J-S62009-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                       Appellee

                  v.

DESMOND MARTIN,

                       Appellant                  No. 2220 EDA 2012


            Appeal from the PCRA Order entered June 5, 2012,
          in the Court of Common Pleas of Philadelphia County,
          Criminal Division, at No(s): CP-51-CR-0009280-2007


BEFORE: ALLEN, OLSON, and OTT, JJ.

MEMORANDUM BY ALLEN, J.:                     FILED SEPTEMBER 26, 2014




sections 9541-46. We affirm.

     The PCRA court summarized the pertinent facts as follows:

           On June 7, 2007, [at] approximately 10:00 PM, [the
        victim] resided at 819 Rittenhouse Street, Philadelphia, PA
        and was asleep in her bedroom when she was awakened
        by Appellant and another male. [The victim] testified that
        Appellant was holding a weapon and ordered her to turn
        her head around and put her head into the pillow. When


                                                            rd and

        feet with an extension cord to the base of the bed. [The
        victim] asked Appellant what he wanted and he responded
        that he wanted money.        Shortly thereafter, Appellant
        pulled down the shorts [the victim] was wearing, climbed
        on top of her, and put his penis into her anus and into her
        vagina. After Appellant raped [the victim,] he located her
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       pocketbook, retrieved her ATM card, and coerced [the
       victim] into telling him the PIN number. He then asked

       point [the victim] felt a cold metal object touch her anus.
       Although [the victim] did not see or hear the other male in

       She know who you are. . . . Yeah, I got my boy here. He
       got a .357 Magnum on the back of your head, so you
       better not be lying to me about the numbers. . . . Yeah,

       [the victim] was able to free herself.        Fearing that
       Appellant might still be in her home, she jumped out of the
       bedroom window and onto the roof. She ran to her


          Philadelphia Police Detective Diane Vasaturo met with
       [the victim] and recorded her statement. [The victim]
       explained that she knew Appellant. She told [Detective]
       Vasaturo and she testified that Appellant was a friend of
       her nephew and that Appellant resided in her home for
       several weeks prior to the rape. She was unambiguous in
       her identification of Appellant as her assailant.     [The
       victim] also told Detective Vasaturo that [Appellant] took
       her ATM card. [The victim] was then transported to the
       Episcopal Hospital for treatment. Officer James Owens
       took custody of the clothing [the victim] was wearing at
       the time of the incident and the sexual assault evidence
       collection kit which was used by hospital personnel during

       turned the evidence over to the Police Criminalistics
       Laboratory.
       residence discovered a shirt lying on the ground near the

       frame, and a lock which was torn from the wall to the
       house. A jacket and sneakers belonging to Appellant were
       recovered from the rear bedroom where he stayed while

       wire which was used to restrain [the victim] during the
       rape. This physical evidence was also turned over to the
       Police Criminalistics Laboratory.

         Police Officer Laura Hammond testified that on June 18,
       2007, Appellant came into her office and stated that he
       needed to give a DNA sample in reference to an incident


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       was then turned over to the            Police   Criminalistics
       Laboratory for testing and analysis.


       the laboratory and examined a vulvular sample. She
       determined that the sample was positive for the presence
       of spermatozoa.    Laura Wisniewski testified that she
       received the DNA sample from Appellant and compared




          Later, [the victim] contacted her bank and learned that
       [two] ATM withdrawals of [$205.50 and $201.50] were
       made from her account[s] on June 8, 2007. [The victim]
       neither made nor authorized the withdrawals.

          In defense, Appellant testified that shortly after he met
       [the victim,] they had dinner together and upon returning

       He stated that after he assisted [the victim] in retrieving
       her stolen jewelry, [the victim] offered to give him a
       monetary reward but that he refused it and that [the
       victim] later invited him to live in her home.

          Appellant further testified that on June 7, 2007 he

       approximately 9:30 PM and that they ate pizza, watched a
       movie, and then he and [the victim] engaged in anal sex.
       Appellant stated that after having sex with [the victim],
       Appellant explained to [her] that he had a girlfriend who
       was becoming suspicious and that his girlfriend had


       he returned the next day he observed police outside and at

       that [the victim] had been raped and that she was
       suspicious of everyone.      Appellant explained that he
       discovered that the police were looking for him and that he
       went to the police station and submitted a DNA sample in
       an effort to clear his name. Appellant denied raping [the




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          victim] and denied tying her and doing anything against
          her will.

PCRA Court Opinion, 10/31/12, at 3-6 (citations and footnote omitted).1

       On April 4, 2008, a jury convicted Appellant of rape, burglary, robbery,

and related offenses. On July 15, 2008, the trial court sentenced him to an

aggregate term of twenty to forty years of imprisonment, and a consecutive

ten-year probationary term. Appellant filed a timely appeal to this Court. In

an unpublished memorandum filed on October 20, 2009, we affirmed

                                               Commonwealth v. Martin, 987 A.2d

819 (Pa. Super. 2009).          On April 27, 2010, our Supreme Court denied

                                                       Commonwealth v. Martin,

993 A.2d 900 (Pa. 2010).



appeal was still pending, he filed a pro se PCRA petition.        The PCRA court

appointed counsel, and, on December 6, 2011, after the Supreme Court had



motion to withdraw and no-merit letter pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1988) (en banc). On April 20, 2012, the PCRA court


____________________________________________


1

N.T., 3/28/08, at 50. Ostensibly, Appellant led her to believe a second
person was present so that she would not try to escape.




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petition without a hearing.     Appellant did not file a response.       By order



timely appeal followed. Both Appellant and the PCRA court have complied

with Pa.R.A.P. 1925.

      Appellant asserts that the PCRA court erred in dismissing his PCRA

petition because he raised two claims that were of arguable merit.

According to Appellant, the PCRA court should not have accepted PCRA



counsel was ineffecti



identified   in   bank   videotapes    as   withdrawing   money   from   an   ATM



      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



                                      Id. 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




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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.

Id.

adequate, and counsel will only be deemed ineffective upon a sufficient

                              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



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).


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      Appellant asserts that trial counsel was ineffective for failing to present

                                                                           at trial

counsel was ineffective for failing to investigate and/or call a witness at trial,

a PCRA petitioner must demonstrate:


        (1) the witness existed; (2) the witness was available to
        testify for the defense; (3) [trial] counsel knew of, or should
        have known of, the existence of the witness; (4) the
        witness was willing to testify for the defense; and (5) the
        absence of the testimony of the witness was so prejudicial
        as to have denied [the appellant] a fair trial.

Commonwealth v. Thomas, 44 A.3d 12, 23 (Pa. 2012) (citations omitted).



ineffectiveness because:

            There is no dispute that the [witness] in this case
         existed or that trial counsel knew or should have known of
         [the witness]. In fact there is no discussion in [PCRA

         Lashanna of Appellant[.] [Appellant] was not given the
         opportunity to demonstrate that [Lashanna] would have
         been available and willing to testify on his behalf. There
         was no evidence that a subpoena would not have secured
         the presence of witness Lashanna to testify. Further, the
         PCRA court was not given the opportunity to credit the
         testimony of Lashanna since no effort was made by
         counsel to obtain her full name, address and telephone
         number or to have her subpoenaed for court.

                    -13.

      Although Appellant does not make the claim in his appellate brief,

within his pro se PCRA petition, he asserted that trial counsel should have

called his girlfriend as an alibi witness. The PCRA court addressed this claim,


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concluding that Appellant failed to meet his burden under Thomas, supra.



that the witness existed or was available and prepared to cooperate and

testify on his behalf. Indeed, PCRA counsel indicated that the witness, who



Court Opinion, 10/31/12, at 9.

                                                         usion that Appellant failed

                                                            pro se PCRA petition did

not include an affidavit or certification, or even identify a witness.          See

generally, Pa.R.Crim.P. 902(A)(15).              While Appellant now identifies the

witness to which he referred in his petition as his girlfriend, Lashanna, and

claims that she could have been subpoenaed, Appellant fails to establish that



              Thomas, supra. Indeed, while within his brief Appellant makes



probability    that   the   outcome   of    the    proceedings   would   have   been

                                                                         ntent of her

proposed testimony.



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



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

                                                        Commonwealth v. Ali, 10

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A.3d 282, 316 (Pa. 2010) (citation omitted).      Appellant utterly fails to

explain how, given his own testimon

have aided his defense.   Thus, this claim of ineffectiveness fails.   Loner,

supra.



involving an alleged picture of an individual withdrawing money from an ATM

is as follows:

            [A]n important part of the case against [Appellant] was
         the assertion by the Commonwealth that he used the MAC
         machine to make withdrawals from the bank account of
         [the victim]. Appellant sought relief because a picture
         from video surveillance of an individual making a
         withdrawal from an ATM machine could not be identified as

         fact that [Appellant] could not be identified as making ATM
         withdrawals using the [bank] card of [the victim] was of no
         moment because the card could have been given to
         anyone. [Appellant] submits that this conclusion by his
         PCRA counsel was not sufficient grounds for not pursuing
         the claim.




                                                                 PCRA Court



conclusion that Appellant failed to meet his burden of establishing trial




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argument      he does no more than declare that, had trial counsel used the

ATM video, the outcome of the proceedings would have been different.

     Claims    of   ineffectiveness    cannot   be   raised   in   a   vacuum.

Commonwealth v. Thomas

Court will not consider claims of ineffectiveness without some showing of

                                                                           Id.

(citation omitted). Here, the Commonwealth never referenced or introduced

any documentary evidence of a person withdrawing money from an ATM



were used was located inside a food business. See N.T., 4/1/08, at 54-55.

As opined by the PCRA court, there is no evidence that such a video exists.

Thus, A

provides no basis for a conclusion that counsel was ineffective. Id.



merit, the PCRA court did not err in denying his petition. Loner, supra. We



     Order affirmed.

     Judge Ott joins the memorandum.

     Judge Olson concurs in the result.




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J-S62009-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2014




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