Com. v. Saylor, J.

J. S15022/17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 filed May 20, 2005) (unpublished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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