J-S17039-15

___________________________ *Former Justice specially assigned to the Superior Court. NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. DARRELL D. GOREE Appellant No. 1640 WDA 2014

Appeal from the PCRA Order September 10, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0007569-2010

BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.* MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 1, 2015 Appellant, Darrell D. Goree, appeals from the orde r entered in the Allegheny County Court of Common Pleas, which denie d his first petition brought pursuant to the Post Conviction Relief Act (“PCRA”). 1 We affirm. The relevant facts and procedural history of this case are as follows. In January 2010, M.M. (“Victim”) was a student at t he Kaplan Career Institute, studying to be a medical assistant. On January 6, 2010, Victim had class in the morning until approximately noon. Shortly after her class, Victim boarded a bus. Appellant, who was a strange r to Victim, approached Victim, asked for her name, and asked if Victim had a boyfriend. Victim

____________________________________________ 1 42 Pa.C.S.A. §§ 9541-9546.J-S17039-15

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responded with her name and indicated that she did not have a boyfriend. Appellant then asked if Victim wanted to go to lunc h. Victim initially declined Appellant’s invitation, but after Appellan t persisted several times, Victim agreed to have lunch with him. Victim follo wed Appellant off the bus, and the two walked around together outside. At som e point, Appellant led Victim down an alleyway and toward an abandoned hou se. Victim became nervous because Appellant was significantly larger than Victim, who was only 4’10” tall and approximately ninety (90) pound s. Victim started to scream, but Appellant grabbed her wrist and pulled her into the house. Appellant led Victim to the third floor of the hous e, directed Victim to lie down on a wallboard on the floor, and removed Victi m’s clothing. Appellant stuck two fingers into Victim’s vagina, and then fo rced Victim to have sexual intercourse with him. Victim tried to scream, but Appellant stuck his sock into Victim’s mouth to quiet her. Victim bit and k icked Appellant during the
encounter. After Appellant finished having sex with Victim, he dumped Victim’s purse onto the floor and removed Victim’s wallet. Victim’s wallet contained, inter alia , a Capital One credit card. Appellant demanded th at Victim tell Appellant the pin number for the credit card, so Vi ctim supplied a fake pin number. Appellant took Victim’s wallet and left th e house. When Victim exited the abandoned house, she flagged down a woma n for help. The woman helped Victim contact the police. Victim sub sequently reported theJ-S17039-15

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incident to police and sought medical attention for her injuries. Meanwhile, Appellant attempted to make numerous tra nsactions using Victim’s credit card. At 2:06 p.m. that day, Appel lant attempted to use Victim’s credit card at an ATM on 540 East Ohio Str eet. When the transaction was declined, Appellant tried to use Vi ctim’s credit card at another ATM within walking distance at 807 Middle S treet; this transaction was also declined. Appellant made three additional attempts to remove money from the ATM at 807 Middle Street using Victi m’s credit card; each transaction was unsuccessful. At 3:20 p.m. and 3:2 2 p.m., Appellant made two successful purchases using Victim’s credit card at a Wal-Mart. Appellant made other attempts to use Victim’s credit card at Wal-Mart, but the subsequent transactions were declined. Appellant a lso tried to use Victim’s credit card at a Ross store and a Wine & Spirits st ore, but those transactions were similarly unsuccessful. Police arrested Appellant on May 13, 2010, and the Commonwealth charged Appellant with rape, sexual assault, aggrav ated indecent assault, unlawful restraint, robbery, and access device frau d. Appellant proceeded to a bench trial on August 29, 2011. At trial, the Co mmonwealth presented the following testimony/evidence, inter alia : (1) Victim’s testimony; (2) testimony from Officer Krebs, who made contact with Victim shortly after the assault; Officer Krebs testified that Victim was sh aken, sobbing, and appeared disoriented and confused; Officer Krebs re traced Victim’s steps toJ-S17039-15

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the abandoned house and contacted his supervisor to report the crime scene; (3) Victim’s medical records following the a ssault on January 6, 2010, which the court admitted by stipulation of the part ies; swabbing of Victim’s vaginal area showed the presence of seminal materia l matching Appellant’s profile; (4) testimony from Detective Boss, who int erviewed Victim at the hospital; the detective testified that Victim was s haking and terrified, with dirt and debris all over her body; Detective Boss s ubsequently spoke to a representative at Capital One and obtained Victim’s credit card statement from the day in question from the bank’s fraud inve stigation department; using Victim’s credit card statement from January 6 , 2010, Detective Boss testified about the different transactions made on that day; Detective Boss also testified that he received surveillance videos from the various locations where transactions were made on January 6, 2010, sh owing a man matching Appellant’s description making the transactions lis ted on Victim’s credit card statement; 2 and (5) testimony from Janet McFarland, a sexual a ssault nurse examiner, who examined Victim; Victim told Nurse Mc Farland what had happened with Appellant, and Nurse McFarland testif ied that Victim’s injuries were consistent with her description of the events; Nurse McFarland reported that Victim had vaginal bleeding, an abrasion to he r knee, and black

____________________________________________ 2 Detective Boss admitted that the surveillance vide o from 807 Middle Street was not useful because that video did not show the person making the transaction.J-S17039-15

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markings on her hands. Appellant presented the following testimony/eviden ce, inter alia , in his defense: (1) testimony from Janet Orr, the bank man ager at the ESB Bank located at 807 Middle Street where Appellant attemp ted to use Victim’s credit card; Ms. Orr testified that if someone uses an incorrect pin number three times, the machine retains the bank card and shreds it; (2) testimony from Detective Boss (whom the defense re-called), t hat when police executed a search warrant of Appellant’s residence, police did not recover any of Victim’s belongings; and (3) Appellant’s tes timony; Appellant testified that he already knew Victim on January 6, 2010, and they had previously engaged in sexual intercourse sometime in July 2009 ; Appellant said that when he ran into Victim on the bus on January 6, 20 10, the two made conversation and talked about “hooking up” (meaning , having sex); Appellant said he walked with Victim to the abandon ed house and they had consensual sex; when Victim asked for Appellant’s p hone number, Appellant said he could not give it to her because Appellant’ s girlfriend might find out, so Victim offered to buy Appellant another phone; V ictim gave Appellant her credit card to purchase a phone, as well as the pin number for the credit card; Appellant tried to dispense money from an ATM using Victim’s card so he could take the money to a Cricket store to purch ase a phone; when the ATM attempts were unsuccessful, Appellant used the credit card at Wal-Mart to buy a Virgin mobile phone and a Virgin phone car d; Appellant ran intoJ-S17039-15

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Victim several weeks later, and returned Victim’s c redit card; upon questioning from the court, Appellant said Victim d id not go with Appellant to purchase the phone from the Cricket store becaus e the store was too close to Appellant’s house, and Appellant’s girlfri end might see Appellant with Victim; Appellant also admitted he attempted t o purchase liquor and other items using Victim’s credit card because Appe llant took advantage of the situation. On August 30, 2011, at the conclusion of trial, th e court convicted Appellant of all counts. The court sentenced Appel lant on November 7, 2011, to five (5) to ten (10) years’ imprisonment f or rape, plus ten (10) years’ probation, and a consecutive ten (10) years’ probation for sexual assault; the court did not impose any further penal ty for the remaining convictions. Appellant timely filed post-sentence motions, which the court granted in part and denied in part on March 15, 201 2. The court granted relief solely as to Appellant’s illegal sentencing claim, agreeing that Appellant’s sexual assault sentence should have mer ged with Appellant’s rape sentence; the court denied Appellant’s challen ges to the weight of the evidence and the discretionary aspects of his sente nce. On April 5, 2012, the court entered a new sentencing order, which eli minated the sexual assault probationary sentence. Thus, the court sen tenced Appellant to five (5) to ten (10) years’ imprisonment for rape, plus ten (10) years’ probation; the court imposed no further penalty for the remain ing convictions.J-S17039-15

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This Court affirmed Appellant’s judgment of senten ce on December 11, 2012, and our Supreme Court denied allowance of app eal on August 6, 2013. See Commonwealth v. Goree , 64 A.3d 17 (Pa.Super. 2012), appeal denied , 621 Pa. 653, 72 A.3d 600 (2013). On January 17, 2014, Appellant timely filed a pro se PCRA petition. The court appointed counsel on January 28, 2014, who filed an amended PCRA peti tion on May 29, 2014. On August 14, 2014, the court issued notice of its intent to dismiss Appellant’s petition without a hearing per Pa.R.Cri m.P. 907; Appellant did not respond. The court denied Appellant’s PCRA pet ition on September 10, 2014. On October 6, 2014, Appellant timely filed a notice of appeal. On October 8, 2014, the court ordered Appellant to fil e a concise statement of errors complained of on appeal pursuant to Pa.R.A.P . 1925(b); Appellant timely complied on October 20, 2014. Appellant presents the following issues for our re view:

WAS [APPELLANT’S] CLAIM FOR RELIEF PROPERLY COGNIZABLE UNDER THE POST-CONVICTION RELIEF ACT? [3]

____________________________________________ 3 Appellant’s first issue is simply an explanation o f why Appellant’s ineffective assistance of counsel claim (raised in his second issue) is cognizable and properly preserved under the PCRA. The Commonwealth does not dispute that Appellant’s ineffectiveness o f counsel claim is cognizable under the PCRA and preserved. Appellant is eligible for relief under the PCRA if he can plead and prove his ineffe ctiveness of counsel claim. See 42 Pa.C.S.A. § 9543(a)(2)(ii) (explaining PCRA pet itioner must plead and prove his conviction or sentence resulted from, inter alia , ineffective assistance of counsel). Thus, we will give issue one no further attention.J-S17039-15

- 8 - DID THE [PCRA] COURT ABUSE ITS DISCRETION IN DENYING THE PETITION ALLEGING COUNSEL’S INEFFECTIVENESS WITHOUT A HEARING, WHERE [APPELLANT] ESTABLISHED THE MERITS OF THE CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO AND MAKE A SUFFICIENT OFFER OF PROOF IN RESPONSE TO [THE] COURT’S LIMITATION OF HIS CROSS-EXAMINATION OF DETECTIVE BOSS WITH REGARD TO THE ALLEGED VICTIM’S CREDIT LIMIT? (Appellant’s Brief at 4). Our standard of review of the denial of a PCRA peti tion is limited to examining whether the record evidence supports the court’s determination and whether the court’s decision is free of legal e rror. Commonwealth v. Ford , 947 A.2d 1251 (Pa.Super. 2008), appeal denied , 598 Pa. 779, 959 A.2d 319 (2008). This Court grants great deference to the findings of the PCRA court if the record contains any support for t hose findings. Commonwealth v. Carr , 768 A.2d 1164 (Pa.Super. 2001). A petitioner is not entitled to a PCRA hearing as a matter of right ; the PCRA court can decline to hold a hearing if there is no genuine is sue concerning any material fact, the petitioner is not entitled to PCRA relief , and no purpose would be served by any further proceedings. Commonwealth v. Hardcastle , 549 Pa. 450, 701 A.2d 541 (1997). Appellant argues Victim gave him the pin number to her credit card so Appellant could purchase a new phone. Appellant as serts that during crossexamination of Detective Boss during the Commonweal th’s case-in-chief, defense counsel attempted to elicit testimony from Detective BossJ-S17039-15

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concerning Victim’s credit limit on her credit card . Appellant explains the court interrupted defense counsel to ask where coun sel was going with his line of questioning. Defense counsel responded tha t testimony of Victim’s credit limit was relevant to show several of Appell ant’s attempted transactions with Victim’s credit card were decline d because Victim’s account had insufficient funds—not because Appellant was usi ng the wrong pin number. The court precluded defense counsel from p roceeding with this line of questioning, and counsel did not object. Appell ant maintains counsel’s failure to object resulted in this Court’s waiver o n direct appeal of Appellant’s challenge to the court’s preclusion of Detective Bo ss’ testimony. Appellant claims testimony concerning Victim’s credit limit w as essential because the case centered on Victim’s credibility, and proof th at the transactions were unsuccessful because the account had insufficient f unds (and not because Appellant used the wrong pin number) would have und ermined Victim’s credibility relative to Appellant’s robbery and acc ess device fraud convictions. Appellant contends counsel failed to lodge an appropriate objection to the court’s ruling or provide a suffic ient offer of proof to the court regarding why the testimony was so crucial. Appellant submits he had a right to explore the possibility that the credit card transactions were declined solely due to insufficient funds, which wo uld have cast doubt on Victim’s version of the events. Appellant conclude s counsel’s errors constituted ineffective assistance of counsel, and this Court must reverse theJ-S17039-15

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order denying PCRA relief and grant Appellant a new trial. 4 We disagree. The law presumes counsel has rendered effective ass istance. Commonwealth v. Gonzalez , 858 A.2d 1219, 1222 (Pa.Super. 2004), appeal denied , 582 Pa. 695, 871 A.2d 189 (2005). To prevail on a claim of ineffective assistance of counsel, a petitioner mus t show, by a preponderance of the evidence, ineffective assistan ce of counsel which, in the circumstances of the particular case, so underm ined the truthdetermining process that no reliable adjudication o f guilt or innocence could have taken place. Commonwealth v. Turetsky , 925 A.2d 876 (Pa.Super. 2007), appeal denied , 596 Pa. 707, 940 A.2d 365 (2007). The petitioner must demonstrate: (1) the underlying claim is of ar guable merit; (2) counsel had no reasonable strategic basis for his action or inaction; and (3) but for the errors and omissions of counsel, there is a rea sonable probability that the outcome of the proceedings would have been diff erent. Id. “A reasonable probability is a probability that is suf ficient to undermine confidence in the outcome of the proceeding.” Commonwealth v. Spotz , ___ Pa. ___, ___, 84 A.3d 294, 312 (2014) (quoting Commonwealth v. Ali , 608 Pa. 71, 86-87, 10 A.3d 282, 291 (2010)). “Th e petitioner bears the

____________________________________________ 4 Appellant also insists counsel was ineffective bec ause he did not ask Victim or Ms. Orr (the manager of the ESB Bank) about the credit limits reflected in Victim’s bank statements. Appellant failed to rais e this particular claim in his Rule 1925(b) statement, so it is waived. See Commonwealth v. Castillo , 585 Pa. 395, 888 A.2d 775 (2005) (holding issues no t raised in Rule 1925(b) statement will be deemed waived on appeal).J-S17039-15

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burden of proving all three prongs of the test.” Turetsky, supra at 880 (quoting Commonwealth v. Johnson , 868 A.2d 1278, 1281 (Pa.Super. 2005), appeal denied , 583 Pa. 680, 877 A.2d 460 (2005)). Significantly , “[i]f it is clear that [an a]ppellant has not demon strated that counsel’s act or omission adversely affected the outcome of the proc eedings, the claim may be dismissed on that basis alone and the court need not first determine whether the first and second prongs have been met.” Commonwealth v. Albrecht , 554 Pa. 31, 46, 720 A.2d 693, 701 (1998). Instantly, the PCRA court explained its denial of A ppellant’s PCRA petition, as follows:

Over 3 years ago, this [c]ourt was the fact-finder in a nonjury trial. The [c]ourt heard from 9 witnesses inc luding [Appellant]. The decision was guilty of all charge s. Sentencing followed as did a direct appeal to the S uperior Court of Pennsylvania. In December, 2012, our appe als [C]ourt affirmed, see , 754 WDA 2012, followed by our Supreme Court declining any further review on Augus t 6, 2013. See , 8 WAL 2013. [Appellant] sought post-conviction relief with the assistance of appointed counsel. On August 14, 201 4, this [c]ourt set forth its initial inclinations [in its Rule 907 notice order 5 ] about the claims being raised and their lack

____________________________________________ 5 In its Rule 907 notice order, the PCRA court expla ined: “Based upon a review of the entire case file, the [c]ourt feels t here are not genuine issues of any material fact and no purpose would be served by conducting any additional proceedings. It is the [c]ourt’s view, at this point, that he is not entitled to any relief as a matter of law. The rea sons for this position are a vivid memory of the facts, the implausibility of mo re cross-examination changing anything, and the inability of [Appellant] to show prejudice.” (Rule 907 Notice Order, filed 8/14/14, at 1).J-S17039-15

- 12 - of merit. On September 10, 2014, the [c]ourt dismi ssed the PCRA [petition] without a hearing. [Appellant] takes exception to that act. He claims this [c]ourt shou ld have granted him a hearing on his claim of ineffective a ssistance of counsel. [Appellant] says his trial lawyer was “ineffective” in two ways: first by not objecting t o this [c]ourt’s stopping him from [presenting] relevant evidence; Concise Statement, paragraph 18(A); and, second, by “failing to make a sufficient offer of p roof of the relevance of the evidence in response to this court ’s limiting his cross-examination of Detective Boss wi th regard to the alleged victim’s credit limit.” Id. According to [Appellant], this testimony would have raised a reasonable doubt because this evidence would have p laced a negative cast on [Victim’s] entire version of eve nts. The [c]ourt disagrees with that interpretation. As men tioned in earlier expressions by this [c]ourt, the [c]ourt be lieved the government’s main witness, [Victim]. [As stated at the conclusion of trial,] “I find the victim, although extremely gullible, to be credible. I find the story of [App ellant] to be totally incredible.” [N.T. Trial, 8/30/11, at 168- 69]. Any effort to undercut that believability with such tan gential evidence does not clear the hurdle of [Appellant] s howing prejudice. As such, his PCRA [petition] was dismis sed without any more fact finding. (PCRA Court Opinion, filed October 27, 2014, at 1-2 ). We accept the PCRA court’s reasoning. See Hardcastle, supra ; Ford, supra ; Carr, supra

. The PCRA court was the fact-finder at Appellant’s t rial and had the opportunity to assess, inter alia , Appellant’s and Victim’s credibility. The court indicated in its opinion that even if the cou rt had heard more testimony concerning Victim’s credit limit, that te stimony would not have changed the guilty verdict. Moreover, Appellant presented other evidence to sup port his theory that the transactions were unsuccessful due to insu fficient funds in Victim’sJ-S17039-15

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account, and not because Appellant used the wrong p in number. Specifically, Ms. Orr testified that the Middle Str eet ATM would have taken and shredded a credit card if the person using the card entered the wrong pin number three times. The record evidence shows Appellant attempted four unsuccessful transactions at the Middle Street ATM; the ATM did not retain or shred the credit card. Thus, the court h eard evidence to support Appellant’s theory but still found sufficient evide nce to convict Appellant. Consequently, Appellant cannot establish prejudice; and his ineffectiveness claim fails. See Spotz, supra ; Albrecht, supra ; Turetsky, supra

. Accordingly, we affirm. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/1/2015