Com. v. Sullivan, D.
356 WDA 2016
| Pa. Super. Ct. | Nov 17, 2016Background
- David S. Sullivan was convicted by a jury of repeated sexual offenses against his minor stepdaughter (M.B.) and sentenced to 18–36 years. Appellate review and PCRA proceedings followed.
- Appellant claimed trial counsel was ineffective for not calling his then-10-year-old son, D.S., who later testified at a PCRA hearing that he never witnessed abuse and that M.B. once told him she had lied.
- This Court previously remanded for an evidentiary hearing to determine counsel’s basis for not calling D.S. and whether Appellant suffered prejudice.
- At the PCRA hearing, counsel testified he had spoken with D.S. (though lacked a specific recollection), and chose not to call him because of concerns about child witness unpredictability, aggressive cross-examination by the prosecutor, juror perception of a father forcing his son to testify against his sister, and strategic discussions with Appellant.
- The PCRA court found counsel’s strategic decision reasonable and discredited aspects of D.S.’s testimony (inconsistencies and implausible claims about being never separated from his sister), holding Appellant failed to prove prejudice.
- The Superior Court affirmed, deferring to the PCRA court’s credibility findings and concluding Appellant did not meet the ineffective-assistance standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for failing to call D.S. | Sullivan: counsel did not interview D.S., who was available and would have provided exculpatory testimony undermining M.B.’s credibility. | Commonwealth/PCRA court: counsel had reasonable strategic bases (child unpredictability, cross-examination risk, juror perception) and discussed strategy with Sullivan. | Counsel’s decision was objectively reasonable; no ineffective assistance. |
| Whether counsel’s alleged failure to interview D.S. established lack of reasonable basis | Sullivan: absence of an interview shows counsel performed no investigation; Matias controls. | PCRA court: counsel credibly testified he spoke with D.S. as part of routine practice. | Court credited counsel’s testimony that he did speak with D.S.; no unreasonable failure to investigate. |
| Whether omission of D.S.’s testimony was prejudicial | Sullivan: if believed by the jury, D.S. would have created a reasonable probability of a different result. | Commonwealth: D.S.’s PCRA testimony had credibility problems and lacked specifics about what M.B. allegedly lied about. | No prejudice; PCRA court found D.S. not sufficiently credible and absence of testimony did not undermine confidence in outcome. |
| Whether PCRA court may resolve witness credibility at hearing | Sullivan: jury should decide credibility; court should not substitute judgment. | PCRA court/Commonwealth: PCRA courts make credibility findings at evidentiary hearings. | Johnson controls: PCRA court properly made credibility determinations; appellate deference applies. |
Key Cases Cited
- Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014) (standard of review for PCRA denial and deference to credibility findings)
- Commonwealth v. Pander, 100 A.3d 626 (Pa. Super. 2014) (elements for proving failure-to-investigate/call witness and prejudice)
- Commonwealth v. Matias, 63 A.3d 807 (Pa. Super. 2013) (counsel ineffective where counsel did not interview child witness who would have contradicted victim)
- Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009) (PCRA courts must make credibility determinations at evidentiary hearings and such findings receive deference)