Com. v. Mallory

• Decision Date: 12 January 2006
• Citation: 888 A.2d 854
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Ricky MALLORY, Appellee. Commonwealth of Pennsylvania, Appellant, v. Braheem Lewis, Appellee. Commonwealth of Pennsylvania, Appellant, v. Hakim Lewis, Appellee.
• Court: Pennsylvania Supreme Court

888 A.2d 854

COMMONWEALTH of Pennsylvania, Appellant, v. Ricky MALLORY, Appellee.

Commonwealth of Pennsylvania, Appellant, v. Braheem Lewis, Appellee.

Commonwealth of Pennsylvania, Appellant, v. Hakim Lewis, Appellee.

Superior Court of Pennsylvania.

Submitted January 24, 2005.

Filed November 15, 2005.

Reargument Denied January 12, 2006.

Hugh J. Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellant.

Patrick J. Egan, Philadelphia, for Mallory, appellee.

Burton A. Rose, Philadelphia, for B. Lewis and H. Lewis, appellees.

BEFORE: BENDER, GANTMAN, and JOHNSON, JJ.

OPINION BY GANTMAN, J.:

¶ 1 Appellant, the Commonwealth of Pennsylvania, appeals from the order entered in the Philadelphia County Court of Common Pleas, which granted relief in the form of a new trial to Appellees, Ricky Mallory, Braheem Lewis and Hakim Lewis, on their claims brought under the Post Conviction Relief Act ("PCRA").¹ The Commonwealth asks us to determine whether the PCRA court should have rejected Appellees' ineffective assistance of counsel claims because Appellees failed to demonstrate that there was a reasonable probability that the outcome of their trial would have been different but for the alleged ineffectiveness. We hold Appellees failed to establish that the alleged ineffective assistance of counsel resulted in prejudice. Accordingly, we vacate and remand for further proceedings.

¶ 2 The relevant facts and procedural history of these consolidated appeals are as follows. On August 27, 1996, multiple gunmen fired shots at the victim while he drove his car down 43rd Street in West Philadelphia. Police arrested Appellees in connection with the shooting and charged them with aggravated assault,² attempted murder,³ violations of the Uniform Firearms Act ("VUFA"),⁴ possessing instruments of crime ("PIC"),⁵ simple assault,⁶ recklessly endangering another person ("REAP")⁷ and criminal conspiracy.⁸ On September 15, 1998, Appellees appeared before the trial court with counsel.⁹ Each Appellee entered a plea of not guilty, signed a jury trial waiver form, and filled out a written jury trial waiver colloquy. These documents informed each Appellee that if he was tried by a jury:

(a) the jury would be chosen from members of the community thereby producing a jury of his peers;

(b) any verdict rendered by a jury must be unanimous, that is, all twelve jurors must agree before they can return a verdict of guilty; and

(c) he would be permitted to participate in the selection of the jury.

(Waiver of Jury Trial, dated 9/15/98, at 1). The court did not conduct an on-the-record oral colloquy. Instead, Appellees immediately proceeded to a joint bench trial on September 15th, following the court's acceptance of the written jury trial waiver documents.

¶ 3 On September 17, 1998, the court found Appellees guilty of aggravated assault, attempted murder, VUFA, PIC, simple assault, REAP and criminal conspiracy. On October 5, 1998, the court sentenced Appellees to consecutive terms of ten to twenty years' imprisonment for aggravated assault, twenty to forty years' imprisonment for attempted murder, two and one-half to five years' imprisonment for VUFA, two and one-half to five years' imprisonment for PIC and ten to twenty years' imprisonment for criminal conspiracy. Each Appellee filed a motion for reconsideration of sentence. On December 3, 1998, the court vacated Braheem Lewis' and Hakim Lewis' sentences for aggravated assault. On January 29, 1999, the court vacated Ricky Mallory's sentence for aggravated assault.

¶ 4 Braheem Lewis and Hakim Lewis filed a consolidated direct appeal with this Court on February 25, 1999.¹⁰ Ricky Mallory filed his direct appeal with this Court on March 12, 1999.¹¹ On April 19, 2000, this Court affirmed the judgment of sentence for Braheem Lewis and Hakim Lewis. Commonwealth v. Lewis, 758 A.2d 722 (Pa.Super.2000) (unpublished memorandum). This Court affirmed Ricky Mallory's judgment of sentence on July 3, 2000. Commonwealth v. Mallory, 761 A.2d 1236 (Pa.Super.2000) (unpublished memorandum). On September 5, 2000, our Supreme Court denied Braheem Lewis' petition for allowance of appeal. Commonwealth v. Lewis, 563 Pa. 699, 761 A.2d 548 (2000). On December 12, 2000, our Supreme Court denied Rick Mallory's petition for allowance of appeal. Commonwealth v. Mallory, 564 Pa. 728, 766 A.2d 1245 (2000). Our Supreme Court denied Hakim Lewis' petition for allowance of appeal on May 9, 2001. Commonwealth v. Lewis, 566 Pa. 638, 781 A.2d 141 (2001).

¶ 5 On or about November 28, 2001, Braheem Lewis and Hakim Lewis filed their first, counseled PCRA petition. On December 11, 2001, Ricky Mallory filed his first pro se PCRA petition. The court appointed PCRA counsel for Ricky Mallory on January 23, 2002. On August 29, 2002, Braheem Lewis and Hakim Lewis filed an amendment to their first PCRA petition. Counsel filed Ricky Mallory's amended PCRA petition on September 30, 2002. Each Appellee claimed ineffective assistance of prior counsel for, inter alia, failing to challenge the knowing, voluntary, and intelligent nature of Appellees' jury trial waivers. On November 24, 2003 and December 4, 2003, the PCRA court conducted evidentiary hearings on Appellees' petitions.

¶ 6 On March 2, 2004, the trial court held oral argument on the issue of counsel's ineffectiveness for not objecting to the trial court's failure to conduct on-the-record, oral jury trial waiver colloquies for Appellees. Braheem Lewis and Hakim Lewis also argued that their appellate counsel provided ineffective assistance for failing to raise the issue of the defective colloquy on direct appeal. Following argument, the PCRA court entered an order which granted a new trial to Appellees, on the basis that Appellees' waiver of their right to a jury trial was not knowing, intelligent and voluntary. To the extent that Appellees' amended PCRA petitions sought other relief, the PCRA court stated Appellees' additional claims were now moot. (N.T. Hearing, 3/2/04, at 22). The Commonwealth timely filed this appeal.

¶ 7 The Commonwealth raises the following two issues for our review:

SHOULD [APPELLEES'] CLAIMS THAT INEFFECTIVE ASSISTANCE OF COUNSEL CAUSED THEM TO INVOLUNTARILY WAIVE THEIR RIGHTS TO A JURY HAVE BEEN REJECTED BECAUSE THEY DID NOT DEMONSTRATE-AND THE PCRA COURT DID NOT FIND-ACTUAL PREJUDICE, I.E., A REASONABLE PROBABILITY THAT THE VERDICT WOULD HAVE BEEN DIFFERENT BUT FOR THE ALLEGED INEFFECTIVENESS?

IF THE ABOVE QUESTION IS ANSWERED "NO," THE FOLLOWING QUESTION IS PRESENTED: SHOULD [APPELLEES] INEFFECTIVENESS CLAIMS HAVE BEEN REJECTED BECAUSE [APPELLEES] DID NOT PROVE-AND THE PCRA COURT DID NOT FIND-THAT DIRECT APPEAL COUNSEL KNEW, OR SHOULD HAVE KNOWN, THAT THE WRITTEN JURY WAIVERS WERE SUPPOSEDLY SIGNED INVOLUNTARILY?

(Commonwealth's Brief at 2).

¶ 8 "When reviewing an order [granting or] denying PCRA relief, we must determine whether the PCRA court's determination is supported by the record and is free from legal error." Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super.2004) (quoting Commonwealth v. Geathers, 847 A.2d 730, 733 (Pa.Super.2004)). "This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings." Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).

¶ 9 In its first issue, the Commonwealth asserts, "to prevail on a claim that ineffective assistance of counsel caused an involuntary jury waiver, a defendant must prove actual prejudice, which entails a showing that the verdict likely would have been different but for the jury waiver." (Commonwealth's Brief at 10). The Commonwealth contends Appellees did not prove actual prejudice in this case, and the PCRA court did not find prejudice. The Commonwealth concludes Appellees did not meet their burden to prove that counsel's ineffective assistance resulted in prejudice, and the PCRA court erred in granting relief to Appellees.

¶ 10 In response, Appellees rely on McGurk v. Stenberg, 163 F.3d 470 (8th Cir.1998), to support their argument that the trial court's failure to conduct a proper oral colloquy constituted a "structural defect" under both the United States and Pennsylvania Constitutions, which creates a presumption of prejudice. (Brief for Braheem Lewis and Hakim Lewis at 10). Further, Appellees claim they would have asserted their right to a jury trial if the trial court had conducted an on-the-record oral colloquy. Appellees conclude the PCRA court correctly determined that they were denied their fundamental right to a jury trial and properly granted a new trial. We disagree.

¶ 11 The following principles apply to ineffective assistance of counsel claims:

To succeed on a claim that counsel was ineffective, Appellant must demonstrate that: (1) the claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. We presume counsel is effective and place upon [the petitioner] the burden of proving otherwise. Counsel cannot be found ineffective for failing to pursue a baseless or meritless claim.

Poplawski, supra (quoting Geathers, supra) (internal citations omitted). The failure to satisfy any prong of the test for ineffectiveness will cause the claim to fail. Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651 (2003).

¶ 12 "Prejudice is established when [a defendant] demonstrates that counsel's chosen course of action had an adverse effect on the outcome of the proceedings." Commonwealth v. Chambers, 570 Pa. 3, 21, 807 A.2d 872, 883 (2002) (quoting Commonwealth v. Balodis, 560 Pa. 567, 572, 747 A.2d 341, 343-44 (2000)). "Prejudice in the context of ineffective assistance of counsel means demonstrating that there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different."...