J-S59044-14

NON-PRECEDENTIAL DECISION             SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                     Appellee            :
                                         :
                v.                       :
                                         :
CHRISTOPHER RAY HARRIS,                  :
                                         :
                     Appellant           :     No. 1387 EDA 2014


             Appeal from the PCRA Order Entered March 28, 2014,
               In the Court of Common Pleas of Carbon County,
             Criminal Division, at No(s): CP-13-CR-0000354-2011


BEFORE: SHOGAN, LAZARUS and STRASSBURGER*, JJ.

MEMORANDUM BY: STRASSBURGER, J.:              FILED SEPTEMBER 26, 2014

        Christopher Ray Harris (Appellant) appeals from the order entered

March 28, 2014, dismissing his petition filed pursuant to the Post Conviction

Relief Act (PCRA).1 We affirm.

        On March 7, 2011, Appellant was arrested and charged with multiple

crimes stemming from an incident that occurred on February 13, 2011,

where Appellant and three other individuals fired multiple shots at three

occupied homes along Yeakle Street in Weatherly, Pennsylvania.

        On May 9, 2011, Appellant waived his preliminary hearing in exchange

for a bail modification releasing him to pre-trial electronic home monitoring




1
    42 Pa.C.S. §§ 9541-9546.


* Retired Senior Judge assigned to the Superior Court.
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he remained on pre-trial EHM until sentencing.

          On May 17, 2012, Appellant, through his counsel, David Lampman, III,

entered into a negotiated stipulation with the Commonwealth whereby he

agreed to plead guilty to one count of aggravated assault - serious bodily

injury, two counts of REAP, and one count of discharging a firearm into an

unoccupied structure. Stipulation, filed 7/6/2012, 1-2. In exchange for his

plea, all other charges were withdrawn. The stipulation expressly provided

for a 48-to-96 month sentence of incarceration. Id. at 2.

          On July 12, 2012, Appellant formally entered his guilty plea before the

trial court. A pre-sentence investigation was ordered and a sentencing date

was set. On October 15, 2012, Appellant was sentenced to an aggregate of

48-to-

          On June 13, 2013, Appellant timely filed pro se a PCRA petition. New

counsel was appointed, and an amended PCRA petition was filed on October

16, 2013.2        In his amended petition, Appellant claimed that Attorney

Lampman was ineffective for ignoring his request to file a direct appeal.

Appellant also claimed that his sentence was illegal because (1) he did not

receive full credit for the time spent on pre-trial EHM and (2) the charges of



2
    The

was subsequently appointed on February 27, 2014.



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aggravated assault and REAP should have merged for the purpose of

sentencing.

      On March 28, 2014, following a PCRA hearing at which both Appellant

and Attorney Lampman testified, the PCRA court issued an order denying



Both the PCRA court and Appellant have complied with Pa.R.A.P. 1925.

      Appellant first argues that the PCRA court erred in denying his request

to reinstate his appellate rights nunc pro tunc where his plea counsel was

per se ineffective for failing to file a direct appeal on his behalf.



order is whether the determination of the PCRA court is supported by the

                                                 Commonwealth v. Carter, 21

A.3d 680, 682 (Pa. Super. 2011) (citation omitted). This Court grants great

deference to the findings of the PCRA court, and we will not disturb those

findings merely because the record could support a contrary holding.

Commonwealth v. Touw, 781 A.2d 1250, 1252 (Pa. Super. 2001).

Additionally,

            [o]ur standard of review when faced with a claim of
      ineffective assistance of counsel is well settled. First, we note
      that counsel is presumed to be effective and the burden of
      demonstrating ineffectiveness rests on appellant.

                                          ***

            A petitioner must show (1) that the underlying claim has
      merit; (2) counsel had no reasonable strategic basis for his or



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     her action or inaction; and (3) but for the errors or omissions of
     counsel, there is a reasonable probability that the outcome of
     the proceedings would have been different. The failure to prove
     any one of the th
     claim.


     failure to file a requested direct appeal constitutes ineffective
     assistance per se, such that the petitioner is entitled to
     reinstatement of direct appeal rights nunc pro tunc without
     establishing prejudice. Commonwealth v. Lantzy, 558 Pa. 214,
     226 27, 736 A.2d 564, 572 (1999). However, before a court will
     find ineffectiveness of counsel for failing to file a direct appeal,
     the petitioner must prove that he requested a direct appeal and
     the counsel disregarded the request. Commonwealth v. Bath,
     907 A.2d 619 (Pa. Super. 2006).

Commonwealth v. Ousley, 21 A.3d 1238, 1244-45 (Pa. Super. 2011)

(some citations omitted).

     Instantly, at his PCRA hearing Appellant testified that, immediately

following his sentencing, he asked Attorney Lampman to file an appeal,

although he claimed he did not specify any grounds upon which to do so.

N.T., 3/7/2014, at 14, 22. Appellant testified that once he returned to state

prison, he wrote a letter to Attorney Lampman requesting an appeal. Id. at

16. Additionally, Appellant testified that he asked his family to contact



time. Id. at 15. Appellant claimed that he eventually received a letter from




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Attorney Lampman explaining that there were no grounds to file an appeal.

Id.3

       In contrast, Attorney Lampman testified that he did not recall having

any post-sentence communication with Appellant and did not recall Appellant

requesting a direct appeal. Id. at 27, 28. 31. However, he remembered

Appellant being combative immediately following sentencing. Id. at 29.

Additionally, Attorney Lampman did not recall receiving communication from

Appellant or his family regarding an appeal, nor did he recall writing a letter

to Appellant informing him that there were no grounds to appeal. Id. at 27,

31.



                                                       Appellant requesting a



Order, 3/28/2013, n.2. This determination is supported by the record, and



determination that Appellant has failed to meet his burden under Bath,

supra and hold that Attorney Lampman was not per se ineffective for failing

to take a direct appeal where none was requested.



3
    Neither the letter Appellant purportedly wrote to counsel, nor Attorney

Appellant testified he did not have a copy of either letter. N.T., 3/7/2014, at
23.




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                                                                          dit for

time spent on pre-trial EHM and that his convictions should merge, raise

                                                                                -

32.      These nonwaiveable claims are cognizable under the PCRA.             See

Commonwealth v. Turner, 58 A.2d 845, 847 (Pa. Super. 2012) (indicating

challenges to the legality of a sentence are within the ambit of the PCRA);

Commonwealth v. Perry, 563 A.2d 511, 513 (Pa. Super. 1989) (noting

that claims of sentencing illegality based on failure to award credit time are

cognizable       as   due-process     challenges    in    PCRA     proceedings);

Commonwealth v. Pettersen, 49 A.3d 903, 911 (Pa. Super. 2012)



sentence). As with all questions of law, our standard of review is de novo

and the scope of our review is plenary. Commonwealth v. Baldwin, 985

A.2d 830, 833 (Pa. 2009).

         Appellant first argues that equitable circumstances were present which

entitle him to credit for the time he spent on pre-trial EHM. Appe

at 24.

         Pursuant to the Pennsylvania Sentencing Code, credit for time served

is awarded as follows:

         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



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      to trial, during trial, pending sentence, and pending the
      resolution of an appeal.

42 Pa.C.S. § 9760(1).

      In Commonwealth v. Kyle, 874 A.2d 12, 21 (Pa. 2005), our

                                    that time spent on bail release, subject to

electronic monitoring, does not qualify as custody for purposes of Section

9760 credit against a sentence o

assertions,   in    fashioning   this   bright-

                           -by-case test to determine if a defendant should

receive credit. Id.                                                    -line rule

will obviate the necessity of evidentiary hearings into the particulars of each

electronic monitoring program around the Commonwealth, which would be

necessary to implement a case-by-

claim must fail.4

      Finally, Appellant claims that his convictions for aggravated assault

and REAP should have merged for the purposes of sentencing because those

two crimes arose from the same criminal act and because REAP is a lesser

included offense of aggravated assault. Appell                  -32.

4

Commonwealth v. Martz, 42 A.3d 1142 (Pa. Super. 2012), for the
proposition that the rule as set forth in Kyle is somehow subject to
interpretation, we note that, unlike Appellant, Martz was not disputing pre-
trial EHM credit; rather, he requested credit for time spent following his
accidental release prior to the completion of his sentence. These situations
are vastly different, and the holding in Kyle abrogating the need for an
equitable balancing of factors related to pre-trial EHM credit controls here.



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      The merger statute states that

      [n]o crimes shall merge for sentencing purposes unless the
      crimes arise from a single criminal act and all of the statutory
      elements of one offense are included in the statutory elements of
      the other offense.

42 Pa.C.S. § 9765.

      Instantly, there is no dispute that the charges arose from the same set

of facts, constituting a single criminal act.   Moreover,

that reckless endangerment is a lesser included offense of aggravated

assault for the purposes of merger, i.e.                    Commonwealth

v. McCord, 700 A.2d 938, 947 (Pa. Super. 1997). Specifically, we found



                                  Id. Nonetheless, Ap

      Our Supreme Court has held that merger does not preclude separate

punishments for injuries to different victims, even when the victims were

injured by a single unlawful act or transaction. Commonwealth v. Frisbie,

485 A.2d 1098, 1100-01 (Pa. 1984). See also Commonwealth v. Burdge,



indicates that the specified victim of the aggravated assault conviction was

                                                             her home at the

time of the shooting, is the specified victim of the REAP conviction.

Accordingly, merger does not apply, and Appellant is not entitled to relief on

this issue.




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     Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/26/2014




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