J-S68034-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID STEPHEN SULLIVAN, :
:
Appellant : No. 356 WDA 2016
Appeal from the Order September 29, 2015
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002944-2005
BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 17, 2016
David Stephen Sullivan (Appellant) appeals nunc pro tunc from the
order which denied his petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. This matter returns to us following
remand for the PCRA court to conduct an evidentiary hearing and render
findings and conclusions on Appellant’s claim that his trial counsel was
ineffective for failing to call Appellant’s son, D.S., as a witness at trial. 1
Upon review, we affirm.
1
“D.S. was ten years old at the time of trial.” Commonwealth v. Sullivan,
120 A.3d 370 (Pa. Super. filed February 5, 2015) (unpublished
memorandum at 5 n.4).
*Retired Senior Judge assigned to the Superior Court.
J-S68034-16
Appellant was convicted by a jury of various offenses stemming from
the repeated sexual abuse of his minor stepdaughter, M.B. 2 Appellant was
sentenced to an aggregate term of 18 to 36 years of incarceration. This
Court affirmed his judgment of sentence, and our Supreme Court denied his
petition for allowance of appeal. Commonwealth v. Sullivan, 987 A.2d
825 (Pa. Super. filed October 27, 2009) (unpublished memorandum), appeal
denied, 8 A.3d 345 (Pa. 2010). Appellant thereafter filed a PCRA petition
and, following the filing of two amended petitions, the PCRA court dismissed
the petition. Appellant appealed, and on February 5, 2015, this Court
affirmed in part, vacated in part, and remanded the case. Commonwealth
v. Sullivan, 120 A.3d 370 (Pa. Super. filed February 5, 2015) (unpublished
memorandum). Specifically, this Court held that the dismissal was
premature and remanded for the PCRA court to make findings as to
2
“M.B. is autistic and suffers from attention deficit hyperactivity disorder
and depression.” Commonwealth v. Sullivan, 987 A.2d 825 (Pa. Super.
filed October 27, 2009) (unpublished memorandum at 2). With respect to
the abuse, M.B. testified that Appellant touched M.B.’s “boobs, vagina, and
butt;” M.B. touched Appellant’s “nipples, penis, and butt;” they both
engaged in oral sex, during which Appellant used a strawberry flavored gel,
telling M.B. it would “taste better;” and Appellant showed M.B. magazines
depicting couples engaging in sexual intercourse, using the magazines and
pornographic movies to persuade M.B. “that sex with a parent was a proper
and normal activity.” Id. at 3-5. M.B. also testified that Appellant “would
create a ‘club house’ by draping a blanket over a pool table which was
located in the basement of his mother’s home .... to engage in sexual
activities;” Appellant took photographs of M.B. in different sexual positions;
Appellant asked M.B. to touch and lick a fake penis; and Appellant asked
M.B. to play a sexual dice game stored in a purple bag in the basement. Id.
at 4-5.
-2-
J-S68034-16
counsel’s basis for not calling D.S. as a witness and whether Appellant
suffered prejudice. Id. at 7.
The evidentiary hearing was held on September 3, 2015, following
which the PCRA court denied relief. Appellant untimely filed an appeal,
which this Court quashed sua sponte. Thereafter, Appellant requested and
was granted the right to file an appeal nunc pro tunc. This appeal followed.
Appellant presents one issue for our consideration:
Where trial counsel failed to call an exculpatory witness at trial
who was known to trial counsel but never interviewed, was
available and willing to testify favorably for Appellant, and whose
testimony had a reasonable probability of changing the outcome
at trial, did the [PCRA] court err in finding the decision not to call
the witness objectively reasonable without a basis in the record
and contrary to law.
Appellant’s Brief at 1 (unnecessary capitalization omitted).
In reviewing the denial of PCRA relief, we examine whether the
PCRA court’s determination is supported by the record and free
of legal error. The scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level. It is
well-settled that a PCRA court’s credibility determinations are
binding upon an appellate court so long as they are supported by
the record. However, this Court reviews the PCRA court’s legal
conclusions de novo.
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (internal
quotation marks and citations omitted).
As Appellant’s claim pertains to the alleged ineffective assistance of his
trial counsel, we further observe the following.
[A] PCRA petitioner will be granted relief only when he proves,
by a preponderance of the evidence, that his conviction or
-3-
J-S68034-16
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. ...
It is well-established that counsel is presumed to have
provided effective representation unless the PCRA
petitioner pleads and proves all of the following: (1) the
underlying legal claim is of arguable merit; (2) counsel’s
action or inaction lacked any objectively reasonable basis
designed to effectuate his client’s interest; and (3)
prejudice, to the effect that there was a reasonable
probability of a different outcome if not for counsel’s error.
The PCRA court may deny an ineffectiveness claim if the
petitioner’s evidence fails to meet a single one of these prongs.
Moreover, a PCRA petitioner bears the burden of demonstrating
counsel’s ineffectiveness.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)
(internal quotation marks and citations omitted). We further observe the
following with respect to the reasonable-basis and prejudice prongs of the
ineffectiveness test.
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.
-4-
J-S68034-16
Commonwealth v. Pander, 100 A.3d 626, 631 (Pa. Super. 2014) (internal
quotation marks and citations omitted).
Regarding ineffective assistance of counsel claims based on a failure to
investigate and call a witness, this Court has explained that
[n]eglecting to call a witness differs from failing to investigate a
witness in a subtle but important way. The failure to investigate
presents an issue of arguable merit where the record
demonstrates that counsel did not perform an investigation. It
can be unreasonable per se to conduct no investigation into
known witnesses. Importantly, a petitioner still must
demonstrate prejudice. To demonstrate prejudice where the
allegation is the failure to interview a witness, the petitioner
must show that there is a reasonable probability that the
testimony the witness would have provided would have led to a
different outcome at trial.
In this respect, a failure to investigate and interview a witness
claim overlaps with declining to call a witness since the petitioner
must prove: (i) the witness existed; (ii) the witness was
available to testify; (iii) counsel knew of, or should have known
of, the existence of the witness; (iv) the witness was willing to
testify; and (v) the absence of the testimony was so prejudicial
as to have denied the defendant a fair trial.
Pander, 100 A.3d at 638-39 (internal quotation marks and citations
omitted). See also Commonwealth v. Michaud, 70 A.3d 862, 868 (Pa.
Super. 2013) (“Thus, trial counsel will not be found ineffective for failing to
investigate or call a witness unless there is some showing by the appellant
that the witness’s testimony would have been helpful to the defense.”).
Appellant argues that D.S.’s testimony would have been helpful, given
the lack of evidence corroborating M.B.’s testimony as to the abuse, in
attacking M.B.’s credibility and establishing Appellant’s defense that M.B.
-5-
J-S68034-16
was leveling false allegations against Appellant in anger as a result of her
learning that he was not her biological father. Appellant’s Brief at 22-25.
Appellant argues that D.S. was the only other witness who could testify
specifically that M.B. was lying about the abuse. Id. at 22, 25, 27.
Appellant points to D.S.’s testimony offered at the PCRA hearing that (1) he
was around the house with Appellant and M.B. “all the time” and never saw
anything “going on” between them, (2) on two occasions he had a
conversation with M.B. during which she admitted she had lied about the
allegations, and (3) he knew M.B. was lying because D.S. was present and
never apart from M.B. while at home during the times M.B. said the abuse
took place. Id. at 22-24. Appellant contends that counsel did not even
interview D.S., thereby rendering his bases for failing to call him
unreasonable, and that Appellant was precluded from presenting “a witness
to essentially corroborate his own testimony that the allegations were false,
and more importantly, the complaining witness lied when she made them.”
Id. at 21-22, 25-26, 28.
At the PCRA hearing, D.S. testified that he was aware of the
circumstances that led to Appellant’s being incarcerated, including
“accusations that [M.B.] had made regarding inappropriate sexual contact.”
N.T., 9/3/2015, at 5. D.S. knew that the incidents were alleged to have
occurred in the basement of the house, and confirmed that he and his sister
were often down there. Id. at 16. D.S. indicated that, during that time,
-6-
J-S68034-16
Appellant was responsible for him and his grandmother was at work. Id. at
18. D.S. testified to a brief description of the basement and the “pool table
that had been mentioned as where the incidents had taken place,” stating it
was “very small” with storage containers filled with toys underneath and
“wood that came down was like with [sic] structures to keep it up,” such that
the containers were hard to remove at times. Id. at 8, 16-17.
D.S. also explained that when Appellant was first arrested, a
representative from Children, Youth, and Families asked D.S. if he “ever saw
anything going on” and D.S. told the representative he “did not.” Id. at 7.
The representative asked D.S. “how long -- how often [D.S.] was around the
house with [Appellant] and [M.B.],” and D.S. told him he was “there all the
time.” Id. at 7-8. On cross-examination, D.S. confirmed that he was
present during all the time of when the incidents were alleged to have
occurred and that he “did not witness any act.” Id. at 29-30, 32.
D.S. also recalled having a conversation with M.B. on two occasions,
“[o]ne in March of 2005 and one in May of 2005.” Id. at 9. As for the
March 2005 conversation, D.S. stated as follows:
[D.S.]: [M.B.] told me she wished things could go back to the
way they were. And I told her -- I asked her, “Why did you lie?”
She said she wished she didn’t. I told her she needs to tell
somebody and tell the truth. And she responded by saying, “I
need to go talk to nana,” and she it [sic] ran off.”
[Appellant’s Counsel]: Okay. … You said that your sister told
you that she wanted things to go back to the way they were.
What did you understand that to mean, sir?
-7-
J-S68034-16
[D.S.] Back to living with my dad and my grandmother after my
parents divorced.
***
[Appellant’s Counsel]: Let me go back to conversations that you
had with your sister. You said or she told you that she wished
things had gone back to the way they were and you said why did
you lie. Tell me why that was your response, sir.
[D.S.] Because I knew she lied. She lied all the time and I
knew she lied about this because I was there. Where she said
the allegations took place. All the time.
[Appellant’s Counsel]: There was never a time when you
weren’t with your sister?
[D.S.]: Not at home.
Id. at 9-10, 12-13. D.S. further testified that the conversations in March
2005 and May 2005 were consistent. Id. at 20. D.S. stated that, with
respect to the conversation in May, he told M.B. that “she needs to tell the
truth. And she responded with ‘It is too late for that now.’ After that, she
run ran [sic] away from the house, and [D.S] didn’t have a chance to talk to
her after that.” Id. at 20-21.
Although D.S. believed that, when he had the conversation with M.B.,
M.B. was not telling the truth, when asked if she told him that, D.S. said no.
Id. at 20. When asked if he was aware if M.B. told anyone that she had
made up an allegation, D.S. responded no. Id. at 13. D.S. also explained
that he told several adults what M.B. had expressed to him, including his
-8-
J-S68034-16
grandmother, his mother, his aunt, and his uncle, and that his mother’s side
of the family did not believe him. Id. at 13-14, 21.
D.S. testified that, although he knew the allegations against Appellant,
he was not present at Appellant’s trial, did not read the trial transcript about
what occurred, and had no knowledge about the actual testimony and facts
that came out at trial. Id. at 5, 23-24, 32. D.S. stated that he first learned
of the allegations through his maternal grandparents, but he could not
“recall specifics” about what they said and, when asked if he could state
“anything else about [his] knowledge of the allegations against [his] father,”
D.S. said no. Id. at 30, 32. D.S. also stated that he had never discussed
the case with anyone but Appellant’s PCRA attorney. Id. at 23-25.
D.S. said he had a normal family relationship with his sister prior to
the allegations being made against Appellant, but that it ended about a year
after the trial and he has not spoken with her since. Id. at 19, 23, 28. D.S.
stated that he currently has a relationship with Appellant and visits him in
prison, that they wrote letters to each other, and that he misses his dad and
hopes that he comes home. Id. at 27-28.
In addressing Appellant’s claim on appeal, the PCRA court concluded
that counsel had a reasonable basis for failing to call D.S. as a witness at
trial. At the hearing, the PCRA court explained as follows, in relevant part:
[Counsel] did present a reasonable basis for not calling the son
in this case and he gave good reasons. I’ll present them. He
said that because of the age of the child, he did not want to
-9-
J-S68034-16
alienate the jury. He was not sure how consistent the child’s
testimony would be. He would be concerned about [the
Commonwealth’s] often-aggressive cross-examination of defense
witnesses and he talked about concerns.
N.T., 9/3/2015, at 75. In its subsequent opinion issued pursuant to
Pa.R.A.P. 1925(a), the PCRA court further found that counsel
testified that it was his practice to speak to all family members
and he did speak with [D.S.], though he did not have an
independent recollection of the conversation. He was testified
that he did not want to put [D.S.] on the stand because he
believed child witnesses could be unpredictable. He was
particularly worried because [Appellant] had initially made a
statement to the police that the allegations were “not all true[,”]
and thus he felt [D.S.] would be vulnerable to cross-examination
on which of the allegations were true. [Counsel] was familiar
with the prosecutor, … and believed her to be a good prosecutor
who was particularly skilled with child witnesses and it was his
opinion that she may have been able to elicit unexpected
information from [D.S.] on cross-examination. Moreover,
[counsel] was concerned in general about how a jury would react
to a father subjecting his young son to testimony in general and
also in having him testify against his sister. Finally, [counsel]
testified that he discussed all matters of strategy and witnesses
with [Appellant], including whether to have [D.S.] testify, and
[Appellant] agreed with the strategy at the time.
PCRA Court Opinion, 5/4/2016, at 6-7 (citations and emphasis omitted).
The crux of Appellant’s argument on appeal is that, notwithstanding
the bases offered by counsel for not calling D.S., counsel’s inaction cannot
be deemed reasonable because counsel did not even speak to D.S.
Appellant’s Brief at 21-22, 25-26, 28; see also Appellant’s Reply Brief at 1-
5. However, as stated above, the PCRA court found that counsel did speak
with D.S. Viewing the record in the light most favorable to the
- 10 -
J-S68034-16
Commonwealth as the prevailing party below, the record supports the PCRA
court’s finding. Specifically, though counsel testified that he did not have a
specific recollection of speaking with D.S., counsel also stated that he
“believe[d he] did interview” D.S., that “as a practice, that is something [he]
would have done,” and that he did talk to him about what he would testify
to, but not about whether he was going to testify. See N.T., 9/3/2015, at
37, 39-41, 46-47, 56-57, 59-60.
Moreover, the record supports the PCRA court’s findings with respect
to the reasons offered by counsel for not calling D.S. at trial. Specifically,
counsel stated that he was concerned that putting a 10 or 11 year old child
on the stand can alienate the jury and that he was concerned about how
D.S. would respond to the prosecutor’s cross-examination, given that the
prosecutor had significant experience in dealing with child witnesses. Id. at
37-38, 40, 52, 55. Moreover, counsel explained that, when police read
Appellant the affidavit of probable cause with respect to the charges,
Appellant responded, “That’s not all true,” and counsel was concerned that
the prosecutor would ask D.S. what parts were true in his opinion. Id. at
38. Counsel also testified to how the jury might view Appellant in light of
calling his own son to testify against his sister, as it “could be interpreted by
some as a desperate” and “non-caring parental act.” Id. at 52-53. Further,
counsel testified that he discussed D.S.’s testifying with Appellant and that
Appellant never expressed any dissatisfaction with the decisions he and
- 11 -
J-S68034-16
Appellant were making, particularly with regard to strategy. Id. at 39, 46-
47, 54-55, 57, 59. In light of the foregoing, the PCRA court did not err or
abuse its discretion in concluding that counsel had a reasonable basis for not
calling D.S. as a witness. Compare Commonwealth v. Matias, 63 A.3d
807, 809-12 (Pa. Super. 2013) (affirming PCRA court’s conclusion that
counsel was ineffective for failing to call a child-witness where counsel did
not interview her and she would have contradicted victim’s testimony that
she was an eyewitness to the sexual abuse at issue).
Moreover, we conclude that Appellant has failed to establish prejudice.
At the conclusion of the hearing, the PCRA court stated the following, in
relevant part, on the record.
I think first I’m going to address the credibility of [D.S.],
[Appellant’s] son. I feel that even today, there was an issue of
credibility. For instance, his description of the pool table, which
I remember photographs of, was not accurate and it was shown
that there was space under the pool table.
He said that he was never, ever separated from [M.B.],
which would mean to me that they went to bed at the same
time, they got up at the same time, they had their nightmares at
the same time, they bathed and went to the bathroom at the
same time, and this certainly sheds some question mark on his
credibility.
He did testify that [M.B.] said that she wished things would
go back to where they were and that she lied. But there is no
testimony about what she lied about. And I would imagine that
a child in this situation would like things to go back. There are
several viable interpretations. One could be just that they would
go back to the way it was before [Appellant] was molesting her.
Id. at 74-75.
- 12 -
J-S68034-16
Upon review of the foregoing, it is clear that the PCRA court did not
find that D.S.’s testimony was credible and that, to the extent that it was, its
absence was not “so prejudicial as to have denied [Appellant] a fair trial.”
Pander, 100 A.3d at 639. In this regard, Appellant, citing Commonwealth
v. Johnson, 966 A.2d 523 (Pa. 2009), argues that “[i]t is not for the [PCRA
c]ourt to decide if the witness would have been found credible and would
necessarily have resulted in an acquittal. The jury was robbed of testimony
that was exculpatory and it was up to the jury to decide whether to believe
[D.S.] or not. If believed, there is a reasonable probability the outcome
would have been different.” Appellant’s Brief at 28 (citation omitted); see
also Appellant’s Reply Brief at 7.
In Johnson, the PCRA court concluded that Johnson’s trial counsel
was ineffective for failing to investigate and call certain fact witnesses at
trial. Johnson, 966 A.2d at 534. The PCRA court concluded that the failure
was prejudicial to Johnson, but in so doing, it declined to render credibility
determinations with respect to the witnesses, explaining that task belonged
to the jury. Id. at 535. Our Supreme Court held that the PCRA court’s
conclusion was in error, explaining:
A PCRA court passes on witness credibility at PCRA
hearings, and its credibility determinations should be provided
great deference by reviewing courts. Indeed, one of the primary
reasons PCRA hearings are held in the first place is so that
credibility determinations can be made; otherwise, issues of
material fact could be decided on pleadings and affidavits alone.
***
- 13 -
J-S68034-16
This Court has made clear that, in cases where the PCRA
court declined to hold a hearing, and where an assessment of
witness testimony was essential to a petitioner’s ineffectiveness
claims, the PCRA court must make specific credibility
determinations. When a PCRA hearing is held, and the PCRA
court makes findings of fact, we expect the PCRA court to make
necessary credibility determinations.
Johnson, 966 A.2d at 539-40 (citations and footnote omitted).
Pursuant to Johnson, the PCRA court correctly rendered a credibility
determination with respect to D.S.’s testimony. A review of the court’s
rationale as it relates to D.S.’s credibility reveals that it determined that “the
nature and quality” of his testimony was not “such that there is a reasonable
probability that the jury would have credited it and rendered a more
favorable verdict.” Johnson, 966 A.2d at 542. Viewing the evidence in the
light most favorable to the Commonwealth, we discern no abuse of
discretion or error of law in this regard.
Because Appellant has failed to establish that he is entitled to relief on
his ineffectiveness claim, we affirm the order of the PCRA court.3
Order affirmed.
3
To the extent our rationale differs from that of the trial court, we note that
“[t]his Court may affirm a PCRA court’s decision on any grounds if the record
supports it.” Commonwealth v. Oliver, 128 A.3d 1275, 1279 (Pa. Super.
2015) (quoting Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.
2012)).
- 14 -
J-S68034-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2016
- 15 -
Com. v. Sullivan, D.
Combined Opinion