J-S34004-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                    v.

HARRY C. DAVIS,

                          Appellant                No. 1717 EDA 2016


                  Appeal from the PCRA Order May 6, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0016582-2008


BEFORE: BOWES, SOLANO, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED JUNE 13, 2017

      Harry C. Davis appeals pro se from the May 6, 2016 order denying him

PCRA relief. We affirm.

      A jury convicted Appellant of burglary, trespass, and theft after he

stole copper piping from the basement of an apartment building. The verdict

was based upon the following evidence.      On October 8, 2008, Suzanne

Goldhahn lived with her father in a second floor apartment of a building

located in the 7200 block of Elmwood Avenue, Philadelphia. At the time, Ms.

Goldhahn knew Appellant well because he previously resided in the same

building for about eighteen months, but moved several months prior to the

incident in question.




* Retired Senior Judge specially assigned to the Superior Court.
J-S34004-17



      At approximately 4:15 a.m., Ms. Goldhahn awoke due to violent

shaking noises coming from her radiator.      She checked the faucet on the

kitchen sink. It was not functioning. After telling her father that she was

going to the basement, Ms. Goldhahn turned on the porch light and

observed Appellant on a landing that led to the door of the basement

apartment. He was carrying on his shoulder a long metallic object that was

copper in color.    Ms. Goldhahn told her father to call the police, and

Philadelphia Police Officer Reigert Pone arrived within minutes.

      Officer Pone, Ms. Goldhahn, and her father went to the basement

apartment, where they discovered that it was being flooded by water flowing

from the utility room. Officer Pone removed the resident of the basement

apartment, returned, and saw water gushing from a piece of copper pipe

protruding from the water heater.        Patrick McGowan, who owned the

building, arrived at the scene and noticed that twelve feet of copper piping

leading to the water heater was missing.        Mr. McGowan had not given

anyone permission to enter the building and remove the copper piping.

      Philadelphia Police Officer Joy Gallen Ruiz and her partner Philadelphia

Police Officer Raymond Rutter, the arresting officers, testified at trial. They

were on patrol in the area, and Officer Ruiz spotted Appellant at

approximately 4:20 a.m. less than two blocks from the scene of the crime.

As Appellant matched the description of the perpetrator broadcast over the

police radio, Officer Ruiz approached Appellant and asked to speak with him.

                                     -2-
J-S34004-17



Appellant retorted that he did not have to speak with police, and started to

walk away.     Officer Rutter intervened, stopped Appellant, and patted

Appellant down for weapons.    While Appellant was unarmed, the patdown

revealed that Appellant was soaking wet. Ms. Goldhahn was brought to the

scene, and she identified Appellant as the man with a copper-colored object

on his shoulder at her apartment building.

     Appellant offered an innocent explanation for his presence near the

crime scene, denied that he was holding a metal object, and claimed that he

was wet from power-washing a truck.          The jury credited the evidence

presented by the Commonwealth, and convicted Appellant of the above-

delineated crimes. After judgment of sentence was imposed, Appellant filed

an appeal, raising a claim that the evidence was insufficient to support the

verdict. We rejected that position and affirmed. Commonwealth v. Davis,

46 A.3d 824 (Pa.Super. 2012), appeal denied, 53 A.3d 756 (Pa. September

17, 2012).

     Appellant filed a timely pro se PCRA petition on October 13, 2013, and

counsel was appointed. On January 3, 2016, counsel filed a no-merit letter

and petition for leave to withdraw under Commonwealth v. Turner, 544

A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213

(Pa.Super. 1988) (en banc).    Counsel addressed the issues raised in the

PCRA petition. The PCRA court thereafter disseminated notice of its intent to

dismiss the PCRA petition without a hearing pursuant to Pa.R.C.P. 907.

                                    -3-
J-S34004-17



Appellant responded that trial counsel was ineffective for failing to raise the

following position. Appellant maintained that Officer Ruiz, whose signature

appeared on the arrest report, testified that she did not sign that document.

Appellant argued that trial counsel should have contended that Appellant

was denied his constitutional right to confront his arresting officer and

should have moved for dismissal of his case because the arrest report, which

established probable cause for his arrest, was forged.

      The PCRA court thereafter denied PCRA relief, and granted counsel’s

petition to withdraw.     Appellant filed this pro se appeal.   The PCRA court

prepared a Pa.R.A.P. 1925(a) opinion addressing the issues presented in the

pro se petition as well as the one raised in response to the Pa.R.C.P. 907

notice.   On appeal, Appellant raises this averment: “Was the petitioner

denied his right to confront witnesses in violation of the Sixth Amendment?”

Appellant’s brief at 5.

      Initially, we observe, “Our standard of review of a PCRA court's

dismissal of a PCRA petition is limited to examining whether the PCRA

court's determination is supported by the record evidence and free of legal

error.”   Commonwealth v. Whitehawk, 146 A.3d 266, 269 (Pa.Super.

2016). On appeal, Appellant repeats the position raised in response to the

Pa.R.C.P. 907 notice. In maintaining that trial counsel rendered ineffective

assistance, Appellant suggests that Officer Ruiz admitted that she did not

sign the arrest report so that the Commonwealth did not establish probable

                                      -4-
J-S34004-17



cause for his arrest. Appellant also posits that he was denied his right to

confront “the arresting officer in this case.” Appellant’s brief at 6.

Apparently, Appellant believes the arresting officer was the person who

purportedly forged the arrest report by signing Officer Ruiz’s name.

     We examine allegations of ineffective assistance of counsel under the

following standards:

                  Counsel is presumed effective, and to rebut
           that presumption, the PCRA petitioner must
           demonstrate that counsel's performance was
           deficient and that such deficiency prejudiced him.
           Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
           2052, 80 L.Ed.2d 674 (1984).            This Court has
           described the Strickland standard as tripartite by
           dividing the performance element into two distinct
           components. Commonwealth v. Pierce, 515 Pa.
           153, 527 A.2d 973, 975 (1987). Accordingly, to
           prove counsel ineffective, the petitioner must
           demonstrate that (1) the underlying legal issue has
           arguable merit; (2) counsel's actions lacked an
           objective reasonable basis; and (3) the petitioner
           was prejudiced by counsel's act or omission. Id. A
           claim of ineffectiveness will be denied if the
           petitioner's evidence fails to satisfy any one of these
           prongs.

     Commonwealth v. Busanet, 618 Pa. 1, 54 A.3d 34, 35, 45
     (2012). Furthermore, “in accord with these well-established
     criteria for review, an appellant must set forth and individually
     discuss substantively each prong of the Pierce test.”
     Commonwealth v. Fitzgerald, 979 A.2d 908, 910 (Pa.Super.
     2009).

Commonwealth v. Roane, 142 A.3d 79, 88 (Pa. Super. 2016).

     The PCRA court, in addressing Appellant’s position, noted that Officer

Ruiz never testified that she did not sign the arrest report, which actually

                                    -5-
J-S34004-17



contained her signature.    Instead, the PCRA court pointed out that Officer

Ruiz indicated that she did not execute a different document, which

consisted of a biographical information report prepared by whoever

transported Appellant to jail after he was arrested. Our review of the trial

transcript supports the PCRA court’s conclusions.        Thus, the affidavit of

probable cause for Appellant’s arrest was not defective on the basis that it

was forged. Additionally, there was no confrontation clause violation in this

case as both arresting officers testified at Appellant’s trial. Since Appellant’s

underlying issue lacks merit, trial counsel was not ineffective for failing to

advance it at trial.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/13/2017




                                      -6-
