Commonwealth v. Shero

COMMONWEALTH OF PENNSYLVANIA Appellee v. BERNARD G. SHERO Appellant

J-A30017-14

No. 2164 EDA 2013

SUPERIOR COURT OF PENNSYLVANIA

MARCH 24, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence June 12, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0003529-2011

BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.^*

MEMORANDUM BY MUNDY, J.:

Appellant, Bernard G. Shero, appeals from the June 12, 2013 aggregate judgment of sentence of eight to 16 years' imprisonment, followed by five years' probation, after he was found guilty of one count each of rape of a child, involuntary deviate sexual intercourse (IDSI), endangering the welfare of a child (EWOC), corruption of minors, and indecent assault.¹ After careful review, we affirm.

The trial court summarized the relevant facts and procedural history of this case as follows.

The victim's parents, J.G. (hereinafter "Father") and S.G. (hereinafter "Mother") married in 1981 and had two sons, J.G., Jr. (hereinafter "Brother") and the victim "D.G." The victim and his family resided in the northeast section of Philadelphia. Father was a police sergeant, and Mother was a nurse. Both parents had attended Catholic school and wanted to provide their sons with a similar education. They enrolled D.G. and Brother at St. Jerome's School, the Archdiocese parochial school located within walking distance of their home.

D.G. began attending St. Jerome's School in kindergarten. Physically, D.G. was small for his age. Despite this, D.G. was very active in school sports and he participated in many extra-curricular activities at St. Jerome's, including serving as altar boy. Mother recalled that D.G. was an active and rambunctious young boy. D.G.'s classmate and fellow altar boy, [J.S.P.], remembered D.G. as a "happy kid [who] was always joking."

When D.G. was in seventh and eighth grades at St. Jerome's, however, some of his friends noticed a marked change in D.G.'s demeanor. According to [J.S.P.], D.G. became "real dark," and secluded himself from everybody. Another friend and classmate, [R.B.], confirmed this change in D.G.'s personality, testifying that D.G. became a "loner" and "did not talk to too many people." During this same time period, D.G. complained of testicular pain. D.G. was examined by a pediatrician and a urologist but the cause of the pain was never determined. According to Mother, around this time D.G.'s appetite diminished and he lost weight. Defense witnesses, including St. Jerome's teachers, testified that they did not recall any change in D.G.'s behavior.

After graduating from St. Jerome's, D.G. attended Archbishop Ryan High School where his behavior quickly spiraled out of control. D.G. became a heavy drug abuser and was expelled from Archbishop Ryan for possession of drugs and weapons. After his expulsion, D.G. attended the

International Christian High School where he became good friends with fellow student [L.H.]. Early in their friendship, D.G. and [L.H.] were socializing in D.G.'s basement when D.G. confided to [L.H.] that two priests and a teacher had sex with him when he was in the 5th and 6th grades. [L.H.] was stunned by this revelation, but D.G. did not want to discuss further details of the incident at that time.

[L.H.] testified that there was a teacher at the International Christian High School whom neither he nor D.G. liked because the teacher was "really touchy, feely" and because of "weird vibes that came from him all the time, weird sexual-type vibes." Shortly after the conversation in D.G.'s basement, D.G. and [L.H.] were in a classroom at school when the teacher exhibited what they deemed "creepy" behavior. On this occasion, D.G. again mentioned the prior sexual abuse to [L.H.].

D.G.'s high school years were a nightmare for D.G. and his parents. According to Mother, D.G. cut his wrists, drew images of a gun to his head, and wrote suicide notes. He obtained psychiatric help at an in-patient psychiatric facility, but the treatment did not help and "things continued to get worse and worse." D.G.'s drug addiction worsened as he continued to use drugs including marijuana, Percocet, Oxycontin, LSD, and ultimately became a "full blown heroin addict." Over the years, D.G. was treated at over twenty drug rehabilitation clinics. During this same time period D.G. was arrested several times for offenses including retail theft and possession of drug paraphernalia. D.G.'s most recent arrest for possession of heroin occurred in November 2011.

D.G.'s parents could not understand the complete change in their son's behavior and personality and became concerned that there were serious issues at the root of the problem. Mother and Father pleaded with D.G. to open up to them but D.G. refused. When D.G. was eighteen or nineteen years old, however, he suddenly confessed to hisparents that a priest had sexually abused him. After that revelation, D.G. immediately "shut down" again and refused to discuss it further with his parents. It was apparent to Mother and Father that D.G. was not ready or willing to reveal his entire story. Out of concern for D.G.'s fragile and agitated state, and fearing that he would disappear and overdose on drugs, Mother and Father decided not to report this revelation to the police.

The underlying issues driving D.G.'s self-destructive behavior finally began to emerge in detail in January 2009, when D.G. was approximately 20 years old. While undergoing treatment for his heroin addiction at a drug rehabilitation facility called SOAR, D.G. broke down during a group therapy session and revealed to his drug counselor the fact that he had been sexually abused while a young student at St. Jerome's. On January 30, 2009, with the encouragement of his drug treatment counselor, D.G. called the Philadelphia Archdiocese hotline to officially report the abuse. That day, D.G. spoke with Louise Hagner, the victim assistance coordinator for the Archdiocese. Hagner's duties included receiving reports from victims alleging sexual abuse and working to begin providing services to the victims.

D.G.'s initial phone call to the Archdiocese hotline ultimately led to investigations by the Philadelphia District Attorney's Office and Grand Jury. These investigations brought to light the details of the sexual abuse of D.G. at the hands of Appellant, a lay teacher at St. Jerome's, and two St. Jerome's priests, Charles Engelhardt and Edward Avery. All three men were indicted and warrants were issued for their arrests.

Appellant had agreed to surrender himself to police immediately following the issuance of his arrest warrant. When Appellant failed to surrender himself to authorities as planned, Police Detective Drew Snyder and other members of law enforcement went to Appellant's apartment to apprehend him.

Detective Snyder found the Appellant in his home under the influence of what was described as sleeping pills. During a search of Appellant's apartment, no prescription bottle or other evidence was found to indicate what type of pills Appellant had taken. However, Detective Snyder found an envelope addressed to Appellant's parents that contained a letter, a cashier's check, and cash. This letter was determined to be a suicide note in which Appellant apologized to his parents for the "burden [his] situation" had caused. The letter also described the location of Appellant's various assets and personal effects. An ambulance transported Appellant to the hospital for medical treatment and observation. After a few hours of observation in the hospital's emergency department, Appellant was released into police custody.

D.G.'s accounts of the sexual abuse committed by Appellant and the priests varied at different stages of the investigations. A large portion of the jury trial consisted of the defense presenting witnesses and evidence highlighting the inconsistencies and generally attacking D.G.'s credibility. The prosecution provided evidence and witnesses to account for the inconsistencies and corroborate D.G.'s allegations. The jury, as fact-finders [sic], ultimately made a credibility determination in favor of D.G. and found Appellant guilty. The following description of Appellant's sexual abuse of D.G. reflects D.G.'s consistent sworn testimony before the Grand Jury and during the jury trial.

One afternoon during the spring of his 6th grade year, D.G. was serving school detention. Appellant was the detention supervisor that day and offered to give D.G. a ride home. D.G. got into the car with Appellant and told him where he lived. Appellant, however, drove in the opposite direction to a secluded parking lot in Pennypack Park in northeast Philadelphia. Appellant parked, and D.G. recalled that they "sat there and [Appellant] talked to [D.G.] for a minute" and asked if "[he] 'messed'with girls." Appellant urged D.G. into the back seat of the car and Appellant joined him. Once in the backseat, Appellant started to rub D.G.'s back and undress him. They both began to caress each other's legs and genitals, and D.G. testified that Appellant had D.G. "give [him] a hand job." Appellant next had D.G. perform oral sex on him and then attempted to have anal sex with D.G. D.G. screamed and struggled when Appellant attempted to have anal sex, at which point Appellant had D.G. continue to perform oral sex on him instead. Appellant ultimately ejaculated on the floor and demanded that D.G. get dressed, get out of the car, and walk home. No other incidents of sexual abuse occurred between Appellant and D.G. beyond this one incident.

Trial Court Opinion, 12/17/13, at 2-6 (internal citations and footnotes omitted).

On April 12, 2011, the Commonwealth filed an information, charging Appellant with the above-mentioned offenses, as well as one count each of aggravated indecent assault and criminal conspiracy.² On January 14, 2013, Appellant proceeded to a lengthy, joint jury trial with Charles Englehardt.³ At the conclusion of which,...