(Claims 1, 2, & 4)/2

Sandusky contends that was the Commonwealth's Victim #2 and

that both the prosecution and Amendola were aware of that fact. Based on those alleged facts, he
claims that Amendola was ineffective for not objecting to Attorney McGettigan's statement that
Victim #2 was unknown and for not calling to testify or using his exculpating statements
either as substantive evidence or to impeach McQueary. He further refers to a post-trial
statement allegedly made in which he recanted subsequent inculpatory statements,
proposing that it constituted after-discovered evidence entitling him to a new trial or, in the
alternative, that Amendola was ineffective for failing to learn about the recantation. The material
facts he presupposes, however, are not borne out by the record.
When he first read the grand jury presentment, Sandusky named as the person
eventually identified as Victim #2. (PCRA, 08/12/2016, p. 144). A few days later, echoed
the defendant's belief and told Amendola that nothing inappropriate had occurred in the shower
on the date alleged. (Id. at 144-45). He likewise exonerated Sandusky during an interview with
Corporal Joseph Leiter in September of 2011. (See PCRA Exh. 8). It was not long, however,
before the young man was telling a completely different story.
Within a week or two of their meeting, Amendola learned that had secured private
counsel and was claiming to have been sexually abused by Sandusky on multiple occasions. (Id.
145-46). The young man continued to self-identify as Victim #2 but, instead of contradicting
McQueary, proffered that the shower incident was only one of many sexual encounters between
him and the defendant. (Id., id., 08/22/2016, pp. 25-30, PCRA Exhs. 4-6).
The problem for Sandusky is that the prosecution team never believed that was
Victim #2. Not only was his drawing of the relevant locker room completely inaccurate, but his
rendition of the shower incident, the details of which he divulged only after the Curley/Schultz
preliminary hearing at which McQueary had testified, seemed to parrot the former assistant
coach's testimony rather than reflect an independent recollection of the same event. (PCRA,
08/23/2016, pp. 56-58 (McGettigan); id. at 30-35 (Fina); id., 08/22/2016, pp. 97-102 (Sassano)).
When McGettigan indicated in his closing remarks that Victim #2 was unknown, therefore, he
was not engaging in prosecutorial misconduct; in his mind, the boy's identity was indeed a

12
As proffered in his post-hearing Brief and Proposed Findings, the defendant is no longer pursuing Claim 3,
wherein he alleged that Amendola was ineffective for not telling him that he and the prosecutor had agreed that
neither side would call Myers as a witness.

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 mystery. Consequently, Amendola did not have a foundation for objecting when opposing
counsel said that Victim #2 was unknown. He thus was not ineffective for failing to do so.
Nor was Amendola ineffective for failing to call-as a witness or attempt to use his
prior favorable statement(s) to impeach McQueary.
Even assuming that counsel could have effectively controlled the young man so as to
elicit only his prior exculpatory statements on direct, the Commonwealth would have brought the
rest out on cross, and Amendola thought it best to avoid that risk. (Id., 03/24/2017, pp. 120). In
his own words, "(I]t would have, I think, cast more concern and confusion on the whole issue
than it did with him not even being in court." (Id.). That was a legitimate fear, and Amendola
wanted to avoid the potentially prejudicial effect of introducing yet another set of allegations the
jury may have believed to be true and ultimately used against Sandusky in its deliberations. Not
calling-therefore, was a reasonable strategy.
The Court cannot say whether it was also strategic for Amendola not to use
statements to impeach McQuery or as substantive evidence, because even though Travaglia I
specifies that the petitioner bears the burden of proving that counsel's action or omission was not
reasonably strategic, Sandusky did not pursue that line of questioning with Amendola. It does
not matter, though, because even had Amendola considered that option, the Rules of Evidence
Ii
would not have permitted it.
I
I

I
sandusky proposes tha avorable statements could have been introduced
pursuant to Pa.R.Evid. 804(b)(3) as statements against his pecuniary interests. That Rule only
applies when the declarant is unavailable, however, and there is no evidence indicating that
-was unavailable at the time of trial. On the contrary, the record reflects that his attorney
made him available as early as February of 2012, (id., 08/22/2016, pp. 38-43), and that he in fact
I
l
!
participated in at least tlnee interviews between then and April of that year. (Id., Exhs. 4-6). The
only references-Agent Sassano and Attorneys McGettigan and Fina made to-being
iI
unavailable, in fact, related to their inability to locate him in 2011. (See id. at 109-1 O; id., I
08/23/2016, pp. 32-33, 56-58). Consequently, Sandusky's suggestion that Amendola did not I

even understand the Rules of Evidence is itself in error and his allegation that the attorney was
ineffective for not properly utilizing them to introduc exculpatory statements meritless.
Finally, although Sandusky alleged thareaffirmed to Ken Cummings
("Cummings") that his initial exculpatory story was true, the evidence did not support the claim.

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