J-S19025-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
RICKY MALLORY
Appellant No. 119 EDA 2015
Appeal from the Order Entered December 1, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0200651-1998
BEFORE: BENDER, P.J.E., STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 12, 2016
Appellant, Ricky Mallory, appeals from the December 1, 2014 order
dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-46. We affirm.
Appellant is presently serving a 35 to 70 year sentence for attempted
murder, aggravated assault, conspiracy, unlawful possession of a firearm,1
and related offenses. The convictions arise from the August 27, 1996
shooting of the victim, Dante Hunter. Appellant and his codefendants
proceeded to a September 17, 1998 bench trial, at the conclusion of which
the trial court found Appellant guilty of the aforementioned crimes. The trial
court imposed the 35 to 70 year sentence on January 29, 1999. This Court ____________________________________________
1 18 Pa.C.S.A. §§ 901, 2502, 2702, 903, and 6103, respectively. J-S19025-16
affirmed the judgment of sentence on July 3, 2000, and the Supreme Court
denied allowance of appeal on December 12, 2000. On November 28, 2001,
Appellant filed this timely first PCRA petition, which is now approaching
fifteen years of litigation. The PCRA court ordered a new trial on March 2,
2004, reasoning that Appellant’s guilty plea was invalid because the trial
court did not conduct an oral colloquy. The Commonwealth filed a timely
notice of appeal, and this Court reversed and remanded to the PCRA court in
a published opinion. Commonwealth v. Mallory, 888 A.2d 854 (Pa. Super.
2005), reversed, 941 A.2d 686 (Pa. 2008). This Court reasoned that
Appellant failed to prove the outcome of his trial would have been different if
counsel objected to the absence of an oral waiver colloquy and that
counsel’s failure did not create a presumption of prejudice. Id. at 859-60.
In reversing this Court, the Supreme Court held that Appellant could prove
prejudice if he could establish the outcome of the waiver colloquy would
have been different—i.e., he would have chosen a jury trial—but for
counsel’s ineffectiveness. Commonwealth v. Mallory, 941 A.2d 686, 704
(Pa. 2008), cert. denied, 555 U.S. 884 (2008).
On remand, the PCRA court granted Appellant a new trial by order of
April 19, 2009. The Commonwealth filed a timely appeal, and this Court
reversed in an unpublished memorandum dated July 8 2010. The Supreme
denied allowance of appeal on May 25, 2011. Thus, the remaining issues in
Appellant’s original PCRA petition finally were ripe for disposition. On
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January 23, 2012, however, Appellant filed an amended petition. On
January 27, 2012, the PCRA court dismissed the amended petition as
untimely. This Court reversed the PCRA court’s order in a July 22, 2013
memorandum, reasoning that Appellant’s amendment of a timely pending
petition was permissible under Pa.R.Crim.P. 905. In that memorandum, we
also rejected Appellant’s challenges to the legality of his sentence. This
Court denied Appellant’s petition for reargument en banc by order of
September 25, 2013. The Supreme Court denied allowance of appeal on
April 15, 2014. On September 26, 2014, Appellant filed a motion for the
PCRA court to recuse itself, which the PCRA court denied. The PCRA court
heard argument on October 24, 2014. At the conclusion of argument, the
court issued a notice of intent to dismiss the petition without a hearing
pursuant to Pa.R.Crim.P. 907. On December 1, 2014, the PCRA court
entered the order on appeal, dismissing Appellant’s remaining collateral
claims.
Appellant raises three issues for our review:
(1) Whether the [PCRA] court erred in failing to grant a motion for recusal where the court underrepresented the extent of the treat(s) lodge against him and/or his family prior to sentencing during the direct appeal to the Superior Court; where police were assigned to monitor him and his home as protection from alleged threats; where the threats occurred after the trial but prior to sentencing; where there are allegations of the court’s relationship with the trial prosecutor was that of a God daughter; where there is an alleged relationship, either familiar or marriage, between the Judge and Appellant’s family; where the Judge assigned the threats to the
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Appellant and Co-Defendants as coming from the defendants; and where trial counsel told the Appellant before sentencing that the Judge was upset and angry about threats made to him?
(2) Whether the trial court erred in failing to hold an evidentiary hearing to determine whether a violation of Appellant’s 6th Amendment right to counsel under the U.S. Constitution, and Article 1, § 9 of the Pennsylvania Constitution occurred: under [Brady v. Maryland, 373 U.S. 83 (1963)]; where counsel provided ineffective assistance of counsel; and in light of a violation of the confrontation clause?
(3) Whether the court erred in failing to hold an evidentiary hearing on if the Commonwealth violated Brady by failing to provide impeachment evidence regarding the complainant, Dante Hunter[,] prior to trial[,] specifically evidence of the federal investigation arrest and charges against him, what his anticipated sentence was, what was offered, and/or that he received or would receive favorable treatment for his cooperation in the prosecution of Appellant, and that such omission violated Appellant’s right to due process and right of confrontation under the U.S. and Pennsylvania Constitutions?
Appellant’s Brief at 3-4.
On appeal, we must determine whether the record supports the PCRA
court’s order and whether it is free of legal error. Commonwealth v.
Lesko, 15 A.3d 345, 358 (Pa. 2011). Dismissal without a hearing is
appropriate when the PCRA court is satisfied that the petition presents no
issues of material fact and a hearing would serve no purpose. Pa.R.Crim.P.
907(1).
Concerning Appellant’s recusal motion, we observe that Appellant
unsuccessfully litigated a very similar issue on direct appeal. The PCRA does
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not permit a petitioner to raise previously litigated issues. 42 Pa.C.S.A.
§ 9543(a)(3). To the extent Appellant’s current recusal motion differs from
the one he raised before the trial court, we agree with the PCRA court’s
analysis in its July 8, 2015 opinion and its conclusion that Appellant has
failed to offer any basis for the PCRA court’s recusal. We observe that the
PCRA court has denied that the prosecutor is his Goddaughter. N.T.
Argument, 10/24/14, at 17-19.
In support of his second argument, Appellant addresses a host of prior
counsel’s errors he believes implicate his Sixth Amendment rights. 2 The
PCRA court’s opinion thoroughly and accurately addresses most of
Appellant’s arguments. Among Appellant’s claims is counsel’s failure to
locate and/or call five witnesses who could have helped Appellant at trial.
The PCRA court’s opinion addresses Appellant’s arguments with regard to
three witnesses, excepting Jamila Price and Ransom Livingston. Appellant
argues that Jamila Price would have testified that Appellant was not one of
the shooters. Appellant failed to elaborate, either in his petition or at the
argument thereon. The entirety of Appellant’s argument was as follows:
[Appellant’s Counsel]: -- number 5 is regarding the witness by the name of Jamila Price, where my client specifically told the trial attorney that his was a witness that he needed to investigate, that this person could provide information that ____________________________________________
2 Appellant’s brief is not well organized, and most of the arguments are poorly developed and, at best, tangentially related to the question presented.
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would aid in his defense and no investigation was done; the witness was not called at trial. And my client is arguing that this, too, would have affected the outcome of the trial.
N.T. Hearing, 10/24/14, at 24.
A PCRA petitioner asserting counsel’s ineffectiveness for failing to call a
witness must do the following:
There are two requirements for relief on an ineffectiveness claim for a failure to present witness testimony. The first requirement is procedural. The PCRA requires that, to be entitled to an evidentiary hearing, a petitioner must include in his PCRA petition “a signed certification as to each intended witness stating the witness’s name, address, date of birth and substance of testimony.” 42 Pa.C.S.A. § 9545(d)(1); Pa.R.Crim.P. 902(A)(15). The second requirement is substantive. Specifically, when raising a claim for the failure to call a potential witness, to obtain relief, a petitioner must establish that: (1) the witness existed; (2) the witness was available; (3) counsel was informed or should have known of the existence of the witness; (4) the witness was prepared to cooperate and would have testified on defendant’s behalf; and (5) the absence of such testimony prejudiced him and denied him a fair trial.
Commonwealth v. Reid, 99 A.3d 427, 438 (Pa. 2014). Appellant has
failed to meet the procedural requirement by filing a certification. Appellant
also did not allege, certify, or providing an affidavit indicating Price was
prepared to cooperate and testify at Appellant’s trial.
In addition, the PCRA court offered the following assessment of absent
witnesses who allegedly would have helped Appellant’s defense:
THE COURT: I’m talking about witnesses. Everybody knew about this case. Everyone in Philadelphia knew about this case. This case was not held in secrecy. The Curly Top gang was on trial; anybody who wanted to come, who wanted to testify, knew that this case was going on.
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Even at sentencing, once I found him guilty, I deferred sentencing for eight weeks. Presentence investigation, mental health.
Witnesses knew they could come forward, nobody came forward to say: These are not individual shooters. And, of course, Dante Hunter was here and Dante Hunter identified who shot him and who ambushed him in his convertible, white Mercedes Benz, in West Philadelphia.
The PCRA court, presiding as fact finder over Appellant’s trial, found the
victim credible in his identification of Appellant as one of the shooters.
Appellant therefore has failed to establish that Price’s absence prejudiced
him or denied him a new trial. Appellant’s brief also asserts that counsel
was ineffective for failing to call Ransom Livingston as a witness. Appellant
never addressed Livingston before the PCRA court in his petition or at
argument, and cannot do so for the first time on appeal. Pa.R.A.P. 302(a).
Appellant also failed to offer a proper certification and failed to explain how
Livingston’s absence prejudiced him.
Finally, we take note of Appellant’s claim that the PCRA court failed to
ensure that the Department of Corrections was aware of his modified
sentence order.3 Appellant addressed this issue before the PCRA court, and
the court stated it would address any error. N.T Argument, 10/24/14, at 35-
36. Appellant also complained of this error to a prior panel of this Court, in
response to which we advised Appellant that any error in the Department of ____________________________________________
3 The trial court originally sentenced Appellant to 45 to 90 years of incarceration and then modified the sentence to 35 to 70 years
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Corrections’ computation of his sentence rests within the jurisdiction of the
Commonwealth Court and is not cognizable under the PCRA. See
Commonwealth v. Mallory, 519 EDA 2012 (Pa. Super. July 22, 2013),
unpublished memorandum at 12 n.9. Once again, we advise Appellant that,
to the extent the Department of Corrections has made any error in the
computation of Appellant’s sentence, Appellant should seek relief in the
Commonwealth Court.
In summary, we have reviewed the parties’ briefs, the record, the
applicable law, and the PCRA court’s opinion. We conclude that the PCRA
court’s July 8, 2015 opinion accurately addresses all of Appellant’s assertions
of error, with the exception of counsel’s failure to call Ransom Livingston and
Jamila Price. We therefore adopt the PCRA court’s reasoning as our own.
Appellant’s arguments concerning Jamila Price and Ransom Livingston fail for
the reasons we have explained in this memorandum. Any computational
error by the Department of Corrections is not cognizable under the PCRA and
not properly before this Court. In light of all of the foregoing, we affirm the
PCRA court’s order. We direct that a copy of the PCRA court’s July 8, 2015
opinion be filed along with this memorandum.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/12/2016
-9- Circulated 04/29/2016 01:43 PM
F1ieo IN THE COURT OF COMMON PLEAS PHILADELPHIA COUNTY yl-J~ CJ0?01il FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CRIMINAL TRIAL DIVISION PostTr/al Unit
COMMONWEALTH OF PENNSYLVANIA
v. CP-51-CR-0200651-1998
CP-51-CR-0200651-1998 Comm. v, Mallory, Ricky 119 EDA2015 Opinion
Means, J. July 8, 2015 I I I I II I II I 111111111111111 7316736091
PCRA OPINION
FACTUAL HISTORY
On August 27, 1996, at the corner of 43rd and Pennsgrove Street, while acting in concert with
others in the course of attempting to murder Dante Hunter, the defendant, Ricky Mallory,
released a vast amount of bullets from a loaded weapon into a vehicle driven by Dante Hunter. In
addition, the defendant continued to fire shots into the vehicle at the victim as he made a U-turn
and drove several blocks away. Prior to this incident, the defendant and his accomplices, alleged
gang members, summoned the victim to this location by telephone, stipulating a possible truce
between the former friends. The victim fled the scene and attended a nearby hospital. The victim
was kept under medical care and observation for one to two weeks following this incident. The
victim suffered severe dental damage as well as harboring the unrecovered bullets in his neck
and face.
Defendant was arrested and charged with Attempted Murder, Aggravated Assault, Violating
the Uniform Firearms Act, Possessing an Instrument of Crime, and Criminal Conspiracy.
I
I . ; / PROCEDURAL HISTORY
On September 17, 1998, after a waiver trial this Court found Defendant guilty of:
Attempted Murder, 18 Pa. C.S. § 901, Aggravated Assault, 18 Pa. C.S. § 2702, Criminal
Conspiracy, 18 Pa. C.S. § 903, Possessing an Instrument of Crime ("PIC"), 18 Pa. C.S. § 907,
Violation of the Uniform Firearms Act ("VUFA"), 18 Pa. C.S. § 6103, Simple Assault, 18 Pa.
C.S. § 2701, and Recklessly Endangering Another Person ("REAP"), 18 Pa. C.S. § 2705.
Accordingly, on October 5, 1998, this Court sentenced Defendant to 20-40 years for
attempted murder, 10-20 years for Aggravated Assault, 10-20 years for Criminal Conspiracy,
2.5-5 years for Carrying Firearms on Public Streets or Public Property, and 2.5-5 years for
Possessing an Instrument of Crime. The charge of Simple Assault merged with Aggravated
Assault. No further penalty was given on the Recklessly Endangering Another Person (REAP)
charges. The Defendant's aggregate sentence was 45-90 years' incarceration.
On January 29, 1999, this Court modified the sentence to 35-70 years incarceration, after
vacating the 10-20 years sentence of incarceration for Aggravated Assault.
Defendant sought a timely direct appeal to the Superior Court of Pennsylvania. On July 3,
2000, the Superior Court of Pennsylvania affirmed the judgment of the Trial Court. On
December 12, 2000, the Supreme Court denied the defendant's petition for allowance of Appeal.
On December 11, 2001, defendant filed a Post Conviction Relief Act (PCRA) petition.
On March 2, 2004, the petition was granted, the sentence was vacated and a new trial was
ordered. On March 23, 2004, the Commonwealth filed a Notice of Appeal to the Superior Court
of Pennsylvania. On February 10, 2006, the case was remanded to the PCRA Court. On March
2, 2006, Petition for Allowance of Appeal to the Supreme Court was filed. On April 17, 2006,
the case was remanded to the PCRA Court.
2 On March 24, 2008, the Supreme Court of Pennsylvania reversed the order and remanded
the record for further proceedings. On April 14, 2009, an order granting PCRA Petition was
made which vacated the sentence and a new trial was ordered. On May 14, 2009, the
Commonwealth once again appealed to the Superior Court of Pennsylvania. On July 8, 2010, the
Superior Court of Pennsylvania reversed the Order. On May 25, 2011, the Pennsylvania Supreme
Court denied the defendant Petition for Allowance of Appeal. On June 23, 2011, defendant
received notice of denial of petition for Allowance of Appeal from the Supreme Court of
Pennsylvania. On January 23, 2012, Defendant entered a supplemental amended petition under
the PCRA. On January 27, 2012, this Court dismissed the PCRA amended petition as untimely.
On February 15, 2012, Defendant appealed to the Superior Court of Pennsylvania, which on July
22, 2013, held that this Court erred in determining that it lacked jurisdiction.
On April 15, 2014, the Supreme Court of Pennsylvania denied the defendant's petition
for allowance of appeal. On July 14, 2014, the Commonwealth filed a motion to dismiss. On
September 26, 2014, the Defendant filed a motion for recusal. On December 1, 2014, this Court
granted dismissal of the PCRA petition. On December 31, 2014 the defendant appealed to the
Superior Court of Pennsylvania. Defendant then filed a Statement of Errors Complained of on
Appeal pursuant to Pa.R.A.P. 1925(b ). Appellant raises three issues for this court's review.
(1) Whether the trial court erred in failing to grant a motion for recusal where he
court underrepresented or misrepresented the extent of the threat(s) lodged against
him and/or his family prior to sentencing during the direct appeal to the Superior
Court; where police were assigned to monitor him and his home as protection
from alleged threats; where the threats occurred after the trial but prior o
sentencing, where there are allegations of the court's relationship with the trial
3 prosecutor was that of a god daughter; where here is an alleged relationship, either
familiar or marriage, between the Judge and Appellant's family; where he Judge
assigned the threats to the Appellant and Co-Defendants as coming from the
defendants; and where trial counsel told the Appellant before sentencing that the
Judge was upset and angry about the threats made to him?
(2) Whether the trial court erred in failing to hold an evidentiary hearing to determine
whether a violation of Appellant's Sixth Amendment right to counsel under the
U.S. Constitution and Article 1, § 9 of the Pennsylvania Constitution occurred for
the issues raised by the Appellant while asserting his innocence?
(3) Whether he court erred in failing to hold an evidentiary hearing on if the
Commonwealth violated Brady by failing to provide impeachment evidence
regarding the complainant, Dante Hunter prior to trial specifically evidence of the
federal investigation, arrest and charges against him, what his anticipated sentence
was, what was offered, and/or that he receive or would receive favorable
treatment for his cooperation in the prosecution of Appellant, and that such
omission violated Appellant's right to due process and right of confrontation
under the U.S. and Pennsylvania Constitutions?
Statement of Errors Complained of on Appeal, 02/19/2015 at 2-3
LEGAL ISSUES
When raising an issue through a PCRA petition, Defendant must first establish that he
has been convicted of a crime under the laws of this Commonwealth and is currently serving a
sentence of imprisonment, probation or parole for the crime, awaiting execution of a sentence of
death for the crime, or serving a sentence that must expire prior to serving the disputed sentence.
4 42 Pa.C.S. 9543(a)(l). Defendant must also establish by a preponderance of the evidence that
the conviction or sentence resulted from at least one of the reasons enumerated in the PCRA
petition under 42 Pa. C.S. 9543(a)(2):
(a)(2)(i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(a)(2)(ii) Ineffective assistance of counsel, which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(a)(2)(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.
(a)(2)(iv) The improper obstruction by government officials of the petitioner's right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.
(a)(2)(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.
(a)(2)(vii) The imposition of a sentence greater than the lawful maximum.
(a)(2)(viii) A proceeding in a tribunal without jurisdiction.
Defendant must then show that the claim has not been previously litigated or waived.
Commonwealth v. Banks, 540 Pa. 143, 656 A.2d 467 (1995) and 42 Pa.C.S. §§ 9543(a)(2)(i)-
(vii), 9543(a)(3), and 9544(a)-(b). Defendant must not have waived the issue by failing to raise
it before trial, during trial, or on appeal. 42 Pa.C.S. § 9544(b). If the claim has been finally
litigated, it is not subject to further review. 9543(a)(3); see also §9544(a). If the claim has not
been previously litigated, it can be raised if the Petitioner can prove that the claim has not been
waived.
5 A. This Court did not err hi refusing to recuse itself.
Defendant presents the following claims regarding recusal.
1. The court had a personal relationship with the prosecuting attorney; and,
2. The court received threats in relationship to the case at trail.
Statement of Errors Complained of on Appeal, 02/19/2015 at 2-3.
It is appropriate that the trial judge recuse himself whenever he has any doubt as to his
ability to preside impartially in a criminal case or when he believes his impartiality can be
reasonably questioned. Commonwealth v. Montalvo, 986 A.2d 84 (Pa. 2009). However, it is
presumed that the judge has the ability to determine whether he will be able to rule impartially
and without prejudice, and his assessment of his ability to do so is personal and final, absent
abuse of discretion. Id., ( citing, Commonwealth v. Druce, 311 A.2d 652, 654 (Pa. 2004) see also,
Commonwealth v. Abu-Jamal, 720 A.2d 79, 89 (Pa. 1998)("Where a jurist rules that he or she
can hear and dispose of a case fairly and without prejudice, that decision will not be overruled on
appeal but for an abuse of discretion."). The requesting party bears the burden of showing
evidence that establishes substantial doubt in the judge's ability to make a decision without bias,
prejudice, or unfairness. Id., (citing, Commonwealth v. White, 910 A.2d 648, 657 (Pa. 2006)).
i: Alleged relationship to the prosecuting attorney.
The burden on the party moving for recusal is to present evidence that establishes
substantial doubt in the judge's ability to make a decision without bias, prejudice, or unfairness.
Id. The defendant does not meet this burden.
The defendant argues that the court had a relationship with the prosecuting attorney, Ms.
Lineberger, at the time of trial that prevented impartiality. Brief for Defendant, 10/30/2014 at 4.
However, no evidence beyond the defendant's own bold assertions supports this claim. Id. The
6 defendant argues that Ms. Lineberger is the goddaughter of this Court; however, the defendant
admits, "there are no documents to prove this relationship." Id.
It is true that this Court was close friends with and a colleague of the prosecuting
attorney's father, Judge Lineberger, however, a relationship with the father of the prosecuting
attorney alone is not sufficient to establish substantial doubt of this Court's impartiality.
Defendant continues to argue that an evidentiary hearing is necessary in order to present
evidence that this Court is the prosecuting attorney's godfather. However, general allegations of
error are not sufficient to require the court to hold an evidentiary hearing. Commonwealth v.
Bazabe, 590 A.2d 1298, 1302 (Pa. Super. Ct. 1991). By the defendant's own admission, there are
no documents to substantiate the claim, and an evidentiary hearing would not change this fact.
Brief for the Defendant, 10/30/2014 at 4.
n: This Court did not err in refusing to recuse itself due to threats made against This
Court.
Although there are no controlling cases that directly address the issue, there is not a
complete absence of case law. The federal circuits have weighed in on several cases where
attorneys argued a similar "recusal because of threat" theory and all have concluded that recusal
is not required, but rather left to the discretion of the judge. United States v. Holland, 519 F.3d
909, 912-13 (91h Cir. 2008) see United States v. Gamboa, 439 F.3d 796 (81h Cir. 2006)(Judge was
not in error for failure to recuse himself after defendant threatened to kill witnesses, the
prosecuting attorney, and the judge) see also United states v. Yu-Leung, 51 F.3d 1116, 1119-20
(2°d Cir. 1995). Further, deciding that a judge must recuse himself after being threatened would
encourage defendants to threaten judges in order to get another judge or delay trial.
7 Further, the defendant incorrectly states that this Court did not acknowledge the threats to
the Superior Court in its October 'l, 1999 opinion. See, Brief for Defendant, 10/30/2014 at 6. To
the contrary, this Court acknowledged the threats within its opinion and clarified that they were
possibly threats of retaliation, but were not death threats. Trial Court Amended Opinion,
10/07 /1999 at 9. This Court certainly did not misrepresent, dismiss, or flat-out lie about the
threats as the defendant claims in his brief. Brief for Defendant, 10/30/2014 at 6.
Finally, the evidence offered by the defendant of prejudice is threadbare at best. The
defendant relies upon the statement of his trial counsel who said, "Means is pissed off." Id. at 5.
The opinion of the defendant's trial attorney is far from sufficient to establish prejudice by this
Court. Defendant offers no other evidence demonstrating that the court was prejudiced toward
him. Thus, recusal is not appropriate and this Court was within its discretion in refusing to recuse
itself.
B. Ineffective Assistance of Counsel
Defendant presents the following claims of trial counsel's ineffectiveness
1. Defendant's trial counsel was ineffective for failing to seek for recusal;
2. Defendant's trial counsel was ineffective for failing to seek severance which was prejudicial;
3. Defendant's trial .counsel was ineffective for failure to discover and present testimony by witnesses, Hakeem Butler, Tiffany Ellis, and Sid Ming;
4. Defendant's appellant counsel was ineffective for failure to seek severance on prejudicial evidence;
5. Defendant's appellant counsel was ineffective for failure to raise Brady violation; and,
6. Defendant's appellant counsel was ineffective for failure to argue that the trial court should have granted a mistrial.
Statement of Errors Complained of on Appeal, 02/19/2015 at 2-3.
8 Defendant's heavy burden in proving counsel ineffective is well established. Counsel is
presumed to be effective and the defendant has the burden of proving otherwise.
Commonwealth v. Neal, 713 A.2d 657, 662 (Pa. Sup. 1998). Accord Commonwealth v. Jones,
438 Pa. Sup. 306, 311, 652 A.2d 386 (1995). To rebut this presumption, the defendant must
show that: (I) his underlying claim has arguable merit; (2) prior counsel's performance was
unreasonable; and (3) counsel's ineffectiveness prejudiced defendant. Commonwealth v.
Beasley, 544 Pa. 554, 565, 678 A.2d 773, 778 (1996); Neal, 713 A.2d at 662.
Defendant cannot present an ineffectiveness claim due to counsel's unreasonable
performance merely by arguing, with the benefit of hindsight, that counsel could have taken
different steps. Rather, he must prove that counsel's strategy was "so unreasonable that no
competent lawyer would have chosen it." Commonwealth v. Dunbar, 503 Pa. 590, 470 A.2d 74,
77 (1983). Accord,~. Commonwealth v. Albrecht, 510 Pa. 603, 511 A.2d 764, 775 (1986).
Prejudice can be established by a showing that, but for counsel's faulted action or
omission, there exists a reasonable probability that the outcome would have been different.
Commonwealth v. Kimball, 724 A.2d 326 (Pa. 1999). Dismissal is appropriate if it is clear that
the defendant has not met the prejudice prong of the ineffectiveness standard, if this is the case
inquiry into the first and second prongs is unnecessary. Commonwealth v. Baker, 614 A.2d 663
(Pa. 1992).
i: Defendant's trial and appellate counsel were not ineffective for failing to seek
recusal.
The defendant fails to show that counsel was ineffective for failure to seek recusal
because both trial and appellate counsel reasonably refrained from seeking recusal and the failure
to seek recusal did not have a prejudicial effect on the defendant. Beasley, 678 A.2d 773, 778
9 (1996). As stated above defendant's argument that the court should have rec used itself is
unpersuasive. Neither this Court's unsubstantiated relationship with the prosecution, nor the
threats against this Court provide 'sufficient justification to override the court's discretion in
deciding when to recuse itself. Druce, 311 A.2d 652, 654. Counselors are able to determine
whether to present an argument at trial or on appeal, and in this case, both trial and appellate
counsel reasonably choose not to seek recusal. Beasley, 678 A.2d 773, 778 (1996).
The decision not to seek recusal was reasonable because as stated above and within the
defendant's own brief there is no evidence to substantiate the alleged relationship between this
Court and the prosecuting attorney. Brief for Defendant, 10/30/2014 at 4. Without any additional
evidence, a motion for recusal would be unlikely to succeed and thus both the trial and appellate
counsel reasonably refrained from bringing up the issue.
Likewise, there is no evidence that the two unknown men who circled and approached
this Court's home were attempting to threaten the judge or had any relationship to the
defendant's case. Transcript of PCRA Hearing, 10/24/2014 at 31-32. Officers described the two
unknown men as being old, between the ages of 65-70, a description that fits none of the
defendants involved in the initial trial. Id. Because no party ever identified the two men, and the
mere presence of threats does not require recusal, both the trial and appellate counsel reasonably
refrained from seeking recusal.
Further, the only evidence the defendant offers to demonstrate that the threats made
prejudiced this Court against him is a statement made by trial counsel. Brief for Defendant,
10/30/2014 at 5. This is not sufficient to establish that there was prejudice against the defendant.
Without additional evidence to substantiate prejudice toward the defendant by this court, the
ineffective assistance of counsel claim must fail. Kimball, 724 A.2d 326.
10 ii: Defendant'strialand appellate counsel were not ineffective for failing to seek
severance which was prejudicial.
Defendant argues that counsel was ineffective at trial for failing to seek severance from
his co-defendants, who were being tried for drug trafficking in addition to the charges levied
against the defendant. Defendant's claim of ineffective assistance of counsel must fail because
trial counsel's performance was reasonable and the failure to seek severance did not result in
prejudice against the defendant. ·
Under Pa.R.Crim.P. Rule 582, defendants may be tried together if the evidence of the
offenses would be admissible in a separate trial or the offenses charged are based on the same
act. Pa.RCrim.P. Rule 582. In Commonwealth v. Norman, the Superior Court held that there is
no reversible error in trying multiple defendants in one proceeding when they were charged with
crimes that all grew out of a single act, required substantially identical evidence, and where
conspiracy is alleged. Commonwealth v. Norman, 415 A.2d 898, 900 (Pa. Super. Ct. 1984) see
Commonwealth v. Schwartz, 233 A.2d 904 (Pa. Super. Ct. 1967) (Held, when conspiracy is
alleged, the defendants should generally be tried together).
Further, the Superior Court has addressed ineffective assistance of counsel claims when
the underlying claim is failure to seek severance. In Commonwealth v. Gordon. the Superior
Court found counsel was effective despite failure to seek severance. Commonwealth v. Gordon,
477 A.2d 1342, 1348 (Pa. Super. 1984). The court relied upon a five factors test in Gordon
including (1) whether the offenses were identical, (2) if the offenses rose out of a single incident,
(3) if the offense is based on statements from the same witness, (4) if the defense for the co-
defendant's is the same, and (5) whether the defendant would have testified differently if tried
separately. Id. Further, evidence of another crime by a co-defendant is admissible under Pa.R.E.
11 Rule 404, as long as the evidence's probative value outweighs its potential prejudicial effect.
Pa.R.E. Rule 404.
Finally, severance is inappropriate when the inclusion of the co-defendants and the
evidence against them results in harmless error. Commonwealth v. Young, 748 A.2d 166, 193
(1999). Harmless error occurs when the error did not prejudice the defendant or the prejudice
was de minimus, or when the uncontested evidence of guilt was so overwhelming and the
prejudicial effect of that error was so insignificant by comparison that the error could not have
contributed to the verdict. Id. (citing, Commonwealth v. Robinson, 721 A.2d 344, 350 (1998)).
Defendant's joint trial with the Lewis brothers satisfies all the requirements ofjoinder as
articulated by Pa.R.Crim.P Rule 582 and Norman. The defendant's charges arose out of the same
act as those of his co-defendants, the charges required substantially the same evidence, and there
was conspiracy alleged. Norman, 415 A.2d 898. In particular, the conspiracy charge alone makes
severance inappropriate. Id. at 901. In addition, when applying the Gordon factors it is clear that
severance was inappropriate. There is nothing to suggest that the defendant would have testified
differently than he did in the original trial, nor is there evidence that the outcome would have
differed if severed.
Additionally, the inclusion of the evidence of drug trafficking by the co-defendants was
not prejudicial to the defendant, and was at most harmless error. The admission of the evidence
qualifies as harmless error because it did not prejudice the defendant or had a de minimus effect,
and the properly admitted evidence was so overwhelming that the possible prejudicial effect of
the error is insignificant to the outcome of the trial. The inclusion of the charges against the co-
defendants for drug trafficking, in a case focused on attempted murder with numerous witnesses,
cannot be said to have any significant impact upon the defendant's case. The evidence was not
12 prejudicial to the defendant because the victim had testified that there was drug activity in the
neighborhood and that a dispute over control of a shared drug enterprise incited the shooting.
N.T. 9/15/1998, 10-26. Additionally, given the victim's testimony, identifying the defendant as
one of the shooters, it is doubtful that the inclusion drug trafficking charges against the co-
defendants affected the defendant in any meaningful way. Id. at 45-60.
In light of the foregoing, the trial counsel was not ineffective. Either trial counsel
reasonably refrained from moving for severance, or the counselor's failure resulted in a harmless
error that did not prejudice the defendant. For these reasons, the claim of ineffective assistance of
counsel for failure to sever must fail.
iii: Defendant's trial counsel was not ineffective for failure to discover and present
testimony by witnesses Hakeem Butler, Tiffany Ellis, and Sid Ming.
Defendant argues that trial counsel was ineffective for failure to bring several witnesses
to testify at trial. The claim of ineffective assistance of counsel in regards to all three witnesses
are unpersuasive and must fail.
To establish ineffective assistance of counsel for failure to present a witness, defendant
must show that; 1) the witness existed; 2) the counsel knew of the existence of the witness; 3) the
witness was available, 4) the witness was prepared to cooperate and to testify for the defendant at
trial; and, 5) the absence of the testimony prejudiced the defendant so as to deny him a fair trial.
Commonwealth v. Pursell, 724 A.2d 293 (Pa. 1999). Defendant must meet all five requirements
in order to have a successful claim of ineffective assistance of counsel. Id.
Defendant fails to meet the requirements for an ineffective assistance of counsel claim in
regards to Hakeem Butler because by his own admission he was not willing to cooperate and
testify. Brief for Defendant, 10/30/2014 at 8. Mr. Butler stated that following the shooting he
13 "kept his mouth shut because of the code of the street." Id. Thus, the defendant's claim fails the
fourth prong of the Pursell test because counsel cannot be ineffective for failing to present the
testimony of someone who is unwilling to testify.
Likewise, the defendant's ineffective assistance of counsel claims fail concerning Tiffany
Ellis and Jamila Price. The defendant failed to supply any form of certification or affidavit from
Tiffany Ellis; this alone is fatal to the defendant's claim. Commonwealth v. Brown, 767 A.2d
576 (Pa. Super. Ct. 2001 ). There is no way of ascertaining what testimony Ms. Ellis would have
given or if she was even willing to testify and for these reasons the claim of ineffective counsel
must fail. Id. Similarly, the claim of ineffective assistance of counsel for failure to call Jamila
Price cannot succeed. Defendant argues he told trial counsel that Ms. Price was a witness who
had information that would aid the defendant's defense. N.T. 10/24/14, 24:8-16. There is no
evidence that counsel should have called Jamila Price to testify other than the defendant's vague
assertions. Id. There is no affidavit or certification from the uncalled witness, and this alone is
fatal to the defendant's claim. Brown, 767 A.2d 576.
Finally, defendant's ineffective assistance of counsel claim concerning Sid Ming must
also fail for two reasons. First, Mr. Ming by his own admission in his affidavit had an open
bench warrant during the time of defendant's trial and was not willing to testify on behalf of the
defendant. Affidavit for Sid Ming. Second, the testimony that defendant claims would have
exonerated him would have no such effect. Mr. Ming claims that he saw two shooters, neither of
who were Hakim or Braheem Lewis. Id. This does not refer to the defendant, and testifying that
Hakim and Braheem Lewis were not present does not reveal anything about the defendant, Ricky
Mallory. Id. As such, the absence of Sid Ming's testimony could not have prejudiced the
defendant at trial.
14 vii: Defendant's appellate counsel was not ineffective for failure to raise Brady violation.
Defendant argues that the prosecution committed a Brady violation by failing to disclose
information concerning Dante Hunter, a witness for the Commonwealth. Specifically defendant
argues that the lack of written documents outlining the plea agreement with Mr. Hunter
constitutes a Brady violation. N.T. 10/24/14, 27:9-12.
The Supreme Court of the United States held in Brady v. Maryland that any suppression
of evidence by the state that would be favorable to an accused upon request violates the
defendant's due process rights, when the evidence is material to either the defendant's guilt or
sentencing. Brady v. Maryland, 313 U.S. 83, 87 (1963).
The defendant's claim however is completely unpersuasive. The defendant argues that
the prosecution suppressed information in relationship to Dante Hunter's criminal record and
agreement with the authorities to testify in exchange for leniency. Amended Petition, at~ 32. Mr.
Hunter, however, addressed all the information that the defendant claims the state suppressed
verbally during cross-examination. N.T. 9/15/98, 68-75, 84-88, 96-97. Further, the prosecution
addressed this concern during pre-trial motions during the defendant's initial trial in 1998.
Transcript 503, 09/14/1998, at 11-16. Because the underlying claim of a Brady violation is
unpersuasive, appellate counsel reasonably refrained from raising the Brady claim.
viii: Defendant's appellate counsel was not ineffective for failure to argue that the trial
court should have granted a mistrial for denial of an impartial trial.
A mistrial is an extreme remedy that is required only where the challenged event
deprived the accused of a fair and impartial trial. Commonwealth v. Travaglia, 28 A.3d 868, 879
15 (Pa. 2011) citing, Commonwealth v. Laird, 988 A.2d 618 (Pa. 2010). Much like the other claims
of ineffective counsel made by the defendant, this must also fail because the underlying claim is
unpersuasive.
Given that the other claims put forward by the defendant must fail, it would be
inappropriate to say that this court denied the defendant a fair or impartial trial. Further, a
defendant may not rely on several failed claims and use the alleged cumulative effect of those
claims to evidence denial of a fair or impartial trial. Commonwealth v. Busanet, 817 A.2d 1060,
1076 (Pa. 2003) (the court rejects the idea that the cumulative effect of failed ineffective counsel
claims created grounds for relief). Defendant has failed to show there was a denial of an
impartial trial through any other means than alleging a plethora of failed claims. In light of the
foregoing, granting a mistrial would have certainly been inappropriate, and appellate counsel
reasonably refrained from moving for a mistrial based on the cumulative effect of failed claims.
C. This Court did not err in declining to hold an evidentiary trial to determine if the
Commonwealth Committed a Brady Violation.
Defendant's final argument is that this Court inappropriately denied an evidentiary
hearing concerning the alleged Brady violation by the Commonwealth.
The defendant does not have an absolute right to an evidentiary hearing. Commonwealth
v. Granbery, 644 A.2d 204 (Pa. Super. Ct. 1994). Only when there is a substantive question
concerning the merits of a collateral claim should this Court grant an evidentiary hearing.
Commonwealth v. Stanley, 632 A.2d 671, 672 (Pa. 1993). Further, general allegations of error
are not sufficient to require this Court to hold an evidentiary hearing. Commonwealth v. Bazabe,
590 A.2d 1298, 1302 (Pa. Super. Ct. 1991).
16 .. The defendant does not present a substantive question concerning the Brady violation,
and thus the trial court appropriately refused to grant an evidentiary hearing. Rather the
defendant makes the vague claim that files, which the Commonwealth did not have, contained
some sort of exculpatory evidence about Dante Hunter. Amended Petition, at ,r 32. This Court
addressed the evidence that the defendant is basing his Brady claim on in pretrial motions.
Transcript 503, 09/14/1998, at 11-16. The prosecution discussed what information it had and
agreed to turn over all documents it had in regard to Dante Hunter, his crimes, and his testimony
about the defendant. Id. Further, Dante Hunter testified at trial concerning his charges and his
agreement to cooperate with the government in exchange for lesser sentencing recommendations.
N.T. 9/15/98, at 68-71. The defendant's Brady claim is the exact general allegation that Bazabe
holds does not trigger an evidentiary hearing. Bazabe, 590 A.2d 1298 at 1302. Thus, this Court
appropriately refused to grant an evidentiary hearing for the defendant's Brady violation claim.
CONCLUSION
Based on the above reasons, the judgment of this Court must not be disturbed.
BY THE COURT:
MEANS,J.