J-A29028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    EDWARD MCARTHUR,

                             Appellant                 No. 3852 EDA 2016


                 Appeal from the PCRA Order December 12, 2016
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0001020-2010


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

MEMORANDUM BY PLATT, J.:                          FILED DECEMBER 29, 2017

        Appellant, Edward McArthur, appeals from the order denying his first

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

        On August 3, 2010, the trial court convicted Appellant after a bench trial

of robbery, burglary, theft, criminal trespass, firearm violations, and simple

assault. The charges related to Appellant’s participation in an armed home

invasion in Philadelphia. Three individuals were present in the home at the

time; namely, a fifteen-year-old female, her elderly grandmother, and her

grandmother’s friend.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       On January 24, 2011, the trial court sentenced Appellant to an

aggregate term of incarceration of not less than ten nor more than twenty

years. Appellant filed a direct appeal, and this Court affirmed the judgment

of sentence on May 17, 2012. (See Commonwealth v. McArthur, 50 A.3d

244 (Pa. Super. 2012)). Our Supreme Court denied further review on April 5,

2013. (See Commonwealth v. McArthur, 63 A.3d 1245 (Pa. 2013)).

       Appellant filed his timely first PCRA petition pro se on July 8, 2013.

Appointed counsel filed an amended petition on August 3, 2014. The PCRA

court issued Rule 907 notice of its intent to dismiss the petition without a

hearing on November 10, 2016, see Pa.R.Crim.P. 907(1), and formally

dismissed it on December 12, 2016. Appellant timely appealed.1

       Appellant raises two questions for this Court’s review:

       I.    Is Appellant entitled to post-conviction relief in the form of
       leave to file a post-sentence motion nunc pro tunc [or] a remand
       for an evidentiary hearing?

       [II.] Is Appellant entitled to PCRA relief in the form of the grant
       of leave to file a post-sentence motion nunc pro tunc in the nature
       of a motion for reconsideration of sentence or a remand for an
       evidentiary hearing since trial counsel rendered ineffective
       assistance of counsel when he failed to consult with Appellant
       concerning the filing of a post-sentence motion in the nature of a
       motion for reconsideration of sentence and failed to file such a
       motion?

(Appellant’s Brief, at 4).


____________________________________________


1 Pursuant to the court’s order, Appellant filed a concise statement of errors
complained of on appeal on December 22, 2016. The court filed an opinion
on July 19, 2017. See Pa.R.A.P. 1925.

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         Our standard of review of this matter is well-settled.

                This Court analyzes PCRA appeals in the light most
            favorable to the prevailing party at the PCRA level.
            Our review is limited to the findings of the PCRA court
            and the evidence of record and we do not disturb a
            PCRA court’s ruling if it is supported by evidence of
            record and is free of legal error. Similarly, we grant
            great deference to the factual findings of the PCRA
            court and will not disturb those findings unless they
            have no support in the record. However, we afford no
            such deference to its legal conclusions. Where the
            petitioner raises questions of law, our standard of
            review is de novo and our scope of review is plenary.
            Finally, we may affirm a PCRA court’s decision on any
            grounds if the record supports it.

            In order to be eligible for PCRA relief, the petitioner must
      prove by a preponderance of the evidence that his conviction or
      sentence resulted from one or more of the enumerated
      circumstances found in Section 9543(a)(2), which includes the
      ineffective assistance of counsel. 42 Pa.C.S.[A.] § 9543(a)(2)(i).

Commonwealth v. Benner, 147 A.3d 915, 919-20 (Pa. Super. 2016) (case

citation omitted).

      Instantly, Appellant complains that counsel was ineffective for failing to

consult with him about filing a post-sentence motion raising a discretionary

aspects of sentence claim, and that the court erred in denying his PCRA

petition without a hearing.      (See Appellant’s Brief, at 16, 19, 31-34).

Appellant’s claims lack merit.

             It is well-established that counsel is presumed effective, and
      to rebut that presumption, the PCRA petitioner must demonstrate
      that counsel’s performance was deficient and that such deficiency
      prejudiced him. To prevail on an ineffectiveness claim, the
      petitioner has the burden to prove that (1) the underlying
      substantive claim has arguable merit; (2) counsel whose
      effectiveness is being challenged did not have a reasonable basis

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J-A29028-17


     for his or her actions or failure to act; and (3) the petitioner
     suffered prejudice as a result of counsel’s deficient performance.
     The failure to satisfy any one of the prongs will cause the entire
     claim to fail.

Benner, supra at 920 (citations and quotation marks omitted).

     Further:

     Sentencing is a matter vested in the sound discretion of the
     sentencing judge, and a sentence will not be disturbed on appeal
     absent a manifest abuse of discretion. In this context, an abuse
     of discretion is not shown merely by an error in judgment. Rather,
     the appellant must establish, by reference to the record, that the
     sentencing court ignored or misapplied the law, exercised its
     judgment for reasons of partiality, prejudice, bias or ill will, or
     arrived at a manifestly unreasonable decision.

Commonwealth v. Bullock, 170 A.3d 1109, 1123 (Pa. Super. 2017)

(citations and quotation marks omitted).     “Where a sentencing court is

informed by a [presentence investigation (PSI)] 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. Haynes, 125 A.3d 800, 807 n.3 (Pa. Super.

2015), appeal denied, 140 A.3d 12 (Pa. 2016) (citation and internal quotation

marks omitted).

     Here, the court explained:

     . . . [T]he standard guidelines sentence for each of the three
     robbery counts alone, imposed consecutively, would have resulted
     in a sentence of 19 ½ to 39 years. After a sentencing hearing and
     a careful consideration of the record, the court sentenced
     [Appellant] to ten to twenty years’ incarceration with 10 years’
     probation. [Appellant] was charged with several charges, all of
     which run concurrently. Although [Appellant] asserts that the
     sentence is unreasonable, there is no evidence given by [him] for

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J-A29028-17


      this conclusion. While some individual counts might fall somewhat
      above the advisory guidelines, the total sentence is well within
      them.    The court explicitly considered the presentence and
      psychiatric evaluations, [the facts of the case, and Appellant’s
      work and criminal histories]. (See N.T. Sentencing, 1/24/11, at
      4, 9-10). [Further, the trial court imposed a sentence well below
      the term of not less than twenty-four nor more than forty-eight
      years’ incarceration requested by the Commonwealth. (See id.
      at 8, 12).]

(Trial Ct. Op., at 5) (record citation formatting and some record citations

provided).

      Based on the foregoing, and our independent review of the record, we

conclude that the trial court did not abuse its discretion in sentencing

Appellant, particularly in light of the fact that it possessed his PSI and

psychiatric evaluation. See Bullock, supra at 1123; Haynes, supra at 807

n.3. Hence, Appellant has failed to prove that he suffered any prejudice by

counsel’s decision not to file a post-sentence motion challenging the

discretionary aspects of sentence where it would not have merited relief. See

Benner, supra at 919-20; see also Commonwealth v. Fears, 86 A.3d 795,

804 (Pa. Super. 2014) (“[C]ounsel cannot be deemed ineffective for failing to

raise a meritless claim.”) (citation omitted). Accordingly, Appellant’s claim of

counsel’s ineffectiveness lacks merit.

      We further note that, “[t]here is no absolute right to an evidentiary

hearing on a PCRA petition, and if the PCRA court can determine from the

record that no genuine issues of material fact exist, then a hearing is not

necessary.” Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super.


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J-A29028-17


2008) (citation omitted).   Therefore, here, because the PCRA court could

determine from the record that Appellant’s claim contained no genuine issue

of material fact, it properly denied his petition without a hearing. See id.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/17




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