J-S34004-17

* Retired Senior Judge specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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