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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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.
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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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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2014
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