J-S43014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

LAURENN HARVIN

                            Appellant               No. 2521 EDA 2013


                  Appeal from the PCRA Order August 16, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1107251-2004
                            CP-51-CR-1107261-2004


BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                      FILED AUGUST 05, 2014

       Appellant, Laurenn Harvin,1 appeals from the order entered in the

Philadelphia County Court of Common Pleas, denying his petition brought
                                                    2
pursuant to the Post Conviction Reli                    We affirm.

       The PCRA court opinion sets forth the relevant facts and procedural

history of this case as follows:

          On June 14, 2004, the [victims], Braheem Golphin and

          located at 838 North 43rd Street, Philadelphia,
          Pennsylvania. At approximately [4:07 a.m.], Mr. Golphin
____________________________________________


1




2
    42 Pa.C.S.A. §§ 9541-9546

_____________________________________________

*Former Justice specially assigned to the Superior Court.
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       was awakened by three men standing in his bedroom
       demanding money. After telling the men that he did not
       have any money, Mr. Golphin was shot once in the right
       shinbone by co-defendant, Elijah Miller. Due to the noise

       awakened.   He walked towards the room, observed one

       other male, co-defendant Keon Sloan, was standing over
       the bed. Mr. Mayberry observed a third male, Appellant,


       Elijah Miller subsequently made eye contact with Mr.
       Mayberry, raised his gun toward Mr. Mayberry and began
       shooting. Sloan, then, turned the gun on Mr. Golphin and
       shot at him until the gun was emptied. During this time,
       as Mr. Mayberry attempted to take cover in his bedroom,
       he was shot by one of the assailants. Mr. Mayberry was
       able to overtake one of the men and strip him of the gun.

       over Mr. Mayberry, and shot him multiple times. Mr.
       Mayberry was shot a total of thirteen times throughout his
       entire body. Mr. Mayberry remained in a coma for two
       months following the incident and is now permanently
       disabled.

       All of the assailants were known to Mr. Golphin from the
       neighborhood; they were originally identified by their

       identified as [Appellant], was identified by both...Mr.
       Mayberry and Mr. Golphin, and arrested on June 17, 2004.


          notes of testimony.

                                *    *    *

       On October 7, 2005, Appellant...was found guilty of
                                                Aggravated




       following a jury trial. On January 31, 2006, Appellant was


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         On [November 27, 2007], the Pennsylvania Superior Court

         [Appellant] filed [his first] pro-se petition under the
         [PCRA]. On Ju
         allocatur [petition] to the Pennsylvania Supreme Court was
         reinstated.     The Pennsylvania Supreme Court denied

         November 24, 2009. On February 27, [2010], Appellant,
         thereafter, presented his supplemental PCRA petition.

         On April 18, 2011, [the PCRA court] entered an order


         January 23, 2013, the Superior Court remanded the case
         for an evidentiary hearing to resolve the outstanding
         issues concerning competing factual contentions regarding

         trial. An evidentiary hearing pursuant to the Superior
         C
         Shreeves-Johns on August 16, 2013.       Following the


         September [3], 2013.

(PCRA Court Opinion, filed October 31, 2013, at 1-3) (internal citations

omitted).   Subsequently, Appellant voluntarily filed a concise statement of

errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).

      Appellant raises the following issue for our review:

         WAS THE TRIAL DEFENSE COUNSEL INEFFECTIVE IN
         FAILING TO CALL THE ALIBI WITNESS, NICOLE LYNN?



      Appellant claims his girlfriend, Nicole Lynn, was ready, able, and

willing to testify during trial that Appellant spent the night with her on June

14, 2004.     Appellant asserts trial counsel informed Ms. Lynn that her


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testimony was not necessary, and that she should go home.                 Appellant

maintains there is a reasonable probability the jury would not have convicted

Appellant if the jury had heard this testimony.         Appellant concludes trial

counsel was ineffective for failing to call Ms. Lynn as an alibi witness, and



Appellant a new trial. We disagree.

     Our standard of review of the denial of a PCRA petition is limited to



determination    and   whether   its    decision   is    free   of     legal   error.

Commonwealth v. Wright, 935 A.2d 542 (Pa.Super. 2007).                   This Court

grants great deference to the findings of the PCRA court if the record

contains any support for those findings.      Commonwealth v. Boyd, 923

A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74

(2007).    If the record supports a post-

determination, it is binding on the appellate court.        Commonwealth v.

Knighten, 742 A.2d 679, 682 (Pa.Super. 1999), appeal denied, 563 Pa.

659, 759 A.2d 383 (2000).

     The   law   presumes    counsel    has   rendered     effective     assistance.

Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),

appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). When asserting a claim

of ineffective assistance of counsel, the petitioner is required to make the

following showing: (1) the underlying claim is of arguable merit; (2) counsel


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had no reasonable strategic basis for his action or inaction; and, (3) 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. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).

The failure to satisfy any prong of the test for ineffectiveness will cause the

claim to fail. Gonzalez, supra.



petitioner must demonstrate:

         (1) the witness existed; (2) the witness was available; (3)
         counsel was informed of the existence of the witness or
         counsel should otherwise have known of [her]; (4) the
         witness was prepared to cooperate and testify for
         Appellant at trial; and (5) the absence of the testimony
         prejudiced Appellant so as to deny him a fair trial. A
         defendant must establish prejudice by demonstrating that
         he was denied a fair trial because of the absence of the
         testimony    of    the     proposed     witness.        Further,
         ineffectiveness for failing to call a witness will not be found
         where a defendant fails to provide affidavits from the
         alleged witnesses indicating availability and willingness to
         cooperate with the defense.

Commonwealth v. O'Bidos, 849 A.2d 243, 249 (Pa.Super. 2004), appeal

denied, 580 Pa. 696, 860 A.2d 123 (2004) (quoting Commonwealth v.

Khalil, 806 A.2d 415, 422 (Pa.Super. 2002), appeal denied, 572 Pa. 754,

818 A.2d 503 (2003)) (internal citations omitted).

                                                                       lows:

         Although Appellant maintains that Ms. Lynn was ready,
         willing and able to testify as an alibi witness at his trial,




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        contradictions, suggests the exact opposite.       This [c]ourt

        credible because from the inception of the case Mr. Keaney
        has exemplified his efforts to call Ms. Lynn as an alibi

        existence as an alibi witness from Appellant. Mr. Keaney
        acted as any prudent attorney would by hiring an
        investigator to ascertain the viability of Ms. Lynn as an
        alibi witness. Once Mr. Keaney received a favorable report
        from the investigator, he demonstrated his intention to call
        Ms. Lynn as a witness by notifying the Commonwealth that
        he had a potential alibi witness.

        Subsequently, Mr. Keaney had a conversation with Ms.
        Lynn on the first day of trial regarding her prospective
        testimony. Notwithstanding the slight deviation from the

        still intended to call her as a witness in the trial and did so
        on October 5, 2005, when she failed to appear. Contrary
                                                              videntiary
        hearing that Mr. Keaney did not call Ms. Lynn as an alibi
        witness because he no longer needed her testimony, Mr.
        Keaney asked this [c]ourt for a continuance for the sole
        purpose of locating his alibi witness.

        Once he spoke to Ms. Lynn, Mr. Keaney discovered that
        she had once again changed her story by stating that she
        and Appellant slept in separate rooms on the night of the
        incident. It would have been reasonable for Mr. Keaney to

        case rather than bolster it. Mr. Keaney made all efforts to

        stories and her failure to appear on the day she was called
        to testify demonstrate that she was not ready, willing, and

        call her as a witness was reasonable.


        to call Ms. Lynn as a trial witness was reasonable,
        Appellant has failed to establish his claim of ineffective
        assistance of counsel.

(PCRA Court Opinion at 7-8). Our review of the record confirms the PCRA


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                                                         See Boyd, supra;

Knighten, supra. Ms. Lynn was not ready, willing, and able to testify when

defense counsel called her as a witness on October 5, 2005.

supra.    Further, defense counsel did not call Ms. Lynn as a witness the

following day because Ms. Lynn changed her story yet again. In her newest



whereabouts throughout the night of the incident.        Trial counsel had a

reasonable, strategic basis for ultimately deciding not to call Ms. Lynn as an

alibi witness.   See Kimball, supra.   Trial counsel proceeded in a manner



the three-prong test for ineffective assistance of counsel.          See id.

Acco

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/5/2014




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