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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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

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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 follo ws:

On June 7, 2007, [at] approximately 10:00 PM, [the victim] resided at 819 Rittenhouse Street, Philadelphi a, PA and was asleep in her bedroom when she was awakened by Appellant and another male. [The victim] testifie d that Appellant was holding a weapon and ordered her to tu rn 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 co rd and tied her to the bedpost. He similarly tied [the victi m’s] feet with an extension cord to the base of the bed. [The victim] asked Appellant what he wanted and he responde d that he wanted money. Shortly thereafter, Appellan t pulled down the shorts [the victim] was wearing, climb ed on top of her, and put his penis into her anus and int o her vagina. After Appellant raped [the victim,] he loca ted herJ-S62009- 14

- 2 - pocketbook, retrieved her ATM card, and coerced [the victim] into telling him the PIN number. He then ask ed her: “you ever have a shotgun up your ass?”, at which point [the victim] felt a cold metal object touch her a nus. Although [the victim] did not see or hear the other male in the room, she heard Appellant state: “Don’t say nothin g. She know who you are. . . . Yeah, I got my boy her e. 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 [Detecti ve] Vasaturo and she testified that Appellant was a friend of her nephew and that Appellant resided in her home fo r several weeks prior to the rape. She was unambiguous in her identification of Appellant as her assailant. [Th e victim] also told Detective Vasaturo that [Appellant] t ook her ATM card. [The victim] was then transported to th e Episcopal Hospital for treatment. Officer James Owens took custody of the clothing [the victim] was wearing a t the time of the incident and the sexual assault evide nce collection kit which was used by hospital personnel durin g [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 th e 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 we re recovered from the rear bedroom where he stayed while residing in [the victim’s] home. Also recover[ed] was t he wire which was used to restrain [the victim] during the rape. This physical evidence was also turned over to th e Police Criminalistics Laboratory. Police Officer Laura Hammond testified that on June 18 , 2007, Appellant came into her office and stated that h e needed to give a DNA sample in reference to an inciden t that happened with his girlfriend. Appellant’s DNA sa mpleJ-S62009- 14

- 3 - 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 tha t [two] ATM withdrawals of [$205.50 and $201.50] were made from her account[s] on June 8, 2007. [The victi m] neither made nor authorized the withdrawals. In defense, Appellant testified that shortly after he met [the victim,] they had dinner together and upon retu rning to [the victim’s] home, they began a sexual relation ship. He stated that after he assisted [the victim] in retrie ving 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, watc hed a movie, and then he and [the victim] engaged in anal sex. Appellant stated that after having sex with [the victi m], Appellant explained to [her] that he had a girlfrie nd who was becoming suspicious and that his girlfriend had problems with him living at [the victim’s] house. A fter their discussion Appellant left [the victim’s] house. When he returned the next day he observed police outside an d at some point later [the victim’s] nephew told [Appellan t] 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 th at he went to the police station and submitted a DNA sample i n an effort to clear his name. Appellant denied raping [theJ-S62009- 14

- 4 - victim] and denied tying her and doing anything agai nst her will. PCRA Court Opinion, 10/31/12, at 3-6 (citations and f ootnote omitted). 1 On April 4, 2008, a jury convicted Appellant of rap e, burglary, robbery, and related offenses. On July 15, 2008, the trial cou rt sentenced him to an aggregate term of twenty to forty years of imprisonme nt, and a consecutive ten-year probationary term. Appellant filed a time ly 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 Supr eme 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

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1 The victim actually testified that she “didn’t see or hea r 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.J-S62009- 14

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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 Appellan t’s petition. This timely appeal followed. Both Appellant and the PCR A court have complied with Pa.R.A.P. 1925. Appellant asserts that the PCRA court erred in dismissi ng his PCRA petition because he raised two claims that were of ar guable 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 ineffecti ve for failing to call Appellant’s girlfriend as a wi tness, and that “the Commonwealth withheld evidence that Ap pellant could not be identified in bank videotapes as withdrawing money f rom 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 ruli ng 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 preponderan ce of the evidence that the conviction or sentence arose from one or more of th e errors enumeratedJ-S62009- 14

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in section 9543(a)(2) of the PCRA. One such error inv olves the ineffectiveness of counsel. To obtain relief under the PCRA premised on a claim t hat counsel was ineffective, a petitioner must establish by a preponder ance of the evidence that counsel's ineffectiveness so undermined the truth-det ermining process that no reliable adjudication of guilt or innocence cou ld have taken place. Id. “Generally, counsel’s performance is presumed to be constit utionally 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 inacti on; 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 error s, the result of the proceeding would have been different." Id. In assessing a claim of ineffectiveness, when it is clear that appellant has fail ed to meet the prejudice prong, the court may dispose of the claim on that basis alone, without a determination of whether the first two pro ngs have been met. Commonwealth v. Travaglia , 661 A.2d 352, 357 (Pa. 1995). Counsel cannot be deemed ineffective for failing to pursue a m eritless claim. Commonwealth v. Loner , 836 A.2d 125, 132 (Pa. Super. 2003) ( en banc ), appeal denied , 852 A.2d 311 (Pa. 2004).J-S62009- 14

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Appellant asserts that trial counsel was ineffective for f ailing to present the testimony of Appellant’s girlfriend at trial. In order to establish th at trial counsel was ineffective for failing to investigate and/o r 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 t he opportunity to demonstrate that [Lashanna] would hav e 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, th e 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 app ellate brief, within his pro se PCRA petition, he asserted that trial counsel should h ave called his girlfriend as an alibi witness. The PCRA cou rt addressed this claim,J-S62009- 14

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concluding that Appellant failed to meet his burden un der Thomas , supra . The PCRA court explained: “Here, Appellant did not p lead or demonstrate that the witness existed or was available and prepared to cooperate and testify on his behalf. Indeed, PCRA counsel indicated t hat the witness, who was not identified, was not willing to testify on Appe llant’s behalf.” PCRA Court Opinion, 10/31/12, at 9. The record supports the PCRA court’s concl usion that Appellant failed to establish his claim of ineffectiveness. Appellant’s pro se PCRA petition did not include an affidavit or certification, or even i dentify a witness. See generally , Pa.R.Crim.P. 902(A)(15). While Appellant now ide ntifies the witness to which he referred in his petition as his girlf riend, Lashanna, and claims that she could have been subpoenaed, Appellant fails to establish that the absence of her testimony “was so prejudicial as to hav e denied [him] a fair trial.” Thomas , su pra . 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 art iculate the co ntent of her proposed testimony. “Generally, an alibi is a defense that places the defend ant at the relevant time in a different place than the scene invo lved 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 , 10J-S62009- 14

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A.3d 282, 316 (Pa. 2010) (citation omitted). Appell ant utterly fails to explain how, given his own testimon y at trial, Lashanna’s testimony would have aided his defense. Thus, this claim of ineffective ness fails. Loner , supra . Appellant’s entire argument supporting his claim of ine ffectiveness involving an alleged picture of an individual withdr awing 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 MA C machine to make withdrawals from the bank account of [the victim]. Appellant sought relief because a pictur e from video surveillance of an individual making a withdrawal from an ATM machine could not be identifie d as [him]. [PCRA counsel’s] “no merit” letter claims that th e fact that [Appellant] could not be identified as makin g ATM withdrawals using the [bank] card of [the victim] wa s 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 “tri al counsel was ineffective in failing to use [the] ATM video to prov e 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 o mission.” 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 hisJ-S62009- 14

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argument

— he does no more than declare that, had trial counsel u sed 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 witho ut some showing of factual predicate upon which counsel’s assistance may be ev aluated.” Id. (citation omitted). Here, the Commonwealth never re ferenced or introduced any documentary evidence of a person withdrawing money from an ATM machine. The record indicates that the ATM at which th e 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, A ppellant’s claim amounts to no more than a “bare assert ion” that provides no basis for a conclusion that counsel was inef fective. Id. In sum, because Appellant’s claims of ineffectiveness are without merit, the PCRA court did not err in denying his peti tion. Loner , supra . We therefore affirm the PCRA court’s order denying reli ef.
Order affirmed. Judge Ott joins the memorandum. Judge Olson concurs in the result.J-S62009- 14

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/26/2014