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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 Super. 2014) (unpublished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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