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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 t o the Post Conviction Relief Act (PCRA). 1 We affirm. On March 7, 2011, Appellant was arrested and charged wi th multiple crimes stemming from an incident that occurred on Februar y 13, 2011, where Appellant and three other individuals fired mu ltiple shots at three occupied homes along Yeakle Street in Weatherly, Pennsy lvania. On May 9, 2011, Appellant waived his preliminary h earing in exchange for a bail modification releasing him to pre-trial el ectronic home monitoring

1 42 Pa.C.S. §§ 9541- 9546.J-S59044- 14

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(EHM). Appellant’s numerous requests to modify his bai l were denied, and he remained on pre-trial EHM until sentencing. On May 17, 2012, Appellant, through his counsel, Davi d Lampman, III, entered into a negotiated stipulation with the Commo nwealth whereby he agreed to plead guilty to one count of aggravated ass ault - 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 In exchange for his plea, all other charges were withdrawn.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 stipulati on expressly provided for a 48- to -96 month sentence of incarceration. Id. at 2. On July 12, 2012, Appellant formally entered his gu ilty plea before the trial court. A pre-sentence investigation was ordered an d a sentencing date was set. On October 15, 2012, Appellant was sentenced to an aggregate of 48

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- 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 wa s filed on October 16, 2013. 2 In his amended petition, Appellant claimed that Att orney Lampman was ineffective for ignoring his request to fil e a direct appeal. Appellant also claimed that his sentence was illegal becau se (1) he did not receive full credit for the time spent on pre-trial EH M and (2) the charges of

2 The record indicates that Appellant’s initial appointed coun sel withdrew his appearance at some point prior to Appellant’s PCRA he aring. Counsel herein was subsequently appointed on February 27, 2014.J-S59044- 14

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aggravated assault and REAP should have merged for th e purpose of sentencing. On March 28, 2014, following a PCRA hearing at whic h both Appellant and Attorney Lampman testified, the PCRA court issued an order denying Appellant’s petition. Order, 3/28/2013, n.2. This tim ely appeal followed. Both the PCRA court and Appellant have complied wit h 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 h is 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 wi ll not disturb those findings merely because the record could support a contrar y 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 orJ-S59044- 14

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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 out come of the proceedings would have been different. The failur e to prove any one of the th ree 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 in effective 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 cour t will find ineffectiveness of counsel for failing to file a d irect 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 tha t, immediately following his sentencing, he asked Attorney Lampman to file an appeal, although he claimed he did not specify any grounds upo n 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 request ing an appeal. Id. at 16. Additionally, Appellant testified that he asked h is 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 receive d a letter fromJ-S59044- 14

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Attorney Lampman explaining that there were no grou nds to file an appeal. Id. 3 In contrast, Attorney Lampman testified that he did no t recall having any post-sentence communication with Appellant and did n ot recall Appellant requesting a direct appeal. Id. at 27, 28. 31. However, he remembered Appellant being combative immediately following sente ncing. Id. at 29. Additionally, Attorney Lampman did not recall receivi ng communication from Appellant or his family regarding an appeal, nor did he recall writing a letter to Appellant informing him that there were no groun ds to appeal. Id. at 27, 31. In rejecting Appellant’s argument, the PCRA court foun d credible Attorney Lampman’s testimony that he did not recall Appellant requesting a direct appeal and found unpersuasive Appellant’s testim ony to the contrary. Order, 3/28/2013, n.2. This determination is supporte d by the record, and we will not disturb it on appeal. Accordingly, we a ffirm the PCRA court’s determination that Appellant has failed to meet his b urden 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 a t the hearing. Appellant testified he did not have a copy of either letter. N.T., 3/7/2014, at 23.J-S59044- 14

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Appellant’s second and third claims, that he is entitled to cre dit for time spent on pre-trial EHM and that his convictions sho uld merge, raise issues regarding the legality of Appellant’s sentence. Ap pellant’s Brief at 23

- 32. These nonwaiveable claims are cognizable under th e 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 t o 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 th e 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-tr ial EHM. Appe llant’s Brief at 24. Pursuant to the Pennsylvania Sentencing Code, credit f or time served is awarded as follows: Credit against the maximum term and any minimum ter m shall be given to the defendant for all time spent in custo dy 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 charg e is based. Credit shall include credit for time spent in cust ody priorJ-S59044- 14

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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 pu rposes of Section 9760 credit against a sentence o f 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 ag gravated assault and REAP should have merged for the purposes of sentenci ng because those two crimes arose from the same criminal act and because RE AP is a lesser included offense of aggravated assault. Appell ant’s Brief at 27

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4 To the extent that Appellant relies on this Court’s de cision 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, Mar tz was not disputing pretrial EHM credit; rather, he requested credit for time spent following his accidental release prior to the completion of his senten ce. These situations are vastly different, and the holding in Kyle abrogating the need for an equitable balancing of factors related to pre-trial EH M credit controls here.J-S59044- 14

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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 f rom 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 subsume d in the elements of aggravated assault.” Id . Nonetheless, Ap pellant’s claim fails. Our Supreme Court has held that merger does not precl ude separate punishments for injuries to different victims, even w hen the victims were injured by a single unlawful act or transaction. Commonwealth v. Frisbie , 485 A.2d 1098, 11 00 -01 (Pa. 1984). See also Commonwealth v. Burdge , 562 A.2d 864, 867 (Pa. Super. 1989). Appellant’s crim inal information indicates that the specified victim of the aggravated a ssault 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 REA P conviction. Accordingly, merger does not apply, and Appellant is no t entitled to relief on this issue.J-S59044- 14

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Order affirmed. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 9/26/2014