Com. v. McArthur, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-A29028-17
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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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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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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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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