J-S43014- 14

_____________________________________________ *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 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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. LAURENN HARVIN Appellant No. 2521 EDA 2013

Appeal from the PCRA Order August 16 , 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

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- CR -1107251-2004

CP

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- CR -1107261-2004

BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J .* MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 05, 2014 Appellant, Laurenn Harvin, 1 appeals from the order entered in the Philadelphia County Court of Common Pleas, denying h is petition brought pursuant to the Post Conviction Reli ef Act (“PCRA”). 2 We affirm. The PCRA court opinion sets forth the relevant facts an d procedural history of this case as follows:

On June 14, 2004, the [victims], Braheem Golphin and Michael Mayberry, were sleeping in Mr. Golphin’s reside nce located at 838 North 43 rd Street, Philadelphia, Pennsylvania. At approximately [4:07 a.m.], Mr. Gol phin

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1 We note Appellant’s first name is variously spelled as “Laurenn” and “Lauren” throughout the certified record.

2 42 Pa.C.S.A. §§ 9541- 9546J-S43014- 14

- 2 - was awakened by three men standing in his bedroom demanding money. After telling the men that he did not have any money, Mr. Golphin was shot once in the righ t shinbone by co-defendant, Elijah Miller. Due to the noise emanating from Mr. Golphin’s room, Mr. Mayberry was awakened. He walked towards the room, observed one male, Miller, at the foot of Mr. Golphin’s bed, whil e the other male, co-defendant Keon Sloan, was standing over the bed. Mr. Mayberry observed a third male, Appell ant, sitting in the hallway closet next to Mr. Golphin’s bed room. Elijah Miller subsequently made eye contact with Mr. Mayberry, raised his gun toward Mr. Mayberry and beg an shooting. Sloan, then, turned the gun on Mr. Golphin and shot at him until the gun was emptied. During this t ime, as Mr. Mayberry attempted to take cover in his bedroom , he was shot by one of the assailants. Mr. Mayberry was able to overtake one of the men and strip him of th e gun. Another one of Mr. Mayberry’s attackers walked in, st ood over Mr. Mayberry, and shot him multiple times. Mr. Mayberry was shot a total of thirteen times throughout his entire body. Mr. Mayberry remained in a coma for tw o months following the incident and is now permanently disabled. All of the assailants were known to Mr. Golphin from the neighborhood; they were originally identified by th eir street names of “Laj,” “Hove,”1 and “Pony”. Hove, later identified as [Appellant], was identified by both...M r. Mayberry and Mr. Golphin, and arrested on June 17, 2 004. 1 At times spelled “Hoag” instead of “Hove” in the notes of testimony.

* * * On October 7, 2005, Appellant...was found guilty of Attempted Murderふ18 Pa.C.S.A. § 2502, Aggravated Assaultふ18 Pa.C.S.A. § 2702, Burglaryふ18 Pa.C.S.A. § 3502, Violation of Uniform Firearms Actふ18 Pa.C.S.A. § 6106, Possession of an Instrument of Crimeふ18 Pa.C.S.A. § 907, and Criminal Conspiracyふ18 Pa.C.S.A. § 903, following a jury trial. On January 31, 2006, Appel lant was sentenced to 331⁄2 to 67 [years’] incarceration.J-S43014- 14

- 3 - On [November 27, 2007], the Pennsylvania Superior Co urt affirmed Appellant’s conviction. On May 23, 2008, [Appellant] filed [his first] pro- se petition under the [PCRA]. On Ju ne 12, 2009, Appellant’s right to file an allocatur

[petition] to the Pennsylvania Supreme Court was reinstated. The Pennsylvania Supreme Court denied Appellant’s petition for an allowance of appeal on November 24, 2009. On February 27, [2010], Appella nt , thereafter, presented his supplemental PCRA petition. On April 18, 2011, [the PCRA court] entered an order dismissing Appellant’s PCRA petition. On [May 6, 2011] , Appellant filed a timely appeal to the Superior Cou rt.... On January 23, 2013, the Superior Court remanded the ca se for an evidentiary hearing to resolve the outstanding issues concerning competing factual contentions regarding the availability of Appellant’s alibi witness at the t ime of trial. An evidentiary hearing pursuant to the Super ior C ourt’s ruling was held before the Honorable Karen Shreeves-Johns on August 16, 2013. Following the evidentiary hearing, th[e] [c]ourt dismissed...Appellant ’s PCRA petition. Appellant filed a notice of appeal...o n September [3], 2013. (PCRA Court Opinion, filed October 31, 2013, at 1-3) (internal citations omitted). Subsequently, Appellant voluntarily filed a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant raises the following issue for our review:

WAS THE TRIAL DEFENSE COUNSEL INEFFECTIVE IN FAILING TO CALL THE ALIBI WITNESS, NICOLE LYNN? (Appellant’s Brief at 2). Appellant claims his girlfriend, Nicole Lynn, was re ady, able, and willing to testify during trial that Appellant spent the night with her on June 14, 2004. Appellant asserts trial counsel informed Ms. Lynn that herJ-S43014- 14

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testimony was not necessary, and that she should go home. Appellant maintains there is a reasonable probability the jury would not have convicted Appellant if the jury had heard this testimony. App ellant concludes trial counsel was ineffective for failing to call Ms. Lynn a s an alibi witness, and this Court should reverse the PCRA court’s order denyin g relief and grant Appellant a new trial. We disagree. Our standard of review of the denial of a PCRA peti tion is limited to examining whether the evidence of record supports the co urt’s determination and whether its decision is free of legal error. Commonwealth v. Wright , 935 A.2d 542 (Pa.Super. 2007). This Court grants great deference to the findings of the PCRA cour t if the record contains any support for those findings. Commonwealth v. Boyd , 923 A.2d 513 (Pa.Super. 2007), appeal denied , 593 Pa. 754, 932 A.2d 74 (2007). If the record supports a post- conviction court’s credibility

de termination, it is binding on the appellate court. Commonwealth v. Knighten , 742 A.2d 679, 682 (Pa.Super. 1999), appeal denied , 563 Pa. 659, 759 A.2d 383 (2000). The law presumes counsel has rendered effective assistance.

Commonwealth v. Gonzalez , 858 A.2d 1219, 1222 (Pa.Super. 2004), appeal denied , 582 Pa. 695, 871 A.2d 189 (2005). When asserting a claim of ineffective assistance of counsel, the petitioner is r equired to make the following showing: (1) the underlying claim is of ar guable merit; (2) counselJ-S43014- 14

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had no reasonable strategic basis for his action or inactio n; and, (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been differe nt. Commonwealth v. Kimball , 555 Pa. 299, 312, 724 A.2d 326, 333 (1999). The failure to satisfy any prong of the test for ineff ectiveness will cause the

claim to fail. Gonzalez , supra . To establish counsel’s ineffectiveness for failure to call a witness, a petitioner must demonstrate:

(1) the witness existed; (2) the witness was available; (3) counsel was informed of the existence of the witness or counsel should otherwise have known of [her]; (4) the witness was prepared to cooperate and testify for Appellant at trial; and (5) the absence of the testimo ny prejudiced Appellant so as to deny him a fair trial. A defendant must establish prejudice by demonstrating th at he was denied a fair trial because of the absence of the testimony of the proposed witness. Further, ineffectiveness for failing to call a witness will not be found where a defendant fails to provide affidavits from t he alleged witnesses indicating availability and willingne ss to cooperate with the defense. Commonwealth v. O'Bidos , 849 A.2d 243, 249 (Pa.Super. 2004), appeal denied , 580 Pa. 696, 860 A.2d 123 (2004) (quoting Commonwealth v. Khalil , 806 A.2d 415, 422 (Pa.Super. 2002), appeal denied , 572 Pa. 754, 818 A.2d 503 (2003)) (internal citations omitted). Instantly, the PCRA court addressed Appellant’s issue as fol lows: Although Appellant maintains that Ms. Lynn was ready, willing and able to testify as an alibi witness at his t rial, the testimony of Appellant’s trial counsel, at the evidentiary hearing, as well as Ms. Lynn’s actions andJ-S43014- 14

- 6 - contradictions, suggests the exact opposite. This [c]ourt found [defense counsel] Mr. Keaney’s testimony more credible because from the inception of the case Mr. Kean ey has exemplified his efforts to call Ms. Lynn as an alibi witness. Mr. Keaney first learned about Ms. Lynn’s existence as an alibi witness from Appellant. Mr. Keane y acted as any prudent attorney would by hiring an investigator to ascertain the viability of Ms. Lynn as an alibi witness. Once Mr. Keaney received a favorable r eport from the investigator, he demonstrated his intention to call Ms. Lynn as a witness by notifying the Commonwealth tha t he had a potential alibi witness. Subsequently, Mr. Keaney had a conversation with Ms. Lynn on the first day of trial regarding her prospecti ve testimony. Notwithstanding the slight deviation from the story she relayed in the investigator’s report, Mr. Kea ney still intended to call her as a witness in the trial and did so on October 5, 2005, when she failed to appear. Cont rary to Appellant and Ms. Lynn’s testimony at the e videntiary hearing that Mr. Keaney did not call Ms. Lynn as an al ibi witness because he no longer needed her testimony, Mr. Keaney asked this [c]ourt for a continuance for the sole purpose of locating his alibi witness. Once he spoke to Ms. Lynn, Mr. Keaney discovered that she had once again changed her story by stating that she and Appellant slept in separate rooms on the night of the incident. It would have been reasonable for Mr. Kean ey to conclude that Ms. Lynn’s testimony would hurt Appellant ’s case rather than bolster it. Mr. Keaney made all eff orts to get Ms. Lynn to testify, however, Ms. Lynn’s inconsisten t stories and her failure to appear on the day she was cal led to testify demonstrate that she was not ready, willing , and able to testify, and as such, Mr. Keaney’s decision [not to] call her as a witness was reasonable. Because this [c]ourt found that Mr. Keaney’s decision not to call Ms. Lynn as a trial witness was reasonable, Appellant has failed to establish his claim of ineffecti ve assistance of counsel. (PCRA Court Opinion at 7-8). Our review of the reco rd confirms the PCRAJ-S43014- 14

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court’s findings. In light of the applicable scope and standard of review, we accept the PCRA court’s credibility determination. See Boyd, supra; Knighten, supra . Ms. Lynn was not ready, willing, and able to testif y when defense counsel called her as a witness on October 5, 2005. See O’Bidos,

supra . Further, defense counsel did not call Ms. Lynn as a w itness the following day because Ms. Lynn changed her story yet aga in. In her newest version of events, Ms. Lynn could not adequately account for Appellant’s whereabouts throughout the night of the incident. Tr ial counsel had a reasonable, strategic basis for ultimately deciding not t o call Ms. Lynn as an

alibi witness. See Kimball, supra . Trial counsel proceeded in a manner designed to effectuate his client’s interests. Thus, Appe llant failed to satisfy the three-prong test for ineffective assistance of counsel

. See id.

Acco rdingly, we affirm the order dismissing Appellant’s PC RA petition.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/5/2014