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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHARLES T. MEYERS

                            Appellant                No. 3323 EDA 2012


                  Appeal from the PCRA Order October 26, 2012
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010918-2007


BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                      FILED NOVEMBER 10, 2014

        Charles T. Meyers appeals1 from the trial court’s order dismissing,

without a hearing, his petition filed pursuant to the Post Conviction Relief Act

(PCRA).2      In 2008, a jury convicted Meyers of third-degree murder,

possessing an instrument of crime (PIC) and carrying a firearm without a

license. The charges stemmed from Meyers’ point-blank shooting of a 14-

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*
    Retired Senior Judge assigned to the Superior Court.
1
  Our standard and scope of review for the denial of a PCRA petition is well-
settled. An appellate court reviews the PCRA court's findings of fact to
determine whether they are supported by the record, and reviews its
conclusions of law to determine whether they are free from legal error.
Commonwealth v. Spotz, 84 A.3d 294 (Pa. 2014). The scope of review is
limited to the findings of the PCRA court and the evidence of record, viewed
in the light most favorable to the prevailing party at trial. Id.
2
    42 Pa.C.S. §§ 9541-9546.
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year-old boy riding his bike down the middle of the street where Meyers was

driving. Meyers fled the scene at a high rate of speed, ultimately colliding

with another vehicle and continued to flee from officers until they

successfully apprehended him.

      Meyers was sentenced to serve 20-40 years’ imprisonment on the

murder conviction, with consecutive sentences of 2½-5 years in prison for

PIC and 3½-7 years’ imprisonment for the firearm conviction (resulting in an

aggregate sentence of 26-52 years in prison). Meyers filed a timely notice

of appeal with our Court; his judgment of sentence was affirmed.

Commonwealth v. Meyers, No. 2782 EDA 2008 (Pa. Super. filed Oct. 13,

2009).   On July 9, 2010, Meyers filed a pro se Post Conviction Relief Act

(PCRA) petition. Counsel was appointed and filed an amended petition. On

October 26, 2012, the court dismissed Meyers’ petition.     On November 6,

2012, Meyers filed a timely notice of appeal from the denial of PCRA relief.

On November 13, 2012, the trial court filed a Pa.R.A.P. 1925(b) order. On

November 30, 2012, Meyers filed a timely Rule 1925(b) statement of errors

complained of on appeal. Finally, on March 7, 2014, the trial court filed its

Rule 1925(a) opinion in support of its decision.

      On appeal, Meyers contends that trial counsel was ineffective for

failing to: (1) file a motion to reconsider his sentence; (2) ensure that the

certified record contained such a motion; and (3) include a Pa.R.A.P. 2119(f)

statement with respect to his discretionary aspect of sentencing claim in his

appellate brief.

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          On direct appeal from his judgment of sentence, Meyers raised two

issues.      The first issue, concerning the propriety of the D.A.’s cross-

examination of defense character witnesses, was addressed on its merits by

our Court.      The second issue Meyers raised on direct appeal involved the

adequacy of the trial court’s reasons for departing from the sentencing

guidelines for his firearm and PIC convictions. Because the docket did not

reflect that any post-sentence motion had been filed and because the

certified record did not contain a copy of any such motion,3 our Court found

the issue waived on appeal.          See Meyers, supra.   Moreover, our Court

determined that even if counsel had filed a post-sentence motion and

included it in the record on appeal, the fact that counsel failed to file a

Pa.R.A.P. 2119(f) statement in Meyers’ appellate brief would also result in

waiver of the sentencing issue due to the Commonwealth’s objection to such

omission. Id.

          Although Meyers’ discretionary aspect of sentence claim may have

been waived on appeal due to counsel’s inaction, because Meyers was not

entirely deprived of his right to appeal, as would be the case if counsel had

failed to file a Rule 1925(b) statement, our Court must apply the traditional

three-prong ineffectiveness test to determine whether Meyers is entitled to

relief.     Cf. Commonwealth v. Halley, 870 A.2d 795, 801 (Pa. 2005)

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3
 Interestingly, a copy of an order denying a request for a reconsideration of
sentencing hearing is included in the record. Order, 9/15/08.



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(because failure to file and serve timely Rule 1925(b) Statement is failure to

perfect   appeal,   such   action   is   presumptively   prejudicial   and   "clear"

ineffectiveness).

      To prevail on a claim that counsel was constitutionally ineffective, the

appellant must overcome the presumption of competence by showing that:

(1) his underlying claim is of arguable merit; (2) the particular course of

conduct pursued by counsel did not have some reasonable basis designed to

effectuate his interests; and (3) but for counsel's ineffectiveness, there is a

reasonable probability that the outcome of the challenged proceeding would

have been different.       Commonwealth v. Watson, 835 A.2d 786 (Pa.

Super. 2003). A failure to satisfy any prong of the test for ineffectiveness

will require rejection of the claim.      Id.   Moreover, to succeed on a PCRA

claim based on counsel's failure to file requested post-sentence motions, a

defendant must demonstrate that he suffered actual prejudice due to

counsel's lapse.    Commonwealth v. Reaves, 923 A.2d 1119 (Pa. 2007)

(emphasis added).

      Here, Meyers claims that, post-sentence, he wanted the trial court to

reconsider “both the length and consecutive nature of the sentences

imposed.”    Appellant’s Brief, at 8.     Specifically, Meyers contends that the

trial court failed to consider the sentencing guidelines, failed to state on the

record the reasons for deviating from the guidelines, imposed a sentence

that is unreasonable and excessive and, finally, that in fashioning his

sentence, the court failed to consider Meyers’ age, his family history,

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education, employment history, cooperation during the pre-sentence and

mental health evaluations, and expression of remorse.

        Generally, if a sentence imposed is outside the guidelines, the trial

court must indicate that it understood the suggested range and make its

reasons for imposing the sentence a part of the record. See 42 Pa.C.S. §

9721(b). Moreover, our Supreme Court has held that where the trial court

possesses a pre-sentence report, it is presumed that the court is aware of all

appropriate sentencing factors and considerations, and that where the court

has     been      so    informed,    its    discretion      should    not    be   disturbed.

Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988). Furthermore, a court

can     satisfy   the    requirement       to    prepare    a   contemporaneous      written

statement of reasons for deviating from the sentencing guidelines by stating

those     reasons       on   the   record       in   the   presence   of    the   defendant.

Commonwealth v. Catanch, 581 A.2d 226 (Pa. Super. 1990).

        Here, the trial judge clearly and thoughtfully discussed her reasons for

sentencing Meyers at the sentencing hearing. See N.T. Sentencing Hearing,

9/5/08, at 38-43. Specifically, the trial judge considered all of the evidence

presented by both sides, carefully reviewed the pre-sentence and psychiatric

reports, and listened to counsels’ arguments as well as the testimony of

family members, and witnesses from trial and from sentencing. The court

also noted that it considered the guidelines, indicating that Meyers’ murder

sentence was within the standard-range and that his firearm and PIC

convictions were above-the-guideline range.                 Commonwealth v. Frazier,

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500 A.2d 158 (Pa. Super. 1985) (judge's statement of reasons for sentence

made     of   record    at   sentencing        in   defendant's   presence   constitutes

contemporaneous written statement that must contain permissible range of

sentences under sentencing guidelines and, at least in summary form,

factual basis and specific reasons which compelled court to deviate from

sentencing range).

       Because Meyers’ discretionary aspect of sentence claim has no

arguable merit, he could not prevail on a claim of counsel’s ineffectiveness.

Watson, supra.         Moreover, because Meyers cannot demonstrate that he

suffered actual prejudice due to counsel’s failure to file a post-sentence

motion or include a 2119(f) statement in his appellate brief, the trial court

properly dismissed his PCRA petition. Reaves, supra.

       Order affirmed.4

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2014

____________________________________________


4
  Although we are unable to discern from the record why it took 18 months
for the trial court to prepare its Rule 1925(a) opinion, we note that such
delay is harmless error because it does not change our result on appeal. In
future cases, we would prefer an explanation for such prolonged delay.



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