Com. v. Sullivan, D.
356 WDA 2016
| Pa. Super. Ct. | Nov 17, 2016Background
- David S. Sullivan was convicted of repeated sexual abuse of his minor stepdaughter (M.B.) and sentenced to 18–36 years; this appeal arises from denial of a PCRA petition alleging trial counsel was ineffective for not calling Appellant’s son (D.S.), then ~10, as a defense witness.
- Appellant previously appealed and this Court remanded for a PCRA evidentiary hearing to determine counsel’s basis for not calling D.S. and whether prejudice resulted.
- At the PCRA hearing D.S. testified he was frequently at home during the alleged incidents, never observed abuse, and on two occasions claimed his sister said she lied about the allegations (but D.S. acknowledged he never heard her admit specifics to anyone).
- Trial counsel testified he believed he had spoken with D.S., but worried a child witness could be unpredictable, vulnerable to aggressive cross-examination by an experienced prosecutor, and that calling the son to testify against his sister might alienate the jury; counsel also said he discussed strategy with Appellant and Appellant agreed.
- The PCRA court found counsel had a reasonable basis for not calling D.S. and found D.S.’s PCRA testimony of limited credibility; the Superior Court affirmed, concluding no ineffective assistance and no prejudice that would undermine confidence in the verdict.
Issues
| Issue | Sullivan's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for not calling D.S. | Counsel failed to interview or call an exculpatory, available witness whose testimony likely would have changed the outcome | Counsel had a reasonable strategic basis (jury reaction, unpredictable child testimony, cross-examination risks) and discussed strategy with Sullivan | Court held counsel’s decision had an objectively reasonable basis and was not ineffective |
| Whether counsel’s alleged failure to investigate (interview) D.S. rendered the decision unreasonable | No interview rendered the choice not to call D.S. per se unreasonable | Counsel testified he believed he had interviewed D.S. and routinely spoke with family members; PCRA credited that testimony | Court found record supports that counsel did speak with D.S.; no per se unreasonable failure to investigate |
| Whether omission of D.S. prejudiced the defense (reasonable probability of different result) | D.S. would have corroborated defense that M.B. lied and undermined her credibility, producing a different outcome | D.S.’s PCRA testimony lacked credibility and, even if admitted, would not probably change verdict | Court held Appellant failed to show prejudice; PCRA court’s credibility findings upheld |
| Proper role of PCRA court on witness credibility | Sullivan argued credibility should be left to jury | Commonwealth relied on PCRA court’s duty to assess credibility at hearing | Court affirmed that PCRA court properly made credibility determinations at the evidentiary hearing per Johnson |
Key Cases Cited
- Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014) (standard of review for PCRA denials)
- Commonwealth v. Franklin, 990 A.2d 795 (Pa. Super. 2010) (three-prong ineffective assistance test)
- Commonwealth v. Pander, 100 A.3d 626 (Pa. Super. 2014) (failure to investigate/call witness framework)
- Commonwealth v. Michaud, 70 A.3d 862 (Pa. Super. 2013) (appellant must show witness testimony would be helpful)
- Commonwealth v. Matias, 63 A.3d 807 (Pa. Super. 2013) (counsel ineffective where he did not interview child witness who would have contradicted victim)
- Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009) (PCRA court must make credibility determinations when hearings are held)
- Commonwealth v. Oliver, 128 A.3d 1275 (Pa. Super. 2015) (appellate court may affirm PCRA on any supporting ground)
- Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012) (same)