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[U] Commonwealth v. Lewis

Superior Court of Pennsylvania

July 22, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee.
v.
HAKIM LEWIS, Appellant. COMMONWEALTH OF PENNSYLVANIA, Appellee.
v.
BRAHEEM LEWIS, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order January 27, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0707771-1998, CP-51-CR-0911091-1997

BEFORE: STEVENS, P.J., BOWES, and FITZGERALD, [*] JJ.

MEMORANDUM

BOWES, J.

Appellants, Hakeem and Braheem Lewis, jointly appeal from the orders denying their first counseled PCRA petitions. After careful review, we affirm, albeit on different grounds than that supplied by the PCRA court.

Appellants, who are brothers, were jointly tried along with their additional co-defendant Ricky Mallory.[1] Appellants, Ricky Mallory, and another individual opened fire on the victim, Dante Hunter, while he was driving on 43rd Street in West Philadelphia. The shooting was the result of a dispute over the parties' shared illegal drug business. The men fired over thirty shots at the victim, striking him once in the face and grazing him twice in the abdomen. As a result of the attack, the victim lost all of his teeth when a bullet struck him in the right cheek, and that bullet remained lodged in his body. The Commonwealth charged Appellants with attempted murder, [2] conspiracy to commit assault, aggravated assault, possession of an instrument of crime (PIC), carrying firearms on public streets or property in Philadelphia, recklessly endangering another person (REAP), and simple assault.[3] Appellants and Mallory appeared for a joint trial on September 15, 1998.

Appellants, with the aid of counsel, signed a standard jury trial waiver form and completed a thirty-nine question written jury trial waiver colloquy. Appellants signed and initialed each page of the colloquy. The trial court did not conduct an oral colloquy with Appellants or Mallory, nor did counsel for Appellants or Mallory request one. The matter then proceeded to a non-jury trial. The trial court found Appellants guilty of the aforementioned charges and sentenced each to forty-five to ninety years incarceration. Appellants filed motions for reconsideration, which the court granted in part, reducing their sentences to thirty-five to seventy years incarceration.

Specifically, the court sentenced Appellants to twenty to forty years for attempted murder to be served consecutively with a term of imprisonment of ten to twenty years for conspiracy to commit assault, and two and one-half to five years each for PIC and carrying a firearms on a public street. The court denied Appellants' motion for reconsideration based on after-discovered evidence. Timely direct appeals ensued, where Appellants were jointly represented by new counsel. This Court affirmed in each case and the Pennsylvania Supreme Court denied allowance of appeal. Commonwealth v. Lewis, 758 A.2d 722 (Pa.Super. 2000), allowance of appeal denied, 761 A.2d 548 (Pa. 2000).

Appellants timely filed counseled petitions pursuant to the PCRA on November 28, 2001. Therein, Appellants alleged that their trial counsel was ineffective in failing to challenge whether the jury trial waiver was knowing, intelligent and voluntary. Additionally, since this case pre-dated Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), they alleged that appellate counsel was ineffective in declining to allege the ineffectiveness of trial counsel in this regard during direct appeal. Appellants also asserted that appellate counsel was ineffective in litigating the effectiveness of trial counsel for failing to call various alibi witnesses, including neglecting to obtain affidavits or verified statements that trial counsel knew of the alibi witnesses.

Appellants subsequently filed joint applications to amend their petitions on August 29, 2002, contending that they were illegally sentenced for both attempted murder and conspiracy to commit assault. On October 11, 2002, Appellants also sought to amend their petitions on the basis of after-discovered evidence in the form of a newly-discovered witness. The PCRA court, with a different judge than that who presided at trial, conducted evidentiary hearings on November 24, 2003 and December 4, 2003. Thereafter, the court ruled that Appellants were entitled to relief on the jury trial waiver issue, and deemed the remaining issues moot. But see Pa.R.Crim.P. 908.[4] The Commonwealth appealed.

This Court, in a published decision, reversed based on the belief that Appellants had to demonstrate that there was a reasonable probability that the outcome of their trial would have been different. See Commonwealth v. Mallory, 888 A.2d 854 (Pa.Super. 2005), reversed, 941 A.2d 686 (Pa. 2008). Our Supreme Court reversed this Court, holding that the proper prejudice analysis in the matter was whether the outcome of the jury trial waiver proceeding would have been different. Commonwealth v. Mallory, 941 A.2d 686, 704 (Pa. 2008). In addition, the Pennsylvania Supreme Court determined that the PCRA court failed to adequately consider the totality of the circumstances surrounding the waiver, focusing too heavily on counsels' failure to object to an oral colloquy. The Commonwealth's petition for writ of certiorari to the Supreme Court of the United States was denied. Pennsylvania v. Mallory, 555 U.S. 884 (2008).

Upon remand, the PCRA court again afforded Appellants relief on the jury trial waiver issue without examining the remaining claims. The Commonwealth appealed. This Court reversed, finding that appellate counsel was not ineffective for neglecting to raise trial counsel's alleged ineffectiveness on direct appeal. Commonwealth v. Lewis, 6 A.3d 551 (Pa.Super. 2010) (unpublished memorandums). Our Supreme Court denied allowance of appeal. Commonwealth v. Lewis, 23 A.3d 540 (Pa. 2011). The matter then continued before the PCRA court, this time with the original trial judge presiding. Appellants filed an application to amend their petitions on October 27, 2011, renewing their previous illegal sentencing issue and raising an additional purported legality of sentence claim. Specifically, Appellants argued that their sentence of twenty to forty years for attempted murder was unlawful because the Commonwealth did not prove that they caused serious bodily injury.

The Commonwealth responded by arguing that Appellants' requests to amend their petitions, which never were fully resolved, were untimely serial petitions. Following a hearing, the PCRA court accepted the Commonwealth's position and dismissed Appellants' petitions. This timely appeal ensued. The PCRA court directed Appellants to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellants complied. The sole issue raised on appeal is "[d]id the PCRA ...


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