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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

RONELLE L. MARTIN

                            Appellant                No. 2447 EDA 2014


                  Appeal from the PCRA Order August 18, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012129-2009


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                             FILED JULY 07, 2015

        Ronelle L. Martin appeals from the order entered in the Court of

Common Pleas of Philadelphia County, dated August 18, 2014, dismissing

his petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 Martin

seeks relief from the judgment of sentence of five to fifteen years’

imprisonment imposed on September 22, 2010, following his non-jury trial

convictions for attempted rape,2 attempted sexual assault,3 indecent




____________________________________________


1
    42 Pa.C.S. §§ 9541–9546.
2
    18 Pa.C.S. §§ 901, 3121(a)(1).
3
    18 Pa.C.S. §§ 901, 3124.1.
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assault,4 indecent exposure,5 and simple assault6 committed against a

woman, V.H.,7 in a park. After careful review, we affirm.

        The PCRA court set forth the relevant facts of the matter as follows:

        On the night of September 7, 2009, V.H. was working on word
        puzzles on a bench in a well-lit area of Boyle Park near 8th and
        York Streets in Philadelphia. At around midnight, while V.H. was
        looking at one of her puzzles, [Martin] suddenly grabbed her
        from behind, threw her on the ground, and started punching her
        in the face. V.H.’s head hit the ground and she looked up and
        saw [Martin] on top of her.          After [Martin] took V.H.’s
        sweatpants off, she could feel his penis poking at her pubic hairs
        but did not know whether or not she was actually penetrated.
        V.H. screamed and yelled at [Martin] to get off of her.

        While on foot patrol in the area, Philadelphia Police Officers Eric
        Lee and Veronica Cespedes entered Boyle Park and saw V.H.
        lying on the ground flat on her stomach and defendant on his
        knees behind V.H. [Martin’s] pants were down and he was
        making thrusting motions causing the officers to believe they
        were having casual sex in the park. As the officers approached
        them, however, they heard V.H. moaning in pain and saw that
        her face was covered in blood. When Officer Lee announced
        himself as a police officer, [Martin] turned around, saw the
        officers, and took off running with his pants still down. Officer
        Cespedes attend to V.H. who was bloody, had a split lip,
        appeared disoriented, and said that she was being raped when
        the officers arrived. V.H.’s clothes were strewn all over the park.
        Officers chased [Martin] for about half a block until they caught
        up with him in a vacant lot and arrested him.

PCRA Court Opinion, 10/7/14, at 1-2 (citations and footnote omitted).
____________________________________________


4
    18 Pa.C.S. §§ 3126(a)(1)-(2).
5
    18 Pa.C.S. § 3127(a).
6
    18 Pa.C.S. § 2701(a)(1).
7
    The victim is identified by her initials to protect her privacy.



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     On May 14, 2010, Martin appeared before the Honorable Glenn B.

Bronson for a non-jury trial. After all of the evidence was presented, Judge

Bronson convicted Martin of the aforementioned charges. On September 22,

2010, the court sentenced Martin to five to fifteen years’ incarceration for

attempted rape, and concurrent sentences of six months’ to two years’

incarceration for each of the indecent assault, indecent exposure, and simple

assault charges. No post-sentence motions were filed. Martin appealed the

judgment of sentence, which was affirmed by this Court on September 23,

2011. Commonwealth v. Martin, 34 A.3d 235 (Pa. Super. 2011)

(unpublished memorandum). Defendant did not seek allowance of appeal.

     Thereafter, on June 18, 2012, Martin filed a pro se PCRA petition. The

court appointed counsel to represent Martin, and on January 21, 2014,

Martin filed an amended PCRA petition with counsel’s assistance. On June

30, 2014, the court issued a notice of intent to dismiss the PCRA petition

without a hearing pursuant to Pa.R.Crim.P. 907. The court dismissed the

petition on August 18, 2014.     Martin filed a timely notice of appeal and

court-ordered concise statement of matters complained of on appeal

pursuant to Pa.R.A.P. 1925(b).

     On appeal, Martin asserts that the PCRA court erred in denying the

claims raised in the PCRA petition without an evidentiary hearing. The PCRA

claims raised include ineffective assistance of counsel claims based on the

following: 1) failure to file a post-trial motion asserting that the verdicts




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were against the weight of the evidence; and 2) failure to file a post-

sentence motion for reconsideration of Martin’s sentence.

      Our standard and scope of review for the denial of a PCRA petition is

well-settled.   We review the PCRA court’s findings of fact to determine

whether they are supported by the record, and review its conclusions of law

to determine whether they are free from legal error.      Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our review is limited to

the findings of the PCRA court and the evidence of record, viewed in the light

most favorable to the prevailing party at the trial level.     Id.   Where no

genuine issues of material fact exist and the defendant is not entitled to

relief, the court may dismiss a PCRA petition without conducting an

evidentiary hearing. Commonwealth v. Marshall, 812 A.2d 539, 545 (Pa.

2002).

      Both of Miller’s PCRA claims assert ineffectiveness of counsel.       To

establish counsel’s ineffectiveness, a petitioner must demonstrate: (1) the

underlying claim has arguable merit; (2) counsel had no reasonable basis for

the course of action or inaction chosen; and (3) counsel’s action or inaction

prejudiced the petitioner.   See Commonwealth v. Burno, 94 A.3d 956,

964 n.5 (Pa. 2014); Strickland v. Washington, 466 U.S. 668 (1984).

      A failure to satisfy any prong of the ineffectiveness test requires
      rejection of the claim. The burden of proving ineffectiveness
      rests with Appellant. To sustain a claim of ineffectiveness,
      Appellant must prove that the strategy employed by trial counsel
      was so unreasonable that no competent lawyer would have
      chosen that course of conduct. Trial counsel will not be deemed
      ineffective for failing to pursue a meritless claim.

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Commonwealth v. Rega, 933 A.2d 997, 1019 (Pa. 2007). Moreover, trial

counsel’s “chosen strategy will not be found to have lacked a reasonable

basis unless it is proven that an alternative not chosen offered a potential for

success     substantially   greater   than   the   course   actually   pursued.”

Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006) (citation

omitted).

      Martin first asserts that he was prejudiced by trial counsel’s failure to

file a post-trial motion seeking to overturn his verdicts as against the weight

of the evidence.     A motion seeking to overturn a verdict as against the

weight of the evidence must demonstrate that the verdict is “so contrary to

the evidence as to shock one’s sense of justice and make the award of a new

trial imperative.” Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa.

Super. 2004) (citation omitted). An appellate court will not reverse the

credibility determinations of a trial court without an abuse of discretion, and

the trier of fact is free to believe all, part, or none of the evidence presented.

Commonwealth v. Hughes, 908 A.2d 924, 928 (Pa. Super. 2006).

Additionally, a mere conflict in the testimony or possibility that the factfinder

could have come to a different conclusion does not entitle the defendant to a

new trial. Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000).

      Martin alleges that the Commonwealth’s evidence presented at trial

was inconsistent and contradictory for the following reasons: V.H. testified

that the park was well-lit, but police officers testified the lights were not on

in the park; V.H. stated that she had been robbed and money was taken

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from her, but no evidence of robbery was presented and no money was

recovered from Martin; V.H. stated she was not prostituting when this was

not an issue in the case; and V.H. testified that her clothes were ripped off,

but there were no tears in her clothes. Brief for Appellant, at 16.

      Notwithstanding the alleged inconsistencies noted above, the trial

judge, sitting as fact-finder, found the Commonwealth’s witnesses to be

credible. V.H. testified that Martin grabbed her from behind, threw her on

the ground, took her clothes off, and tried to engage in sexual intercourse

with her. Martin punched her in the face multiple times to subdue her. This

testimony was corroborated by Police Officers Lee and Cespedes, who

observed Martin on top of V.H., with his pants down, making sexual

thrusting motions. V.H. was flat on her stomach, moaning in pain, and had

blood on her face.     Martin fled when the officers approached but was

apprehended a short distance away.          These facts clearly support the

conclusion that Martin attempted to rape V.H., and in no way are his

resulting convictions shocking.

      Moreover, the discrepancies Martin raises either are not actually

contradictory or simply are not material to the outcome of the case.        At

most, the alleged inconsistencies are minor conflicts in the testimony that

would not support the grant of a new trial. Widmer, supra. Furthermore,

as there is absolutely no evidence of an abuse of discretion, the trial court’s

credibility determinations will not be disturbed.    Had trial counsel filed a

motion seeking to overturn the verdict as against the weight of the

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evidence, it would have been meritless and would not have altered the

outcome of the matter.        Based on the foregoing, trial counsel had a

reasonable basis for not filing such a motion and the PCRA court properly

dismissed   this   ineffectiveness   of   counsel   claim   without   holding   an

evidentiary hearing.

     Martin’s second ineffectiveness of counsel claim asserts that he was

prejudiced based upon trial counsel’s failure to file a post-sentence motion

seeking reconsideration of his sentence. The determination of a sentence is

within the sound discretion of the trial judge, and a sentence should not be

disturbed where the court was aware of sentencing considerations and

weighed the considerations meaningfully. Commonwealth v. Begley, 780

A.2d 605, 642 (Pa. 2001).      A defendant is not entitled to appellate relief

where a sentence is within the standard range of the sentencing guidelines

unless “the case involves circumstances where the application of the

guidelines would be clearly unreasonable.” 42 Pa.C.S. §9781(c)(2). In the

PCRA context, if the “court can determine from the record that the

[defendant’s] sentence was not excessive, or that adequate reasons were

placed on the record for exceeding the sentencing guidelines, then there is

no underlying merit to the ineffectiveness claim and the claim must fail.”

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).

     Martin claims that the trial court did not take into account his

“rehabilitative needs” and did not state the reasons for imposing a sentence

that is “so high.”     Brief for Appellant, at 19.     However, the trial court

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imposed a sentence within the standard range of the sentencing guidelines,

a fact which Martin admits. Martin incorrectly asserts that the trial court did

not indicate its reasons for the length of the sentence.     Rather, the trial

court stated that aggravating factors included Martin’s gratuitous use of

violence and a particularly vulnerable victim.    Additionally, the trial court

took into account the evidence presented, a pre-sentence report, the nature

and circumstances of the crime, Martin’s background, and the relevant

sentencing guidelines. The trial court therefore weighed the relevant factors

and imposed a reasonable sentence within the guidelines.

        Further, beyond making a general reference to “rehabilitative needs,”

Martin provides no details to indicate what sort of rehabilitative needs he has

nor how they should be addressed. Ultimately, Martin fails to provide any

material facts to support the claim that his sentence was excessive.        As

there is no underlying merit to this ineffectiveness claim and trial counsel

therefore had a reasonable basis not to file a post-sentence motion, the trial

court appropriately dismissed the claim without an evidentiary hearing.

        The ruling of the PCRA court is supported by the record and is free of

legal error. Therefore, we affirm the PCRA court’s order issued August 18,

2014.

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/7/2015




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