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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                                          :
                  v.                      :
                                          :
JOSEPH SAYLOR,                            :
                                          :
                        Appellant         :
                                          :     No. 3181 EDA 2015

              Appeal from the PCRA Order September 22, 2015
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-0700411-2001

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                           FILED MARCH 27, 2017

      Appellant, Joseph Saylor, appeals from the September 22, 2015 Order

entered in the Philadelphia County Court of Common Pleas denying his

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546.1 Appellant challenges the effective assistance of counsel at

his violation of probation (“VOP”) hearing. We affirm.




1
    This PCRA Petition is limited to Appellant’s probation revocation
proceedings. Although Appellant filed other PCRA Petitions challenging his
original Judgment of Sentence, this is his first PCRA Petition concerning the
probation revocation proceedings. Thus, this Petition is not an untimely
serial petition. See Commonwealth v. Anderson, 788 A.2d 1019, 1021-
22 (Pa. Super. 2001) (holding that “the time for seeking PCRA relief
following the revocation of probation and the imposition of a new sentence
runs for one year from the conclusion of direct review of that new sentencing
order, but only as to the issues of the validity of the revocation proceedings
and the legality of the new sentence.” (emphasis in original)).
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      On March 10, 2003, a jury convicted Appellant of Involuntary Deviate

Sexual Intercourse (“IDSI”), Indecent Assault, and Corruption of a Minor.2

On April 28, 2003, the trial court sentenced Appellant to five to ten years’

incarceration, followed by five years’ probation.      This Court affirmed

Appellant’s Judgment of Sentence on May 20, 2005.       Commonwealth v.

Saylor, No. 648 EDA 2004 (Pa. Super. filed May 20, 2005) (unpublished

memorandum).

      On September 24, 2012, Appellant technically violated his probation

and was detained. On March 23, 2013, Appellant appeared for a bifurcated

VOP hearing. The probation officer indicated that he had detained Appellant

for his “failure to comply with [the court’s] instructions and [the probation

department’s] instructions to attend and appear at a sexual offender

treatment program.”     N.T. VOP, 3/28/13, at 4.3    Both Appellant and his

counsel raised Commonwealth v. Fink, 990 A.2d 751 (Pa. Super. 2010), to

support Appellant’s assertion that to comply with sexual offender treatment

would result in self-incrimination.

      At the VOP sentencing hearing on May 1, 2013, Appellant “told the

[c]ourt that he will not comply with the mandatory conditions of the

sentence[,]” including “cooperating with any program or anything of that

2
  18 Pa.C.S. § 3123; 18 Pa.C.S. § 3126; and 18 Pa.C.S. § 6301,
respectively.
3
  Part of Appellant’s treatment program purportedly involved taking a
polygraph test about his crimes. Appellant refused to do so.



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nature.”   N.T. VOP, 5/1/13, at 3, 6-7.     The VOP court found Appellant in

violation and resentenced him to a term of five to ten years’ incarceration.

Appellant did not file a direct appeal.

      On June 18, 2013, Appellant filed a pro se PCRA Petition, later

amended by appointed counsel, alleging ineffective assistance of VOP

counsel. After providing notice to Appellant pursuant to Pa.R.Crim.P. 907,

the PCRA court dismissed Appellant’s Petition without a hearing on

September 22, 2015.

      Appellant filed a timely Notice of Appeal.        Appellant presents the

following issue for our review:

      Did the PCRA [c]ourt err by finding that counsel was not
      ineffective for failing to argue that [Appellant] did not violate his
      probation by refusing to incriminate himself in a lie detector
      test?

Appellant’s Brief at 4.

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its order is otherwise

free of legal error.      Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). This Court grants great deference to the findings of the PCRA court if

they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513,

515 (Pa. Super. 2007). We give no such deference, however, to the court’s

legal conclusions.     Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.

Super. 2012).




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      To be eligible for relief pursuant to the PCRA, Appellant must establish,

inter alia, that his conviction or sentence resulted from one or more of the

enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2). Appellant

must also establish that the issues raised in the PCRA petition have not been

previously litigated or waived.      42 Pa.C.S. § 9543(a)(3).   An allegation of

error “is waived if the petitioner could have raised it but failed to do so

before trial, at trial, during unitary review, on appeal[,] or in a prior state

postconviction proceeding.” 42 Pa.C.S. § 9544(b).

      There is no right to a PCRA hearing; a hearing is unnecessary where

the PCRA court can determine from the record that there are no genuine

issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008).

      Appellant’s sole issue in this appeal challenges the effective assistance

of VOP counsel.         The law presumes counsel has rendered effective

assistance.    Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super.

2010).        “[T]he   burden   of   demonstrating   ineffectiveness   rests   on

[A]ppellant.” Id. To satisfy this burden, Appellant must plead and prove by

a preponderance of the evidence that: “(1) his underlying claim is of

arguable merit; (2) the particular course of conduct pursued by counsel did

not have some reasonable basis designed to effectuate his interests; and,

(3) but for counsel’s ineffectiveness, there is a reasonable probability that

the outcome of the challenged proceeding would have been different.”



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Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).               Failure to

satisfy any prong of the test will result in rejection of the appellant’s

ineffective assistance of counsel claim.    Commonwealth v. Jones, 811

A.2d 994, 1002 (Pa. 2002).

      Appellant must meet the “arguable merit” prong.          “The threshold

inquiry in ineffectiveness claims is whether the issue/argument/tactic which

counsel has foregone and which forms the basis for the assertion of

ineffectiveness is of arguable merit[.]”   Commonwealth v. Pierce, 645

A.2d 189, 194 (Pa. 1994) (quotation and citation omitted). “Counsel cannot

be found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa. Super. 2004)

(citation omitted).

      Appellant avers that his VOP counsel was ineffective “for failing to

argue the Fink[, supra,] decision in support of [Appellant’s] case against

the allegation of his probation violation.” Appellant’s Brief at 9. Appellant

baldly avers that he “was asked to incriminate himself during sex offender

therapy by answering questions about his sexual history” even though he

had a PCRA Petition outstanding from his initial Judgment of Sentence. Id.

at 10.   Appellant contends that his “VOP counsel failed to argue that his

alleged violation of probation was the result of a valid assertion of his Fifth

Amendment privilege.” Id. at 9.




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      Contrary to Appellant’s assertions on appeal, Appellant’s VOP counsel

properly raised the Fink decision. Both Appellant and his counsel raised this

specific issue during the VOP hearing on March 28, 2013 as follows:

      [Appellant’s VOP Counsel]: Your Honor, my client is raising
      Commonwealth versus Fink, something he brought himself, 210
      PA Super 18. This says here that my client, according to the
      Fink issue here, didn’t violate parole by being discharged from
      the sexual offender program for failing to disclose his sexual
      history. So, therefore, my client is saying that it violated his
      privileges of self-incrimination if he cooperates with therapeutic
      counseling that Mr. Dragon wants him to involve himself with,
      Your Honor.

                                *     *     *

      [Appellant]: Good morning. Commonwealth versus -- this is
      Superior Court, also state Supreme Court, therapeutic polygraph
      can't be admitted into the violation hearing and it should not be
      the sole base of a violation. That’s what his problem was, that I
      didn’t take the polygraph. I told him why. I said because -- I
      said it would self-incriminate me. Nobody seems to listen to me
      when I say these things. I said it to you back last year, March
      28th.    You didn’t care about -- you said on the notes of
      testimony you didn’t care about my appeals, you don’t care.

N.T. VOP, 3/28/13, at 5-6.    Thus, Appellant’s counsel properly raised this

issue before the VOP court and Appellant cannot meet the requirement that

VOP counsel failed to raise a claim of arguable merit.

      Insofar as Appellant challenges the VOP court’s underlying decision

rejecting his Fink argument, Appellant could have presented this claim of

alleged VOP court error on direct appeal from his new sentence following

revocation and resentencing. Appellant failed to do so, and any argument

regarding the VOP court’s purported error is waived.       See 42 Pa.C.S. §



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9544(b) (“an issue is waived if the petitioner could have raised it but failed

to do so before trial, at trial, during unitary review, on appeal or in a prior

state postconviction proceeding.”).

      Therefore, our review indicates that the PCRA court’s dismissal of the

Petition is supported by the record and relevant law. Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/27/2017




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