Com. v. Perry, S.

J-S15021-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

SHAWNEY PERRY,

Appellant No. 133 EDA 2015

Appeal from the PCRA Order of December 9, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0610162-1996

BEFORE: BENDER, P.J.E., OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.: FILED MARCH 29, 2016

Appellant, Shawney Perry, appeals from the order entered on

December 9, 2014, dismissing his first petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The PCRA court briefly summarized this case as follows:

On June 9, 1996, [Appellant] was arrested following a
shooting in Philadelphia. [Appellant] was charged with two
counts of attempted murder, conspiracy, aggravated
assault, various violations of the Uniform Firearms Act,
three counts of possessing an instrument of crime, two
counts of simple assault, two counts of recklessly
endangering another person, and terroristic threats [in
relation to two alleged victims]. [Appellant’s] co-defendant,
Brett Stewart (“Stewart”), was charged similarly.

[Appellant’s] attorney, Gerald Stein, Esquire, filed a motion
to suppress physical evidence. The trial court granted the
motion, and the Commonwealth appealed. [This] Court []
reversed the trial court’s decision. The Supreme Court of

*Retired Senior Judge assigned to the Superior Court.
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Pennsylvania affirmed … on June 3, 2002, and remanded
the case for trial.

On September 30, 2004, a jury found [Appellant] guilty of
aggravated assault and carrying a firearm without a license.
Stewart was acquitted of all charges. On November 18,
2004, [Appellant] was sentenced to [10] to [20] years [of
imprisonment] for the aggravated assault conviction and
two-and-a-half to five years [of incarceration] for the
firearm conviction. [Appellant], still represented by
Attorney Stein, filed a post-sentence motion on November
29, 2004, which was denied. [Appellant] appealed his
judgment of sentence on January 13, 2005. The judgment
of sentence was ultimately affirmed on November 2, 2012,
following review by both [this] Court and [the] Supreme
Court of Pennsylvania.

PCRA Court Opinion, 6/10/2015, at 1-2 (footnotes omitted).

Pertinent to this appeal, a more detailed explanation of the procedural

history of Appellant’s direct appeal is necessary. On direct appeal to this

Court, Appellant argued, inter alia, that the trial court abused its discretion

by sentencing him excessively to maximum, consecutive sentences for his

aggravated assault and unlicensed firearm possession convictions. See

Commonwealth v. Perry, 947 A.2d 831 (Pa. Super. 2008) (unpublished

memorandum). The panel majority affirmed Appellant’s judgment of

sentence for aggravated assault, but found the trial court abused its

discretion in sentencing Appellant on his firearm conviction. In particular,

this Court concluded the trial court focused on Appellant’s criminal intent in

carrying a firearm when it fashioned an excessive and unreasonable

sentence. The panel majority noted that the trial court did not state the

sentencing guidelines for the firearm conviction on the record prior to

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imposing sentence for this offense. Thereafter, the majority determined,

“the sentence imposed was grossly beyond that called for in the sentencing

guidelines.” Id. at 27. The panel majority further opined that, “[f]rom all

indications, [in this case], the imposition of a maximum sentence for

carrying a weapon without a license was simply a way of increasing

Appellant’s punishment for the aggravated assault conviction or, possibly,

increasing Appellant’s punishment for the criminal episode viewed as a

whole.” Id. Another panel member filed a dissenting memorandum, opining

that under this Court’s deferential standard of review, “the trial court had

the authority to increase the sentence based on the fact that Appellant fired

[] without justification and inflicted a horrific, life-altering injury.” Id. at 33.

The Commonwealth appealed our decision and the Pennsylvania

Supreme Court accepted review. The Commonwealth argued that this Court

employed the wrong standard of review on appeal, the sentencing court was

not bound by the sentencing guidelines, and the trial court was permitted to

impose consecutive sentences. Commonwealth v. Perry, 32 A.3d 232,

238-239 (Pa. 2011). The Commonwealth averred that the trial court

considered the protection of the public, the gravity of the offense, and the

rehabilitative needs of Appellant as required under 42 Pa.C.S.A. § 9721. Id.

In contrast, Appellant maintained that the Commonwealth’s position would

give sentencing courts “near limitless discretion.” Id. at 239. “[Appellant]

further contend[ed] that, while not dispositive, the trial court’s failure to

specifically acknowledge on the record or in its written opinion the applicable

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sentencing guidelines for his [firearm] conviction militates [] against a

finding that the sentence was reasonable.” Id. (emphasis added).

The Supreme Court concluded this Court exceeded the standard of

review in vacating Appellant’s firearm sentence, specifically observing the

sentencing court

read and considered [a] pre-sentence investigation report
which included [Appellant’s] employment history and
evidence of his age and lack of a criminal record [] prior to
imposing sentence. The sentencing court also indicated
that it took into account [Appellant’s] own testimony, and
the testimony of his family and friends as character
witnesses. The sentencing court also considered the gravity
of the offense, the fact that [Appellant] was in possession of
two firearms, the protection of the public, and [Appellant’s]
need for rehabilitation[.]

Id. at 241 (quotations omitted). Our Supreme Court further remarked that

the sentencing court considered the fact that the shooting occurred in the

street and the victim was shot in the back. Id. at 241-242. Thus, the

Supreme Court concluded:

it is clear that the sentencing court properly considered the
nature and circumstances of the offense, including the
gravity of the offense and the impact on the life of the
victim; the protection of the public; and the history,
characteristics, and rehabilitative needs of [Appellant], in
imposing its sentence.

Nevertheless, the Superior Court concluded the sentence
imposed for [Appellant’s firearm] conviction was
unreasonable because, in imposing its sentence, the
sentencing court improperly considered (1) [Appellant’s]
intent in carrying the weapons; and (2) the severity of the
injuries to the victim. First, the Superior Court failed to
provide any legal support for its conclusion that, because
Section 6106 of the Crimes Code prohibits the “relatively

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limited range of conduct” of carrying a firearm without a
license, the purpose for which the weapon was carried and
the result of the crime, neither of which is an element of the
offense, are irrelevant to determining the appropriate
sentence. Indeed, such a conclusion is inconsistent with our
holding in [Commonwealth v.] Walls, [926 A.2d 957 (Pa.
2007)] wherein we held that factors that are not specific
elements of an offense may be considered by the
sentencing court in imposing its sentence. Specifically, in
Walls, we held that the sentencing court properly
considered the fact that the victim was only seven years old
and the relationship between the victim and the defendant
in imposing its sentence, even though these factors were
not specific elements of the offenses charged.

Further, to the extent the Superior Court suggested that the
sentencing court imposed the maximum sentence for
[Appellant’s firearm] offense as a way of increasing the
punishment for his aggravated assault conviction, or for the
criminal episode as a whole, this is mere conjecture by the
Superior Court, unsupported by any reference to the record.

For all of these reasons, we find the Superior Court failed to
give proper deference to the sentencing court when it
determined that the sentencing court's imposition of a
sentence, although outside of the sentencing guidelines,
was unreasonable. Accordingly, we vacate the Superior
Court's order and remand the matter to the Superior Court
for a reexamination of [Appellant’s] judgment of sentence
consistent with this opinion and our decision in Walls,
supra.

Id. at 242 (footnote omitted).

Our Supreme Court “also note[d] the sentencing court did not

specifically state on the record the guideline range for [Appellant’s firearm]

conviction.” Id. at 234, n.7. However, the Court found Appellant waived

this discretionary sentencing challenge by failing to raise the issue in his

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post-trial motion for reconsideration or on appeal to the Superior Court. Id.,

citing Pa.R.A.P. 302(a).

Following remand from the Supreme Court, this Court authored an

unpublished memorandum affirming the judgment of sentence on

Appellant’s firearm conviction, stating:

The trial court acknowledged the imperative in applying a
sentence mindful of the compelling distinction between
mere possession of an unlicensed handgun, which of itself,
imposes little burden on the community, and the offense
[Appellant] committed, which culminated in the victim’s
paralysis from the chest down. Unlike the usual firearms
violation, the cost of [Appellant’s] crime is extraordinary,
imposing on [the victim’s] family and the community the
burden to sustain him during a life marked by stratospheric
medical expenses and little personal fulfillment. Thus,
although a case like Walls, arising from the sexual assault
of a child, does carry aggravating factors unique to that
class of cases, it in no way ameliorates the tragedy borne of
cases like this one. The trial court reflected on that tragedy
on a case-specific basis, necessarily weighing in its decision,
the apparent antagonism that preceded [Appellant’s]
actions as well as the report of the pre-sentence
investigation that ostensibly conveyed the unique aspects of
[Appellant’s] life and personality. Given the constraints
enunciated in Walls, we cannot disregard the court’s
deliberation merely because the sentence it imposed
exceeded the [g]uidelines ranges. See [Walls,] at 964-965
(“[W]e reaffirm that the guidelines have no binding effect,
create no presumption in sentencing and do not
predominate over other sentencing factors[.]”).

Commonwealth v. Perry, 63 A.3d 818 (Pa. Super. 2012) (unpublished

memorandum) at 11-12. No further appeal resulted.

Thereafter,

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[o]n October 18, 2013, [Appellant], through counsel Brian
J. Zeiger, Esquire, filed a [PCRA] [p]etition. The PCRA
[p]etition alleged that [Appellant’s] counsel was ineffective
by: (1) failing to effectively advocate for a clear and
adequate self-defense jury instruction, to object to the
deficient instruction that was given, and to appeal the
court’s deficient instruction; (2) failing to challenge Dr.
Andrew Maidment’s expert testimony; and (3) failing to
include in his post-sentence motion the claims that the
sentencing court did not acknowledge the applicable
guideline range for the firearms conviction and did not place
on the record the court’s reasons for exceeding that range
in violation of § 9721. The Commonwealth filed a motion to
dismiss the PCRA [p]etition on February 10, 2014.
[Appellant] subsequently withdrew his claim pertaining to
prior counsel’s failure to challenge the expert testimony.
The PCRA court granted an evidentiary hearing on the jury
instruction claim, and denied a hearing as to the sentencing
claim. On December 9, 2014, after a hearing, the PCRA
court denied [Appellant’s] PCRA [p]etition. This appeal
followed.[1]

PCRA Court Opinion, 6/10/2015, at 2 (record citations and internal

quotations omitted).

Appellant presents the following issues for our review:

I. Did the PCRA court err when the court dismissed
[Appellant’s] PCRA petition because prior counsel was
ineffective when counsel failed to appeal the [trial]
court’s failure to give a clear and adequate
self-defense instruction?

II. Did the PCRA court err when the court dismissed
[Appellant’s] petition because prior counsel was
ineffective when counsel failed to preserve for appeal
the sentencing court’s failure to acknowledge the

____________________________________________

1
Appellant filed a timely notice of appeal on December 29, 2014. The PCRA
court filed an opinion pursuant to Pa.R.A.P. 1925(b) on June 10, 2015.

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guideline sentencing range for [Appellant’s] firearms
conviction?

Appellant’s Brief at 2 (complete capitalization omitted).

Our standard of review from the denial of a PCRA petition is

well-settled:

In conducting review of a PCRA matter, we consider the
record in the light most favorable to the prevailing party at
the PCRA level. Our review is limited to the evidence of
record and the factual findings of the PCRA court. This Court
will afford great deference to the factual findings of the
PCRA court and will not disturb those findings unless they
have no support in the record. Thus, when a PCRA court's
ruling is free of legal error and is supported by record
evidence, we will not disturb its decision. Of course, if the
issue pertains to a question of law, our standard of review is
de novo and our scope of review is plenary.

Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 2015) (internal

citations and quotations omitted).

Both of Appellant’s issues allege ineffective assistance of counsel and

we have explained the legal standard of review of such claims as follows:

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. … Accordingly, to prove counsel
ineffective, the petitioner must demonstrate that: (1) the
underlying legal issue has arguable merit; (2) counsel's
actions lacked an objective reasonable basis; and (3) the
petitioner was prejudiced by counsel's act or omission. A
claim of ineffectiveness will be denied if the petitioner's
evidence fails to satisfy any one of these prongs.

Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa. Super. 2015)

(internal citations and brackets omitted).

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In his first issue presented, Appellant claims he was denied effective

assistance when appellate counsel failed to appeal the adequacy of the trial

court’s jury instruction regarding self-defense. Id. at 11-17. More

specifically, Appellant argues:

[Appellant] admitted at trial that he fired a gun at the
vehicle [Bobby] Mahalliti was riding in as a passenger.
[Appellant’s] singular defense at trial was that he fired his
gun in self-defense. [Appellant] testified the driver of the
other vehicle, [Javon] Jones, was pointing a gun toward
him. The central issue for the jury was whether [Appellant]
fired in self-defense. Under the law of Pennsylvania[,] if
[Appellant] used force to protect himself from the threat of
force by Jones, [Appellant] was not guilty of any crime
against Jones or Mahallati. Imperative to [Appellant’s]
defense was the jury being instructed that if [Appellant]
acted in self-defense, [Appellant] was not guilty of
assaulting Mahallati. The only way for the jury to
understand this legal concept was for the trial court to give
a clear and adequate jury instruction on the issue. Despite
conversations prior to the instructions and after the
instructions, the trial court refused and failed to adequately
instruct the jury. [Appellant’s] appellate counsel failed to
appeal the trial court’s self-defense instruction on direct
appeal. Prior counsel’s omission rose to the level of
ineffective assistance of counsel in violation of the Sixth
Amendment.

Id. at 9.

Appellant further contends:

The trial court instructed the jury that “a defendant is
justified in using force against another person if he
reasonably believes that he is in imminent danger of force
from that person . . .”. At least two additional times[,]
[the trial court’s] instructions implied self-defense only
applies to actions against an aggressor. [The trial court’s]
instructions, read as a whole, did not clearly or adequately
explain how the jury was to evaluate the allegation [that

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Appellant] committed an aggravated assault against
Mahallati[, the companion of the alleged aggressor].

[The trial court] agreed to alter the standard instruction to
use the plural “charges” and say the defense covers “the
charges of attempted murder and aggravated assault.”
Since there are two “charges” relating to each victim,
pluralizing charges would not add any clarity. Inexplicably,
the court did not actually include the phrase “charges of
attempted murder and aggravated assault” in the
instruction, but instead pluralized “complainants” (“if you
find the defendant reasonably believed that he faced death
or serious bodily injury from any of the complainants at the
moment he shot him”) was still ambiguous.

Id. at 13 (record citations and footnotes omitted; emphasis by Appellant).

Thus, Appellant maintains counsel’s failure to raise the inadequate jury

instruction on direct appeal has arguable merit. Appellant avers counsel did

not have a reasonable strategy in failing to appeal the issue, because

counsel’s “objections after the instructions were given demonstrate [counsel]

knew at the time of trial the instruction read was insufficient.” Id. at 14.

Appellant contends he was prejudiced because the jury acquitted Appellant

of aggravated assault against Jones, thereby finding Appellant acted in

self-defense, but the jury “remained confused about how the justification

defense applied to the alleged assault against Mahallati” as shown by the

jury’s requested clarification on the elements of the crime after two days of

deliberations. Id. at 15.

On this issue, the PCRA court opined that trial counsel had a

reasonable strategy and Appellant failed to establish prejudice:

The [PCRA] court found Attorney Stein to be an experienced
criminal trial and appellate attorney, well informed on the

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law of self-defense in Pennsylvania. The [PCRA] court also
found that Attorney Stein made timely objections when the
trial court refused to adopt the proposed [jury instruction]
language, and preserved the matter for appeal. The [PCRA]
court found credible Attorney Stein’s testimony that
although not worded as he preferred, the court’s charge did
accurately state the law of self-defense.

Moreover, the PCRA court rejected [Appellant’s] claim of
ineffectiveness because [he] failed to establish prejudice.

* * *

The Commonwealth presented evidence at trial that
dispelled [Appellant’s] self-defense claim, including that:
(1) there was no damage to [Appellant’s] car, only to the
Geo Tracker [in which the victims were riding]; (2) the
victims immediately reported the shooting to police, while
[Appellant and his co-defendant] did not; (3) police found
two guns in the Lexus [in which Appellant was riding]; (4)
the Geo Tracker had a manual transmission, which would
have required Jones to use both hands to steer and shift
[despite Appellant’s claim that he was holding a firearm];
and (5) [Appellant’s] bullet struck Mahallati from behind.
Furthermore, the jury may have found that the shooting
was not intentional, but reckless. Such a finding would
have precluded the jury from finding [Appellant] guilty of
“aggravated assault – attempted serious bodily injury” as to
Jones, which requires [Appellant] to have acted with the
specific intent of causing Jones serious bodily injury.
Finding the shooting to have been reckless would not,
however, have precluded the jury from finding [Appellant]
guilty of “aggravated assault – causing serious bodily
injury” as to Mahallati, which requires only that the
defendant acted intentionally, knowingly, or recklessly.
Accordingly, the record establishes that Attorney Stein
acted reasonably in his representation of [Appellant], and,
moreover, that [Appellant] was not prejudiced.

PCRA Court Opinion, 6/10/2015, at 8-9 (record citations and footnotes

omitted; emphasis in original).

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We agree with the PCRA court’s assessment that Appellant failed to

demonstrate that he was prejudiced regarding his claim that the jury

instruction for self-defense was inadequate. First, we reject Appellant’s

suggestion that the jury found Appellant acted in self-defense because it

acquitted him of the charges related to Jones. As the PCRA court noted, the

element of mens rea differs for attempted aggravated assault and

aggravated assault – causing serious bodily injury, and, thus, the jury’s

verdict is best explained by observing that it found Appellant did not

specifically intend to inflict serious bodily injury upon Jones, but found

Appellant acted recklessly with regard to Mahallati. During deliberations, the

jury specifically asked the trial court to state the elements of aggravated

assault and to define intent. N.T., 9/30/2004, at 4. Moreover, as the PCRA

court noted, the physical evidence the Commonwealth presented at trial

showed the victims did not have weapons, Jones was likely using both hands

to drive, and Mahallati was shot in the back as they fled, thereby negating

Appellant’s claim of self-defense. Accordingly, even if the trial court issued

jury instructions framed in accordance with Appellant’s requests, he has not

demonstrated that the outcome of his trial would have been different. As

such, Appellant is not entitled to relief on his first issue.

In his second issue presented, Appellant contends that direct appellate

counsel was ineffective for not challenging the trial court’s failure to specify,

on the record, the sentencing guidelines pertaining to his firearm conviction.

Appellant’s Brief at 17-23. In arguing the merit of his claim, Appellant relies

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on the language from our first panel decision in 2008, wherein we stated

that Appellant’s firearm sentence “was grossly beyond that called for in the

sentencing guidelines.” Id. at 19, citing Perry, 947 A.2d 831 (Pa. Super.

2008) (unpublished memorandum) at 27. Appellant further claims counsel

did not have a reasonable strategy in mistakenly failing to include this

argument in his post-sentence motion. Id. at 20. Citing our decision in

Commonwealth v. Styles, 812 A.2d 1277 (Pa. Super. 2002), Appellant

claims he was prejudiced because “the trial court made no allusion to the

sentencing guidelines” and “imposed successive maximum sentences.” Id.

at 19, 21. Appellant maintains the PCRA court erred in rejecting this claim

on grounds that it would have imposed the same sentence on remand or

because we upheld the firearm sentence following remand from the Supreme

Court. Id. More specifically, he claims the former sentencing judge “was

suspended from the bench from August 2009 to December 2009 and

subsequently retired from office in August 2012” and “[a]nother judge may

have been assigned to resentence Appellant[.]” Id. at 22. He also asserts

that failure to acknowledge the sentencing guidelines was per se reversible

error, regardless of the other reasons placed on the record, and the PCRA

court erred in relying on our decision following remand for upholding the

firearm conviction. Id. at 22.

We conclude that Appellant has failed to plead and prove he was

prejudiced by counsel’s performance. Initially, we note that it is not per se

reversible error when the trial court does not state the sentencing guidelines

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on the record. “[W]here the court imposes [a] sentence outside the

sentencing guidelines, the court need not recite the numeric range of

sentences within the guidelines so long as the record demonstrates the

court's recognition of the applicable sentencing range and the deviation of

the sentence from that range.” Commonwealth v. Rodda, 723 A.2d 212,

213 (Pa. Super. 1999) (en banc) (citation and quotations omitted).

“[N]either the [Sentencing] Code nor our decisions substantiate [the]

suggestion that the sentencing court must recite the guidelines range on

every occasion where the sentence imposed exceeds that range.” Id. at

214. “[W]e have vacated sentence[s] in the absence of a guidelines

recitation only upon a proper showing that the court was guided in its

sentencing decision by a material misapprehension of the applicable range

under the guidelines or upon evidence that the court ignored the guidelines,

in contravention of the Sentencing Code.” Id. (string citations omitted).

“Conversely, where the record has reflected that the court acted on a sound

understanding of the sentencing range and imposed sentence accurately, we

have affirmed the judgment of sentence even in the absence of a guidelines

recitation.” Id. at 216.

Moreover, we note that on appeal to the Supreme Court, Appellant

conceded that the trial court’s failure to specifically acknowledge, either on

the record or in its written opinion, the applicable sentencing guidelines was

not dispositive of his claim that his sentence was excessive. Perry, 32 A.3d

at 239 (“[Appellant] further contend[ed] that, while not dispositive, the trial

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court’s failure to specifically acknowledge on the record or in its written

opinion the applicable sentencing guidelines for his [firearm] conviction

militates [] against a finding that the sentence was reasonable.”).

Curiously, he has changed tack on collateral review. Furthermore, based

upon the above-cited law, we previously determined that the recitation of

the sentencing guidelines on the record is not required in every case. Thus,

we reject Appellant’s suggestion that failure to place the guidelines on the

record at sentencing is per se reversible error.

Additionally, we reject Appellant’s reliance on Styles, supra. In that

case, Styles pled guilty to charges arising from two separate criminal

episodes, including failing to register as a sex offender, attempted

involuntary sexual intercourse, aggravated assault, rape, robbery,

aggravated assault, and possession of an instrument of crime. Styles, 812

A.2d at 1278. After accepting Styles’ guilty plea, the trial court sentenced

him to an aggregate sentence of 56-112 years of imprisonment, reflecting

consecutive maximum sentences on all of the charges. Id. At the time of

sentencing, the trial court made no reference to the sentencing guidelines

and did not offer contemporaneous reasons for imposing maximum

sentences. Id. In its subsequent opinion, the trial court “stated that the

guidelines do not apply to disposition in lieu of trial and that since [Styles]

pled guilty and did not go to trial, the guidelines are not applicable.” Id.

We, however, disagreed, “reject[ing] any conclusion that the guidelines are

inapplicable to sentences following entry of a guilty plea.” Id. at 1279.

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This case is markedly different from Styles. In that case, the trial

court accepted guilty pleas and then sentenced Styles to maximum

consecutive sentences without any regard to his individual circumstances.

The Styles case represents an instance in which the sentencing court

labored under the misapprehension that the sentencing guidelines did not

apply when the defendant pled guilty. In contrast, here, there was no plea

and, on direct appeal, our appellate courts determined that the trial court

imposed an individualized sentence that was not excessive.

In the case sub judice, regarding counsel’s alleged ineffectiveness, the

PCRA court determined that there was no prejudice to Appellant when the

trial court failed to specify the sentencing guidelines on the record. The

PCRA court concluded:

At the sentencing hearing, the sentencing judge did not
state the guidelines for the firearms offense. He did,
however, express his resolve to sentence above the
guidelines. Even if [trial counsel] had pursued the
[sentencing guideline] claim, and the sentence had been
vacated and the matter remanded for resentencing, it is not
reasonably probable that the sentencing judge would have
sentenced [Appellant] any differently. Instead, he would
have stated the guidelines on the record, and then justified
his departure from those guidelines using the rationale in
his [Rule] 1925(a) trial court opinion:

[The statutory maximum sentence is not] too much
time for deliberately shooting a viable, healthy,
unarmed 21-year-old man in the back causing him
permanent paralysis, pain, suffering, sterility, [and]
the loss of life’s simple pleasures in more than 2/3 of
his body.

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The [Supreme Court and the] Superior Court ultimately
upheld this sentence, finding no abuse of discretion.
Therefore, even had the guidelines [] been stated on the
record at the time of sentencing, [Appellant] failed to prove
the reasonable probability that his sentence would have
been different. Because [Appellant] has not proved that
counsel’s error caused him prejudice, the PCRA court did
not err in dismissing the claim.

PCRA Court Opinion, 6/10/2015, at 10 (citations omitted).

Upon review, we agree. “Respecting prejudice, we employ [an] actual

prejudice test, which requires a showing of a reasonable probability that the

outcome of the proceeding would have been different but for counsel's

constitutionally deficient performance.” Commonwealth v. Daniels, 104

A.3d 267, 281 (Pa. 2014) (citations omitted). “[A] reasonable probability is

a probability that is sufficient to undermine confidence in the outcome of the

proceeding.” Id. We have recently reaffirmed:

As a general and practical matter, it is more difficult for a
defendant to prevail on a claim litigated through the lens of
counsel ineffectiveness, rather than as a preserved claim of
trial court error. [Our Supreme] Court has addressed the
difference as follows:

A defendant raising a claim of ineffective assistance
of counsel is required to show actual prejudice;
that is, that counsel's ineffectiveness was of such
magnitude that it could have reasonably had an
adverse effect on the outcome of the proceedings.
This standard is different from the harmless error
analysis that is typically applied when determining
whether the trial court erred in taking or failing to
take certain action. The harmless error standard, []
states that whenever there is a reasonable possibility
that an error might have contributed to the
conviction, the error is not harmless. This standard,
which places the burden on the Commonwealth to
show that the error did not contribute to the verdict

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beyond a reasonable doubt, is a lesser standard than
the [PCRA’s] prejudice standard, which requires the
defendant to show that counsel's conduct had an
actual adverse effect on the outcome of the
proceedings. This distinction appropriately arises
from the difference between a direct attack on error
occurring at trial and a collateral attack on the
stewardship of counsel. In a collateral attack, we
first presume that counsel is effective, and that not
every error by counsel can or will result in a
constitutional violation of a defendant's Sixth
Amendment right to counsel.

Commonwealth v. Freeland, 106 A.3d 768, 776 (Pa. Super. 2014)

(internal citations and quotations omitted; emphasis added).

Here, Appellant failed to plead and prove that he was prejudiced under

the foregoing standards. Appellant’s claim that the trial court would have

sentenced him differently had it acknowledged the sentencing guidelines on

the record prior to sentencing is entirely speculative. The trial court, while

not expressly recognizing the sentencing guidelines on the firearm

conviction, stated that in imposing sentence it was exceeding the sentencing

guidelines because Appellant’s crime merited the maximum penalty based

upon the serious nature of the victim’s injuries. Appellant has not offered

proof that the trial court would have determined otherwise had it recited or

acknowledged the sentencing guidelines prior to imposition. Moreover, our

Supreme Court, and this Court following remand, concluded that there were

adequate substantive grounds to sentence Appellant to a maximum term of

imprisonment on his firearm conviction. Thus, even if the case were

remanded for resentencing before a different judge, given our appellate

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courts’ pronouncements that the maximum sentence was justified, it is not

reasonable to believe that a different judge would resentence Appellant

differently after a mere recitation of the applicable guidelines. Accordingly,

Appellant failed to plead and prove that he was prejudiced by trial counsel’s

actions and his second issue fails.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/29/2016

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