The opinion of the court was delivered by: Mitchell, M.J.:
Kevin King has presented a petition for a writ of habeas corpus. For the reasons set forth below, the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.
King is presently serving a forty-eight to ninety-six month sentence imposed following his conviction by the court of sexual assault, indecent assault and unlawful restraint at No. CP-02-CR-7009-2005 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on January 8, 2007.*fn1
An appeal was taken to the Superior Court in which the issues presented were:
I. Whether the evidence presented by the Commonwealth was sufficient to prove beyond a reasonable doubt that appellant was guilty of Sexual Assault.
II. Whether the evidence presented by the Commonwealth was sufficient to prove beyond a reasonable doubt that appellant was guilty of unlawful restraint.
III. Whether the evidence presented by the Commonwealth was sufficient to prove beyond a reasonable doubt that appellant was guilty of indecent assault.
IV. Whether the verdicts of guilt of sexual assault, unlawful restraint and indecent assault were against the weight of the evidence.*fn2
On May 28, 2008 the judgment of sentence was affirmed.*fn3
A petition for allowance of appeal to the Pennsylvania
Supreme Court was filed raising these same issues*fn4
and on July 25, 2008, King moved to withdraw his petition.*fn5
A post-conviction petition was filed and dismissed on May 4, 2009 as being unsupported by the record.*fn6 An appeal was taken to the Superior Court in which the issues presented were:
I. Did the trial court err in denying defendant‟s petition for post-conviction relief where defendant alleged trial counsel‟s ineffectiveness for failing to call witnesses who were available to testify to impeach [the victim‟s] testimony that the assault took place until 6:00 pm?
II. Did the trial court err in denying defendant‟s petition for post-conviction relief wherein defendant alleged trial counsel‟s ineffectiveness for advising defendant to proceed with a bench trial without advising defendant that the trial court had revoked defendant‟s bond the prior week after defendant was charged with violently assaulting another woman?*fn7
On September 10, 2011, the denial of post-conviction relief was affirmed.*fn8 A petition for allowance of appeal to the Pennsylvania Supreme Court nunc pro tunc was filed; the request for a delayed filing was granted; ultimately a petition raising these same issues was filed on February 2, 2011 and allowance of appeal was denied on July 19, 2011. *fn9
The background to this prosecution is set forth in the May 28, 2008 Memorandum of the Superior Court:
[O]n or about the 1st day of April, 2005, Appellant phoned a wrong number that was answered by a woman known for our purposes as CC. The two began to talk and ultimately met that same night at a local bar situated on the North Side of Pittsburgh. From the phone conversation, CC "felt comfortable" with Appellant and became interested in pursuing a relationship once the two met face-to-face. On April 9, 2005, CC received a second phone call from Appellant at approximately 5:00 a.m. asking if she wanted to spend the day together, which would encompass going on Appellant‟s boat at 5:00 p.m. to 6:00 p.m. and then to church from 7:00 p.m. to 9:00 p.m. CC agreed and Appellant drove immediately to her residence to transport her back to his East Liberty home.
Appellant and CC were engrossed in their own affairs during the morning session -- Appellant tended to his real estate business, while CC was consumed with washing the laundry she had brought with her and creating an "outline" to study for an impending college final. CC also phoned her girlfriend the same morning to announce what she would be doing that day, "that [she] had met the most wonderful man in the world[,]" and she was "excited" about being with Appellant, a business man with his own office. CC had no trepidations about Appellant -- she trusted and felt comfortable with him. In fact, CC thought Appellant was the "greatest." And she was impressed with the man, his office, his work, and his home.
CC began having reservations about the planned boat excursion and church attendance after seeing a bottle of alcohol on Appellant‟s table, which he dismissed by stating, "he needs a little drink to unwind." The next observation made by CC was Appellant‟s use of marijuana, which "shocked" her in tandem with alcohol that early in the morning, but she did not let the matter faze her. However, when Appellant told CC that at 2:00 p.m. his nephew was arriving to use his vehicle, she questioned how they were ...