Com. v. Mallory, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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J-S19025-16

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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J-S19025-16

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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J-S19025-16

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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J-S19025-16

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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J-S19025-16

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/12/2016

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 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

Ricky Mallory

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.

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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.

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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

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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

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"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.

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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

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(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).

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..
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.

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