J-S24021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER R. VANISTENDAEL

                            Appellant                 No. 1080 WDA 2016


                   Appeal from the PCRA Order June 23, 2016
               In the Court of Common Pleas of Venango County
               Criminal Division at No: CP-61-CR-0000197-2006


BEFORE: PANELLA, STABILE, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                              FILED JULY 28, 2017

        Appellant, Christopher R. Vanistendael, appeals from the June 23,

2016 order entered in the Court of Common Pleas of Venango County

(“PCRA court”), denying his petition for collateral relief pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we

reverse.

        The PCRA court summarized the factual and procedural history of the

matter as follows.

        In May to June of 2004, [Appellant] was acquainted with a
        minor, A.L. The minor was then 14 and 15 years of age during
        the relevant time frame, born June 8, 1989. [Appellant], 24 at
        the time the two became acquainted, born April 26, 1989 [(sic)],
        and whose age was known to A.L. On May 17, 2004, A.L. and a
        friend snuck out of her home to meet [Appellant], who was
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*
    Former Justice specially assigned to the Superior Court.
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     driving his car, with several passengers. A.L. and the others
     were provided with Smirnoff malt liquor, and that night she
     “made out” with [Appellant]. A.L. again met with [Appellant]
     while staying at her friend’s house a week later with her friend,
     while [Appellant] drove them around.

           On several occasions, A.L. would sneak out of her house
     and meet with [Appellant]. On one occasion, her and her friend
     Ember met [Appellant] at a cabin, and informed [Appellant] that
     she was in eighth grade. However, [Appellant] and A.L. engaged
     in sexual acts that night. A.L. testified to 12 to 15 occasions on
     which she and [Appellant] engaged in sexual intercourse in his
     vehicle and in the cabin, along with oral sex on most of those
     occasions. Other witnesses corroborated A.L. and [Appellant]
     having sex in the cabin. A.L.’s stepfather eventually became
     aware of the relationship via Ember’s mother. A.L.’s father
     alerted police, leading to an investigation and eventually charges
     brought against [Appellant].

                                    ***

           Given that [Appellant] was 24 and A.L. was 14-15 at the
     time of the relationship, [Appellant] was charged with
     Involuntary Deviate Sexual Intercourse (“IDSI”) with a person
     less than 16 years of age, Statutory Sexual Assault, Corruption
     of Minors, and Indecent Assault of a Person less than 16 years of
     age, though this last charge was dismissed by information. After
     proceeding to a jury trial, [Appellant] was found guilty on
     October 12, 2006. He was sentenced January 22, 2007, to an
     aggregate of 10 to 23 years incarceration with a five year
     probationary tail.

           At trial, [Appellant] was represented by Robert L. Downey,
     Esq. Following trial, [Appellant] employed Neil Rothschild, Esq.
     Attorney Rothschild consulted [Appellant’s] father, though not
     [Appellant] in determining the best strategy following sentence
     would not be a direct appeal, limited to the record, but to file a
     PCRA petition, opening the possibility of an additional evidentiary
     hearing.     This PCRA alleging ineffective assistance of trial
     counsel for failure to raise a mistake of age defense, was denied.

            Attorney Troy M. Frederick filed an appeal of this denial,
     alleging Attorney Rothschild to have provided ineffective
     assistance for several issues, including failing to file a direct


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     appeal, though not for questioning trial counsel’s failure to object
     to ADA Carbone’s statements. The Superior court eventually
     remanded for hearing on whether [Appellant] waived his direct
     appellate rights.

           Attorney Karyn A. Rok represented [Appellant] on this
     remand, and eventually the Supreme Court of Pennsylvania
     reinstated [Appellant’s] direct appeal rights. The direct appeal
     challenged in part, the statements challenged in the instant
     PCRA petition, but since trial counsel did not object and preserve
     the issue, the issue was deemed waived.

            Following the exhaustion of this direct appeal, [Appellant]
     filed the instant PCRA July 8, 2015.         Attorney Pamela R.
     Logsdon-Sibley was appointed August 6, 2015. A hearing was
     held on the PCRA issues on April 19, 2016. The petition sounds
     in claims of prosecutorial misconduct against then-ADA Carbone
     for two statements made during his closing arguments.

           Assistant District Attorney James C. Carbone
           engaged in prosecutorial misconduct in his closing
           argument at trial by making statements regarding
           putting away a ‘preferential predator’ and ‘how other
           people could be harmed if you don’t decide this
           right.’ ADA Carbone also improperly commented on
           [Appellant’s] silence and his decision not to take the
           stand in his closing argument[.] Said statements
           prejudiced the jurors to form in their minds a fixed
           bias and hostility toward the [Appellant] such that
           the jurors could not weight the evidence and render
           a true verdict.

     [Appellant] then alleges ineffective assistance of counsel claims
     against each of his prior attorneys.

           Attorney Robert L. Downey, Jr. was ineffective in
           failing to object to the aforementioned prosecutorial
           misconduct and to request curative instructions or
           mistrial.   His ineffectiveness so undermined the
           truth-determining      process  that    no   reliable
           adjudication of guilt or innocence could have taken
           place.

           Attorneys Neil E. Rothschild and Troy M. Frederick
           were both ineffective for failing to raise the

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            aforementioned prosecutorial misconduct and the
            ineffectiveness of Attorney Downey related to that
            misconduct.

            Attorney Kathryn Rok did raise some of the
            prosecutorial misconduct in [Appellant’s] reinstated
            direct appeal.    However, she failed to raise the
            comments      on   [Appellant’s]    silence,    or   the
            ineffectiveness of prior counsel in failing to object to
            or address the misconduct it in the first PCRA and
            ensuing appeals, resulting in [Appellant’s claim of
            prosecutorial misconduct being deemed waived,
            although arguable having merit according to the
            Superior Court Opinion. Therefore, Attorney Rok
            was ineffective in her representation of [Appellant]
            on direct appeal.

PCRA Court Opinion, 6/23/16, at 1-4 (internal citations omitted).

      Appellant raises one issue on appeal, which we quote verbatim.

      I.    Is trial counsel ineffective when he fails to object to or ask
            for mistrial after inappropriate and inflammatory
            comments by the prosecutor in closing arguments
            regarding “putting away a preferential predator” and “how
            other people could be harmed if you don’t decide this
            right.”

Appellant’s Brief at 4.

      A PCRA petitioner is entitled to relief if he pleads and proves that prior

counsel    rendered   ineffective   assistance   of   counsel.   42    Pa.C.S.A.

§ 9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a PCRA petitioner

must plead and prove by a preponderance of the evidence that (1) the

underlying legal claim has arguable merit; (2) counsel had no reasonable

basis for acting or failing to act; and (3) the petitioner suffered resulting

prejudice.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa.

Super. 2015) (en banc).     In order to prevail the petitioner must prove all

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three    prongs   of   the   Pierce   test   or   the   claim   fails.   Id.   (citing

Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987)).                  This Court defers

to the PCRA court’s factual findings and credibility determinations if

supported by the record; however, we review the PCRA court’s legal

conclusion’s de novo. Id. at 779.

        The first prong of the Pierce test requires that a petitioner prove the

underlying claim has arguable merit. In the matter sub judice, a panel of

this Court previously determined that merit existed.

              In these statements, despite the facetious manner in which
        he couched them, Assistant District Attorney Carbone told the
        jury that unless they convict [Appellant], other people
        (impliedly, other children) would be preyed upon by [Appellant].
        These statements imposed a heavy burden on the collective
        consciousness of the jury and turned its members’ attention
        away from the task of weighing the evidence before them; as
        such there is a strong argument that they do constitute
        prosecutorial misconduct and that [Appellant] is entitled to a
        new trial. See Commonwealth v. Cooper, 941 A.2d 655, 668
        (Pa. 2007) (holding that a new trial is warranted where
        prosecutor’s comments “prejudice the jurors and form in their
        minds a fixed bias and hostility toward the defendant such that
        the jurors could not weigh the evidence and render a true
        verdict.”).

Commonwealth v. Vanistendael, No. 479 WDA 2013, unpublished

memorandum, at 5 (Pa. Super. filed September 15, 2014). This Court found

that Appellant waived the argument because Attorney Downey failed to

object at the time the statements were made. Id. at 6. However, this Court

noted:

        We have read the closing arguments of both parties and
        conclude that any plea for sympathy made by defense counsel

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       was extraordinarily subtle, as the vast majority of his argument
       was dedicated to challenging the credibility of some of the
       Commonwealth’s witnesses, who were friends of the victim. In
       fact, defense counsel mentioned [Appellant’s] diminished mental
       capacity only in context of his argument that he was easily
       manipulated by the victim’s friends. Even if defense counsel’s
       statement could be viewed as an attempt to curry sympathy for
       [Appellant], we cannot agree that a call to save other children by
       convicting [Appellant] is a fair rebuttal thereto. No part of the
       statement by Assistant District Attorney Carbone at issue
       responded to anything said by defense counsel in his closing
       argument.

Id. at 6 n.2.        Upon review of the record,1 we agree that Appellant

successfully satisfied the first prong of the Pierce test, namely that there is

an arguable claim of prosecutorial misconduct.

       The next issue is whether Appellant satisfied the second prong of the

Pierce test, namely, whether counsel had a reasonable basis for acting or

failing to act. “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.”       Commonwealth v.

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

Colavita, 993 A.2d 874 (Pa. 2010)).

       In the matter sub judice, Appellant’s trial counsel testified as to his

basis for not objecting to the statements made by Assistant District Attorney


____________________________________________


1
 Moreover, the PCRA court found that Appellant independently satisfied this
prong of the Pierce test. See PCRA Court Opinion, 6/23/16, at 5.



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Carbone. Essentially, trial counsel “[didn’t] want to throw the spotlight on

the incident. It could be so harmful.” N.T. PCRA Proceeding, 6/20/16, at 3.

In Commonwealth v. Green, 611 A.2d 1294 (Pa. Super. 1992), this Court

found that the prosecutor’s closing argument discussing the number of

homicides in Philadelphia or shootings in Los Angeles constituted egregious

misconduct which could not readily be corrected. Id. at 1299. Thus, this

Court reversed the judgment of sentence and remanded for a new trial. Id.

      Trial counsel testified that he did not want to object because that could

draw the statement to the attention of the jury.         If Appellant was not

entitled to a mistrial, this could be an appropriate tactical decision; however,

the statements made by Attorney Carbone could lead to a mistrial.          See

Cooper, 941 A.2d at 668; Green, 611 A.2d at 1299. Thus, it is irrelevant

that such an objection would draw the jury’s attention to the statement

because the jury would be discharged. Therefore, we find that trial counsel

did not have a reasonable basis for failing to object to Attorney Carbone’s

statement that “I’m not gonna even say anything about how we wanna put

away a preferential predator and how other people --- that would be bad;

that would be wrong; I would not do that.         How other people could be

harmed if you don’t decide this right.”      See N.T. Counsel Openings and

Closings of Jury Trial Only, 10/12/16, at 55-56 (sic).

      The final inquiry is whether Appellant satisfied the third prong of the

Pierce test, namely did he establish that he suffered prejudice.             As

discussed above, the statements made by Attorney Carbone constitute

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prosecutorial misconduct. Therefore, these statements entitle Appellant to a

mistrial because the jury “could not weigh the evidence and render a true

verdict.”2 See Cooper, 941 A.2d at 668. As such, trial counsel’s failure to

object to the statement by Attorney Carbone led to Appellant’s conviction.

Therefore, we find that Appellant has satisfied the third prong of the Pierce

test.

        As we find that Appellant has satisfied all three prongs of the Pierce

test, Appellant is entitled to a new trial due to the ineffective assistance of

trial counsel.

        PCRA order reversed and remanded. Jurisdiction relinquished.

        Judge Panella joins this memorandum.

        President Judge Emeritus Stevens files a dissenting statement.




____________________________________________


2
  While the PCRA court noted that it would have sustained the objection but
not ordered a mistrial, the previous panel of this Court believed it was
sufficient to entitle Appellant to a new trial and we agree.           See
Vanistendael, 479 WDA 2013, at 4 (citing Cooper, 941 A.2d at 668).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/28/2017




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