Commonwealth v. A.D.H.

Full title: COMMONWEALTH OF PENNSYLVANIA Appellee v. A.D.H. Appellant

Court: SUPERIOR COURT OF PENNSYLVANIA

Date published: Apr 11, 2014

No. J-S22032-14 (Pa. Super. Ct. Apr. 11, 2014)

Opinion

J-S22032-14 No. 1535 MDA 2013

04-11-2014

COMMONWEALTH OF PENNSYLVANIA Appellee v. A.D.H. Appellant

MUNDY

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order August 6, 2013

In the Court of Common Pleas of Adams County

Criminal Division at No(s): CP-01-CR-0000720-2009

BEFORE: PANELLA, J., DONOHUE, J., and MUNDY, J. MEMORANDUM BY MUNDY, J.:

Appellant, A.D.H., appeals from the August 6, 2013 order denying his first counseled petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.¹ Additionally, Appellant's counsel, Thomas R. Nell, Esquire (PCRA counsel) has filed with this Court a motion to withdraw in accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and their progeny. After careful review, we affirm the PCRA court's denial of PCRA relief and grant PCRA counsel's motion to withdraw.

1 We have followed the lead of a prior panel of this Court in redacting Appellant's full name based upon his underlying convictions, his relationship to the victim, and the victim's age. Commonwealth v. A.D.H. , 53 A.3d 935, 1 (Pa. Super. 2012) (unpublished memorandum)
As discussed infra, Appellant filed a PCRA petition on June 17, 2011, requesting the PCRA court to reinstate his direct appeal rights nunc pro tunc. After our grant of that petition and subsequent affirmance of his underlying judgment of sentence on direct appeal, Appellant filed the instant petition. If a first PCRA petition merely results in the permission to file a direct appeal nunc pro tunc, "we will not consider that petition as being, for our purposes, a prior PCRA petition." Commonwealth v. Lewis, 718 A.2d 1262, 1263 (Pa. Super. 1998), appeal denied, 737 A.2d 1224 (Pa. 1999). Therefore, we will refer to the instant petition as Appellant's first counseled PCRA petition.

A prior panel of this Court summarized the relevant facts and procedural history of this case as follows.

Appellant's convictions stem from a series of incidents occurring in or around June 2008 involving his actions toward his biological daughter, K.H., who was then approximately three-and-a-half years old.

In June 2008, K.H. resided with her natural mother, her grandfather, and her step-grandmother. [] ... Appellant had partial custody of K.H. every other Thursday and Friday. On Saturday morning, June 14, 2008, after being returned from the custody of her father the night before, K.H. blurted to her step-grandmother, "Grandma, Daddy put his pee-pee in my pee-pee." When asked to repeat what she said, K.H. again claimed, "Daddy put his pee-pee in my pee-pee, and I don't want to talk about it anymore because Daddy told me and don't tell Grandma either."

K.H.'s step-grandmother reported the allegations to Child Line and the Pennsylvania State Police and took the child to a hospital for a medical examination. State Police Trooper George Kelly interviewed Appellant on June 16, 2008, and Appellant denied any improper contact.
In mid-July 2008, during a second interview between Appellant and Trooper Kelly, Appellant admitted to touching K.H. on two occasions:

Appellant claimed to the troopers that he had gone into K.H.'s bedroom and, with his hand, rubbed her naked buttocks. He claims this act sexually aroused him and he had to leave the room in order to "calm down." ... Upon further discussion, Appellant indicated that there was another time that something happened with his daughter. He claimed that in approximately April of 2008, his daughter was running late for dance class and that they ended up showering together. He confessed that while they were in the shower, he got sexually aroused and that his penis "touched his daughter" but that there was no penetration.

Later in this interview, Appellant clarified that he had an erection while in the shower with his daughter and that his penis touched his daughter's vaginal area and provided a written statement to that effect.
In a third interview in July with Trooper Kelly and Frank Donnelly, a detective from the Adams County District Attorney's Office, Appellant reaffirmed his earlier statements and elaborated that while in the shower, he held his daughter in his arms with her facing him and the tip of his erect penis touched her vaginal area. He claimed that his penis remained in that position until he ejaculated.

...
[Following trial, t]he jury found Appellant guilty of rape of a child, indecent assault of a child, and aggravated assault of a child. Appellant was sentenced to thirteen to thirty years' imprisonment on November 12, 2010. Appellant filed a notice of appeal on that same day, but this Court quashed the appeal on April 11, 2011, for failure to file a brief. On June 17, 2011, Appellant filed a [PCRA] petition, requesting reinstatement of his direct appeal rights. Appellant's petition was granted on September 8, 2011. Appellant timely appealed on September 16, 2011, and timely filed a court-ordered [Pennsylvania Rule of Appellate Procedure] 1925(b) statement.

A.D.H., supra at 1-3, 5-6 (citations and footnote omitted). On June 20, 2012, we affirmed Appellant's judgment of sentence. See id. Appellant did not file a petition for allowance of appeal with our Supreme Court.

Subsequently, on August 22, 2012, Appellant filed the instant PCRA petition, and a pre-hearing conference was held on December 27, 2012. On January 11, 2013, Appellant filed a notice of alibi defense, listing Dustin Fleming and Daniel Dougherty, II, as witnesses. Appellant requested a continuance of his scheduled March 25, 2013 PCRA hearing so that a toxicologist could review medical records pertinent to one of Appellant's issues. The PCRA court ultimately held Appellant's PCRA hearing on June 17, 2013. On August 6, 2013, the PCRA court denied Appellant PCRA relief. On August 22, 2013, this timely appeal followed.² PCRA counsel subsequently filed an application to withdraw as counsel on November 9, 2013. Thereafter, on December 19, 2013, Appellant filed a pro se brief.

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

PCRA counsel identifies, on Appellant's behalf, the following issues for our review.

1. [Appellant] gave [his] trial attorney the names, addresses, telephone numbers of persons that were willing to testify at trial to [his] attorney [sic], and [his] attorney failed to call them to testify at trial. The persons could have testified as to the hand signals given by the mother to the child witness on the stand at
trial. The persons could have testified as to [Appellant's] character as well[?]
2. [Appellant] told [his] attorney about the hand signals a[n]d [his] attorney failed to put forth a motion for mistrial or even object at trial[?]
3. [Appellant] informed [his] trial attorney that [he] was taking medicine called Atavan during the time that [he] made the confession to the police. [Appellant] told [his] trial attorney that the confession was not true, that it was not knowing and voluntary - due to the medicine. [Appellant] had asked [his] attorney to get a toxicologist to testify at a suppression hearing regarding the medicines[?]
4. [Appellant] indicated that [his] trial attorney did not get a toxicologist to testify. [Appellant's] trial attorney did not file a motion to suppress, nor did he put forth expert testimony at trial[?]
5. [Appellant] had witnesses that could testify that they were with [him] during the time of the alleged incident and [he] did not do the alleged crime. [Appellant] said that [he] had told [his] trial attorney about the witnesses, and that [trial counsel] did nothing[?]

Turner/Finley Petition at 3-4.³

3 Within counsel's Turner/Finley petition, he lists issues 1-4 explicitly. See id. at 3. Within the paragraph immediately following the outlined issues, counsel notes that "[a]t the PCRA pre-hearing conference, [Appellant] indicated that [he] had an additional issue[,]" thereafter stating Appellant's alibi assertion. Id. at 4. For purposes of this appeal, we have listed counsel's alibi issue, verbatim, as issue 5 above.

Additionally, Appellant sets forth the following issues within his pro se brief.

I. Was Appellant denied effective assistance of counsel where trial counsel failed to move for a mistrial upon being informed that the mother of the victim was providing hand signals to the victim while the victim testified from the witness stand, when testimony from P.C.R.A. witnesses indicated that hand signals had occurred, that trial counsel was informed, and that trial counsel failed to move for a mistrial?
II. Was Appellant denied effective assistance of counsel for failing to provide the Commonwealth with notice of alibi, and for failure to call alibi witnesses on his behalf at trial, when two (2) witnesses testified [during the PCRA hearing] that they were able and willing to testify for Appellant, that trial counsel was aware of them as witnesses, and trial counsel failed to call them as witnesses?

Appellant's Pro Se Brief at 5.

Preliminarily, our review of the record reveals Appellant did not raise Issues 3 and 4 within his Rule 1925(b) statement. It is well established that an appellant's failure to include a claim in his court-ordered Rule 1925(b) statement will result in a waiver of that issue on appeal. Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011); see also Pa.R.A.P. 1925(b); Commonwealth v. Doty, 48 A.3d 451, 453 n.2 (Pa. Super. 2012). Furthermore, we note that Issues 1 and 2 are encompassed within Issue I, and Issue 5 is equivalent to Issue II. Accordingly, for ease of disposition on appeal, we will address Issues I and II, raised by Appellant within his pro se brief.

We begin by noting our well-settled standard and scope of review. "On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court's findings are supported by the record and without legal error." Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied, Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). "[Our] scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the PCRA court level." Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation omitted). As the PCRA court has the opportunity to "personally observe[] the demeanor of the witnesses" during a PCRA hearing, "we expect the [PCRA] court to make [any] necessary credibility determinations." Commonwealth v. Spotz, 2014 Pa. LEXIS 167, *65 (Pa. Super. 2014) (citation and quotation marks omitted). Accordingly, "[t]he PCRA court's credibility determinations, when supported by the record, are binding on this Court." Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted) ( Spotz I ). Yet, when the PCRA court's legal conclusions are at issue, we apply a de novo standard of review. Id.

Prior to considering Appellant's arguments, we must first review PCRA counsel's request to withdraw from representation. As delineated by our Supreme Court, the requirements counsel must adhere to when requesting to withdraw include the following.

1) A "no-merit" letter by PC[R]A counsel detailing the nature and extent of his review;
2) The "no-merit" letter by PC[R]A counsel listing each issue the petitioner wished to have reviewed;
3) The PC[R]A counsel's "explanation", in the "no-merit" letter, of why the petitioner's issues were meritless[.]

Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa. 2009), quoting Finley, supra at 215. "Counsel must also send to the petitioner: (1) a copy of the "no-merit" letter/brief; (2) a copy of counsel's petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel." Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007).

[W]here counsel submits a petition and no-merit letter that do satisfy the technical demands of Turner/Finley, the court - trial court or this Court - must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief. By contrast, if the claims appear to have merit, the court will deny counsel's request and grant relief, or at least instruct counsel to file an advocate's brief.

Id. (citation omitted).

Instantly, we determine PCRA counsel has complied with the requirements of Turner/Finley. Specifically, PCRA counsel's Turner/Finley petition shows the nature and extent of counsel's review, addresses the claims Appellant raised in his PCRA petition, and determines that the issues lack merit. PCRA counsel generally discusses why Appellant's claims are without merit and notes the PCRA court's similar finding. Turner/Finley Petition at 3-6. Additionally, pursuant to Wrecks, PCRA counsel served Appellant with a copy of the no-merit letter and the petition to withdraw, advising Appellant that he had the right to proceed pro se or with privately retained counsel. Id. at 6; Proof of Service, 11/12/13. Further, Appellant has filed a pro se brief raising two issues for our consideration. Accordingly, we may proceed to conduct an independent review of the merits of Appellant's appeal.

In order to be eligible for relief under the PCRA, a petitioner must plead and prove, by a preponderance of the evidence, that his conviction or sentence arose from one or more of the errors listed within Section 9543(a)(2). Included among these errors is a claim that the petitioner's conviction or sentence arose from "[i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." Id. § 9543(a)(2)(ii). Further, to raise a meritorious PCRA claim, the issue must be neither previously litigated nor waived. Id. § 9543(a)(3).

Herein, Appellant alleges that he received ineffective assistance of counsel during his underlying jury trial. Appellant's Pro Se Brief at 5. When reviewing a claim of ineffective assistance of counsel we apply the following test, first articulated by our Supreme Court in Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987) (adopting the ineffectiveness standard set forth in Strickland v. Washington, 466 U.S. 668 (1984)).

When considering such a claim, courts presume that counsel was effective, and place upon the appellant the burden of proving otherwise. Counsel cannot be found ineffective for failure to assert a baseless claim.
To succeed on a claim that counsel was ineffective, Appellant must demonstrate that: (1) the claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) counsel's ineffectiveness prejudiced him.

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal quotation marks and citations omitted). It is well settled that "[f]ailure to establish any prong of [ Pierce 's three-prong] test will defeat an ineffectiveness claim." Commonwealth v. Birdsong, 24 A.3d 319, 330 (Pa. 2011).

Pursuant to the first prong of the Pierce test, "[a] claim has arguable merit where the factual averments, if accurate, could establish cause for relief." Commonwealth v. Stewart, 2013 Pa. Super. LEXIS 3196, *10 (Pa. Super. 2013) (en banc) (citation and quotation marks omitted). Whether the factual allegations raised by a petitioner amount to arguable merit is a legal conclusion subject to de novo review. Id.; see also Spotz I, supra.

"With regard to the second, reasonable basis prong, we do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel's decisions had any reasonable basis." Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (citation and internal quotation marks omitted). "[W]e only inquire whether counsel had any reasonable basis for his actions, not if counsel pursued the best available option." Commonwealth v. Philitin, 53 A.3d 1, 10 (Pa. 2012) (citation omitted). "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Commonwealth v. Carson, 913 A.2d 220, 226-227 (Pa. 2006), cert. denied, Carson v. Pennsylvania, 552 U.S. 954 (2007), citing Strickland, supra at 689.

Lastly, "to demonstrate prejudice, appellant must show there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different." Michaud, supra (citation omitted). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Stewart, supra at *11 (citation and quotation marks omitted). Our Supreme Court has stressed, "[i]f it is clear that [the petitioner] has not demonstrated that counsel's act or omission adversely affected the outcome of the proceedings [pursuant to the third prong of the Pierce test], the claim may be dismissed on that basis alone and the court need not first determine whether the first and second prongs [of the test] have been met." Commonwealth v. Luster, 71 A.3d 1029, 1039-1040 (Pa. Super. 2013) (internal quotation marks omitted), quoting Commonwealth v. Rios, 920 A.2d 790, 799 (Pa. 2007), appeal denied, 71 A.3d 1029 (Pa. 2013).

Initially, Appellant claims that trial counsel was ineffective for failing to request a mistrial following K.H.'s trial testimony. Appellant's Pro Se Brief at 8. Specifically, Appellant argues as follows.

Appellant was denied adequate and effective assistance of counsel when trial counsel... failed to object, motion for a mistrial or other applicable remedy when [Appellant] observed K.H. making a "thumbs up" hand gesture to her mother and step-grandmother in the gallery [during her trial testimony]. Upon informing [trial counsel], [trial counsel] then also observed this "thumbs up" hand gesture yet still failed to object, motion for a mistrial, or other applicable remedy. Therefore [sic] prejudicing the jury, violating [Appellant]'s right to a fair and impartial jury trial guaranteed to him by the Sixth Amendment of the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution.

Id.

"The decision to grant a mistrial is within the sound discretion of the trial court." Commonwealth v. Johnson, 719 A.2d 778, 787 (Pa. Super. 1998) (en banc) (citations and internal quotation marks omitted), appeal denied, 739 A.2d 1056 (Pa. 1999).

In criminal trials, declaration of a mistrial serves to eliminate the negative effect wrought upon a defendant when prejudicial elements are injected into the case or otherwise discovered at trial. By
nullifying the tainted process of the former trial and allowing a new trial to convene, declaration of a mistrial serves not only the defendant's interest but, equally important, the public's interest in fair trials designed to end in just judgments. Accordingly, the trial court is vested with discretion to grant a mistrial whenever the alleged prejudicial event may reasonably be said to deprive the defendant of a fair and impartial trial. In making its determination, the court must discern whether misconduct or prejudicial error actually occurred, and if so, ... assess the degree of any resulting prejudice. ...

Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009) (citation omitted). Granting a mistrial is an extreme remedy and "is required only when an incident is of such a nature that its unavoidable effect is to deprive the appellant of a fair and impartial trial." See Johnson, supra.

Herein, the PCRA court concluded that Appellant's first claim lacks merit for a number of reasons.

Initially, th[e PCRA c]ourt rejects as inaccurate the P.C.R.A. hearing testimony of several witnesses affiliated with [Appellant] who claimed K.H. gave a "thumbs up" to her family members on numerous occasions during her testimony. To the contrary, consistent with trial counsel's testimony, th[e PCRA c]ourt only observed a single "thumbs up" being given by K.H. at the conclusion of her [trial] testimony. During the course of trial, [the PCRA court judge] regularly and diligently surveyed the courtroom searching for any improper conduct which may have either intentionally or inadvertently affected the integrity of the testimony of any witness. In the current matter, the [PCRA c]ourt's sense of awareness was heightened as [the PCRA court] conducted a pre-trial "taint hearing" amid defense claims of improper influence on the testimony of K.H. Despite this vigilance, the [PCRA c]ourt did not observe any efforts by K.H.'s mother
or step-grandmother to influence her testimony. While it is true that K.H. often looked in the direction of her mother and step-grandmother for support, no inappropriate activity was observed. While it is also true that K.H. motioned a "thumbs up" to her mother and step-grandmother after her testimony was concluded, this action occurred in the presence of the jury and was a proper consideration of the jury when weighing the demeanor of the witness. As th[e PCRA c]ourt rejects the factual claims of [Appellant]'s P.C.R.A. witnesses as being inaccurate, counsel cannot possibly be found to be ineffective for failing to pursue a course of action which did not exist.
Importantly, even if th[e PCRA c]ourt was to accept the testimony of [Appellant]'s P.C.R.A. witnesses as credible, counsel cannot be held ineffective for failing to pursue a course of action based upon issues of which he was unaware. As previously mentioned, counsel credibly testified that the only questionable conduct he observed from K.H. was the "thumbs up" at the end of her testimony. Counsel indicated he was attentive to this issue once advised by [Appellant] of his concerns. [Appellant] corroborated counsel's lack of information on this issue as he confirmed at the P.C.R.A. hearing that he "casually" mentioned it during the trial. Counsel apparently was never informed of the observations allegedly made by others. Trial counsel cannot be faulted for failing to seek a mistrial on "casual" information which was unsupported by his own observations.
Most importantly, [Appellant]'s claim fails as he has not established prejudice. ...
Prior to trial K.H.'s testimony was scrutinized at two separate hearings conducted by two different judges. In each instance, the child's testimony was deemed credible. At trial, the child presented testimony consistent with the taped pre-trial statements to law enforcement and child advocacy personnel. The testimony was relatively brief and
was substantively limited to a single point upon which the child had, prior to trial, consistently testified. There is no credible evidence that the factual content of the child's testimony was contrived or affected in any way by outside sources during the course of trial. If the allegations alleged by [Appellant] had occurred, they would have occurred in the open courtroom in the presence of the jury where the jury could readily take their observations into account in weighing the credibility of K.H. K.H.'s testimony was not hesitant or reluctant. Rather, as defense counsel poignantly noted at [the] hearing, the conduct he observed was nothing more than a child looking for comfort. That observation is consistent with th[e PCRA c]ourt's [observation]. As th[e PCRA c]ourt finds, as a matter of fact, a paucity of any evidence that K.H.'s testimony was improperly influenced, [Appellant]'s claim must fail.

PCRA Court Opinion, 8/6/13, at 4-6 (citations and footnote omitted).

Our review of the record discloses ample support for the PCRA court's conclusion that Appellant failed to demonstrate his entitlement to PCRA relief on his first issue. Following the PCRA hearing, the PCRA court made the following finding of fact.

K.H., at the conclusion of her testimony at trial, gave a "thumbs up" signal to her mother and step-grandmother in open court in the presence of the jury and [Appellant]. At the time the signal was given[ by K.H.], K.H.'s step-grandmother was holding a stuffed animal.

PCRA Court Opinion, 8/6/13, at 2. Additionally, the PCRA court specifically found Appellant's PCRA witnesses, who testified to multiple instances of hand signals, incredible. Id. at 5. We are bound by these credibility findings because the PCRA court observed the witnesses during their hearing testimony. See Spotz I, supra. Moreover, as taint was an issue raised throughout the underlying trial, the PCRA court, then sitting as the trial court, was vigilant in observing outside forces that might sway K.H.'s testimony. PCRA Court Opinion, 8/6/13, at 4. The PCRA court concluded that "no inappropriate activity was observed." Id. Trial counsel testified likewise. N.T., 6/17/13, at 38, 40-41. Thus, Appellant failed to prove that he was prejudiced by trial counsel's failure to request a mistrial after K.H.'s testimony. See Pierce, supra; Michaud, supra. Accordingly, the PCRA court did not err in denying Appellant PCRA relief on this claim.

Within Appellant's second issue, he claims that trial counsel was ineffective for failing to call two alibi witnesses, Daniel Dougherty and Dustin Fleming. Appellant's Pro Se Brief at 5. Initially, we note that Appellant does not address Dougherty's testimony within his brief. "[A]s Appellant has ... no[t] developed any meaningful analysis, we find this issue waived for lack of development." Commonwealth v. McLaurin, 45 A.3d 1131, 1139 (Pa. Super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013); see also Pa.R.A.P. 2119. Regarding Fleming's testimony, Appellant argues that "[he] was denied effective assistance of counsel when trial counsel... failed to call Mr. Fleming to the witness stand to testify on an alibi defense, when [trial counsel] was aware of Mr. Fleming as a witness, Mr. Fleming was available, and [Mr. Fleming was] willing to testify for [Appellant]." Id.

"To satisfy the prejudice prong of [the ineffective assistance of counsel] test when raising a claim of ineffectiveness for the failure to call a potential witness at trial, our Supreme Court has instructed that the PCRA petitioner must establish that: (1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew, 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 defendant a fair trial." Commonwealth v. Wantz, 2014 Pa. Super. LEXIS 7, *19-20 (Pa. Super. 2014) (citations omitted).

Herein, the PCRA court concluded that Appellant had satisfied the first four prongs of the test. PCRA Court Opinion, 8/6/13, at 3. However, the PCRA court concluded Appellant failed to establish that trial counsel's ineffectiveness resulted in sufficient prejudice to compel PCRA relief.

Although the P.C.R.A. hearing testimony establishes the first four prongs of the test., [Appellant]'s claim fails as he cannot establish prejudice. During trial, [Appellant] testified that friends were at his house on the night of the incident. He also acknowledged, however, that around midnight, his friends left. The Commonwealth did not challenge this assertion at trial. The only reference during trial or at [the] P.C.R.A. hearing concerning the actual time of the assault is K.H.'s trial testimony that the incident occurred "way past her bedtime."
An alibi defense is a defense which "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[.]"[] Commonwealth v. Johnson, 646 A.2d 1170, 1172 (Pa. 1994) (citation omitted). [Appellant]'s trial testimony essentially vitiated an alibi defense as even if his friends remained at his residence until midnight, it was physically possible for him to have committed the crime. Trial counsel properly recognized as much when he determined the testimony of Dougherty and Fleming carried very little, if any, relevance. Moreover, [trial] counsel's proper use of discretion is corroborated by the P.C.R.A. testimony of both witnesses which not only failed to establish [an] alibi but placed into question whether they were actually with [Appellant] during the evening of June 12, 2008. As [Appellant] was unable to establish prejudice, relief on that basis will be denied.

Id. at 3-4 (citation omitted).

Our review of the record discloses ample support for the PCRA court's conclusion that Appellant failed to demonstrate his entitlement to PCRA relief. At the PCRA hearing, neither Doherty nor Fleming could recall being with Appellant on June 12, 2008. N.T., 6/17/13, at 19, 21-22. As neither party could remember being with Appellant on the date in question, neither party could provide an alibi. See id. Because neither witness could provide an alibi, Appellant failed to prove that he was prejudiced by the absence of their testimony. See Wantz, supra. Accordingly, we conclude the PCRA court did not err in denying Appellant PCRA relief on this ground.

Based on the foregoing, we affirm the PCRA court's August 6, 2013 order denying Appellant's PCRA petition and grant counsel's petition to withdraw.

Order affirmed. Petition to withdraw granted. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary