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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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

Desmond Martin (“Appellant”) appeals from the order denying his 

petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. 

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 

[the victim] complied, Appellant stated “you are going to 

die tonight,” and punched her in the head. Appellant

wrapped [the victim’s] hands with a telephone cord and 

tied her to the bedpost. He similarly tied [the victim’s] 

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 

her: “you ever have a shotgun up your ass?”, at which 

point [the victim] felt a cold metal object touch her anus. 

Although [the victim] did not see or hear the other male in 

the room, she heard Appellant state: “Don’t say nothing. 

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, 

I’ll be back. . . .” Appellant then went downstairs. Later, 

[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 

neighbor[‘s] home and police were called. 

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 

[the victim’s] physical examination and treatment[,] and 

turned the evidence over to the Police Criminalistics 

Laboratory. An inspection in and around [the victim’s] 

residence discovered a shirt lying on the ground near the 

rear door to [the victim’s] home, damage to the rear door 

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

residing in [the victim’s] home. Also recover[ed] was the 

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 

that happened with his girlfriend. Appellant’s DNA sample 
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was then turned over to the Police Criminalistics 

Laboratory for testing and analysis. 

Patricia Lane received [the victim’s] sexual assault kit at 

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 

and analyzed [the victim’s] vulvular sample with 

Appellant’s DNA and found [the victim’s] vulva swab 

positive for the presence of Appellant’s DNA.

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 

to [the victim’s] home, they began a sexual relationship. 

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 

returned to [the victim’s] home after work at 

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 

problems with him living at [the victim’s] house. After

their discussion Appellant left [the victim’s] house. When 

he returned the next day he observed police outside and at 

some point later [the victim’s] nephew told [Appellant] 

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 

Appellant’s judgment of sentence. Commonwealth v. Martin, 987 A.2d 

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

Appellant’s petition for allowance of appeal. Commonwealth v. Martin, 

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

On December 11, 2009, while Appellant’s petition for allowance of 

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 

denied Appellant’s petition for allowance of appeal, PCRA counsel filed a 

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 The victim actually testified that she “didn’t see or hear a second person.” 

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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issued Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s PCRA 

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

entered June 5, 2012, the PCRA court dismissed Appellant’s petition. This 

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’s assessment of “no merit” with regard to his claims that trial 

counsel was ineffective for failing to call Appellant’s girlfriend as a witness, 

and that “the Commonwealth withheld evidence that Appellant could not be 

identified in bank videotapes as withdrawing money from an ATM 

machine[.]” Appellant’s Brief at 8. We disagree.

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 

deference to the findings of the PCRA court, “but its legal determinations are 

subject to our plenary review.” 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. “Generally, counsel’s performance is presumed to be constitutionally 

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

showing by the petitioner.” 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 

probability that, but for counsel’s unprofessional errors, the result of the 

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 

the testimony of Appellant’s girlfriend at trial. In order to establish that 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). 

Appellant argues that he met his burden of establishing trial counsel’s 

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 

counsel’s] “no merit” letter regarding the girlfriend 

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. 

Appellant’s Brief 12-13.

 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. 

The PCRA court explained: “Here, Appellant did not plead or demonstrate 

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

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

was not identified, was not willing to testify on Appellant’s behalf.” PCRA 

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

The record supports the PCRA court’s conclusion that Appellant failed 

to establish his claim of ineffectiveness. Appellant’s 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 

the absence of her testimony “was so prejudicial as to have denied [him] a 

fair trial.” Thomas, supra. Indeed, while within his brief Appellant makes 

the bare assertion that had Lashanna testified, “there is a reasonable 

probability that the outcome of the proceedings would have been 

different[,]” Appellant’s Brief at 13, he does not articulate the content of her 

proposed testimony. 

“Generally, an alibi is a defense that places the defendant at the 

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

therefrom as to render it impossible for him to be the guilty party ... At the 

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

of the crime and that of the defendant’s alibi.” 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 testimony at trial, Lashanna’s testimony would 

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

supra. 

Appellant’s entire argument supporting his claim of ineffectiveness 

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 

[him]. [PCRA counsel’s] “no merit” letter claims that the 

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. 

Appellant’s Brief at 13.

The PCRA court rejected Appellant’s contention that “trial counsel was 

ineffective in failing to use [the] ATM video to prove Appellant’s innocence” 

because Appellant failed “to plead or demonstrate that such a video exists 

or, moreover, that he is prejudiced by trial counsel’s omission.” PCRA Court 

Opinion, 10/31/12, at 10. Again, the record supports the PCRA court’s 

conclusion that Appellant failed to meet his burden of establishing trial 

counsel’s ineffectiveness. Appellant fails to adequately develop his 
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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, 783 A.2d 328, 333 (Pa. Super. 2001). “This 

Court will not consider claims of ineffectiveness without some showing of 

factual predicate upon which counsel’s assistance may be evaluated.” Id. 

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

any documentary evidence of a person withdrawing money from an ATM 

machine. The record indicates that the ATM at which the victim’s debit cards 

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, Appellant’s claim amounts to no more than a “bare assertion” that 

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

In sum, because Appellant’s claims of ineffectiveness are without 

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

therefore affirm the PCRA court’s order denying relief.

 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