Com. v. Martin, D.

• Court: Superior Court of Pennsylvania
• Decided: September 26, 2014
• Docket: 2220 EDA 2012
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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

rd and

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 J-S62009-14

pocketbook, retrieved her ATM card, and coerced [the victim] into telling him the PIN number. He then asked

point [the victim] felt a cold metal object touch her anus. Although [the victim] did not see or hear the other male in

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,

[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

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

turned the evidence over to the Police Criminalistics Laboratory. residence discovered a shirt lying on the ground near the

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

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

-2- J-S62009-14

was then turned over to the Police Criminalistics Laboratory for testing and analysis.

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

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

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

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

he returned the next day he observed police outside and at

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

-3- J-S62009-14

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

Commonwealth v. Martin, 987 A.2d

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

Commonwealth v. Martin,

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

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

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

____________________________________________

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.

-4- J-S62009-14

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

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 was ineffecti

identified in bank videotapes as withdrawing money from an ATM

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

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

-5- J-S62009-14

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.

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

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

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).

-6- J-S62009-14

Appellant asserts that trial counsel was ineffective for failing to present

at 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).

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

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.

-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,

-7- J-S62009-14

concluding that Appellant failed to meet his burden under Thomas, supra.

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

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

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

usion that Appellant failed

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

Thomas, supra. Indeed, while within his brief Appellant makes

probability that the outcome of the proceedings would have been

ntent of her

proposed testimony.

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

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

Commonwealth v. Ali, 10

-8- J-S62009-14

A.3d 282, 316 (Pa. 2010) (citation omitted). Appellant utterly fails to

explain how, given his own testimon

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

supra.

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

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.

PCRA Court

conclusion that Appellant failed to meet his burden of establishing trial

-9- J-S62009-14

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

Court will not consider claims of ineffectiveness without some showing of

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

any documentary evidence of a person withdrawing money from an ATM

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

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

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

Order affirmed.

Judge Ott joins the memorandum.

Judge Olson concurs in the result.

- 10 - J-S62009-14

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/26/2014

- 11 -