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NON-PRECEDENTIAL DECISION               - SEE SUPERIOR COURT I.O.P.        65.37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

SHANNON FRENCH,                                         No. 580 EDA 2017

                           Appellant


                 Appeal from the PCRA Order, January 13, 2017,
               inthe Court of Common Pleas of Philadelphia County
                Criminal Division at Nos. CP-51-CR-0014123-2011,
                              CP-51-CR-0805001-2005


BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JANUARY 07, 2019

         Shannon French appeals from the January 13, 2017 order entered by

the Court of Common Pleas of Philadelphia County denying his petition filed

pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-

9546. After careful review, we affirm.

         The PCRA court provided the following synopsis of the relevant

procedural history of this case:

               On February 28, 2011, at CP-51-CR-0805001-2005,
               [appellant] entered into a negotiated guilty plea on
              the    charges of [c]orruption of [m]inors and
               [s]tatutory [s]exual [a]ssault[1] and was sentenced
               in accordance with his plea agreement to a period of
               confinement in a county correctional facility [of] 111/2
              to 23 months followed by 10 years['] probation.



1    18 Pa.C.S.A. §§ 6301(a) and 3122.1(a), respectively.
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               On March   29, 2011, at CP-51-CR-0014123-2011,
              [appellant] entered into a negotiated guilty plea on
              the charges of [c]onspriacy, [t]erroristic [t]hreats
              and [s]talking.[Footnote 1][2] On June 13, 2012,
              [appellant] was sentenced on each charge to
              concurrent terms of probation of five years. On
              June 13, 2012, the [c]ourt also found [appellant] in
              violation of probation at CP-51-CR-0805001-2005
              and imposed concurrent sentences on both counts of
              111/2 to 23 months['] incarceration, followed by
              8 years['] probation.

                    [Footnote 1] This conviction constituted
                    [appellant's] second[,] a violation of his
                    parole at CP-51-CR-08050001-2005[.
                    Appellant] was subsequently found to be
                    in violation and resentenced on June 13,
                    2012.

              Subsequently, on April 8, 2015, the [PCRA court]
              found [appellant] to be in violation of probation on
              both bills of information and resentenced him to an
              aggregate sentence of 2 to 5 years of confinement in
              a state correctional facility followed by [5] years[']
              probation. [Appellant] did not file a direct appeal.
              On July 24, 2015, [appellant] filed the timely instant
              counseled PCRA petition pursuant to 42 Pa.C.S.A.
              §9541, et Seq. [sic] On November 16, 2016, [the
              PCRA court] after a hearing and a careful review of
              the record, issued its notice, pursuant to Rule 907 of
              the Pennsylvania Rules of Criminal Procedure []
              advising [c]ounsel and [appellant] that it intended to
              dismiss [appellant's] petition within twenty days of
              the date of its notice.      On December 6, 2016,
              [appellant] filed a response to the [PCRA court's]
              notice pursuant to Rule 907. On January 13, 2017,
              after a hearing and consideration of [appellant's]
              response to its notice of intent to dismiss, the [PCRA
              court] issued an [o]rder dismissing [appellant's]
              PCRA [p]etition as being without merit.




2    18 Pa.C.S.A. §§ 903(a), 2706(a), and 2709.1(a), respectively.


                                       - 2 -
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              On February 1, 2017,    [appellant] timely filed the
             instant appeal to the Superior Court of Pennsylvania.
             On February 6, 2017, [the PCRA court] filed and
             served on [appellant] an [o]rder pursuant to
             Rule 1925(b) of the Pennsylvania Rules of Appellate
             Procedure, directing [appellant] to file and serve a
             Statement of Errors Complained of on Appeal, within
             twenty-one days of the [PCRA court's] [o]rder.

              On February 27,    2017, [appellant] timely filed     a
              Statement of [Errors] Complained of on Appeal.

PCRA    court opinion, 10/16/17 at 1-3.          The PCRA court filed an opinion

pursuant to Pa.R.A.P. 1925(a) on October 16, 2017.

       Appellant raises the following issue for our review:

              Did the [PCRA] court err in finding [appellant] was
              not prejudiced by his prior counsel's failure to
              introduce evidence that his alleged violation of
              probation was neither willful or intention [sic]?

Appellant's brief at 2.

        PCRA petitions are subject to the following standard of review:

             "[A]s   ageneral proposition, we review a denial of
              PCRA relief to determine whether the findings of the
              PCRA court are supported by the record and free of
             legal error." Commonwealth v. Dennis, [], 17
             A.3d 297, 301 ([Pa. ]2011) (citation omitted). A
             PCRA court's credibility findings are to be accorded
             great deference, and where supported by the record,
             such determinations are binding on a reviewing
             court. Id. at 305 (citations omitted). To obtain
             PCRA relief, appellant must plead and prove by a
             preponderance of the evidence: (1) his conviction or
             sentence resulted from one or more of the errors
             enumerated in 42 Pa.C.S.[A.] § 9543(a)(2); (2) his
             claims have not been previously litigated or waived,
             id. § 9543(a)(3); and (3) "the failure to litigate the
             issue prior to or during trial  . or on direct appeal
                                                 .   .


             could not have been the result of any rational,


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               strategic or tactical decision by counsel[,]" id.
               § 9543(a)(4). An issue is previously litigated if "the
               highest appellate court in which [a]ppellant could
               have had review as a matter of right has ruled on
               the merits of the issue[.]" Id. § 9544(a)(2). "[A]n
               issue is waived if [a]ppellant could have raised it but
               failed to do so before trial, at trial,. on appeal or
                                                          .   .


               in a prior state postconviction proceeding."        Id.
               § 9544(b).


Commonwealth v. Treiber,            121 A.3d 435, 444 (Pa. 2015).

         Under the PCRA, an individual is eligible for post -conviction relief if the

conviction was the result of "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).   When considering whether counsel

was ineffective, we are governed by the following standard:

                     [C]ounsel 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.
                     Strickland v. Washington, 466 U.S.
                     668 [] (1984). This Court has described
                     the Strickland standard as tripartite by
                     dividing the performance element into
                     two          distinct        components.
                     Commonwealth v. Pierce, [] 527 A.2d
                     973, 975 ([Pa. ]1987). 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.      Id.    A claim of
                     ineffectiveness will be denied if the


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                    petitioner's evidence fails to satisfy any
                    one of these prongs.

              Commonwealth v. Busanet, []          54 A.3d 34, 45
             ([Pa. ]2012) (citations formatted).     Furthermore,
             "[i]n accord with these well -established criteria for
             review, [an appellant] must set forth and individually
             discuss substantively each prong of the Pierce test."
             Commonwealth v. Fitzgerald, 979 A.2d 908, 910
             (Pa.Super. 2009).

Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015),
order vacated on other grounds, 166 A.3d 1213           (Pa. 2017).

        Here, the   record   reflects that appellant was discharged from            a


mandatory sexual offender rehabilitation program for sleeping during group

therapy.     (Notes of testimony, 4/8/15 at 6-8.)            The trial court found

appellant to be in violation of his probation and sentenced him to 2-5 years'

incarceration followed by five years' probation. (Id. at 12, 22.)

       Appellant    contends   that   his   violation   of     probation     counsel,

Tangie Marie Boston, Esq., provided ineffective assistance because she failed

to introduce evidence pertaining to the side effects of the medications

appellant was required to take, which included excessive drowsiness.

(Appellant's brief at 6.) Specifically, appellant argues that he was prejudiced

by Attorney Boston's failure to introduce such evidence.       (Id. at 8.)
        Based on our review of the record, we find that there is support for the

PCRA    court's conclusion that the record belies appellant's contentions. (See

PCRA    court opinion, 10/16/17 at 8.) Relying on appellant's discharge report,

the PCRA court noted that appellant was discharged,


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              not just for his inability to stay awake but, instead
              for his total lack of cooperation and defiance of the
              program.     In viewing the totality of his actions,
              sleeping during sessions, his sexualizing a staff
              member,[3]      seeking    inappropriate drugs and
              numerous       behavioral     violations,   [appellant]
              evidenced a deliberate pattern of non-compliance.
              Prior to dismissing [appellant's] PCRA petition, the
              [PCRA court] noted; "It's one thing to fall asleep, it's
              another thing to put your jacket over your head so
              you can sleep more peacefully. If that's just part of
              an overall pattern of not going along with the
              program, I don't know what good it would do you to
              bring in evidence that these are medications that
              make it easier to sleep."

PCRA     court opinion, 10/16/17 at 8, quoting notes of testimony, 11/16/16

at 14.     Moreover,   a   review of the violation of probation hearing transcript

reveals that Attorney Boston argued that appellant's falling asleep was

attributed to the medication he was taking.          (Notes of testimony, 4/8/15

at 17.)

         Therefore, we find that appellant has failed to establish that he was

prejudiced by Attorney Boston's not introducing evidence that the side

effects of the medication appellant was required to take caused him to

become drowsy.         Accordingly, the PCRA court did not abuse its discretion

when it dismissed appellant's PCRA petition.

         Order affirmed.


3 Probation Officer Yvette Morales described appellant's behavior as follows:
"[A] female therapist walked by and [appellant] found her attractive, and he
stated that he wanted more information on her. And they redirected him
several times, but he kept asking [for] information about the therapist."
(Notes of testimony, 4/8/15 at 7.)

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Judgment Entered.




Joseph D. Seletyn,
Prothonotary

Date: 1/7/19




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