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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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-51-CR-1107251-2004 

CP-51-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 his petition brought 

pursuant to the Post Conviction Relief Act (“PCRA”).2 We affirm. 

 The PCRA court opinion sets forth the relevant facts and procedural 

history of this case as follows: 

On June 14, 2004, the [victims], Braheem Golphin and

Michael Mayberry, were sleeping in Mr. Golphin’s residence 

located at 838 North 43rd Street, Philadelphia, 

Pennsylvania. At approximately [4:07 a.m.], Mr. Golphin 

____________________________________________ 

1 We note Appellant’s first name is variously spelled as “Laurenn” and 

“Lauren” throughout the certified record. 

2

 42 Pa.C.S.A. §§ 9541-9546
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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 right 

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, while the 

other male, co-defendant Keon Sloan, was standing over

the bed. Mr. Mayberry observed a third male, Appellant, 

sitting in the hallway closet next to Mr. Golphin’s bedroom.

Elijah Miller subsequently made eye contact with Mr. 

Mayberry, raised his gun toward Mr. Mayberry and began 

shooting. Sloan, then, turned the gun on Mr. Golphin and 

shot at him until the gun was emptied. During this time, 

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 the gun. 

Another one of Mr. Mayberry’s attackers walked in, stood 

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 two 

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 their 

street names of “Laj,” “Hove,”1 and “Pony”. Hove, later 

identified as [Appellant], was identified by both...Mr. 

Mayberry and Mr. Golphin, and arrested on June 17, 2004. 

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, Appellant was 

sentenced to 331⁄2 to 67 [years’] incarceration.
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On [November 27, 2007], the Pennsylvania Superior Court 

affirmed Appellant’s conviction. On May 23, 2008, 

[Appellant] filed [his first] pro-se petition under the 

[PCRA]. On June 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], Appellant, 

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 Court.... On 

January 23, 2013, the Superior Court remanded the case 

for an evidentiary hearing to resolve the outstanding

issues concerning competing factual contentions regarding 

the availability of Appellant’s alibi witness at the time of 

trial. An evidentiary hearing pursuant to the Superior 

Court’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...on 

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 ready, 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 her 
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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. Appellant concludes trial 

counsel was ineffective for failing to call Ms. Lynn as an alibi witness, and 

this Court should reverse the PCRA court’s order denying relief and grant 

Appellant a new trial. We disagree. 

 Our standard of review of the denial of a PCRA petition is limited to 

examining whether the evidence of record supports the court’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 court 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 

determination, 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 required to make the 

following showing: (1) the underlying claim is of arguable merit; (2) counsel 
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had no reasonable strategic basis for his action or inaction; and, (3) but for 

the errors and omissions of counsel, there is a reasonable probability that 

the outcome of the proceedings would have been different. 

Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999). 

The failure to satisfy any prong of the test for ineffectiveness 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 testimony 

prejudiced Appellant so as to deny him a fair trial. A 

defendant must establish prejudice by demonstrating that 

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 the 

alleged witnesses indicating availability and willingness 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 follows: 

Although Appellant maintains that Ms. Lynn was ready, 

willing and able to testify as an alibi witness at his trial, 

the testimony of Appellant’s trial counsel, at the 

evidentiary hearing, as well as Ms. Lynn’s actions and 
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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. Keaney 

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. Keaney 

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 report 

from the investigator, he demonstrated his intention to call 

Ms. Lynn as a witness by notifying the Commonwealth that 

he had a potential alibi witness. 

Subsequently, Mr. Keaney had a conversation with Ms. 

Lynn on the first day of trial regarding her prospective 

testimony. Notwithstanding the slight deviation from the 

story she relayed in the investigator’s report, Mr. Keaney 

still intended to call her as a witness in the trial and did so 

on October 5, 2005, when she failed to appear. Contrary 

to Appellant and Ms. Lynn’s testimony at the evidentiary 

hearing that Mr. Keaney did not call Ms. Lynn as an alibi 

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. Keaney to 

conclude that Ms. Lynn’s testimony would hurt Appellant’s 

case rather than bolster it. Mr. Keaney made all efforts to 

get Ms. Lynn to testify, however, Ms. Lynn’s inconsistent 

stories and her failure to appear on the day she was called 

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 ineffective 

assistance of counsel. 

(PCRA Court Opinion at 7-8). Our review of the record confirms the PCRA 
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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 testify 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 witness the 

following day because Ms. Lynn changed her story yet again. In her newest 

version of events, Ms. Lynn could not adequately account for Appellant’s 

whereabouts throughout the night of the incident. Trial counsel had a 

reasonable, strategic basis for ultimately deciding not to call Ms. Lynn as an 

alibi witness. See Kimball, supra. Trial counsel proceeded in a manner 

designed to effectuate his client’s interests. Thus, Appellant failed to satisfy 

the three-prong test for ineffective assistance of counsel. See id. 

Accordingly, we affirm the order dismissing Appellant’s PCRA petition. 

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/5/2014