Com. v. Mallory

• Decision Date: 19 February 2008
• Docket Number: No. 29 HAP 2006.,No. 30 EAP 2006.,No. 28 EAP 2006.,28 EAP 2006.,29 HAP 2006.,30 EAP 2006.
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Ricky MALLORY, Appellant. Commonwealth of Pennsylvania, Appellee, v. Braheem Lewis, Appellant. Commonwealth of Pennsylvania, Appellee, v. Hakim Lewis, Appellant.
• Court: Pennsylvania Supreme Court

941 A.2d 686

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

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

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

No. 28 EAP 2006.

No. 29 HAP 2006.

No. 30 EAP 2006.

Supreme Court of Pennsylvania.

Argued October 18, 2006.

Decided February 19, 2008.

Patrick Joseph Egan, Esq., Philadelphia, for Ricky Mallory.

Hugh J. Burns, Jr., Esq., Peter Carr, Philadelphia District Attorney's Office, Philadelphia, for Commonwealth of Pennsylvania.

Burton A. Rose, Esq., Philadelphia, for Braheem Lewis.

Burton A. Rose, Esq., Philadelphia, for Hakim Lewis.

BEFORE: CAPPY, C.J., and CASTILLE, NEWMAN, SAYLOR, EAKIN, BAER and BALDWIN, JJ.

OPINION

Chief Justice CASTILLE.^*

Ricky Mallory, Braheem Lewis, and Hakim Lewis¹ (collectively "appellants") were tried together in a bench trial and found guilty of aggravated assault, attempted murder, and lesser crimes. After their direct appeals were unsuccessful, each appellant later filed a petition seeking collateral relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. Each appellant alleged, among other claims, that his trial lawyer was ineffective in failing to challenge the knowing, voluntary, and intelligent nature of his jury trial waiver, noting that the trial court, without objection from counsel, had failed to conduct an on-the-record, oral jury waiver colloquy as is contemplated by Pa.R.Crim.P. 620. Following hearings at which appellants and their former counsel testified, the PCRA court held that appellants had proven their claims of ineffective assistance of counsel and granted each appellant a new trial. On the Commonwealth's appeal, the Superior Court reversed, holding that appellants had failed to establish prejudice. Specifically, the Superior Court, citing the lead opinion in Commonwealth v. Lassiter, 554 Pa. 586, 722 A.2d 657 (1998) (Opinion Announcing Judgment of the Court, or "OAJC"), found that they had failed to show that the outcome of their joint trial would have been more favorable if it had been conducted before a jury. For the following reasons, we vacate the order of the Superior Court and remand this matter to the PCRA court for proceedings consistent with this Opinion.

On August 26, 1997, appellants fired multiple shots at Dante Hunter while he was driving down 43rd Street in West Philadelphia. Appellants were later arrested and charged with multiple crimes arising from the incident. On September 15, 1998, appellants appeared for trial before the Honorable Rayford A. Means. Attorney David Mischak represented Mallory, Attorney Tariq El-Shabazz represented Braheem Lewis, and Attorney Guy Sciolla represented Hakim Lewis. Appellants each entered a plea of not guilty, signed a standard jury trial waiver form, and completed a written jury trial waiver colloquy. The written colloquy contained thirty-nine questions² concerning appellants' knowledge and comprehension of the right that they were waiving.

The jury trial waiver forms stated that each appellant understood the following fundamentals of a jury trial:

(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 Form, at 1. The written waivers asked whether appellants understood more specific principles of a jury trial, including: the Commonwealth's burden of proof, the defendant's ability to participate in choosing the jurors, the defendant's ability to challenge and strike jurors and, again, the unanimity requirement for the jury to render a verdict of guilty. Each written colloquy was signed by the respective appellant, his counsel, and the prosecutor. Each appellant initialed each page of his written waiver colloquy, and each signed a declaration on page four of the colloquy confirming that: "I have answered the questions on the above Defendant Information Sheet and I have reviewed this entire matter with my attorney and I understand all of the information given above." Each of those certifications was followed by the signature of defense counsel as a witness.

Also on each form, just below defense counsel's signature, is a "certification" signed by the Assistant District Attorney, stating that she had asked the defendant if there was anything he did not understand on the written waiver colloquy form, or if there was anything else he did not understand, that the defendant indicated his understanding of everything set forth in the form, and that any questions concerning the waiver of a jury had been answered by his attorney. On the bottom of the fourth page is a certification for the trial court to execute which states, inter alia, that the court is "satisfied that the defendant fully understands the nature and quality of the Jury Trial Waiver." The trial judge signed that certification on the written waiver colloquies of appellants Mallory and Hakim Lewis, but did not sign it on Braheem Lewis's written colloquy.

In open court, the trial judge, after being informed that the parties were seeking a non-jury trial, asked if the "waiver colloquies are done and the Assistant District Attorney has signed it." Notes of Testimony ("N.T.") Waiver Trial, 9/15/98, at 4-5. The prosecutor responded in the affirmative. After discussion of an unrelated issue, the court then noted that it had signed each of the written jury waivers. Id. at 8. None of the appellants or their counsel objected to the jury waiver process. Although the trial court acknowledged on the record that the waivers had been signed by each appellant, the trial court did not conduct an on-the-record oral waiver colloquy for appellants. Nor did any appellant request an oral colloquy. The case then immediately proceeded to a joint bench trial.

On September 17, 1998, Judge Means found each appellant guilty of attempted murder,³ aggravated assault,⁴ possession of an instrument of crime,⁵ violation of the Uniform Firearms Act,⁶ criminal conspiracy,⁷ and recklessly endangering another person⁸ On October 5, 1998, the trial court denied appellants' post-verdict motions and sentenced each appellant to an aggregate sentence of forty-five to ninety years of imprisonment. Appellants filed motions for reconsideration, which were granted in part as each aggregate was reduced to thirty-five to seventy years of imprisonment.⁹ Appellants' motions for reconsideration based on after-discovered evidence were denied. Thereafter, appellants filed appeals to the Superior Court, which affirmed their judgments of sentence.¹⁰ This Court declined further discretionary review of each appeal. See Commonwealth v. Braheem Lewis, 563 Pa. 699, 761 A.2d 548 (2000) (Table); Commonwealth v. Mallory, 564 Pa. 728, 766 A.2d 1245 (2000) (Table); Commonwealth v. Hakim Lewis, 566 Pa. 638, 781 A.2d 141 (2001) (Table). During their direct appeals, the Lewises were jointly represented by new counsel, F. Emmett Fitzpatrick, Esquire, and Mallory was represented by his trial counsel.

On November 28, 2001, the Lewises filed counseled petitions for relief under the PCRA. On December 11, 2001, Mallory filed a pro se PCRA petition and he was appointed counsel. Amended petitions were filed. Each appellant claimed, inter alia, that his trial counsel was ineffective for failing to challenge the voluntary, knowing, and intelligent nature of his jury trial waiver. Evidentiary hearings were held by the PCRA court on November 24, 2003 and December 4, 2003.

Mallory testified and claimed that he would have opted for a jury trial if the trial court had conducted an on-the-record, oral jury waiver colloquy. N.T. PCRA Hearing, 11/24/03, at 6-7, 14. Mallory further claimed that he had signed his written jury waiver only because he thought he had to sign because his co-defendants had already signed their waiver documents when he arrived in the courtroom. Mallory also testified that: he reviewed the written waiver colloquy for approximately ninety seconds prior to signing; he did not actually read the waiver colloquy during those ninety seconds; his trial counsel did not review the waiver colloquy with him; and he and his trial counsel never discussed a bench trial. Id. at 9-10, 16. Mallory's trial lawyer, Attorney Mischak, testified that, during his pretrial discussions with Mallory, it was clear that his client preferred a jury trial. Mischak could no longer recall whether he went over the jury waiver form with Mallory, but noted that it was his practice to explain to his clients in waiver trials that they had a personal right to a jury trial, and that he would not have done anything to coerce a jury waiver. Mischak further testified that it was Attorney Sciolla, Hakim Lewis' lawyer, who first suggested proceeding with a bench trial, a suggestion made on the morning of trial. Id. at 24-26, 30-32.

Attorney El-Shabazz testified that all of his discussions with his client, appellant Braheem Lewis, had centered on proceeding with a jury trial, with the exception of the day of trial. N.T. PCRA Hearing, 12/4/03, at 6-7. Furthermore, El-Shabazz testified that, after speaking with Attorney Sciolla, he believed that a bench trial offered his client a better prospect of a favorable verdict. El-Shabazz thus recommended to his client that he should waive a jury. He further testified that he explained the written colloquy to his client, who understood what he was waiving. El-Shabazz added that he believed his client "was waiving his right to a jury definitely knowingly and intelligently, meaning he understood what was going on." El-Shabazz acknowledged that his client wavered "back and forth," but voluntarily "submitted to" his recommendation. Finally, El-Shabazz noted that, in every case involving such decisions, he emphasized to...