HomeMy WebLinkAboutCP-21-CR-0002715-2013
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. :
:
BRIAN HIPPENSTEEL : CP-21-CR-2715-2013
ORDER OF COURT
th
AND NOW, this 25 day of May 2016, upon consideration of Petitioner’s Motion
for Post Conviction Collateral Relief, and after a hearing, Petitioner’s Motion is
DENIED.
BY THE COURT,
Christylee L. Peck, J.
Matthew P. Smith, Esquire
Chief Deputy District Attorney
Gregory B. Abeln, Esquire
Court-Appointed Counsel for Petitioner
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. :
:
BRIAN HIPPENSTEEL : CP-21-CR-2715-2013
IN RE: PETITIONER’S MOTION FOR POST-CONVICTION COLLATERAL RELIEF
OPINION AND ORDER
On March 18, 2014, at the conclusion of a jury trial, Petitioner was found guilty of
the following: Count 1, Criminal Attempt to Commit Murder; Count 2, Aggravated
Assault; Count 3, Terroristic Threats; Count 4, Simple Assault; Count 5, Recklessly
Endangering Another Person, with two counts, jointly and severally; and Count 6,
1
Criminal Mischief, two counts, jointly and severally, a summary offense. On June 3,
2014, the Honorable Kevin Hess, now a Senior Judge, being in receipt of a sentence
report, sentenced the Petitioner to following terms of imprisonment: on Count 1, Criminal
Attempt to Commit Murder, a felony in the first degree, a period no less than fourteen nor
more than twenty-eight years; on Count 2, Aggravated Assault, a felony in the second
degree, a period of not less than five nor more than ten years; on Count 3, Terroristic
Threats, a misdemeanor in the first degree, a period of not less than six months nor more
than twenty-four months; on Count 4, Simple Assault, a misdemeanor in the second
degree, a period of not less than six months nor more than twenty-four months; on Count
5, Recklessly Endangering Another Person, a misdemeanor in the second degree, a period
2
of not less than nor more than twenty-four moths. All sentences of imprisonment were
3
said to run concurrent with one another. On September 23, 2014, after a Post-Sentence
Motion by the Petitioner and subsequent resentencing hearing, the sentencing order of
June 3, 2014, was amended by order of the court, without change to any of the other
sentencing terms, to reflect the sentence imposed at Count 2, Aggravated Assault, was
1
Order of Court, In Re: Petitioner Found Guilty-Sentence Report Directed, 3/18/2014.
2
Order of Court, In Re: Sentencing, 6/3/2014.
3
Id.
4
not a mandatory sentence. Petitioner also filed an appeal with the Superior Court
5
contesting the trial court’s refusal to instruct the jury on a voluntary intoxication defense.
That appeal was denied. A subsequent Petition for Allowance of Appeal to the Supreme
6
Court also was denied.
On December 21, 2015, Petitioner filed a pro se Motion for Post Conviction
7
Collateral Relief. On December 28, 2015, Gregory B. Abeln, Esquire, was appointed to
8
represent Petitioner. Mr. Abeln did not file an amended PCRA Motion and instead
moved forward on Petitioner’s matter complained of in his pro se motion. A hearing was
held on Petitioner’s motion on March 11, 2016, and the matter was taken under
advisement. For the following reasons, Petitioner’s motion is denied.
Findings of Fact
In the present matter, Petitioner was charged with eight counts, the most serious of
which was Criminal Attempt to Commit Murder under Pa.C.S. §901(a) and 18 Pa.C.S.
§2502. Timothy Clawges, Esq., Chief Public Defender at the time, was appointed to
represent Petitioner after he had been formally arraigned, but prior to the first pre-trial
9
conference.
At his PCRA hearing, Petitioner testified that he met with Attorney Clawges an
10
insufficient number of times to prepare for trial. Attorney Clawges and Petitioner both
testified that they met several times prior to trial, though consistent evidence of the exact
11
number of meetings which occurred was not presented. The Petitioner and Petitioner’s
12
trial counsel testified they were not aware of any type of plea deal offered to Petitioner.
13
Petitioner testified he was never made aware of the option to request a non-jury trial.
4
Order of Court: In Re Sentencing Order Amended, 11/23/2014.
5
Superior Court of Pennsylvania, No. 1630 MDA 2014, 5/21/2015, denied.
6
Supreme Court of Pennsylvania, No. 462, MAL 2015, 10/7/2015, denied.
7
Motion for Post Conviction Collateral Relief, 12/21/2015.
8
Order of Court, In Re: Motion for Post Conviction Collateral Relief, 12/28/2015.
9
Acknowledgement of Arraignment and Public Defender Appointment, 12/19/2013.
10
Transcript of Proceedings, In Re: Motion for Post-Conviction Collateral Relief, March 11, 2016 (Peck,
J.) (hereinafter “N.T., 3/11/2016 at __”) at 8.
11
Id. at 8, 24.
12
Id. at 5, 24.
13
Id. at 9.
2
Attorney Clawges testified that he did not recall whether or not he discussed this option
14
with Petitioner, but that he usually discusses it with his clients. Attorney Clawges
testified that he did not think, in his seasoned defense counsel opinion, that he would be
able to obtain the District Attorney’s assent to a non-jury trial, and that a jury trial would
15
have been more suited to his client’s planned defense.
Petitioner alleged that his attorney only made one objection at trial, and therefore
allowed two statements to be placed on the record which he alleges were factually
16
inaccurate. Petitioner alleged that in his closing statement at trial, prosecuting attorney
Richard Bradbury, Esq., acting out the Petitioner’s alleged actions during the underlying
incident, “grabbed \[the\] weapon that \[Petitioner\] used for the crime and stormed across in
front of the jury saying ‘I’ll kill you MF’, and that never happened. I never got out of the
17
vehicle.” In his written petition, Petitioner cited a second alleged misstatement, that a
witness testified at trial that the Petitioner came out of some bushes on the property
18
during the incident several days before the underlying shooting. Petitioner argues that
there should have been an objection made because there are no bushes on the property in
19
question, but the reference to the bushes made it sound like he was stalking his ex-wife.
Petitioner believes this alleged misstatement would allow a jury to infer the Petitioner
20
had malicious intent. Attorney Clawges testified to a recollection of the context in
which those statements were made that is somewhat different that Petitioner’s
21
recollection of that context. Attorney Clawges also testified that he believed these
statements did not affect the Petitioner’s theory of the case, which at trial relied heavily
14
Id. at 25.
15
N.T., 3/11/2016 at 25. Attorney Clawges had been practicing as a defense attorney for more than
twenty years at the time of trial. Id.
16
Id. at 20.
17
Id. at 10.
18
Id. at 13.
19
Id.
20
N.T., 3/11/2016 at 13.
21
Id. at 27.
3
on the argument that Petitioner could not have formed the requisite intent for conviction
22
due to voluntary intoxication.
Petitioner testified that he never received any discovery until after trial, when he
23
filed an appeal. Attorney Clawges testified that he was in possession of several
documents which he discussed with Petitioner, but that he “probably – may not have
24
given \[Petitioner\] a copy” of the documents. Petitioner testified that he was able to
25
testify at trial and present his version of the events.
At sentencing, Petitioner received several prison sentences, listed above, which
resulted in the imposition of several terms of imprisonment, to run concurrently.
Petitioner’s appeal concerns the imposition on Count I, Attempt to Commit Murder, of a
sentence of not less than fourteen nor more than twenty eight years imprisonment.
26
Petitioner seeks a reduction of this sentence. Petitioner testified that upon sentencing,
27
he was not told of the ten-day window for filing a motion for sentence modification.
The transcript of the sentencing hearing held on June 3, 2014, shows that Petitioner was
28
advised of the ten-day window by the Honorable Kevin Hess.
Discussion
This Court must begin by noting that even if Petitioner’s claim of ineffective
assistance of counsel succeeds, the relief Petitioner seeks is not available to him.
Petitioner seeks to have the fourteen to twenty-eight year sentence imposed with regard
29
to his conviction for Count 1, Criminal Attempt to Commit Murder, reduced. Under Pa.
R.Crim.P. 721, a motion for modification of sentence must be filed within ten days of the
22
Id. at 28.
23
Id. at 7, 9. Attorney Linda Hollinger represented Petitioner on appeal and provided discovery to
Petitioner at that time. Id.
24
Id. at 28.
25
N.T., 3/11/2016 at 18.
26
Petitioner checked the box for a new trial on his Motion for Post Conviction Relief form, but testified at
the PCRA hearing that he only wanted a reduced sentence. See Motion for Post Conviction Collateral
Relief at pp 4, box 12; N.T., 3/11/2016 at 15, 17.
27
N.T., 3/11/2016 at 17.
28
Transcript of Proceedings, In Re: Sentencing Proceedings, June 3, 2014 (Hess, P. J.) (hereinafter “N.T.,
6/03/2014 at __”) at 25.
29
See Motion for Post Collateral Relief at pp 4, box 12; N.T., 3/11/2016 at 17.
4
imposition of the sentence. A PCRA motion is therefore the improper forum for the
30
relief sought.
Even if Petitioner’s claim was able to overcome the unavailability of the relief
sought, his ineffectiveness claim would fail on other grounds. An ineffectiveness claim
may only provide relief where, "in the circumstances of the particular case,
\[ineffectiveness of counsel\] so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place." Commonwealth v. Kimball,
724 A.2d 326, 333 (Pa. 1999). Petitioner must overcome the presumption that counsel is
effective by establishing all of the following three elements:
(1)the underlying legal claim has arguable merit; (2) counsel
had no reasonable basis for his or her action or inaction; and
(3) the petitioner suffered prejudice because of counsel’s
ineffectiveness.
Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008), citing Commonwealth v.
Pierce, 527 A.2d 973, 975-76 (Pa. 1987). This is known as the Pierce test. Because the
Petitioner must prove all three factors, they need not be applied in order. Commonwealth
v. Steele, 961 A.2d 786, 797 (Pa. 2008).
Though no brief was filed, Petitioner’s primary argument that his sentence should
be reduced seems to be that it was due to the ineffectiveness of his counsel that he was
30
Furthermore, “Within the guidelines, sentencing is within the discretion of the judge, and will not be
disturbed absent a manifest abuse of discretion…To constitute an abuse of discretion, the sentence
imposed must either exceed the statutory limits or be manifestly excessive.” Commonwealth v. Hoag,
665 A.2d 1212, 1214, (Pa. Super). Ct. 1995) (citations omitted). Petitioner states that his sentence was
excessive due to his age at the time of the crime, lack of prior criminal record, status as a military veteran,
and alleged lack of intent. N.T., 3/11/2016. The sentencing judge was aware of all such factors at
sentencing. N.T., 6/03/2014. An allegation that a sentencing court 'failed to consider' or 'did not
adequately consider' certain factors does not raise a substantial question that the sentence was
inappropriate. Such a challenge goes to the weight accorded the evidence and will not be considered
absent extraordinary circumstances." Hoag, supra, at 1213 (internal citations omitted). As to the last
factor, Petitioner attempted to argue voluntary intoxication as a defense (arguing mitigated intent) at trial,
received adverse jury instructions based on the existing case law, and was found guilty. He then filed a
post sentence motion on the issue arguing the law should be changed. This argument was denied in post
sentence motion, on appeal to the Superior Court, and in Petition for Allowance of Appeal to the Supreme
Court. Petitioner makes no new argument regarding his intent here. See, Superior Court of Pennsylvania,
No. 1630 MDA 2014, 5/21/2015, denied; Supreme Court of Pennsylvania, No. 462, MAL 2015,
10/7/2015, denied.
5
convicted of Count I, Attempt to Commit Murder, which allowed the fourteen to twenty
eight year sentence to be imposed. In light of this argument, Petitioner’s burden is to
prove that counsel’s errors so prejudiced the finder of fact (the jury) that Petitioner could
not have been convicted of Count 1 had Attorney Clawges not made the alleged errors or
oversights. Boilerplate allegations and bald assertion of prejudice will not satisfy this
burden. Commonwealth v. Paddy, 15 A.3d 431, 443 (2008).
Petitioner makes a number of claims to assert that Attorney Clawges was
ineffective. Petitioner alleges the following oversights and errors: insufficient pre-trial
meeting time between Petitioner and Attorney Clawges, Petitioner was not offered a plea
deal, Petitioner was denied his own copy of all discovery, Petitioner was not given the
option of a jury versus non-jury trial, Attorney Clawges failed to object to two factual
misstatements that later allowed the jury to make negative inferences regarding
Petitioner’s intent, and Petitioner was not given notice of the ten day window in which to
31
appeal his sentence.
a.Claims That Fail Because They Lack Underlying Legal Merit
Several of Petitioner’s claims fail because they are null under the first prong of the
ineffectiveness test; that is, they have no underlying legal merit. There is no statutory
right to be offered a plea deal. See, i.e., Commonwealth v. Stafford, 416 A.2d 570 (Pa.
Super 1979); Commonwealth v. Smith, 664 A.2d 622 (Pa. Super 1995). Similarly, there
32
is no statutory right to receive a non-jury trial instead of a jury trial. Attorney Clawges
testified that he did in fact have medical record and police reports before trial,
33
constituting all the discovery he thought necessary. The record shows Petitioner was in
34
fact given notice of the ten-day window to appeal for modification.
31
See Motion for Post Conviction Collateral Relief; N.T., 3/11/2016 at 6-23.
32
Pennsylvania Rules of Criminal procedure actually preference a jury trial, requiring knowing and
voluntary waiver of a jury trial. See Pa.R.Crim.Pro 620 and 621. A court has the discretion to deny the
waiver, thereby requiring a jury trial. The judge may consider a prosecutor’s objection to the waiver as
one factor in their decision. Commonwealth v. Miguel, 598 A.2d 71 (Pa. Super. 1991).
33
N.T., 3/11/2016 at 29. It is not clear from the transcript of the PCRA hearing and written motion if
Petitioner’s argument is that that he personally did not receive discovery; however, this Court is not aware
6
The record refutes Petitioner’s allegation of a misstatement made in closing
argument. Petitioner alleges that prosecutor Richard Bradbury, in his closing argument,
agued through words and actions that the Petitioner got out of his vehicle and moved
towards the victim during the shooting, which Petitioner was not supported by the
35
record. However, the transcript of closing argument shows that the prosecutor
explicitly stated the Petitioner was in the car when he shot at the victim, and drove away
36
after firing a second shot. The transcript shows that the prosecutor, while portraying the
37
Petitioner, did say, “I am killing you, you motherfucker,” but that statement is
supported in the record by a witness who testified that he heard Petitioner yell, “Mother
38
fuckers, I am going to kill you.” Therefore, these claims have no underlying legal merit
and fail to satisfy prong one of the three-factor Pierce test.
b.Claims That Fail Because They Do Not Establish Prejudice
Petitioner’s other claims can be disposed of under the third factor, prejudice. The
courts have emphasized that if Appellant has not clearly established prejudice, “the claim
may be dismissed on that basis alone and the court need not first determine whether the
first and second prongs have been met." Commonwealth v. Albrecht, 720 A.2d 693, 701
(Pa. 1998). Prejudice is established where a petitioner demonstrates that but for the act or
omission in question, “there is a reasonable probability the outcome of the proceedings
would have been different." Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999).
Boilerplate allegations and bald assertion of prejudice will not satisfy the Petitioner’s
burden. Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa. 2008). Beyond bald assertions
that these alleged errors or omissions were prejudicial, Petitioner has not presented
of any rules or case law affirming that a represented criminal defendant is entitled to personally receive a
copy of discovery.
34
N.T., 6/03/2014 at 25.
35
N.T., 3/11/2016 at 10-11.
36
Transcript of Proceedings, In Re: Jury Trial Proceedings, Closing Argument Richard Bradbury, (Hess,
P.J.) at 6-8. The prosecutor argued that Petitioner was in his car with the engine running because he knew
he would need to make a getaway. Id. Transcripts do not include annotation of physical movement made
by the speakers.
37
Id. at 8.
38
Transcript of Proceedings, In Re: Jury Trial Proceedings, (Hess, P.J.)(hereinafter “N.T., 3/17-18/2014
at __”) at 50.
7
specific or credible evidence to show there is a reasonable probability that the jury would
have found differently on the Attempt to Commit Murder Count.
In particular, Petitioner points to what he alleges were two factual misstatements
39
allowed on the record that then prejudiced the jury against him. As discussed above,
Petitioner’s recollection of one of these statements is refuted by the record. As to the
second alleged misstatement, that Petitioner “popped” out of some bushes in a manner
that would allow someone to infer that he was stalking his ex-wife or the victim, the trial
transcript does include a statement by the victim, Timothy Bouder, that in an incident
several days before the shooting, when the victim was dropping off the Petitioner’s ex-
wife after a date around 8: 00 p.m., “I \[Bouder\] pulled in around the side of the house,
40
and \[Petitioner\] came running around the bushes.” Whether or not a statement is
41
factually correct is a matter for the jury. It is well-established that it is, “the province of
the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the
evidence produced. The factfinder is free to believe all, part or none of the evidence.”
Commonwealth v. Yost, 386 A.2d 956 (Pa. 1978). The jury received an instruction
42
stating as much. The jury is presumed to have followed the court's instructions.
Commonwealth v. Flor, 998 A.2d 606, 632 (Pa. 2010). Thus, the jury was free to believe
or disregard the statement about the bushes.
Furthermore, Petitioner asks the Court to find there is a reasonable probability that
the exclusion of this statement alone would have resulted in a different outcome. In light
of other evidence presented at trial, Petitioner’s argument rings hollow. Both Timothy
Bouder, the victim, and Sue Ann Hippensteel, Petitioner’s ex-wife, testified that
Petitioner came running up to Bouder’s truck on the night of the verbal altercation and
39
Motion for Post Conviction Collateral Relief, pp 4, box 6(c).
40
N.T., 3/17-18/2014 at 50.
41
The existence and position of any bushes that allegedly were or were not on the property in question
was never an issue at trial.
42
N.T., 3/17-18/2014 at 226-27.
8
43
screamed threats at Bouder; Petitioner admitted to hanging around his ex-wife’s house
44
to see “who was coming around”; and another witness testified that a man fitting
Petitioner’s description had been sitting in his truck outside Mrs. Hippensteel’s apartment
for about two hours one afternoon several days before the shooting, and further testified
that when he spoke to the man in the truck to find out why he was sitting there, the man
“said that he was watching his house to see if his wife was messing around on him. And I
\[the witness\] said…‘Don’t do anything stupid.’ And he…kind of chuckled \[and said\]
45
‘Have you ever heard of a homicide/suicide?’” The jury also heard other evidence that
went to Petitioner’s intent, such as the fact that he, an experienced hunter and military
4647
veteran, fired not one, but two shots at the victim. Petitioner never denied this fact.
Instead, he presented a defense intended to mitigate his intent. The fact that the jury
48
chose not to accept defense counsel’s arguments does not constitute prejudice. In light
of the forgoing, Petitioner has not proven that one passing comment about bushes was
significant enough that there is a reasonable probability the outcome of trial would have
been different had the statement been excluded. Thus, his argument on this claim fails.
c.Claims That Fail Because they are Unsupported by Factual Allegations
Similarly, Petitioner has failed to support his other claims with facts. His claims
that he did not have enough time to meet with his attorney and that he was denied all
discovery before trial are unsubstantiated. Pa.R.Crim.P. 902(d) requires that a PCRA
petitioner "attach to the petition any affidavits, records, documents, or other evidence
which show the facts stated in support of the grounds for relief, or the petition shall state
why they are notattached."
43
Id. at 29-30, 37, 50. Sue Ann Hippensteel did not mention Petitioner coming around or through any
bushes, but did state that he “came around the corner”. Id. at 29-30, 37. Bushes or no bushes, she and
Bouder testified such that a jury could conclude Petitioner was waiting for their arrival.
44
Id. at 177.
45
Id. at 45 (internal quotations added).
46
.
N.T., 3/11/2016 at 11This Court again notes that Petitioner’s defense at trial did not contest the major
facts of the case, but relied heavily on the argument that he could not have had the requisite intent due to
voluntary intoxication. See n.30, supra.
47
;
See, i.e., N.T., 3/11/2016 at 11N.T., 3/17-18/2014.
48
See, Commonwealth v. Battle, 883 A.2d 641 (Pa. Super. 2005).
9
Petitioner had not offered, for an example, any record of his meetings with
Attorney Clawges along with any explanation of why that time was insufficient, or a
discovery request which was improperly denied. Petitioner agreed he did meet several
49
times with Attorney Clawges prior to trial. Petitioner did attach to his appeal two
documents. One is a police statement from a witness of the underlying incident where
50
the witness states Petitioner stayed in his car during the shooting. This statement goes
to the issue of factual discrepancies as discussed above. The second document is a letter
from Petitioner’s wife’s divorce lawyer which calls the imposed sentence “harsh” and
51
“outrageous”. Not only are these statements not made by counsel of record, they are
52
bald assertions unsupported by any factual basis.
Conclusion
In light of the foregoing, Petitioner has failed to establish that but for the alleged
acts or omissions in question, “there is a reasonable probability the outcome of the
proceedings would have been different." Commonwealth v. Kimball, 724 A.2d 326, 333
(Pa. 1999). He has not established that he was prejudiced by ineffectiveness of counsel.
Therefore, Petitioner’s Motion for Post Conviction Collateral Relief based on
ineffectiveness of counsel fails.
BY THE COURT,
s/Christylee L. Peck
Christylee L. Peck, J.
Matthew P. Smith, Esquire
Chief Deputy District Attorney
Gregory B. Abeln, Esquire
Court-Appointed Counsel for Petitioner
49
N.T., 3/11/2016 at 8.
50
Motion for Post Conviction Collateral Relief, Exhibit 2 A-B.
51
Id., Exhibit 1 A-B.
52
See n.30 supra, regarding the discretion given judges at sentencing.
10