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    Kody Leibowitz
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    Former Penn State assistant football coach Jerry Sandusky has lost another bid to get his child sex abuse conviction overturned. Judge John Foradora denied Sandusky's latest request for a new trial on Sandusky's Post Conviction Relief Act appeal Wednesday.

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    Former Penn State assistant football coach Jerry Sandusky has lost another bid to get his child sex abuse conviction overturned. Judge John Foradora denied Sandusky's latest request for a new trial on Sandusky's Post Conviction Relief Act appeal Wednesday.

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    © All Rights Reserved
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    2K views60 pages

    SANDUSKY Opinion and Order Regarding PCRA Petition 10.18.17

    Uploaded by

    Kody Leibowitz
    Former Penn State assistant football coach Jerry Sandusky has lost another bid to get his child sex abuse conviction overturned. Judge John Foradora denied Sandusky's latest request for a new trial on Sandusky's Post Conviction Relief Act appeal Wednesday.

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    IN THE COURT OF COMMON PLEAS OF ‘CENTRE COUNTY, PENNSYLVANIA ‘CRIMINAL DIVISION ‘COMMONWEALTH OF PENNSYLVANIA, cP-t4cR2421-2011 CPALCR 2422-2011, (GERALD A. SANDUSKY, Defendant, ooze 81 L00LIN2 OPINION ON DEFENDANT'S PCRA PETITION (On June 22, 2012, jury found the defendant, Gerald A, Sandusky (“Sandusky”), guilty ‘of sexually violating ten juvenile male victims over a perio of several years. The trial judge subsequently imposed an agg-egate sentence of 30 60 years in prison and the defendant filed an ‘unsuccessful appeal to the Superior Court. His petition for allowance of appeal was then denied by the Pennsylvania Supreme Court, That concluded hs direct appeal! indusky returned toe tral cour to collaterally attack his conviction in a timely Post Convition Relief Act (“PCRA") petition filed April2,2015.2 An Amended Petition and Second Amended Petition followed. The latter, which incomporated the allegations asserted in the first ‘wo petitions, increased the mimber of issues alleged fom fifteen to thirty-four, most of which challenge the effectiveness of tial and appellate counsels" advocacy. PCRA counsel ater ‘advised the Court in thelr pos-hearing Beef and Proposed Findings that her client was no Jonger pursuing three of his aims, Ava hearing spanning sx sepatte dates between August 12, 2016 and May 11, 2017, both of Sandusky’s tril attomeys testified, as did the defendant himself and numerous other witnesses, Documentary evience and a variety of briefs completed the PCRA record Legal Standard capable fet that a poet til PCRA patition comes ftom a defundant whom a finder of fact previously deteumined was guilty beyond a reasonable doubt. At an eatlier point in "Once our Supreme Court denied is peton on Api, 2014, Sandusky had 90 day task the United States Suprome Cour to reve is cse at sete ot 0 4 90. Accordingly, the jadment Of entncs bese ial on hy 12014. Te gee st forth th gener ele in 42 Pa. CSA. § 9545, tht deli st file anya ll FCRA lain ey hve within one yen of the dt is dgmene of sexence sane al time, therefore, the Commonwealth satisfied the mos stringent burden of proof our law demands, In this cae it was a jury weighing the evidence and delivering the verdict, which scans the Commonwealth convinced twelve unrelated individuals with no apparent biases aginst the defendant that he sexually assaulted the ten boys on whose behalf he was charged ‘Those twelve people watched and stoned to a host of witnesses, including most of the vietms. Unlike the curent cast of players, who have only their transceibed words to consider, the jury Ina the chance to evaluate young man's testimony and demeanor to assess not only the individual storie, but whether the way each vietim told his story meshed with the stony itself “That included the opportunity to directly observe how each one responded to cross-examination, ‘With that advantage, they retumed on June 22,2012 to effectively say, “Although these young men may not have pesfect real, we watched them testify and believe beyond a reasonable doubt ‘hat they were sharing real memories of things the defendant actually did to them." ‘After iniilly challenging the weight and sufficiency ofthe evidence in is post-til motions, Sandusky did not pursue either argument before the trial court or on direct appeal, ‘whieh is where a defendant ray direetly contest the leptimaey end/o legality of what occurred in the trial court from the time he was arrested through the date he was sentenced. He may also challenge in his dteet appeal any ofthe til court's adverse rlings on the premise that it or they ‘ay have impermissibly conzibated w the jury's vert ur is yentence. Tn essence, then, an appeal isa request that atribanal with greater authority review the aetions of atsibunal with lesoer authority to determine whether the law was properly applied, With few exceptions though, a defendant may not use the PCRA process to directly challenge the trial eourt’s actions orto contest a ruling made by an appellate cout, over which ‘he tral court has no authority, Structurally, then, the ing of & PCRA petition does not constitate an appeal, Its, nsead, an avenue by which a convicted defendant may return othe trial court postappeal to collaterally attack his conviction or sentence, In that regard, the Post Convietion Relief Act, 42 Pa. CS.A. §§ 9S41 ef seg., authorizes him to allege that his conviction or sentence resulted from one of more of the following: 1.) A violation of the ‘Pennsylvania or United States Constitution tht, under the circumstances, so undermined the ‘rath-determining process tit his conviction isnot reliable; 2.) ineffective assistance of counsel that similriy undermined the truth-determining proces; 3.) plea of guilty unlawfully induced; 4) obstrction by governmest officals ofthe defendant’ ight to appeal; .) the existence of exculpatory evidence that vas not availabe atthe time of tral but would have produced an quit had it been available and presented to the finder of fact; 6) the imposition ofa sentence that exceeded the Iwi maximum of 7.) prosecution before a tribunal that did not have jjuriadition, 2, one that lacked legal authority fo preside over the matter at issue. § 9543. ‘Whatever the nature of his clsim, though, the defendant is only ented to relie fhe can plead and prove his allegtions by a preponderance of the evidence. fd. The Commonwealth, having previously proven the defendant's guilty beyond a reasonable doubt, generally does not have to prove anything tthe PCRA stage, ‘Among the seven categories into which a claim: may fit, ineffective assistance of counsel {is the most commonly uilzed and may encompass a wide variety of actions counsel did or did not take throughout his or her representation ofthe defendant. To prevail on any given claim of, ineffective assistance of coursel, «defendant must prove three things frst, that the underlying ‘sue has arguable merit second, that counsel did not actor fio actin furtherance of a reasonable strategy; end third that he was prejudiced by counsel’ actions. Commonwealth v. Fletcher, 986 A.24 759, 772 Pa. 2008) To satisfy tis lst requirement, the defendant must demonstrate a reasonable probability that, but for counsels errr, the outcome ofthe proceeding ‘would have been diferent. Jé. That means, says Commonwealth». King, 57 A:34 608 (Pa. 2012) thatthe nature or Severity f the error was such that it undermined en sctul outcome, Id at 613. Where counsels ations or omissions were informed by his of her deen the stratgy, moreover a defendint cansot sustain his claim unless be can prove that an altemate course of ation offered a substantially preter chance of suecess than the one chosen. Mletcher, supra.’ Commonwealth v Cer, 863 A.24 536, 543 (Pa. 2004). ‘The bulk of Sandusky's claims pertain directly to counsels’ advocacy decisions, {including steps they taok or filed to take in preparation for trial, From the grand jury process through the judge's final charge, he contends that counsel's erors were so numerous and egregious as to warrant a new tal Numerosity, however, does not create a presumption of| ‘meri; each claim mast stand or fil independently. Accordingly, a claim otherwise meritless 5 Ce aw docs ot define te pas argsbl mest” Asa weeking defi, however, one ays thi nite ‘as uguble eri when there Ear et ost that ou Wil agree wth he defeat’ potion fhe rinse ft to aeton, Where a dtd alle pov he fe pcesary to ssn hi lim orth iw thes ot afd a remedy even ihe proves th fs he lege, hough hls iso iS oe without mer. "Rough Sends had two ral ators, Altay Amendola ws end counsel ang in elaton o Kae Romine fil dessoo mae Pore of efeenc, bee the Coa wl speak ofl cousel— ‘Anlsinthe singular exept where Mr Romngers sion ae independently leva oes not attain merit simply tecause itis surounded by myriad other claims. Commonwealth Wiliams, 896 A.28 523, $47.48 (Pa. 2006). Similarly, i given claim possesses merit but ails for want of prejudice, the cumulative effect of such non-prejudicialerors will not afford a defendant relief “unless be proves how the particular cumulation requires a different analysis” Commonwealth v. Hutehinso2, 25 A.34277, 318 (Pa, 2011). Guided by these prineples, the Court will now address each 3 Sandusky’ claims. acts and Discussion Pre-Trial Claims Investigating Grand Jury—Jurisdiction (Claim 5): ‘Challenging te path cis prosecution took from its inception, Sandusky contends thatthe Commonwealth violated his due proces rights by submitting the allegations to an investigative grand jury onthe grounds thit there had been a “founded report” of sexual abuse without following the procedures established in the Child Protective Services Law ("CPSL"), 23 Pa CSA. §§ 6301 er seq, He ako ergues thatthe grand jury had no jurisdiction over the matter sine it did not pertain to organized exime or public corruption involving more than one county. [Attomey Joseph Amendola (“Amendola”), he adds, was inefTestive for filing to move to quash the presentment that issued pursuant to this defective process. ‘Because the underlying ‘A caseworker for Clinton County Children & Youths ¢*CYS” (Dershem") became aware of Aaron Fisher (“Fisher”) after his high school prineipal refered him forthe agency to investigate possible inappropriate contact between him andthe defendant. (Trial Transript (*TT"), 0612/2012, pp. 124-25). After interviewing the boy and learning that the alleged contact was sexu in nature, Dershem contacted the police, (Jd. at 128-30), That was entirely appropriate, as was the district attorney's decision to refer the matter tothe Office ofthe js without mest, this claim fusin its entirety. Jesslea Dershem Attomey General ‘Although Sandusky suggests otherwise, the CPSL- does not require that ll abuse allegations be investigated solely by the designated CYS agency and Department of Public ‘Welfare (*DPW"). On the contrary, the version of § 6365 in effect when Dershem first, encountered Fisher specifically directed ench local district storey and county CYS to develop protocols to investigate suspected criminal child abuse. ld. Even in November 2008, then, the legislature plainly envisioned thet law enforcement, not just child protective services agencies, id abuse, and in light of Dershem’s testimony ‘would play a soe in investigating allegations of | | | thatthe lav required her to contact the police since Fisher was indicating that he had been sexually abused, the Court ean reesonably assume that Clinton County officials had heeded the statue and implemented a oint investigative protocol Since that ime, ourlawmakers have removed counties’ discretion to vest CYS andthe DPW with sole authority te conduct those investigations, clarifying that aw enforcement must be notified and assume exclusive or concurrent control in such cases, See §§ 6934 6334.1. ‘They thave thus made mandatory what vas once only permissible. Inerdepartmental cooperation vas indeed authorized in 2008 and 2009, though; the CPS. did not foreclose that possibility or demand that all allegation of child abuse, regardless ofthe nature and severity, follow the specific route Sandusky says the Fisher investigation should have taken. Accordingly, juviadition was not denied the investigating grand jury based on the Commonvealth’s alleged failure to comply withthe CPSL, Amendola, therefore, was not ineffective for failing to seek ‘quashal ofthe presentment on that bass. [Nor is there any msi tothe defendant's contention thatthe investigating grand jury Jacked subject mater juristition, ‘The legislature has defined a multicounty investigating grand jury as “[a] Statewide or regional investigating gran jury convened by the Supreme Court upon the application of the Avtomey General and having jurist W inguie into onganized exime or public comuption oF both under circumstances wherein mare than one county is named inthe order convening sid investigating grand jury." 42 Pa, CS.A. § 4542. Section 4544 includes similarly restitive language and set forth the procedures for empaneling a multicounty investigating grand jury, ‘Once properly empancled, however, the grand jury's authority expands to encompass all Title 18 violations, As specified in§ 4548(a), “The investigating grand jury shall have the power to inquire into offenses against the eriminal lows of the Commonweath alleged to have been commited within the courty or counties in which itis summoned." Jd (emphasis added). The ‘next subsection confizms tat expansion, specifying that the grand jury as the power to issue a resentment not jst aguint those alleged to have engaged in organized erime or pubic comuption, but “with egatd to any person who appears to have committed... an offense aginst ‘the criminal lavs of the Commonwealth.” § 4548(). ‘To the extent the legislature may have caused confusion with respect to an investigating rand jury's jurisdiction, ou Supreme Court disambiguate the statute in Ine the Twenty Fourth Statewide Investigating Grand Jury, 907 A.24 505 (Pa, 2006). There the appeliant proffered the same argument Sandusky now makes—that organized crime or public comuption was prerequisite tothe convening ofan investigating grand jury dat S11, and the Court plainly rejected it Ml The defendantacknowledges its rejection but suggests that his claim is nonetheless viable because the Court only rejected it “ast is presently framed.” Xt 512. In ‘making this argument, though, he ignores tht the Court expressly agreed with the Attorney General on two significant ports: fis, that not every matter submitted to an investigating grand Jury must independently meet each ofthe criteria prerequisite to its empanelment; and sevond, ‘thatthe statutory requirement for empaneling an investigating grand jury are different than its statutory powers to inquire inlo other criminal offenses once empaneled, Ld ‘The same is truchere. Sandusky does not allege tha the investigating grand jury presiding over his case was improperly empaneled, only hat it lacked jurisdiction o also cnletsn the times the Attoraey General was alleging aginst him. In light of Jn re Twenty- Four Statewide Investigating Grand Jury, though, the allegation is without merit. Once again, therefore, counsel cannot be deemed ineffective for having file to raise this claim previously. Grand Jury Leaks (Claim 6): In addition to challenging Amendola’s failure to abject to the entre grand jury process, Sandusky’ presentment and dismiss the charges pertining to Victims 2 through 10 based on governmental ‘misconduct inthe form of leaking the presentment and other information as a means to build its leges that counsel was ineffective for fling to file a motion to quash the grand jury case aguinst him. [Because this question as one ofthe original eleven issues Judge Cleland designated for hearing, PCRA counsel questioned several witnesses about it and subsequently briefed the ratte. Judge Cleland didnot permit the defendant to call Sarah Ganim (°Ganim’, however, and ultimately dismissed the isue with the promise of a forthcoming opinion. Onder, 10/17/2016, 43. He then recused himself before having the opportunity to explain his decision, and this jurist declined to overule his dismissal, though iid allow the partie to submit ‘uditional documentation in support of or opposition tothe claim. Taken together, that evidence reveals that there is no merit othe underlying claim of prosecutorial misconduct, ‘Atoreys JonelleEshibach (“Eshbach”) and Frank Fina (“Fina”) served asthe Commenvealth's primary representatives throughout the grand jury proceedings, and both were questioned atthe PCRA hearing. Eshbach sid she was aware of the Ganim article and discussed how she and Fina had set an internal trap to determine whether the journalists information had ‘come from someone in the Attorney General's Office. (PCRA Transcript (*PCRA”), 08/23/2016, pp. 8-13), She knew she was not Ganim’s source, (dat 17). Fina knew the same thing about himself and was certain the eee had not come ftom the agents who delivered the presentment to the distict judge's office, (4, at 43-44). Like Eshbach, though, he could not idemify the source (1d. 2143), He knew the leac was problem, though. He knew itin2016, and he knew iin 2011, when he asked Judge Feudale, the supervising judge over the grand jury, to investigate the matter (See ld. a 39-42), Because he suspected that the grand jury presentment may have been purposely leaked by the district justice or a member of his staff, moreover, the asistant prosecutor reported his concerns tothe Judicial Misconduct Board for further investigation. (a 142-46), twas Agents Feathers and Sessano, now a director with the Attomey General's Office, ‘who both delivered the presentment to the district justice's office and investigated how it had gotten prematurely published, (Jd. at 43-45). Sandusky did not eal Feathers to testify, though, and only asked Sessano whether he was aware ofthe Ganim article; he did further inquire about ‘what information the former agent had about the leaks. (See i, 08/22/2016, pp. 90-83). Counsel forthe Attomey Generals Office di, though, and Sassano sad he ad no knowledge of anybody leaking information, (Ud. at 114-16) Corporals Scott Resiman ("Rossman") and Joseph Leiter (“Leiter”) (retired) also answered questions abou te Teak, including whether they knew how Ganim had gained access to non-public information prtsning tothe 2008-2008 investigation regarding Aaron Fisher and «1998 investigation involving @ young man by the name of Zachary Konstas (*Konstas"), [Neither was able to nme Ganima's source, (ee i. at 76-77, 84-85), though Rossman suggested an emay of persons who would have had access to information about the Konstas matter. (Id at ‘7 Similarly, Eshbsch really named various individuals and entities who would have known, about the Fisher investigation, (4, 08/23/2016, p. 2425), as did Michael Gillum ("illum"), the psychologist who counseled with Pisher after his abuse. (Id, 08/22/2016, pp. 68-72). ‘The testimony, then, didnot suppor the idea thatthe prosecution leaked grand jury information for any reason let alone forthe purpose of generating more victims. [anything it supports the opposite confusion, because while someone might be skeptical about the validity of | | | FEshbach and Fina’ internal rap," its a fact of humen nature that one engaged in or bare of misconduct he doesnot wish have exposed des not ask an outside source to investigate it. AS the man in charge at that time, however, Fina yas actively seeking assistance fiom Judge FFeudale and the Judicial Misconduct Board to ascertain the source(s) ofthe problem, ‘Sandusky's post-beaing evidence was no more persuasive (On June 17, 2017, pursuant tots earlier onder and discussions held at sidebar, the Cour admitted into evidence the trnseibed testimony of Michael MeQuesty *MeQueary"), former sistant football couch at Peun State University whose testimony helped to secure Sandusky's conviction relative to Victim ¥2 and who later testified as a Commonvealth’s witness in the case ‘of Commonwealth v. Graham Spanier. “Mr. MeQueary’s testimony,” the defendant proffered, “was that heed been alerted tat the [Office of Attorney General] was going to leak the grand jury presentment” Brief and 2roposed Findings, 469. In support thereof, he quoted the following portion of the transcript: “I was on my way fo Boston for reemiting and I was in going Airport. And there was one of those litle trams, The [Attoraey Generals called and sald we're going to arrest folks and We ‘are going leak i out. Id (emphasis Sandusky's); (PCRA, 05/11/2017, Bxh. Hp. 24) “Those words, though, had nothing to do with grand jury leaks When he gave the abeve-quoted testimony, Molveary was responding to questions about ‘Sandusky’s arrest and nothing else—a fact that is apparent once the excerpts pat back into its original content. In ts totality, the relevant exchange reads like this Q. [Prosecutor] Obay. Did you come to lear that Jerry Sandusky was going to be arrested? ‘A. [MeQueary] Yes. (Q, And when Jerry was arrested, was that before a football game or near a foall game that you were coaching? "A, When he was atually ested? (Q, When all the news broke about his ares. A. Itwas an off weck, Teliove it was a Friday after the Illinois game in 2011 vas — we had a bye [sie] week the next week. Okay. ‘A. That's when [fist learned about itor heard about it 1 thnk, (Okay. And when you first heard about it, did — what did you do, if anything? "A. Tm not even sue I can tell you. Twas on my way fo Boston for ecriting and I was in going frem F terminal over to th B terminals over in Philadelphia ‘Anport. And there wes one of those litle trams, The [Attomey General] called ‘rom F terminal over [to] the B terminals over in Philadel and said we're going area folks and we are going to leak it out tet me back palit bit, ‘We heard rumors and I heard that ~ the week before that arests were imminent and that it was going be more than Jem Sandusky. And Iran over to Fran Ganter’s office, Iremember clearly. (Q. Who was Fran Ganter? ‘A. He was assist A[thleti) Director] for football roughly. I don'e know if ‘that’s his exact le but that's what it vas, ‘And Isai, you gota call Timmy's. Those guys ae in trouble, Q.Tim Carley? [A Yeah, And, you know, he kind of passed it off or shrugged me off. I'm not even sut they believed me, And that's all that happened with that So week later, I'm in that airport and I get a call and the media starts get’ shold [sie] of everything, and it's ll kind of dowmill from that. (Q. Did you see your face on TV? A, That Sunday morning coming back ftom Boston, back through the aizport, my face wos allover the TVs inthe atpor. (Ud. at 25-25), Not only did tre “Leak” MeQueary mentioned have noting todo withthe grand {juny infact, but the prosecutor made no mention of that tribunal during his ree examination, ‘and MeQueary did not bring it up, either. (See i 3-26). Nor did it come up in is eross- or r= rect examination (Se i. at 2635) That being the ease, MeQueary’s statement does nating to validate Sancusky’s allegation thatthe Attomey Generals Office lesked secret grand jury tntormation. Save forthe MeQuesry transcript, Judge Cleland was in possession ofthe same fctuat record, ad beeause it bore nv evidence ofthe sort of prosecutorial misconduct that would support quashing the presentment or dismissing any ofthe charges, he appropriately dismissed this PCRA claim ‘Asa corollary, the fet that Gaim, was exempt from testifying pursuant tothe Shield Law, 42 Pa, CS, 5942, meats that Judge Cleland didnot er in rating on the issue without fist requitng hero testify. Regirdlss of what a Superior Court judge may have indicated in 8 ‘coneutrence or was alluded 1 by our high cout ina footnote, a majority of our Supreme Court slated plainly and unequivocally in Castellani w. Scranton Times, LP., 956 A.24 937 (Pa, 2008), “(We reaffirm thatthe Shield Law prohibits the compelled dislosure of «confidential source's ‘denity, or any information which could expose the source's identity.” Id at 954. Because Castelfon is binding on every Pennsylvania court below it, no trial court judge, whether Judge Cleland or this urs, has the authority to aseribe precedential status to a footnote when doing so would contradict the Cour’ clear holding ‘This Court would note moreover, that neither the Superior Court concurrence nor the ‘Supreme Court's footnote actually purports to allow a criminal defendant to overcome the Shield Law in order to discover the surce of a grand jury leak he believes disadvantaged him. Rather, the scenario addressed in footnote 14, which parallels the scenario envisioned by thensJudge Todd, now Justice Todd in her coneurrenee is one in which the Commonwealth was seeking (> ‘compel a source's identity fr the purpose of pursuing a criminal investigation or prosecution of ‘the source ofthe leak. See in. 16. facilitating cris Accordingly, even assigning precedential value othe feotnote would not salvage Sandusky's Sandusky, of course, is not the Commonwealth and nal investigation or prosecution of Ganim’s source is not his mortiess claim. Amendola was core, therefore, when he indicated that e hed no bass for filing & motion to quash or similar motion, (PCRA, 08/122016,p. 169). Aware of the possibility of governmental misconduct, he requested discovery matesils related to whether the leaks had come from any government enployee and was advised that none existed, (Id at 169-70). He did not have any evidence tothe conta, (ld), and, asthe PCRA record indicates, would not have found any. Ashe seid therefore, “It would have been a blind motion without any substance 10 it” (ld. at 170). He thas wasnt ineffective for fling to filet, not only beeause he employed a reasonable strategy based on xis knowledge of the law, but because “[eJounsel isnot required 10 perform a useless actor file ameritless motion.” Commonwealth v. Thomas, 539 A.2d 829, 831 (Pa. Super. 1988). Even withthe addition of MeQuery's testimony, therefore, the reeord indicates quite plainly that Julge Cleland didnot erin dismissing Claim 6.° +The deta indets tht Foy Can was prepared to ome! Gani esti at rvel er sour if ‘PCR counsel oul estaba ht uta was an appopeite remedy fru und jury lea. ren assuming that he Ind decnined thers, hoa eles om te echt Canin wou nat ave sid When Ameo ‘ate al er a rial sinply tater the newspaper ace se roe ad an esa ake ea ioe of he ‘itm’ ota se tooth prion at she would go ol ater tha ik being fed to anowe quests ‘Souther see (Sse 1 /B701, p25, 0820012, p. 309-20. Tht Beng the ase, Santas as torpoutie by th ality to sl Gani as a PCRA wines even age Cllr was isn asthe lablty fqushl a remedy nthe ever of prosectoal misondact. Chim Taste ed of Sadat’ pron jared cs Tn hs Brie and Proposed Flings, bower, be avd the Court ht be woul abe pursuing 10 | | | | | | | Bob Costas Interview (Claim 26): Sandusky partiipatedin a telephone interview with Bob Costas (“Costas”) on November 14,2011, and atone point theinterviewer queried, “Are you sexually attracted to young boys! Sandusky ultimately suid no, su only after he paused and repeated the question. ‘The Commonvieath capitalized om that exchange, replaying it forthe jury and arguing tet it was persuasive evidence of guilt. Because ofthat, the defendant now alleges that Amendola was inffeetive for permitting the ntrview without adequately advising or preparing him for it. The defendant is wrong, Setting aside the question of whether evidence indicates that it lacks merit isis a logitimate PCRA issue, the credible As much as he would like to pretend otherwise, Sandusky didnot go into the interview as 1 legal novice obsequiously fllowing his atomey's directives with no idea about what Costs right ask or how he should respond. On the contrary, the defendant wanted to publish his storys he wanted Costas's program tm be the first medium through which it was delivered and he ws not a man who subjugated hisown will tothe preferences and advice of counsel. (CRA, 03/24/2017, pp. 17-18, 29-30, 152-33) [Not comfortable withthe idea of being his ovm spokesperson, the defendant intially lected Amendola to speak or his behalf, and that was the plan until shortly before the interview commenced, (lM. st 26, 34-35), During the hour leading upto the interview, however, atorney tnd client diseussed the publis's overwhelmingly negative perception of Sandusky andthe consequent value ofhim personally proclaiming his innocence tothe nation, andthe defendant ukimately agreed tobe the interviewee. (Id, at 34-35). Because Costas would not divelge what questions he might ask, Amendola could not foed his client any specifi answers. Having spent more than two years defending Sandusky against allegations of sexual abuse, however, he was confident about his clients ability to assert his innocence (Id 35-37), Thus, “{W]hot you're going to have todo is explain to Bob Costas in ‘brie phone conversation that you're innocent, we expect to prove your innovence at tril” (id at 35), seemed to Amendola ty be clear and sufficient instruction “Assert your innocence” was not the only advice Amendola provided, though; he also told his client to be adamant bout it and to stress that e had explanations for and defenses agains all the allegations, (Id a 42), Since long before the date ofthe Costa interview, n ‘moreover, Amendola had counseled Sandusky on many occasions that anything he said to anyone other than his wife coald be used against him, (i at 38-39)—an admonition he had reiterated just afew days enti. (, 08/12/2016, p, 116)" Sandusky thus was not ignorant about what he should say oF how he should say it, and his atorney certainly could not anticipate thatthe same man who had repeatedly affirmed, “Tam nota child molester. Uhave never molested children. Tove children, I've devoted half of my adulthood to helping kids," (i, (032472017, p. 36), would freeze when asked whether he was sexually attracted to young boys. Because he adequately prepared the defendant for the Costas interview, Amendola’ ‘motivation for substituting inerviewees is immaterial and not an independent bass for relief ‘The Court would ad nonetheless, that the attomey secured the last-minute change in Turtherance ofa deliberate and strategic campaign to eury favor with the media and sway public pinion in his clients favor, rot to appease NBC's executives. He thought fom the star that ‘Sandusky should give the interview but, in light of hs client's uncertainty, agreed to be the designated spokesperson, (It 18). When Kim Kaplan (“Kaplan”) later suggested that Amendola produce a member of the Sandusky family, however, he saw its an opportunity tore proposition his client in that rogard—to get Sandusky himselfin font ofthe dience to say he ‘was innocent, (ld at 21-27). ‘Yes the plan to give Costas the first television interview had been thwarted by CNN, (id 121-25), and yes Kaplan war disappointed about the preemption (Ld 25). Neither one had any besring on Amendolas dcision to take another shot at convincing his client to do the interview, though. Rather, twas informed by te realization thet public opinion of Sandusky ‘was more negative and pervasive than he thought, as wel as his belief that Sandusky would be better able to temper that animus. As counsel explained, ‘Wel, Thad reservations because of what I was hearing. And what Iwas heaving from the media on a national level in New Yorke was tat Jery's guilty as heck. And said to myself, and I thought about Jery and hs ability to express his Jnnoeenee, which he had done to me many times, that this was @ golden ‘opportunity for him to tell the national media, to el the public that I'm not guilty, to hearit from him rater than his spin doctor, which was what most people think sn attorney i. "Thea the desion war more etansive op March 24,2017, Amendola also tel sbout tbe Costas interview om Angst 2, 2016. He was equally enssnt and credible bot ies about what heb vised Sans ttrehaa (dd, 081122016, p, 110). It hus does not matter how Kaplan interpreted the ating ofthe CNN interview or what Amendola may have said to placate her* Kaplan's proposal ft perfectly into the atomey's stategy and provided him witha new argument for persuading Sandusky to give the Costas interview. Waiving the Preliminary Hearing (Claim 11): ‘ad Anvendola not advised him to waive the preliminary hearing says Sandusky, the torney could have used it as en opportunity to obtain discovery and cross-examine the ‘witnesses, Had that occurred, he posts, counsel may have unearthed additional inconsistencies ‘vith wiich to impeach the vietims at tal and leaned that their memories had been restored ‘through therapy and ths subjet to challenge via motions to disqualify the witnesses and/or ‘expert testimony on memory?” This claim does not survive sertiny ‘As his preliminary heaing date approached, Sandsky was out on $250,000.00 balan mount the family struggled fo post. (Ue at 135) Te didnot want tobe in ail, and his etfomey did not want him thete either, (Id at 121). Well avare ofthe restrictions inherent to ‘ncareration n fact, Amendola thought it critical that his clint remain at home, where he ‘would be better able to help yrepare ie defense (Lat 121, 127, 133-34, 140). Knowing that the Commonsialth hd whatit needed fo file new charges and ask fora bal increase, therefore, counsel deemed it prudent to see whether he could prevent the defendant's re-incarceration, 4 120, 126), He Bogan by contacting Attorney MeGettgan to inquire whether he would be ‘ling to forego requesting editional bail on any new charges in exchange for Sandusky -vaiving his preliminary heating, (ld at 120-21), Amendola knew, after all that he could not use that proceeding to attack the witnesses’ redibiltyor explore their motives, but that it would provide the Commonwealth with yet another opportunity to publicize its side ofthe story, fading “all the ervesome ceils of the accusers.” (Id at 122, 140), *To eli, he Cou finds Amends testimony to be completly eee on he Cosa mater but woul ad that Kap proposed testimony vou a chage thc outcome even weet Cour o vw asa rele ond [curt enon of at she mad ave ested. The deeding question i wheter Amendola sdesatly ropured Say forthe ivi, not what Kaplan hough of aout the CNN debacle a how the atorney kl ety 5 Te defendant ads als Bland Propose Figs hat Arendol cold hve gon te charges eating 0 ‘Vein #5 ome the prc hing sine they were supp sll by easy. Tis eoneton at ‘ro remotely suse inthe Pein, hover, sd or dd PCRA counsel nvane it while questing ‘Amel The Cort thas wil pt aes it le except sy that the probaly sgt of Amedol ving {aten the chmgss rane dosed giant Jodge Cll, ae consieing the proposed "easy ea ‘Shame, ejected couse’ matin osm he rele elms (See Tensrpt (real Motions, 083072012); rae, 082012, B ‘Within a day or two of speaking with MeGetigan, who was willing to consent tothe terms ofthe proposal, Amenola discussed the matter with his client. (id at 122-23), He ‘explained the pros and cons of both options, ineluding thst waiver would mean losing the right (© ‘question the scousers, (id. at 128), and advised the defendant to waive the hearing. (Ud t 122). ‘As of December 12, 2011—the day before the hetring—Sandusky was in agreement with his sttomey, (id st 127), and did not change his mind. (dat 128). On the contrary, be ealled his attomey fr the post-waiver press conference to express his delight over side geting out.” (ld. at 174, In advising Sandusky to waive his preliminary heasng, then, Amendola hed a well- defined gost: to keep Sandusky out of ail both fr his own comfort and to fciitate the nally sefing] our preparation ofhis defense. He st that goal withthe apparent purpose of advancing the ‘defendant's best interes ‘tas not out of ignorance that Amendola advised the defendant to vnve the heating, cither, He knew the witness’ credibility would bea crucial concer at tal and that he was, forfeiting the opportunity to observe and cross-examine them ahead of time, ([d). He also knew ‘hat therstatements would be divulged through the agreed-upon expedited discovery, however, and didnot anticipate that ter preliminary bearing testimony would differ materially from what ‘they had steady disclosed, (lt 128-28, 174). He did antieipate thatthe Commonwealth ‘would make a suecesfil bid fr a bail increase ift fled additional charges, however—an {increase permitted by Rule $23 and which experience told him was «99.9% probability. (a 135-38), Inis estimation, therefore, the potential benefits of demanding a preliminary hearing ‘wore outweighed by the guaranteed benefits of waiving it (dat 129-34), That was an entirely reasonable calculation tha rexptted an entirely reasonable response “Theteis, moreover, o apparent mesit tothe proposition that Amendola would have been ‘ster prepared to cross-examine the Commonwealth's witneses trl had he isisted ona ‘eliminay hearing.” Asad predicted, the discovery process gave Amendola access othe witnesses prior statements, As is evident fom the tial rascrips, moreover, he was thoroughly familiar with that discovery by the time til commenced and was nat eticent o question the witnesses — ' orth esos detailed in the Cou susan of the defendant's repressed memaryallesutons, thre ao no rma thease memes” prion ofthis i. “ particuay the vetims—about naerative inconsistencies, behavioral inconsistencies, and any ‘nancial motives they may have had for accusing Sandusky. Whether a preliminary hearing ‘would have afforded him adliiona impeachment evidence is wholly speculative, as is the notion that ene or two mare inconsistencies, if any there had been, would have convinced the jury to Aisbtiove the witnesses tesimony. ‘Amendola’s ability to asses the witnesses’ credibility and observe their demeanor likewise would have had no bearing on the tral. Sandusky has denied these allegations from the beginning and, as fr asthe record reflets, never had eny intention of pleading guilty. Bis attomey's assessment of ther credibility thus would have been irelevant, In terms of demeanor, ‘moreover, one doesnot ask question like, “Isnt it true that you were nervous and fidgeting ‘when you said tht atthe preliminary hearing? or “Didn't you use a les deisive tone when you testfed about this previously?” Accordingly, an earlier opportunity to actually observe the ‘witnesses testifying would have been equally immaterial for purposes of trial. Sandusky, therefore, has not established merit on this issue." Failure to Conduct Pre-Trial Interviews (Claim 12): ‘The decision to waive Sandusky’s preliminary hearing did not then invoke a duty for ‘Amendola to interview the victims, a8 well as Michael MeQueary, Ronald Petrosky (Petrosky), and James Calhous (“Calhoun”), and nor was it essential that be do oo. The cases Sandusky sites in support of his claim include Commonwealth . Jones, 437 ‘A.24 985 (Pa. 1981), and Commonwealth v Stewart, 84 A.24701 (Pa, Super. 2013). Both involved instances of trial counse! failing to interview known potential defense witnesses, ‘hough, not Commonwealth witnesses whose statements had already been revealed through Aiscovery. In Commomsveath». Mable, 359 A.2d 369 (Pa, 1976), moreover, defense counsel elected not to interview eyewitnesses identified in a police report even though the report dd not indicate what they purported to have observed-—a feilure compounded by the fat that he also failed to obtain copies ofhisclient’s hospital records even ater his client suggested thet they ‘would support his claim of elfdefense, 1d at 372-74, Finally, the defense attorney in In hi"Respons to eter by kg Cleland" PCRA coun asked te Couto degard udge Clan eter sdesting Sty roped Sings of with rept tthe Fregoing i and that what i. wold te, moreover, tha it dl ot ori any portion ofthe judge's eas pilon ws esearched the mate. Ass ‘pina eit, Judge leans wen he waver conference wa liar elvan seston othe ise. ‘The Cau sole its and provosed Findings rr th pti, nd apart lm eae adhe tear I ha teen developed pie ene defen ithe Cort didnt ey on any ter sources ors say te se 1s Commomveatth v Perry, 644 A.24 705 (Pa, 1994), made no efforts to ascertain the identity of a potential witness suggested bythe Commonwealth's only eyewitness orto independently locate other potential witnesses on hs elients behalf. st 707. Unaware until the eve of tral that he ‘was trying a death penalty cas, moreover, counsel had done nothing to prepare forthe penalty ‘rearing, inetuding interview bis own cient, Zdat 708, Amendola's decision not to independently interview the Commonwealth's witnesses in this case is hardly comparable. ‘With the exception of Calhoun, whose statements came in through Petrosky, each ofthe persons Sandusky faults Amendola fr nt interviewing was 8 Commonwealth witness, and 35 cour Supreme Court reiterated in Commonwealth». Smith, 17 A.34 875 (Pa. 2011), tial counsel is not obligated to interview every Commonwealth witness prio to til and will not be deemed ineective for filing to do soif the record discloses that his decision was reasonable, [at 889. ‘As the Smith decision indicates, in fact, the decison not to interview a witness will not invalidate sn overall reasonable trial strtegy just because the proposed interview would have revealed wseful, potentially exculpatory information, See id 888-89, “A claim of ineffetiveness such as this cannot succeed solely through comparing, in hindsight, the trial strategy employed with alternatives not pursued it sid. [at 889, So it is here “Had Amendola interviewed the proposed witnesses, Sandusky argues, he would have liscovered that some of the v.tims’ memories were reteshed through repressed memory ‘therapy and that Calkoun denied in 82011 police interview that Sandusky was the man he saw performing orl sex on a boyin 2000, By way of response, the Court would incorporate its analyses of Claims 15-17 ("Repressed Memory/Brady Allegations, pp, 38-41) and, 19-23 (Calhoun/Petrosky Issues,” pp. 30-36), it being evident ftom those discussions that interviewing the vietms would not have disclosed the profieeed information and that Calhoun, even assuming hae would have repeated his denial, would not have divulged anything Amendola did not already know. “The defendant also contends that interviews would have revealed that Petrosky changed the physical location of the rime and would have allowed Amendola to assess for himself ‘whether Calhoun was infact neompetent to testify. The latter suggestion is patently absurd Amendola did not merely aosept the Commonwealth's representation regarding Calhoun’s ‘mental state; he saw a eter fom the man’s doctor saying that he was suffering from dementia, and was o incompetent that he could not even remember his own name. (PCRA, 03/24/2017, p. 68). A tained legal professional, Amendola was certainly not in a position to determine ‘otherwise, As for Petrosky, counsel had reviewed his grand jury testimony, which disclosed the ‘inconsistency, and read the te evant portion into the record forthe jury to hea. (See TT, (06/13/2012, pp. 241-42), Justa he knew from the discovery alone that Calhoun had denied Sendusky’s involvement inthe shower ineident, therefore, Amendola knew from the discovery alone that Petrosky had said “assistant coaches" locker om tothe grand jury and “staf locker ‘oom tothe tial jury. Accondingly, each of the alleged bases for Claim 12 is demonstrebly Without merit. (Ona more global evel, Amendola's decision nt to interview the witnesses did not keep him from skillfully exeeutinghis well-planned wil strategy. He wanted to establish thatthe victims were Iyingthat their stories were the products of coaching or motivated by greed, (PCRA, 03/2472017, p. 135-37) He thus introduced the jurors othe recorded police interview ‘with Brett Houtz, questioned ‘he relevant police witnesses about their “suggestive” interviewing, practices, and extensively cross-examined the victims to revel narative evolutions and inconsistencies, He further delved into many ofthe vitims’ decisions to hire civil attorneys, ‘questioning whether money was te eal motivating factor for them, and utilized his opening and. losing statements to eraphasize those issues, ‘Though ultimately unsuccessful, Amendola’s strategy was certainly a reasonable one informed and fueled primarily by the discovery, The ‘emote possibility that interviews would have unearthed additional impeachment material does ‘ot change that, Collateral Appeat (Claim 13): ‘On June 5, 2012, rial counsel fled & motion to withdraw as counsel, which they first discussed with Judge Clelandin Chambers. Mot. to Withdraw, 06/05/2012 (Under Sea!) (Transcript (Motion to Withdsavn), 06/05/2012). Due tothe volume of written discovery materials and the unavailability of witnesses, they felt ill-prepared to defend Sandusky. (Se i.) Judge Cleland denied the motion, however, and ordered them to proceed. Nether attomey sought to appeal that order a collateral othe matter at hand, end both continued to represent the defendant at jury selection and trough til ‘According to Sandusky, counsel were ineffective for not filing an appeal and for not refsng to contin their representation after thei motion was denied. Because Judge Cleland's 7 order was nat a collateral order and because counsel had not been granted leave to witha, ‘however, there no merit either prong ofthe argument. “A collateral order," according to Rule 313 ofthe Pennsylvania Rules of Appellate Procedure, “isan oder sepeable from and collateral to the main cause of action where the right involved is too important tbe denied review and the question presented is such that if review is postponed uni final judgment in the case, the claim willbe ireparably lst." Jd. Judge CCleland’s denia did not qualify. Sandusky defines the relevant issue—the “important right"—as whether a court ean ‘compel an atomey to continue representing a client when the attorney believes hei ethically ‘obligated to withdkaw, and indeed, Attorney Rominger dutflly referenced Rules 1.1 and 1.16 of the Rules of Professional Conduct inthe motion he drafted, Those Rules, though, do not provide ‘rounds for collateral appellate review, Tat much ie clear from fn re Estate of Wood, 818 A.24 ‘568 (Pa. Super. 2003). Ther the decedent’ former guardian ad litem appealed an onder iretng him fo testify and produce recor for purposes of a wil contest, fat $69-70, Invoking Rule of Appellate Procedure 313, he argued thatthe order violated the attomey-lient privilege, the work-product doctrine, and his duty of confidentiality. fat S71. Concluding that ‘the Rule was inapplicable, however, the Court denied his claim, It agreed tht the appellant's duty of confidentiality as extensive under Rule 1.6 but noted thatthe Rls of Posfesional ‘Conduct were not substantive law. [dat $73. Because the atomey could not be disciplined for following the cour’s order, egardless ofits Rule 1.6 implications, it sad, he could not use that Rall to avoid compliance. f Likewise, Amendola and Rominger could not invoke the Rules of Profesional Conduct ‘o circumvent Judge Cleland’s order, and their compliance could not have subjected them ta disciplinary setion, Accordingly, the atomeys had no claim to an “important right” that needed protectin. Fqually meritless i tbe suggestion that counsel were ineffective for not refusing to continue representing Sandusky despite Judge Cleland’ order, ‘Under Rule 120 ofthe Pennsylvania Rules of Criminal Procedure, an attorney may only withdraw his appearance in criminal case with eave ofthe presiding court, Rule 120(B)(1); Commonweath v. Llbrizi, 810 A.2d 692 (Pa, Super. 2002). Attorneys Amendola and Rominger were specifically denied lave to withdraw inthis ease and directed to continue their 18 representation, and had they smply refused to proceed, they would have been acing in direc contempt of court and violation oftheir ethical obligations to their cient, The Rules of Professional Conduct specify aftr al, that “[] lawyer must comply with applicable law reaqiring notice or permisior ofa tribunal wien terminating «representation, When ordered to do 50 by a tribunal, a lawyer shall continue representation notwithstanding good eause for terminating the representation”, Role 1.16(2). In its entirety, therefore, Clams 13 fils for vant of merit Reviewing Discovery and Amendola's Post-Trial Testimony (Claim 14): “Testifying at Sandusky’s postsentence motions hearing, Amendola talked about the plethora of discovery materas he was receiving in the months leading upto tral and hove it adversely affected his ability to adequately prepare for trial. (PostSentence Motions (“PSM”) “Transcript, 01/10/2013, pp. 420), During cross-examination, though, it beeame apparent that most of the last-minute mata he received were not pestinent, (Id, at 20-33). He continoed nonetheless to advance the compressed period of time hebbled the defense, (see iat 32-43), but admited that he had reviewed everything post-trial and that much of it was irelevant, (Id. st 32-33). He admited, moreover, that none of the desuments he reviewed would have altered his conduct a til. (Id at 39-43), The Superior Court subsequent utilized that admission as its basis fo tnding that Judge Cleand’s denial ofthe defendant's motions for continuance did not result in prejudice, Commonwealth v, Sandusky, 77 A.34 663, 672-73 (Pa. Super. 2013). Ina two-pronged clain for ineffective assistance of counsel, Sandusky alleges that ‘Amendola didnot actually review all the discovery. He points specifically to his son's grand. jury testimony and Calhoun’s 2011 police interview. Having not reviewed the former, he argues, ‘Amendola was unable to properly advise him about whether to testify, thereby rendering him ‘unable to make a knowing ard voluntary desision in that regard. Asserting that counsel was ‘unaware ofthe Calhoun intrviess, moreover, he contends that Amendola, had he known about it, would have used it to mllify the statements he had made to Petrosky eleven yeats eal. ‘Again incorporating here is analysis of Claims 19 and 21-23 (“CalhounfPetrosky Issues, pp. 30-36), the Cou finds tht the defendant's eleim is without met \Whether or not he hat perused the transetip, Amendola knew what Matt Sandusky (Matt) had told the grand jary, As he stated, “I knew the substance of [his testimony). 1 thatthe volume of discovery he was receiving in such a certainly knew that he had defended his father at that proceeding.” (PCRA, 03/24/2017, p. 84). “That was only o be expected, because until mid-tial, Mat was standing by his father. He was scleuled to be a defense witnes, (i), and he and Amendola had discussed his testimony. (See fd. See also TT, 06/20/2012, p. 70) ("Matt Sandusky... had told ws he would testify for hi dad and testy a to fac situations ironically involving Bret Swisher Houta... Matt Sandusky indieated to [the Commonwenlth that he was in fact present when certain things occurred with Mr. Houtz"), Those discussions, a the attorey"s answer plainly suggested, ineluded what Matt ‘Sandusky had relayed tothe grand jury. (See PORA, 03/24/2017, p84). ‘When Matt aligned timseif with the Commonwealth then, Amendola knew he could be ‘mpeached with his prand jury testimony, (i, 08/12/2016, pp. 157-58), and he and the dofendant discussed the pros and eonsof proceeding with their plan for Sandusky to testify. (lat 153-58) “That diseussion included Matt’simpeachabilty, and specifically his impeachabilty via reference tohis grand jury testimony, (Ul at 158). “More broadly, the resord reflects that Amendola had indeed reviewed with care the discovery materials most revant to hi trial stateg, neluding the victims’ many statements, and was well prepared fo cross-examine each witness the Commonwealth presented, Conversely, the materials ho was unable to scrutinize before til consisted mostly of irelevant documents not subject to discovery under Rule $73 ofthe Pensaylvania Rules of Criminal Procedure. (See PSM, 01/102013, pp. 20-43 (MeGettgan and Amendola discussing the categories and substance ofthe documents; Transetipt (Mot. for Cont), 05/29/2012, pp. 51-73 (Attomey Fina catalogued for Judge Cleland the nature ofthe discovery materials at ssc) and id at pp. 4-85 Gladge Cleland explaining thet he ordered much ofthe discovery Sandusky was requesting, not because the Rules requited it, but "because the allegations just happened so Tong, ‘ago... that felt it was only fir you get this information”) ‘Whether it consider: Matt Sandusy's jury tial testimony, Calhoun’s 2011 interview, the record as whole as it relates to discovery therefore, the Cour finds no merit tothe proposition that Amendola hile to adequately review it. Accordingly, the first part of Claim 14 des not provide grounds fr relief. The second prong fares no better. ‘Since Amendola didnot conduct a careful review ofthe discovery prior to the post- sentence motions heating, Sandusky says, he was also ineffective for testifying that nothing in 2 the discovery would have ated the course of tral. The record does not support this positon, ther With respect to the preposed Calhoun interview andthe transerit of Matt's grand jury testimony, the Court can sty inequivocally that Amendola did not misropeesent the truth, While ‘accepts that he didnot examine the discovery ale lin precisely the sume manner athe ‘would have before til, moreaver, (see PCRA, 03/24/2017, pp. 82-83), it also cannot ignore the fact that Sandusky did not offer any credible evidence to sustain his claim that a more ‘concentrated review wold have inspired the attomey to proceed differently, Although ‘Amendola said he had never viewed the discovery post-trial in the same manner he would have pretrial, id at 81-83) he also did not indicate anywhere in his testimony that he had become aware of anything that would have altered his tril strategy (See iat 17-139). That being the ase the defendant has failed to establish that he would have testified differently atthe heaving on post-sentence motions regrdess. tears mentioning, to, that lack of prejudice was not the primary reason the Superior Court rejected Sandusky’ ehllenge to Judge Cleland’ orders denying his motions for continuance. Rathe, its initial dotermination—a merit-based determination-—was that Judge Cleland had not bused his discretion or violated the defendants constitutional sights by declining wo Contin the al Sumduoky, 7 A.3d al G72, That devsion was based on the panel's review of Sandusky’s reasons for wanting to postpone the tril, its contemplation ofthe voluminous supplemental discovery counsel hd received during the few months before tial; and its consideration of Judge Cleand’s reasons for denying the defendant's requests. See id at 67l- 72. Only then did it proceed ty address the effet of Amendola's post-trial testimony. See id. at on. Inlight ofthe foregoing, the defendant has filed to demonstrate a reasonable probability that Sandusky's direct appeal would have turned out differently but for Amendola’s allegedly erroneous testimony. nd il Jury Selection (Clams 8-10) ‘Trial counsel asked the Honorable John M. Cleland more than once to continue the tial 0 that he could utilize the services ofa jury consultant to help im select jurors untainted by the pret publicity these eases hed gamered. Omb. Mo, 03/22/2012, p. 15-16; Mot. for Cont, a (05/25/2012, pp. 8-9. (See alzo Transcript (Mot. for Cont) (Under Sea, 05/29/2012). Judge Cleland denied each request. Believing thatthe traditional oir dre process was adequate to identify any firmly held opinions and unacceptable biases, he was not convinced that a jury ‘consultant was any more qualified than Attorney Amendola to select an approprite jury. See Memorandum Order, 05/30/2012, p. 2 In addition to secking the aid of a juny consultant, Amendola filed a motion requesting individual vor dive as part ofhis Omnibus Pre-Trial Motion. He also sought permission to have the prospective jurors complete supplemental questionnaires based on his concern that they ‘would be reticent to honestly disclose in a public setting information that could reveal prejudices. ‘See Supp, Mot, in Limine, 0'15/2012, pp. 17-18, and Bri in Support, 05/17/2012 pp. 27-30. It is unclear from the record whither Judge Cleland authorized the latter measure, Its clear, however that he conducted individual vor dire with the same concern in mind, taking each prospective juror into his chambers along with counsel, two pool reporter, and a member ofthe public, and advising each one that he would excuse the later three if he or she didnot wish to answer questions in their presence (See eg, Jury Selection Transcript JST"), 06/05/2012 (Day 1°), pp. 16-17, 2,31), In Sandusky’s estimation, though, Amendola di not do enough to safeguard his right toa and impartial jury. He ccntends that his attome also should have procured an expert report to establish tata change of venue or venir or «cooling off period was warranted and requested ‘one of thoge remedies because oft, In filing to do so, however, counsel was not ineffective. ‘With perfoct hindsight, Sandusky now knows that his charitable endeavors and iconic stotus were not enough o overcome the evidence of his guilt. In 2012, though, he wanted to be tried in Centre County by Centre County jurors. He ths opposed the Commonwealth's pre-trial ‘motion to change venue or ven, Mem, In Opposition, 02/08/2012; (Transcript (oral arguments), (2/2072012, pp. 20-25), He even affirmed under osth that he understood the potential pitfall of bis decision and wanted to proceed in Centre County anyway. (ld at 27-35). Five year late, Amendola confirmed that keeping the tial in Centre County was indeed the strategy upon which he and his client had agreed. Consistent with what he ad state ‘response to the Commonwesth's motion to change venve or venie, he believed the defendant -was just as likely to get a fiirjury in Cente County as he was anywhere else inthe county, (PCRA, 03242017, pp. 47-48), ad the defendant has not produced any evidence tending to 2 indicate that his belief was wnvessonable. That being the ease, counsel had no reason to even consider filing « motion to change venue or vente or commissioning an expert report designed to support such s motion, Hethus was not ineffective for filing todo so. ‘Amendole also ected deliberately in nt fling a mation to contin the tral uni there ‘had been a longer coolingoff period “Trial counsel was fir wit the “cooling of” concept, Ans. to Mot, for Change of ‘Venue/Venire, 02/28/2012, 410, as well as the relevant case law. Def. Memo. in Opp. (021082012. Itthus was not cut of ignorance tht he neglected to raise the issue, but because he felt certin that it would be tomo avail, As e unhesitatingly explained atthe PCRA hearing when asked whether he had equested ao “Tid not. And the reason I cin’, quite fankly, vas because if we weren't getting continuanes on all the other legitimate reasons that we had, we certainly weren't going to get it ‘on that basis (PCRA, p. 58). Based on his many interactions with Judge Cleland, he vas mance based on the need fora cooling off period, cerain that such a request weald have been denied en the basis thatthe jury selection process itself would revel whether media saturation had infact unduly prejudiced the jury poo. (dst 58-59), That was a reasonable assumption, ‘As the record amply reflects, Judge Cleland took a no-nonsense approach from start 9 ‘nish with respect to the mazagement of these cases and was not inclined to delay the tia unless he deemed ito be absolutely necessary. He deemed it unnecessary, though, when ‘Amendola learned jest a morth before jury selection that his jury consultant would be unavailable in June; when expert witnesses counsel expected to retain could not accommodate a Sune trial; when potentially exculpatory Iay-witnesses were unavailable while defending their own criminal charges; and waen defense counsel received thousands of pages of discovery materials not long before jury selection was scheduled to commence. See e.g, Mot. for Cont, (05/25/2012, pp. 8-9; (Transcript (Mot. for Cont) (Under Seal), 05/29/2012). Nor vas Judge (Cleland persuaded to continte the tal when counsel, purporting to fel overwhelmed by existing developments, sought leave to withdraw from the case, See Mot. to Withdraw, (06/05/2012, (Mot. to Withdraw Transerip, 06/05/2012), Inthe midst of counse's impassioned speech regarding his inability to adequately try the cas, in fac, Judge Cleland announced, “This case has been on track for thi tril date since at least January, It's no surprise to anybody. 1 never ever suggested or made any indication that there would bea continuance, except a5 2 requested by Judge Feudale and as a courtesy to him, have never I do not believe, misled or ‘given any indication that [had any intention of scheduling tis ease except when it was scheduled and we're going to proceed” (dat). In light ofthe foregoing, its fanciful to suppose that Judge Cleland would heve granted ‘continuance based on the allegation that a coling-off period was necessry. In light of his position on the necessity ofa jury consultant, moreover, is fanciful to suppose that an expert report, even one indicating significant community bias apsinst Sandusky, would have convinced him that the tadiional voir dive process would be inadequate to weed out biased venire persons. ‘Once jury selection was underway, though, should counsel have asked prospective jurors “whether they had read the guand jury preseatments or any other specific accounts of the charges orthe defendant’ culpability? Sandusky says yes and claims that he was ineffetive for not probing more deeply. Viewed through the lens of the la, the record says differently. In Commomwealth v. Briggs, 12 A34 291 (Pa. 2011), our Supreme Court again addressed {he realities of selecting a constitutionally sound jury when the case tissue was the subject of| substantial medis coverage. Incorporating the United States Supreme Cour’s assessment ofthe same issu, i identified as the decisive question whether a prospective juror exposed to media ‘ocounts could suspend any preiminary opinions he or she had formed and decide the matter after considering only the exidence he or she received atta J 514. In the Con's words, [he pivotal question in determining whether an impact jury may be selected isnot whether prospective jurors have knowledge of te crime being tied, or have even formed an initial opinion based on the news coverage they had been exposed to, bu, rather, whether itis possible for those jurors to set aside their impressions or 2reliminary opinions and render a verdict solely based onthe ‘evidence presented ty them at ral i Aditionally, as much as Sandusky would lik to rely on academic concepts like “presumptive bias” to suggest that Amendola had a duty to delve further into what the jurors in this case had reed, the courts ofthis Commonwealth generally adhere to the principle that jure are capable ofthe introspection necessary to evaluate their own biases, Accordingly, courts will measure the continuing effets of peti publicity by reference to the jurors answers. Commorveatthv, Robinson, 854 A.2d 460 (Pa, 2004), “Normally,” says the Cour, “wit prospective jurors tell us about their ability to be impartial will be a reliable guide to whether the 4 publicity is stil so fresh in thir minds that it has removed their ability tobe objective. 484 Ginteral citations omitted, ‘As the transcripts reflet, each empaneled juror in this ease confirmed his or her ability to consider what was presented st trial and render a vedic based on that evidenee alone. That included the two Sandusky re‘erenced as evidencing juror bias, Despite being a studert who had “heard everyting,” Juror No, 5692, after answering a couple of questions in seemingly ambiguous manner, aimed unequivocally that he could be fair and impartial. (See JST, Day 1, pp. 249-60). Both the Court and Amendola satisfied themselves in that regard wit the following exchanges: MR. AMENDOLA: Have you reached any personal decisions about Whose fal it is tht Penn State has really been hit ard by what's happened with ‘Mr. Sandusky? TUROR NO, 5592: Who single-handed, like, who's [sc) overall fault? 1 think there's a lot of psople involved. I think everyone had litle piece of everything. I don't think there's anyone, Like, overall that vas completely to ‘blame. Do I think Joe did afew things that he shouldn't have? T guess. I think everyone just kind of underestimated lot of things and — MR. AMENDOLA: But by what you are telling us, are you really telling ‘us that you have already determined that something happened that shouldn't have |heppened and so everjone kind of shared on the Blame for the charges that were later filed? SUROR NO. 5592: I'm saying know what Ihave read and ~not even ‘know. Tunderstand wat [have ead and thas all I know. And I can look, I sid Tread, you know, Ihave read a litle bit of everything and that’s all that 11 don’t know. T ean’ sy they're my opinions because they're obviously somebody else's. Somebody else vote it down and I ead it because Iwas interested init ‘But that’s —1 guess tha's all 'm saying, MR. AMENDOLA: Could you put everything that you have read aside tnd listen tothe judge who would instrict you, you ean only consider the evidence thet you'll hear at trial and based upon that evidence and the Court's instructions make a deision not on what you heard before today or even before next Monday what you hear at trial? Could you ive by that instruction? JUROR NO, 5692: Yeah ‘THE COURT: Okay. you ate selected asa juror, you would have to take an oath in which rou would agree to decide the case based only on what you heard inthe courtroom: and put aside everything else that you hear. JUROR NO. $692: Um-hur. ‘THE COURT: There's alot riding on that answer, JUROR NO. 5592: Yeah. ‘THE COURT: Can you do that or do you have some reservations? 25 JUROR NO. $592: Yeah, I mean, there's —1 don't think there would be a reason for me to believe anything truer than wat I would hearin the eourtroom snyvray so. "THE COURT: Your answer is yes? SUROR NO. $592: Yes (ld, st 255-56, 257-58). Simiarly, while Juror No. 3208 expressed a general concer forthe ‘welfare of children and sprinkled her answers with all-oo-common quslfers like “probably” ‘and “I guess,” her responses p Judge Cleland’s and Amendola’s clarifying questions di ‘her seeming uncertainty. (See. at 292-99). It slkewise telling that counsel, who had the snulled opportunity to observe Juror No, 3208's demeanor and hear the vocal inflections indiscernible from the pages ofa transerip, accepted her without reservation. ‘Sandusky did not allege any other specific instances of bias among the members of his {jy and as the Court has already indicated, his reliance on “presumptive bits is unavailing ‘Whereas Sandusky has failed to demonstrate tht juror bas influenced the verdict, therefore, Amendola was not ineffective for filing to inure spoctially about whether the jurors had read ‘the presentments or any other specific media accounts. Amendola’s Opening Reman (Claim 24): Than opening statement that filed twenty-six transcribed pages, Amendola began, “This, {sa daunting task, I'l be honest with you, I'm not sure how to approgeh it, The ‘Commonwealth has overwhelming evidence against Me. Sandusky.” (Transcript (Defense ‘Opening Remarks), 06/11/2012, p.3). Those words, Sandusky contends, gave the jury an inaccurate impression by effectively conceding thatthe Commonwealth's evidenes was sulicent to establish his gui. He thus concludes that Amendola rendered inefTetive assistance at the very outset of trial, Orce again, though, the record does not sustain the elaim, ‘When asked whether had begun his opening by saying thatthe evidence against Sandusky vas overhelming, Amendola could not hide his intation with what he apparently deemed tobe an offensive insinuation. “That was satiial” he sad, “That's called satie, And again, I'm surprised you never used it” (PCRA, 03/24/2017, p, 121). He proceeded to comment bout how widespread peoples belie was thatthe defendant was guilty, explaining, “And Twas saying tothe jury, look, he’sguilty, why have a trial? Read the rest of my opening and you'll realize that what I sid ie thee were @ lot of questions, alot of questions about the authenticity of the statements and the allegaions being made against Jenry Sandusky.” (Id), 2% ‘AsPCRA counsel continued to challenge his word choice, noting tat he told the jury the evidence agains the defendast was overwhelming, not that everybody thought he was guilty, ‘Amendole vehement reiterated, “For the purpose of pointing out that there are two sides othe story. Totally stitial.” (let 122), He then pointed to his cross-examination ofthe witnesses 1s proof that his opening statements could not reasonably be interpreted as an actual concession (id). “Tis junist di not preside over the til but can reasonably assume thatthe ‘Amendola used ashe began his opening statement corresponded with his satirical intent. ection ‘Whether he did or not, though, the jury did not have to wait fr him to cross-examine the vitims, to realize that he thought their stores incredible and believed the jurors would reach the same ‘conclusion afer hearing the evidence, Barely into his opening, in fact, counsel plainly stated, In the opening statement presented by Mr. MeGettigan an outstnding prosecutor and an outanding attorney, he referred tothe pictures on the seen as pictures of victims, Ladies and gentlemen, let me say this~and I've been saying ‘is from November S* of last year. There are no victims in this case. The only ‘way and the only time there willbe victims inthis ease willbe if, ater you heat all th evidence, you listen to all the arguments, you hear the judges instructions, tind you deliberate, you determine beyond a reasonable doubt that Terry Sandusky js guilty of some oll of the offenses will there be vitims. And if you don’t get to that point, if you decide, ater hearing all the evidence that there's a reasonable ‘doube, then there will never be vets beeause victims only come about after you 12 determine they're victims. (Transcript (Def, Opening Rematks),p. 4). He launched immediately into an explanation of how the allegations had begun, percolated, and developed into 10-vctim sexual assault ease, pointing out the many questions he wanted the jurors to ask about the timeline of evens, the alleged vitims’ veracity, whether a man who had done so much to help children would do wit the Commonveath was alleging, and other seeming inconsistencies, (See id at 429). Considering Amendole’s opening statement asa whole andthe isolated statement, “The ‘Commonwealth has overwhe:ming evidence against Mr. Sandusky,” within its larger context, ‘then, itis simply unfathomable that even one ofthe twelve jurors interpreted it as an admission of defeat rather than appreciating the irony Amendola Wanted to convey. Accordingly, counsel ‘vas not inefTetive for making the statement n Allan Myers (Claims 1,2, & 9:2? ‘Sandusky contends thi Allan Myers (“Myers was the Commonwealth's Victim #2 and ‘hac both the prosecution and Amendola were aware of hat fact. Based on those alleged fact, he claims that Amendola was ineffective for not objecting to Attorey MoGeltigan’s statement thet Victim #2 was unknown and for nt calling Myers to testify or using his exculpating statements cither as substantive evidence oro impeach MeQueary. He further refers to a posttrial satement Myers allegedly male in which he recanted subsequent inculpatory statements, proposing that it consttued atrsdscovered evidence entitling him toa new tal or, inthe alternative, that Amendola was ineffective foe failing to lear about the recantation. The material facts he presupposes, however, are not bore out by the record, ‘When he fist read the grand jury presentment, Sandusky named Myers as th person eventually identified as Vietin #2. (PCRA, 08/12/2016, p. 148). A Sew days later, Myers echoed (he defendant's belief and toll Amendola that nothing inappropriate had occurred in the shower on the dae alleged. (0 at 14445), He ikewise exonerated Sandusky during an interview with Corporal Joseph Leiter in September of 2011, (See PCRA Exh. 8). Itwas not long, however, before the young man was teling a completely different story. ‘Within a week or two oftheir meeting, Amendola leaned that Myers had scoured private counsel and was claiming Wo fave been sexy bused by Sulusky us nuiple occasions. (i 145-46), The young man continued to selfidentify ss Vieim #2 but, instead of contradicting ‘McQueary, proffered tha the shower incident was only one of many sexual encounters between him andthe defendant (7d, 1d, 0822/2016, pp. 25-30, PCRA Exhs, 46) “The problem for Sandy i that the prosceution team never believed that Myers was Victim #2. Not only was his drawing of the relevant locker room completely inaccurate, but his rendition of the shower incident, the dels of which he divulged only afer the Curley/Sehultz preliminary heaving at which MeQueary ad testified, seemed fo parrot the former assistant coach's testiony rather than reflect an independent recollection of the same event (PCRA, (08/23/2016, pp. $6-$8 (MeGettigun) i. at 30-35 (Fina; fd, 08/22/2016, pp. 97-102 (Sassano)). ‘When MeCittigan indicated inhi closing remarks that Vietim #2 was unknown, therefore, he ‘was not engaging in prosecutorial miseonduet; in his mind, the boy's identity was indeed a 1 ga posed in bi poten ee and Proposed Findings te defendant ino longer pursing Cai 3, when he lig tht Arend wos tev fr al ling hi ht he bth oscar lated that ‘lhe sde woud ell Myers vies. 8 | | | | | | | | | rystery. Consequently, Amesdola did not havea foundation for objecting when opposing counsel sid that Victim #2 vas unknown. He thus was not ineffective for fling to do so [Nor was Amendola ineffective fr fling to call Myers asa witness or attempt to use his ‘ior favorable statement() to impeach MeQueary. [Even assuming that ecansel could have effectively controlled the young man 80 as to

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