Com. v. Sever, L.
1153 MDA 2015
| Pa. Super. Ct. | Oct 13, 2016Background
- Appellant Lawrence Sever, previously convicted in Florida for a lewd and lascivious assault on a child, was tried in York County, Pennsylvania for involuntary deviate sexual intercourse (IDSI) against a nine-year-old (two incidents: one in Florida, one in Pennsylvania).
- First trial (Oct. 2010) ended in mistrial; second trial (Feb. 2011) proceeded before Judge Kelley; jury returned guilty verdict on Feb. 9, 2011.
- During the relevant period Judge Kelley had a secret romantic relationship with another Public Defender (Janan Tallo), who was later removed from his courtroom by the Public Defender’s Office; defense counsel Clasina Houtman was Tallo’s supervisor but did not participate in Tallo’s removal.
- Sever was sentenced as a second-time sexual offender to 25–50 years (mandatory minimum under §9718.2); direct appeals were denied and Pennsylvania Supreme Court denied allowance of appeal.
- Sever filed a timely PCRA petition raising claims of ineffective assistance of counsel: failure to disclose a conflict of interest, failure to seek recusal of Judge Kelley, failure to secure two Florida witnesses, and failure to advise about an alleged plea offer. The PCRA court held a hearing and denied relief; this appeal followed.
Issues
| Issue | Plaintiff's Argument (Sever) | Defendant's Argument (PCRA/Commonwealth/Houtman) | Held |
|---|---|---|---|
| Conflict of interest / nondisclosure | Houtman had divided loyalty because Judge Kelley’s romance with Tallo and Tallo’s removal created animus toward the Public Defender’s Office; Houtman should have disclosed and allowed new counsel | No evidence Houtman had conflicting loyalties or that she actively represented conflicting interests; no showing Judge Kelley blamed Houtman or ruled against defendant due to the romance | Denied — claim speculative, lacks arguable merit and no actual prejudice shown |
| Failure to move for recusal | Houtman should have moved to recuse Judge Kelley because of appearance of bias after Tallo’s removal | No evidence Judge Kelley was biased against Houtman or Sever; no rulings showed prejudice or appearance of partiality | Denied — no evidence of bias or appearance of bias; no arguable merit |
| Failure to call William West and Daniel Wilson | Counsel failed to preserve or present testimony from these Florida witnesses, which could have aided defense | West was dead before trial; no proof counsel could have taken his deposition earlier; Wilson refused to speak to investigator | Denied — claim lacks merit; witnesses were unavailable or unwilling; no prejudice shown |
| Failure to advise re: plea offer | Counsel failed to convey a 10–20 year offer to plead to two misdemeanors | Commonwealth never made such an offer; counsel did not recall it; proposed offer inconsistent with sentencing ranges for misdemeanors | Denied — no evidence an offer existed; claim without merit |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (governing two-part standard for ineffective assistance of counsel)
- Commonwealth v. Spotz, 896 A.2d 1191 (Pa. 2006) (actual conflict and presumption of prejudice only when counsel actively represents conflicting interests)
- Commonwealth v. Wantz, 84 A.3d 324 (Pa. Super. 2014) (elements for ineffective assistance claim based on failure to call a witness)
- Commonwealth v. Burton, 973 A.2d 428 (Pa. Super. 2009) (when untimely Pa.R.A.P. 1925(b) statement may obviate remand if trial court issues opinion)
- Commonwealth v. White, 910 A.2d 648 (Pa. 2006) (recusal required when appearance of prejudice or bias raises substantial doubt about a judge’s impartiality)
- Commonwealth v. Ousley, 21 A.3d 1238 (Pa. Super. 2011) (standard of review for PCRA denials)