Commonwealth v. Sandusky

• Decision Date: 05 February 2019
• Docket Number: No. 1654 MDA 2017,1654 MDA 2017
• Citation: 203 A.3d 1033
• Parties: COMMONWEALTH of Pennsylvania v. Gerald A. SANDUSKY, Appellant
• Court: Pennsylvania Superior Court

203 A.3d 1033

COMMONWEALTH of Pennsylvania

v.Gerald A. SANDUSKY, Appellant

No. 1654 MDA 2017

Superior Court of Pennsylvania.

Argued August 15, 2018

Filed February 5, 2019

Alexander H. Lindsay, Jr., Butler, for appellant.

Jennifer A. Buck, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

OPINION BY NICHOLS, J.:

Appellant Gerald A. Sandusky appeals from the order denying his timely first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 - 9546. Appellant raises a number of claims relating to the ineffective assistance of counsel, violations of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and newly discovered evidence. He also challenges the legality of his sentence. We affirm in part and remand for resentencing consistent with this opinion.

We briefly summarize the relevant procedural history of this case. On November 4, 2011, after the Thirty-Third Statewide Investigating Grand Jury issued a recommendation and presentment, the Commonwealth ¹ charged Appellant with committing numerous sexual offenses against eight young males referred to as Victims 1 through 8 in case number 2422-2011. Appellant was arrested and subsequently released on bail. Appellant obtained private counsel, Joseph E. Amendola, Esq.²

On December 7, 2011, after the Thirty-Third Statewide Investigating Grand Jury issued another presentment, the Commonwealth charged Appellant with crimes committed against two additional victims, referred to as Victims 9 and 10 in case number 2421-2011. On December 13, 2011, Appellant waived preliminary hearings in both cases. The matter was held over to the Centre County Court of Common Pleas, and the Honorable John M. Cleland was specially appointed to preside.

Following a contentious discovery process, during which Appellant's trial counsel sought numerous continuances and sought to withdraw from representation, Appellant proceeded to a jury trial.³ On June 22, 2012, the jury found Appellant guilty of forty-five counts relating to the ten victims between 1995 and 2008.

On October 9, 2012, the trial court determined Appellant was a sexually violent predator and sentenced him to an aggregate term of thirty to sixty years' imprisonment.⁴ Appellant filed post-sentence motions, and on October 18, 2012, Norris E. Gelman, Esq., entered his appearance as co-counsel for post-sentence proceedings. The trial court denied Appellant's post-sentence motions following a hearing at which Attorney Amendola testified.⁵

Appellant, who was then represented by Attorney Gelman, took a direct appeal. This Court affirmed the judgment of sentence, and the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal. See Commonwealth v. Sandusky , 77 A.3d 663, 667 (Pa. Super. 2013), appeal denied 835 & 836 MAL 2013 (Pa. filed Apr. 2, 2014).

On April 2, 2015, Appellant timely filed his first counseled PCRA petition, raising fifteen claims of ineffective assistance of counsel. See PCRA Pet., 4/2/15, at 15-95. Appellant filed an amended petition on May 6, 2015, raising additional claims. SeeAm. PCRA Pet., 5/6/15, at 15-105. On March 7, 2016, Appellant filed a second amended petition. See Second Amended PCRA Pet., 3/7/16, at 33-155.

Thereafter, the PCRA court conducted six separate evidentiary hearings under two different judges.⁶ During these hearings, which took place between August 12, 2016 and May 11, 2017, Appellant presented several witnesses and testified on his own behalf. At the conclusion of the hearings, both parties submitted proposed findings of fact and conclusions of law.

On October 18, 2017, the PCRA court issued an opinion and order denying Appellant's PCRA petition. Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) statement.

On appeal, Appellant raises twenty-two issues for review. See Appellant's Brief at 5-9. We list and consider each question below.⁷

Initially, we note that our standard of review from the denial of a PCRA petition "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." Commonwealth v. Ousley , 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). "The PCRA court's credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court's legal conclusions." Commonwealth v. Mitchell , 629 Pa. 572, 105 A.3d 1257, 1265 (2014) (citation omitted).

Furthermore, to establish a claim of ineffective assistance of counsel, a defendant "must show, by a preponderance of the evidence, ineffective 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." Commonwealth v. Turetsky , 925 A.2d 876, 880 (Pa. Super. 2007) (citation omitted). The burden is on the defendant to prove all three of the following prongs: "(1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different." Id. (citation omitted).

We have explained that

[a] claim has arguable merit where the factual averments, if accurate, could establish cause for relief. SeeCommonwealth v. Jones , 583 Pa. 130, 876 A.2d 380, 385 ( [Pa.] 2005) ("if a petitioner raises allegations, which, even if accepted as true, do not establish the underlying claim ..., he or she will have failed to establish the arguable merit prong related to the claim"). Whether the facts rise to the level of arguable merit is a legal determination.

The test for deciding whether counsel had a reasonable basis for his action or inaction is whether no competent counsel would have chosen that action or inaction, or, the alternative, not chosen, offered a significantly greater potential chance of success. Counsel's decisions will be considered reasonable if they effectuated his client's interests. We do not employ a hindsight analysis in comparing trial counsel's actions with other efforts he may have taken.

Prejudice is established if there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Commonwealth v. Stewart , 84 A.3d 701, 707 (Pa. Super. 2013) (some internal quotations and citations omitted).

"[B]oilerplate allegations and bald assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a petitioner's burden to prove that counsel was ineffective." Commonwealth v. Paddy , 609 Pa. 272, 15 A.3d 431, 443 (2011). Moreover, "[a] failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness." Commonwealth v. Daniels , 600 Pa. 1, 963 A.2d 409, 419 (2009) (citation omitted).

1. Did the [PCRA] court err in finding counsel performed effectively in permitting [Appellant] to be interviewed by Bob Costas without adequately advising him and preparing him for the interview and thereby providing the Commonwealth with additional evidence?

Appellant's first issue relates to Appellant's nationally broadcasted telephone interview with Bob Costas on November 14, 2011, shortly after his arrest. During the interview, Costas confronted Appellant with the pre-trial statements from Michael McQueary, James Calhoun, and Ronald Petrosky implicating Appellant in the abuse of two separate children.⁸ With respect to McQueary's statement regarding a February 2001 incident in the Lasch Building involving Victim 2, Appellant responded that it was false and explained that he was engaged in horseplay with that child while in the shower. Additionally, when Costas asked what motive McQueary, Calhoun, and Petrosky would have to implicate Appellant, Appellant responded, "You would have to ask [them]." Commonwealth's Ex. 104 at 2 (unpaginated).

Of particular relevance to Appellant's first issue, Costas asked Appellant, "Are you sexually attracted to young boys, to underage boys?" Id. at 3. Appellant paused and repeated the question back to Costas. Id. Appellant then replied, "[S]exually attracted, you know, I enjoy young people. I love to be around them. I, I, but no, I'm not sexually attracted to young boys." Id.

In his first issue, Appellant argues that the PCRA court erred in rejecting his claim that Attorney Amendola was ineffective for permitting Appellant to participate in the interview with Costas. Appellant's Brief at 22. Specifically, Appellant alleges that Attorney Amendola did not adequately prepare him for the interview and failed to advise Appellant that his statements during the interview could be used at trial. Id. at 29.

Appellant further contends that Attorney Amendola had no reasonable legal basis for advising Appellant to participate in the interview. Id. at 30. He asserts that Attorney Amendola's "encouraging of [Appellant] to waive his right to remain silent and speak to Costas had no strategic trial basis[,] as it was based on currying media attention, which is not a trial strategy." Id. at 31. Additionally, he contends that there could be no "reasonable basis for permitting your client to do a national interview without preparation." Id. at 30.

Appellant also argues that he suffered prejudice because the Commonwealth played the interview at trial and "inaccurately repeated the most damaging portion of the interview." Id. at 31. Additionally, Appellant asserts that the interview enabled the Commonwealth to comment on Appellant's silence, as the prosecution "repeatedly referenced [Appellant's] failure to tell Costas the name of [Victim 2]."⁹ Id. at 32. He posits that "if counsel properly advised [Appellant] about the...