J-S75040-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLAVNIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                           Appellee

                      v.

KADEEM COOK,

                           Appellant                 No. 1530 EDA 2014


               Appeal from the PCRA Order entered April 17, 2014,
              in the Court of Common Pleas of Philadelphia County,
              Criminal Division, at No(s): CP-51-CR-0002931-2010,
              CP-51-CR-0002932-2010 & CP-51-CR-0005353-2010


BEFORE: ALLEN, LAZARUS, and MUNDY, JJ.

MEMORANDUM BY ALLEN, J.:                        FILED DECEMBER 04, 2014

      Kadeem Cook (“Appellant”) appeals from the order denying his petition

for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. sections

9541-46. We affirm.

      The PCRA court summarized the pertinent facts and procedural history

as follows:

            On October 7, 2009, Danielle Dickson took Regional Rail
         to the Fern Rock Transportation Center (“Fern Rock”) in
         North Philadelphia. At approximately 10 p.m., Ms. Dickson
         was walking from the train to her bus stop when
         [Appellant] approached her and pressed a gun to her neck.
         [Appellant] told her to “drop everything, keep walking.”
         Ms. Dickson complied, dropping her purse and backpack to
         the ground and walking straight ahead.         [Appellant]
         grabbed the items and left, at which point Ms. Dickson ran
         to a subway cashier for help. Police interviewed Ms.
         Dickson both at Fern Rock and later at the police station,
         and she described the man who robbed her.
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          On October 8, 2009, Kyle Goldstein was sitting on a
       bench at Fern Rock, waiting to take Regional Rail home.
       At approximately 11:50 p.m., Mr. Goldstein felt a gun
       pressed to the back of his head. When he turned his head
       to the side, [Appellant] hit him in the eye with the butt of
       the gun, then told him to empty his pockets. Mr. Goldstein
       complied while [Appellant] held him at gunpoint. After Mr.
       Goldstein had emptied his pockets and left their contents
       on the bench, along with his backpack and computer,
       [Appellant] pushed him onto the train tracks and told him
       to run. Mr. Goldstein complied and ran down the tracks,
       then hid beneath a platform. After [Appellant] disappeared
       from view, Mr. Goldstein climbed to the mezzanine level
       for help.     When police arrived, he described both
       [Appellant] and the gun, noting to police that the gun had
       a "very long barrel." He then sought medical attention for
       his injuries.

          On October 10, 2009, at approximately 11 p.m., Officer
       Matthew Hagy received information regarding a point-of-
       gun robbery that had just occurred at the intersection of
       Fourth Street and Champlost Street. One block away from
       the robbery, Officer Hagy encountered [Appellant] and two
       other males, and did a pat down and frisk of the three
       men. [Appellant] had a long-barreled BB gun tucked into
       the waistband of his pants, which Officer Hagy confiscated.
       When a flash description of the robbery suspects came
       over Officer Hagy's radio, he realized the three men he had
       stopped did not match the description, and released them.
       Officer Hagy brought the BB gun to the police station,
       where it remained in a safe box until December 3, 2009.

           On October 17, 2009, Ms. Dickson, the victim of the
       October 7, 2009 robbery, checked the online account of
       her cell phone, which had been in her stolen purse, to see
       if there was any recent activity. Ms. Dickson's cell phone
       was configured to automatically back up photos taken with
       her cell phone to an online album that she could view on
       her computer. While viewing her online album of photos
       taken with her cell phone, Ms. Dickson discovered two
       photos of a man holding a gun.           She immediately
       recognized the person in the photos as her assailant, and
       recognized the long-barreled gun that was used to rob her.
       The person depicted in the photos was [Appellant]. She


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       contacted detectives and provided them with copies of the
       two photographs.

          On November 10, 2009, Bonnie Riley was [in] Fern
       Rock, walking from Regional Rail to her car, which she
       kept parked at the station. At approximately 5:45 p.m.,
       as Ms. Riley reached her minivan and began loading
       shopping bags into the backseat, [Appellant] grabbed her
       from behind.       Ms. Riley screamed, at which point
       [Appellant] put a gun to her head and repeatedly
       demanded her car keys. As Ms. Riley attempted to give
       [Appellant] her keys, he hit her in the forehead with the
       butt of the gun and then punched her in the face. Ms.
       Riley fell to the ground and began crawling away from
       [Appellant]. [Appellant] attempted to get the van's sliding
       door to close, then climbed into the driver's seat of the
       van. As a train pulled into the Fern Rock station and the
       parking lot began to fill with people, [Appellant] fled,
       leaving the van and the victim behind.         When police
       arrived, Ms. Riley described her attacker, then went to the
       police station and filed a report, before seeking medical
       attention for her injuries.

          On November 19, 2009, Crystal Valentine, Associate
       Director of Delta Community Supports ("DCS"), carried out
       a search of [Appellant’s] DCS-provided apartment. Ms.
       Valentine found a second BB gun in [Appellant’s] dresser
       drawer, which she confiscated.

          On December 3, 2009, Officer Hagy saw the
       photographs taken by Ms. Dickson's cell phone air on the
       local news, and recognized both [Appellant] as the man he
       stopped on October 10, 2009, and the long-barreled BB
       gun he had confiscated and placed in the station's safe
       box. Officer Hagy alerted his Sergeant to the situation.

          On December 4, 2009, police showed Bonnie Riley and
       Kyle Goldstein a photo array including [Appellant]. Each
       victim identified [Appellant] as the man who robbed and
       assaulted them. On February 3, 2010, Bonnie Riley and
       Kyle Goldstein attended a lineup and both "immediately"
       recognized and identified [Appellant] as their attacker.
       [Thereafter, police arrested Appellant for the series of
       robberies.]



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Trial Court Opinion, 7/22/14, at 2-5 (citations to notes of testimony

omitted).

      Following a bench trial on November 2, 2010, the trial court found

Appellant guilty of three counts of robbery, two counts of aggravated

assault, one count of attempted robbery of a motor vehicle, and three

counts of possessing an instrument of crime. On January 6, 2011, the trial

court imposed an aggregate sentence of eight to twenty years of

imprisonment.      Appellant filed a timely appeal to this Court.       In an

unpublished memorandum filed on March 13, 2012, we affirmed Appellant’s

judgment of sentence. Commonwealth v. Cook, 47 A.3d 1243 (Pa. Super.

2012).      Appellant did not file a petition for allowance of appeal to our

Supreme Court.

      On June 8, 2012, Appellant filed a pro se PCRA petition.     The PCRA

court appointed counsel, and, on May 25, 2013, PCRA counsel filed an

amended petition.     In his amended petition, Appellant asserted that trial

counsel was ineffective for failing to pursue and/or present an alibi defense.

On March 7, 2014, the PCRA court issued Pa.R.A.P. 907 notice of intent to

dismiss Appellant’s PCRA petition without a hearing. Appellant did not file a

response.      By order entered April 17, 2014, the PCRA court dismissed

Appellant’s amended PCRA petition.       This timely appeal followed.    Both

Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

      Appellant raises the following issue:




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         I.   Did [Appellant’s] PCRA Petition present sufficient
         evidence of an alibi defense for the petition to have been
         granted or for an evidentiary hearing to be held?

Appellant’s Brief at 8.

      In reviewing the propriety of an order granting or denying PCRA relief,

an appellate court is limited to ascertaining whether the record supports the

determination of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great

deference to the findings of the PCRA court, “but its legal determinations are

subject to our plenary review.” Id. Moreover, a PCRA court may decline to

hold a hearing if it determines that a petitioner’s claim is patently frivolous

and is without a trace of support either in the record or from other evidence.

Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001).

      To be entitled to relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that the conviction or sentence

arose from one or more of the errors enumerated in section 9543(a)(2) of

the PCRA. One such error involves the ineffectiveness of counsel.

      To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish by a preponderance of the evidence

that counsel's ineffectiveness so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.

Johnson, 966 A.2d at 532.     “Generally, counsel’s performance is presumed

to be constitutionally adequate, and counsel will only be deemed ineffective


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upon a sufficient showing by the petitioner.” Id. This requires the petitioner

to demonstrate that:     (1) the underlying claim is of arguable merit; (2)

counsel had no reasonable strategic basis for his or her action or inaction;

and (3) petitioner was prejudiced by counsel's act or omission. Id. at 533.

A finding of "prejudice" requires the petitioner to show "that there is a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different."       Id.   In assessing a

claim of ineffectiveness, when it is clear that appellant has failed to meet the

prejudice prong, the court may dispose of the claim on that basis alone,

without a determination of whether the first two prongs have been met.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).               Counsel

cannot be deemed ineffective for failing to pursue a meritless claim.

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc),

appeal denied, 852 A.2d 311 (Pa. 2004).

      Appellant asserts that trial counsel was ineffective for failing to pursue

his claim of an alibi defense with regard to the robbery of Ms. Dickson.

According to Appellant, prior to trial he informed trial counsel that he was at

school from 6:30 p.m. to 10:00 p.m., on the evening when Ms. Dickson was

robbed.   In support of this claim, Appellant attached documents which

allegedly demonstrated his attendance at the Orleans Technical Institute.

      “Generally, an alibi is a defense that places the defendant at the

relevant time in a different place than the scene involved and so removed


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therefrom as to render it impossible for him to be the guilty party … At the

core of an alibi defense is, of course, consistency between the date and time

of the crime and that of the defendant’s alibi.” Commonwealth v. Ali, 10

A.3d 282, 316 (Pa. 2010) (citation omitted).      Here, the PCRA court found

that Appellant’s ineffectiveness claim failed for two reasons:


             First, [Appellant’s] proffered evidence failed to establish
         an alibi. The records of the Orleans Technical Institute
         submitted by [Appellant] only purported to show that
         [Appellant] was present at a class on October 7, 2009,
         that was scheduled to begin at 6:30 p.m. and was
         scheduled for 3½ hours. No records were submitted to
         show when class actually ended that day or when
         [Appellant] left the class.       In addition, [Ms. Dickson]
         testified at trial that the October 7 robbery occurred
         “around 10” and the police report of the robbery reported
         the time of the occurrence to be 10:10 p.m. [Appellant]
         proffered no evidence to suggest that [he] could not have
         gotten to the scene of the robbery from the school in the
         allotted time.

             Second, the evidence conclusively establishes that
         [Appellant] could not have been prejudiced by the alleged
         failure of trial counsel to investigate and present his
         proffered alibi. That alibi, even if believed, only pertained
         to the robbery of October 7, 2009, and was irrelevant to
         the robberies on October 8, 2009, and November 10,
         2009. Notably, the victims of all three robberies positively
         identified [Appellant] as the perpetrator of the robberies.
         As the Superior Court concluded in its decision affirming
         [Appellant’s] conviction on direct appeal: “The underlying
         facts of the three [robberies] include such similarities that
         one would tend to prove the identity of [Appellant] as the
         perpetrator of the other.       The three robberies share
         remarkable similarities, evidencing a pattern of conduct
         and common relationship among the offenses.” [Cook,
         unpublished memorandum at 6.]

            More importantly, the independent evidence that
         [Appellant] committed the October 7, 2009 robbery was

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          overwhelming. Unfortunately for [Appellant], Ms. Dickson,
          the victim of the October 7 robbery, had configured her
          cell phone, which was stolen in the robbery, to
          automatically post any photographs taken with that phone
          to an online album.       [Appellant], apparently thinking
          himself to look impressive with a weapon, snapped two
          photographs of himself [using] the stolen phone, which
          depicted [him] holding the distinct long-barreled gun used
          in the robbery. When Ms. Dickson reviewed her online
          album, she immediately recognized both [Appellant] and
          his gun from the night of the robbery. This was the same
          gun that was seized from [Appellant] by police on October
          10th, during an unrelated robbery investigation. All of this
          conclusively established [Appellant’s] guilt of the October 7
          robbery.

              Accordingly, the record establishes that [Appellant’s]
          proffered evidence failed to establish an alibi, and that
          [trial] counsel’s alleged failure to investigate and present
          such evidence could not have prejudiced [Appellant].
          Therefore,    [Appellant’s]    claim    that   counsel  was
          constitutionally deficient in her representation of
          [Appellant] was properly rejected.

PCRA Court Opinion, 7/22/14, at 6-8 (citations omitted).

        Our review of the record supports the PCRA court’s conclusions. When

a PCRA petitioner raises a claim of ineffectiveness, he or she must set forth

an offer to prove at an appropriate hearing facts upon which a reviewing

court    can   conclude   that   trial   counsel   may   have   been   ineffective.

Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa. 1981).                   Although

Appellant attached certain documents to his amended PCRA petition, the

PCRA court concluded that they fell short of establishing a genuine issue of

material fact as to whether Appellant could have availed himself of an alibi

defense. Additionally, as found by the PCRA court, given the overwhelming



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independent evidence that Appellant committed the October 7th robbery,

Appellant cannot establish how he was prejudiced by trial counsel’s

perceived ineffectiveness. Travaglia, supra.

     In sum, because Appellant failed to raise a genuine issue of material

fact regarding his claim of trial counsel’s ineffectiveness, the PCRA court

properly dismissed Appellant’s amended PCRA petition without a hearing.

Jordan, supra.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/2014




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