Com. v. Sipps, M. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
MATTHEW JEFFREY SIPPS
Appellant No. 443 EDA 2022
Appeal from the PCRA Order Entered January 10, 2022
In the Court of Common Pleas of Delaware County
Criminal Division at No.: CP-23-CR-0002590-2017
BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 28, 2022
Appellant, Matthew Jeffrey Sipps, appeals from an order denying his
petition under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. The
lone argument in his brief is that trial counsel was ineffective for failing to
move for a mistrial or consult with Appellant after the judge in his jury trial
for sexual offenses became ill and had to be replaced by a new judge for the
jury charge and sentencing. We affirm.
On December 2, 2016, Appellant was charged with concealment of the
whereabouts of a child (two counts), corruption of minors (two counts) and
patronizing a victim of sexual servitude. Appellant waived his right to a
preliminary hearing in exchange for withdrawal of the charge of patronizing a
victim of sexual servitude contingent on a non-trial disposition. This charge
was reinstated when Appellant decided to proceed to trial.
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The evidence adduced during trial in September 2017 demonstrated
that the minor victim, V.M., met Appellant through an advertisement placed
by Ray Justis on Backpage.com depicting V.M. scantily clad in lingerie in a
provocative pose with the following caption: “. . . I’m on spring break looking
to go wild. I am looking for an [sic] generous man to make me got [sic] wild!
Any men up for the challenge? I am doing In calls/out calls [sic].” Appellant
had sexual intercourse with V.M. on three occasions at a New Jersey hotel and
paid Justis $500.00 for each encounter. After the third encounter, Appellant
learned that Justis was holding V.M. against her will. Appellant proceeded to
move V.M. to his home in Aston for approximately a month and a half, where
she was confined without any contact with the outside world except
Appellant’s family. During this time, Appellant did not contact V.M.’s parents
or call local authorities.
Trial began on September 6, 2016. On September 7, 2017, the parties
finished presenting evidence, and counsel for both parties presented closing
argument. The trial judge, the Honorable James Nilon, started to charge the
jury but suddenly became ill and paused the proceedings. At around 5:30 in
the afternoon, the President Judge, the Honorable Kevin Kelly, met with
counsel and all parties agreed to continue with Judge Kelly presiding. The
following morning, September 8, 2018, Judge Kelly restarted the charge from
the beginning and gave the entire charge to the jury without objection by
either party. Judge Kelly also accepted the verdict from the jury, a finding of
guilt on all charges.
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On October 30, 2017, the court granted defense counsel’s motion to
withdraw. On January 18, 2018, Judge Kelly sentenced Appellant to one to
five years’ imprisonment plus five years’ consecutive probation. Appellant
filed timely post-sentence motions, which were denied on June 5, 2018.
Appellant timely appealed, and on December 31, 2019, this Court affirmed his
judgment of sentence. On June 30, 2020, our Supreme Court denied
Appellant’s petition for allowance of appeal.
On July 31, 2020, Appellant filed a timely pro se PCRA petition. The
court appointed counsel for Appellant, who filed an amended PCRA Petition on
March 30, 2021. Following an evidentiary hearing, on January 10, 2022, the
court denied the PCRA petition. Appellant timely appealed to this Court, and
both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Appellant raises a single issue in this appeal:
Whether the PCRA Court erred in denying [Appellant’s] PCRA
petition where the record clearly showed that [Appellant] was
denied effective assistance of counsel, as guaranteed by the
Pennsylvania and United States Constitutions, when trial counsel
erred by failing to make a motion for a mistrial and further failing
to consult his client regarding the filing of said motion, after the
trial judge became ill and was unable to proceed and was replaced
with a new judge for the jury charge and sentencing?
Appellant’s Brief at 5.
When reviewing the propriety of an order pertaining to PCRA relief,
we consider the record in the light most favorable to the prevailing
party at the PCRA level. This Court is limited to determining
whether the evidence of record supports the conclusions of the
PCRA court and whether the ruling is free of legal error. We grant
great deference to the PCRA court’s findings that are supported in
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the record and will not disturb them unless they have no support
in the certified record. However, we afford no such deference to
the post-conviction court’s legal conclusions. We thus apply a de
novo standard of review to the PCRA [c]ourt’s legal conclusions.
Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa. Super. 2018).
A petitioner who alleges ineffective assistance
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.[A.] § 9543(a)(2)(ii). “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.” Commonwealth v. Colavita,
993 A.2d 874, 886 (Pa. 2010) (citing Strickland v. Washington,
466 U.S. 668, 687 (1984)). In Pennsylvania, we have refined the
Strickland performance and prejudice test into a three-part
inquiry. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa.
2001). Thus, to prove counsel ineffective, the petitioner must
show that: (1) his underlying claim is of arguable merit; (2)
counsel had no reasonable basis for his action or inaction; and (3)
the petitioner suffered actual prejudice as a result.
Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).
Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014). Prejudice, in
the context of ineffective assistance claims, requires proof of a reasonable
probability that but for counsel’s error, the outcome of the proceeding would
have been different. Commonwealth v. Kimball, 724 A.2d 326, 331 (Pa.
1999). The petitioner’s failure to satisfy any of the three prongs requires
rejection of his ineffective assistance claim. Commonwealth v. Ly, 980 A.2d
61, 74 (Pa. 2009).
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During the PCRA evidentiary hearing, Appellant testified that he
questioned defense counsel why a new trial was not granted when Judge Nilon
became ill, and counsel replied that he had already made the decision to
resume trial with Judge Kelly. NT 1/6/22, at 22. Appellant maintains that
trial counsel was ineffective for (1) failing to confer with him before agreeing
to resume trial with Judge Kelly after Judge Nilon fell ill, and (2) failing to
move for a mistrial when Judge Nilon could no longer proceed with trial. We
agree with the PCRA court that this claim fails due to lack of arguable merit
and lack of prejudice.
The defendant is entitled to a fair trial, not a perfect one.
Commonwealth v. Laird, 119 A.3d 972, 986 (Pa. 2015). An ineffectiveness
claim will not succeed where a petitioner claims, with the benefit of hindsight,
that counsel could have conducted the trial differently. Id.The procedural rule governing mistrials, Pa.R.Crim.P. 605, provides in
relevant part, “When an event prejudicial to the defendant occurs during trial
only the defendant may move for a mistrial; the motion shall be made when
the event is disclosed. Otherwise, the trial judge may declare a mistrial only
for reasons of manifest necessity.” Pa.R.Crim.P. 605(B). A mistrial “is
required only when an incident is of such a nature that its unavoidable effect
is to deprive the appellant of a fair and impartial trial.” Commonwealth v.
Caldwell, 117 A.3d 763, 774 (Pa. Super. 2015). A motion for mistrial is a
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matter addressed to the discretion of the court. Commonwealth v. Jones,
668 A.2d 491, 502–03 (Pa. 1995).
An attorney has a duty to consult with his or her client regarding
important decisions, including questions of overarching defense strategy,
whether to plead guilty, whether to waive a jury, whether to testify and
whether to take an appeal. Commonwealth v. Brown, 18 A.3d 1147, 1158
(Pa. Super. 2011). On the other hand, an attorney does not have a duty to
obtain the defendant’s consent to “every tactical decision.” Id.Presently, defense counsel had no duty to consult with Appellant or
obtain Appellant’s consent before counsel decided to resume trial with Judge
Kelly. At the time Judge Nilon became ill, both parties had presented all their
evidence and had given closing arguments. All that defense counsel had to
decide was whether to object to Judge Kelly giving the jury charge and taking
the verdict instead of Judge Nilon. Counsel’s decision to accept Judge Kelly’s
performance of these duties was a tactical determination that counsel had
latitude to make without consulting with his client.
Appellant cites Commonwealth v. Robson, 337 A.2d 573 (Pa. 1975),
for the proposition that a trial judge’s illness can necessitate a mistrial.
Robson, however, is materially distinguishable from the present case. The
trial judge in Robson fell ill one week after the defendant’s trial for voluntary
manslaughter began, before completion of the Commonwealth’s case. The
president judge continued trial for six days. After six days elapsed, the court
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ordered a mistrial because the original judge needed several more weeks
before he could resume his duties, making it unfair to both parties and the
jury to continue proceedings any further. The defendant was retried and
convicted after a second trial. The Supreme Court upheld the conviction,
reasoning that “illness of the judge preventing continuation of the trial for a
period of several weeks at the least constitutes manifest necessity for the
declaration of a mistrial.” Id., 337 A.2d at 577. In contrast, in the present
case, Judge Nilon’s illness did not occur in the middle of a lengthy trial. Judge
Nilon’s illness took place near the end of a relatively short trial, following the
close of evidence and closing argument. Judge Nilon’s illness caused minimal
interruption, because trial resumed the following morning with Judge Kelly
presiding. Moreover, Judge Kelly’s substitution did not in any way impair the
quality of justice provided to Appellant. There were no difficult issues for
Judge Kelly to decide; all that he had to do was charge the jury and accept
the verdict. Although complications can and sometimes do arise during these
processes, none arose here. Judge Kelly read the charge to the jury without
objection by either party, and he presided over the verdict without incident.
Robson demonstrates that a mistrial is proper when a judge’s illness
causes a serious interruption in the presentation of evidence. The
circumstances in this case, however, do not resemble Robson in any way. As
the Commonwealth correctly observes, the transition from Judge Nilon to
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Judge Kelly was “seamless,” Commonwealth’s Brief at 8, and caused no
prejudice to Appellant.
Appellant also seems to suggest that defense counsel should have used
Judge Nilon’s illness as an opportunity for demanding a mistrial due to other
unrelated incidents earlier in the trial. Judge Nilon, Appellant observes, gave
two cautionary instructions during trial in response to testimony by
Commonwealth witnesses, and defense counsel had moved for a mistrial due
to the testimony of one of these witnesses. Therefore, Appellant continues,
[c]onsidering the number of cautionary instructions given by the
court and defense counsel’s earlier motion for a mistrial, it is clear
that Appellant would have wanted the court to declare a mistrial
when the Trial Judge was unable to finish the trial. Had counsel
moved for a mistrial, Appellant would have been given the
opportunity for a new trial in which the prejudicial testimony would
not have been allowed.
Appellant’s Brief at 14. We do not consider this a proper basis for seeking a
mistrial. In order to obtain a mistrial on the basis of Judge Nilon’s illness and
Judge Kelly’s substitution, Appellant had the burden of demonstrating that
these events were themselves prejudicial. Pa.R.Crim.P. 605(B). As
discussed above, Judge Nilon’s illness and Judge Kelly’s substitution were not
themselves prejudicial to Appellant. He cannot use these events as a pretext
for seeking a mistrial in the hope of remedying unrelated events, such as the
testimony of Commonwealth witnesses.
For these reasons, we conclude that the PCRA court properly dismissed
Appellant’s PCRA petition due to the absence of arguable merit and prejudice.
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As a result, we need not examine the other Pierce prong of reasonable basis.
Ly, 980 A.2d at 74.
Order affirmed.
Judge Sullivan joins the memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2022
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