Com. v. Sullivan, D.
356 WDA 2016
| Pa. Super. Ct. | Nov 17, 2016Background
- David S. Sullivan was convicted by a jury of multiple sexual offenses against his minor stepdaughter, M.B., and sentenced to 18–36 years' imprisonment.
- M.B. (the victim) testified to detailed sexual abuse occurring in the basement, including use of a blanket-draped pool table and pornography; she is autistic and has ADHD and depression.
- Appellant claimed trial counsel was ineffective for not calling his son, D.S. (age 10 at trial), who at a PCRA hearing testified he never witnessed abuse in the home and recounted two conversations in 2005 in which M.B. said she had lied.
- This Court previously remanded for an evidentiary PCRA hearing limited to counsel’s reasons for not calling D.S. and whether Appellant suffered prejudice from that decision.
- At the PCRA hearing counsel testified (in part) that he believed he had spoken with D.S., that he and Appellant discussed strategy, and that he declined to call D.S. because child witnesses can be unpredictable, the prosecutor was skilled with children, jury reaction to a father putting his son on the stand could be harmful, and D.S.’s testimony might be inconsistent.
- The PCRA court discredited aspects of D.S.’s testimony (e.g., inaccuracies, implausible claims of never being apart from M.B.), concluded counsel had a reasonable strategic basis, and found no reasonable probability the outcome would differ. The Superior Court affirmed.
Issues
| Issue | Appellant's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for not calling/ interviewing D.S. | Sullivan: counsel failed to interview and thus unreasonably declined to call an exculpatory witness whose testimony (that M.B. admitted lying) would likely change the verdict | Commonwealth: counsel had reasonable strategic bases (concern about child witness, prosecutor’s skill, jury reaction, potential inconsistencies) and did speak with D.S.; absence of testimony was not prejudicial | Court held counsel’s decision was objectively reasonable and Appellant failed to show prejudice; PCRA denial affirmed |
Key Cases Cited
- Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014) (standard of review for PCRA denials and credibility findings)
- Commonwealth v. Franklin, 990 A.2d 795 (Pa. Super. 2010) (elements required to prove ineffectiveness of counsel under PCRA)
- Commonwealth v. Pander, 100 A.3d 626 (Pa. Super. 2014) (failure to investigate/call witness standards and required showing of prejudice)
- Commonwealth v. Michaud, 70 A.3d 862 (Pa. Super. 2013) (trial counsel not ineffective absent showing that uncalled witness’s testimony would have aided defense)
- Commonwealth v. Matias, 63 A.3d 807 (Pa. Super. 2013) (counsel ineffective where witness not interviewed and would have directly contradicted victim)
- Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009) (PCRA courts must make credibility determinations at hearings; credibility assessment can resolve prejudice issue)
- Commonwealth v. Oliver, 128 A.3d 1275 (Pa. Super. 2015) (appellate court may affirm PCRA on any supported ground)
- Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012) (same)