J-S43045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                         Appellee

                    v.

LAWRENCE EDWARD SEVER

                         Appellant                    No. 1153 MDA 2015


                Appeal from the PCRA Order June 23, 2015
               In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0000094-2010


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                          FILED OCTOBER 13, 2016

      Lawrence Sever appeals from an order denying his petition for relief

under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. We affirm.

      Sever was charged with involuntary deviate sexual intercourse

(“IDSI”) for sexually assaulting a nine year old boy, C.J., in October 2008.

Sever, a Florida resident, had met C.J. and his mother when they lived in

Florida and sexually assaulted C.J. near C.J.’s Florida residence. C.J. and his

mother later moved to Pennsylvania.       On October 21, 2008, Sever visited

C.J. and his mother at their Pennsylvania residence, ostensibly to return

some of their belongings that they had left behind in Florida, but Sever

sexually assaulted C.J. again during this visit.
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      There were two jury trials before the Honorable Thomas Kelley.

Clasina Houtman, Esquire, First Assistant Public Defender at the York County

Public Defender’s Office, represented Sever during both trials.

      On October 15, 2010, the first trial ended in a mistrial.     In January

2011, two weeks before the second trial, Houtman learned that Judge Kelley

had been involved in a romantic relationship with another Public Defender,

Janan Tallo, Esquire, during 2010 and January 2011. Judge Kelley and Tallo

kept their romance secret, thus enabling Tallo to continue representing

clients in Judge Kelley’s courtroom.

      Houtman was Tallo’s supervisor in the Public Defender’s Office. When

the Public Defender’s Office learned about the romance in January 2011, the

Chief Public Defender, attorney Blocher, “had a conversation with Judge

Kelley” and then removed Tallo from Judge Kelley’s courtroom.             N.T.,

6/16/15, at 36. Tallo did not participate in any way in Sever’s two trials.

      On February 7, 2011, Sever’s second jury trial began before Judge

Kelley. On February 8, 2011, the evidentiary phase of trial concluded, the

parties presented closing arguments, and Judge Kelley charged the jury.

Later that night, Judge Kelley broke Tallo’s elbow during a domestic dispute.

      On February 9, 2011, Judge Kelley answered one question from the

jury, and the jury found Sever guilty of IDSI. Following trial, Judge Kelley

was assigned to another trial division, and Sever’s case was reassigned to

the Honorable Richard Renn.




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        Prior to his assault on C.J., Sever had a prior conviction and lengthy

sentence in Florida for lewd and lascivious assault upon a child. Accordingly,

at sentencing on October 27, 2011, Judge Renn treated Sever as a second-

time sexual offender and imposed a term of 25-50 years’ imprisonment, the

mandatory minimum under 42 Pa.C.S. § 9718.2.1 Sever filed timely post-

sentence motions, which Judge Renn denied. On December 12, 2012, this

Court affirmed on direct appeal.           On May 13, 2014, the Supreme Court

denied Sever’s petition for allowance of appeal.

        On March 16, 2015, Sever filed a timely PCRA petition, and he

subsequently filed an amended PCRA petition.          On June 16, 2015, Judge

Renn held an evidentiary hearing. At the conclusion of the hearing, Judge

Renn denied all but one of Sever’s claims and took the remaining claim

under advisement.        On June 23, 2015, Judge Renn entered an order and

opinion denying the remaining claim.

        Sever filed a timely notice of appeal.     On July 7, 2015, Judge Renn

ordered Sever’s counsel to file a Pa.R.A.P. 1925(b) statement within 21

days. Counsel failed to file a Pa.R.A.P. 1925(b) statement until August 21,

2015.     On August 25, 2015, Judge Renn filed a Pa.R.A.P. 1925 opinion


____________________________________________


1
   Sever does not challenge his mandatory minimum sentence as
unconstitutional under Alleyne v. United States, -- U.S. --, 133 S.Ct. 2151
(2013). For the sake of completeness, we note that our Supreme Court has
held that Alleyne does not apply retroactively to PCRA cases such as the
present appeal. Commonwealth v. Washington, 142 A.3d 810 (Pa.2016).



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incorporating by reference his June 23, 2015 opinion and his conclusions

entered on the record during the PCRA hearing.

      In criminal appeals, when the appellant fails to file a Pa.R.A.P. 1925(b)

statement, this Court usually must remand for the filing of a Pa.R.A.P.

1925(b) statement nunc pro tunc and the filing of an opinion by the court of

common pleas. Pa.R.A.P. 1925(c)(3).        Remand is not necessary, however,

when counsel files an untimely Pa.R.A.P. 1925(b) statement and the trial

court files an opinion addressing the issues presented. Commonwealth v.

Burton, 973 A.2d 428, 433 (Pa.Super.2009). Here, counsel for Sever filed

an untimely Pa.R.A.P. 1925(b) statement, but Judge Renn filed an opinion

incorporating by reference his previous decisions rejecting the issues in

Sever’s PCRA petition.     Under these circumstances, remand for further

proceedings is unnecessary.

      Sever raises four issues in this appeal, which we have re-ordered for

the sake of disposition:

      1. Whether the trial court erred in denying PCRA relief on the
      grounds that Attorney Houtman did not disclose a conflict of
      interest to [Sever] [?]

      2. Whether the trial court erred in denying relief for Attorney
      Houtman failing to request Judge Kelley recuse himself prior to
      the start of the second trial [?]

      3. Whether the trial court erred in denying relief for Attorney
      Houtman failing to call William West and Daniel Wilson as
      witnesses from Florida [?]




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      4. Whether the trial court erred in denying relief on the grounds
      that Attorney Houtman failed to properly advise [Sever] about a
      potential plea offer [?]

Brief For Appellant, at 4.

      We review Sever’s first and second arguments together. Sever claims

that attorney Houtman had a “conflict of interest” due to Judge Kelley’s

romantic relationship with another attorney in the Public Defender’s Office,

Tallo, and that Houtman provided ineffective assistance by failing to disclose

this conflict to Sever or moving for Judge Kelley’s recusal. The best that we

can discern from Sever’s brief is that he claims: (1) Judge Kelley held an

animus against the entire Public Defender’s Office following Tallo’s removal

from his courtroom, (2) Judge Kelley blamed Houtman for Tallo’s removal;

(3) Judge Kelley’s hostility created a conflict of interest between Houtman’s

duty to represent Sever zealously and Houtman’s duty of loyalty towards the

Public Defender’s Office; (4) Houtman should have informed Sever about

this conflict prior to Sever’s second trial to enable Sever to obtain counsel

from some other office, (5) Houtman was ineffective for failing to tell Sever

about this issue, and (6) Houtman was ineffective for failing to file a motion

seeking Judge Kelley’s recusal from the second trial.

      “Our standard of review from the grant or denial of post-conviction

relief is limited to examining whether the PCRA court’s determination is

supported by the evidence of record and whether it is free of legal error. We

will not disturb findings that are supported by the record.” Commonwealth


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v. Ousley, 21 A.3d 1238, 1242 (Pa.Super.2011).           “The court’s scope of

review is limited to the findings of the PCRA court and the evidence on the

record of the PCRA court’s hearing, viewed in the light most favorable to the

prevailing party.” Commonwealth v. Duffey, 889 A.2d 56, 61 (Pa.2005).

      Further, counsel is presumed effective, and the PCRA petitioner bears

the burden to prove otherwise.      Commonwealth v. McDermitt, 66 A.3d

810, 813 (Pa.Super.2013). The test for ineffective assistance of counsel is

the   same    under   both   the   Federal   and   Pennsylvania   Constitutions.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Commonwealth v.

Jones, 815 A.2d 598, 611 (Pa.2002). The petitioner must demonstrate that:

(1) his underlying claim is of arguable merit; (2) the particular course of

conduct pursued by counsel did not have some reasonable basis designed to

effectuate the appellant’s interests; and (3) but for counsel’s ineffectiveness,

there is a reasonable probability that the outcome of the proceedings would

have been different.     Commonwealth v. Pierce, 786 A.2d 203, 213

(Pa.2001), abrogated on other grounds by Commonwealth v. Grant, 813

A.2d 726 (Pa.2002). An issue has arguable merit if the facts upon which the

claim is based are true, and the law on which the claim is premised could

afford relief. Commonwealth v. Jones, 876 A.2d 380, 385 (Pa.2005). “A

failure to satisfy any prong of the test for ineffectiveness will require

rejection of the claim.” Jones, 815 A.2d at 611.




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      “A defendant cannot prevail on a conflict of interest claim absent a

showing of actual prejudice.”   Commonwealth v. Spotz, 896 A.2d 1191,

1231 (Pa.2006).    Although a presumption of prejudice arises when there

exists an “actual conflict of interest,” this presumption applies only where

counsel “actively represented conflicting interests.” Id. at 1232.

      In this case, Sever failed to present any evidence that Houtman

“actively represented conflicting interests.”     Id.   As the PCRA court stated

following the PCRA hearing, “there is no testimony whatsoever that anything

was going on either between [Houtman] and Judge Kelley or between

[Houtman] and attorney Tallo [that] created a conflict between [Houtman]

and … Sever.” N.T., 6/16/15, at 71. The record supports the PCRA court’s

conclusion. Houtman testified during the PCRA hearing that her relationship

with Judge Kelley was more “adversarial” during Sever’s first trial (before

Judge Kelley’s romantic relationship with Tallo came to light) than during

Sever’s second trial.   Id. at 33.   Thus, Houtman’s relationship with Judge

Kelley did not suffer as a result of Tallo’s removal from Judge Kelley’s

courtroom. Further, Houtman was not responsible for Tallo’s removal from

Judge Kelley’s courtroom. Instead, the chief Public Defender, Blocher, had a

conversation with Judge Kelley after the romance came to light, and Blocher

then ordered Tallo’s removal.        Id. at 36.     Sever did not present any

evidence, either during trial or the PCRA hearing, that Judge Kelley blamed

Houtman for Tallo’s removal. Nor can Sever identify a single ruling during


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his second trial that was affected by Tallo’s removal. Finally, Sever cannot

identify any manner in which Tallo’s removal from the courtroom impeded

Houtman’s representation of Sever.         In short, Sever’s conflict of interest

claim is mere speculation.

      Sever’s second argument -- Houtman was ineffective for failing to

move for Judge Kelley’s recusal -- fails as well. Recusal is necessary only

when there is evidence of bias, prejudice or unfairness which raises a

substantial   doubt   as   to   the   jurist’s   ability   to   preside   impartially.

Commonwealth v. White, 910 A.2d 648, 657 (Pa.2006).                        It is not

necessary to demonstrate actual prejudice; an appearance of prejudice is

sufficient to justify recusal. Id. Sever failed to present any evidence that

Judge Kelley was prejudiced against Houtman due to Tallo’s removal (or due

to any other reason), or that there was an appearance of such prejudice.

      For these reasons, Sever’s first and second arguments in this appeal

fail for lack of arguable merit and lack of prejudice.

      In his third argument, Sever asserts that Houtman was ineffective for

failing to call William West and Daniel Wilson as witnesses from Florida.

Sever’s entire argument on this issue is as follows:

      By the time [PCRA] counsel was appointed[,] both Mr. West and
      Mr. Wilson were deceased. [Sever] was only able to present his
      testimony on what he believed that they would have been
      available to testify about. Attorney Houtman testified about the
      efforts that she investigated all the witnesses. [Sever] believes
      that more should have been done to preserve their testimony.

Brief For Appellant, at 12.

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      To sustain a claim that trial counsel was ineffective for failing to call a

witness, there must be evidence of record that (1) the witness existed; (2)

the witness was available to testify for the defense; (3) counsel knew, or

should have known, of the existence of the witness; (4) the witness was

willing to testify for the defense; and (5) the absence of the testimony of the

witness was so prejudicial as to have denied the defendant a fair trial.

Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa.Super.2014).

      Sever’s claim lacks arguable merit.          The PCRA court credited

Houtman’s testimony that William West died before Sever’s first trial. N.T.,

6/16/15, at 31.   The PCRA court accurately observed that Sever failed to

present any evidence that Houtman could have arranged for West’s

deposition before his death. Id. at 72. Further, Sever admitted that Daniel

Wilson refused to speak to Houtman’s investigator when the investigator

called him. Id. at 19.

      Finally, Sever argues that Houtman was ineffective for failing to

properly advise him about a guilty plea offer of 10-20 years’ imprisonment in

exchange for pleading guilty to two misdemeanor charges. The PCRA court

properly rejected this claim.   The record confirms that the Commonwealth

never made any such offer.        Houtman testified that she did not recall

receiving any offer. N.T., 6/16/15, at 27. In addition, the Commonwealth

observed that it never would have made an offer of 10-20 years’

imprisonment for two misdemeanors, because the maximum sentence for a


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first degree misdemeanor at the time of Sever’s second trial was 2½-5

years’ imprisonment, yielding a maximum consecutive sentence of 5-10

years’ imprisonment for two misdemeanors. Id. at 54-55.

     For these reasons, we affirm the order denying Sever’s PCRA petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2016




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