J-S54034-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CALVIN MALLORY, JR.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 269 WDA 2017

 

Appeal from the PCRA Order January 11, 2017

In the Court of Common Pleas of Somerset County 

Criminal Division at No(s): CP-56-CR-0000319-2011

BEFORE: OTT, MOULTON, and FITZGERALD,

*

JJ.

MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 26, 2017

Appellant, Calvin Mallory, Jr., appeals from the order of the Somerset 

County Court of Common Pleas denying his petition for relief under the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. Appellant 

contends, inter alia, that defense counsel provided ineffective assistance 

during trial by failing to object to testimony by a Commonwealth witness of 

other murders that Appellant allegedly committed or ordered. We agree 

with Appellant that defense counsel provided ineffective assistance that 

resulted in prejudice. Therefore, we reverse the PCRA court’s order, vacate 

the judgment of sentence, and remand for a new trial. 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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FACTUAL AND PROCEDURAL HISTORY

1. Procedural History

Appellant was charged with first degree murder,1two counts of 

conspiracy to commit murder in the first degree,2and one count each of 

corrupt organizations,3sale of a non-controlled substance4and criminal use 

of a communication facility.5 The jury found Appellant guilty of all charges 

following a four-day trial. The trial court sentenced him to a mandatory 

term of life imprisonment for first degree murder followed by a consecutive 

term of two to ten years’ imprisonment. On direct appeal, this Court 

affirmed, and our Supreme Court denied Appellant’s petition for allowance of 

appeal. Commonwealth v. Mallory, 97 WDA 2013 (Pa. Super. Mar. 19, 

2014) (unpublished memorandum), appeal denied, 203 WAL 2014 (Pa. Oct. 

6, 2014).

Appellant filed a timely PCRA petition alleging ineffective assistance of 

trial counsel due to unreasonable trial strategy. On April 27, 2016, the PCRA 

____________________________________________

1 18 Pa.C.S. § 2502(a).

2 18 Pa.C.S. § 903. One count alleged a conspiracy between Appellant and 

Toriano McCray, and the other count alleged a conspiracy between Appellant 

and Roland Washington.

3 18 Pa.C.S. § 911(b)(3).

4 35 P.S. § 780-113(a)(35)(ii).

5 18 Pa.C.S. § 7512(a).
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court held an evidentiary hearing during which trial counsel testified. In an 

order and opinion issued on January 11, 2017, the PCRA court denied 

Appellant’s PCRA petition. Appellant filed a timely appeal to this Court, and 

both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

2. Factual Background

Appellant’s conviction arises out of the shooting death of Bryant 

Adderley inside his apartment in August 2008. Police officers recovered a 

package of fake cocaine at the scene. About one week after the discovery of 

Adderley’s body, Ronald Ziegel was arrested in Fayette County on an 

unrelated charge. Ziegel provided information that resulted in the arrests of 

Appellant, Washington and McCray. 

The PCRA court describes the evidence adduced during trial as follows:

On July 21, 2011, the then-District Attorney of Somerset 

County filed an Information charging [Appellant] with 

multiple crimes arising out of the death of Bryant Adderley.

In essence, the Commonwealth alleged that [Appellant]

headed an illegal drug distribution ring based out of 

Brooklyn, New York, and Bryant Adderley “worked” locally 

for [Appellant] as a dealer. According to the 

Commonwealth’s theory of the case, Adderley had been 

stealing money from [Appellant] so [Appellant] ordered 

Adderley’s murder by instructing Roland Washington and 

Toriano McCray to shoot Adderley.

Robert Lee Ziegel, the prosecution’s chief witness, drove 

Washington and McCray to Adderley’s residence on the day 

of the murder. Ziegel initially was a marijuana smoker 

who sold marijuana on the side to finance his drug habit. 

Ziegel found, however, that he was unable to financially 

make ends meet, even with working a legal job and selling 

marijuana. He, therefore, decided to start selling crack 

cocaine as well. Ziegel’s cocaine supply was purchased in 
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part from Pittsburgh suppliers and in part from Bryan 

Maust, a local dealer who worked for [Appellant]. Maust 

eventually introduced Ziegel to [Appellant], at which time 

[Appellant] stated his interest in employing Ziegel as one 

of his dealers.

About two months after [Appellant]’s and Ziegel’s first 

meeting, [Appellant] contacted Ziegel and instructed him 

to drive Maust to a farmhouse near Jennerstown, 

Pennsylvania. At the farmhouse, [Appellant] offered to 

supply Ziegel with cocaine for a lesser price than Ziegel 

had been paying his Pittsburgh suppliers. Also present at 

the farmhouse meeting was an associate of [Appellant]’s 

named “B-Bop.”

In the time following the farmhouse meeting, Ziegel’s 

dealing enterprise began to expand, eventually employing 

around five people as distributors. Ziegel went from 

acquiring one ounce to four ounces of cocaine at a time 

from [Appellant]’s dealers, after which [Appellant]

informed Ziegel that he would have to come to Brooklyn to 

“re-up.” [Appellant] also instructed Ziegel to transport to 

Brooklyn money owed to [Appellant] by Maust. The 

amount of cocaine [Appellant] supplied Ziegel eventually 

increased to a kilo at a time.

Later, [Appellant] instructed Ziegel to meet him at the 

Jennerstown farmhouse again, which is where Ziegel first 

met Bryant Adderley, or “B-Dave.” [Appellant] told Ziegel 

that Ziegel was traveling too much with too much product, 

so [Appellant] was going to position Adderley nearby with 

drugs so that Ziegel would not have to travel as far to “re–

up.” At that point, [Appellant] also gave Ziegel a quarterpound of heroin and instructed him to sell it. Ziegel only 

sold the heroin for a month or so, however, because too 

many people in the area were overdosing on it. Ziegel 

reported this to [Appellant], and [Appellant] decided to 

stop selling the heroin in the area.

One of [Appellant]’s shipments subsequently got “busted,”

and Ziegel was informed that he would not have any 

product for about two weeks. Ziegel was given five 

pounds of marijuana to sell in the meantime, which was 

worth $10,000. Because Ziegel had saved enough money
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to cover the cost of the marijuana, he decided to take a 

vacation to Ocean City, Maryland with his girlfriend (Amy 

Johnson), and two other people, one of whom worked for 

Ziegel as a “crew member.” In Ocean City, a police officer 

saw Ziegel sitting in a vehicle rolling a “blunt” (a cigar with 

the tobacco removed and marijuana inserted). Ziegel 

admitted to the officer that the marijuana belonged to him. 

Ziegel was taken to jail, where a DEA agent offered him a 

deal[6]in exchange for information as to who had sold 

Ziegel the marijuana. Ziegel declined and went to jail 

instead, staying for two weeks before he was finally bailed 

out by [Appellant] via Ziegel’s wife, at ten percent of the 

$50,000 bond.

At this point, Ziegel owed [Appellant] $10,000 for the 

marijuana and $5,000 for the purchase of the bail bond.

Ziegel went to Brooklyn and repaid [Appellant], after which 

[Appellant] gave Ziegel ten ounces of crack cocaine to help 

him “get back on [his] feet.” [Appellant] also informed 

Ziegel that he had earned his “first stripe” for getting 

locked up and not rolling over under pressure from the 

DEA. 

About a month later, Ziegel was again arrested and 

charged, this time by the Pennsylvania State Police, with 

selling crack cocaine to a friend. While the Pennsylvania 

charges were pending, Ziegel briefly moved back into his 

parents’ home, and began working with his father at 

Hidden Valley Resort on the maintenance crew. It was at 

that point that Maust contacted Ziegel, again on 

[Appellant]’s behalf. Ziegel was nervous because he knew 

that he still owed [Appellant] $12,000 for the ten ounces 

of crack cocaine [Appellant] had given him to get back on 

his feet. Maust transported Ziegel to a location in 

Donegal, where [Appellant] was waiting. 

[Appellant] asked Ziegel if he was ready to begin selling 

again, to which Ziegel replied that he guessed so. 

[Appellant] at this point also allegedly threatened to smash 

____________________________________________

6 The DEA agent was investigating because a large amount of marijuana had 

been found in the trunk of Ziegel’s vehicle. 
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a beer bottle into Maust’s face because Maust had used an 

ounce of heroin instead of selling it. Maust was given a 

week to get the money to [Appellant]. However, 

[Appellant] made no mention at that point of Ziegel’s debt. 

[Appellant] shortly thereafter began supplying Ziegel with 

two ounces of cocaine at a time to sell. Ziegel claimed to 

have been given his second stripe after his second bust; 

that is, he was promoted to “General” within [Appellant]’s 

organization. 

Ziegel returned to selling drugs full-time. Later, the 

Fayette County Drug Task Force showed up at Ziegel’s 

residence where he was found in possession of sixteen 

grams of marijuana. Ziegel indicated that he could do his 

time, but that he wanted out of “this lifestyle,” after which 

he agreed to cooperate with the authorities. However, 

nothing much came from his agreement to cooperate. As 

Ziegel described it, “I just kept putting it off basically . . . I 

said, I got to keep doing what I’m doing to make it look 

good. And [the officer] said, he can’t promise me nothing, 

but he said that they’ll lay off me.”

Subsequently, Ziegel met up with [Appellant] at the “Trent 

Residence,” a house located on Trent Road in Bakersville, 

Pennsylvania. Ziegel was invited in by a man named 

“Sheik.” [Appellant] and Adderley were in the bathroom, 

and Ziegel overheard them discussing a deal: “I heard 

them say something about they don’t trust it. I heard 

about offing it . . . And at the end I just heard let’s give 

him a choice. That’s . . . the extent of the conversation I 

heard.” Ziegel believed they were talking about him. 

After the discussion between [Appellant] and Adderley, 

[Appellant] came out of the bathroom and offered Ziegel a 

position in Erie, Pennsylvania. Ziegel’s choice became: go 

to New York to pick up a kilo or go to Erie. Ziegel

accepted the Erie post, figuring that if he went to New 

York, he would never come back.

Business continued more or less as usual through 2009. 

One day, [Appellant] called Ziegel out of the blue and 

asked him to come to New Jersey as soon as possible. 

Ziegel caught a ride to Columbus, Ohio, where he met up 

with a woman who had [Appellant]’s Yukon Denali, which 

Ziegel then drove to Perth Amboy, New Jersey. Ziegel met 
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[Appellant] there, along with Roland Washington and 

Toriano McCray. Ziegel had never met McCray before, but 

he had met Washington at least once. Ziegel testified that 

[Appellant] sat him down, “and he’s talking about B-Dave. 

He’s like, he’s been shorting me money. I don’t know why 

he’s screwing around like this. You know, we got to teach

him a lesson because he’s, he’s kind of telling me what I 

needed to do.” Ziegel next testified that the plan was to 

package up fake cocaine and then he, McCray, and 

Washington were to go to Somerset to deliver the fake 

cocaine to Adderley and “get the money off of him.”

Ziegel testified that he helped “puck” up the package of 

fake cocaine. Pucking had been explained as follows:

Well, what a puck is, there’s a device called a puck 

press. It has a hydraulic pump, and there’s a little 

round device on top, where there’s a hole here. Kind of 

looks like a hockey puck. Put the powder in it, you 

screw a top on, a solid metal top, and you move the 

jack, and it jacks it up and compresses it into a form of 

a puck.

[M]ost people who do drugs like their powder in rock 

form. So if you cut it, you got to break it down into 

powder, and then to get it hard again you have to 

what’s called puck it, press it.

Ziegel indicated that the procedure is to take pure powder 

cocaine, to cut it with something, “[u]sually procaine,” and 

then puck it. So Ziegel testified that the plan was to take 

fake cocaine and puck it to give it the appearance of real 

cocaine, and then take it to Adderley in exchange for 

money: “Me and [Appellant] packaged it . . . Baking soda .

. . Because he didn’t want to waste his money trying to 

puck up cocaine because it cost too much.” Ziegel agreed 

that they had trouble packing it: “Baking soda won’t 

compress. As soon as we puck it up, it would just fall back 

apart. I tried putting hair spray in it to try to hold it 

together. That didn’t work. So . . . it wouldn’t puck up.”

McCray testified that what Ziegel had packed up was 

cocaine. McCray knew it was cocaine because he took 

some to the bathroom and used it without anyone else 
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knowing. McCray testified, “I know it was real cocaine 

because I was usin’ it. I snuck some and was usin’ it . . . I 

did drugs from years ago. I know what cocaine is . . . .”

McCray knew, then, that the drugs that they had packaged 

up in Brooklyn to take to Adderley were real. 

The trio retrieved two guns in Perth Amboy, which 

Washington and McCray carried. Ziegel at this point 

believed that the plan was to rob Adderley rather than 

murder him. But Washington testified that when they left 

New York with the guns, it was his understanding that they 

were supposed to murder Adderley, per [Appellant]’s 

instruction. Washington corroborated Ziegel’s testimony 

that the plan was to rob Adderley. But, according to 

Washington, they were also to murder Adderley at 

[Appellant]’s request, and for free. However, McCray 

testified that [Appellant] offered the parties “a large 

amount of money” to murder Adderley, more specifically, 

they would receive $50,000 or $60,000 for the homicide, 

which they could retrieve from Adderley’s Johnstown 

apartment after the murder. 

Adderley was not home when the trio first arrived, so they 

drove around and returned later, at which point, Adderley 

had returned. As Ziegel narrated: 

Washington and McCray grab the box of fake cocaine, 

and they walk up to the door. . . It’s still early in the 

morning, probably about 8:30, 9, sometime . . . I’m 

sitting out in the car. I was smoking a cigarette, 

waiting for them to come out . . . I’m sitting in there 

smoking my cigarette, and the next thing you know, I 

hear six, seven gunshots right in a row. And a little bit 

after that, they come walking out like nothing even 

happened, hop back in the car, told me to pull out and 

drive, drive slow. 

According to McCray, he and Washington entered 

Adderley’s home. Washington handed Adderley the 

product, and McCray asked if he could use the bathroom.

While McCray was in the bathroom, he heard Adderley yell 
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“What the ‘F’ is this?” after which he exited the bathroom 

to see Adderley facing away, examining the bag. When 

Adderley turned around, McCray fired.[7] According to 

McCray, at that point, he still did not know that the drugs 

were fake. 

The parties drove off and disposed of the evidence, after 

which they went to Adderley’s other apartment in 

Ferndale, Pennsylvania. Ziegel could not recall whether 

[Appellant] had called someone in the car or vice versa, 

but Ziegel was handed a phone, and [Appellant] was on 

the other end of the line asking “how the Godfather Part II 

went, jokingly; and I said all right because I didn’t know 

what else to say. And I handed the phone back to 

McCray.” As Ziegel put it,

We all go up to the apartment. I wait in the living room 

and they go back in the bedroom and change into 

different clothes, and they were looking for something.

I, I don’t know what that something was. So they finish 

up. And we all leave. We all get back into the car. . . . 

We head back to Perth Amboy, New Jersey.

The three eventually found [Appellant] in Brooklyn. Ziegel 

smoked some marijuana and drank some vodka to calm 

his nerves while [Appellant] prepared “the next little 

package” for Ziegel to leave with so Ziegel would not have 

to return anytime soon. Ziegel wanted to leave 

immediately to go back to Erie, but [Appellant], McCray, 

and Washington took a vote, deciding that Ziegel was 

required to stay and rest up before he left. Ziegel was 

arrested two days later. Ziegel had slept for most of his 

first day back in Erie. The next day, he went out “to kind 

of clear my mind and everything, and ended up getting 

stopped by the Game Commission.” About six days later, 

on August 25, 2009, he gave a statement to the police 

implicating [Appellant] in Adderley’s murder. Ziegel 

testified at [Appellant]’s preliminary hearing under a grant 

____________________________________________

7 Defense counsel objected to publication of photographs depicting 

Adderley’s dead body because of their “shock value.” N.T., 4/10/12, at 61-

62, 85.
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of immunity, and on February 16, 2012, Ziegel pleaded 

guilty to third degree murder. 

PCRA Ct. Op., 1/11/17, at 1-9 (citations omitted). Washington and McCray 

both testified for the Commonwealth, and both pleaded guilty to third degree 

murder for their roles in Adderley’s death. N.T., 4/11/12, at 91, 161-62. 

3. Testimony During Trial Concerning Other Murders

We now turn to the testimony by Ziegel that lies at the heart of this 

appeal—testimony that the deceased, Adderley, committed a murder at 

Appellant’s request, and Appellant himself committed a gruesome murder by 

injecting a victim with battery acid. 

During the Commonwealth’s direct examination, Ziegel testified, 

without objection, that Adderley “took a homicide” for Appellant on a prior 

occasion. N.T., 4/10/12, at 138-39. Ziegel then testified, without objection, 

that he also witnessed Appellant commit a murder in New York by injecting 

the victim with battery acid, a so-called “hot shot”:

BY THE DISTRICT ATTORNEY:

Q. Were you ever present in New York when a hot shot 

was administered?

A. Yes, I was.

Q. Explain to the jury what a hot shot is.

A. A hot shot is a needle filled with battery acid.

Q. What kind of needle?

A. A hypodermic needle or an insulin needle.
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Q. And what did you see?

A. Shortly after I got busted in [Ocean City,] Maryland, I 

got out and went back up there, up to Brooklyn; and after 

I explained to them what happened and everything, we 

went for a ride. And it was me, B-Dave [the deceased, Mr. 

Adderley], B-Bop and [Appellant]. And John Barden 

(PHONETIC) actually did tell me to stop, there he is.

Q. You're driving the car?

A. Yes. Said stop. There he is. They get out. B-Dave and 

B-Bop hold a guy down while C [Appellant] injects him 

with a syringe.

Q. He injects him with what?

A. A syringe.

Q. And what happens?

A. The guy stops moving after a little bit and they prop 

him up against the Dumpster and get back in and tell me 

to go.

Q. And what do they say?

A. I can’t remember exactly what was said. But it was to 

the point, let that be a lesson. Don’t mess with us or 

something like that. I can’t exactly remember.

Q. And do you think that was a message for you in the 

sense that you had just been released again from prison?

A. That’s the way I took it.

Id. at 140-41. We see nothing in the record indicating that the 

Commonwealth notified defense counsel, prior to or during trial, of its intent 

to introduce this testimony. Nevertheless, defense counsel did not object to 

this testimony or move for a mistrial. Id. at 138-41. 
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During Ziegel’s cross-examination, defense counsel asked questions 

designed to demonstrate that Ziegel’s “hot shot” testimony was incredible:

A: Well, like I stated before, I still wasn’t fully set on 

getting out [of the drug operation]. It wasn’t till I seen 

people in our own organization getting shot that kind of 

has a way to set your—

Q: So after [Adderley] was murdered, then it occurred to 

you that this was probably not a good plan?

A: Yes. That I wanted definitely to get out.

Q: When you saw a guy held down and have battery acid 

shoved into his arm and dumped into an alley in Queens, it 

never occurred to you, this was a bad idea? The money 

was still good?

A: Yes, that did occur to me; but like I said, I was never 

dead set on doing it.

Q: But the money was still as attractive even though you 

just saw somebody who you never saw again have battery 

acid shoved into his vein, that didn’t tell you: I got to stop 

and quit right here? You kept going?

A: Yes, I kept going.

N.T., 4/10/12, at 289-90.

4. Closing Argument

During closing, defense counsel argued that Appellant’s “hotshot” 

testimony was unworthy of belief:

And while they [Appellant, his co-conspirators, and others] 

were there in New Jersey and New York barbecuing, 

drinkin’ beers, smoking, some extra people came in there .

. . Lots of people were there. They were hanging out. 

During this time . . . [Adderley] arrives . . . They went to 

Coney Island together . . . They’re hanging out. You’re a 
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pal. We’re having barbecue. We’re doing this. We are 

taking day trips.

If you wanted to really kill Bryant Adderley, why not do it 

there? Why not kill him right there? I wasn’t really sure 

what happened to that guy who got the hot shot, but they 

pumped his arm full of battery acid and dumped him in an 

alleyway in Queens, New York, near a dumpster. Sounds 

like there were easy opportunities to get rid of someone 

there versus anywhere else. I mean it was a possibility.

And everybody said: Best friends. [Adderley] and

[Appellant], best friends. Great friends . . . That’s pretty 

nice. And when he’s up in New York and New Jersey and 

they go to Coney Island, still everything is okay. And two 

days later, he would be back in Somerset and would 

[Appellant] send three guys there to kill him? I would 

argue to you that’s unlikely.

N.T., 4/12/12, at 20-21.

Defense counsel’s theory of the case was that Appellant was a drug 

dealer who had sent three of his crew to Somerset, Pennsylvania to deliver 

cocaine. Ziegel cooked up a scheme whereby he and the two gunmen would 

deliver fake cocaine to Adderley, take the money, and leave. However, 

Adderley realized that the drugs were actually fake and confronted the two 

gunmen, who shot him to death and fled in a vehicle with Ziegel. When it 

became clear that police believed they had planned to murder Adderley, 

they blamed Appellant to facilitate a deal to plead guilty to third degree 

murder. Defense counsel articulated this theory as follows during his closing 

argument:

So they package up their cocaine, so Mr. Ziegel says, and 

we were all packaging up fake cocaine. But Toriano 

McCray, he had a little bit more information about the 
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packing of cocaine in New Jersey than anybody else. He 

said, Hey, I took some of that cocaine; it was cocaine; it 

wasn’t baking soda. I’ve done coke before. I know what it 

was.

So it was real cocaine . . . It was a . . . regular delivery. 

Nothing more and nothing less. But Mr. Ziegel needed 

$12,000 and he needed it bad. He needed it so bad that 

he figured: I’ll take the ten ounces you gave me of real 

cocaine that I pucked up and I’ll also have my own supply 

of fake cocaine that I’ve pucked up. And I’ll hand these 

two guys that come with me, who are supposed to deliver 

real cocaine and pick up real money, I’ll hand them the 

fake cocaine and we’ll get his money and we’ll have the 

drugs and I can go back to doing business in Erie County . 

. .

Now, we have a bit of a problem here . . . in the moments 

described by Toriano McCray, you might want to doublecheck that. Because, as I said . . . Toriano McCray went 

into the bathroom [at Adderley’s residence] . . . [and] 

Toriano [had previously] picked up[] real coke. And he 

walked in and he went to the bathroom and he heard the 

voice of [Adderley] saying . . . “What the fuck is this?”. . . 

It took . . . a half a second for [Adderley] to realize that 

this was fake. This wasn’t real. 

Mr. Ziegel talked about how everybody pretty much was 

armed. And before a problem ensued, as soon as he heard 

that, Toriano McCray said: I was out of the bathroom firing 

my gun . . . But the reality is: In that second . . . that was 

a defensive move. That was a move of: I didn’t think that 

this guy was going to look in the box that quickly and I 

didn’t know what the problem was because I think this is 

real coke. But I’m coming out to make sure that I don’t 

get shot by somebody. And that’s what Toriano McCray 

did. This was to be a robbery and they were going to steal 

his drugs and money. But this thought process belonged 

solely to Rookie, Mr. Ziegel. It’s his plan. I’m going to rob 

them and I’ll have the drugs and money and I’m halfbaked on coke, so I’m completely protected here. And we 

are going to rob this guy. And that robbery went bad. It 

went real bad. It went bad very fast.
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And I know that Toriano McCray said: Oh, yeah, I saw 

them package up real coke. I know he said that. But I 

believe that Toriano McCray [then] knew what they were 

going to deliver was fake coke for a robbery. And you 

want to know why? . . . They took the time to get [the 

victim’s] keys, his wallet and his cell phone. If you 

thought that was real coke, you would take that with you, 

too. That’s worth $10, $12,000. It’s ridiculous not to take 

that box with you. And it leaves more of a mystery for the 

police, quite frankly, because now they just have a dead 

body. They don’t have anything . . . .

Ladies and gentlemen, this was a robbery to steal drugs 

and money and that plan was hatched by one person: Mr. 

Ziegel. And Mr. Ziegel had plenty of opportunity to 

convince two poor guys, McCray and Washington, that 

they can make money off of this deal. They were both out 

of work. They were not connected into this operation. 

They weren’t Generals . . . They were nothing. And they 

had a chance to make some quick money. I would argue 

to you that this murder was not as intentional as it 

seemed. It was a robbery gone bad, pure and simple, 

hatched by Ziegel, hatched by Rookie so that he could 

have his drugs, get money, and nobody else could get it 

and be ready to go. 

Id. at 22-26, 33.

5. Evidentiary Hearing On PCRA Petition And PCRA Court’s 

Decision

Defense counsel noted that Appellant was charged with two substantial 

charges: first degree murder and running a drug dealing operation. N.T., 

4/27/16, at 25. Defense counsel contended that his first priority was to 

“beat the murder-one charge” because a conviction for this offense would 

mandate life imprisonment without parole. Id. He elaborated that “the 

strategy going on was simple. I’m not a murderer. I didn’t direct anybody 
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to commit a murder on my behalf. I may be a drug dealer, but I’m not 

going to kill my best friend.” Id. at 26.

PCRA counsel asked why trial counsel remained silent during Ziegel’s 

testimony about the “hot shot” murder. Defense counsel answered:

I believe that every word that came out from Mr. Ziegel’s 

mouth was either a lie or an exaggeration or an imaginary, 

I’m a bigger person than you know. 

I spent a lengthy time[,] I believe[,] at sidebar[, and] both 

the DA and I were admonished for how long it took to get 

through his testimony. And because I needed to establish 

that every word that came out of it was pure unmitigated 

garbage, that he was not credible on a shot.

The fact that he’s telling tales out of school, this is the 

same person who explained how suddenly he got 

promoted every time he got arrested and charged 

criminally; that [Appellant] somehow would say, oh, now 

that you’ve been arrested and criminally charged and 

you’re costing me more money and lost drugs, that 

somehow I’m going to make you a lieutenant in the 

organization and move you up because you’re impressing 

me with your skill as a drug dealer for me.

N.T., 4/27/16, at 49. PCRA counsel also inquired as to why defense counsel

did not object to the other homicide testimony, and defense counsel

explained:

More puffery and nonsense from Mr. Ziegel about what a 

big, bad—I want to say ass—drug dealer he was. Look 

how cool I am, I go to New York, I talk about murders, 

murders being committed left and right and how tough we 

are. On cross-examination I believe I established, not 

convincingly to the jury, that pretty much his story didn’t 

make any sense. I’m getting promoted up through failure; 

and I think that’s exactly what I argued at closing 

argument, that he was being promoted up through his 

failure as a drug dealer.
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Id. at 50-51.

PCRA counsel argued that defense counsel had no reasonable basis for 

failing to object to the “hot shot” evidence and the evidence that Adderley 

committed murder at Appellant’s direction. Id. at 84. PCRA counsel added: 

“I can’t believe that [this evidence] wouldn’t have made a difference in this 

case. When your client has now been admitted to have committed [or been] 

involved in two other murders . . . the jury [is] tainted beyond measure at 

that point [and is] going to issue a guilty verdict . . .” Id. 

The PCRA court responded:

So if I understood [defense counsel] correctly, he said I 

didn’t object to those sensational stories that Ziegel was 

telling because he was just making that stuff up because 

he was a liar and he wanted to look good. So if that’s the 

defense theory and that’s why he didn’t object, okay, I 

understand that. But then, to be honest, as I’m sitting 

here now, you know, I have to say that, doggone, the stuff 

that came out, those lies, if that’s what they were, sure 

seemed awfully damaging.

Id. at 92. The court added:

[E]ven [defense counsel’s closing] argument was 

consistent . . . with what he is describing as his strategy 

today, which is that they’re all liars and everything they 

say is a lie. My guy didn’t do it. He wasn’t there. They’re 

all lying. That was the defense theory. My question 

becomes: well, if that was the theory and that was the 

strategy, what happens when you let in stuff that’s so 

damaging, that it—I mean even I was thinking to myself, 

ouch . . . . 

I want[] to know if there was a case out there, that I’ll call 

the “ouch” case now, that says when it’s that bad, you 

have to overlook strategy.
J-S54034-17

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Id. at 93, 94.

Ultimately, the PCRA court determined that defense counsel had a 

reasonable trial strategy:

[A]ccording to the defense’s theory of the case, Ziegel 

himself had orchestrated the robbery-gone-wrong. It was 

therefore important to highlight the inconsistencies in his 

account of the murder, including, e.g., the fact that 

[Appellant] and Adderley were on good terms just days 

before the murder; Ziegel testified that he had pucked up 

fake cocaine with [Appellant] in order to dupe Adderley, 

however McCray testified that the cocaine that was pucked 

up was real cocaine—yet, nevertheless, fake cocaine ended 

up at the scene of the murder; and that if [Appellant] had 

allegedly committed a prior murder without detection in 

New York, then he could have committed this murder in 

the same manner instead of ordering the murder as Ziegel 

described. [Defense counsel] also emphasized 

inconsistent and incredulous aspects of Ziegel’s story 

generally, i.e., that Ziegel had repeatedly cost [Appellant] 

money and drugs, but purportedly continued to get 

promoted in the organization; that Ziegel had witnessed a 

murder and heard about another, but that was not enough 

to cause Ziegel to extricate himself from the organization, 

yet his participation in Adderley’s murder was, for an 

undetermined reason, sufficient for Ziegel to report 

[Appellant] to the police.

[Defense counsel] had a coherent theory of the case, and 

we cannot say that the method he chose to present his 

theory of the case had no “reasonable basis designed to 

effectuate his client’s interests.” . . . In viewing [defense 

counsel]’s actions “in light of all the circumstances,” we 

similarly cannot say that “the identified acts or omissions 

were outside the wide range of professionally competent 

assistance,” . . . even though [defense counsel]’s strategy 

carried considerable risks.

PCRA Ct. Op. at 26.

DISCUSSION
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1. Questions Presented And Standard Of Review

Appellant raises the following questions on appeal:

A. Whether, under both Pennsylvania and federal law, 

former trial counsel was constitutionally ineffective, thus, 

requiring vacation of conviction and grant of new trial,

where former trial counsel’s stated trial strategy as 

revealed at the PCRA evidentiary hearing in this matter 

was pure afterthought[?]

B. Whether, under both Pennsylvania and federal law, 

former trial counsel was constitutionally ineffective, thus, 

requiring vacation of conviction and grant of new trial, 

where assuming former counsel’s statement of trial 

strategy to be true, trial counsel’s highly prejudicial 

conduct at trial, including, but not limited to, his failure to 

object to and, in fact, even, himself, eliciting evidence of 

alleged prior bad acts regarding his own client, in no way 

advanced counsel’s stated trial strategy[?]

C. Whether, under both Pennsylvania and federal law, 

former trial counsel was constitutionally ineffective, thus, 

requiring vacation of conviction and grant of new trial, 

where, whether advancing trial strategy or not, former 

counsel’s conduct at trial, including, but not limited to, his 

failure to object to and, in fact, even, himself, eliciting 

evidence of alleged prior bad acts regarding his own client, 

was so prejudicial that it so undermined the truthdetermining process that no reliable adjudication of guilt or 

innocence could have taken place[?]

D. Whether, under both Pennsylvania and federal law, 

former trial counsel was constitutionally ineffective, thus, 

requiring vacation of conviction and grant of new trial, 

where the cumulative effect of all errors committed by trial 

counsel before and during trial so undermined the truthdetermining process that no reliable adjudication of guilt or 

innocence could have taken place[?]

Appellant’s Brief at 6-7.
J-S54034-17

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A PCRA petitioner will be granted relief only when he proves, by a 

preponderance of the evidence, that his conviction or sentence resulted from 

the “[i]neffective 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.” 42 

Pa.C.S. § 9543(a)(2)(ii). “Our standard of review of a PCRA court’s 

dismissal of a PCRA petition is limited to examining whether the PCRA 

court’s determination is supported by the evidence of record and free of 

legal error.” Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. Super. 

2003) (en banc) (citation omitted).

 It is well settled that 

counsel is presumed effective, and to rebut that 

presumption, the PCRA petitioner must demonstrate that 

counsel’s performance was deficient and that such 

deficiency prejudiced him. Strickland v. Washington, [ ] 

104 S. Ct. 2052, [ ] (1984). This Court has characterized 

the Strickland standard as tripartite, by dividing the 

performance element into two distinct parts. 

Commonwealth v. Pierce, [ ] 527 A.2d 973, 975 ([Pa.] 

1987). Thus, to prove counsel ineffective, [the a]ppellant 

must demonstrate that: (1) the underlying legal issue has 

arguable merit; (2) counsel’s actions lacked an objective 

reasonable basis; and (3) [the a]ppellant was prejudiced 

by counsel’s act or omission. Id. at 975.

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012). “If a petitioner 

fails to prove any of these prongs, his claim fails.” Commonwealth v. 

Simpson, 66 A.3d 253, 260 (2013) (citation omitted). 
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Generally, counsel’s assistance is constitutionally effective if he chose 

a particular course of conduct that had some reasonable basis designed to 

effectuate his client's interests. See Commonwealth v. Ali, 10 A.3d 282, 

291 (Pa. 2010). Where matters of strategy and tactics are concerned, “[a]

finding that a chosen strategy lacked a reasonable basis is not warranted 

unless it can be concluded that an alternative not chosen offered a potential 

for success substantially greater than the course actually pursued.” 

Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010) (quotation and 

quotation marks omitted). To sustain a claim of ineffectiveness, counsel's 

approach must be “so unreasonable that no competent lawyer would have 

chosen it.” Commonwealth v. Ervin, 766 A.2d 859, 862-63 (Pa. 2000).

To demonstrate prejudice, the petitioner must show that “there is a 

reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceedings would have been different.” Commonwealth v. 

King, 57 A.3d 607, 613 (Pa. 2012) (quotation marks and citation omitted). 

“[A] reasonable probability is a probability that is sufficient to undermine 

confidence in the outcome of the proceeding.” Ali, 10 A.3d at 291 (citation 

omitted). The test for prejudice in the ineffectiveness context is more 

exacting than the test for harmless error:

[A] defendant [raising a claim of ineffective assistance of 

counsel] is required to show actual prejudice; that is, that 

counsel’s ineffectiveness was of such magnitude that it 

‘could have reasonably had an adverse effect on the 

outcome of the proceedings.’ This standard is different 

from the harmless error analysis that is typically applied 
J-S54034-17

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when determining whether the trial court erred in taking or 

failing to take certain action. The harmless error standard, 

as set forth by this Court . . . states that “[w]henever 

there is a ‘reasonable possibility’ that an error ‘might 

have contributed to the conviction,’ the error is not 

harmless.” This standard, which places the burden on the 

Commonwealth to show that the error did not contribute to 

the verdict beyond a reasonable doubt, is a lesser standard 

than the . . . prejudice standard, which requires the 

defendant to show that counsel’s conduct had an actual 

adverse effect on the outcome of the proceedings. This 

distinction appropriately arises from the difference 

between a direct attack on error occurring at trial and a 

collateral attack on the stewardship of counsel. In a 

collateral attack, we first presume that counsel is effective, 

and that not every error by counsel can or will result in a 

constitutional violation of a defendant’s Sixth Amendment 

right to counsel. 

Commonwealth v. Spotz, 84 A.3d 294, 315 (Pa. 2014) (citations omitted). 

We address the first three issues on appeal together, because they 

relate to the same issue: whether defense counsel provided ineffective 

assistance by permitting Ziegel to testify, without objection, about 

Appellant’s “hot shot” murder and the murder that Adderley committed at 

Appellant’s direction. We conclude that counsel provided ineffective 

assistance, thus necessitating a new trial.

1. Arguable merit

Appellant’s claim of ineffective assistance has arguable merit. The 

normal channel for admitting evidence of prior bad acts is Pa.R.E. 404(b)(2), 

which provides that evidence of crimes other than the charged offenses 

“may be admissible for purpose[s] such as proving motive, opportunity, 
J-S54034-17

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intent, preparation, plan, knowledge, identity, absence of mistake, or lack of 

accident.” In addition, Rule 404(b)(2) permits admission of prior offenses 

under the res gestae exception, “where the evidence became part of the 

history of the case and formed part of the natural development of the facts.” 

Commonwealth v. Cousar, 154 A.3d 287, 304 (Pa. 2017). “In a criminal 

case,” however, evidence of prior crimes “is admissible only if the probative 

value of the evidence outweighs its potential for unfair prejudice.” Pa.R.E. 

404(b)(2). We cannot see how the evidence in question fits within any Rule 

404(b)(2) exception. For example, we do not think that the “hot shot” 

murder was part of the natural history of this case; it is a horrific, but 

completely unrelated, act of violence. The Commonwealth implicitly appears 

to agree that this evidence is irrelevant, for it makes no argument in its brief 

that it was admissible under any rule of evidence. Further, assuming that it 

met any test of relevance, its potential for prejudice far outweighed its 

probative value, a subject we discuss in greater depth below.

2. Lack of reasonable trial strategy

Defense counsel testified at the PCRA hearing that he refrained from 

objecting because he thought Ziegel’s testimony was patently incredible, and 

that he could expose Ziegel as a liar during cross-examination and closing 

argument, thus persuading the jury to acquit Appellant on the most serious 
J-S54034-17

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charge of murder. The flaw in this rationale is that this testimony—

particularly the inflammatory evidence of the “hot shot” murder—poisoned 

the jury’s view of Appellant. No longer did he look like a drug dealer; he 

now was branded as a sadistic, cold-blooded killer. The PCRA court itself 

recoiled at this evidence: “[E]ven I was thinking to myself, ouch . . .” N.T., 

4/27/16, at 93. Not surprisingly, the jury took only one hour and forty-six 

minutes, including a lunch break, to reach its verdict of guilt. N.T., 4/12/12, 

at 76-77. 

Two decisions influence our analysis. First, in Commonwealth v. 

Moore, 715 A.2d 448 (Pa. Super. 1998), the jury found the defendant guilty 

of robbery, attempted murder and other crimes arising from a home 

invasion. Moore, 715 A.2d 449-50. A police lieutenant testified, without 

any objection, that the defendant’s housemate told him that the defendant 

was on probation or parole, which led the police to pull the defendant’s 

photograph from department files. Id. at 450-51. The lieutenant also 

testified that the defendant requested that his parole officer be present at 

the time he made his statement to the police. Id. at 451. The defendant’s 

parole officer testified that he was present when the defendant made his 

confession, and that the defendant had been released on parole. Id. 

Defense counsel

made no objection to this evidence. In fact, in his opening 

statement, [defense counsel] described his client as a 

convicted felon who had spent much of his life in jail . . . 

After [the defendant] took the witness stand in his own 
J-S54034-17

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defense, [defense counsel] elicited testimony from [the 

defendant] indicating that he had prior criminal convictions 

for aggravated assault, forgery, and two robberies . . . 

[The defendant] further explained that he was currently on 

parole for robbery. [Defense counsel] never requested nor 

did the trial judge give a cautionary instruction regarding 

the jury’s use of the foregoing evidence.

Id. (citations omitted).

The jury found the defendant guilty of multiple felonies, and this Court 

affirmed his judgment of sentence. Id. at 450. The defendant filed a PCRA 

petition which the court granted on the basis of ineffective assistance of 

counsel. Id. This Court affirmed, reasoning that defense counsel had no 

reasonable basis for allowing the evidence relating to the defendant’s parole 

status and history of crimes that did not involve dishonesty:

The Commonwealth . . . contends that [defense counsel]

had a reasonable basis for his actions. The 

Commonwealth asserts that [the defendant]’s parole 

status needed to be introduced to explain [his] parole 

officer[’s] presence at [the defendant]’s confession and the 

manner in which the police obtained [the defendant]’s 

photograph. Moreover, the Commonwealth maintains that 

[defense counsel] had a reasonable basis for eliciting 

testimony from [the defendant] regarding his previous 

convictions because this questioning was part of a trial 

strategy to establish that, despite [the defendant]’s 

criminal history, he was not guilty of the crimes charged.

. . . [T]he evidence relating to [the defendant]’s parole 

status had no probative value and carried a material 

prejudicial impact. Such evidence did not relate to the 

crimes charged and was not a necessary part of the 

Commonwealth’s case. The manner in which the police 

acquired [the defendant]’s photograph would not assist the 

jury in evaluating the evidence, and contrary to the 

Commonwealth’s assertion, it was not necessary to apprise 

the jury of [the parole officer’s] relationship with [the 
J-S54034-17

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defendant]. Rather, by permitting the Commonwealth to 

indicate that [the defendant] was on parole, [defense 

counsel] enabled the jury to infer that [the defendant] had 

been involved in other criminal activity. This evidence 

would tend to lead a jury to conclude that [the defendant]

would be likely to have committed the crimes in question. 

See Commonwealth v. Sanchez, [] 595 A.2d 617, 620 

([Pa. Super.] 1991) (noting that references to the 

defendant as an illegal alien were prejudicial because they 

permitted the jury to infer that the defendant was prone to 

engage in criminal conduct).

Furthermore, while the Commonwealth could have 

introduced [the defendant]’s robbery and forgery 

convictions as crimen falsi to impeach [the defendant]’s 

testimony, [the defendant]’s aggravated assault conviction 

could not have been used for impeachment purposes. See

generally Commonwealth v. Yarris, [] 549 A.2d 513, 

521 ([Pa.] 1988) (noting that a witness may be impeached 

by evidence that he has prior crimen falsi convictions, 

meaning those that bear on a witness’s honesty and 

truthfulness, such as robbery or theft). Though defense 

counsel may seek to introduce evidence of the defendant’s 

prior convictions in an effort to prevent the prosecution 

from first bringing out such evidence on cross-examination 

of the defendant, before doing so, counsel must be 

convinced that the evidence is available to the prosecution 

to impeach the defendant. Commonwealth v. Zapata, []

314 A.2d 299, 301 ([Pa.] 1974) (holding that because the 

defendant’s prior voluntary manslaughter convictions were 

not competent evidence in his trial on charges of 

aggravated assault, and because the defense “rested 

squarely” on the credibility of the defendant’s own 

testimony, trial counsel rendered ineffective assistance by 

introducing evidence of these convictions).

Here, because [the defendant]’s previous aggravated 

assault conviction is not in the nature of crimen falsi and 

does not fall within the exceptions related to other crime 

evidence, the Commonwealth could not have introduced 

this conviction. See Commonwealth v. Seiders, [] 614 

A.2d 689, 692 ([Pa.] 1992) (awarding the defendant a new 

trial where the defendant’s previous sexual assault 

convictions were admitted in his trial for sexual assault and 
J-S54034-17

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no exception permitting the introduction of such evidence 

applied). Nor is it apparent how such a strategy of 

introducing [the defendant]’s criminal history, which 

evidenced a pattern of conduct that resembled the charges 

against him, would be beneficial to [the defendant]’s case. 

Indeed, [the defendant]’s defense relied heavily on his 

own credibility, and evidence of his prior crimes could do 

nothing but undermine his testimony. See 

Commonwealth v. Bond, [] 396 A.2d 414, 418 ([Pa. 

Super.] 1978)(granting a new trial on grounds that the 

defendant’s credibility was improperly undermined in his 

trial on robbery and assault charges, by evidence that the 

defendant had previously attempted to extort money from 

the victim). A jury, viewing the evidence in light of [the 

defendant]’s aggravated assault conviction, would likely 

conclude that because [the defendant] had previously 

been convicted of aggravated assault, he had a propensity 

to commit crimes of violence such as those perpetrated [in 

this case]. After considering the nature of the references 

to [the defendant]’s criminal history and due to the fact 

that these references were extensive, we agree with the 

PCRA court that [defense counsel] lacked a reasonable 

basis for his actions . . . See also Commonwealth v. 

Holloman, [] 621 A.2d 1046, 1051 ([Pa. Super.] 1993)

(holding that the defendant was entitled to a new trial 

where in his trial on robbery charges, the prosecution 

introduced evidence establishing that drugs had been 

found in his residence; the prior crimes evidence had no 

probative value and only served to damage the 

defendant’s character).

Id. at 451-52.

Second, in Commonwealth v. Candia, 428 A.2d 993 (Pa. Super. 

1981), on direct examination, defense counsel asked the defendant, who 

was charged with possession with intent to deliver (“PWID”), whether he had 

ever been convicted of a crime. Candia, 428 A.2d at 996. Defense 

counsel’s purpose in asking this question was to “demonstrate [the 

defendant’s] honest recollections of past criminal acts [and] to prove [the 
J-S54034-17

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defendant] credible.” Id. The defendant answered that he had pleaded 

guilty to a marijuana charge, which opened the door for the Commonwealth 

to “ridicule[] his character with the introduction of his past drug-related 

criminal activity.” Id. The trial court, sitting without a jury, found the 

defendant guilty of PWID. Id. 

This Court reversed and remanded for a new trial on the basis of 

ineffective assistance:

Trial counsel’s strategy in seeking this testimony was 

grossly inappropriate for the purposes he sought to 

achieve. The right to full cross-examination which does not 

go beyond the scope of the direct examination is 

guaranteed . . . Trial counsel’s decision to question the 

appellant about his past criminal acts served only to invite 

very damaging cross-examination by the Commonwealth.

Certainly, trial counsel, who was effective, would not have 

placed [the defendant] on the stand under a theory so 

tenuous as to believe admission of previous criminal acts 

would demonstrate credibility. Even if so incredible a 

theory were possible, no reasonable strategy would follow 

which included the invitation to the Commonwealth to use 

evidence of previous convictions against the appellant.

Id.

Moore and Candia illustrate the risk, and sometimes the outright 

folly, of allowing irrelevant prior crimes into evidence based on the notion 

that it will enhance the defendant’s credibility, or diminish a prosecution 

witness’s credibility, in the eyes of the factfinder. Perhaps this strategy is 

reasonable when the prior crimes are mundane and the use of this evidence 

will expose the Commonwealth witness as a prevaricator. Even then, this 
J-S54034-17

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approach is dangerous, as Moore and Candia demonstrate. But if the prior 

crimes are as shocking as these, the odds increase exponentially that the 

jury will focus on the incendiary facts and ignore any message about 

credibility that defense counsel wants to convey. That is what happened 

here. While defense counsel hoped Ziegel’s testimony about Appellant’s 

prior murders would make Ziegel look like a liar, the inflammatory “hot shot” 

evidence made Appellant look like a hardened murderer. No reasonable 

attorney would have employed a strategy that was so susceptible to 

backfiring.

In addition, defense counsel eschewed an alternative that “offered a 

potential for success substantially greater than the course actually pursued.” 

Colavita, 993 A.2d at 887. The Commonwealth violated Pa.R.E. 404 by 

failing to provide advance notice of its intent to use the “hotshot” evidence 

or Appellant’s order for Adderley to commit murder. See Pa.R.E. 404(b)(3) 

(“[i]n a criminal case, the prosecutor must provide reasonable notice in 

advance of trial, or during trial if the court excuses pretrial notice on good 

cause shown, of the general nature of any such evidence the prosecutor 

intends to introduce at trial”). Moreover, this evidence does not appear to 

be admissible under Pa.R.E. 404(b)(2).8 Consequently, when the 

____________________________________________

8

Pa.R.E. 404(b)(2) provides that “other acts” evidence may be admissible to 

prove, inter alia, “motive, opportunity, intent, preparation, plan, knowledge, 

identity, absence of mistake, or lack of accident.” Moreover, “in a criminal 

(Footnote Continued Next Page)
J-S54034-17

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Commonwealth adduced this evidence during Ziegel’s direct examination, 

defense counsel should have moved for a mistrial due to lack of notice, lack 

of relevance and potential for unfair prejudice. Pa.R.E. 404(b)(2), (3). The 

trial court probably would have granted this motion, given its visceral “ouch” 

reaction to this evidence, and even if it had denied this motion, Appellant 

would have had meritorious grounds for seeking a new trial on direct appeal.

3. Prejudice

This evidence prejudiced Appellant because it “could have reasonably 

had an adverse effect on the outcome of the proceedings.” Spotz, 84 A.3d 

at 315. As stated above, this evidence could not help but poison the jury 

against Appellant. Without this evidence, multiple discrepancies in the 

testimony of key prosecution witnesses would have made the case 

substantially more difficult for the Commonwealth to win. The three main 

Commonwealth witnesses—Ziegel, McCray, and Washington—did not agree 

on the reason that they traveled to Adderley’s residence in Somerset 

County. Ziegel testified that the purpose of the visit was to rob Adderley; 

Washington testified that their purpose was to rob Adderley and then murder 

him “for free”; and McCray testified that Appellant told them to murder 

Adderley and take $50,000 or $60,000 from another apartment as payment. 

(Footnote Continued) _______________________

case, [other acts] evidence is admissible only if the probative value of the 

evidence outweighs its potential for unfair prejudice.” Id.
J-S54034-17

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Ziegel testified that he pucked up fake cocaine with Appellant in order to 

defraud Adderley. McCray, however, testified that the pucked-up cocaine 

was real, but fake cocaine ended up at the murder scene. In addition, 

Ziegel’s description of his rise within Appellant’s organization was at odds 

with his inability to avoid getting arrested. To hear Ziegel tell it, he received 

promotions or favors every time that he wound up behind bars—hardly the 

record of a star performer in a criminal enterprise. Finally, Ziegel testified 

that Appellant and Adderley appeared to be on good terms just days before 

the murder; they had gone to Coney Island together, barbecued together, 

and otherwise enjoyed one another’s company. Absent the evidence of the 

unrelated murders, we think it possible that defense counsel might have 

been able to persuade the jury to reach a different verdict on the basis of 

these inconsistencies. Without the “hot shot” evidence, the jury might have

found that Appellant lacked the intent to murder or conspire to murder 

Adderley and acquitted Appellant of murder and conspiracy. 

The corrupt organizations verdict might have changed as well. The 

corrupt organizations charge required the Commonwealth to prove a 

“pattern of racketeering activity,” that is, “a course of conduct requiring two 

or more acts of racketeering activity.” 18 Pa.C.S. § 911(b)(3) & (h)(4). 

Murder is an “act of racketeering activity.” 18 Pa.C.S. § 911(h)(1)(i). The 

two alleged acts of racketeering in this case were “illegally possessing and 

distributing controlled substance[s]” and “the homicide.” N.T., 4/12/12, at 
J-S54034-17

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53 (jury instructions). Thus, had defense counsel convinced the jury to 

acquit Appellant on the murder charge, it likely would have acquitted him on 

the corrupt organizations charge as well due to the lack of a pattern of 

racketeering activity.

The verdict on the charge of criminal use of a communication facility 

might also have changed. The Crimes Code provides: “A person commits a 

felony of the third degree if that person uses a communication facility to 

commit, cause or facilitate the commission or the attempt thereof of any 

crime which constitutes a felony under this title or under . . . [t]he 

Controlled Substance, Drug, Device and Cosmetic Act.” 18 Pa.C.S. § 

7512(a). The trial court instructed the jury that it could find Appellant guilty 

if it determined that he used his cell phone to “facilitate . . . the commission 

of the crimes of distribution of a controlled substance and homicide.” N.T., 

4/12/12, at 60 (emphasis added). Thus, a different decision on the murder 

charge might have changed the verdict under section 7512 as well. 

Finally, with regard to the charge of sale of a non-controlled 

substance, our lack of confidence in the verdicts on the other charges 

influences us to order a new trial on this charge as well.

CONCLUSION
J-S54034-17

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Appellant raises multiple additional claims of ineffective assistance in 

his brief, but we need not address them in view of our decision to grant him 

a new trial based on the issue examined above. We therefore reverse the 

PCRA court’s order denying relief and remand for a new trial on all charges.

Order reversed. Judgment of sentence vacated. Case remanded for 

new trial. Jurisdiction relinquished.

Judge Ott Joins.

Judge Moulton Concurs in the Result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/26/2017