J-S75040-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLAVNIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KADEEM COOK,

Appellant No. 1530 EDA 2014

Appeal from the PCRA Order entered April 17, 2014,

in the Court of Common Pleas of Philadelphia County,

Criminal Division, at No(s): CP-51-CR-0002931-2010, 

CP-51-CR-0002932-2010 & CP-51-CR-0005353-2010

BEFORE: ALLEN, LAZARUS, and MUNDY, JJ.

MEMORANDUM BY ALLEN, J.: FILED DECEMBER 04, 2014

Kadeem Cook (“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 and procedural history 

as follows:

On October 7, 2009, Danielle Dickson took Regional Rail 

to the Fern Rock Transportation Center (“Fern Rock”) in 

North Philadelphia. At approximately 10 p.m., Ms. Dickson 

was walking from the train to her bus stop when 

[Appellant] approached her and pressed a gun to her neck. 

[Appellant] told her to “drop everything, keep walking.” 

Ms. Dickson complied, dropping her purse and backpack to 

the ground and walking straight ahead. [Appellant] 

grabbed the items and left, at which point Ms. Dickson ran 

to a subway cashier for help. Police interviewed Ms. 

Dickson both at Fern Rock and later at the police station, 

and she described the man who robbed her.
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On October 8, 2009, Kyle Goldstein was sitting on a 

bench at Fern Rock, waiting to take Regional Rail home. 

At approximately 11:50 p.m., Mr. Goldstein felt a gun 

pressed to the back of his head. When he turned his head 

to the side, [Appellant] hit him in the eye with the butt of 

the gun, then told him to empty his pockets. Mr. Goldstein 

complied while [Appellant] held him at gunpoint. After Mr. 

Goldstein had emptied his pockets and left their contents 

on the bench, along with his backpack and computer, 

[Appellant] pushed him onto the train tracks and told him 

to run. Mr. Goldstein complied and ran down the tracks, 

then hid beneath a platform. After [Appellant] disappeared 

from view, Mr. Goldstein climbed to the mezzanine level 

for help. When police arrived, he described both 

[Appellant] and the gun, noting to police that the gun had 

a "very long barrel." He then sought medical attention for 

his injuries.

On October 10, 2009, at approximately 11 p.m., Officer 

Matthew Hagy received information regarding a point-ofgun robbery that had just occurred at the intersection of 

Fourth Street and Champlost Street. One block away from 

the robbery, Officer Hagy encountered [Appellant] and two 

other males, and did a pat down and frisk of the three 

men. [Appellant] had a long-barreled BB gun tucked into 

the waistband of his pants, which Officer Hagy confiscated. 

When a flash description of the robbery suspects came 

over Officer Hagy's radio, he realized the three men he had 

stopped did not match the description, and released them. 

Officer Hagy brought the BB gun to the police station, 

where it remained in a safe box until December 3, 2009. 

On October 17, 2009, Ms. Dickson, the victim of the 

October 7, 2009 robbery, checked the online account of 

her cell phone, which had been in her stolen purse, to see 

if there was any recent activity. Ms. Dickson's cell phone 

was configured to automatically back up photos taken with 

her cell phone to an online album that she could view on 

her computer. While viewing her online album of photos 

taken with her cell phone, Ms. Dickson discovered two 

photos of a man holding a gun. She immediately 

recognized the person in the photos as her assailant, and 

recognized the long-barreled gun that was used to rob her. 

The person depicted in the photos was [Appellant]. She 
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contacted detectives and provided them with copies of the 

two photographs. 

On November 10, 2009, Bonnie Riley was [in] Fern 

Rock, walking from Regional Rail to her car, which she 

kept parked at the station. At approximately 5:45 p.m., 

as Ms. Riley reached her minivan and began loading 

shopping bags into the backseat, [Appellant] grabbed her 

from behind. Ms. Riley screamed, at which point 

[Appellant] put a gun to her head and repeatedly 

demanded her car keys. As Ms. Riley attempted to give 

[Appellant] her keys, he hit her in the forehead with the 

butt of the gun and then punched her in the face. Ms. 

Riley fell to the ground and began crawling away from 

[Appellant]. [Appellant] attempted to get the van's sliding 

door to close, then climbed into the driver's seat of the 

van. As a train pulled into the Fern Rock station and the 

parking lot began to fill with people, [Appellant] fled, 

leaving the van and the victim behind. When police 

arrived, Ms. Riley described her attacker, then went to the 

police station and filed a report, before seeking medical 

attention for her injuries. 

On November 19, 2009, Crystal Valentine, Associate 

Director of Delta Community Supports ("DCS"), carried out 

a search of [Appellant’s] DCS-provided apartment. Ms. 

Valentine found a second BB gun in [Appellant’s] dresser 

drawer, which she confiscated. 

On December 3, 2009, Officer Hagy saw the 

photographs taken by Ms. Dickson's cell phone air on the 

local news, and recognized both [Appellant] as the man he 

stopped on October 10, 2009, and the long-barreled BB 

gun he had confiscated and placed in the station's safe 

box. Officer Hagy alerted his Sergeant to the situation. 

On December 4, 2009, police showed Bonnie Riley and 

Kyle Goldstein a photo array including [Appellant]. Each 

victim identified [Appellant] as the man who robbed and 

assaulted them. On February 3, 2010, Bonnie Riley and 

Kyle Goldstein attended a lineup and both "immediately" 

recognized and identified [Appellant] as their attacker. 

[Thereafter, police arrested Appellant for the series of 

robberies.] 
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Trial Court Opinion, 7/22/14, at 2-5 (citations to notes of testimony 

omitted).

Following a bench trial on November 2, 2010, the trial court found 

Appellant guilty of three counts of robbery, two counts of aggravated 

assault, one count of attempted robbery of a motor vehicle, and three 

counts of possessing an instrument of crime. On January 6, 2011, the trial 

court imposed an aggregate sentence of eight to twenty years of 

imprisonment. Appellant filed a timely appeal to this Court. In an 

unpublished memorandum filed on March 13, 2012, we affirmed Appellant’s 

judgment of sentence. Commonwealth v. Cook, 47 A.3d 1243 (Pa. Super. 

2012). Appellant did not file a petition for allowance of appeal to our 

Supreme Court.

On June 8, 2012, Appellant filed a pro se PCRA petition. The PCRA 

court appointed counsel, and, on May 25, 2013, PCRA counsel filed an 

amended petition. In his amended petition, Appellant asserted that trial 

counsel was ineffective for failing to pursue and/or present an alibi defense. 

On March 7, 2014, the PCRA court issued Pa.R.A.P. 907 notice of intent to 

dismiss Appellant’s PCRA petition without a hearing. Appellant did not file a 

response. By order entered April 17, 2014, the PCRA court dismissed 

Appellant’s amended PCRA petition. This timely appeal followed. Both 

Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

Appellant raises the following issue:
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I. Did [Appellant’s] PCRA Petition present sufficient 

evidence of an alibi defense for the petition to have been 

granted or for an evidentiary hearing to be held?

Appellant’s Brief at 8.

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. Moreover, a PCRA court may decline to 

hold a hearing if it determines that a petitioner’s claim is patently frivolous 

and is without a trace of support either in the record or from other evidence. 

Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001).

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 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. 

Johnson, 966 A.2d at 532. “Generally, counsel’s performance is presumed 

to be constitutionally adequate, and counsel will only be deemed ineffective 
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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).

Appellant asserts that trial counsel was ineffective for failing to pursue 

his claim of an alibi defense with regard to the robbery of Ms. Dickson. 

According to Appellant, prior to trial he informed trial counsel that he was at 

school from 6:30 p.m. to 10:00 p.m., on the evening when Ms. Dickson was 

robbed. In support of this claim, Appellant attached documents which 

allegedly demonstrated his attendance at the Orleans Technical Institute.

“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 
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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 

A.3d 282, 316 (Pa. 2010) (citation omitted). Here, the PCRA court found 

that Appellant’s ineffectiveness claim failed for two reasons:

First, [Appellant’s] proffered evidence failed to establish 

an alibi. The records of the Orleans Technical Institute 

submitted by [Appellant] only purported to show that 

[Appellant] was present at a class on October 7, 2009, 

that was scheduled to begin at 6:30 p.m. and was 

scheduled for 31⁄2 hours. No records were submitted to 

show when class actually ended that day or when 

[Appellant] left the class. In addition, [Ms. Dickson] 

testified at trial that the October 7 robbery occurred 

“around 10” and the police report of the robbery reported 

the time of the occurrence to be 10:10 p.m. [Appellant] 

proffered no evidence to suggest that [he] could not have 

gotten to the scene of the robbery from the school in the 

allotted time. 

Second, the evidence conclusively establishes that 

[Appellant] could not have been prejudiced by the alleged 

failure of trial counsel to investigate and present his 

proffered alibi. That alibi, even if believed, only pertained 

to the robbery of October 7, 2009, and was irrelevant to 

the robberies on October 8, 2009, and November 10, 

2009. Notably, the victims of all three robberies positively 

identified [Appellant] as the perpetrator of the robberies. 

As the Superior Court concluded in its decision affirming 

[Appellant’s] conviction on direct appeal: “The underlying 

facts of the three [robberies] include such similarities that 

one would tend to prove the identity of [Appellant] as the 

perpetrator of the other. The three robberies share 

remarkable similarities, evidencing a pattern of conduct 

and common relationship among the offenses.” [Cook, 

unpublished memorandum at 6.]

More importantly, the independent evidence that 

[Appellant] committed the October 7, 2009 robbery was 
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overwhelming. Unfortunately for [Appellant], Ms. Dickson, 

the victim of the October 7 robbery, had configured her 

cell phone, which was stolen in the robbery, to 

automatically post any photographs taken with that phone 

to an online album. [Appellant], apparently thinking 

himself to look impressive with a weapon, snapped two 

photographs of himself [using] the stolen phone, which 

depicted [him] holding the distinct long-barreled gun used 

in the robbery. When Ms. Dickson reviewed her online 

album, she immediately recognized both [Appellant] and 

his gun from the night of the robbery. This was the same 

gun that was seized from [Appellant] by police on October 

10th, during an unrelated robbery investigation. All of this 

conclusively established [Appellant’s] guilt of the October 7 

robbery.

Accordingly, the record establishes that [Appellant’s] 

proffered evidence failed to establish an alibi, and that 

[trial] counsel’s alleged failure to investigate and present 

such evidence could not have prejudiced [Appellant]. 

Therefore, [Appellant’s] claim that counsel was 

constitutionally deficient in her representation of 

[Appellant] was properly rejected.

PCRA Court Opinion, 7/22/14, at 6-8 (citations omitted).

Our review of the record supports the PCRA court’s conclusions. When 

a PCRA petitioner raises a claim of ineffectiveness, he or she must set forth 

an offer to prove at an appropriate hearing facts upon which a reviewing 

court can conclude that trial counsel may have been ineffective. 

Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa. 1981). Although 

Appellant attached certain documents to his amended PCRA petition, the 

PCRA court concluded that they fell short of establishing a genuine issue of 

material fact as to whether Appellant could have availed himself of an alibi 

defense. Additionally, as found by the PCRA court, given the overwhelming 
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independent evidence that Appellant committed the October 7

th robbery, 

Appellant cannot establish how he was prejudiced by trial counsel’s 

perceived ineffectiveness. Travaglia, supra.

In sum, because Appellant failed to raise a genuine issue of material 

fact regarding his claim of trial counsel’s ineffectiveness, the PCRA court 

properly dismissed Appellant’s amended PCRA petition without a hearing. 

Jordan, supra.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/4/2014