J-S10001-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CAMDYN DAVIS-OSTERHOUDT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1251 MDA 2021

Appeal from the PCRA Order Entered September 17, 2021

In the Court of Common Pleas of Tioga County

Criminal Division at CP-59-CR-0000333-2018

BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.: FILED APRIL 01, 2022

Camdyn Davis-Osterhoudt (Appellant) appeals from the order denying 

his first petition filed pursuant to the Post Conviction Relief Act (PCRA). See

42 Pa.C.S.A. §§ 9541-9546. We affirm.

This Court previously detailed the factual and procedural history of this 

case as follows:

On September 6, 2018, Appellant and Naseer Timothy 

Burzak (Co-Defendant) entered the victims’ residence armed with 

an assault rifle and handgun. Appellant and Co-Defendant were 

dressed in black, wearing gorilla masks and black gloves. Holding 

the victims at gunpoint, they took $150 in cash, a handgun, a 

wallet, a knife, and a cell phone. 

Appellant and Co-Defendant were arrested and charged with

numerous offenses, including robbery, criminal conspiracy, and

unlawful restraint. On May 29, 2019, Co-Defendant entered a

guilty plea to one count of robbery, and was sentenced, on

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* Retired Senior Judge assigned to the Superior Court.
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September 12, 2019, to a term of intermediate punishment. 

On August 5, 2019, Appellant entered a guilty plea to one count

of robbery with intent to cause immediate serious injury in

exchange for the nolle pros of his remaining charges.

A sentencing hearing was held on October 28, 2019. The 

trial court acknowledged it had reviewed Appellant’s pre-sentence 

investigation report (“PSI”), and the parties agreed the sentencing 

guidelines called for a standard range sentence of 45 to 63 

months’ imprisonment. Appellant argued “he should probably 

receive something less[ ]” than Co-Defendant, because “as a 

matter of fairness,” Co-Defendant [allegedly] “had a prior record,”

and Appellant did not. [N.T., 10/28/19, at 5]. Notwithstanding 

this argument, the trial court imposed a standard range sentence 

of 45 to 90 months’ imprisonment.

Commonwealth v. Davis-Osterhoudt, 248 A.3d 464, at **1-2 (Pa. Super. 

Jan. 5, 2021) (unpublished memorandum) (emphasis added; citations to 

record and footnotes omitted); see also id. at *2 n.6 (stating that neither

Appellant nor Co-Defendant had a prior criminal record). 

On November 8, 2019, Appellant, through counsel (prior counsel), filed 

an untimely post-sentence motion. Appellant argued he “should have 

received the same sentence or perhaps a more lenient sentence than [] CoDefendant,” because “the conduct engaged in [by] both of [them] was 

identical.” Post-Sentence Motion, 11/8/19, ¶¶ 7, 9. The trial court held a 

hearing and denied the post-sentence motion on February 14, 2020. 

Appellant filed an untimely notice of appeal on March 31, 2020, followed by 

a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. 
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On direct appeal, Appellant argued the trial court “abused its discretion 

by imposing a harsher sentence than that received by his Co-Defendant.” 

Davis-Osterhoudt, 248 A.3d 464, at *1. We quashed, reasoning:

Appellant was sentenced on October 28, 2019. He then filed

an untimely post-sentence motion on November 8th. As a result,

the appeal period was not tolled. See [Commonwealth v.]

Green, 862 A.2d [613,] 618 [(Pa. Super. 2004) (en banc) (“since 

[a]ppellant did not file a timely post-sentence motion, her appeal 

period began to run from the date sentence was imposed”); see 

also Pa.R.A.P. 903(a) (30-day appeal period)]. Appellant’s notice 

of appeal was then due November 26, 2019, 30 days after the 

imposition of sentence. See Pa.R.Crim.P. 720(A)(3). However, 

Appellant filed his notice of appeal on March 31, 2020, more than 

150 days after sentencing. Appellant’s notice of appeal was 

therefore untimely filed.

Davis-Osterhoudt, supra, at *7 (emphasis in original; footnotes omitted).

We further stated:

Assuming arguendo this Court had jurisdiction to consider

the merits of Appellant’s case, we would conclude his disparate

sentence claim is waived for failure to include the argument in his

1925(b) concise statement. See Pa.R.A.P. 1925(b)(4)(ii)

(litigants are required to “concisely identify each error that the

appellant intends to assert with sufficient detail to identify the

issue to be raised for the judge.”); see also Commonwealth v.

Castillo, 585 Pa. 395, 888 A.2d 775, 780 (Pa. 2005) (“issues not

raised in a Pa.R.A.P.1925(b) statement will be deemed waived.”). 

Appellant’s 1925(b) concise statement alleges the trial court

imposed a manifestly excessive sentence by failing to consider “all

relevant statutory sentencing factors[.]” Appellant’s Concise

Statement of Matters Complained of on Appeal Pursuant to Rule

1925(b) Order, 4/23/20. However, in his brief, Appellant simply 

argues the court abused its discretion in imposing a “far greater 

and more harsh sentence than” Co-Defendant. Appellant’s Brief

at 12. Thus, his disparate sentence claim would be waived. 

Moreover, we note “it has never been a rule in this Commonwealth

that co-defendants are required to receive equal sentences[.]” 

Commonwealth v. Krysiak, 369 Pa. Super. 293, 535 A.2d 165,

167 (Pa. Super. 1987) (citation omitted).
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Davis-Osterhoudt, supra, at *7 n.11.

On January 25, 2021, Appellant filed a timely pro se PCRA petition. The 

PCRA court appointed counsel, who filed an amended PCRA petition on March 

24, 2021. Appellant asserted ineffective assistance of prior counsel for failing 

to timely file a direct appeal and preserve Appellant’s sentencing issue. See

Amended PCRA Petition, 3/24/21, at 3-4; see also 42 Pa.C.S.A. § 

9543(a)(2)(ii) (relief for ineffective assistance of counsel). Appellant further 

claimed the court imposed a sentence greater than the lawful maximum. 

Appellant “requested that his sentence be modified to generally conform to 

the sentence imposed upon his Co-Defendant.” Amended PCRA Petition, 

3/24/21, at 3; see also 42 Pa.C.S.A. § 9543(a)(2)(vii) (relief for unlawful 

sentences). On May 4, 2021, the Commonwealth filed an answer in 

opposition. The PCRA court held a hearing on June 11, 2021.

On September 17, 2021, the PCRA court denied Appellant’s petition. In 

an accompanying opinion, the PCRA court addressed the disparity in the 

sentences of Appellant and Co-Defendant:

At the time [the trial] court imposed sentence upon 

Appellant’s Co-Defendant, the court erred when it imposed a 

county intermediate punishment sentence upon 

Appellant’s Co-Defendant. Neither Co-Defendant nor Appellant 

met the statutory definition of an “eligible offender” for County 

intermediate punishment pursuant to 42 Pa.C.S.A. § 9802 since 

their robbery convictions precluded both from the program. Prior 

to imposing sentence upon Appellant, the court became 

aware of this error. Rather than compound the issue by 

sentencing Appellant to a likewise illegal sentence, the court 

instead imposed a term of imprisonment upon him for a minimum 
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period of 45 months [to] a maximum period of 90 months. This 

sentence is at the very bottom of the guideline range for the 

deadly weapon enhancement that this court determined applied 

based upon Appellant’s possession of a deadly weapon.

PCRA Court Opinion, 9/17/21, at 2 n.4 (emphasis added). 

In addition, the PCRA court rejected Appellant’s claim of ineffectiveness 

of prior counsel with respect to Appellant’s “disparate sentencing” claim, 

concluding Appellant failed to establish that the outcome of his direct appeal 

would have been different had prior counsel preserved the claim. See id. at 

5-7; Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (to prove 

ineffectiveness, the petitioner must prove, inter alia, “he suffered prejudice as

a result of counsel’s error, with prejudice measured by whether there is a

reasonable probability the result of the proceeding would have been

different.”). The PCRA court reasoned:

Notwithstanding prior counsel’s failure to preserve the claim in the 

trial court and failure to correctly frame the issue in his 1925(b) 

Statement, the Superior Court[, on direct appeal,] correctly 

identified the claim as a disparate sentence claim. Moreover, the 

Superior Court continued to note that “it has never been a rule in 

this Commonwealth that co-defendants are required to receive 

equal treatment,” [Davis-Osterhoudt, supra, at *7 n.11] citing 

Krysiak[, supra].

PCRA Court Opinion, 9/17/21, at 7.

Appellant timely appealed. Both the PCRA court and Appellant complied 

with Pa.R.A.P. 1925. On appeal, Appellant presents three issues for review: 

I. Did the trial court err in concluding that the general 

prohibition against significant disparities in the sentences of 

co-defendants who are sentenced by the same judge, absent 
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facts-of-record supporting the disparity, does not apply when 

the disparity is the result of an earlier grant [of] leniency?

II. Did the trial court err in concluding that the Commonwealth’s 

failure to challenge the erroneous imposition of a county 

intermediate punishment sentence when sentencing one 

defendant is not equally binding upon the Commonwealth 

with respect to an identically situated co-defendant?

III. Did the trial court err by relying on dicta in the Superior 

Court’s January 5, 2021 decision to conclude that [Appellant] 

was not prejudiced by prior counsel’s failure to preserve a 

challenge to [Appellant’s] sentence premised on the disparity 

between his sentence and his codefendant’s sentence?

Appellant’s Brief at 6 (issues reordered, capitalization omitted).

1

“Our standard of review for issues arising from the denial of PCRA relief

is well-settled. We must determine whether the PCRA court’s ruling is 

supported by the record and free of legal error.” Commonwealth v. Hand, 

252 A.3d 1159, 1165 (Pa. Super. 2021) (citation omitted). “[W]e will not 

disturb the findings of the PCRA court unless those findings have no support 

in the certified record.” Commonwealth v. Rivera, 154 A.3d 370, 377 (Pa. 

Super. 2017) (en banc). 

As Appellant’s issues are related, we address them together. Appellant 

argues the trial court imposed an unlawful sentence where Appellant “and his 

Co-Defendant committed the same crime, entered essentially identical pleas 

as part of essentially identical plea bargains, and had the same prior record 

score of zero,” but Co-Defendant received a lenient sentence of intermediate 

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1 The Commonwealth has not filed a reply brief.
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punishment, in contrast to Appellant’s state prison sentence. Appellant’s Brief 

at 29. According to Appellant, “[e]ven if [Appellant’s] sentence would have 

been legal in isolation, the extreme and disparate impact on the two 

identically-situated co-defendants renders it illegal.” Id. at 24 (emphasis 

omitted). Appellant contends the PCRA court “also failed to disclose on the 

record any basis for the resulting sentencing disparity until it issued its 

September 17, 2021 Opinion in support of dismissing [Appellant’s] PCRA 

petition.” Id. at 17 (emphasis in original) (citing PCRA Court Opinion, 

9/17/21, at 2 n.4). Finally, Appellant claims “the trial court erred in concluding 

that the Commonwealth’s failure to challenge the erroneous imposition of a 

county intermediate punishment sentence when sentencing one defendant[, 

i.e., Co-Defendant,] is not equally binding upon the Commonwealth with 

respect to an identically situated co-defendant[.]” Id. at 27.

We first examine whether Appellant’s claims are cognizable under the 

PCRA. Although Appellant claims to be challenging the legality of his sentence, 

his argument (the trial court improperly imposed disparate sentences on 

identically situated co-defendants) challenges the discretionary aspects of his 

sentence. See Appellant’s Brief at 21-23 (analysis of discretionary aspects of 

sentencing claims); Commonwealth v. Cleveland, 703 A.2d 1046, 1048 

(Pa. Super. 1997) (claim “alleging an unexplained disparity between

[defendant’s] sentence and that of a co-defendant” implicates the 

discretionary aspects of sentencing). “Challenges to the discretionary aspects
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of sentencing are not cognizable under the PCRA.” Commonwealth v.

Fowler, 930 A.2d 586, 593 (Pa. Super. 2007) (citing 42 Pa.C.S.A. § 

9543(2)(vii); Commonwealth v. Evans, 866 A.2d 442, 444-45 (Pa. Super. 

2005)). Thus, Appellant’s claims are not cognizable. 

Appellant additionally claims that prior counsel was ineffective for failing 

to preserve his disparate sentencing issue on direct appeal. See, e.g., 

Appellant’s Brief at 14-16, 20-21, 29. This claim, which Appellant preserved, 

see Amended PCRA Petition, 3/24/21, ¶¶ 13-21, is cognizable under the 

PCRA. Commonwealth v. Sarvey, 199 A.3d 436, 455 (Pa. Super. 2018) 

(“claims implicating the discretionary aspects of sentencing raised in the 

context of an ineffectiveness claim are cognizable under the PCRA.”).

Regarding ineffectiveness, the Pennsylvania Supreme Court has stated:

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. ... [T]o 

prove counsel ineffective, the petitioner must show that: (1) his 

underlying claim is of arguable merit; (2) counsel had no 

reasonable basis for his action or inaction; and (3) the petitioner 

suffered actual prejudice as a result. If a petitioner fails to prove 

any of these prongs, his claim fails. Generally, counsel’s 

assistance is deemed constitutionally effective if he chose a 

particular course of conduct that had some reasonable basis 

designed to effectuate his client’s interests. Where matters of 

strategy and tactics are concerned, a finding that a chosen 

strategy lacked a reasonable basis is not warranted unless it can 

be concluded that an alternative not chosen offered a potential for 

success substantially greater than the course actually pursued. To 

demonstrate prejudice, the petitioner must show that there is a 

reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceedings would have been different. A 

reasonable probability is a probability that is sufficient to 

undermine confidence in the outcome of the proceeding.
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Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citations omitted).

Here, Appellant argues:

It is undisputed that prior counsel (i) failed to file a timely 

post-sentence motion, (ii) failed to file a timely appeal, and (iii) 

failed to properly preserve a challenge premised specifically on 

disparate sentencing. A colorable and reviewable challenge to the 

disparity between [Appellant’s] sentence and that of his CoDefendant existed, and [Appellant] was therefore prejudiced when 

he was denied the opportunity to have the Superior Court consider 

that issue.

Appellant’s Brief at 16. 

Appellant further asserts the PCRA court “erred in concluding that prior 

counsel’s error in negligently waiving the disparate-sentencing issue was 

harmless[.]” Id. at 14. Specifically, Appellant alleges the court erred by 

relying on this Court’s prior statement on direct appeal that “it has never been

a rule in this Commonwealth that co-defendants are required to receive equal

sentences,” Davis-Osterhoudt, supra, at *7 n.11 (citation omitted), 

because “such statement is mere dicta.” Appellant’s Brief at 14. 

To succeed on an ineffectiveness claim for failure to preserve a challenge 

to the discretionary aspects of sentencing, the petitioner must demonstrate 

the underlying sentencing claim merits relief. See Commonwealth v.

Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (“[I]f the PCRA court can 

determine from the record that the sentence was not excessive, ... then there 

is no underlying merit to the ineffectiveness claim and the claim must fail.”);

see also Commonwealth v. Reaves, 923 A.2d 1119, 1131-32 (Pa. 2007) 
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(a claim of ineffectiveness for failure to preserve discretionary sentencing 

issue requires showing of reasonable probability that sentencing court would 

have imposed lesser sentence). “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.” Commonwealth v. Barnes, 

167 A.3d 110, 122 n.9 (Pa. Super. 2017) (en banc) (citation omitted).

Regarding disparate sentences of co-defendants,

a defendant is not entitled to the same sentence as that imposed 

on another person involved in the same crime. Commonwealth

v. Mastromarino, ... 2 A.3d 581, 589 (Pa. Super. 2010). Rather, 

“when there is a disparity between co-defendants’ sentences, a 

sentencing court must give reasons to each defendant explaining 

why they received their individual sentences.” Id. (quotation 

marks and quotation omitted).

Commonwealth v. Ali, 197 A.3d 742, 764 (Pa. Super. 2018); see also

Commonwealth v. Szczesniewski, 591 A.2d 1055, 1056 (Pa. Super. 2010). 

However, the sentencing court is not required to justify the disparity with

reference to the specific sentence imposed on the co-defendant. Cleveland,

703 A.2d at 1048.

Here, the court stated its rationale for imposing Appellant’s sentence,

noting the severity of the crime and impact on the victims, but also recognizing

Appellant’s youth and potential for rehabilitation. See N.T., 10/28/19, at 6 

(“This of course is a horrible offense, to have someone come into your home 

and threaten you in this fashion; ... you’re a young person with a lot of life 

ahead of you, and I commend you for the fact that you want to get this 
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resolved and move on with your working life and with your family life.”).2

Moreover, the court was informed by a PSI, see id. at 1. It is “presumed that 

the court [wa]s aware of all appropriate sentencing factors and considerations, 

and [] where the court has been so informed, its discretion should not be 

disturbed.” Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 

2009) (citing Commonwealth v. Devers, 546 A.2d 12, 18-19 (Pa. 1988)). 

In sum, our review discloses that Appellant’s sentence – at the low end 

of the standard range of the guidelines – was not excessive or unreasonable. 

The record reflects that the court considered the PSI and all evidence 

presented at the sentencing hearing (as well as all relevant statutory factors, 

see 42 Pa.C.S.A. § 9721(b)), and sentenced Appellant accordingly. See, e.g.,

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (stating 

“where a sentence is within the standard range of the guidelines, Pennsylvania 

law views the sentence as appropriate under the Sentencing Code,” and 

holding sentence was not unreasonable where court had the benefit of a PSI 

and imposed a standard range sentence); Commonwealth v. Raven, 97 

A.3d 1244, 1254-55 (Pa. Super. 2014) (defendant’s standard-range sentences 

were neither unreasonable nor excessive where “the record reflects that the 

[sentencing] court carefully considered all of the evidence presented at the 

sentencing hearing.”). 

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2 The court also considered defense counsel’s argument that Appellant “should 

probably receive something less” than Co-Defendant. Id. at 5. 
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As the trial court set forth adequate reasons for Appellant’s sentence,

and Appellant’s disparate sentencing issue lacks merit, prior counsel was not 

ineffective. See Jones, 942 A.2d at 907-08 (rejecting claim of ineffectiveness 

for failure to preserve challenge to discretionary aspects of sentencing where 

there was no merit to the claim); see also Commonwealth v. Ligons, 971 

A.2d 1125, 1156 (Pa. 2009) (counsel cannot be deemed ineffective for failing 

to raise a meritless claim).

Finally, as prior counsel was not ineffective, there is no merit to 

Appellant’s claim that the PCRA court erred by relying on language from a 

footnote in Davis-Osterhoudt, supra. See PCRA Court Opinion, 10/27/21, 

at 9 (“the court did not pull the dicta into this case to support its conclusion, 

but instead reviewed the context of the entire portion of the dicta relied upon 

by Appellant and determined that this evidence was insufficient to sustain 

Appellant’s burden that [prior] counsel’s alleged ineffectiveness prejudiced 

him.” (emphasis omitted)). 

For the above reasons, the PCRA court dd not err in denying Appellant’s 

petition for post-conviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/01/2022