J-S59044-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 

* Retired Senior Judge assigned to the Superior Court. 

 

COMMONWEALTH OF PENNSYLVANIA, 

 Appellee 

 v.

CHRISTOPHER RAY HARRIS, 

 Appellant 

 

: IN THE SUPERIOR COURT OF 

: PENNSYLVANIA 

: 

: 

: 

: 

: 

: 

: 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.
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(EHM). Appellant’s numerous requests to modify his bail were denied, and 

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plea, all other charges were withdrawn.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-96 months’ incarceration. No direct appeal was taken.

 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 record indicates that Appellant’s initial appointed counsel withdrew his 

appearance at some point prior to Appellant’s PCRA hearing. Counsel herein 

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 

Appellant’s petition. Order, 3/28/2013, n.2. This timely appeal followed. 

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. 

We note that “this Court’s standard of review regarding a PCRA court’s 

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

evidence of record and is free of legal error.” 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 three prongs results in the failure of petitioner’s 

claim. 

Our Supreme Court has held that counsel’s unexplained 

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 

Attorney Lampman and tell him to appeal the issue of Appellant’s credit 

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. 

In rejecting Appellant’s argument, the PCRA court found credible 

Attorney Lampman’s testimony that he did not recall Appellant requesting a 

direct appeal and found unpersuasive Appellant’s testimony to the contrary. 

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

we will not disturb it on appeal. Accordingly, we affirm the PCRA court’s 

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 

Lampman’s alleged response was made part of the record at the hearing. 

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

23.

 
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Appellant’s second and third claims, that he is entitled to credit for 

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

issues regarding the legality of Appellant’s sentence. Appellant’s Brief at 23-

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) 

(holding that merger is a nonwaivable challenge to the legality of one’s 

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. Appellant’s Brief 

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 

Supreme Court “[made] clear that time spent on bail release, subject to 

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

9760 credit against a sentence of incarceration.” Contrary to Appellant’s 

assertions, in fashioning this bright-line rule the Court “specifically 

disapproved” of a case-by-case test to determine if a defendant should 

receive credit. Id. at 22 (“This interpretation and resulting bright-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-case test.”). Accordingly, Appellant’s 

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. Appellant’s Brief at 27-32.

 

4 To the extent that Appellant relies on this Court’s decision in 

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 pretrial 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, this Court has “held 

that reckless endangerment is a lesser included offense of aggravated 

assault for the purposes of merger, i.e., double jeopardy.” Commonwealth 

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

that “[e]very element of reckless endangerment is subsumed in the 

elements of aggravated assault.” Id. Nonetheless, Appellant’s claim fails. 

 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, 

562 A.2d 864, 867 (Pa. Super. 1989). Appellant’s criminal information 

indicates that the specified victim of the aggravated assault conviction was 

Tara Barnic. Barnic’s minor daughter, who was present in 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