J-A19029-18

                                   2019 PA Super 27

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GERALD A. SANDUSKY                         :
                                               :
                       Appellant               :   No. 1654 MDA 2017

             Appeal from the PCRA Order Entered October 18, 2017
      In the Court of Common Pleas of Centre County Criminal Division at
                       No(s): CP-14-CR-0002421-2011,
                           CP-14-CR-0002422-2011


BEFORE: GANTMAN, P.J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

OPINION BY NICHOLS, J.:                              FILED FEBRUARY 05, 2019

       Appellant Gerald A. Sandusky appeals from the order denying his timely

first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546. Appellant raises a number of claims relating to the ineffective

assistance of counsel, violations of Brady v. Maryland, 383 U.S. 83 (1963),

and newly discovered evidence.             He also challenges the legality of his

sentence. We affirm in part and remand for resentencing consistent with this

opinion.

       We briefly summarize the relevant procedural history of this case. On

November 4, 2011, after the Thirty-Third Statewide Investigating Grand Jury

issued a recommendation and presentment, the Commonwealth1 charged

____________________________________________


1The Office of the Attorney General (OAG) charged and prosecuted Appellant.
At trial, the Commonwealth was represented by Deputy Attorneys General
Joseph E. McGettigan and Frank G. Fina.
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Appellant with committing numerous sexual offenses against eight young

males referred to as Victims 1 through 8 in case number 2422-2011.

Appellant was arrested and subsequently released on bail. Appellant obtained

private counsel, Joseph E. Amendola, Esq.2

       On December 7, 2011, after the Thirty-Third Statewide Investigating

Grand Jury issued another presentment, the Commonwealth charged

Appellant with crimes committed against two additional victims, referred to as

Victims 9 and 10 in case number 2421-2011.            On December 13, 2011,

Appellant waived preliminary hearings in both cases. The matter was held

over to the Centre County Court of Common Pleas, and the Honorable John

M. Cleland was specially appointed to preside.

       Following a contentious discovery process, during which Appellant’s trial

counsel sought numerous continuances and sought to withdraw from

representation, Appellant proceeded to a jury trial.3 On June 22, 2012, the

jury found Appellant guilty of forty-five counts relating to the ten victims

between 1995 and 2008.
____________________________________________


2 Karl L. Rominger, Esq., entered his appearance as Appellant’s co-counsel on
April 5, 2012. We refer to Attorney Amendola and Rominger collectively as
trial counsel.

3At trial, many of the victims testified against Appellant, including A.F. (Victim
1), J.S. (Victim 3), B.H. (Victim 4), M.K. (Victim 5), Z.K. (Victim 6), D.S.
(Victim 7), S.P. (Victim 9), and R.R. (Victim 10). Victims 2 and 8 were
unidentified at the time of trial. As noted below, Appellant contends that
Victim 2 was identified as A.M.




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       On October 9, 2012, the trial court determined Appellant was a sexually

violent predator and sentenced him to an aggregate term of thirty to sixty

years’ imprisonment.4 Appellant filed post-sentence motions, and on October

18, 2012, Norris E. Gelman, Esq., entered his appearance as co-counsel for

post-sentence proceedings. The trial court denied Appellant’s post-sentence

motions following a hearing at which Attorney Amendola testified. 5

       Appellant, who was then represented by Attorney Gelman, took a direct

appeal. This Court affirmed the judgment of sentence, and the Pennsylvania

Supreme Court denied Appellant’s petition for allowance of appeal.           See

Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013), appeal

denied 835 & 836 MAL 2013 (Pa. filed Apr. 2, 2014).

       On April 2, 2015, Appellant timely filed his first counseled PCRA petition,

raising fifteen claims of ineffective assistance of counsel.     See PCRA Pet.,
____________________________________________


4 The trial court, in structuring the aggregate sentence, imposed consecutive
sentences of ten to twenty years’ imprisonment each for Count 1 (involuntary
deviate sexual intercourse (IDSI, Victim 9) at CR-2421-2011 and Count 1
(IDSI, Victim 1) at CR-2422-2011, and five to ten years’ imprisonment each
for Count 7 (IDSI, Victim 10) of CR-2421-2011 and Count 17 (IDSI, Victim 4)
of CR-2421-2011. The four counts on which the trial court sentenced
consecutively involved charges under 18 Pa.C.S. § 3123(a)(7). The remaining
sentences were ordered to run concurrently.

At the time of sentencing, the trial court stated that it sentenced concurrently
on counts 36 to 40 of CR-2422-2011, relating to Victim 8, and stated “if those
convictions should happen to be set aside on appeal, it will make no difference
to the sentence structure as a whole.” N.T., 10/9/12, at 57.

5 As noted below, Attorney Amendola testified at the post-sentence hearing
regarding the denials of trial counsels’ motions for continuances.



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4/2/15, at 15-95. Appellant filed an amended petition on May 6, 2015, raising

additional claims. See Am. PCRA Pet., 5/6/15, at 15-105. On March 7, 2016,

Appellant filed a second amended petition. See Second Amended PCRA Pet.,

3/7/16, at 33-155.

       Thereafter, the PCRA court conducted six separate evidentiary hearings

under two different judges.6 During these hearings, which took place between

August 12, 2016 and May 11, 2017, Appellant presented several witnesses

and testified on his own behalf. At the conclusion of the hearings, both parties

submitted proposed findings of fact and conclusions of law.

       On October 18, 2017, the PCRA court issued an opinion and order

denying Appellant’s PCRA petition. Appellant filed a timely notice of appeal

and a court-ordered Pa.R.A.P. 1925(b) statement.

       On appeal, Appellant raises twenty-two issues for review.           See

Appellant’s Brief at 5-9. We list and consider each question below.7

       Initially, we note that our standard of review from the denial of a PCRA

petition “is limited to examining whether the PCRA court’s determination is

supported by the evidence of record and whether it is free of legal error.”

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation
____________________________________________


6The Honorable John M. Cleland presided at trial and through part of the PCRA
proceeding but ultimately recused himself on November 21, 2016. The
Honorable John H. Foradora, President Judge of the Jefferson County Court of
Common Pleas, was thereafter appointed to preside over the PCRA
proceedings and conducted two evidentiary hearings.

7We will address Appellant’s issues in a different order than presented in his
brief.

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omitted). “The PCRA court’s credibility determinations, when supported by

the record, are binding on this Court; however, we apply a de novo standard

of review to the PCRA court’s legal conclusions.”          Commonwealth v.

Mitchell, 105 A.3d 1257, 1265 (Pa. 2014) (citation omitted).

      Furthermore, to establish a claim of ineffective assistance of counsel, a

defendant “must show, by a preponderance of the evidence, ineffective

assistance of counsel which, in the circumstances of the particular case, so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.” Commonwealth v. Turetsky,

925 A.2d 876, 880 (Pa. Super. 2007) (citation omitted). The burden is on the

defendant to prove all three of the following prongs: “(1) the underlying claim

is of arguable merit; (2) that counsel had no reasonable strategic basis for his

or her action or inaction; and (3) but for the errors and omissions of counsel,

there is a reasonable probability that the outcome of the proceedings would

have been different.” Id. (citation omitted).

      We have explained that

      [a] claim has arguable merit where the factual averments, if
      accurate, could establish cause for relief. See Commonwealth
      v. Jones, . . . 876 A.2d 380, 385 ([Pa.] 2005) (“if a petitioner
      raises allegations, which, even if accepted as true, do not establish
      the underlying claim . . . , he or she will have failed to establish
      the arguable merit prong related to the claim”). Whether the facts
      rise to the level of arguable merit is a legal determination.

      The test for deciding whether counsel had a reasonable basis for
      his action or inaction is whether no competent counsel would have
      chosen that action or inaction, or, the alternative, not chosen,
      offered a significantly greater potential chance of success.
      Counsel’s decisions will be considered reasonable if they

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J-A19029-18


      effectuated his client’s interests. We do not employ a hindsight
      analysis in comparing trial counsel's actions with other efforts he
      may have taken.

      Prejudice is established if there is a reasonable probability that,
      but for counsel’s errors, the result of the proceeding would have
      been different. A reasonable probability is a probability sufficient
      to undermine confidence in the outcome.

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some

internal quotations and citations omitted).

      “[B]oilerplate allegations and bald assertions of no reasonable basis

and/or ensuing prejudice cannot satisfy a petitioner’s burden to prove that

counsel was ineffective.” Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa.

2011). Moreover, “[a] failure to satisfy any prong of the ineffectiveness test

requires rejection of the claim of ineffectiveness.”      Commonwealth v.

Daniels, 963 A.2d 409, 419 (Pa. 2009) (citation omitted).

         1.   Did the [PCRA] court err in finding counsel
              performed effectively in permitting [Appellant] to
              be interviewed by Bob Costas without adequately
              advising him and preparing him for the interview
              and thereby providing the Commonwealth with
              additional evidence?

      Appellant’s first issue relates to Appellant’s nationally broadcasted

telephone interview with Bob Costas on November 14, 2011, shortly after his

arrest. During the interview, Costas confronted Appellant with the pre-trial

statements from Michael McQueary, James Calhoun, and Ronald Petrosky




                                     -6-
J-A19029-18



implicating Appellant in the abuse of two separate children. 8 With respect to

McQueary’s statement regarding a February 2001 incident in the Lasch

Building involving Victim 2, Appellant responded that it was false and

explained that he was engaged in horseplay with that child while in the

shower. Additionally, when Costas asked what motive McQueary, Calhoun,

and Petrosky would have to implicate Appellant, Appellant responded, “You

would have to ask [them].” Commonwealth’s Ex. 104 at 2 (unpaginated).

       Of particular relevance to Appellant’s first issue, Costas asked Appellant,

“Are you sexually attracted to young boys, to underage boys?”           Id. at 3.

Appellant paused and repeated the question back to Costas. Id. Appellant

then replied, “[S]exually attracted, you know, I enjoy young people. I love to

be around them. I, I, but no, I’m not sexually attracted to young boys.” Id.

       In his first issue, Appellant argues that the PCRA court erred in rejecting

his claim that Attorney Amendola was ineffective for permitting Appellant to

participate in the interview with Costas. Appellant’s Brief at 22. Specifically,

Appellant alleges that Attorney Amendola did not adequately prepare him for



____________________________________________


8 By way of further background, Michael McQueary, then a graduate assistant
with the Penn State football team, implicated Appellant in a February 2001
assault of Victim 2. James Calhoun and Ronald Petrosky were janitors who,
in the fall of 2000, discussed seeing Appellant with Victim 8. The incidents
involving Victim 2 and Victim 8 both occurred in a shower in the Lasch Building
on Penn State University’s campus. As discussed below, McQueary and
Petrosky testified at trial. The Commonwealth, over trial counsels’ objections,
admitted Calhoun’s 2000 statements to Petrosky regarding Victim 8 as an
excited utterance.

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J-A19029-18



the interview and failed to advise Appellant that his statements during the

interview could be used at trial. Id. at 29.

       Appellant further contends that Attorney Amendola had no reasonable

legal basis for advising Appellant to participate in the interview. Id. at 30.

He asserts that Attorney Amendola’s “encouraging of [Appellant] to waive his

right to remain silent and speak to Costas had no strategic trial basis[,] as it

was based on currying media attention, which is not a trial strategy.” Id. at

31. Additionally, he contends that there could be no “reasonable basis for

permitting your client to do a national interview without preparation.” Id. at

30.

       Appellant    also   argues     that     he   suffered   prejudice   because   the

Commonwealth played the interview at trial and “inaccurately repeated the

most damaging portion of the interview.” Id. at 31. Additionally, Appellant

asserts that the interview enabled the Commonwealth to comment on

Appellant’s silence, as the prosecution “repeatedly referenced [Appellant’s]

failure to tell Costas the name of [Victim 2].”9 Id. at 32. He posits that “if

counsel properly advised [Appellant] about the implications of providing an

interview or adequately prepared him, [Appellant] either would not have given

the interview or would not have provided fodder for the Commonwealth to use

to imply that he was a sexual predator.” Id. at 32.

____________________________________________


9  We discuss Appellant’s separate claim based on the Commonwealth’s
references to the Costas interview during closing arguments in greater detail
in issue two.

                                             -8-
J-A19029-18



      The Commonwealth argues that the PCRA court properly rejected

Appellant’s “self-serving account” of his decision to participate in the interview

with Costas. Commonwealth’s Brief at 35. Specifically, the Commonwealth

points to the PCRA court’s finding that rejected Appellant’s testimony that he

was not prepared for the interview.            Id. at 29.      Additionally, the

Commonwealth asserts that Appellant’s poor performance in the interview

“had nothing to do with lack of preparation, poor advice or an ill-conceived

strategy of counsel.” Id. at 36. Given the unique circumstances of Appellant’s

case, the Commonwealth argues that Attorney Amendola employed a “clear,

simple strategy” which “he never expected to be problematic in light of

[Appellant’s] consistent narrative of innocence.” Id. at 35.

      The PCRA court, in rejecting Appellant’s claim, explained:

      As much as he would like to pretend otherwise, [Appellant] did
      not go into the interview as a legal novice obsequiously following
      [Attorney Amendola]’s directives with no idea about what Costas
      might ask or how he should respond. On the contrary, [Appellant]
      wanted to publish his story; he wanted Costas’s program to be the
      first medium through which it was delivered; and he was not a
      man who subjugated his own will to the preferences and advice of
      counsel.

      Not comfortable with the idea of being his own spokesperson,
      [Appellant] initially elected [Attorney] Amendola to speak on his
      behalf, and that was the plan until shortly before the interview
      commenced.       During the hour leading up to the interview,
      however, [Amendola] and [Appellant] discussed the public’s
      overwhelmingly negative perception of [Appellant] and the
      consequent value of him personally proclaiming his innocence to
      the nation, and [Appellant] ultimately agreed to be the
      interviewee.

      Because Costas would not divulge what questions he might ask,
      [Attorney] Amendola could not feed his client any specific

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        answers.     Having spent more than two years defending
        [Appellant] against allegations of sexual abuse, however,
        [Amendola] was confident about [Appellant]’s ability to assert his
        innocence. Thus, “[W]hat you’re going to have to do is explain to
        Bob Costas in a brief phone conversation that you’re innocent, we
        expect to prove your innocence at trial,” seemed to Amendola to
        be clear and sufficient instruction.

        “Assert your innocence” was not the only advice [Attorney]
        Amendola provided, though; he also told [Appellant] to be
        adamant about it and to stress that he had explanations for and
        defenses against all the allegations. Since long before the date of
        the Costas interview, moreover, Amendola had counseled
        [Appellant] on many occasions that anything he said to anyone
        other than his wife could be used against him, an admonition he
        had reiterated just a few days earlier. [Appellant] thus was not
        ignorant about what he should say or how he should say it, and
        [Amendola] certainly could not anticipate that the same man who
        had repeatedly affirmed, “I am not a child molester. I have never
        molested children. I love children. I’ve devoted half of my
        adulthood to helping kids,” would freeze when asked whether he
        was sexually attracted to young boys.

PCRA Ct. Op., 10/18/17, at 10-11.

        We add that Attorney Amendola testified that he represented Appellant

against previous sexual abuse allegations. See PCRA Hr’g, 8/12/16, at 107.

Attorney Amendola believed that Appellant, who had proclaimed his innocence

to Attorney Amendola “many times,” would be able to express his innocence

during the interview with Costas. See id. Furthermore, Attorney Amendola

testified that he thought Appellant’s participation in an interview with Costas

was a

        golden opportunity for [Appellant] to tell the world, because [he]
        knew there’d be millions of watchers, that he was innocent and
        that he intended to prove his innocence. It was a golden
        opportunity with a sports journalist[,] with a sports icon to get his
        message out at least on a preliminary basis.


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J-A19029-18



PCRA Hr’g, 8/12/16, at 111. Appellant agreed.

       Following our review of the record, we agree with the PCRA court that

Attorney Amendola was not ineffective for advising Appellant to participate in

the interview with Costas.        The PCRA court expressly rejected Appellant’s

arguments that he was inadequately prepared for the interview and that

Attorney Amendola did not fully advise him of the possible legal ramifications

of his statements to the media. The PCRA court’s findings are supported by

the record, and we discern no error in the PCRA court’s conclusion that

Appellant’s claim lacked arguable merit.10 See Stewart, 84 A.3d at 707.

          2.   Did the [PCRA] court err in concluding trial
               counsel [was] effective in not seeking a mistrial
               after the prosecutor improperly made multiple
               comments based on [Appellant]’s silence?

       Appellant next claims he was entitled to relief based on Attorney

Rominger’s failure to move for a mistrial based on the Commonwealth’s

closing argument. By way of background to this claim, Attorney Amendola

referred to the Costas interview during closing arguments as follows:

       Well, let’s get back to the Costas interview. Think about this.
       [Appellant]’s arrested. This is going global. This isn’t restricted
       to Pennsylvania. He has been painted as a monster, a predator.
       Administrators of Penn State and Coach Paterno have been fired.

____________________________________________


10 In light of our conclusion that the PCRA court properly found no merit to
Appellant’s claim that Attorney Amendola failed to prepare for or advise him
of the consequences of being interviewed by Costas, we need not consider
whether a post-arrest media strategy falls within the scope of constitutionally
competent representation or the merits of Appellant’s suggestion that the
reasonableness of counsel’s media strategy should be assessed differently
than a “trial” strategy. See Daniels, 963 A.2d 409, 419.

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J-A19029-18


      On November 14th, a Monday night, [Appellant] agrees to an
      interview with Costas. [Appellant] has been in sports all his life.
      He knows who Bob Costas is. He’s a tough interview for any of
      you who have ever been involved in sports or ever watched the
      sports programs, when he interviews, they’re tough interviews.

      [Appellant] decided he wanted to tell the world he was innocent.
      Was he nervous? I’m nervous right now with a courtroom filled
      with a couple hundred people. This was national, and it was
      advertised that he was going to talk. He didn’t have to say a word.
      That’s his constitutional right. He agreed to that interview
      knowing it his [sic] going to be tough.

                                    ***

      Folks, what more could that man say? [Appellant] went on
      national TV with a guy who probably was every bit as tough as
      [Prosecutor] McGettigan and any prosecutor could ask any tough
      questions. What more could he say? Costas asked tough
      questions. He gave tough answers. Denied he did this. Said he
      was innocent.

N.T., 6/21/12, at 65-66, 73.

      The Commonwealth during its closing argument referred to the Costas

interview as follows:

      [Appellant] had wonderful opportunities to speak out and make
      his case. He did it in public. He spoke with Bob Costas. That’s
      the other thing that happened to me for the first time. I had been
      told I’m almost as good a questioner as Bob Costas, I think, or
      close.

      Well, he had the chance to talk to Bob Costas and make his case.
      What were his answers? What was his explanation? You would
      have to ask him? Is that an answer? Why would somebody say
      that to an interviewer, you would have to ask him? He didn’t say
      he knew why he did it. He just said he saw you do it. Mike
      McQueary. The janitors [i.e., Petrosky and Calhoun]. Well, you
      would have to ask them. That’s an answer?

      [Attorney] Amendola did I guess as good a job as possible
      explaining—he offered that [Appellant] has a tendency to repeat
      questions after they’re asked. I would think that the automatic

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J-A19029-18


     response when someone asks you if you’re, you know, a criminal,
     a pedophile, a child molester, or anything along those lines, your
     immediate response would be, you’re crazy, no. What? Are you
     nuts?

     Instead of, are you sexually attracted to young boys? Let me
     think about that for a second. Am I sexually attracted to young
     boys? I would say, no, or whatever it is. But that’s [Attorney]
     Amendola’s explanation that he automatically repeats question
     [sic]. I wouldn’t know. I only heard him on TV. Only heard him
     on TV. So that’s his explanation there. He enjoys young children.

                                    ***

     [Appellant]’s explanation on television, is there anything else that
     you missed? . . . I’m not sure if there was anything—because he
     didn’t provide you with something that could have been
     enormously helpful to us, could have solved many problems
     today. I think he’s talked about this, you know, the shower
     incident. He didn’t say and that’s little Johnny, who I know now
     ten years later who lives around the corner. He forgot a name.
     He remembered the incident clearly.

     Why did he remember it? I mean, he showered with a lot of boys.
     Why did he remember this particular incident? He remembered it
     because he had seen Mike McQueary and he knew this day would
     come. He remembered it. He remembered that day.

     One thing he didn’t which he could have provided to Bob Costas,
     he could have provided it to anybody at any time. He had the
     complete capacity to exonerate himself at the time and just say
     who was there because this is a day—remember, Mike McQueary,
     why remember him and not the little boy you’re soaping and just
     being innocently cleansing to? But he didn't provide that name to
     anybody, ever, certainly not to Bob Costas, no. He forgot that.

N.T., 6/21/12, at 140-42, 145-46.

     After the Commonwealth’s closing arguments, Attorney Rominger

objected to the Commonwealth’s reference to Appellant’s decision not to

testify at trial. Id. at 153. However, Attorney Rominger did not move for a



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mistrial. Id. at 158. The trial court concluded that the statements were “fair

rebuttal” and that it previously “cautioned the jury again and again the

defendant has no obligation to testify or present evidence in his own defense.”

Id. Thereafter, the trial court issued a cautionary instruction to the jury. Id.

at 160.

       On direct appeal, Appellant argued that “the trial court committed

reversible error when it denied his objection that the prosecutor commented

adversely on his choice not to testify at trial.” Sandusky, 77 A.3d at 670.

However, because trial counsel did not request a mistrial or curative

instruction at trial, this Court deemed Appellant’s claim waived. See id. at

670.

       Appellant claims that the PCRA court erred in its conclusion that

Attorney Rominger’s failure to move for a mistrial did not warrant a new trial.

In support, Appellant asserts that “[i]t is apparent and reasonable to assume

that   the   jury    interpreted    the   prosecutor’s   argument   as   embracing

[Appellant’s] failure to testify.” Appellant’s Brief at 46. Appellant argues that

the Commonwealth violated his rights under Article 1, Section 2 of the

Pennsylvania Constitution and the Fifth Amendment of the United States

Constitution.       Id. at 48.     He further asserts that trial counsel had no

reasonable basis for failing to move for a mistrial.

       The Commonwealth contends that the prosecutor’s closing argument

“constituted fair rebuttal to the interpretation/explanation of the Costas

interview that was set forth by [Attorney] Amendola during his closing

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argument    and    the   hypothetical    questions   he   posed   to   the   jury.”

Commonwealth’s Brief at 40. The Commonwealth concludes that there was a

reasonable basis for Prosecutor McGettigan’s comments and he was careful

not to exceed the bounds of oratorical flair.        Id. at 42.   Therefore, the

Commonwealth asserts that Appellant’s ineffectiveness claim lacks arguable

merit. Id. at 44-45.

      It is well settled that:

      As a general rule, any comment that the prosecuting attorney
      makes regarding a defendant’s election not to testify is a violation
      of the defendant’s right against self incrimination as guaranteed
      by the Fifth Amendment of the United States Constitution, Article
      I, Section 9 of the Pennsylvania Constitution and by statute,
      codified at 42 Pa.C.S.[] § 5941. A comment is constitutionally
      and statutorily forbidden if “the language used by the prosecutor
      is intended to create for the jury an adverse inference from the
      failure of the defendant to testify.” This rule is not an absolute
      bar to any reference to a defendant’s failure to testify. A remark
      by a prosecutor, otherwise improper, may be appropriate if it is in
      fair response to the argument and comment of defense counsel.

Commonwealth v. Trivigno, 750 A.2d 243, 248-49 (Pa. 2000) (citations

omitted); cf. Commonwealth v. Cox, 983 A.2d 666, 688 (Pa. 2009) (noting

that the Commonwealth’s reference to a defendant’s failure to testify is a fair

response if “it is evident that the [prosecution] did not treat the defendant’s

silence as substantive evidence of guilt, but instead referred to the possibility

of testifying as one of several opportunities which the defendant was afforded,

contrary to the statement of his counsel, to explain his side of the case”

(citation omitted)).

      The PCRA court addressed Appellant’s claim as follows:

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     In his “Opinion Addressing the Defendant’s Post-Sentence
     Motions,” filed January 30, 2013, [the trial judge] addressed the
     substantive issue implicated here and reiterated his earlier
     conclusion that [Prosecutor] McGettigan’s comments were fair
     rebuttal to [Attorney] Amendola’s closing. He further noted how
     he had repeatedly instructed the jury that [Appellant] had no
     obligation to testify and that its decision must be based solely on
     the evidence presented, an observation well supported by the trial
     record.

     In his brief opening instructions, [the trial judge] defined the
     parties’ respective burdens in clear and unequivocal terms. “The
     burden of proving [Appellant’s] guilt is always on the prosecutor.
     [Appellant] does not have any responsibility to prove anything,”
     he began. Giving substance to that admonition, he added, “He
     does not need to present any evidence to prove that he is not
     guilty. In addition, under both the United States and Pennsylvania
     Constitutions, he has an absolute right not to testify. If he decides
     not to testify, you cannot hold that fact against him or infer that
     he is guilty because he chooses not to testify.” [The trial judge]
     returned to that theme after describing the procedural course the
     jury could expect as the trial progressed: “After the
     Commonwealth has presented its case,” he said, “the defense may
     present evidence for the defendant, but, remember, the
     defendant has no obligation to present any evidence or to testify
     himself because the responsibility is always on the Commonwealth
     and only on the Commonwealth to prove its case beyond a
     reasonable doubt.”

     Having elected to instruct the jury before the attorneys delivered
     their closing statements, [the trial judge] rehearsed the same
     legal tenets at the outset of his final charge. He thus cautioned
     the jurors yet again,

        The second fundamental principle [to remember] is that
        under our system of criminal law the defendant is presumed
        to be innocent. The mere fact that he’s been arrested, that
        he’s been accused of a crime is not any evidence against
        him. He is assumed to be innocent throughout this trial and
        unless and until you conclude, based on a careful and
        impartial consideration of the evidence, that the
        Commonwealth has proved to your satisfaction that he is
        guilty beyond a reasonable doubt.




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        It’s not the defendant’s burden to prove he’s not guilty. It
        is the Commonwealth that always has the burden of proving
        that he is guilty by establishing each and every element or
        fact sufficient to support the crime charged and that he has
        been proven guilty beyond a reasonable doubt.

        The defendant, under our system of law, is not required to
        present any evidence or to prove anything in his own
        defense. The Commonwealth has the burden of proving the
        defendant’s guilt.

     [The trial judge] made numerous additional references to the
     Commonwealth’s absolute burden throughout his closing
     instructions. After considering defense counsel’s objection to
     [Prosecutor] McGettigan’s alleged references to [Appellant’s]
     post-arrest silence, moreover, [the trial judge] reminded the jury
     one last time, “You must decide those charges based on the
     evidence presented here in this courtroom and be reminded that
     the burden is on the Commonwealth to prove its case beyond a
     reasonable doubt and that the defendant has no obligation at any
     time to present any evidence in his own defense.” Even if the
     jurors understood McGettigan’s comments as references to
     [Appellant’s] silence, then, [the trial judge]’s [cautionary]
     instructions clearly reminded them that they could not apply a
     negative interpretation to his decision to exercise his
     constitutional right.

     Independent of what [the trial judge] instructed the jury, his
     response to defense counsel’s objection to [Prosecutor]
     McGettigan’s remarks, i.e., his conclusion that they were fair
     rebuttal, tells the [PCRA c]ourt [that the trial judge] would have
     denied a motion for mistrial. Accordingly, [Appellant’s] claim only
     has merit if the record shows a reasonable probability that the
     Superior Court would have reversed that ruling as an abuse of
     discretion. See Commonwealth v. Smith, 131 A.3d 467, 474-
     75 (Pa. 2015) (“We review the denial of a motion for mistrial under
     the abuse of discretion standard [because] ‘a mistrial is an
     extreme remedy that is required only where the challenged event
     deprived the accused of a fair and impartial trial’”). That,
     however, is not the case.

     In Commonwealth v. Wright, 961 A.2d 119 (Pa. 2008), our
     Supreme Court reaffirmed that a mere error in judgment is not
     tantamount to an abuse of discretion when the question is
     whether the trial court should have granted a mistrial because of


                                   - 17 -
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     a prosecutor’s improper references to the defendant’s decision not
     to testify. An abuse of discretion may not be found, it said, unless
     the judge’s decision overrode or misapplied the law, was
     manifestly unreasonable, or was the result of partiality, prejudice,
     bias, or ill-will. “The trial court may grant a mistrial,” it added,
     “only ‘where the incident upon which the motion is based is of
     such a nature that its unavoidable effect is to deprive the
     defendant of a fair trial by preventing the jury from weighing and
     rendering a true verdict.’” Turning next to the law as it related to
     a prosecutor’s improper references to a defendant’s silence at
     trial, the Wright [C]ourt observed that a comment is forbidden if
     its language intentionally invites the jury to infer guilt from the
     defendant’s failure to testify or highlights the fact that only the
     non-testifying defendant can rebut the Commonwealth’s
     evidence. Id.

     The statements at issue in Wright were the prosecutor’s dual
     references to the defendant’s failure to testify and his corollary
     identification of the defendant as one of the Commonwealth’s
     “best witnesses.”      Even if not intended to implicate the
     defendant’s right to remain silent, the Court concluded, those
     remarks were inappropriate. “However, not every reference to a
     defendant’s failure to testify automatically requires a new trial;
     the verdict can still be sustained if the error was harmless,” it
     added. If the record established beyond a reasonable doubt that
     the error could not have contributed to the verdict, the Court
     explained, there was no cause for redress. [The Court employed]
     a harmless error analysis [and] it found that the overwhelming
     evidence of guilt and the trial judge’s cautionary instruction
     rendered the error harmless.

     In this case, the allegedly improper comments, quoted above,
     were made while [Prosecutor] McGettigan was discussing
     [Appellant’s] interview with Bob Costas. He had already reviewed
     and commented on much of the Commonwealth’s evidence at that
     point, and was revisiting [Appellant’s] explanation of events,
     which [Attorney] Amendola had commented on extensively during
     his closing.

     With respect to the latter portion of the above-quoted argument,
     the [c]ourt fully agrees with Judge Cleland’s assessment that it
     was fair rebuttal.      [Appellant] parses out three discrete
     phrasings—“because he didn’t provide you with something that
     could have been enormously helpful to us, could have solved
     many problems today;” “he could have provided it to anybody at

                                    - 18 -
J-A19029-18


     any time;” and “But he didn’t provide that name [of Victim 2] to
     anybody, ever;” and challenges them as impermissible references
     to his post-arrest silence. They do not lend themselves to that
     interpretation when read in their broader context, though,
     sandwiched, as they were, between musings pertaining
     unequivocally to the Costas interview.

     In this case, the broader context also includes Attorney
     Amendola’s references to the same portion of the interview.
     Although [Appellant] did not testify, the whole of the Costas
     interview was admitted into evidence, and Amendola utilized it
     during his summation to remind the jury of every exculpatory
     statement his client had made and to argue that his decision to
     give the interview was indicative of his innocence. Part of that
     interview focused on McQueary’s observations [regarding Victim
     2], and Amendola, presumably in possession of a transcript, read
     the following exchange:

       Costas says, what about Mike McQueary, the grad assistant
       in 2008—we’ll talk about it in a minute—walked into the
       shower where he said in specific detail that you were forcibly
       raping a boy who appeared to be 10 or 11 years old. That
       his hands were up against the shower wall and he heard
       rhythmic slapping sounds and he described that as a rape.

       [Appellant] said, I would say that’s false.

       What would be his motive to lie, Costas says. [Appellant]
       says, you would have to ask him.

       Costas, what did happen in the shower that night that Mike
       McQueary happened upon you with a young boy?

       [Appellant], we were showering and horsing around and he
       actually turned all the showers on. This is in the shower
       stall at the, I guess, Lasch Building, and was actually sliding
       across the floor and we were, as I recall, possibly snapping
       a towel and horseplay.

     Evaluating the parsed references within the context of [Attorney]
     Amendola’s recitation and [Prosecutor] McGettigan’s broader
     response, therefore, it is fanciful to imagine that the jury
     interpreted them as references to [Appellant’s] election to remain
     silent.




                                   - 19 -
J-A19029-18


     A closer question arises with respect to [Prosecutor] McGettigan’s
     first alleged reference to the [Appellant’s] Fifth Amendment right,
     though.

     Introducing his analysis of the Costas interview, [Prosecutor]
     McGettigan began by noting [Appellant]’s decision to speak out on
     Costas’ show and reflecting on his damaging response to the
     question of whether he was sexually attracted to young boys. He
     proceeded to remind the jury of [Attorney] Amendola’s
     explanation: that [Appellant] tended to repeat questions before
     answering them, and responded, “I wouldn’t know. I only heard
     him on TV. Only heard him on TV.”

     While that language is reasonably susceptible to the interpretation
     [Appellant] proposes, i.e., that it is an impermissible reference to
     his post-arrest silence, it is equally susceptible to a far more
     innocent interpretation: that [Prosecutor] McGettigan could not
     use the one TV interview [Appellant] had given as a legitimate tool
     to assess the accuracy of [Attorney] Amendola’s explanation.

     The [PCRA c]ourt cannot say, of course, how each juror actually
     interpreted the prosecutor’s comments. It can say, however, that
     they did not have the unavoidable effect of prejudicing the jury.
     [The trial court] foreclosed that possibility with a timely and
     reiterative cautionary instruction delivered immediately before the
     jury retired to deliberate.        [A]s the foregoing discussion
     demonstrates, [Appellant] cannot prove a reasonable probability
     that the Superior Court would have deemed [Prosecutor]
     McGettigan’s allegedly improper comments to be grounds for a
     new trial had trial counsel properly preserved the issue for
     appellate review.

PCRA Ct. Op., 10/18/17, at 52-57.

     Based on our review, we conclude that the PCRA court’s findings of fact

are supported by the record and its conclusions of law were proper. Although

Prosecutor McGettigan referenced Appellant’s silence in his closing argument,

those remarks were fair responses to Attorney Amendola’s closing arguments

about Appellant’s interview with Costas. See Cox, 983 A.2d at 688; Trivigno,

750 A.2d at 248-49.

                                    - 20 -
J-A19029-18



     Moreover, as noted by the PCRA court, the trial court repeatedly

instructed the jury with regard to the respective evidentiary burdens of both

the prosecution and the defense.       Therefore, the PCRA court properly

concluded that even if Attorney Rominger moved for a mistrial, there was no

reasonable possibility that the trial court would have granted a new trial, or

that the outcome of the direct appeal would have been different.         See

Daniels, 963 A.2d at 419. Thus, Appellant’s argument merits no relief.

        3.    Whether the [PCRA] court erred in finding
              counsel [was] effective in failing to call [A.M.] to
              the stand or using [A.M]’s prior exculpatory
              statements that [Appellant] did not molest him as
              substantive and/or impeachment evidence[.]

     Appellant also argues that he was entitled to relief based on trial

counsel’s failure to introduce exculpatory out-of-court statements by A.M.

Appellant’s Brief at 198.   By way of further background, the PCRA court

explained:

     When [Appellant] first read the grand jury presentment,
     [Appellant] named [A.M.] as the person eventually identified as
     Victim #2. A few days later, [A.M.] echoed [Appellant’s] belief
     and told [Attorney] Amendola that nothing inappropriate had
     occurred in the shower on the date alleged.         He likewise
     exonerated [Appellant] during an interview with Corporal Joseph
     Leiter in September of 2011. It was not long, however, before the
     young man was telling a completely different story.

     Within a week or two of their meeting, [Attorney] Amendola
     learned that [A.M.] had secured private counsel and was claiming
     to have been sexually abused by [Appellant] on multiple
     occasions. 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 [Appellant].


                                    - 21 -
J-A19029-18



PCRA Ct. Op., 10/18/17, at 28.

      At the PCRA hearing, former Deputy Attorney General Jonelle Harter

Eshbach (Eshbach) testified that she drafted the grand jury presentment,

including McQueary’s description of the incident between Appellant and Victim

2 as follows:

      As a graduate assistant, Michael McQueary put the sneakers in his
      locker, he looked into the shower. He saw a naked boy, Victim 2,
      whose age he estimated to be 10-years-old with his hands up
      against the wall being subjected to anal intercourse by a naked
      Appellant. The graduate assistant was shocked but noticed that
      both Victim 2 and [Appellant] saw him. The graduate assistant
      left immediately, distraught.

PCRA Hr’g, 8/23/16, at 4. When asked whether she considered A.M. to be

Victim 2, she stated that although A.M. self-identified as Victim 2, Ms. Eshbach

never identified him as such. Id.

      Prosecutor McGettigan also testified that he did not believe A.M. was

Victim 2:

      First of all, [A.M.], I believe, was born in 1987. And that would—
      the young boy described by Michael McQueary was 10-years-old.
      At the time of the incident, [A.M.] would have been at least 14.
      [A.M.], subsequently, was unable to describe the location in which
      the attack occurred. He drew a diagram which did not match.
      [A.M.], on the first interview, denied any untoward contact with
      [Appellant] over there. He denied it in an interview with state
      police.    He subsequently, as I understand now, arrived at
      [Attorney] Amendola’s office and again denied untoward contact
      with [Appellant]. And he only—frankly, I never spoke with him.

      The only information I had that alleged that he was, in fact, a
      victim of [Appellant], more specifically Victim Number 2, came
      from [A.M.’s attorney] Mr. Shubin, who refused to allow us to
      contact him and confirm whatever his client had to say until after
      Mike McQueary testified. And I believe at that hearing, that one

                                     - 22 -
J-A19029-18


      of Mr. Shubin’s associates was present to listen to the details of
      Mike McQueary’s observations, after which Mr. Shubin attempted
      to force [A.M.] on us because he now had, as some would say, an
      opportunity to conform the testimony to that of Mr. McQueary. So
      there are many reasons why [A.M.] was not, to me in my mind,
      then or now Victim Number 2. At any time.

Id. at 59.

      Additionally, Prosecutor Fina testified that A.M. was unusable as a

witness based on the various inconsistencies in A.M.’s accounts and also that

“things he had said during the interviews were frankly not accurate.” PCRA

Hr’g, 8/23/16, at 35. Anthony Sassano, former chief investigator for the Office

of the Attorney General (OAG), also testified regarding A.M. He stated that

he agreed with the prosecution that A.M. did not testify credibly about his

identity as Victim 2. Id. at 114.

      Appellant argues that Attorney Amendola was ineffective for failing to

introduce A.M.’s exculpatory statements, which would have contradicted

McQueary’s testimony regarding Victim 2.          Appellant’s Brief at 199.

Specifically, Appellant refers to the following: (1) A.M.’s November 9, 2011

statement to Curtis Everhart, an investigator for the defense, in which A.M.

claimed that he was Victim 2, but that McQueary’s description of the shower

incident was a lie and that Appellant never abused him; see PCRA Appx. Vol.

2, at 433; (2) A.M.’s September 20, 2011 interview with state police, in which

A.M. told Corporal Joseph A. Leiter and Trooper James P. Ellis that Appellant

never did anything that was inappropriate or made him feel uncomfortable;

see PCRA Hr’g, 8/22/16, Ex. 8; and (3) A.M.’s statement to Postal Inspector


                                    - 23 -
J-A19029-18



Corricelli on February 28, 2012, where A.M. did not mention any inappropriate

contact by Appellant; see PCRA Hr’g, 8/22/16, Ex. 1. Appellant’s Brief at 198-

200.

       As to the admissibility of A.M.’s statements, Appellant argues that A.M.’s

“statements denying being abused by [Appellant were] statements against his

pecuniary interest and [we]re admissible under Pa.R.E. 804(b)(3), where

[A.M.] retained [an attorney] to file a civil action against Penn State on his

behalf.” Id. at 202. Appellant further contends that the statements were

admissible to impeach McQueary’s testimony. Id.

       As to Attorney’s Amendola’s explanation for failing to introduce A.M.’s

statement, Appellant claims that Attorney Amendola erroneously believed that

if he introduced A.M.’s exculpatory statement, the Commonwealth could offer

A.M.’s other statement to law enforcement or call A.M. as a witness. Id. at

202-03. Appellant argues that the Commonwealth could not have introduced

any inconsistent statements by A.M. to law enforcement without violating

Appellant’s right to confront witness or giving A.M. an opportunity to explain

the inconsistency. Id. at 204. Therefore, Appellant concludes that Attorney

Amendola had no reasonable basis for failing to admit A.M.’s exculpatory

statements at trial. Id.

       As to prejudice, Appellant contends A.M.’s statements would have called

into question McQueary’s trial testimony that he saw Appellant assaulting

Victim 2.    Id.   Additionally, Appellant argues that admission of A.M.’s

statements “would have led to a reasonable probability that the outcome of

                                     - 24 -
J-A19029-18



the trial would have been different, especially where a significant portion of

the Commonwealth’s case rested on allegations regarding shower incidents.”

Id. at 206.

      Alternatively, Appellant argues that if A.M. were available at trial, then

Attorney Amendola was ineffective for failing to present him as a witness. Id.

at 206.   He asserts that the Commonwealth would have been limited to

introducing A.M.’s inconsistent statements to impeach him on the basis that

he was lying for monetary gain. Id. This, he concludes, “would have aided

trial counsel’s defense relative to the other accusers.” Id.

      The Commonwealth first notes that the PCRA court concluded that A.M.

was not unavailable, and therefore, his testimony could have not been

admitted under Rule 804(b)(3). See Commonwealth’s Brief at 145. However,

the Commonwealth asserts that even if A.M. were unavailable, “[t]he

trustworthiness of the statement would have had to be established to the

satisfaction of the court, which would have been a challenge.”              Id.

Additionally, the Commonwealth argues that A.M.’s exculpatory statements

“would only have been admitted provided that they were supported by

sufficient assurance of their reliability.” Id. Specifically, “the defense would

have been countering McQueary’s live in-person testimony with the out-of-

court statements of a young man being introduced for the limited purpose that

they were made against his interest.” Id. at 146.

      “Hearsay is an out-of-court statement offered for the truth of the matter

asserted. Hearsay generally is inadmissible unless it falls within one of the

                                     - 25 -
J-A19029-18



exceptions to the hearsay rule delineated in the Pennsylvania Rules of

Evidence.” Commonwealth v. McGriff, 160 A.3d 863, 873 n.6 (Pa. Super.

2017) (citations omitted), appeal denied, 176 A.3d 853 (Pa. 2017).           The

version of Rule 804 in effect at the time of trial provided, in relevant part:

      (a) Definition of unavailability. ‘Unavailability as a witness’
      includes situations in which the declarant:

            (1) is exempted by ruling of the court on the ground of
            privilege from testifying concerning the subject matter of
            the declarant’s statement; or

            (2) persists in refusing to testify concerning the subject
            matter of the declarant’s statement despite an order of the
            court to do so; or

            (3) testifies to a lack of memory of the subject matter of
            the declarant’s statement; or

            (4) is unable to be present or to testify at the hearing
            because of death or then existing physical or mental illness
            or infirmity; or

            (5) is absent from the hearing and the proponent of a
            statement has been unable to procure the declarant’s
            attendance (or in the case of a hearsay exception under
            subdivision (b)(2), (3), or (4), the declarant’s attendance or
            testimony) by process or other reasonable means.

      A declarant is not unavailable as a witness if exemption, refusal,
      claim of lack of memory, inability, or absence is due to the
      procurement or wrongdoing of the proponent of a statement for
      the purpose of preventing the witness from attending or testifying.

      (b) Hearsay Exceptions. The following are not excluded by the
      rule against hearsay if the declarant is unavailable as a witness:

                                     ***

         (3) Statement Against Interest. A statement that:

            (A)   a reasonable person in the declarant’s position
                  would have made only if the person believed it to

                                     - 26 -
J-A19029-18


                 be true because, when made, it was so contrary to
                 the declarant’s proprietary or pecuniary interest or
                 had so great a tendency to invalidate the
                 declarant’s claim against someone else or to
                 expose the declarant to civil or criminal liability;
                 and

           (B)   is supported by corroborating circumstances that
                 clearly indicate its trustworthiness, if it is offered in
                 a criminal case as one that tends to expose the
                 declarant to criminal liability.

Pa.R.E. 804(a), (b)(3) (subsequently amended 2013).

     The PCRA court initially noted that

     The problem for [Appellant] is that the prosecution team never
     believed that [A.M.] 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 Ct. Op., 10/18/17, at 29.

     Additionally, the PCRA court concluded that even if Attorney Amendola

sought to admit A.M.’s statements at trial, his proffer would have been

overruled, as

     [Rule 804(b)(3)] only applies when the declarant is unavailable,
     however, and there is no evidence indicating that [A.M.] 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, and that he in fact participated in at least three interviews
     between then and April of that year. The only references Agent
     Sassano and [Prosecutors] McGettigan and Fina made to [A.M.]
     being unavailable, in fact, related to their inability to locate him in
     2011. Consequently . . . his allegation that the attorney was
     ineffective for not properly utilizing [the Rules of Evidence] to
     introduce [A.M]’s exculpatory statements [is] meritless.


                                     - 27 -
J-A19029-18



Id. Finally, the PCRA court found that

       Attorney Amendola was not ineffective for failing to call [A.M.] 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 [Attorney] Amendola thought
       it best to avoid that risk. 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.” That was a legitimate fear,
       and [Attorney] 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
       [Appellant] in its deliberations.

Id.

       Based on our review, we agree with the PCRA court’s conclusions, which

are supported by the record.          With respect to calling [A.M.] as a witness,

Attorney Amendola testified that he had the opportunity to call [A.M.], but did

not do so because he would be “useless” as a witness. Therefore, Appellant

failed to establish that A.M. was unavailable, which was necessary to admit

A.M.’s exculpatory statements under Rule 804(b)(3).

       Even if A.M. were unavailable, Appellant failed to prove that Attorney

Amendola lacked a reasonable basis for his decision not to admit A.M.’s

exculpatory statement at trial.11 See Commonwealth v. Lesko, 15 A.3d
____________________________________________


11 Appellant incorrectly asserts that Attorney Amendola did not admit A.M.’s
exculpatory statements because he believed that doing so would allow the
Commonwealth to call A.M. as a witness or introduce A.M.’s other statements
to impeach him. However, the testimony cited by Appellant is in reference to
Attorney Amendola’s decision not to call A.M. as a witness at trial. See PCRA



                                          - 28 -
J-A19029-18



345, 401 (Pa. 2011) (holding that where a PCRA petitioner failed to ask trial

counsel about an omission when provided with the opportunity to do so at a

PCRA hearing, the petitioner failed to demonstrate the reasonable basis prong

of ineffectiveness). Specifically, Attorney Amendola believed that calling A.M.

and then impeaching him with out-of-court statements would “cast more

concern and confusion on the whole issue than it did with him not even being

in court.” PCRA Hr’g, 3/24/17, at 120.

       Lastly, under these circumstances, we agree with the PCRA court that it

was reasonable for Attorney Amendola not to call A.M. as a witness. As the

PCRA court also noted, the Commonwealth maintained that A.M. was not

Victim 2. Further, even though A.M. previously stated that he was Victim 2

and that the specific assault observed by McQueary did not occur, A.M. gave

subsequent statements indicating that he was abused by Appellant. In his

subsequent statements, A.M. indicated that McQueary observed the abuse on

one occasion, and that Appellant abused him on numerous other occasions.

       Accordingly, Appellant’s claims with respect to A.M. fail. See Daniels,

963 A.2d at 419.

          4.   Did the [PCRA] court err in determining counsel
               [was] effective in failing to present the grand jury
               testimony of Tim Curley, Gary Schultz and
               Graham Spanier?
____________________________________________


Hr’g, 3/24/17, at 120 (when asked whether A.M.’s initial statements would
have proved favorable to the defense if A.M. were cross-examined or treated
as a hostile witness, Attorney Amendola testified that “it would have, I think,
cast more concern and confusion on the whole issue than it did with him not
even being in court”).

                                          - 29 -
J-A19029-18



       Appellant also claims that counsel was ineffective for failing to present

grand jury testimony from Tim Curley, Gary Schultz, and Graham Spanier to

impeach McQueary’s testimony regarding Victim 2. Appellant’s Brief at 161.

       By way of further background to this claim, after seeing Appellant and

Victim 2 in the shower of the Lasch Building, McQueary spoke with his father

and a family friend, Dr. Jonathan Dranov, and then reported the incident to

then-head coach Joe Paterno.       N.T., 6/12/12, at 208.     One week later,

McQueary was called to meet with athletic director Timothy Curley and

university vice president Gary Schultz.       Id.   During the fifteen-minute

meeting, McQueary relayed to both men what he observed between Appellant

and Victim 2 in the shower. Id. Approximately two weeks after his meeting

with Curley and Schultz, McQueary received a phone call from Curley. Id. at

210.    According to McQueary, Curley stated “that they looked into what

[McQueary] had said” and also contacted The Second Mile, Appellant’s charity

organization.   Id.   After that phone call, McQueary did not hear anything

further from Curley or Schultz about their response to his report, but

continued to see Appellant at Penn State on a regular basis. Id. at 211.

       Attorney Rominger filed a motion seeking to introduce the grand jury

testimony of Curley, Schultz, and university president Graham Spanier. See

Mot. in Limine, 6/11/17, at 1-3. Appellant argued that all three witnesses

were unavailable and that their statements were admissible under Pa.R.E.

804(b)(3), relating to out-of-court statements made against a declarant’s

pecuniary interest. The PCRA court noted:

                                     - 30 -
J-A19029-18


       During oral arguments the following week, [Attorney] Rominger,
       who by then had read the relevant grand jury transcripts,
       narrowed the scope of his motion to pages 3-8 of Curley’s
       testimony. Its purpose, he averred, was to impeach McQueary by
       demonstrating that [McQueary]’s report to Curley was more
       ambivalent than he had led the jury to believe. He acknowledged,
       though, that the evidence could turn out merely to be cumulative
       if [Dr.] Jonathan Dranov confirmed that the nature of the conduct
       McQueary described to them was equivocal, which he did. [The
       trial court] later denied the motion[.]

PCRA Ct. Op., 10/18/17, at 37.

       Instantly, Appellant contends that the PCRA court erred in rejecting his

claim that trial counsel should have sought to admit the grand jury testimony

of Curley, Schultz, and Spanier under Rule 804(b)(1), relating to former

testimony by an unavailable witness. Appellant’s Brief at 161. He asserts

that “the grand jury testimony of these men could have cast serious doubt on

the credibility of McQueary and undermined the Commonwealth’s case that

[Appellant] was a serial shower rapist.” Id. at 163.

       Appellant submits that Attorney Rominger had no reasonable basis for

failing to admit the grand jury testimony, and that counsel’s decision “was

based on the incorrect assumption that the Commonwealth could impeach

these witnesses with charges that had not resulted in convictions.” Id. at

164.

       With respect to prejudice, Appellant argues that the proffered grand jury

testimony would have “damaged McQueary’s assertion that he believed what

he saw [between Victim 2 and Appellant] was a sexual assault.” Appellant’s

Brief at 167. Specifically, he claims that the grand jury testimony is “entirely


                                     - 31 -
J-A19029-18



inconsistent with McQueary’s belated assertion that he unquestionably

informed these men of witnessing what he believed was a sexual assault.” Id.

at 167. Appellant concludes that “[c]onsidered in conjunction with the issue

of trial counsel’s failure to present A.M.’s exculpatory statements, as

statements against interest, [Appellant] suffered prejudice.” Id. at 168.

      The Commonwealth counters that Appellant does not reference the

exact testimony that should have been introduced, and asserts that Appellant

has failed to demonstrate how the introduction of that testimony would have

impacted the outcome of trial.       Commonwealth’s Brief at 119.           The

Commonwealth asserts that “[t]he best [Appellant] can offer is [Attorney]

Amendola’s testimony from the PCRA evidentiary proceeding that introduction

of the grand jury testimony ‘would have been very helpful’” which “falls short

of his burden.” Id. at 128. The Commonwealth also argues that Appellant

did not establish that Spanier was unavailable, as he had no pending criminal

charges at the time of the trial. Id. at 123. The Commonwealth concludes

that counsel successfully executed his strategy to undermine McQueary’s

credibility on cross-examination, which resulted in a not guilty verdict for

involuntary deviate sexual intercourse (IDSI), the most serious charge against

Appellant with regard to Victim 2. Id. at 119.

      Based on our review of the record, we discern no basis to conclude that

Appellant demonstrated prejudice.     First, Attorney Amendola extensively

cross-examined McQueary regarding what he saw with respect to Victim 2.

Based on this strategy, defense counsel successfully procured a not guilty

                                    - 32 -
J-A19029-18



verdict with respect to the IDSI charge. Second, at trial, Appellant called Dr.

Dranov, who testified that on the evening of the incident, McQueary did not

describe seeing a particular sex act, but rather “implied that it had gone on

with what he talked about [regarding] sexual sounds.” N.T., 6/20/12, at 13.

This testimony establishes the same theory as the one defense counsel sought

to prove through Curley’s grand jury testimony, in that McQueary’s initial

account of the incident was more ambivalent than what he eventually

described at trial.12     Therefore, any further effort to impeach McQueary’s

testimony on that basis would have been cumulative. In light of the foregoing,

we conclude that Appellant has failed to demonstrate prejudice related to

counsel’s failure to move for admission of the grand jury testimony under Rule

804(b)(1). See Commonwealth v. Tharp, 101 A.3d 736, 758 (Pa. 2014)

(stating that “testimony was not necessary to avoid prejudice to [the

a]ppellant because [the] proffered testimony was cumulative of evidence

already presented by the defense”).            Accordingly, his claim fails.   See

Daniels, 963 A.2d at 419.

          5.   Whether the [PCRA] court erred in concluding
               that after-discovered evidence of [A.F.]’s, D.S.’,
               and Matt Sandusky’s recollection of the alleged
               crimes was based on receiving therapy, would not
               have, if presented at trial, led to a reasonable

____________________________________________


12Appellant notes that “McQueary’s statements to [Dr. Dranov] were almost
certainly the same as those relayed to Curley, Schultz, and Joe Paterno.”
Appellant’s Brief at 163. However, Appellant does not acknowledge that the
cumulative nature of the grand jury testimony is fatal to his assertion of
prejudice.

                                          - 33 -
J-A19029-18


               probability that the outcome of the trial would
               have been different[.]

       In his fifth claim, Appellant argues that the PCRA court erred in rejecting

his claim that after-discovered evidence suggested that some of the

allegations against him were recovered through repressed memory therapy.

Appellant’s Brief at 112. In support, Appellant first notes that before trial,

A.F. underwent therapy with Dr. Michael Gillum.          After trial, Dr. Gillum

published a book “Silent No More,” in which Dr. Gillum, according to Appellant,

revealed that he used suggestive questioning to help A.F. recover memories

of abuse. Second, Appellant emphasizes that, after trial, D.S. admitted that

his therapists suggested that he had repressed memories. Third, Appellant

refers to the post-trial statements made by his son, Matt Sandusky,13 that he

first remembered Appellant abusing him because of repressed memory

therapy. Id. at 112-114. Appellant emphasizes a pattern that individuals

would not acknowledge Appellant’s abuse until they entered treatment.

Additionally, Appellant obtained an expert, Dr. Elizabeth Loftus, who opined

that several victims, including D.S., A.F., and B.H., underwent repressed

memory therapy prior to trial.




____________________________________________


13As discussed below, Matt Sandusky testified in support of Appellant at a
grand jury proceeding and intended to testify on Appellant’s behalf at trial.
However, during trial, Matt, reported to the Commonwealth that Appellant
abused him.

                                          - 34 -
J-A19029-18



     At the PCRA hearing, D.S., A.F., and B.H., testified, as did Dr. Gillum,

A.F.’s therapist, and Dr. Loftus, Appellant’s expert witness. The PCRA court

summarized its findings as follows:

     During his direct testimony, [Dr.] Gillum . . . plainly and credibly
     stated, “I don’t deal with repressed memory [and] I don’t work
     with anyone who claims to have repressed memories or anything
     along those lines.” He further articulated his negative assessment
     of repressed memory therapy and why he did not engage in it.
     While [D.S.] acknowledged that he and his therapist had
     discussed methods of unearthing repressed memories, . . . he
     stated definitively that he had not undergone that type of therapy
     prior to [Appellant’s] trial.

     Dr. Loftus had a different opinion based on “impressions” from
     [Dr.] Gillum’s book, statements [D.S.] made two years after the
     trial, and the fact that the victims whose excerpted trial testimony
     she reviewed did not give consistent stories to the police, the
     grand jury, and the trial jury. Having been rendered after an
     uncritical review of an absurdly incomplete record carefully
     dissected to include only pieces of information tending to support
     [Appellant’s] repressed memory theory, however, that opinion
     was entirely ineffective to rebut Gillum’s and [D.S.]’s definitive
     denials.

PCRA Ct. Op., 10/18/17, at 38-39.

     Despite the PCRA court’s findings, Appellant alleges that there is after-

discovered evidence suggesting that A.F., D.S., and Matt Sandusky underwent

repressed memory therapy. Appellant’s Brief at 109. He asserts that “had

this evidence been revealed, trial counsel could have presented expert

testimony on repressed memory/false memories or filed a motion in limine to

preclude testimony based on recovered memories and/or obtained therapy

records to demonstrate the unreliability of memories enhanced by therapy and

psychoanalysis.” Id. at 116. Appellant concludes that “those who undergo

                                      - 35 -
J-A19029-18



therapy are not actually lying, they are relaying false memories,” and

therefore, “the after-discovered evidence herein is not mere impeachment

evidence as there is a distinction between credibility and reliability.” Id.

       The Commonwealth counters that, with respect to Dr. Gillum and D.S.,

Appellant has failed to meet the third prong of the after-discovered evidence

test, which requires that the evidence in question not be used solely to

impeach credibility.14      Commonwealth’s Brief at 89.    The Commonwealth

asserts that although Appellant “attempts to circumvent this barrier by

pointing out that those who undergo repressed memory therapy are not lying”

but are “simply relating false memories,” there is no evidence that the

witnesses underwent repressed memory therapy prior to trial. Id.

       To establish eligibility on the basis of after-discovered evidence, a

petitioner must prove that (1) the evidence has been discovered after trial

and it could not have been obtained at or prior to trial through reasonable

diligence; (2) the evidence is not cumulative; (3) it is not being used solely to

impeach credibility; and (4) it would likely compel a different verdict if a new

trial were granted. See Commonwealth v. Cox, 146 A.3d 221, 227 (Pa.

2016). In determining whether the evidence would compel a different verdict,

“a court should consider the integrity of the alleged after-discovered evidence,

the motive of those offering the evidence, and the overall strength of the



____________________________________________


14The Commonwealth declined to address Appellant’s claim regarding Matt
Sandusky, as he did not testify at trial.

                                          - 36 -
J-A19029-18



evidence supporting the conviction.” Commonwealth v. Padillas, 997 A.2d

356, 365 (Pa. Super. 2010) (citation omitted).

        Instantly, the PCRA court concluded that Dr. Gillum testified credibly

when he unequivocally denied using repressed memory therapy on his

patients, which included A.F. The court also found that D.S. testified credibly

in stating that he did not undergo repressed memory therapy prior to trial.

The PCRA court further found that Dr. Loftus’ opinion on Dr. Gillum’s book and

her conclusion that D.S. underwent repressed memory therapy was

unreliable, and was based on an incomplete version of the record.

        Given the PCRA court’s findings, which are supported by the record,

Appellant cannot establish that the proffered evidence would compel a

different verdict. See Padillas, 997 A.2d at 365; see also Mitchell, 105

A.3d at 1265.

        Moreover, despite Appellant’s attempts to establish otherwise, the PCRA

court’s conclusion that the victims did not undergo repressed memory therapy

prior to trial is supported by the record. Therefore, Appellant cannot establish

that the evidence would be used for a purpose other than impeachment. See

Commonwealth v. Weis, 611 A.2d 1218, 1229 (Pa. Super. 1992) (stating

that “[w]henever a party offers a witness to provide evidence that contradicts

other     evidence   previously   given   by   another   witness,   it   constitutes

impeachment”). Accordingly, Appellant’s claim fails. See Daniels, 963 A.2d

at 419.




                                      - 37 -
J-A19029-18



       With respect to Matt Sandusky, Appellant references two interviews that

were purportedly available online, and claims that they demonstrate that Matt

Sandusky remembered abuse after he underwent repressed memory

therapy.15 See Appellant’s Brief at 114. However, Matt Sandusky did not

testify at trial, nor were charges filed relating to his allegations. Therefore,

even if Matt Sandusky did undergo repressed memory therapy, that fact would

not have compelled a different verdict in the present case.        Accordingly,

Appellant’s claim fails. See Daniels, 963 A.2d at 419.

          6.   Did the [PCRA] court err in finding no actual
               prejudice where the Commonwealth repeatedly
               violated Brady v. Maryland, 383 U.S. 83 (1963),
               by failing to disclose material impeachment
               evidence and, in the alternative, not finding trial
               counsel ineffective in not raising the Brady
               violation?

       Appellant argues that the PCRA court erred in concluding that the

Commonwealth’s alleged Brady violations did not merit relief.       Appellant’s

Brief at 60. Appellant raises two distinct claims with respect to alleged Brady

violations by the Commonwealth.

       First, Appellant claims that the Commonwealth withheld impeachment

evidence in failing to disclose that some of the victims added new details about

____________________________________________


15Because neither interview was made part of the certified record, we cannot
consider their contents on appeal.          Moreover, based on Appellant’s
characterization of the interviews in his brief, it appears that Matt Sandusky
stated that he initially did not remember the abuse, but the memories came
back to him. See Appellant’s Brief at 114. There is no indication that Matt
Sandusky recalled those memories as a result of repressed memory therapy.


                                          - 38 -
J-A19029-18



their abuse while interviewing with prosecutors prior to trial.          Id. at 61.

Specifically, Appellant states that D.S. “testified for the first time at trial that

[Appellant] would give him bear hugs in the shower, kissed him, and touched

him skin to skin. D.S. told [Prosecutor] McGettigan of these changes several

months      before   trial,   but    McGettigan   never   disclosed   this   material

impeachment evidence.”         Id.    Additionally, Appellant asserts that another

victim, “J.S.[,] had not, prior to his trial testimony, told anyone other than . .

. McGettigan and his own attorneys, that [Appellant] allegedly kissed him on

the shoulder, or that [Appellant] had washed his butt.” Id. at 65. However,

“J.S. told McGettigan this information in January before the trial,” and the

Commonwealth did not disclose those statement to the defense. Id. Both

D.S. and J.S. testified at trial and their testimony related the more detailed

allegations of abuse that they reported to the Commonwealth shortly before

trial.

         In a related claim, Appellant asserts that the Commonwealth violated

Brady by failing to disclose records showing that several of the victims had

undergone repressed memory therapy.               Id. at 61.   Although Appellant

acknowledges that the Commonwealth has repeatedly denied the existence of

such records, he argues that “the trial testimony belies that claim,” in that

“several accusers had been in therapy and came to believe they remembered

being abused, when they had no such memories before therapy or the

suggestive police interviews.” Id. at 62. Appellant claims that had counsel

been aware “that counseling and therapy was used to alter the accusers’

                                         - 39 -
J-A19029-18



stories and/or helped them to remember allegations of abuse,” counsel would

have filed a pre-trial motion and sought an expert witness in order to challenge

the witnesses’ competency. Id.

      To succeed on a Brady claim, a defendant must show that: “(1) the

evidence at issue was favorable to the accused, either because it is

exculpatory or because it impeaches; (2) the evidence was suppressed by the

prosecution, either willfully or inadvertently; and (3) prejudice ensued.”

Commonwealth v. Roney, 79 A.3d 595, 607 (Pa. 2013) (citation omitted).

The defendant carries the burden to “prove, by reference to the record, that

evidence was withheld or suppressed by the prosecution.”           Id. (citation

omitted).   Additionally, “[t]he evidence at issue must have been ‘material

evidence that deprived the defendant of a fair trial.’” Id. (citation omitted).

“Favorable evidence is material, and constitutional error results from its

suppression by the government, if there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the proceeding would

have been different.” Id. (citation omitted).

      The Pennsylvania Supreme Court has further explained that

      Brady does not require the disclosure of information “that is not
      exculpatory but might merely form the groundwork for possible
      arguments or defenses,” nor does Brady require the prosecution
      to disclose “every fruitless lead” considered during a criminal
      investigation. The duty to disclose is limited to information in the
      possession of the government bringing the prosecution, and the
      duty does extend to exculpatory evidence in the files of police
      agencies of the government bringing the prosecution. Brady is
      not violated when the appellant knew or, with reasonable



                                     - 40 -
J-A19029-18


     diligence, could have uncovered the evidence in question, or when
     the evidence was available to the defense from other sources.

Id. at 608 (citations and emphasis omitted).

              (a)    Impeachment Evidence

     In addressing this issue, the PCRA court concluded that there was “no

question that the victims’ late revelations were useful for impeachment

purposes or that the Commonwealth failed to disclose them.” PCRA Ct. Op.,

10/18/17, at 40.           However, the PCRA court found no relief was due,

explaining:

     Thoroughly familiar with the witnesses’ prior recorded statements
     and testimony, though, [Attorney] Amendola recognized the
     newest discrepancies and capitalized on them during cross-
     examination. In that regard, he was able to show the jurors not
     only that the victims continued to change their stories, but also
     that the prosecutor they were supposed to trust was being less
     than forthcoming. Thus, while the [c]ourt certainly does not
     condone the Commonwealth suppressing evidence under any
     circumstance, the fact is that [Attorney] Amendola’s preparedness
     turned the Commonwealth’s dereliction into a defensive
     advantage.

     Because proof of a Brady violation requires proof of prejudice,
     therefore, the defendant has also failed to establish that this
     second layer of his Brady claim has merit. What the record does
     establish, though, is that [Attorney] Amendola, because he was
     alert to the changes in the witnesses’ 19 accounts and exploited
     them accordingly, had no basis for filing a Brady motion either
     during the trial or afterward.

Id. at 39-40.

     At   the       PCRA    hearing,   when   asked   if   he   believed   that   the

Commonwealth’s failure to disclose disparate witness statements was a Brady

issue, Attorney Amendola stated:


                                        - 41 -
J-A19029-18


       I don’t know so much I thought of it in those terms as much as I
       thought it was great - - it was great impeachment testimony,
       which showed the jury the dramatic changes in these kids’ - -
       these young people’s stories coincidentally associated with hiring
       private counsels and looking for big dollars from agencies and
       institutions like Penn State. But I certainly did not raise a Brady
       issue and ask for a mistrial. I thought, quite honestly, the fact
       that we elicited that information on the stand was very good for
       [Appellant].

PCRA Hr’g, 3/23/17, at 92-94.

       The record supports the PCRA court’s conclusion that Appellant failed to

demonstrate that he suffered prejudice as a result of the Commonwealth’s

failure to disclose impeachment evidence prior to trial. Attorney Amendola

testified that the inconsistencies in the victims’ statements proved helpful for

the defense during cross-examination. Had the Commonwealth provided the

inconsistent statements to defense counsel prior to trial, it would not have led

to a different result.      Therefore, Appellant has failed to establish that he

suffered prejudice due to the Commonwealth’s failure to provide the

statements to the defense in advance.16 See Roney, 79 A.3d at 607.

              (b)    Repressed Memory Therapy

       Appellant maintains that the prosecution withheld evidence that several

of the victims underwent repressed memory therapy prior to trial.            See

____________________________________________


16 To the extent that Appellant argues that this evidence would have served
to bolster his claim that the victims underwent repressed memory therapy,
we disagree. The PCRA court concluded that there is no merit to Appellant’s
claim that the victims underwent repressed memory therapy; therefore, the
disclosure of inconsistent victim statements would not have served to prove
otherwise.


                                          - 42 -
J-A19029-18



Appellant’s Brief at 83. However, as discussed above, we find support in the

record for the PCRA court’s conclusions that the victims did not undergo

repressed memory therapy. Therefore, there was no basis for trial counsel to

pursue a Brady claim on this basis. See Daniels, 963 A.2d at 419.

         7.   Whether the [PCRA] court erred in concluding
              [trial] counsel was effective in failing to present
              expert testimony that called into question the
              theory of repressed memory and demonstrated
              the likelihood of false memories[.]

     Appellant next argues that trial counsel was ineffective for failing to call

an expert witness to testify on the subject of repressed memory. Appellant’s

Brief at 83. However, because Appellant has failed to establish error in the

PCRA court’s finding that the victims did not undergo repressed memory

therapy before trial, we agree that trial counsel had “no reason to involve an

expert, as his or her testimony would have been irrelevant.” PCRA Ct. Op.,

10/18/17, at 40-41.      Accordingly, Appellant has failed to demonstrate

arguable merit to this claim. See Daniels, 963 A.2d at 419.

         8.   Did the [PCRA] court err in determining counsel
              was effective in neglecting to file a motion in
              limine and seek a hearing to preclude the use at
              trial of the victims’ testimony that was gleaned by
              suggestive and improper police questioning?

     Appellant next claims that the PCRA court erred in concluding that

Attorney Amendola possessed a reasonable basis for not filing a motion in

limine challenging the competence of the victims. Appellant’s Brief at 130-

31. Appellant asserts that Attorney Amendola was not only aware that several

of the victims’ stories had evolved during their interviews with law

                                    - 43 -
J-A19029-18



enforcement, but he also believed that the police had employed suggestive

and improper interview techniques in speaking with the victims.             Id.

Therefore, Appellant contends that Attorney Amendola was ineffective for

failing to file a motion in limine to preclude victim statements that resulted

from improper police questioning. Id. at 125.

      Appellant also argues that Attorney Amendola could have presented an

expert “on suggestive questioning and its role with memory” and asked the

trial court to make an initial determination regarding the reliability of the

victims’ statements. Id. at 128. Alternatively, Appellant argues that Attorney

Amendola could have presented an expert to testify regarding memory at trial.

Id.   Appellant concludes that because part of Attorney Amendola’s trial

strategy was to expose these tactics used by police, counsel could have no

reasonable basis for failing to file a motion or seek an expert to testify about

the issue either in a pre-trial hearing or during trial. Id.

      The Commonwealth counters that Attorney Amendola employed a sound

strategy of attempting to impeach the credibility of the victims by exposing

the inconsistencies in their accounts. Commonwealth’s Brief at 89. Therefore,

the Commonwealth concludes that “seeking to preclude testimony or have a

witness explain the otherwise obvious points that counsel scored during cross-

examination was not necessary.” Id. at 90.

      By way of background, at trial, Attorney Amendola sought to

demonstrate that the police had employed suggestive tactics in questioning

the victims. To that end, he introduced a tape-recorded police interview with

                                      - 44 -
J-A19029-18



Victim 4, which he described as “a gift from heaven.” PCRA Hr’g, 5/25/17, at

109.

       At the PCRA hearing, Attorney Amendola explained that

       [t]he police and the Commonwealth had maintained throughout
       pretrial that these young men who were being interviewed were
       not coached, they simply were asked about [Appellant] and any
       situations that they may have had over the years with [Appellant],
       had they known, what they did, or contact, or so on, but they were
       never coached. We didn’t coach people. This tape . . . contained
       an interview with one of the chief investigators . . . and
       interestingly enough a civil attorney who was representing the
       young man at that point.

       And after about maybe 45 minutes . . . this young man was not
       saying anything bad happened with [Appellant]. He was saying,
       much like the other people, nothing ever happened, [Appellant]
       was like a father to me, [Appellant] was great, he would take me
       on trips, we’d go to football camps and so on. And they took a
       break. And I think the young man, I think in his late 20s at that
       point, then left to take a smoke break. He goes out with the one
       trooper and the other trooper then talks to the civil attorneys.

       Now what was interesting about the tape was the trooper says,
       we’re going to now turn off the tape at such and such a time. He
       thought he turned it off. But he didn't, the tape kept playing. And
       as the tape kept playing, even though they thought it was off, the
       civil attorney said to the trooper who was still in the room, how
       do we get this guy to say something happened? How did we get
       him to admit something happened? And the trooper in the room
       said at that point, I’ll tell him what I told all the other people that
       we’ve interviewed, that [Appellant has] done this to other people,
       that it’s okay for them to admit that [Appellant] did it . . . And
       then after he says that, the young man comes back with the other
       trooper. And the trooper in the room, with the lawyer, says we’re
       now going to turn the tape back on . . . and he proceeds to tell
       [Victim] 4 exactly what he said he was going to tell him, there are
       other people, don’t be ashamed, and so on and so forth. Clearly,
       . . . contrary to what we had been told through pretrial, no
       coaching, we just asked these people what happened.




                                       - 45 -
J-A19029-18



PCRA Hr’g, 5/25/17, at 110-112.

      As to his strategy, Attorney Amendola testified:

      I thought that was a home run at the time. We played the tape.
      And I called the civil attorney who was in court monitoring his
      client and he testified. And he hemmed and hawed but eventually
      yeah, that was my voice, had to admit it of course it was, and
      admitted that there was a fee agreement, which we also showed
      as a motive that it was very important for [Appellant] to be
      convicted. Because if he was convicted, it would be a lot easier
      for these people to get money from places like Penn State and The
      Second Mile. So all that came out at trial.

Id. at 113.

      Although Attorney Amendola had the tape of Victim 4’s statement before

trial, he did not procure an expert to testify about the effect of the suggestive

police tactics, “[b]ecause I thought [the interview tape] was dynamite

evidence that I wanted to use at trial and certainly didn’t want to tip off the

prosecution.” Id. at 115.

      Attorney Amendola further testified that although he believed that other

witnesses’ recollection may have been a product of suggestive questioning,

      [w]e also had information that was totally inconsistent at points
      with virtually all of these young people who were appearing as
      accusers. So our theory was to cross-examine them, point out
      the inconsistencies that developed through the course of several
      interviews and their grand jury testimony, for example, and cross-
      examine them on that.

Id. at 115.

      The PCRA court found Attorney Amendola’s testimony credible, and

concluded that



                                     - 46 -
J-A19029-18


      [w]hether any given victim tailored his story to mesh with what
      the police or other victims were saying was instead a matter to be
      explored during cross-examination, which is precisely what
      [Attorney] Amendola did. Accordingly, the attorney was not
      ineffective for failing to file a motion to disqualify the victims as
      witnesses on account of the allegedly improper police interviews.

PCRA Ct. Op., 10/18/17, at 41.

      We agree with the PCRA court’s conclusions. As indicated by the PCRA

court, evidence of suggestive police questioning is insufficient to support a

challenge to the competency of a witness.        See Pa.R.E. 601 (stating that

generally, “[e]very person is deemed competent as a witness” unless the court

finds that, because of a mental condition or immaturity, the witness “(1) is,

or was, at any relevant time, incapable of perceiving accurately; (2) is unable

to express himself or herself . . . ; (3) has an impaired memory; or (4) does

not sufficiently understand the duty to tell the truth”). At the time of trial, all

of the victims had reached the age of maturity, and thus it was proper for

Attorney Amendola to explore issues relating to the reliability of their

memories on cross-examination. See Commonwealth v. Judd, 897 A.2d

1224, 1229 (Pa. Super. 2006) (stating that, after a witness reaches the age

of fourteen, concerns about the witness’ susceptibility to falsely implanted

suggestions are “rendered totally irrelevant as a matter of law” because “any

issue with [the witness’] inability to correctly remember the events in question

is properly a question of credibility, and not of taint”).

      Accordingly, the record supports the PCRA court’s conclusion that

Attorney Amendola employed a reasonable strategy in using cross-


                                      - 47 -
J-A19029-18



examination to expose allegedly improper police tactics. Therefore, the PCRA

court correctly concluded that counsel was not ineffective on that basis.

Accordingly, no relief is due. See Stewart, 84 A.3d at 707; Daniels, 963

A.2d at 419.

        9.     Did the [PCRA] court err in holding counsel was
               effective for failing to introduce a recorded
               statement by James Calhoun in which he
               contradicted Ronald Petrosky’s testimony and
               Calhoun denied observing [Appellant] performing
               any sex acts with a boy in a shower?

     Appellant’s next argument focuses on trial counsel’s failure to introduce

an exculpatory out-of-court statement by James Calhoun. Appellant’s Brief at

145. As noted above, in the fall of 2000, Calhoun allegedly saw Appellant

abuse Victim 8 in the shower area of the school locker room. Calhoun did not

testify at trial. However, the PCRA court explained:

     On the third day of trial, Ronald Petrosky testified about James
     Calhoun’s statements regarding sexual contact he had witnessed
     between [Appellant] and Victim #8. According to Petrosky,
     Calhoun was cleaning in the Lasch building’s staff locker room
     when he saw a man performing fellatio on a boy in the shower. A
     few minutes before, Petrosky had himself seen two pairs of legs—
     one hairy and one skinny—in the shower and quickly exited the
     locker room until they left. As he waited in the hallway, he saw
     [Appellant] and a small boy emerge and watched the older man
     take the boy’s hand as they walked down the hall. No one else
     entered the locker room as Petrosky waited outside, and Calhoun
     soon confirmed to him that [Appellant] was the man he saw in the
     shower.

     After entertaining extensive arguments from counsel, Judge
     Cleland concluded that Calhoun’s statements qualified as “excited
     utterances” and that there was sufficient corroborating evidence




                                   - 48 -
J-A19029-18


       to ensure that any convictions pertaining to Victim #8 were not
       based solely on Calhoun’s statements.[17]

PCRA Ct. Op., 10/18/17, at 30-31.

       Petrosky thereafter testified at trial about his conversation with Calhoun.

       I could see that [Calhoun] was upset. His face was white. His
       hands was trembling. I thought it was a medical condition. I said,
       “Jim, what’s wrong?” And this is how he said it to me. He said,
       “Buck,”—that’s my nickname. He said. “Buck, I just witnessed
       something in there I’ll never forget the rest of my life.” I said,
       “What are you talking about, Jim[?]” He said that man that just
       left, he had this—the boy up against the shower wall licking on his
       privates. I said, “Are you sure that man who just left?” He said,
       “I’m sure.” I said, “You know who that is?” I said, “That’s
       [Appellant].” He didn’t know who he was but he knows what
       he seen that night.

N.T., 6/13/12, at 229 (emphasis added).

       Appellant’s present claim focuses on Calhoun’s tape-recorded interview

with the state police, which was taken on May 15, 2011, approximately eleven

years after the incident and one year before trial. During Calhoun’s interview,

the following relevant exchange occurred:

       Q:     Do you remember if that was [Appellant] that you saw?

       A:     No, I don’t believe it was.

       Q:     You don’t?

       A:     I don’t believe it was. I don’t think [Appellant] was the
              person. It wasn’t him. There’s no way. [Appellant] never
              did anything at all that I can see that he was, but, uh, it was
              ...


____________________________________________


17Appellant’s challenge to direct appeal counsel’s failure to challenge the trial
court’s evidentiary ruling is discussed below.

                                          - 49 -
J-A19029-18


     Q:    But you remember seeing this guy and this boy, huh?

     A:    Yeah.

PCRA Hr’g, 3/24/17, at 73.

     At the PCRA hearing, Attorney Amendola explained his decision not to

use Calhoun’s 2011 statement, in part, as follows:

     We were aware that apparently at that [2011] interview that
     [Calhoun] was saying that the person he saw wasn’t [Appellant].
     But this [statement] was made by a man whose doctor was saying
     that he was incompetent and he would slide in and out of
     consciousness and ability to know which end was up at any given
     time. Whereas, the evidence presented by the other janitor[,
     Petrosky,] the night that this incident allegedly occurred was very
     definitive. But we were aware of that interview, yes.

Id. at 70-71. However, Attorney Amendola also testified that he believed he

played a tape of James Calhoun’s 2011 statement at trial, and that he could

not recall whether he received or reviewed the tape before trial. Id. at 70,

77-79. Attorney Amendola stated that if he had reviewed and “thought it was

an issue,” he would have “raised it at some point.” Id. at 77-78.

     The PCRA court, in rejecting Appellant’s claim, noted:

     [i]n cross-examining Petrosky, [Attorney] Amendola focused
     primarily on the inconsistencies between his grand jury and trial
     testimony. [Amendola] also explored the fact that Petrosky had
     waited until approximately eleven years after witnessing the
     incident to mention it to authorities. [Amendola] did not introduce
     evidence of a [tape-recorded] interview Calhoun had given to a
     state trooper the year before wherein he denied that [Appellant]
     was the man he had seen, however, and [Appellant] contends that
     he was ineffective because of it. The record indicates otherwise.

     . . . [Attorney] Amendola learned at some point prior to trial that
     Calhoun was incompetent to testify due to dementia which had
     progressed to the point that Calhoun “would slide in and out of


                                   - 50 -
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      consciousness and ability to know which end was up at any given
      time.” Weighed against Petrosky’s testimony about what he had
      personally observed and what a lucid Calhoun had expressed to
      him years earlier, though, Amendola did not deem Calhoun’s
      subsequent contradiction to be useful impeachment evidence.
      That was not a post hoc assessment, but an informed and
      reasonable pre-trial decision.

PCRA Ct. Op., 10/18/17, at 31 (record citations omitted).

      Appellant argues that Calhoun’s statement during the 2011 interview

should have been admitted at trial, as it was “critical evidence” and was

“directly contradictory to what Petrosky testified.” Appellant’s Brief at 150-

51. Appellant contends that the record does not support the PCRA court’s

conclusion that Attorney Amendola provided a reasonable basis for his

decision not to use Calhoun’s 2011 statement at trial. Appellant notes that

Attorney Amendola testified that he was uncertain whether he reviewed a

transcript or tape of the interview before trial. Id. at 146. Appellant also

asserts that Attorney Amendola testified that he would have used Calhoun’s

2011 statements had he reviewed the interview. Id. at 146-47. Moreover,

Appellant asserts that the fact of Calhoun’s “compromised mental state” would

have gone to the weight of the evidence and “[i]n light of the exceptionally

meager evidence concerning alleged Victim 8, there is a reasonable probability

that the unidentified victim was not assaulted by [Appellant] had the

statement been provided.” Id. at 152.

      The Commonwealth counters that even if Calhoun’s 2011 statement had

been admitted at trial, “it would have done nothing to dispel the significant

fact that Calhoun had just witnessed a child being abused.” Commonwealth’s

                                    - 51 -
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Brief at 117. Moreover, the Commonwealth argues that “[e]ven if Calhoun

did not believe it was [Appellant] who had assaulted the child, the jury would

still have had to evaluate the recording against Petrosky’s credible testimony

that he saw two sets of legs in the shower and that [Appellant] emerged from

the locker room shortly thereafter with a young child.”          Id. at 117.

Additionally, the Commonwealth references Petrosky’s testimony regarding

his own observations of Appellant and Victim 8, in which he indicated that

“[b]oth of them had wet hair” and that “no one else entered the locker room

while he was standing in the hallway and no one exited except for [Appellant]

and Victim 8.” Id.

      Instantly, although there was conflicting evidence as to whether

Attorney Amendola reviewed the 2011 interview before trial, the PCRA court

resolved those conflicts against Appellant. The court’s finding that Attorney

Amendola made a reasoned determination about the value of the 2011

statement before trial is supported by the record and binding on this Court.

See Mitchell, 105 A.3d at 1265; Ousley, 21 A.3d at 124.

      Further, given Calhoun’s mental state, it was reasonable for Attorney

Amendola to focus on exposing the inconsistencies in Petrosky’s testimony on

cross-examination, rather than admit an out-of-court statement by an

arguably incompetent witness. Moreover, in both 2000 and in 2011, Calhoun

unequivocally stated that he witnessed sexual abuse between an older man

and a young boy. Calhoun was not familiar with Appellant at the time of the

incident. Accordingly, Calhoun’s 2011 statement indicating uncertainty as to

                                    - 52 -
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Appellant’s identity as the man in the shower was not wholly inconsistent with

his 2000 statement. Therefore, reading either of Calhoun’s statements, when

read in conjunction with Petrosky’s testimony identifying Appellant, would

have likely led to the same result at trial. See Stewart, 84 A.3d at 707.

Thus, Appellant has failed to demonstrate prejudice related to the failure to

admit Calhoun’s 2011 statement.

          10. Whether the court erred in determining that
              appellate counsel was effective in not arguing on
              appeal that Petrosky’s testimony, relative to
              Calhoun’s hearsay statement, was inadmissible
              as an excited utterance as there was no
              corroborating evidence that [Appellant] sexually
              abused the alleged victim and in concluding that
              trial counsel and direct appellate counsel were
              effective when they failed to appeal [Appellant]’s
              convictions relating to Victim 8 as lacking
              sufficient evidence[.]

     Appellant also claims he was entitled to relief on his assertion that

Attorney Gelman was ineffective for not challenging the admission of

Calhoun’s 2000 statement about Victim 8 on direct appeal. Appellant’s Brief

at 152.     Appellant claims that the Commonwealth failed to establish

independent corroboration that a startling event actually occurred—i.e., that

Calhoun observed an older male abusing Victim 8 in the shower—and

therefore, Calhoun’s statement should not have been admitted. Id. at 154

(suggesting that “[t]here is no evidence that [Appellant] performed oral sex

on an unidentified victim other than the hearsay statement”).       Appellant

claims that Attorney Gelman’s decision to forgo this meritorious claim was



                                    - 53 -
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unreasonable and resulted in the abandonment of a reasonable possibility that

Appellant would have been granted a new trial as to Victim 8. Id. at 155-56.

In support, Appellant cites to Commonwealth v. Barnes, 456 A.2d 1037

(Pa. Super. 1983).

     Additionally, Appellant argues that Attorney Amendola and Attorney

Gelman were both ineffective for failing to challenge the sufficiency of the

evidence for Appellant’s convictions relating to Victim 8, as they were based

solely on Calhoun’s statement. Id. at 152. Appellant argues that Calhoun’s

statement was an insufficient basis upon which to convict Appellant, and

therefore, counsel should have pursued the claim as grounds for relief. Id.

He further claims that, had counsel pursued a sufficiency challenge, it would

have affected several other convictions, and not just his conviction with

respect to Victim 8. Id. at 160.

     The Commonwealth counters that the relevant convictions were not

based solely on Calhoun’s statements, as Petrosky’s independent observations

provided sufficient corroboration.     Commonwealth’s Brief at 111.      The

Commonwealth further contends that even if the convictions were based solely

on hearsay, there was a sufficient basis to sustain the convictions under

Commonwealth v. Sanford, 580 A.2d 784 (Pa. Super. 1990). Finally, the

Commonwealth asserts that Appellant’s claim fails for lack of prejudice. The

Commonwealth notes that “even if [Appellant] would have prevailed on the

sufficiency of the evidence claim on direct appeal, vacating the convictions

related to Victim 8 would not have altered the overall sentencing scheme[,]”

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as “[t]he trial court specifically ordered that the sentences on counts 36

through 40 were to run concurrently with all of the other counts.” 18 Id. at

112.    The Commonwealth further contends that Petrosky’s observations

corroborated the existence that an exciting event occurred. Id. at 114.

       With respect to Appellant’s claim that Attorney Gelman was ineffective

for failing to raise this issue on appeal, PCRA court concluded:

       Once [Appellant] was convicted and sentenced relative to Victim
       #8, moreover, it was not ineffective for [Attorney Gelman] to
       forego challenging the rulings that allowed the jury to consider the
       charges. There was no meritorious Confrontation Clause issue to
       be raised, and whether or not Judge Cleland should have excluded
       Calhoun’s hearsay statements, counsel made a reasonable
       strategic decision not to challenge those convictions since
       [Appellant] would not have realized any benefit from a favorable
       Superior Court decision.

PCRA Ct. Op., 10/18/17, at 33.

       We note that at the PCRA hearing, Attorney Gelman testified regarding

this issue as follows:

       I recall specifically rejecting it as something that was not to be
       raised. And I rejected it because even if we won the issue and if
       the hearsay identification were to have been held to be invalid,
       and if we had won everything that there was to win about that
       claim and that incident, it would not have benefitted [Appellant]
       at all. One, because it was only one count of many and his
       sentence would have stood for the others. And two, the trial judge
       had run his sentence on that count, the Calhoun count,
       concurrently with other sentences. So one concurrent sentence
       would have fallen. It would not have made a difference to
____________________________________________


18 We note that Appellant suggests that the trial court imposed concurrent
sentences for the crimes committed against Victim 8, because the court
recognized that “the evidence was weak and the convictions might be
overturned.” Appellant’s Brief at 158.

                                          - 55 -
J-A19029-18


     [Appellant]’s total sentence. And it would have distracted the
     Court because it wasn’t [sic] an arresting [sic] issue. And it would
     have drawn their attention from my other issues, which could have
     benefitted [Appellant] tremendously for the sake of negating a
     sentence that was concurrent and did not involve giving
     [Appellant] any more or less time.

     This was—this issue was not touched on direct appeal. It would
     divert the attention of the judges from other more substantial
     issues which could benefit [Appellant]. Winning this issue would
     not have benefitted him at all, as the sentence was concurrent.
     And it was an interesting issue. And with limited time, I thought
     the Court would invest too much time in this issue because it was
     of interest.

PCRA Hr’g, 5/11/17, at 30, 36.

     Based on our review of the record, we discern no abuse of discretion in

the PCRA court’s conclusion that Attorney Gelman acted reasonably when

declining to pursue a challenge to Petrosky’s testimony regarding Calhoun’s

statement. We add that Attorney Gelman’s strategy on appeal focused on

obtaining a new trial for Appellant as to all victims by challenging the jury

instructions and the trial court’s denial of trial counsels’ motion for

continuance.   Under these circumstances, we cannot conclude that no

competent counsel would have omitted this challenge on appeal.              See

Stewart, 84 A.3d at 707.

     As to the sufficiency of the evidence, we discern no merit to Appellant’s

contention that this Court would have vacated Appellant’s convictions

regarding Victim 8. Indeed, in Barnes, this Court concluded that there was

sufficient evidence sustaining a conviction based solely on hearsay evidence.

See Barnes, 456 A.2d 1039; see also Commonwealth v. Weaver, 76 A.3d


                                    - 56 -
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562, 569 (Pa. Super. 2013) (noting “the law is clear that we are required to

consider all evidence that was actually received, without consideration as to

the admissibility of that evidence or whether the trial court’s evidentiary

rulings are correct” (citation omitted)).          Accordingly, we conclude that

Appellant’s claim that trial and direct appeal counsel were ineffective for failing

to challenge the sufficiency of the evidence lacks merit. See Daniels, 963

A.2d at 419.

          11. Did the [PCRA] court err in finding [Attorney]
              Amendola was effective in neglecting to
              adequately review discovery?

       Appellant also claims that counsel was ineffective for failing to

adequately review discovery. Appellant’s Brief at 194. Specifically, Appellant

argues that Attorney Amendola did not review (1) the transcript and recording

of the 2011 interview with Calhoun or (2) Matt Sandusky’s grand jury

testimony. Id. Appellant asserts that “had Amendola adequately reviewed

discovery[,] he could have played the Calhoun tape, calling into question the

hearsay testimony of Petrosky.” Id. at 198. He further claims he suffered

prejudice because, without reviewing Matt Sandusky’s grand jury testimony,

“Amendola could not adequately discuss [Appellant]’s decision not to testify

based on the Matt Sandusky issue.”19 Id. Appellant also asserts that Attorney

____________________________________________


19 Appellant’s issue regarding Attorney Amendola’s advice for Appellant not to
testify at trial based, in part, on matters relating to Matt Sandusky are
discussed below in greater detail. At this juncture, we note that Appellant
fails to establish that trial counsel was unaware that Matt Sandusky exculpated
Appellant when testifying before the grand jury.

                                          - 57 -
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Amendola was ineffective for testifying at the post-sentence motions hearing

that none of the documents he reviewed after trial would have changed his

trial strategy. Id.

      With respect to Calhoun’s statement, the PCRA court explained that

      [t]he proffered interview occurred on May 15, 2011, and
      Amendola learned at some point prior to trial that Calhoun was
      incompetent to testify due to dementia which had progressed to
      the point that Calhoun “would slide in and out of consciousness
      and ability to know which end was up at any given time.” Weighed
      against Petrosky’s testimony about what he had personally
      observed and what a lucid Calhoun had expressed to him years
      earlier, though, Amendola did not deem Calhoun’s subsequent
      contradiction to be useful impeachment evidence.

PCRA Ct. Op., 10/18/17, at 31.

      With respect to Attorney Amendola’s review of Matt Sandusky’s grand

jury testimony, the PCRA court concluded that

      [w]hether or not he had perused the transcript, Amendola knew
      what Matt Sandusky [] had told the grand jury. As he stated, “I
      knew the substance of [his testimony]. I certainly knew that he
      had defended his father at that proceeding.” That was only to be
      expected, because until mid-trial, Matt [Sandusky] was standing
      by his father. He was scheduled to be a defense witness, and he
      and Amendola had discussed his testimony. (“Matt Sandusky . .
      . had told us he would testify for his dad and testify as to fact
      situations ironically involving Brett Swisher Houtz . . . Matt
      Sandusky indicated to [the Commonwealth] that he was in fact
      present when certain things occurred with Mr. Houtz”). Those
      discussions, as the attorney’s answer plainly suggested, included
      what Matt Sandusky had relayed to the grand jury.

      When Matt [Sandusky] aligned himself with the Commonwealth,
      then, [Attorney] Amendola knew [Matt Sandusky] could be
      impeached with his grand jury testimony, and he and [Appellant]
      discussed the pros and cons of proceeding with their plan for
      [Appellant] to testify. That discussion included Matt [Sandusky]’s


                                    - 58 -
J-A19029-18


      impeachability, and specifically his impeachability via reference to
      his grand jury testimony.

Id. at 19-20.

      Regarding Attorney Amendola’s testimony at the post-sentence hearing,

the PCRA court explained:

      Testifying at [Attorney Amendola’s] post-sentence motions
      hearing, Amendola talked about the plethora of discovery
      materials he was receiving in the months leading up to trial and
      how it adversely affected his ability to adequately prepare for trial.
      During cross-examination, though, it became apparent that most
      of the last-minute materials he received were not pertinent. He
      continued nonetheless to advance the idea that the volume of
      discovery he was receiving in such a compressed period of time
      hobbled the defense, but admitted that he had reviewed
      everything post-trial and that much of it was irrelevant. He
      admitted, moreover, that none of the documents he reviewed
      would have altered his conduct at trial. The Superior Court
      subsequently utilized that admission as its basis for finding that
      Judge Cleland’s denial of the defendant’s motions for continuance
      did not result in prejudice.

Id. at 19 (citations omitted).

      Finally, the PCRA court determined that

      [m]ore broadly, the record reflects that [Attorney] Amendola had
      indeed reviewed with care the discovery materials most relevant
      to his trial strategy, including the victims’ many statements, and
      was well prepared to cross-examine each witness the
      Commonwealth presented. Conversely, the materials he was
      unable to scrutinize before trial consisted mostly of irrelevant
      documents not subject to discovery under Rule 573 of the
      Pennsylvania Rules of Criminal Procedure.

      Whether it considers Matt Sandusky’s [grand jury] testimony,
      Calhoun’s 2011 interview, or the record as a whole as it relates to
      discovery, therefore, the [c]ourt finds no merit to the proposition
      that Amendola failed to adequately review it.



                                     - 59 -
J-A19029-18



Id. at 20 (record citations omitted).

      Following our review, we conclude that the PCRA court’s findings are

supported by the record.     The PCRA court found that Attorney Amendola

testified credibly regarding his review of the discovery materials and

articulated a reasonable strategy for which materials to utilize at trial. See

Id. Accordingly, no relief is due. See Mitchell, 105 A.3d at 1265 (stating

that “[t]he PCRA court’s credibility determinations, when supported by the

record, are binding on this Court”); see also Daniels, 963 A.2d at 419.


         12. Whether the [PCRA] court erred in concluding
             counsel [was] effective in advising [Appellant]
             not to testify based on factually and legally
             erroneous advice that Matt Sandusky would be
             called in rebuttal and in not making a motion to
             preclude Matt Sandusky from testifying or
             [Appellant] being asked questions beyond the
             scope of direct examination regarding Matt
             Sandusky[.]

      Appellant next claims that Attorney Amendola was ineffective for

advising him not to testify at trial based on the belief that Matt Sandusky,

Appellant’s son, would be called as a rebuttal witness. Appellant’s Brief at 59.

      By way of background, Matt Sandusky previously testified before a

grand jury in support of Appellant. Attorney Amendola originally planned to

call both Matt Sandusky and Appellant as witnesses for the defense at trial.

See N.T., 6/20/12, at 65-66.       However, shortly before the close of the

Commonwealth’s case-in-chief, Matt Sandusky approached the prosecution




                                     - 60 -
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and reported that he was a victim of Appellant’s abuse. See id. Attorney

Amendola altered his strategy based on this new development. Id.

      At trial, Attorney Amendola explained how Appellant made his decision

not to testify.

      The Commonwealth, as the court knows, in a conference call with
      me and the court, I believe [Prosecutor] McGettigan and
      [Prosecutor] Fina last Thursday evening, after the Commonwealth
      had all but closed, but late hour of the day, asked for permission
      to remain open pending an investigation that was occurring at that
      time. Contacted me by phone somewhere, I believe it was 8:00
      or 8:30 p.m., and advised me that Matt Sandusky, [Appellant’s]
      son, had approached them, had interviewed with them, and made
      a statement that his father had abused him and that they
      potentially intended to use this testimony, this evidence at trial.

      Now, up until that time, Your Honor, [Appellant] had always
      wanted to testify on his own behalf. He always wanted to tell
      people his side to the allegations in this case. However, that
      potential evidence, whether true or not, was so devastating and
      so is—I think [Prosecutor] Fina has used the term in the past[,]
      so nuclear to his defense, from that point on we were very
      concerned whether or not [Appellant] could testify.

      [Prosecutor] Fina later narrowed the scope of that potential
      damage by indicating to me that the Commonwealth would agree
      not to call Matt Sandusky in its case in chief but reserved the right
      to call him as a rebuttal witness should evidence come out at trial
      that would allow him to testify and more specifically, obviously, if
      [Appellant] testified at trial, which still left us with a grave
      concern.

      Subsequently, we also found out there was another part of the
      interview with Bob Costas when [Appellant] interviewed with him
      shortly after his arrest in these matters by phone. That interview
      was by phone, which statement that we anticipated the
      Commonwealth would cross-examine [Appellant] on, although, in
      our opinion, it was unclear as to what he was saying and the
      context of getting a specific answer from him certainly in our
      opinion would have opened the door for rebuttal testimony from
      Matt Sandusky.


                                     - 61 -
J-A19029-18


        Because of that situation, as well as the admitted part of
        [Appellant]’s interview with Mr. Costas, specifically relating to the
        part of are you sexually attracted to young boys, and that was the
        part that was played twice and the court corrected that issue, we
        felt [Appellant] could give no answer at trial that would not allow
        the Commonwealth to call Matt Sandusky as a rebuttal witness.

        So after many discussions with [Appellant], based upon that
        evidence, [Appellant] chose not to testify despite the fact I had at
        least [alluded] in my opening statement on a number of occasions
        to the jury that they would hear from [Appellant].

        Our position on the Matt Sandusky development coming literally
        at the close of the Commonwealth’s case basically took the heart
        out of our defense, because our defense was going to be
        [Appellant] testifying.

        Today, after we called our last fact and character witness, the
        Court gave us time to consult with [Appellant] as to whether or
        not he wanted to testify with all this information before him, and
        he decided that he did not want to testify for the reasons I have
        set forth.

Id. at 65-72.

        At that time, Attorney Amendola moved for a mistrial on the basis that

Matt Sandusky’s statement effectively derailed the defense’s theory of the

case.    Id. at 70.   He argued that the late development caused “extreme

prejudice” because the defense did not have an opportunity to change

strategies before trial. Id. at 70.

        The Commonwealth responded that there was no legal basis for a

mistrial. See id. at 72. The Commonwealth also explained that

        [w]e certainly have represented to Attorney Amendola, I
        personally did, that we would not use Mr. Matt Sandusky’s
        testimony in our case in chief; that we would reserve him for
        rebuttal and use him only if his testimony would be admissible and
        relevant to rebuttal.



                                       - 62 -
J-A19029-18


      After discussions here today regarding the potential testimony of
      [Appellant], we agreed that we would not use Matt Sandusky in
      rebuttal. After that agreement, I believe Attorney Amendola
      spoke with his client, came back, and wanted further conditions
      on [Appellant]’s testimony. Wanted us to agree in addition to not
      putting Matt Sandusky on rebuttal that we would not ask any
      questions of [Appellant] about Matt Sandusky, and that was an
      agreement that we could not comply with. So I just wanted to
      clarify that.

Id. at 74.

      The trial court denied Appellant’s motion for a mistrial and directed

Attorney Amendola to colloquy Appellant on Appellant’s right to testify, during

which the following relevant exchanges occurred:

      Q:     Have we discussed on a number of occasions, but more
             recently, most recently within the last half hour to 45
             minutes, your right to testify on your own behalf at your
             trial?

      A:     Yes.

      Q:     And have we discussed that on many different occasions
             since you were charged with these offenses since last
             November?

      A:     Yes.

      Q:     And prior to learning about your son, Matt Sandusky’s,
             statement to the attorney general staff that somehow you
             inappropriately sexually touched him, was it your intention
             to testify at this proceeding?

      A:     Yes.

      Q:     Do you understand that you have the right to testify?

      A:     Yes.

                                    ***

      Q:     Have counsel discussed with you the pros and cons of
             testifying?

                                    - 63 -
J-A19029-18


     A:    Yes.

     Q:    The advantages and disadvantages?

     A:    Yes.

     Q:    And the likelihood in this instance that if you were to take
           the stand and testify, virtually anything you said after you
           were sworn in would in all likelihood, if not certainly, trigger
           the ability of the Commonwealth to call your son, Matthew
           Sandusky, as a witness against you in rebuttal?

     A:    Yes.

     Q:    Is that the reason why you have chosen not to testify?

     A:    Yes.

     Q:    Are you making this decision -- granted that it has to do
           with Matthew and the information that came out last
           Thursday evening, but aside from that, given that fact, is
           this decision on your part not to testify given the current
           circumstances being made by you knowingly?

     A:    Yes.

     Q:    Is it being made intelligently?

     A:    Yes.

     Q:    Is it being made voluntarily?

     A:    Yes.

     Q:    Has either Mr. Rominger or myself or anybody else on the
           defense team or anybody in your family or any of your
           friends coerced you into testifying or not testifying?

     A:    No.

     Q:    Is this your own decision?

     A:    Yes, it is.

     Q:    Based upon the posture of the case?

     A:    Correct.

Id. at 76-81.


                                    - 64 -
J-A19029-18



      After the colloquy, the Commonwealth sought to clarify its position

regarding Matt Sandusky’s statement.          Id. at 81.   The Commonwealth

reiterated that it agreed not to call Matt Sandusky as a rebuttal witness, but

would not agree to abstain from questioning Appellant about Matt Sandusky

if he chose to testify. Id.

      The Commonwealth also moved to strike the portion of the colloquy

regarding Matt Sandusky from the record, arguing that “the real basis for

[Appellant’s] declining to testify is a full understanding of his legal position

and not on the one thing I’m concerned about is an appellate issue for that

reason, because we have already agreed Matt would not testify.” Id. at 82-

83.   The trial court denied the Commonwealth’s motion to strike, and

concluded that Appellant’s decision not to testify was knowing, intelligent, and

voluntary. Id. at 83.

      Appellant claims that absent Attorney Amendola’s erroneous advice

regarding the possible admission of Matt Sandusky’s testimony, Appellant

would not have waived his right to testify at trial. Appellant’s Brief at 55-56.

Appellant argues that trial counsel could have limited his exposure to the

Commonwealth’s questions on cross-examination by preparing Appellant for

his trial testimony, asking very limited questions on direct examination, by

filing a motion in limine to either preclude Matt Sandusky from testifying, or

by limiting the scope of cross-examination to prevent the Commonwealth from

asking Appellant about Matt Sandusky. Id. at 55, 58.




                                     - 65 -
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      The Commonwealth responds that the exact reason for Appellant’s

decision not to testify “was not required to be placed of record” and

“[i]instead, this Court must consider whether counsel interfered with

[Appellant’s] freedom to testify or whether counsel gave him specific advice

so unreasonable that it otherwise vitiated his knowing and intelligent decision

not to testify.” Commonwealth’s Brief at 52. The Commonwealth also notes

that, unlike in Commonwealth v. Nieves, 746 A.2d 1102 (Pa. 2000),

“erroneous legal advice was not the sole reason informing [Appellant]’s

ultimate decision not to testify.” Commonwealth’s Brief at 54. Instead, the

Commonwealth contends that Attorney Amendola’s overriding concern was

allowing the prosecution to cross-examine Appellant. Id. The Commonwealth

notes that Attorney Amendola could not have prevented the Commonwealth

from asking questions about Matt Sandusky simply by limiting the scope of

his direct examination.     Id. at 55.        The Commonwealth asserts that

“[Appellant] himself could have easily opened the door to such a line of inquiry

depending upon the answers that he provided . . .” Id.

      The Commonwealth further argues that since the prosecution had

already agreed not to call Matt Sandusky as a rebuttal witness, a motion to

prevent him from testifying would have been unnecessary. Id. at 56. The

Commonwealth also references Attorney Amendola’s testimony at the PCRA

hearing, in which he explained that a motion in limine “would have been

subject to trial circumstances because the judge could not predict what was




                                     - 66 -
J-A19029-18



going to be said if [Appellant] testified. And once [Appellant] testified, that

could change whatever ruling the judge had made preliminarily.” Id.

      It is well settled that

      [t]he decision of whether or not to testify on one’s own behalf is
      ultimately to be made by the defendant after full consultation with
      counsel. In order to sustain a claim that counsel was ineffective
      for failing to advise the appellant of his rights in this regard, the
      appellant must demonstrate either that counsel interfered with his
      right to testify, or that counsel gave specific advice so
      unreasonable as to vitiate a knowing and intelligent decision to
      testify on his own behalf.

Nieves, 746 A.2d at 1104 (citations omitted).           Additionally, “where a

defendant voluntarily waives his right to testify after a colloquy, he generally

cannot argue that trial counsel was ineffective in failing to call him to the

stand.” Commonwealth v. Rigg, 84 A.3d 1080, 1086 (Pa. Super. 2014)

(citation omitted).

      Instantly, at the evidentiary hearing on Appellant’s PCRA petition,

Attorney Amendola reiterated that he originally planned to call Appellant as a

witness at trial. See PCRA Hr’g, 8/12/16, at 149. However, he explained that

mid-way through trial, the Commonwealth advised defense counsel that Matt

Sandusky had come forward with sexual abuse allegations against his father.

Id. at 151.    Attorney Amendola stated that although the Commonwealth

eventually agreed not to use Matt Sandusky in their case-in-chief or as a

rebuttal witness, the Commonwealth would not agree to abstain from cross-

examining Appellant about Matt Sandusky. Id. Attorney Amendola stated

“that’s what made the whole deal blow up,” and that he believed subjecting

                                     - 67 -
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Appellant to cross-examination regarding Matt Sandusky’s allegations of

abuse would be “too risky.” Id.

     The PCRA court found that Attorney Amendola’s testimony was credible.

The court further concluded that counsel’s advice was proper and reasonable.

     Additionally, the PCRA court determined that Appellant’s decision not to

testify was not based solely on the assertion that Matt Sandusky could be

called as a rebuttal witness. See PCRA Ct. Op., 10/18/17, at 45. The PCRA

court explained that

     [t]he threat of Matt [Sandusky]’s testimony was not the only
     downside they discussed, [Attorney Amendola] continued. In
     expounding on that answer, however, he implicitly confirmed that
     Matt was the driving force behind his advice that [Appellant] not
     testify. “But the point is . . . he would have been subjected to
     cross-examination generally, and in the course of that cross-
     examination generally, I was concerned, and I expressed my
     concern to [Appellant], that he could open the door quite easily to
     them getting Matt’s testimony in,” he explained. That result, he
     opined, would have been catastrophic. [Appellant], he added,
     agreed with that assessment.

                                   ***

     Whether the Commonwealth called him as a rebuttal witness or
     was limited to cross-examining [Appellant], then, Matt Sandusky’s
     allegations almost certainly would have reached the jurors’ ears.
     [Attorney] Amendola did not want them to hear that his client’s
     son had become an accuser, though, and neither did [Appellant].
     They wanted to suppress that evidence—to forestall the jury from
     hearing the substance of Matt’s accusations, not just his
     appearance on the witness stand.         The only sure way to
     accomplish that was for [Appellant] not to testify. That was what
     Amendola accurately conveyed, and that was the ultimate
     consideration that convinced [Appellant] to waive his right to
     testify.



                                   - 68 -
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Id. at 46.

       The PCRA court’s conclusions are supported by the record. The evidence

establishes that Appellant’s decision not to testify was made after a full

consultation with counsel, and was based on counsel’s advice regarding the

benefits and risks of testifying. That advice included the possibility that the

Commonwealth would cross-examine Appellant regarding Matt Sandusky’s

allegations of abuse. Therefore, Appellant’s decision not to testify was not

based solely on erroneous advice that would render it unknowing or

unintelligent, and the PCRA court did not err in concluding that counsel was

not ineffective. Accordingly, no relief is due.20 See Daniels, 963 A.2d at 419.

          13. Whether the [PCRA] court erred in finding
              counsel effective in declining to investigate juror
              bias, failing to procure an expert report that
              would have shown that a change of venue or
              venire or continuance was warranted, for not
              requesting a change of venue or venire or seeking
              a cooling off period and in neglecting to question
              the jurors specifically about the information they
              had learned from the media where one of the trial
              court’s opening question to each juror conceded
              that due to the extensive media coverage the

____________________________________________


20 Moreover, we find unavailing Appellant’s claim that counsel was ineffective
for failing to file a motion in limine to preclude Matt Sandusky from testifying
or to limit the scope of cross-examination. The evidence establishes that the
Commonwealth agreed not to call Matt Sandusky as a witness, so a motion to
preclude him from testifying would have been immaterial. Additionally, even
if Attorney Amendola had narrowly limited the scope of his direct examination,
Appellant’s responses could have nonetheless opened the door to questions
about Matt Sandusky and expose the jury to allegations made by Appellant’s
son. Therefore, rather than expose Appellant to that risk, it was reasonable
for Attorney Amendola to advise him not to testify.

                                          - 69 -
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              juror had knowledge              of   highly   prejudicial
              information[.]

      Appellant next argues that the PCRA court erred in rejecting his

ineffectiveness claims related to Attorney Amendola’s failures to (1) request

a change of venue or seek a cooling off period; (2) procure an expert report

that would have shown that a change of venue or continuance was warranted;

(3) investigate juror bias; and (4) question jurors about their knowledge of

the case. Appellant’s Brief at 168.

      Our Supreme Court has summarized the law in this area as follows:

      [T]he pivotal question in determining whether an impartial jury
      may be selected is not whether prospective jurors have knowledge
      of the crime being tried, or have even formed an initial opinion
      based on the news coverage they had been exposed to, but,
      rather, whether it is possible for those jurors to set aside their
      impressions or preliminary opinions and render a verdict solely
      based on the evidence presented to them at trial.

      Nevertheless, our Court has recognized that there are some
      instances in which pretrial publicity can be so pervasive and
      inflammatory a defendant does not have to prove actual prejudice.
      Prejudice will be presumed whenever a defendant demonstrates
      that the pretrial publicity: (1) was sensational, inflammatory, and
      slanted toward conviction, rather than factual and objective; (2)
      revealed the defendant’s prior criminal record, if any, or referred
      to confessions, admissions or reenactments of the crime by the
      defendant; or (3) derived from official police or prosecutorial
      reports.

      However, if the defendant proves the existence of one or more of
      these circumstances, a change of venue will still not be compelled
      unless the defendant also demonstrates that the
      presumptively prejudicial pretrial publicity was so
      extensive, sustained, and pervasive that the community
      must be deemed to have been saturated with it, and that
      there was insufficient time between the publicity and the
      trial for any prejudice to have dissipated. With respect to the
      determination of whether there has been an adequate cooling off


                                      - 70 -
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      period to dissipate the effect of presumptively prejudicial media
      coverage . . . [a] court must investigate what a panel of
      prospective jurors has said about its exposure to the publicity in
      question. This is one indication of whether the cooling period has
      been sufficient. Thus, in determining the efficacy of the cooling
      period, a court will consider the direct effects of publicity,
      something a defendant need not allege or prove . . . . Normally,
      what prospective jurors tell us about their ability to be
      impartial will be a reliable guide to whether the publicity is
      still so fresh in their minds that it has removed their ability
      to be objective. The discretion of the trial judge is given
      wide latitude in this area.

Commonwealth v. Bardo, 105 A.3d 678, 713 (Pa. 2014) (citation omitted;

emphases added).

            (a)   Change of Venue/Venire and Cooling-Off Period

      Appellant contends that trial counsel was ineffective for failing to seek a

change of venue or a cooling off period. Appellant’s Brief at 190. In support,

he argues that Appellant could not have had a fair trial in Centre County in

2012, and that “the fairness of all the jurors selected can be questioned since

they all knew of the negative pre-trial publicity.” Id. Appellant continues that

“empirical science and research conclusively demonstrate[] that no . . .

questioning by a court can secure an unbiased jury in a case like [Appellant’s,]

absent an adequate change of venue or cooling period.” Id.

      The Commonwealth counters that each empaneled juror confirmed his

or her ability to consider the evidence and render a verdict based upon that

evidence alone.   Commonwealth’s Brief at 136.       This, the Commonwealth

asserts, is the proper inquiry in determining whether a change of venue/venire

or a cooling-off period is necessary. Id.


                                     - 71 -
J-A19029-18



     The PCRA court concluded that trial counsel had a reasonable basis for

declining to seek a change of venue or a cooling off period.       The court

explained that

     keeping the trial in Centre County was indeed the strategy upon
     which [Attorney Amendola] and [Appellant] had agreed.
     Consistent with what he had stated in response to the
     Commonwealth’s motion to change venue or venire, he believed
     [Appellant] was just as likely to get a fair jury in Centre County
     as he was anywhere else in the country, and [Appellant] has not
     produced any evidence tending to indicate that his belief was
     unreasonable. That being the case, counsel had no reason to even
     consider filing a motion to change venue or venire or
     commissioning an expert report designed to support such a
     motion. He thus was not ineffective for failing to do so.

     [Attorney] Amendola also acted deliberately in not filing a motion
     to continue the trial until there had been a longer cooling-off
     period.

     [Attorney Amendola] was familiar with the “cooling-off” concept,
     as well as the relevant case law. It thus was not out of ignorance
     that he neglected to raise the issue, but because he felt certain
     that it would be to no avail. As he unhesitatingly explained at the
     PCRA hearing when asked whether he had requested a
     continuance based on the need for a cooling-off period, “I did not.
     And the reason I didn’t, quite frankly, was because if we weren’t
     getting continuances on all the other legitimate reasons that we
     had, we certainly weren’t going to get it on that basis.” Based on
     his many interactions with [the trial court], he was certain that
     such a request would have been denied on the basis that the jury
     selection process itself would reveal whether media saturation had
     in fact unduly prejudiced the jury pool. That was a reasonable
     assumption.

     As the record amply reflects, [the trial judge] took a no-nonsense
     approach from start to finish with respect to the management of
     these cases and was not inclined to delay the trial unless he
     deemed it to be absolutely necessary. He deemed it unnecessary,
     though, when [Attorney] Amendola learned just a month before
     jury selection that his jury consultant would be unavailable in
     June; when expert witnesses counsel expected to retain could not


                                   - 72 -
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     accommodate a June trial; when potentially exculpatory lay-
     witnesses were unavailable while defending their own criminal
     charges; and when defense counsel received thousands of pages
     of discovery materials not long before jury selection was
     scheduled to commence. Nor was [the trial judge] persuaded to
     continue the trial when [trial] counsel, purporting to feel
     overwhelmed by existing developments, sought leave to withdraw
     from the case. In the midst of counsel’s impassioned speech
     regarding his inability to adequately try the case, in fact, Judge
     Cleland announced, “This case has been on track for this trial date
     since at least January. It’s no surprise to anybody. I never ever
     suggested or made any indication that there would be a
     continuance, except as requested by Judge Feudale and as a
     courtesy to him. I have never, I do not believe, misled or given
     any indication that I had any intention of scheduling this case
     except when it was scheduled and we’re going to proceed.”

     In light of the foregoing, it is fanciful to suppose that [the trial
     judge] would have granted a continuance based on the allegation
     that a cooling-off period was necessary. In light of his position on
     the necessity of a jury consultant, moreover, it is fanciful to
     suppose that an expert report, even one indicating significant
     community bias against [Appellant], would have convinced him
     that the traditional voir dire process would be inadequate to weed
     out biased venire persons.

PCRA Ct. Op., 10/18/17, at 22-23.

     Based on our review of the record, we agree with the PCRA court’s

conclusions, which are supported by the record. The evidence establishes that

counsel made a tactical decision to remain in Centre County for trial.

Specifically, counsel testified that because the trial was widely publicized

throughout the state, he believed that Appellant’s positive reputation in the

community would be beneficial in selecting an impartial jury.       Therefore,

counsel had a reasonable strategic basis for his decision, and the PCRA court




                                    - 73 -
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did not err in concluding that counsel was not ineffective for pursuing that

strategy.21 Accordingly, no relief is due. See Daniels, 963 A.2d at 419.

              (b)    Jury Expert

       Appellant next alleges that trial counsel was ineffective for failing to

retain a jury consultant. Appellant’s Brief at 172. Specifically, he asserts that

a jury expert would have assisted in “determining whether a jury could be

selected in Centre County that did not have significant knowledge of highly

prejudicial information.” Id. He concludes that had trial counsel procured a

jury expert, the defense would not have opposed the Commonwealth’s motion

to change venire. Id.

       The Commonwealth responds that Appellant has failed to establish how

the outcome would have been any different had the defense been advised by

a jury consultant.22         Commonwealth’s Brief at 133.      Specifically, the

Commonwealth argues that Appellant “clings to research done in connection

____________________________________________


21 Moreover, although the pre-trial publicity was far-reaching in Appellant’s
case, Judge Cleland gave no indication that he would grant a continuance for
any reason. See PCRA Ct. Op., 10/18/17, at 23 (referencing Judge Cleland’s
statement that “I never ever suggested or made any indication that there
would be a continuance, except as requested by Judge Feudale and as a
courtesy to him. I have never, I do not believe, misled or given any indication
that I had any intention of scheduling this case except when it was scheduled
and we’re going to proceed”). Therefore, it was reasonable for counsel to
focus on strategies that he believed were more likely to produce favorable
results for Appellant.

22 The Commonwealth notes that trial counsel did request a continuance in
order to hire jury consultant Beth Bochnak, who was unavailable because she
was working on a murder trial. See Commonwealth’s Brief at 133. However,
the trial court denied trial counsels’ request. Id.

                                          - 74 -
J-A19029-18



with the Curley, Schultz, and Spanier cases by [Dr. Arthur H. Patterson]”

despite the fact that “Dr. Patterson’s survey actually undercuts [Appellant]’s

position as it concluded that pre-trial publicity surrounding [Appellant’s] case

was unusually far-reaching and intense across the state.”            Id.     The

Commonwealth points out that defense counsel was already aware of that

fact. Id. Therefore, the Commonwealth suggests that Appellant’s “theory

that Judge Cleland would have granted the change of venire if [Appellant] had

joined in the Commonwealth’s motion, and had presented the expert opinion

of a jury consultant, simply strings together a series of hopeful assumptions.”

Id.

      The PCRA court addressed Appellant’s claim as follows:

      Trial counsel asked the [trial court] more than once to continue
      the trial so that he could utilize the services of a jury consultant
      to help him select jurors untainted by the pretrial publicity these
      cases had garnered. [The trial judge] denied each request.
      Believing that the traditional voir dire 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 appropriate jury.

PCRA Ct. Op., 10/18/17, at 22.

      At the PCRA hearing, Appellant’s PCRA counsel questioned Attorney

Amendola about his decision to keep the case in Centre County. Attorney

Amendola explained:

      I don’t think it made a difference if we tried him in Timbuktu,
      [PCRA counsel]. His case was so well know[n], not only nationally,
      but across the entire continent where people speak English. I was
      getting calls from London, England, from Toronto, Ontario about
      [Appellant’s] case. My philosophy was, and [Appellant] and I

                                     - 75 -
J-A19029-18


      discussed this, we discussed the jury issue, whether we should
      agree that there should be an out-of-county jury. And [Appellant]
      and I discussed the issues. And we came to the conclusion jointly,
      after discussing those issues many times if not here, where? In
      other words, where in the world were we going to go to get a jury
      that hasn’t heard about his case? And if not our citizens in Centre
      County, who? What other citizens are going to give him a fair
      trial?

PCRA Hr’g, 3/24/17, at 47-48.

      At the outset, we note that trial counsel attempted to retain a jury

consultant, but that the trial court denied their request for a continuance.

Moroever, Appellant has failed to establish the existence of a jury consultant

who was willing and able to provide a review within the timeframe established

by the trial.

      In any event, based on our review of the record, we agree with the

Commonwealth’s assertion that Appellant has not established that hiring a

jury consultant would have changed the outcome of the case, nor would it

have altered counsel’s strategy to try the case in Centre County. Attorney

Amendola was fully aware that the case was widely publicized throughout the

state, and he specifically referenced that fact in explaining his decision to

remain in Centre County. See id. at 47-48. Therefore, the PCRA court did

not err in concluding that counsel was not ineffective for failing to procure an

expert consultant.   Accordingly, we conclude that no relief is due.        See

Daniels, 963 A.2d at 419.




                                     - 76 -
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            (c)   Voir Dire

      Appellant also contends that counsel had no reasonable basis for failing

to question prospective jurors about the specific information they learned

about Appellant’s case from the media. Appellant’s Brief at 193. He argues

that the surrounding media coverage contained “highly prejudicial and

damaging evidence,” and posits that counsel should have specifically asked

each juror if they had read the grand jury presentments, and whether they

had “read stories placing blame for the firing and death of Joe Paterno on

[Appellant].” Id. Appellant claims that counsel’s failure to question jurors

about their specific knowledge of the case “resulted in the selection of jurors

that, despite any statements to the contrary, could not fairly consider the

evidence.” Id.

      The PCRA court explained that:

      In addition to seeking the aid of a jury consultant, [Attorney]
      Amendola filed a motion requesting individual voir dire as part of
      his 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. It is unclear from the record whether Judge Cleland
      authorized the latter measure. It is clear, however, that he
      conducted individual voir dire with the same concern in mind,
      taking each prospective juror into his chambers, along with
      counsel, two pool reporters, and a member of the public, and
      advising each one that he would excuse the latter three if he or
      she did not wish to answer questions in their presence.

                                    ***

      Additionally, as much as [Appellant] would like to rely on academic
      concepts like “presumptive bias” to suggest that [Attorney]
      Amendola had a duty to delve further into what the jurors in this
      case had read, the courts of this Commonwealth generally adhere

                                    - 77 -
J-A19029-18


      to the principle that jurors are capable of the introspection
      necessary to evaluate their own biases. Accordingly, courts will
      measure the continuing effects of pretrial publicity by reference to
      the jurors’ answers. Commonwealth v. Robinson, 864 A.2d
      460 (Pa. 2004). “Normally,” says the Court, “what prospective
      jurors tell us about their ability to be impartial will be a reliable
      guide to whether the publicity is still so fresh in their minds that
      it has removed their ability to be objective.” Id. at 484 (internal
      citations omitted). As the transcripts reflect, each empaneled
      juror in this case confirmed his or her ability to consider what was
      presented at trial and render a verdict based on that evidence
      alone.

PCRA Ct. Op., 10/18/17, at 22-25.

      Based on our review of the record, we agree with the PCRA court that

the potential for juror partiality in relation to the media coverage of the case

was sufficiently addressed during the individually conducted voir dire. See

id. at 22. Therefore, Appellant’s claim fails for lack of arguable merit. See

Daniels, 963 A.2d at 419.

            (d)   Juror Bias

      Appellant next claims that counsel was ineffective for failing to challenge

the empanelment of biased jurors. Appellant’s Brief at 192. Specifically, he

refers to (1) Juror 5692, a Penn State University student who stated that he

“heard everything” with respect to media coverage of the case; and (2) Juror

3208, a retired bus driver who “had strong feelings about protecting kids and

did not want to see children hurt” and “indicated that ‘she probably could be

fair.’” Id. Empanelment of these two jurors, Appellant claims, demonstrates

that his claims of juror bias have merit. Id.




                                     - 78 -
J-A19029-18



     The Commonwealth counters that each of the empaneled jurors

“confirmed his or her ability to consider the evidence and render a verdict

based upon that evidence,” and therefore, Appellant has failed to demonstrate

that juror bias influenced the verdict. Commonwealth’s Brief at 136.

     The PCRA court addressed Appellant’s claim as follows:

     As the transcripts reflect, each empaneled juror in this case
     confirmed his or her ability to consider what was presented at trial
     and render a verdict based on that evidence alone. That included
     the two [Appellant] referenced as evidencing juror bias.

     Despite being a student who had “heard everything,” Juror No.
     5692, after answering a couple of questions in a seemingly
     ambiguous manner, affirmed unequivocally that he could be fair
     and impartial. Both the [c]ourt and [Attorney] Amendola satisfied
     themselves in that regard with the following exchanges:

        MR. AMENDOLA: Have you reached any personal
        decisions about whose fault it is that Penn State has really
        been hit hard by what’s happened with [Appellant]?

        JUROR NO. 5692: Who single-handed, like, who’s [sic]
        overall fault? I think there’s a lot of people involved. I think
        everyone had a little piece of everything. I don’t think
        there’s anyone. Like, overall that was completely to blame.
        Do I think [Appellant] did a few things that he shouldn’t
        have? I guess. I think everyone just kind of underestimated
        a 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 happened and so
        everyone kind of shared on the blame for the charges that
        were later filed?

        JUROR NO. 5692: I’m saying I know what I have read
        and—not even know. I understand what I have read and
        that’s all I know. And I can—look, I said I read, you know.
        I have read a little bit of everything and that’s all that I - I
        don't know. I can’t say they’re my opinions because they’re
        obviously somebody else’s. Somebody else wrote it down

                                    - 79 -
J-A19029-18


       and I read it because I was interested in it. But that’s—I
       guess that’s all I’m saying.

       MR. AMENDOLA: Could you put everything that you have
       read aside and listen to the judge who would instruct you,
       you can only consider the evidence that you’ll hear at trial
       and based upon that evidence and the [c]ourt’s instructions
       make a decision not on what you heard before today or even
       before next Monday [but] what you hear at trial? Could you
       live by that instruction?

       JUROR NO. 5692: Yeah.

       THE COURT: Okay. If you are selected as a juror, you
       would have to take an oath in which you would agree to
       decide the case based only on what you heard in the
       courtroom and put aside everything else that you heard.

       JUROR NO. 5692: Um-hum.

       THE COURT: There’s a lot riding on that answer.

       JUROR NO. 5692: Yeah.

       THE COURT: Can you do that or do you have some
       reservations?

       JUROR NO. 5692: Yeah. I mean, there’s—I don't think
       there would be a reason for me to believe anything truer
       than what I would hear in the courtroom anyway so.

       THE COURT: Your answer is yes?

       JUROR NO. 5692: Yes.

     Similarly, while Juror No. 3208 expressed a general concern for
     the welfare of children and sprinkled her answers with all-too-
     common qualifiers like “probably” and “I guess,” her responses to
     Judge Cleland’s and [Attorney] Amendola’s clarifying questions
     disannulled her seeming uncertainty. It is likewise telling that
     counsel, who had the opportunity to observe Juror No. 3208’s
     demeanor and hear the vocal inflections indiscernible from the
     pages of a transcript, accepted her without reservation.
     [Appellant] did not allege any other specific instances of bias
     among the members of his jury, and as the Court has already
     indicated, his reliance on “presumptive bias” is unavailing[.]



                                  - 80 -
J-A19029-18



PCRA Ct. Op., 10/18/17, at 26.

       Based on our review of the record, we discern no basis to disagree with

the PCRA court that Appellant has failed to establish juror bias and did not

demonstrate that the alleged biases affected the outcome of his case. See

id. Therefore, Appellant’s ineffective assistance of counsel claim fails. See

Daniels, 963 A.2d at 419.

          14. Did the [PCRA] court err in determining
              [Attorney] Amendola performed effectively in
              waiving [Appellant]’s preliminary hearing?

       Appellant next focuses on Attorney Amendola’s advice that Appellant

waive preliminary hearings. Appellant’s Brief at 216. Appellant notes that

Attorney Rominger disagreed with the waiver of a preliminary hearing.23

Appellant further cites to his own testimony that Attorney Amendola did not

discuss the advantages of conducting a preliminary hearing.        Id. at 221.

Appellant further suggests that Attorney Amendola’s advice was unreasonable

because his belief that Appellant’s bail would be increased after the filing of

new charges was speculative and because Appellant did not receive any of the

expected benefits of his waiver while free on bail. Id. at 225 & n.35. Appellant

further argues that because there was no hearing, trial counsel was

“inadequately prepared,” in that the defense did not have the benefit of

____________________________________________


23 Appellant’s argument contains non-legal citations, including a Huffington
Post article written by Attorney Rominger after trial in which he opined that
there should have been a preliminary hearing.




                                          - 81 -
J-A19029-18



hearing witness testimony or gathering statements to use for impeachment at

trial.24 Id. at 220.

       The Commonwealth responds that the PCRA court properly concluded

that Appellant’s claim of prejudice was speculative because there was no

indication that a preliminary hearing would have produced additional

inconsistent statements by the victims. Commonwealth’s Brief at 151. In

support, the Commonwealth relies on Commonwealth v. McBride, 570 A.2d

539 (Pa. Super. 1990).25 The Commonwealth further argues that Attorney


____________________________________________


24 To the extent Appellant argues that he was prejudiced because the charges
against Victim 8 were based solely on hearsay and would have been dismissed
at the preliminary hearing, we agree with the PCRA court’s conclusion that the
issue is waived. Appellant’s second amended petition, which contained this
issue, makes no mention of this additional argument. See Second Am. PCRA
Pet., 3/7/16, at 82-85.

25In McBride, the defendant argued that trial counsel was ineffective for
waiving his preliminary hearing, in that “his defense was hampered because
he had not previously heard the Commonwealth’s witnesses testify.” Id. at
541. The McBride Court rejected the defendant’s argument, concluding that
such a claim

       is too general to entitle [the defendant] to relief. “Counsel will not
       be found ineffective in a vacuum, and we will not consider claims
       of ineffectiveness without some showing of a factual predicate
       upon which counsel’s assistance may be evaluated.”
       Commonwealth v. Thomas, . . . 539 A.2d 829, 837 ([Pa.
       Super.] 1988). In the absence of a more specific allegation
       regarding the prejudice suffered by appellant due to the waiver of
       a preliminary hearing, we find no basis upon which to find trial
       counsel ineffective with respect thereto.

Id. (citations omitted).


                                          - 82 -
J-A19029-18



Amendola stated a reasonable basis for advising Appellant to waive a

preliminary hearing. Commonwealth’s Brief at 151.

      Instantly, the PCRA court concluded that Attorney Amendola was not

ineffective for waiving a preliminary hearing, explaining:

      [a]s his preliminary hearing date approached, [Appellant] was out
      on $250,000.00 bail—an amount the family struggled to post. He
      did not want to be in jail, and [Attorney Amendola] did not want
      him there, either. Well aware of the restrictions inherent to
      incarceration, in fact, Amendola thought it critical that [Appellant]
      remain at home, where he would be better able to help prepare
      his defense. Knowing that the Commonwealth had what it needed
      to file new charges and ask for a bail increase, therefore, counsel
      deemed it prudent to see whether he could prevent [Appellant]’s
      re-incarceration. He began by contacting [Prosecutor] McGettigan
      to inquire whether he would be willing to forego requesting
      additional bail on any new charges in exchange for [Appellant]
      waiving his preliminary hearing. Amendola knew, after all, that
      he could not use that proceeding to attack the witnesses’
      credibility or explore their motives, but that it would provide the
      Commonwealth with yet another opportunity to publicize its side
      of the story, including “all the gruesome details of the accusers.”

      Within a day or two of speaking with [Prosecutor] McGettigan, who
      was willing to consent to the terms of the proposal, [Attorney]
      Amendola discussed the matter with [Appellant]. He explained
      the pros and cons of both options, including that waiver would
      mean losing the right to question the accusers, and advised
      [Appellant] to waive the hearing. As of December 12, 2011—the
      day before the hearing—[Appellant] was in agreement with
      [Amendola] and did not change his mind. On the contrary,
      [Appellant] called [Amendola] after the post-waiver press
      conference to express his delight over “finally see[ing] our side
      getting out.”

      It was not out of ignorance that [Attorney] Amendola advised
      [Appellant] to waive the hearing, either. [Amendola] knew the
      witnesses’ credibility would be a crucial concern at trial and that
      he was forfeiting the opportunity to observe and cross-examine
      them ahead of time. He also knew that their statements would
      be divulged through the agreed-upon expedited discovery,

                                     - 83 -
J-A19029-18


       however, and did not anticipate that their preliminary hearing
       testimony would differ materially from what they had already
       disclosed. He did anticipate that the Commonwealth would make
       a successful bid for a bail increase if it filed additional charges,
       however—an increase permitted by Rule 523 and which
       experience told him was a 99.9% probability. In his estimation,
       therefore, the potential benefits of demanding a preliminary
       hearing were outweighed by the guaranteed benefits of waiving
       it. That was an entirely reasonable calculation that precipitated
       an entirely reasonable response.

PCRA Ct. Op., 10/28/17, at 14-15.

       We agree with the PCRA court’s conclusions, and they are supported by

the record.      Initially, we note that Appellant’s assertions that Attorney

Amendola failed to advise him of the possible benefits of a preliminary hearing

rely solely on his own testimony, which was contradicted by Attorney

Amendola’s testimony at the PCRA hearing. See PCRA Hr’g, 8/12/16, at 133.

Further, we agree with the PCRA court that Attorney Amendola articulated a

reasonable basis for advising Appellant to waive his preliminary hearing, in

that “it was critical to our defense that [Appellant] not be incarcerated.”26 Id.

____________________________________________


26 Appellant also references the fact that there was an out-of-court conference
with counsel, a magisterial district judge, and the trial judge held before
Appellant waived his preliminary hearing. See Appellant’s Brief at 225. In an
attempt to bolster his claim, Appellant cites to Commonwealth v. Evans,
252 A.2d 689, 690 (Pa. 1969) (holding that a judge must not participate in
the plea-bargaining process).       Appellant suggests that Judge Cleland’s
presence during waiver discussions was comparable to a judge participating
in plea negotiations.

Although such a conference was unusual, Appellant presented no evidence
that the magisterial district judge or the trial judge’s participation in the
conference coerced his decision to waive a preliminary hearing or tainted



                                          - 84 -
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at 121-22.       Therefore, Appellant has failed to establish that Attorney

Amendola lacked a reasonable basis for advising Appellant to waive a

preliminary hearing at the time that decision was made.          Lastly, Appellant

failed to establish that he suffered any prejudice beyond his assertion that the

hearing would have provided additional impeachment material or further

evidence of repressed memory therapy. See McBride, 570 A.2d at 541.

Accordingly, no relief is due.

          15. Whether the [PCRA] court erred in concluding
              counsel [was] effective for failing to file a motion
              to quash the grand jury presentment and the
              charges arising therefrom relative to Victims 2
              through 10 based on governmental misconduct in
              tainting the grand jury process[.]

       Appellant next alleges that trial counsel was ineffective for failing to file

a motion to quash the grand jury presentment based on suspected grand jury

leaks. Appellant’s Brief at 231. Appellant argues that the OAG engaged in

governmental misconduct in order to strengthen the case against Appellant.

Specifically, Appellant claims that the OAG provided information to reporter

Sara Ganim, who wrote an article about the investigation in March of 2011,

several months before its official release in November of 2011. Appellant also

asserts that the OAG was responsible for improperly placing the grand jury

presentment online prior to its official release.


____________________________________________


Attorney Amendola’s reasonable belief that a waiver was best suited to
advance Appellant’s interests.


                                          - 85 -
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      Appellant argues that Attorney Amendola had no reasonable basis for

failing to pursue a motion to quash, as the reason for his decision was “that

[Prosecutors] Fina and McGettigan assured him that there were no leaks,”

which was unreasonable given the allegation that “those individuals were

members of the very governmental team alleged to have leaked the

information.” Id. at 240. Appellant argues that he suffered prejudice because

the leaked information led to S.P., R.R., and Ronald Petrosky coming forward

as witnesses. Id. at 241. Additionally, Appellant argues that “the leaks also

allowed an opportunity for those individuals who did become accusers to alter

their story to better fit the narrative.” Id.

      Appellant also claims that “[t]he prosecution told McQueary in advance

that the presentment would be leaked.” Id. Appellant concludes that counsel

was aware of this information, and therefore should have filed a motion to

quash based on suspected grand jury leaks. Id. at 240. Finally, Appellant

argues that the PCRA court erred by denying counsel’s request to call Ganim

as a witness. Id. at 243.

      This Court has previously stated:

      When addressing a claim of prosecutorial misconduct before a
      grand jury, our federal courts look first to see whether the alleged
      misconduct took place, and next, to whether any sanction, such
      as dismissal of the indictment or suppression of the evidence, is
      warranted. When dismissal is the requested relief, the federal
      courts take one of two approaches. The first approach finds
      dismissal proper where the defendant can show that the conduct
      of the prosecution caused him prejudice. Prejudice will have
      occurred only “‘if it is established that the violation substantially
      influenced the grand jury’s decision to indict,’ or if there is ‘grave


                                      - 86 -
J-A19029-18


       doubt’ that the decision to indict was free from the substantial
       influence of such violations.” Under the second approach,
       dismissal may be proper where no actual prejudice is shown “if
       there is evidence that the challenged activity was something other
       than an isolated incident unmotivated by sinister ends, or that the
       type of misconduct challenged has become ‘entrenched and
       flagrant’ in the circuit.” Under either approach, we must first
       determine whether any misconduct occurred.

Commonwealth v. Williams, 565 A.2d 160, 163-64 (Pa. Super. 1989)

(citations omitted).

       The PCRA court explained that

       Because this question was one of the original eleven issues Judge
       Cleland designated for hearing, PCRA counsel questioned several
       witnesses about it and subsequently briefed the matter. Judge
       Cleland did not permit the defendant to call Sarah Ganim
       (“Ganim”), however, and ultimately dismissed the issue with the
       promise of a forthcoming opinion. Order, 10/17/2016, at 3. He
       then recused himself before having the opportunity to explain his
       decision, and this jurist declined to overrule his dismissal, though
       it did allow the parties to submit additional documentation in
       support of or opposition to the claim. Taken together, that
       evidence reveals that there is no merit to the underlying claim of
       prosecutorial misconduct. [Attorney Eshbach] and [Prosecutor]
       Fina served as the Commonwealth’s primary representatives
       throughout the grand jury proceedings, and both were questioned
       at the PCRA hearing. Eshbach said she was aware of the Ganim
       article[27] and discussed how she and Fina had set an internal trap
       to determine whether the journalist’s information had come from
       someone in the Attorney General’s Office. She knew she was not
       Ganim’s source. Fina knew the same thing about himself and was
       certain the leak had not come from the agents who delivered the
       presentment to the district judge’s office. Like Eshbach, though,
       he could not identify the source. He knew the leak was a problem,
       though. He knew it in 2016, and he knew it in 2011, when he
       asked Judge Feudale, the supervising judge over the grand jury,
       to investigate the matter. Because he suspected that the grand
____________________________________________


27The “Ganim article” refers to a March 2011 article written by Sara Ganim
that indicated that Appellant was under investigation.

                                          - 87 -
J-A19029-18


     jury presentment may have been purposely leaked by the district
     justice or a member of his staff, moreover, the assistant
     prosecutor reported his concerns to the Judicial Misconduct Board
     for further investigation.

     It was Agents Feathers and Sassano, now a director with the
     Attorney General’s Office, who both delivered the presentment to
     the district justice’s office and investigated how it had gotten
     prematurely published. (Id. at 43-45). [Appellant] did not call
     Feathers to testify, though, and only asked Sassano whether he
     was aware of the Ganim article; he did further inquire about what
     information the former agent had about the leaks. (See id.,
     08/22/2016, pp. 90-93). Counsel for the Attorney General’s
     Office did, though, and Sassano said he had no knowledge of
     anybody leaking information. (Id. at 114-16).

     Corporals Scott Rossman (“Rossman”) and Joseph Leiter (“Leiter”)
     (retired) also answered questions about the leaks, including
     whether they knew how Ganim had gained access to non-public
     information pertaining to the 2008-2009 investigation regarding
     [A.F.] and a 1998 investigation involving a young man by the
     name of [Z.K.]. Neither was able to name Ganim’s source, though
     Rossman suggested an array of persons who would have had
     access to information about the [Z.K.] matter. Similarly, Eshbach
     readily named various individuals and entities who would have
     known about the [A.F.] investigation, as did Michael Gillum
     (“Gillum”), the psychologist who counseled with [A.F.] after his
     abuse.

     The testimony, then, did not support the idea that the prosecution
     leaked grand jury information for any reason, let alone for the
     purpose of generating more victims. If anything[,] it supports the
     opposite conclusion, because while someone might be skeptical
     about the validity of Eshbach and Fina’s internal “trap,” it is a fact
     of human nature that one engaged in or aware of misconduct he
     does not wish to have exposed does not ask an outside source to
     investigate it. As the man in charge at that time, however, Fina
     was actively seeking assistance from Judge Feudale and the
     Judicial Misconduct Board to ascertain the source(s) of the
     problem.

                                     ***




                                    - 88 -
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     On June 17, 2017, pursuant to its earlier order and discussions
     held at sidebar, the [c]ourt admitted into evidence the transcribed
     testimony of Michael McQueary . . . whose testimony helped to
     secure [Appellant’s] conviction relative to Victim #2 and who later
     testified as a Commonwealth’s witness in the case of
     Commonwealth v. Graham Spanier.                    “Mr. McQueary’s
     testimony,” [Appellant] proffered, “was that he had been alerted
     that the [Office of Attorney General] was going to leak the grand
     jury presentment.” In support thereof, he quoted the following
     portion of the transcript: “I was on my way to Boston for recruiting
     and I was in going from F terminal over [to] the B terminals over
     in Philadelphia Airport. And there was one of those little trams.
     The [Attorney General]’s called and said we’re going to arrest folks
     and we are going to leak it out[.]” Id. [(emphasis omitted]);
     (PCRA, 05/11/2017, Ex[]. H, p. 24). Those words, though, had
     nothing to do with grand jury leaks. When he gave the above-
     quoted testimony, McQueary was responding to questions about
     [Appellant]’s arrest and nothing else—a fact that is apparent once
     the excerpt is put back into its original context.

                                     ***

     Not only did the “leak” McQueary mentioned have nothing to do
     with the grand jury, in fact, but the prosecutor made no mention
     of that tribunal during his direct examination, and McQueary did
     not bring it up, either. Nor did it come up in his cross- or re-direct
     examination. That being the case, McQueary’s statement does
     nothing to validate [Appellant]’s allegation that the Attorney
     General’s Office leaked secret grand jury information. Save for
     the McQueary transcript, Judge Cleland was in possession of the
     same factual record, and because it bore no evidence of the sort
     of prosecutorial misconduct that would support quashing the
     presentment or dismissing any of the charges, he appropriately
     dismissed this PCRA claim.

                                     ***

     As a corollary, the fact that Ganim, was exempt from testifying
     pursuant to the Shield Law, 42 Pa.C.S. [§] 5942, means that
     Judge Cleland did not err in ruling on the issue without first
     requiring her to testify. Regardless of what a Superior Court judge
     may have indicated in a concurrence or was alluded to by our high
     court in a footnote, a majority of our Supreme Court stated plainly

                                    - 89 -
J-A19029-18


     and unequivocally in Castellani v. Scranton Times, L.P., 956
     A.2d 937 (Pa. 2008), “[W]e reaffirm that the Shield Law prohibits
     the compelled disclosure of a confidential source’s identity, or any
     information which could expose the source’s identity.” Id. at 954.
     Because Castellani is binding on every Pennsylvania court below
     it, no trial court judge, whether Judge Cleland or this jurist, has
     the authority to ascribe precedential status to a footnote when
     doing so would contradict the Court’s clear holding.[fn1]

            [Appellant] indicates that Judge Cleland was prepared
        [fn1]

        to compel Ganim to testify and reveal her source if PCRA
        counsel could establish that quashal was an appropriate
        remedy for a grand jury leak. Even assuming that he had
        determined otherwise, though, it is clear from the record
        that Ganim would not have testified. When [Attorney]
        Amendola wanted to call her at trial simply to authenticate
        the newspaper article she wrote and an e-mail she sent to
        one of the victim’s mothers, she took the position that she
        would go to jail rather than risk being forced to answer
        questions about her source.        That being the case,
        [Appellant] was not prejudiced by the inability to call Ganim
        as a PCRA witness even if Judge Cleland was mistaken as to
        the availability of quashal as a remedy in the event of
        prosecutorial misconduct.

     This [c]ourt 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 source of a grand jury leak he believes
     disadvantaged him. Rather, the scenario addressed in footnote
     14, which parallels the scenario envisioned by then-Judge Todd,
     now Justice Todd in her concurrence, is one in which the
     Commonwealth was seeking to compel a source’s identity for the
     purpose of pursuing a criminal investigation or prosecution of the
     source of the leak. See id[.], n. 14. [Appellant], of course, is not
     the Commonwealth, and facilitating a criminal investigation or
     prosecution of Ganim’s source is not his aim. Accordingly, even
     assigning precedential value to the footnote would not salvage
     [Appellant’s] meritless claim.

     [Attorney] Amendola was correct, therefore, when he indicated
     that he had no basis for filing a motion to quash or similar motion.
     Aware of the possibility of governmental misconduct, he requested
     discovery materials related to whether the leaks had come from
     any government employee and was advised that none existed. He

                                    - 90 -
J-A19029-18


      did not have any evidence to the contrary, and, as the PCRA
      record indicates, would not have found any. As he said, therefore,
      “It would have been a blind motion without any substance to it.”
      He thus was not ineffective for failing to file it, not only because
      he employed a reasonable strategy based on his knowledge of the
      law, but because “[c]ounsel is not required to perform a useless
      act or file a meritless motion.” Commonwealth v. Thomas, 539
      A.2d 829, 831 (Pa. Super. 1988). Even with the addition of
      McQue[a]ry’s testimony, therefore, the record indicates quite
      plainly that Judge Cleland did not err in dismissing [Appellant’s
      claim].

PCRA Ct. Op., 10/18/17, at 6-10.

      Based on our review, we agree with the PCRA court’s findings of fact

and conclusions of law. The PCRA court found that there was no merit to

Appellant’s claim that the purported grand jury leaks were the result of

prosecutorial misconduct.      Moreover, we agree with the PCRA court’s

conclusion that an attempt to circumvent Pennsylvania Shield Law on this

basis would have been unsuccessful. Accordingly, counsel was not ineffective

for failing to pursue a meritless claim. See Daniels, 963 A.2d at 419.

         16. Whether the [PCRA] court erred in finding
             counsel [was] effective in not seeking to quash
             the grand jury presentment and finding that the
             grand jury had subject matter jurisdiction in
             derogation of the plain language, intent, and
             history of the Grand Jury Act[.]

      Appellant also asserts that the PCRA court erred in concluding that a

grand jury had subject matter jurisdiction to investigate the initial allegations

of sexual abuse against Appellant.      Appellant’s Brief at 250.    By way of

background, on May 1, 2009, the OAG submitted a Notice of Submission of

Investigation No. 29 (Notice 29) to the Thirtieth Statewide Investigating Grand


                                     - 91 -
J-A19029-18



Jury. See Notice 29, 5/1/09, at 1. In accordance with the requirements of

the Investigating Grand Jury Act, Notice 29 explained the nature of the

investigation and why the OAG believed the investigative resources of a grand

jury were necessary. See 42 Pa.C.S. § 4544. Notice 29 stated that

     [t]he Pennsylvania State Police are pursuing an investigation
     based upon a founded Clinton County Children and Youth Services
     complaint alleging sexual assault by a Centre [C]ounty adult male
     upon a juvenile male with whom he became acquainted through
     his sponsorship of a charity for disadvantaged youth. It is
     believed that other minor males have been similarly assaulted
     through this connection. The investigation concerns allegations of
     involuntary deviate sexual intercourse, indecent assault, and
     corruption of minors in Clinton and Centre [C]ounties. The powers
     of the grand jury are needed in order for the investigation of this
     matter to advance to a satisfactory conclusion. In particular, the
     power of the grand jury to compel the attendance of witnesses is
     needed. Witnesses with knowledge may be too embarrassed or
     intimidated to admit their knowledge of the violations because the
     actor is well-regarded and influential and is also known as the
     founder of a charity that raises funds for and serves
     disadvantaged children. Young men who are potentially involved
     are in fear of revealing what they know due to the suspect’s power
     and influence.

     The power of the grand jury to compel testimony under oath is
     needed. It is critical in a sexual assault case where no physical
     evidence exists to test the reliability of information provided by
     the witness and to obtain testimonial evidence which could be
     used at a criminal trial as substantive evidence if the witness
     testifies differently at trial. See Commonwealth v. Lively, . . .
     610 A.2d 7 ([Pa.] 1992).

     The power of the grand jury to subpoena documents is needed in
     order to obtain information that would not otherwise be available.
     Specifically, telephone records and business records may be
     needed to corroborate the testimony of the witnesses.




                                   - 92 -
J-A19029-18



See Notice 29, ¶ 3.      On May 5, 2009, the supervising grand jury judge

accepted the submission and the investigation of Appellant was designated

Notice No. 29 in the Thirtieth Statewide Investigating Grand Jury.

      The term of the Thirtieth Statewide Investigating Grand Jury expired

following the testimony of Paterno, Schultz, and Curley, but before it issued a

recommendation as to the charges against Appellant. On January 27, 2011,

the   OAG    submitted   the   investigation   to   the   Thirty-Third   Statewide

Investigating Grand Jury, which submission was accepted by the supervising

grand jury judge on January 28. Also on January 28, grand jury subpoenas

were issued to, among others, The Second Mile and the Centre County Office

of Children and Youth Services (Centre County CYS) for records related to

Appellant.

      Appellant argues that pursuant to Section 4542 of the Grand Jury Act,

42 Pa.C.S. §§ 4541-4553, the jurisdiction of a multicounty grand jury is

limited to investigations that involve either organized crime or public

corruption. Appellant’s Brief at 250. Therefore, Appellant claims that because

the allegations against Appellant involved neither public corruption nor

organized crime, the Thirtieth Statewide Investigating Grand Jury had no

jurisdiction, and Attorney Amendola should have filed a motion to quash. Id.

Appellant does not explicitly claim that the grand jury was improperly

impaneled. Rather, he argues that the grand jury was “improperly impaneled

to investigate [Appellant].” Id. at 253. Appellant further asserts that the

investigation conducted by the Thirtieth Statewide Investigating Grand Jury

                                     - 93 -
J-A19029-18



was “used as the basis for the grand jury presentment” by the Thirty-Third

Statewide Investigating Grand Jury.28

       The Grand Jury Act provides, in relevant part:

       § 4542. Definitions

       The following words and phrases when used in this subchapter
       shall have, unless the context clearly indicates otherwise, the
       meanings given to them in this section:

                                          ***

          “Multicounty investigating grand jury.” A Statewide or
          regional investigating grand jury convened by the Supreme
          Court upon the application of the Attorney General and
          having jurisdiction to inquire into organized crime or public
          corruption or both under circumstances wherein more than
          one county is named in the order convening said
          investigating grand jury.

          “Organized crime.” The unlawful activity of an association
          trafficking in illegal goods or services, including but not
          limited to gambling, prostitution, loan sharking, controlled
          substances, labor racketeering, or other unlawful activities;
          or any continuing criminal conspiracy or other unlawful
          practice which has as its objective:

              (1) large economic gain through fraudulent or coercive
              practices; or

              (2) improper governmental influence.

          “Public corruption.” The unlawful activity under color of
          or in connection with any public office or employment of:

              (1) any public official or public employee, or the agent of
              any public official or public employee under color of or in
              connection with any public office or employment; or



____________________________________________


28Appellant does not separately challenge the jurisdiction of the Thirty-Third
Statewide Investigating Grand Jury.

                                          - 94 -
J-A19029-18


           (2) any candidate for public office or the agent of any
           candidate for public office.

42 Pa.C.S. § 4542.

     § 4544. Convening multicounty investigating grand jury

     (a)   General rule.--Application for a multicounty investigating
           grand jury may be made by the Attorney General to the
           Supreme Court. In such application the Attorney General
           shall state that, in his judgment, the convening of a
           multicounty investigating grand jury is necessary because
           of organized crime or public corruption or both involving
           more than one county of the Commonwealth and that, in his
           judgment, the investigation cannot be adequately
           performed by an investigating grand jury available under
           section 4543 (relating to convening county investigating
           grand jury). The application shall specify for which counties
           the multicounty investigating grand jury is to be convened.
           Within ten days of receipt of such application, the court shall
           issue an order granting the same. Failure by an individual
           justice to grant such application shall be appealable to the
           entire Supreme Court.

42 Pa.C.S. § 4544(a).

     § 4548. Powers of investigating grand jury

     (a)   General rule.--The investigating grand jury shall have the
           power to inquire into offenses against the criminal laws of
           the Commonwealth alleged to have been committed within
           the county or counties in which it is summoned. Such power
           shall include the investigative resources of the grand jury
           which shall include but not be limited to the power of
           subpoena, the power to obtain the initiation of civil and
           criminal contempt proceedings, and every investigative
           power of any grand jury of the Commonwealth. Such alleged
           offenses may be brought to the attention of such grand jury
           by the court or by the attorney for the Commonwealth, but
           in no case shall the investigating grand jury inquire into
           alleged offenses on its own motion.

42 Pa.C.S. § 4548(a).


                                    - 95 -
J-A19029-18


      § 4550. Submission of investigations by attorney for the
      Commonwealth to investigating grand jury

      (a)   General rule.--Before submitting an investigation to the
            investigating grand jury the attorney for the Commonwealth
            shall submit a notice to the supervising judge. This notice
            shall allege that the matter in question should be brought to
            the attention of the investigating grand jury because the
            investigative resources of the grand jury are necessary for
            proper investigation. The notice shall allege that one or
            more of the investigative resources of the grand jury are
            required in order to adequately investigate the matter.

42 Pa.C.S. § 4550(a).

      Once a grand jury is properly impaneled, “the purpose for which a grand

jury is convened does not restrict the grand jury from investigating actions

which constitute criminal activity or probable violations of the criminal laws of

the Commonwealth.” Commonwealth v. McCauley, 588 A.2d 941, 945 (Pa.

Super. 1991) (citation omitted); see also In re Twenty-Fourth Statewide

Investigating Grand Jury, 907 A.2d 505, 512 (Pa. 2006) (stating that the

Grand Jury Act “does not require that every matter submitted to a multi-

county or statewide investigating grand jury needs to independently meet

each one of the criteria that are threshold to the convening of the investigative

body in the first instance,” as the statutory requirements relative to the

empaneling of a statewide investigating grand jury and the statutory powers

of the grand jury to inquire into criminal offenses once empaneled are

different). “Rather, all that need be alleged in an application for submission

of an investigation to any grand jury, county or multi-county, is that the

matter in question requires the investigative resources of the grand jury.”



                                     - 96 -
J-A19029-18



Commonwealth v. Atwood, 601 A.2d 277, 281 (Pa. Super. 1991) (citing to

42 Pa.C.S. § 4550.)

      Instantly, the record demonstrates that the Commonwealth complied

with the statutory requirements for submitting the investigation to the

Thirtieth Statewide Investigation Grand Jury. Specifically, the Commonwealth

requested the investigative resources of the grand jury, noting that it was

necessary to compel the attendance of witnesses and ensure confidentiality.

See Notice 29, ¶ 3. Therefore, the Commonwealth and the grand jury were

within their statutory authority to initiate an investigation into the allegations

concerning Appellant. See Atwood, 601 A.2d at 281. Therefore, we agree

with the PCRA court that Appellant’s assertion lacks merit and that trial

counsel could not be ineffective for failing to pursue a meritless claim. See

Daniels, 963 A.2d at 419.

         17. Did the [PCRA] court err in finding counsel []
             effective in eliciting inculpatory evidence against
             [Appellant] and opening the door for the
             Commonwealth to introduce additional rebuttal
             evidence by presenting Dr. Elliot Atkins?

      Appellant claims that trial counsel was ineffective for presenting

testimony from Dr. Elliot Atkins, which opened the door for the Commonwealth

to present expert evidence from Dr. O’Brien in rebuttal.

      By way of background, the PCRA court explained:

      On the first day of trial, the Commonwealth introduced letters
      [Appellant] had written to [Victim 7, B.H.] that read like missives
      one would compose to his love interest. [Attorney] Amendola
      knew they would be part of the evidence and, recognizing that
      [Appellant]’s behavior with kids seemed odd to many people,

                                     - 97 -
J-A19029-18


     wanted the jury to hear from an expert that the psychology behind
     his anomalous conduct had nothing to do with pedophilia. He thus
     called Dr. Elliott Atkins solely to explain the letters, not to
     disestablish specific intent to commit the alleged crimes.

     Establishing for the jury the intended parameters of Dr. Atkins’
     testimony, Judge Cleland prefaced it with the [following]: “The
     purpose of this testimony . . . is to offer an explanation concerning
     the letters which you had previously seen projected onto the
     screen.” He further explained that the doctor was not attempting
     to rebut the evidence or excuse any criminal conduct and
     reiterated, stating “So this is offered for a very limited purpose,
     simply to explain the letters and the motivation of [Appellant] in
     writing the letters.” Dr. Atkins then detailed the characteristics of
     histrionic personality disorder—the psychological condition with
     which he had diagnosed [Appellant]—and explained how the tone
     and content of the subject letters was consistent with that
     diagnosis.

     Based on Dr. Atkins having discussed in general the traits of
     histrionic personality disorder, [Prosecutor] McGettigan and
     [Prosecutor] Fina [] argued that his testimony functioned to
     negate criminal intent and, therefore, that [Appellant] had opened
     the door to a broader inquiry into his sexual behavior. Judge
     Cleland rejected that argument but agreed that the
     Commonwealth could inquire about whether the same traits
     defining histrionic personality disorder were also characteristic of
     certain psychosexual disorders.

     During cross-examination, Dr. Atkins acknowledged the diagnostic
     overlap. He clarified, however, that he had not seen evidence to
     support a psychosexual diagnosis. “There is no clear pattern or
     clear diagnosis of a psychosexual disorder without certain
     behaviors and [Appellant] denied those behaviors,” he stated.
     Asked, then, whether his conclusion was thus based in part on
     [Appellant]’s denial, Dr. Atkins conceded, “If, in fact, the things
     that he is accused of are true, then he would have a psychosexual
     disorder.” He did not concede their truth, however, but added, “I
     found nothing to support that that’s the case.”

     Testifying in rebuttal, Dr. John O’Brien disagreed with Dr. Atkins’
     diagnosis, and, in response to [Prosecutor] McGettigan’s pointed
     question, opined that the subject letters were also consistent with
     a psychosexual disorder with a focus on adolescence or
     preadolescence. He acknowledged, though, that his opinion was


                                    - 98 -
J-A19029-18


     valid only if the facts were as the Commonwealth alleged them to
     be. “Part of the difficulty is that in doing such an evaluation,” he
     explained, “[Y]ou’re considering evidence that hasn’t been
     proven[, s]o it’s difficult to draw factual conclusions—impossible
     to draw factual conclusions from that sort of information.”

     The expert testimony, therefore, was not as damning as
     [Appellant] proposes. Neither expert characterized him as a
     pedophile, and neither actually stated that he had a psychosexual
     disorder. Dr. Atkins said that would be the case if the facts were
     as the Commonwealth alleged, which is the same thing Dr. O’Brien
     indicated. Neither suggested which facts the jury should believe,
     however. Accordingly, neither suggested that the letters or
     anything else were in fact indicative of the defendant being a
     pedophile. On the contrary, both made it clear that the paradigm
     into which the letters ultimately fit depended on what the
     factfinder believed about the Commonwealth’s allegations. That
     function, as Judge Cleland made abundantly clear, was reserved
     to the jury. That being the case, [Attorney] Amendola’s decision
     to call Dr. Atkins did not “open the door” to the expert opinion
     that his client was a pedophile.

     [Attorney] Amendola’s decision to call Dr. Atkins, moreover, was
     reasonably strategic. [Attorney Amendola] was cognizant that
     calling him created a potential risk but thought it even riskier not
     to call him. Though he interpreted the letters as “Jerry being
     Jerry,” Amendola recognized that [Appellant]’s behavior seemed
     “off the wall” to the average citizen. He thus wanted the jury to
     hear that “pedophile” was not the only reasonable explanation for
     it, and believed Dr. Atkins could do that without prejudicing his
     client. Looking back four years later, [Attorney] Amendola said
     he would not pursue the same course today.

PCRA Ct. Op., 10/18/17, at 47-49.

     Appellant argues that Attorney Amendola was ineffective for calling Dr.

Atkins as a witness, as he gave “damaging testimony” that opened the door

to rebuttal testimony from Dr. O’Brien.      Appellant’s Brief at 142, 144.

Appellant asserts that he was adamantly opposed to presenting Dr. Atkins as

a witness and that Attorney Amendola was fully aware of the risk that Dr.


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Atkins’ testimony would open the door to rebuttal testimony.          Id. at 139.

Appellant contends that Attorney Amendola had no reasonable basis for calling

Dr. Atkins to testify, as the letters written to Victim 7 “contained no

information that suggested [Appellant] was a pedophile.”             Id. at 143.

Appellant avers that the testimony “caused confusion with the jury, as the

jury was presented with evidence of a mental infirmity of a sort that would, in

theory, explain or excuse the alleged criminal behavior, when [Appellant’s]

contention was that there was no criminal behavior.” Id. at 142.

      The Commonwealth counters that “given the nature of [Appellant’s]

interactions with children, the decision to call Dr. Atkins as a witness to explain

[Appellant’s] conduct was one grounded in reasonable and sound trial

strategy.” Commonwealth’s Brief at 101. The Commonwealth further asserts

that Dr. Atkins’ testimony was not intended to provide a defense to the

charges; rather, it was for a limited purpose, as demonstrated by the trial

court’s jury instructions. Id.

      At the PCRA hearing, Attorney Amendola testified that “Dr. Atkins’

testimony was restricted to explaining those letters [to Victim 7]. But the

bottom punch line was that [Appellant’s] behavior, although different, could

be explained through histrionics, but it wasn’t indicative of someone who was

a pedophile.” PCRA Hr’g, 8/12/16, at 163. He further testified that, “[a]nd if

you’re asking me had I to do it over again as a Monday morning quarterback,

I would say of course not, obviously not. But we used it to the best that we

could because we were faced with the issue that [Appellant’s] behaviors over

                                     - 100 -
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the years with multiple kids was different than the average person.” Id. at

164-65.

      Based on our review, we agree with the PCRA court’s conclusions, which

are supported by the record. Although Dr. Atkins’ testimony opened the door

to rebuttal testimony from Dr. O’Brien, Appellant is not entitled to relief.

Attorney Amendola articulated a reasonable strategy for calling Dr. Elliot

Atkins to testify at trial, in that he wanted to provide the jury with an

explanation for Appellant’s behavior that did not involve pedophilia. See id.

at 163. Moreover, although Attorney Amendola testified that he would have

made a different decision “as a Monday morning quarterback,” we do not

employ a hindsight analysis in evaluating the reasonableness of counsel’s trial

strategies.   See Strickland v. Washington, 466 U.S. 668, 689 (1984)

(stating that “[j]udicial scrutiny of counsel’s performance must be highly

deferential” and the reasonableness of counsel’s decisions cannot be based

upon “the distorting effects of hindsight”). Therefore, we agree with the PCRA

court’s conclusion that Attorney Amendola pursued a reasonable strategy, and

could not be found constitutionally ineffective. See Stewart, 84 A.3d at 707.

          18. Did the [PCRA] court err in finding counsel
              effective for failing to object to improper opinion
              testimony by an unqualified expert?

      Appellant claims that counsel was ineffective for failing to object to

improper opinion testimony by Clinton County Children and Youth Service

(Clinton County CYS) case worker, Jessica Dershem. Appellant’s Brief at 262.

By way of background to this claim, Clinton County CYS received a referral

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from A.F.’s school concerning inappropriate contact between Appellant and

A.F. See N.T., 6/12/12, at 125. The referral alleged that over a period of

years, A.F. and Appellant slept in the same bed and had physical contact with

each other over their clothes.         Id. at 153.   Dershem interviewed A.F. on

November 20, 2008 and December 12, 2008. During the first interview, A.F.

reported that there was physical contact between him and Appellant, but

maintained that their clothes were always on. Id. at 154. During the second

interview, A.F. disclosed that Appellant would blow on his stomach, kiss him

on the lips, have him lay on top of Appellant to crack his back, and touch his

buttocks underneath his pants.29 Id. at 158-59.

       Dershem also interviewed Appellant on January 15, 2009. Appellant

admitted that he would blow on A.F.’s stomach, kiss A.F. on the forehead or

cheek, wrestle with A.F., and have A.F. lay or stand on him to “crack his back.”

Id. at 170-72. When asked whether if his hands went below A.F.’s pants,

Appellant answered that he could not “honestly answer whether or not his

hands went below [A.F.’s] pants.” Id. at 138. However, Appellant denied any

sexual contact with A.F. Id. at 139.

       As the PCRA court further explained:


____________________________________________


29A.F. testified at trial that Appellant engaged in this behavior when he was
approximately eleven or twelve years old. See N.T., 6/12/12, at 21. When
A.F. was twelve, Appellant began performing oral sex on A.F., and later asked
A.F. to perform oral sex on him. Id. at 23-26. A.F. did not report that
Appellant engaged him in oral sex during the interviews with Dershem. See
N.T., 6/12/12, at 159.

                                         - 102 -
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      After Dershem described her initial interview with [A.F.],
      [Prosecutor] McGettigan asked her to define its purpose. “The
      interview was . . . to determine whether or not we had enough
      information to consider it child abuse,” she explained, thus
      prompting the attorney to ask what conclusion she had reached
      that day. She responded, “[W]e felt that [A.F.] had some more
      stuff to talk about,” adding that she and her coworkers felt after
      the second interview that they had enough information to
      conclude that the report alleging that [Appellant] had sexually
      abused [A.F.] was indicated. McGettigan next asked whether
      Dershem’s initial impression stemmed from a belief that [A.F.]
      “was lying to you, making something up, or merely withholding
      and failing to fully disclose,” and the caseworker clarified, “Just
      withholding because he was uncomfortable talking about the
      incidents.”

PCRA Ct. Op., 10/18/17, at 50 (record citations omitted). “During re-direct

examination, [Prosecutor] McGettigan twice asked [Dershem] whether, in her

‘professional and personal opinion,’ what she learned in late 2008 and early

2009 indicated that [Appellant] had fostered an ‘inappropriate relationship’

with [A.F.].” Id. at 49. On both occasions, Dershem responded, “Yes.”

      Attorney Amendola did not object to the Commonwealth’s questions

asking whether Dershem believed that Appellant fostered an inappropriate

relationship with A.F. or that A.F. was lying during the interviews. At the PCRA

evidentiary hearing, Attorney Amendola noted that the Commonwealth was

implicitly suggesting Dershem was an expert.       Attorney Amendola did not

provide a reason for the failure to object.

      Appellant argues that although Dershem was presented as a lay witness,

the Commonwealth asked her to present opinion testimony on whether an

inappropriate relationship existed and whether A.F.’s allegations were



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credible. Appellant’s Brief at 266. He claims that, had counsel objected, the

Commonwealth would not have been permitted to give her “unfounded expert

opinion.” Id. He asserts that counsel had no reasonable basis for failing to

object to her testimony, and that as a result, Appellant suffered prejudice.

Id.

      The Commonwealth responds that Dershem was not offering an expert

opinion on whether or not A.F. was credible. Commonwealth’s Brief at 182.

Instead, the Commonwealth asserts that Dershem’s testimony was “merely

explaining her observations and the background surrounding her report . . .

.” Id. The Commonwealth concludes that because the prosecution did not

elicit improper evidence and did not tell the jury to assign special weight to

her testimony based on her skill, knowledge, and experience, Appellant’s claim

has no basis. Id.

      Instantly, the PCRA court rejected this claim of ineffectiveness. First,

the PCRA court noted that the jury instructions belied Appellant’s assertion

that the jury could have weighed Dershem’s testimony as expert testimony

and found sufficient reason to convict him based solely on her opinion that an

inappropriate relationship existed. See PCRA Ct. Op., 10/18/17, at 49-50.

Specifically, the court concluded:

      the [c]ourt would have to assume that the jury disregarded the
      fact that Judge Cleland identified only Drs. Atkins and O’Brien as
      experts, and ignored the elements of the criminal offenses with
      which he was actually charged, as clearly defined by Judge
      Cleland. It would further have to assume that the jury ignored
      his careful and lengthy delineation between criminal and non-
      criminal physical contact:

                                     - 104 -
J-A19029-18


       Now, I will submit that at some point in your deliberations
       you’ll have to confront the question: When does otherwise
       innocent conduct become criminal? Perhaps I can offer
       some guidance that might be useful. Let us begin with the
       obvious proposition that it is not necessarily a crime for an
       adult to touch a child. It’s not a crime, for example, for a
       downhill skiing racing coach to take hold of a child’s leg to
       demonstrate how to properly position it over a ski or for a
       wrestling coach, in very close contact with an athlete, to
       demonstrate a wrestling move or for a teacher to put a
       comforting arm around a crying child. Now, it is obviously
       a crime, as I will explain to you, for a man to have oral sex
       with a boy or for the man to have the boy perform oral sex
       on him. And if you believe that testimony that it happened
       in this case, then you may find the defendant guilty.

       But other forms of physical contact are more problematic.
       It’s not necessarily a crime, for example, for a man to take
       a shower with a boy. It’s not necessarily [a] crime for a
       man to wash a boy’s hair or to lather his back or shoulders
       or to engage in back rubbing or back cracking. If you
       believe the defendant does those things - did those things,
       it does not necessarily mean that you must find the
       defendant guilty.      You may believe he exercised poor
       judgment, but poor judgment does not in and of itself
       amount to criminality. Similarly, an adult’s behavior is not
       a crime simply because the behavior of the adult makes the
       child feel uncomfortable. A child’s reaction may be evidence
       for you to consider in deciding whether a crime has been
       committed but it’s not determinative. What makes this kind
       of ambiguous contact a crime is the intent with which it is
       done. You must distinguish an expression of familiar or
       family affection from an act of lust. A display of innocent
       affection is not a crime, but what appears to be otherwise
       innocent conduct when performed with a sexual motive,
       when performed with the intent to sexually arose [sic] an
       adult and to satisfy an adult’s sexual desire at the expense
       of a child, that is a crime.

       So the issue is not what the child felt. The issue is what the
       defendant intended. It is the defendant’s intent, not the
       child’s reaction that determines if a crime was committed.
       Of course, how a child reacted is not irrelevant to the extent
       it assists you in assessing the defendant’s attempt, you may
       consider.

                                  - 105 -
J-A19029-18


         If you decide that the defendant engaged in the various
         behaviors that have been described during the trial, then
         you must decide which acts, if any, he did with the intention
         to satisfy his own sexual desires. Any behavior motivated
         by sexual desire was a crime. If he did not act out of sexual
         desire, then he committed no crime even if he did display
         poor judgment.

      Whether or not the jury may have otherwise inferred that
      Dershem was offering an expert opinion, and whether or not her
      testimony gave the impression that an “inappropriate
      relationship” was enough to support a conviction, therefore, Judge
      Cleland unequivocally corrected any such misapprehension. The
      law presumes, after all, that a jury follows the judge’s instructions.
      Commonwealth v. Hawkins, 701 A.2d 492, 503 (Pa. 1997).
      Accordingly, [Appellant] was not prejudiced by Amendola’s failure
      to object to Dershem’s “expert” opinions.

Id.

      Second, the PCRA court reasoned that

      [i]t is not want of prejudice, however, but want of merit that
      defeats that portion of [this claim] wherein [Appellant] suggests
      that Dershem opined on [A.F.]’s credibility.

      After Dershem described her initial interview with [A.F.],
      [Prosecutor] McGettigan asked her to define its purpose. “The
      interview was ... to determine whether or not we had enough
      information to consider it child abuse,” she explained, thus
      prompting the attorney to ask what conclusion she had reached
      that day. She responded, “[W]e felt that [A.F.] had some more
      stuff to talk about,” adding that she and her coworkers felt after
      the second interview that they had enough information to
      conclude that the report alleging that [Appellant] had sexually
      abused [A.F.] was indicated. McGettigan next asked whether
      Dershem’s initial impression stemmed from a belief that [A.F.]
      “was lying to you, making something up, or merely withholding
      and failing to fully disclose,” and the caseworker clarified, “Just
      withholding because he was uncomfortable talking about the
      incidents.”

      In eliciting Dershem’s opinion about why [A.F.] did not fully
      disclose during their first interview, says [Appellant], the
      Commonwealth violated the prohibition against experts testifying

                                     - 106 -
J-A19029-18


     on the issue of a witness’s credibility. E.g., Commonwealth v.
     McClure, 144 A.3d 970, 877 (Pa. Super. 2016). Read in context,
     though, her comments do not reasonably lend themselves to that
     interpretation.

     When she made the allegedly objectionable observations,
     Dershem was speaking within the confines of how she had
     perceived [A.F.]’s conduct at one interview she had facilitated
     more than three-and-a-half years earlier. She did not stray
     beyond that: She did not attempt to characterize [A.F.] as
     generally truthful; to suggest that either he or the larger
     population of children who had been sexually abused tended not
     to fully disclose initially; or to intimate that the jury should give
     credence to his or any of the victims’ testimony. In short, there
     was nothing about Dershem’s testimony from which one could
     reasonably infer that she was opining about [A.F.]’s credibility in
     2008 or 2012. Accordingly, [Attorney] Amendola had no basis to
     object that she was opining on a witness’s credibility, whether as
     an expert or as a layperson.

Id. at 49-51.

     Based on our review, we agree with the PCRA court’s conclusions. Even

if Prosecutor McGettigan’s questions were intended to elicit improper opinion

testimony from Dershem, the jury was not instructed to regard her testimony

about Appellant’s inappropriate relationship with A.F. as an expert opinion.

Moreover, we cannot conclude that Dershem’s responses to Prosecutor

McGettigan’s questions undermined the jury’s fair consideration of A.F.’s

testimony that Appellant ultimately engaged him in oral sex.         Therefore,

Attorney Amendola’s failure to object to Prosecutor McGettigan’s exchanges

with Dershem did not result in prejudice. See Daniels, 963 A.2d at 419.

        19. Whether the [PCRA] court erred in finding
            counsel [was] effective in neglecting to object to
            the trial court’s erroneous guilt instruction as part
            of its character evidence instruction[.]


                                   - 107 -
J-A19029-18



         Appellant argues that PCRA court erred in rejecting his ineffectiveness

claim based on an “instruction that incorrectly told the jury to find [Appellant]

guilty even if it was not satisfied beyond a reasonable doubt of [Appellant’s]

guilt.” Appellant’s Brief at 133. Appellant asserts that Attorney Amendola

could have no reasonable basis for failing to object, and that “[t]he mistake

[wa]s more serious because it occurred in the context of an instruction on

character evidence and how such evidence is itself sufficient to raise a

reasonable doubt.”       Id.   Appellant states that character evidence is of

paramount importance in a case involving sexual offenses, and he concludes

that “improper character witness instruction [wa]s therefore more prejudicial

in such cases.” Id. at 133.

         The Commonwealth responds that the inclusion of one erroneous word

in the court’s otherwise sound charge does not warrant a new trial.

Commonwealth’s Brief at 92.           The Commonwealth asserts that when the

instructions are read as a whole, “one would be hard-pressed to conclude that

a reasonable juror would be genuinely misled by the erroneous insertion of an

incorrect word into an otherwise rudimentary, common-sense tenet. . .” Id.

at 95.

         When reviewing a trial court’s jury instructions, we “will look to the

instructions as a whole, and not simply isolated portions, to determine if the

instructions were improper.” Commonwealth v. Antidormi, 84 A.3d 736,

754 (Pa. Super. 2014).

         Additionally, we note that

                                        - 108 -
J-A19029-18


      [a] jury charge will be deemed erroneous only if the charge as a
      whole is inadequate, not clear or has a tendency to mislead or
      confuse, rather than clarify, a material issue.         A charge is
      considered adequate unless the jury was palpably misled by what
      the trial judge said or there is an omission which is tantamount to
      fundamental error.       Consequently, the trial court has wide
      discretion in fashioning jury instructions.

Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006) (citations

omitted).

      Here, the trial court’s instructions regarding character evidence were as

follows:

      Now, the defense has offered evidence tending to prove that the
      defendant is of good character. I’m speaking of the defense
      witnesses who testified that the defendant has a good reputation
      in the community for being law-abiding, peaceable, nonviolent
      individual.

      The law recognizes that a person of good character is not likely to
      commit a crime that is contrary to that person’s nature. Evidence
      of good character may by itself raise a reasonable doubt of guilt
      and require a verdict of not guilty.

      So you must weigh and consider the evidence of good character
      along with the other evidence in the case and if on the evidence
      you have a reasonable doubt of the defendant’s guilt, you may
      find him not guilty.

      However, if on all the evidence you are not satisfied beyond a
      reasonable doubt he is guilty, you should find – that he is guilty,
      you should find him guilty. But in making that determination, you
      may consider evidence of good character which you believe to be
      true.

N.T., 6/21/12, at 22 (emphasis added).

      The PCRA court acknowledged the specific error in the instruction, but

concluded:



                                   - 109 -
J-A19029-18


      Judge Cleland plainly and repeatedly instructed the jury that it
      was the Commonwealth alone that had the burden of proving the
      defendant guilty beyond a reasonable doubt and that the
      defendant did not have to prove anything in his own defense. That
      was in addition to several corollary references he had made during
      the opening charge. It is thus unfathomable that [the trial court’s]
      solitary misstatement left the jurors uncertain about the
      applicable standard of proof, particularly when he had just finished
      instructing them that “[e]vidence of good character may by itself
      raise a reasonable doubt of guilt and require a verdict of not
      guilty.”

PCRA Ct. Op., 10/18/17, at 58.

      We agree with the PCRA court’s conclusions, which are supported by the

record.   The trial court repeatedly stated that the Commonwealth had the

burden of proving each element of the charged offenses beyond a reasonable

doubt. See N.T., 6/21/12, at 9-12, 23, 25, 26, 27. When read in the context

of the charge as a whole, the jury instructions indicate that it was the

Commonwealth’s burden to prove Appellant’s guilt beyond a reasonable

doubt. See Antidormi, 84 A.3d at 754. Moreover, there is no indication that

the jury was “palpably misled by what the trial judge said.” See Thomas,

904 A.2d at 970. Accordingly, Appellant’s claim that counsel was ineffective

does not warrant relief. See Daniels, 963 A.2d at 419.

          20. Did the [PCRA] court err in holding counsel [was]
              effective in not filing a collateral appeal after the
              denial of their motion to withdraw?

      Appellant claims that counsel were ineffective for failing to file a

collateral appeal from the trial court’s order denying their June 5, 2012 motion

to withdraw from representation.      Appellant’s Brief at 209.     By way of

background, Appellant’s trial counsel filed separate motions for continuance

                                    - 110 -
J-A19029-18



on February 29, April 12, and May 30, 2012, all of which the trial court denied.

Jury selection was scheduled to commence on June 5, 2012.

      With respect to the motion to withdraw, the PCRA court explained:

      On June 5, 2012, trial counsel filed a motion to withdraw as
      counsel, which they first discussed with Judge Cleland in
      Chambers. Due to the volume of written discovery materials and
      the unavailability of witnesses, they felt ill-prepared to defend
      [Appellant]. Judge Cleland denied the motion, however, and
      ordered them to proceed. Neither attorney sought to appeal that
      order as collateral to the matter at hand, and both continued to
      represent the defendant at jury selection and through trial.

PCRA Ct. Op., 10/18/17, at 18.

      On direct appeal, Appellant challenged the denial of his motions for

continuances.    When affirming the denial of Appellant’s motions for

continuance, this Court reasoned:

      Here, from January 28, 2012, until June 15, 2012, [Appellant]
      received voluminous supplemental discovery. From the
      Commonwealth he received 9,450 pages of documentation, 674
      pages of Grand Jury transcripts, and 2,140 pages from subpoenas
      duces tecum. Due to the high volume of discovery received so
      close to the trial date, counsel maintained they were unprepared
      for trial and requested continuances on March 22, 2012, May 9,
      2012, and May 25, 2012.

      In orders entered on February 29, 2012, and April 12, 2012, the
      trial court summarily denied the continuance requests. In an
      order entered on May 30, 2012, however, the trial court addressed
      [Appellant’s] claim regarding the need to postpone the trial due
      to the volume of material provided in discovery. The trial court
      explained its denial as follows:

         The amount of material that I have ordered the
         Commonwealth to provide in discovery has been significant.
         No doubt sorting the wheat from the chaff has been time
         consuming. Again, however, the defense team is assuredly
         capable, even as the trial is ongoing, of sorting through the

                                    - 111 -
J-A19029-18


         material to determine what is useful to the defense and what
         is not.

                                      ***

         While I certainly do not doubt the sincerity of defense
         counsel in requesting a continuance, the reality of our
         system of justice is that no date for trial is ever perfect, but
         some dates are better than others. While June 5th does
         present its problems, on balance and considering all the
         interests involved—the defendant’s right to a fair trial, the
         alleged victims’ right their day in court [sic], the
         Commonwealth’s obligation to prosecute promptly, and the
         public’s expectation that justice will be timely done—no date
         will necessarily present a better alternative.

      The trial court’s explanation denotes a careful consideration of the
      matter. The decision does not reflect a myopic insistence upon
      expeditiousness in the face of [Appellant]’s request; it was not an
      arbitrary denial. Therefore, we can find no constitutional error,
      nor abuse of discretion, in the denial of the continuance requests.

      Assuming for the sake of argument, however, that the trial court
      did commit an error in denying the continuance requests, we
      would find the error harmless.

Sandusky, 77 A.3d at 672 (citations and footnote omitted).             This Court

proceeded to conclude that there was evidence that the denial of the

continuances did not alter trial counsel’s conduct at trial and thus did not result

in prejudice. Id. at 673. Appellant, however, did not challenge the denial of

trial counsels’ motion to withdraw in his direct appeal.

      Appellant now argues that trial counsel should have immediately

appealed the order denying the motion to withdraw as a collateral order.

When asserting that there was a reasonable possibility that this Court would

have granted relief on the merits of such an appeal, Appellant suggests:




                                     - 112 -
J-A19029-18


     The critical question is whether there is a reasonable probability
     that counsel would have been permitted to withdraw by the
     Superior Court since the appellate court would have been
     confronted with attorneys arguing, in good faith, that they could
     not adequately represent their client.

     [Attorney] Amendola himself acknowledged that he was not able
     to adequately prepare and present his defense and testified to that
     effect during his PCRA testimony. [Appellant’s] additional claims
     demonstrate that [Attorney] Amendola was unable to effectively
     represent [Appellant]. [Attorney] Amendola already made a
     record-based statement that he could not effectively represent
     [Appellant]. Had [Attorney] Amendola appealed, there is a
     reasonable probability that he would have been permitted to
     withdraw where the case was not yet a year old at the time (it
     was only seven months from the filing of the first information to
     the start of trial), he had not been granted serial continuances,
     the case was highly complex involving eight accusers and ten
     alleged victims with over forty charges, and in excess of 12,000
     pages of discovery.

     [Attorney] Amendola did not completely review the discovery in
     this case. He did not review Matt Sandusky’s grand jury testimony
     nor does it appear he was aware of the interview relative to
     Calhoun until after trial. Given counsels’ own admissions that they
     could not provide constitutionally effective counsel and would be
     proceeding in violation of the canons of ethics, there is a
     reasonable probability that the appellate court would have
     permitted trial counsel to withdraw from the case.

Id. at 212-13.

     The Commonwealth argues that even if Appellant could satisfy the

requirements of the collateral order doctrine, there is no reasonable

probability that an appellate court would have determined that Judge Cleland

abused his discretion in denying trial counsels’ motion to withdraw based on

their need for additional time.     Commonwealth’s Brief at 150.           The

Commonwealth notes that the same reasoning was rejected by the trial court

on three prior occasions, and that the Pennsylvania Supreme Court denied the

                                  - 113 -
J-A19029-18



motion for extraordinary relief and motion for stay in order to delay the trial.

Both motions were denied the day before submission of the motion to

withdraw. Id.

      As this Court noted in Commonwealth v. Magee, 177 A.3d 315, 322-

23 (Pa. Super. 2017),

      a trial court’s denial of counsel’s petition to withdraw under the
      abuse of discretion standard.

                                      ***

      The Rules of Criminal Procedure provide that an attorney for a
      defendant may not withdraw without leave of court. Pa.R.Crim.P.
      120(B)(1). A comment to the rule explains:

         The court must make a determination of the status of a case
         before permitting counsel to withdraw. Although there are
         many factors considered by the court in determining
         whether there is good cause to permit the withdrawal of
         counsel, when granting leave, the court should determine
         whether new counsel will be stepping in or the defendant is
         proceeding without counsel, and that the change in
         attorneys will not delay the proceedings or prejudice the
         defendant, particularly concerning time limits. In addition,
         case law suggests other factors the court should consider,
         such as whether (1) the defendant has failed to meet his or
         her financial obligations to pay for the attorney’s services
         and (2) there is a written contractual agreement between
         counsel and the defendant terminating representation at a
         specified stage in the proceedings such as sentencing . . . .

      Pa.R.Crim.P. 120, Cmt. This Court has stated:

         No brightline rules exist to determine whether a trial court
         has abused its discretion in denying a Petition to Withdraw
         as counsel. A balancing test must be utilized to weigh the
         interests of the client in a fair adjudication and the
         Commonwealth in the efficient administration of justice.
         Thus, a resolution of the problem turns upon a case by case



                                    - 114 -
J-A19029-18


         analysis with particular attention to the reasons given by the
         trial court at the time the request for withdrawal is denied.

Magee, 177 A.3d at 322-23 (some citations and footnote omitted).

      Based on our review, we conclude that Appellant failed to establish a

reasonable possibility that this Court would have granted relief on the merits

of trial counsels’ petition to withdraw. Appellant’s suggested arguments for

appealing from the denial of his petition to withdraw would have been

substantially similar to the arguments raised in the denial of his motions for

continuances.    As noted by this Court in relation to the denial of his

continuances, the trial court’s balancing of the relevant factors did not indicate

an abuse of discretion. See Sandusky, 77 A.3d at 672. Furthermore, as

noted above, Appellant has failed to establish that Attorney Amendola and

Attorney Rominger provided inadequate representation at trial.               See

Commonwealth v. Spotz, 84 A.3d 294, 315 (Pa. 2014).               Therefore, we

discern no basis to disturb the PCRA court’s rejection of this claim.

         21. Did the [PCRA] court err where the cumulative
             errors in this matter were so significant that they
             deprived [Appellant] of a fair trial in violation of
             his due process rights and his state and federal
             constitutional right to a fair trial?

      Appellant claims that the cumulative errors in his case were so

significant that he was deprived of a fair trial. Appellant’s Brief at 267. He

asserts that all of his appellate issues have arguable merit and that, therefore,

he is entitled to a new trial. Id.

      The Pennsylvania Supreme Court has stated:



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      We have often held that “no number of failed [ ] claims may
      collectively warrant relief if they fail to do so individually.”
      However, we have clarified that this principle applies to claims that
      fail because of lack of merit or arguable merit. When the failure
      of individual claims is grounded in lack of prejudice, then the
      cumulative prejudice from those individual claims may properly be
      assessed.

Spotz, 84 A.3d at 321 n.22 (citations omitted).

      Appellant’s passing reference to cumulative error, however, does not

establish any error in the PCRA court’s analysis of this issue. See PCRA Ct.

Op., 10/18/17, at 58-59.       In any event, although several of Appellant’s

individual claims failed for lack of prejudice, we agree with the PCRA court

that the combined effect of the errors did not deprive Appellant of a fair trial.

See Spotz, 84 A.3d at 321.

         22. Is [Appellant] entitled to be re-sentenced as he
             was illegally sentenced based on unconstitutional
             mandatory minimum sentences?

      In his final issue, Appellant challenges the legality of his sentence.

Appellant’s Brief at 268. Specifically, he argues that the trial court’s imposition

of mandatory minimum sentences under Section 9718 violated Alleyne v.

United States, 570 U.S. 99 (2013) and Commonwealth v. Wolfe, 140 A.3d

651 (Pa. 2016). Appellant’s Brief at 268. Appellant concedes that he did not

raise this issue in the PCRA court, but asserts that he is entitled to relief in

light of Commonwealth v. DiMatteo, 177 A.3d 182, 192 (Pa. 2018).

Appellant’s Brief at 269.

      The Commonwealth concedes that Appellant’s aggregate sentences

relied on mandatory minimum sentencing provisions. The Commonwealth,

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however, suggests that a remand is unnecessary. Commonwealth’s Brief at

184-85. Instead, the Commonwealth requests that this Court “effectuate the

intent of the trial court by preserving the overall sentencing structure but

removing the mandatory designations currently affixed to the counts” where

the mandatory sentences were imposed. Id.

       Initially, we note that a challenge to the applicability of a mandatory

sentencing provision such as former Section 9718(a) goes to the legality of

the sentence. See Commonwealth v. Shiffler, 879 A.2d 185, 188-89 (Pa.

2005) (explaining that a challenge to the applicability of Section 9714 raises

question of statutory construction, which is a pure question of law implicating

legality of sentence). In Alleyne, the Supreme Court held that any fact that

increases the sentence for a given crime must be submitted to the jury and

found beyond a reasonable doubt. Alleyne, 570 U.S. 99. The Supreme Court

reasoned that a Sixth Amendment violation occurs where such facts are not

submitted to a jury. Id. at 104. In Wolfe, our Supreme Court, relying on

Alleyne, held that 42 Pa.C.S. § 9718(a) “is irremediably unconstitutional on

its face, non-severable, and void.”30 Wolfe, 140 A.3d at 63.

       Instantly, Alleyne was decided before Appellant’s direct appeal became

final and the instant PCRA petition was timely filed. See DiMatteo, 177 A.3d

____________________________________________


30 The version of Section 9718(a) in effect between 1995 and 2006 imposed
a five-year mandatory minimum sentence for a person convicted of IDSI when
the victim was less than sixteen years of age. See 42 Pa.C.S. § 9718(1) (eff.
1995). In 2006, the General Assembly increased the mandatory minimum
sentence from five to ten years. See 42 Pa.C.S. § 9718(1) (eff. 2006).

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at 192.     Therefore, Appellant is entitled to application of Alleyne,

notwithstanding his failure to raise this claim in the PCRA court.      See id.

Therefore, we agree with the parties that pursuant to the holdings in Alleyne

and Wolfe, the imposition of mandatory minimum sentences was illegal.

Therefore, Appellant is entitled to a remand for re-sentencing without

application of any unlawful mandatory minimum sentences.

      We acknowledge that the trial court explained that the sentence was

“structured as a whole” and that

      [t]here is no significance, therefore, to the fact that the sentences
      on some counts are either concurrent with or consecutive to
      sentences imposed on other counts. The fact that some sentences
      are concurrent or consecutive to other sentences on other counts
      is not any indication that I necessarily believe any one crime is
      more or less serious than any other crime or that the offenses
      against one person are any more or less deserving of punishment
      than the offenses against any other person. I have simply tried
      to simplify an otherwise complex sentencing structure into a more
      easily understood format.

N.T., 10/9/12, at 49.         However, we discern no authority for the

Commonwealth’s suggestion that we may simply strip the trial court’s

sentence of the mandatory minimum designation.

      Accordingly, we affirm that part of the PCRA court’s order denying a new

trial, but we vacate the judgment of sentence in its entirety and remand for

re-sentencing without imposition of mandatory minimum terms.                  See

Commonwealth v. Bartrug, 732 A.2d 1287, 1289 (Pa. Super. 1999)

(holding sentencing error in multi-count case normally requires appellate court




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to vacate entire judgment of sentence so trial court can restructure its

sentencing plan on remand), appeal denied, 747 A.2d 896 (Pa. 1999).

     Order affirmed in part. Judgment of sentence vacated in part. Case

remanded for re-sentencing. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/05/2019




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