Com. v. Mallory, C.
269 WDA 2017
| Pa. Super. Ct. | Dec 26, 2017Background
- Calvin Mallory Jr. was convicted (jury) of first-degree murder, two counts of conspiracy, corrupt organizations, sale of a non-controlled substance, and criminal use of a communication facility arising from the 2008 killing of Bryant Adderley; he received life plus consecutive term. Direct appeal affirmed; PCRA petition followed alleging ineffective assistance of trial counsel.
- The prosecution’s primary witness, Robert ("Rookie") Ziegel, testified that Mallory ordered Adderley’s murder and that Mallory previously committed another murder in New York by injecting a victim with battery acid (a "hot shot"). The Commonwealth did not provide advance Rule 404(b) notice of this testimony.
- Trial counsel made no objection when Ziegel testified to these other homicides, elicited and emphasized Ziegel’s broader testimony, cross-examined Ziegel to attack his credibility, and argued in closing that Ziegel was fabricating stories.
- At the PCRA evidentiary hearing, trial counsel explained his strategy: permit inflammatory testimony to come in so he could impeach Ziegel and portray him as a liar, rather than object and risk losing his theory.
- The PCRA court denied relief, finding counsel’s strategy reasonable; the Superior Court reversed, holding counsel was constitutionally ineffective for failing to object to and move to exclude the highly prejudicial prior‑bad‑act testimony and that prejudice was shown.
Issues
| Issue | Plaintiff's Argument (Mallory) | Defendant's Argument (Commonwealth/Trial Counsel) | Held |
|---|---|---|---|
| 1. Whether counsel was ineffective for failing to object to testimony that Mallory committed other murders | Counsel’s silence and allowance of "hot shot" and Adderley‑murder testimony had no reasonable basis and was prejudicial | Counsel argued a deliberate strategy: let sensational testimony in to expose witness as a liar on cross and in closing | Held: Ineffective — strategy unreasonable; testimony unprovoked by notice and fatally prejudicial |
| 2. Whether the testimony admitted violated Pa.R.E. 404(b) and required pretrial notice | Evidence of unrelated prior murders was not within 404(b) exceptions and was highly prejudicial; prosecutor failed to give notice | Commonwealth offered no defense of admissibility or notice at PCRA | Held: Testimony did not fit 404(b) legitimate uses and prosecutor violated Rule 404(b)(3); defense should have moved for mistrial |
| 3. Whether prejudice from the prior‑bad‑act evidence undermined confidence in verdict | The inflammatory prior‑murder testimony turned Mallory into a sadistic killer and likely affected verdict on murder, RICO/corrupt organization, and related counts | Trial counsel contended impeachment and credibility attack would negate value of the testimony | Held: Prejudice shown — reasonable probability verdict would differ without evidence; new trial required |
| 4. Whether cumulative errors warranted relief (alternative claim) | Cumulative effect of counsel errors so undermined truth‑finding that conviction unreliable | Commonwealth relied on PCRA ruling that counsel strategy had reasonable basis | Held: Court granted new trial on primary ineffective assistance ground; did not need to decide remaining claims further |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance: deficient performance + prejudice)
- Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987) (Pennsylvania tripartite formulation of Strickland performance prong)
- Commonwealth v. Colavita, 993 A.2d 874 (Pa. 2010) (strategy/tactics: chosen approach must have reasonable basis; alternatives must offer substantially greater potential)
- Commonwealth v. Moore, 715 A.2d 448 (Pa. Super. 1998) (ineffective assistance where counsel elicited or permitted unrelated prejudicial criminal history without reasonable basis)
- Commonwealth v. Candia, 428 A.2d 993 (Pa. Super. 1981) (trial counsel’s invitation to introduce damaging prior crimes as credibility evidence can be ineffective)
- Commonwealth v. Spotz, 84 A.3d 294 (Pa. 2014) (prejudice standard in ineffective assistance context contrasted with harmless‑error test)