J-S10033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DANIEL WEIR,

                            Appellant                No. 2078 EDA 2015


                   Appeal from the PCRA Order June 12, 2015
               in the Court of Common Pleas of Delaware County
               Criminal Division at No.: CP-23-CR-0006090-2012


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 02, 2016

        Appellant, Daniel Weir, appeals from the order 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 aptly summarized the factual and procedural history of

this case as follows:

               On January 14, 2013, Appellant entered into a negotiated
        guilty plea to theft by unlawful taking (M1) and was sentenced to
        9 to 23 months in Delaware County Prison followed by 2 years of
        consecutive probation. Appellant was given credit from 8-1-
        2012 to 1-14-2013 and the remainder of time was to be spent
        on electronic home monitoring.

            On April 24, 2014, Appellant’s probation officer requested
        a Gagnon II[1] hearing for violations of his probation/parole,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        particularly a violation of CEC Halfway House guidelines. On May
        28, 2014, this court held a Gagnon II hearing.                The
        Commonwealth presented testimony from probation agent,
        Matthew Haubrich. Mr. Haubrich presented a letter from CEC
        Halfway House stating that Appellant’s dentist prescribed him
        hydrocodone, commonly known as Vicodin. Appellant brought
        the prescription to the halfway house and the facility advised
        him that he would need to go back to his dentist and get the
        prescription changed to Motrin in order to comply with the rules
        of not taking opiates while in the facility. Appellant did not
        comply and tested positive for hydrocodone.           In addition,
        Appellant also tested positive for codeine/Tylenol III, for which
        he never provided any prescription. Appellant was found in
        violation of Rule 1, Rule 7, and Rule 10(c).[ 2]        This court
        followed the recommendations of adult probation and parole and
        sentenced Appellant to his full back time of 458 days, probation
        of 18 to 36 months to run concurrent and this court
        recommended that Appellant be placed in a therapeutic
        community.

             On June 6, 2014, counsel for Appellant filed a motion to
        reconsider the sentence imposed at the Gagnon II hearing,
        which this court denied via order on June [10], 2014.

               On [July 11], 2014, Appellant filed a pro se notice of
        appeal and asked this court to appoint counsel. On July 16,
        2014, this court appointed the Delaware County Office of the
        Public Defender to represent Appellant. On July 28, 2014, this
        court issued an order directing the Office of the Public
        Defend[er] to file a 1925(b) statement. [See Pa.R.A.P. 1925.]
        In lieu of the 1925(b) statement, counsel filed a statement of his


                       _______________________
(Footnote Continued)
1
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).
2
  These rules require an offender to report to his probation/parole officer as
directed; refrain from the use, possession, and/or distribution of controlled
substances; and to provide any prescription for medication to the halfway
house upon receipt.      (See Gagnon II Hearing Report, 5/02/14, at
unnumbered pages 1-2; PCRA Ct. Op., infra at 4).




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        intent to file an Anders brief.[3] On September 22, 2014, the
        Superior Court quashed the appeal as untimely filed.

              On October 3, 2014, [Appellant] filed a PCRA petition and
        counsel was appointed. On March [3], 2015, counsel filed an
        amended PCRA petition. The Commonwealth filed an answer to
        the petition on March 26, 2015. On May [7], 2015, this court
        issued notice of intent to dismiss without a hearing. [See
        Pa.R.Crim.P. 907(1).] On June 1[2], 2015, the petition was
        dismissed. Counsel for Appellant filed a timely appeal and
        1925(b) statement of matters complained of on appeal.

(PCRA Court Opinion, 8/25/15, at 1-2) (record citations and some

capitalization omitted).

        Appellant raises one question for our review: “Was the [PCRA] court in

error for dismissing [Appellant’s] amended [PCRA] petition without a hearing

when the issue of ineffectiveness of counsel was raised in an amended

petition to the court?”          (Appellant’s Brief, at 4) (some capitalization

omitted). Specifically, Appellant argues that counsel was ineffective in his

representation at the Gagnon II hearing for failing to present evidence of

Appellant’s prescription for Tylenol III/codeine.     (See id. at 8; Amended

PCRA Petition, 3/03/15, at unnumbered page 1, ¶¶ 4-5). This issue lacks

merit.

              We begin by noting our well-settled standard of review. In
        reviewing the denial of PCRA relief, we examine whether the
        PCRA court’s determination is supported by the record and free
        of legal error. The scope of review is limited to the findings of
        the PCRA court and the evidence of record, viewed in the light
        most favorable to the prevailing party at the trial level. It is
        well-settled that a PCRA court’s credibility determinations are
____________________________________________


3
    See Anders v. California, 386 U.S. 738 (1967).



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     binding upon an appellate court so long as they are supported by
     the record. However, this Court reviews the PCRA court’s legal
     conclusions de novo.

            We also note that a PCRA petitioner is not automatically
     entitled to an evidentiary hearing. We review the PCRA court’s
     decision dismissing a petition without a hearing for an abuse of
     discretion.

                   [T]he right to an evidentiary hearing on a post-
             conviction petition is not absolute. It is within the
             PCRA court’s discretion to decline to hold a hearing if
             the petitioner’s claim is patently frivolous and has no
             support either in the record or other evidence. It is
             the responsibility of the reviewing court on appeal to
             examine each issue raised in the PCRA petition in
             light of the record certified before it in order to
             determine if the PCRA court erred in its
             determination that there were no genuine issues of
             material fact in controversy and in denying relief
             without conducting an evidentiary hearing.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

and quotation marks omitted).

     To prevail on a petition for PCRA relief on grounds of ineffective

assistance   of   counsel,   a   petitioner   must   plead   and   prove,   by   a

preponderance of the evidence:

     (2) That the conviction or sentence resulted from . . . :

                                  *    *      *

     (ii) Ineffective assistance of counsel which, in the circumstances
     of the particular case, so undermined the truth-determining
     process that no reliable adjudication of guilt or innocence could
     have taken place.

42 Pa.C.S.A. § 9543(a)(2)(ii).




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       An appellant must demonstrate “(1) that the underlying claim is of

arguable merit; (2) that counsel had no reasonable strategic basis for his or

her action or inaction; and (3) that, but for the errors and omissions of

counsel, there is a reasonable probability that the outcome of the

proceedings would have been different.”        Commonwealth v. McDermitt,

66 A.3d 810, 813 (Pa. Super. 2013) (citation omitted).            “The failure to

satisfy any prong of this test will cause the entire claim to fail.” Id. (citation

omitted). “It is well-established that counsel is presumed effective, and [a

PCRA     petitioner]   bears    the   burden     of   proving   ineffectiveness.”

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779-80 (Pa. Super.

2015) (en banc), appeal denied, 123 A.3d 331 (Pa. 2015) (citations

omitted).

       Here, the PCRA court addressed the issue of ineffectiveness of counsel

with respect to the Tylenol III/codeine prescription as follows:

             Rule #10C states that any prescription must be provided
       to the CEC halfway house upon receipt. Appellant provided the
       prescription for hydrocodone but never one for codeine. Even if
       Appellant has a valid prescription for the codeine, it does not
       negate the violation for taking opiates while staying in the facility
       and the rule for presenting all prescriptions to the halfway
       house. In addition, Appellant disregarded the request to change
       the hydrocodone to Motrin and eventually tested positive for two
       separate opiates, another violation.        Appellant fails to []
       demonstrate counsel was ineffective for not providing a
       prescription that would not have changed the outcome of the
       proceedings. Appellant has [not] suffered any prejudice from
       counsel’s action or inaction.

(PCRA Ct. Op., at 4) (some capitalization omitted).



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      Upon review, we agree with the PCRA court, and conclude it did not err

or abuse its discretion in dismissing Appellant’s PCRA petition without a

hearing. See Miller, supra at 992. The record makes clear that Appellant

failed to demonstrate prejudice where any evidence of a prescription for

Tylenol III/codeine would not negate his violations of the relevant halfway

house rules and was therefore immaterial to the outcome of the Gagnon II

proceeding. See McDermitt, supra at 813. Accordingly, Appellant’s sole

issue on appeal does not merit relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2016




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