J-S68031-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                 Appellee               :
                                        :
                  v.                    :
                                        :
RUDY DAVIS,                             :
                                        :
                Appellant               :     No. 312 WDA 2016


               Appeal from the PCRA Order February 5, 2016,
            in the Court of Common Pleas of Allegheny County,
            Criminal Division at No(s): CP-02-CR-0000989-2012

BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                FILED NOVEMBER 16, 2016

      Rudy Davis (Appellant) appeals pro se from the February 5, 2016

order which denied his petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      This Court previously summarized the facts underlying this case as

follows.

      On September 26, 2011, Phillip Harrison[1] was shot at 2471
      Chauncey Drive in the Hill District in the City of Pittsburgh.
      Harrison died after sustaining multiple gunshot wounds to the
      head, trunk, and extremities. On the date of the shooting,
      Casey Pelton contacted police regarding the identity of Harrison’s
      assailant.  Pelton lived in the housing complex where the
      shooting occurred, specifically, directly across the courtyard from
      2471 Chauncey Drive. Pelton was outside of his apartment both
      before and during the course of the shooting. Following the
      shooting, Pelton identified Appellant as Harrison’s shooter by

1
 Phillip Harrison was also known by the “street name of June.” N.T., 7/23-
24/2012, at 41.
*Retired Senior Judge assigned to the Superior Court.
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     name and within a photograph array.          Police subsequently
     arrested Appellant in connection with Harrison’s death.…

           On December 19, 2011, Appellant was charged with
     criminal homicide, carrying a firearm without a license, and
     persons not to possess, use, manufacture, control, sell or
     transfer firearms. Following a preliminary hearing on January
     20, 2012, Appellant’s criminal homicide and carrying a firearm
     without a license charges were bound over to the Court of
     Common Pleas of Allegheny County.        A two-day jury trial
     commenced on July 23, 2012.

Commonwealth v. Davis, 96 A.3d 1093 (Pa. Super. 2014) (unpublished

memorandum at 1) (citations and footnotes omitted).

     At trial, in addition to Pelton’s testimony, the jury also had the

opportunity to view photographs and video from a number of surveillance

cameras which were in operation in that area. See N.T., 7/23-24/2012, at

41-56.   Specifically, the jury saw “a young man getting out of the rear

passenger door” of a silver Ford Taurus. Id. at 45.        That person was

“wearing a baseball cap,” “black sweatshirt,” a “white T-shirt protruding

from under the sweatshirt,” “light colored jeans,” and “black tennis shoes.”

Id. The jury saw a photograph and video showing an “individual chasing the

victim from behind with his right arm extended forward to the back of the

victim’s head …. [That individual] is wearing a dark sweatshirt, black skull

cap, … a white T-shirt protruding from … beneath the black sweatshirt, light

colored jeans, dark colored tennis shoes.” Id. at 49. The victim was then

seen “reacting to either being shot or ducking.” Id. The other individual had

“what appears to be a gun, firing a weapon at [the victim], his arm extended



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toward the victim.” Id. at 50.     The individual and the victim then ran in

different directions. Id.

        On July 24, 2012, a jury found Appellant guilty of the aforementioned

charges. On September 27, 2012, the trial court imposed a sentence of life

imprisonment without the possibility of parole for the first-degree murder

charge. Appellant timely filed a post-sentence motion, which was denied by

the trial court.   This Court affirmed the judgment of sentence, and our

Supreme Court denied Appellant’s petition for allowance of appeal on June

25, 2014.     Commonwealth v. Davis, 96 A.3d 1093 (Pa. Super. 2014),

appeal denied, Commonwealth v. Davis, 94 A.3d 1007 (Pa. 2014).

        Appellant timely filed pro se a PCRA petition on August 15, 2015.

Counsel was appointed.      On November 6, 2015, appointed counsel filed a

petition 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 November 13, 2015, the PCRA

court permitted counsel to withdraw and issued a notice of intent to dismiss

the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant

pro se filed objections, and the PCRA court dismissed Appellant’s petition

without a hearing on February 5, 2016.      Appellant timely filed a notice of

appeal, and both Appellant and the PCRA court complied with Pa.R.A.P.

1925.




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      Appellant presents this Court with four claims of ineffective assistance

of trial counsel rejected by the PCRA court, which we consider pursuant to

the following standards.   “Our standard of review of a [PCRA] court order

granting or denying relief under the PCRA calls upon us to determine

‘whether the determination of the PCRA court is supported by the evidence

of record and is free of legal error.’” Commonwealth v. Barndt, 74 A.3d

185, 192 (Pa. Super. 2013) (quoting Commonwealth v. Garcia, 23 A.3d

1059, 1061 (Pa. Super. 2011)).

      “It is well-established that counsel is presumed effective, and the

defendant bears the burden of proving ineffectiveness.” Commonwealth v.

Martin, 5 A.3d 177, 183 (Pa. 2010).          To overcome this presumption,

Appellant must show each of the following: “(1) the underlying substantive

claim has arguable merit; (2) counsel whose effectiveness is being

challenged did not have a reasonable basis for his or her actions or failure to

act; and (3) the petitioner suffered prejudice as a result of counsel’s

deficient performance.”     Id.    “Prejudice in the context of ineffective

assistance of counsel means demonstrating there is a reasonable probability

that, but for counsel’s error, the outcome of the proceeding would have been

different.” Commonwealth v. Keaton, 45 A.3d 1050, 1061 (Pa. 2012).

Appellant’s claim will be denied if he fails to meet any one of these three

prongs. Id.




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      On appeal, Appellant first argues that trial counsel was ineffective in

failing to object to the Commonwealth’s characterization and reference to

the area where this crime occurred as being a “high crime area.” Appellant’s

Brief at 1. Appellant points to two examples, including the Commonwealth’s

opening statement and the direct examination of Officer Michael Jozwiak.

See N.T., 7/23-24/2012, at 13 (“[Pelton] moved to that area which is a high

crime area.”); id. at 25 (“That would be considered a high crime area?”).

Appellant argues that he was prejudiced by trial counsel’s failure to object

because the Commonwealth “injected issues broader than the guilt or

innocence of Appellant and implied to the jury the crime rate in the Hill

District should be related to his guilt.” Appellant’s Brief at 4. Appellant then

goes on to assail trial counsel’s performance because she also questioned a

witness about the Hill District being a high crime area. Id. at 9. See N.T.,

7/23-24/2012, at 71 (“In fact, in 2011 … there were eight homicides in the

Hill District[?]”).

      Our review of the record does not support any conclusion that the

Commonwealth was trying to interject issues not relevant to the matter by

this line of questioning.     Moreover, it appears that defense counsel was

attempting to establish that, due to the high level of gun violence in the

area, there is reasonable doubt as to whether Appellant committed the

instant crime.        Additionally, the jury had the opportunity to view the

shooting on video.         Thus, Appellant has not convinced us that the



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characterization of the area being a high-crime area, by either the

Commonwealth or defense counsel, would have resulted in “the outcome of

the proceeding [being] different.” Keaton, 45 A.3d at 1061. Accordingly, we

conclude that counsel was not ineffective, and Appellant is not entitled to

relief on this basis.

       Appellant next argues that trial counsel was ineffective for failing to

object to certain testimony provided by Kayla Wallace, Pelton’s girlfriend.

Appellant’s Brief at 13-24. The Commonwealth called Wallace to testify to

establish a possible motive as to why Appellant would target Harrison. She

testified that it was “common knowledge” that Harrison had shot Appellant

eight years prior because Appellant was “in front of [Harrison’s] mother’s

house trying to intimidate [Harrison] with a gun.” N.T., 7/23-24/2012, at

119.    Appellant contends that Wallace’s testimony should have been

prohibited as a “prior uncharged bad act[,]” and trial counsel’s failure to

object on this basis resulted in prejudice. Appellant’s Brief at 13.

       The introduction of crimes, wrongs, or other acts is governed by

Pa.R.E. 404 and provides, in relevant part, as follows.

              (1) Prohibited Uses. Evidence of a crime, wrong, or other
       act is not admissible to prove a person’s character in order to
       show that on a particular occasion the person acted in
       accordance with the character.

             (2) Permitted Uses. This evidence may be admissible for
       another purpose, such as proving motive, opportunity, intent,
       preparation, plan, knowledge, identity, absence of mistake, or
       lack of accident. In a criminal case this evidence is admissible



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      only if the probative value of the evidence outweighs its potential
      for unfair prejudice.

Pa.R.E. 404(b)(1)-(2).

      Here, the PCRA court concluded that testimony about the victim

having shot Appellant “was clearly admissible and [the trial court] would

have allowed the testimony had it been challenged…. The incident clearly

establishes [Appellant’s] motive: revenge for the prior shooting.” PCRA Court

Opinion, 5/19/2016, at 10.       The PCRA court also concluded that “the

evidence was vastly more probative than prejudicial and so it was properly

admitted. Counsel can never be considered ineffective for failing to object to

properly admitted evidence[.]” Id.

      The PCRA court’s conclusion is supported by the record.            “To be

admissible under [the motive] exception, there must be a specific logical

connection between the other act and the crime at issue which establishes

that the crime currently being considered grew out of or was in any way

caused by the prior set of facts and circumstances.” Commonwealth v.

Ross, 57 A.3d 85, 100 (Pa. Super. 2012) (internal quotation marks

omitted). Wallace’s testimony fits within these parameters. Thus, we agree

with the PCRA court that trial counsel was not ineffective in failing to object

to Wallace’s testimony, and Appellant is not entitled to relief on this basis.

See Commonwealth v. Gonzalez, 858 A.2d 1219 (Pa. Super. 2004)

(holding counsel not ineffective for failing to object to admissible evidence).




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      Appellant next contends that the Commonwealth engaged in improper

vouching through the testimony of Detective Vonzale Boose.2 Appellant’s

Brief at 25-32. “Improper bolstering or vouching for a government witness

occurs where the prosecutor assures the jury that the witness is credible,

and such assurance is based on either the prosecutor’s personal knowledge

or other information not contained in the record.” Commonwealth v.

Cousar, 928 A.2d 1025, 1041 (Pa. 2007). “[I]mproper commentary on a

witness’ credibility may be achieved through means other than the

prosecutor’s own statements, such as eliciting improper comments from a

Commonwealth witness.” Commonwealth v. Tedford, 960 A.2d 1, 32 (Pa.

2008).   “However, as long as a prosecutor does not assert his personal

opinions, he or she may, within reasonable limits, comment on the credibility

of a Commonwealth witness. This is especially true when the credibility of

the witness has been previously attacked by the defense.” Id. at 31-32.

      Instantly, throughout the trial, the credibility of Pelton was a central

issue, as it was he who identified Appellant as the perpetrator of the crime.

Specifically, there were questions as to delay between the time Pelton first

contacted police and later met with police about his witnessing the shooting.

Pelton testified that he called a Pittsburgh city police officer named “Brian”

within an hour of the shooting on the same day. N.T., 7/23-24/2012, at 98.


2
  The transcript and briefs state Detective Boose’s first name as “Voncell.”
His first name is Vonzale and that is the name that will be used in this
memorandum.


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However, Pelton did not meet with Detective Boose in person until a few

weeks later, an issue which was brought forth during cross-examination.

See id. at 114 (“Then it wasn’t until October 18 that you actually went down

to the homicide office.…”).

      The Commonwealth then recalled Detective Boose to explain the

reason for the delay. Detective Boose explained that he spoke to Pelton the

day of the shooting for a very brief period, but “it was still chaotic from the

investigation.” Id. at 137. Detective Boose stated that he was initially trying

to identify the shooter himself. Detective Boose testified that after several

meetings, Brian, who is police officer Brian Smith, told Detective Boose that

Pelton was “legit, he has never steered [Officer Smith] wrong.” Id. at 138-

39. Detective Boose explained he did not talk to Pelton in person for about

three weeks because it was an ongoing investigation.            Detective Boose

further testified, upon questioning from the Commonwealth, that Pelton has

been “consistent” and “forthcoming … from day one.” Id. at 140-41.

      Thus, the PCRA court concluded that “[i]n light of the cross-

examination of Mr. Pelton, Detective Boose’s testimony was appropriate.”

PCRA Court Opinion, 5/19/2016, at 5. “[The Supreme] Court has repeatedly

held … that statements explaining a police officer’s conduct during the

course of an investigation are admissible.” Commonwealth v. Montalvo,

986 A.2d 84, 95 (Pa. 2009). “When exercising discretion over the admission

of   such   statements,   the   trial   court   is   required   to   balance   the



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Commonwealth’s need for the statements with any prejudice arising

therefrom.” Id.     Based on the foregoing, the Commonwealth offered

Detective Boose’s testimony to explain the investigation after Appellant

called into question the delay. Accordingly, we hold that these statements

were admissible, and counsel could not have been ineffective in failing to

object to them.

      Finally, Appellant contends trial counsel was ineffective for failing to

object to testimony that purportedly implied that Appellant was responsible

for the death of a witness in this case.          Appellant’s Brief at 33-46.

Specifically, Detective Boose testified that police located the owners of the

silver Ford Taurus seen in the surveillance video. The owners of the vehicle

provided police the name of Jacquay Pascal as the person who had the car.

When police first tried to interview Pascal, he fled. N.T., 7/23-24/2016, at

65. Detective Boose testified that police were never able to interview Pascal

because he had been “killed about two weeks” prior to trial. Id. Appellant

argues that trial counsel should have objected to this testimony because it

implied “that Appellant was in some way responsible for this missing

potential [witness’s] death.” Appellant’s Brief at 36.

      The PCRA court concluded that this testimony shows “that [the

Commonwealth’s] inquiry was limited to an identification of the driver and

an indication of why he was not interviewed.” Trial Court Opinion,




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5/19/2016, at 7. Thus, the PCRA court concluded that the Commonwealth’s

questions did not “constitute misconduct in any way.” Id.

      The PCRA court’s conclusion is supported by the record. A fair reading

of Detective Boose’s testimony reveals that this testimony in no way implied

to the jury that Appellant was responsible for Pascal’s death; rather, the

Commonwealth explained why police did not interview the driver of the

vehicle seen in the surveillance videos and photographs.    Accordingly, this

evidence was admissible and counsel could not have been ineffective in

failing to object to it.

      Having concluded that Appellant has not presented any issue on

appeal that warrants relief, we affirm the order of the PCRA court denying

Appellant’s petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/16/2016




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