Com. v. Mallory, R. ( 2016 )


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  • 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    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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    J-S19025-16
    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
    -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
    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
    .
    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.
    17