentence affirmed. DATE: 10/22/2026 - 14 -