J-A15033-24
2024 PA Super 217
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GERALD A. SANDUSKY :
:
Appellant : No. 1059 MDA 2023
Appeal from the Order Entered June 27, 2023
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0002421-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GERALD A. SANDUSKY :
:
Appellant : No. 1060 MDA 2023
Appeal from the Order Entered June 27, 2023
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0002422-2011
BEFORE: DUBOW, J., BECK, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: SEPTEMBER 19, 2024
Appellant Gerald A. Sandusky (“Sandusky”) appeals from the order
entered in the Court of Common Pleas of Centre County denying his motion
for a new trial based on after-discovered evidence. After careful
consideration, we affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A15033-24
In Commonwealth v. Sandusky, 256 A.3d 27 (Pa. Super. 2021) (non-
precedential decision) (“Sandusky III”), a panel of this Court authored an
apt summary of pertinent facts and procedural history of this case, as follows:
On November 4, 2011, after the Thirty-Third
Statewide Investigating Grand Jury issued a
recommendation and presentment, the
Commonwealth charged Appellant with committing
numerous sexual offenses against eight young males
referred to as Victims 1 through 8 in case number
2422-2011....
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.... The matter was held over to the Centre
County Court of Common Pleas, and the Honorable
John M. Cleland was specially appointed to preside.
[Thereafter,] Appellant proceeded to a jury trial. On
June 22, 2012, the jury found Appellant guilty of fortyfive counts relating to the ten victims between 1995
and 2008.fn 1
fn 1 At case number 2421-2011,
Appellant was found guilty of four counts
of involuntary deviate sexual intercourse
(“IDSI”), two counts of indecent assault,
two counts of unlawful contact with a
minor, two counts of corruption of minors,
and two counts of endangering the
welfare of children. At case number 2422-
2011, Appellant was found guilty of four
counts of IDSI, five counts of indecent
assault, seven counts of unlawful contact
with minors, eight counts of corruption of
minors, eight counts of endangering the
welfare of children, and one count of
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criminal attempt to commit indecent
assault. Appellant's crimes “spanned a
thirteen-year period.” Commonwealth
v. Sandusky, 77 A.3d 663, 665 (Pa.
Super. 2013) (“Sandusky I”).
[Commonwealth v. Sandusky, 203 A.3d 1033,] 1041-42 [(Pa.
Super. 2019) (“Sandusky II”)]. Appellant was sentenced to an
aggregate term of thirty to sixty years of imprisonment, which
included the imposition of several mandatory minimum terms
pursuant to 42 Pa.C.S. § 9718(a). He filed a direct appeal to this
Court, which affirmed his judgment of sentence. [Sandusky I,
77 A.3d] at 674. Appellant did not seek allowance of appeal in
the Pennsylvania Supreme Court.
Thereafter, Appellant filed a timely petition for relief pursuant to
the Post-Conviction Relief Act (“PCRA”), which asserted a panoply
of grounds for relief. Following six separate evidentiary hearings,
the PCRA court denied Appellant's petition. On appeal, this Court
affirmed that portion of the PCRA court's holding that denied
Appellant's numerous requests for a new trial,[1] but vacated his
____________________________________________
1 In the PCRA petition reviewed in Sandusky II, Sandusky alleged that the
victims were untruthful and that trial counsel was ineffective for failing to
present expert testimony challenging repressed memory therapy. Sandusky
also claimed ineffectiveness on the part of counsel, asserting Attorney Shubin
obtained information with suggestive interviewing techniques that allegedly
resulted in taint and interference with the victims.
In this regard, the PCRA court notes,
In past proceedings from May 6, 2015, through October 18, 2017,
six evidentiary hearings were held on the PCRA petition
challenging the witnesses’ credibility. Specifically, Dr. Loftus
presented expert testimony on repressed memory. Additional
testimony was presented by an individual who had treated
multiple victims. Both attorneys Amendola and civil counsel
Shubin were also presented as witnesses and thoroughly
examined in testimony during the PCRA proceedings. Mr.
Sandusky also testified. Ultimately, the PCRA petition was denied
by Judge Foradora. On review, the Pennsylvania Superior Court
(Footnote Continued Next Page)
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judgment of sentence as illegal pursuant to Alleyne v. United
States, 570 U.S. 99 (2013) and Commonwealth v. Wolfe,
140
A.3d 651 (Pa. 2016).[] See [Sandusky II,
203 A.3d at 1103-04].
Specifically, this Court found that the imposition of mandatory
minimums in Appellant's case pursuant to § 9718 was
unconstitutional and, therefore, must be vacated. Id.
Appellant filed for allowance of appeal with our Supreme Court,
which denied it. See Commonwealth v. Sandusky, 216 A.3d
1029 (Pa. 2019) (per curiam order). Thereafter, Appellant did not
petition for a writ of certiorari in the U.S. Supreme Court.
On November 22, 2019, Appellant was resentenced to an
aggregate term of thirty to sixty years of incarceration at both
above-captioned cases. See N.T. Sentencing, 11/22/19, at 38-
39. With respect to financial penalties, the sentencing court's
order directed that Appellant pay restitution to the Victim's
Compensation Assistance Program (“VCAP”) in the amount of
$1,706.81. Id. at 46. The sentencing court made no reference
to any other restitution sums owed by Appellant. See also
Sentencing Order, 12/19/19, at 4. This restitution was specifically
imposed with respect to Appellant's conviction at docket number
2422-2011. In addition to the sum referenced above, Appellant's
docket also reflects the imposition of additional restitution in the
amount of $95,047.88. There is no mention of this amount in the
transcripts of the sentencing hearing or the sentencing order.
On December 2, 2019, Appellant filed a timely post-sentence
motion requesting reconsideration of the sentence imposed upon
various grounds. See Post-Sentence Motion, 12/2/19, at ¶ 7(i)-
(vi). However, Appellant did not therein raise any challenge to
the financial conditions of his sentence. On January 28, 2020, the
sentencing court held a hearing at which Appellant argued that
the sentence imposed was unduly harsh in terms of his overall
rehabilitative needs. At the conclusion of the hearing, the
sentencing court denied Appellant's motion. See N.T. Post-Sentence Motion Hearing, 1/28/20, at 24; see also Order,
____________________________________________
held that the PCRA court’s findings were supported by the record
and that Sandusky could not establish that the proffered evidence
would have compelled a different verdict. Sandusky II, [supra].
PCRA Court Opinion, 9/20/23, at 2.
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1/31/20, at 1. Appellant filed timely notices of appeal at the
above-captioned cases in February 2020.[]
On May 9, 2020, Appellant filed in this Court a motion seeking a
new trial upon the basis of after-discovered evidence pursuant to
Pa.R.Crim.P. 720(C). See Motion for New Trial on the Ground of
After-Discovered Evidence, 5/9/20, at ¶¶ 1-68. Alternatively, he
requested remand for further evidentiary hearings. Id. at ¶¶ 69-
70. Two days later, Appellant filed a timely Pa.R.A.P. 1925(b)
concise statements at both cases. In this filing, he asserted for
the first time that the restitution provisions of his criminal
sentence should be vacated. See Rule 1925(b) Concise
Statement, 5/11/19, at ¶ 1. Appellant also noted the Rule 720(C)
motion he had filed in this Court and incorporated those issues in
his concise statement by reference. Id. at ¶ 2(A)-(E).
On June 1, 2020, the sentencing court filed a Rule 1925(a) opinion
asserting that Appellant's claim concerning restitution implicated
the discretionary aspects of his sentence and, ultimately, found
waiver for failure to raise the claim prior to appeal. See Rule
1925(a) Opinion, 6/1/20, at 4. The sentencing court did not
engage with the substance of Appellant's Rule 720(C) arguments,
but “respectfully” raised the issue of whether Appellant had acted
promptly in filing the motion. Id. at 5.
Sandusky III, 256 A.3d 27 at **1-2.
In Sandusky III, this Court affirmed judgment of sentence in part but
vacated his restitution sentence requiring his payment of $95,047.88,
explaining, ““limited remand is appropriate due to conflicting representations
in the record as to the origins of the $95,047.88 in restitution.” Id. at *6.
Though we acknowledged the sentencing court’s position that the figure
reflected the costs of prosecution, we were constrained to conclude the record
did not reveal the same. With that, we directed that, “[u]pon remand, the
sentencing court shall address any outstanding issues related to the
$95,047.88 in restitution discussed above. . . .” Id. at *6.
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On remand, the trial court set the matter for evidentiary hearing on May
17, 2022. On that date, after most of the testimony was taken, the hearing
was continued because a necessary cost witness was unavailable to testify.
The PCRA court continues,
In the interim, Sandusky’s counsel filed a Motion to Unseal a
Transcript and a Motion for a New Trial on the basis of after
discovered evidence. Given Sandusky’s request and the
Commonwealth’s acquiescence to permit Sandusky’s counsel time
to develop an expert report regarding the Motion for a New Trial
and in the interest of judicial economy, [the PCRA court addressed
all matters in one opinion], permitting one appeal to address all
issues. [Therefore, the testimony regarding the issue of
restitution and costs] concluded on May 25, 2023. After testimony
was taken on the issue of costs, the [PCRA court] heard argument
on the Motion for a New Trial and argument on the Motion to
Unseal a Transcript.
PCRA Court Pa.R.A.P. 1925(b) Opinion, 6/27/23, at 1-3.
By the PCRA court’s order and opinion of June 27, 2023, it denied
Sandusky relief on all issues. First, pursuant to this Court’s direction on
remand, the PCRA court vacated the judgment of sentence for restitution to
the extent it comprised court costs associated with the trial. Upon
consideration of testimony at the May 25, 2023, hearing on costs, however,
the PCRA court determined the Commonwealth met its burden of proof in
demonstrating reasonable total costs of $44,688.58, of which $22,766.96
consisted of necessary costs associated with a coalition of local municipal
police departments undertaking additional and special assignments and
working many hours of overtime in the aggregate to meet the heightened
demands of the high-profile, emotionally-charged criminal trial.
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On the issue of Sandusky’s Amended Motion for a New Trial based on
after-discovered evidence, the PCRA court concluded that Sandusky had not
satisfied the four-prong test of Pa.R.Crim.P. 720(c), which requires the
movant to prove that the evidence: (1) could not have been obtained prior to
trial by exercising reasonable diligence; (2) is not merely corroborative or
cumulative; (3) will not be used solely to impeach a witness’s credibility; and
(4) would likely result in a different verdict. Commonwealth v. Castro, 93
A.3d 818, 821 n.7 (Pa. 2014).
Specifically, Sandusky presented new evidence consisting of civil
Attorney Andrew Shubin’s January 15, 2018, interview of victim S.S., who did
not testify at trial, and an April 10, 2021, podcast featuring a known Sandusky
supporter named A.J. Dillen, a young man who broadcasted his experiences
and the content of three-years’ worth of surreptitious recordings of his
meetings with Attorney Shubin and Shubin’s colleague psychologist Cynthia
MacNab. To gain an audience with Shubin and MacNab, Dillen falsely posed
as a former Sandusky child victim with the hope of establishing that Shubin
and MacNab used unduly suggestive interviewing techniques and, in the case
of MacNab, a discredited form of therapy known as repressed memory
therapy, all to cast doubt on the recollections of child victims who testified
against Sandusky in his criminal trial.2
____________________________________________
2 As discussed more thoroughly, infra, this Court, in Sandusky II, previously
rejected a similar after-discovered evidence claim aimed at discrediting victim
witness testimony by alleging the use of repressed memory therapy.
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In its order and opinion of June 27, 2023, the PCRA court applied the
Rule 720(c) factors to Sandusky’s after-discovered evidence and found both
the third-prong and fourth-prong requirements unmet. Regarding the fourth-
prong review, the court found that given the integrity and overall strength of
the evidence supporting Sandusky’s conviction coupled with the lack of
evidence to support the use of either unduly suggestive interview techniques
or repressed memory therapy, Sandusky failed to show the new evidence
would likely result in a different verdict. See also, PCRA Court Pa.R.A.P.
1925(a) opinion, 9/20/23, at 6. Moreover, having rejected the claim that
Shubin and MacNab engaged in repressed memory therapy, the trial court
concluded that Sandusky’s proposed expert report by Dr. Christopher Barden
on the potential effects of repressed memory therapy was rendered moot.
This timely appeal followed.
Sandusky raises the following issues for this Court’s consideration:
1. Whether the trial court erred and denied Sandusky due process
of law in denying Sandusky an evidentiary hearing on his after-discovered evidence claims where genuine issues of material
fact were presented by the information related to S.S.,
Attorney Andrew Shubin, Cynthia MacNab, and A.J. Dillen and
the expert report of Dr. Christopher Barden which called into
question prior factual findings that therapy played no role in
altering and enhancing purported memories and allegations of
abuse and also called into question statements made by the
prosecution that recovered memory/repressed memory
therapy was not at issue?
2. Whether the trial court erred and denied Sandusky due process
of law in denying an evidentiary hearing by finding that the
expert report of Dr. Barden was markedly similar to trial
testimony and PCRA testimony and did not advance any
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argument not explored during the PCRA proceedings where the
S.S. and A.J. Dillen information was unknown and not
presented during those proceedings?
3. Whether the trial court erred and denied Sandusky due process
of law in concluding that the after-discovered evidence
pertaining to S.S., A.J. Dillen, and Attorney Andrew Shubin and
Cynthia MacNab was merely corroborative and cumulative of
evidence introduced at trial, would be used solely for
impeachment purposes, and would not have likely led to a
different outcome?
4. Whether the trial court erred and exceeded its authority in
imposing costs of prosecution of $44,688.58 where the
Superior Court remanded to address restitution under 18
Pa.C.S. § 1106, and not costs, and the bill of costs at issue was
untimely submitted?
5. Whether the trial court erred when it imposed costs in the
amount of $44,688.58, where $22,766.96 of those costs was
not supported by any testimony or verified statements and the
testimony introduced to support imposition of costs was from
individuals who did not create or generate the records utilized?
Brief for Appellant, at 7-8.
Sandusky’s first issue involves a new “after-discovered evidence” claim
centered on the alleged use of repressed memory therapy that he maintains
satisfies the requirements of Pa.R.Crim.P. 720(c) and warrants, at the very
least, an evidentiary hearing, if not an immediate grant of a new trial. As
discussed, the PCRA court denied Sandusky’s request based on his failure to
satisfy the third prong requirement of showing the evidence is not meant
solely to impeach and the fourth prong requirement that the evidence would
likely compel a different verdict if a new trial were granted.
Initially, we note that in Sandusky II this Court reviewed the PCRA
Court’s denial of Sandusky’s timely filed petition for relief in which he sought
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a new trial based on numerous issues, one of which was an after-discovered
evidence claim asserting that some of the allegations against him stemmed
from false witness memories recovered through repressed memory therapy
or suggestive questioning techniques, both of which, Sandusky maintained,
altered the memories unbeknownst to the witnesses and thus made their
testimonies unreliable. The PCRA court conducted an evidentiary hearing
addressing this claim, and victims, A.F’s therapist Dr. Gillum, and Sandusky’s
expert Dr. Loftus testified.
The PCRA court found Dr. Gillum “plainly and credibly” stated he did
not treat patients with repressed memory, had a negative opinion of repressed
memory therapy and did not engage in it. Likewise, victim D.S. acknowledged
that he and his therapists discussed methods of recovering repressed
memories but he stated definitively that he did not undergo repressed memory
therapy prior to Sandusky’s trial. Sandusky II, 203 A.3d at 1059 (quoting
PCRA Ct. Op., 10/18/17, at 38-39))
Sandusky’s expert, Dr. Loftus, opined that her “impressions” gleaned
from Dr. Gillum’s book, statements D.S. made two years after trial, and
excerpted trial testimonies led her to believe the victims had received
repressed memory therapy. The PCRA court accorded Dr. Loftus’ opinion little
weight, however, deeming it to have 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,
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however, that opinion was entirely ineffective to rebut Gillum’s and [D.S.’s]
definitive denials.” Id.
On appeal, Sandusky argued that despite the PCRA court’s findings, his
after-discovered evidence suggested that A.F., D.S., and Matt Sandusky
underwent repressed memory therapy and that if such evidence had been
revealed at trial, he either could have presented expert testimony on
repressed memory and false or altered memories or could have filed a motion
to preclude testimonies based on memories recovered through the technique.
Furthermore, Sandusky insisted that because the focus of his proffer
was the reliability—and not the credibility—of the victims’ testimonies, “the
after-discovered evidence herein is not mere impeachment evidence, as there
is a distinction between credibility and reliability.” Id. (quoting from Brief of
Appellant). On this latter point, our Court noted the Commonwealth’s
characterization that Sandusky was “attempting to circumvent [the third
prong of the after-discovered evidence test, i.e., evidence may not be used
solely to impeach credibility] by pointing out that those who undergo
repressed memory therapy are not lying but ‘are simply relating false
memories.’” Regardless of the distinction, the Commonwealth continued,
Sandusky’s claim fails because “there is no evidence that the witnesses
underwent repressed memory therapy prior to trial.”
Id. at 1060 (quoting
Commonwealth’s Brief at 89).
We set forth the governing authority on the issue, as follows:
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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, 636 Pa. 603,
146 A.3d 221, 227
(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 evidence supporting the
conviction.” Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa.
Super. 2010) (citation omitted).
Sandusky II, 203 A.3d at 1060. 3
Applying this standard, we found the record supported the PCRA court’s
determination that the victims at issue did not undergo repressed memory
____________________________________________
3 In Sandusky III, this Court noted that Pennsylvania Rule of Criminal
Procedure 720 governs Appellant's requests for relief. In pertinent part, it
provides that “[a] post-sentence motion for a new trial on the ground of after-discovered evidence must be filed in writing promptly after such discovery.”
Pa.R.Crim.P. 720(C). The commentary to this rule provides further guidance
with respect to such claims:
[P]aragraph (c) requires that any claim of after-discovered
evidence must be raised promptly after its discovery. Accordingly,
after-discovered evidence discovered during the post-sentence
stage must be raised promptly with the trial judge at the post-sentence stage; after-discovered evidence discovered during the
direct appeal process must be raised promptly during the direct
appeal process, and should include a request for a remand to the
trial judge; and after-discovered evidence discovered after
completion of the direct appeal process should be raised in the
context of the PCRA.
Pa.R.Crim.P. 720 at cmt. (emphasis added). See also 42 Pa.C.S.A. §
9543(a)(2)(vi) (recognizing an after-discovered evidence claim as an issue
cognizable under the PCRA). Thus, a defendant's duty to promptly file a Rule
720(C) motion is directly related to the time of discovery.
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therapy prior to trial, as the PCRA court deemed Dr. Gillum credible when he
“unequivocally denied” using the therapy while deeming Dr. Loftus’ opinion
fatally based on incomplete versions of the record. Therefore, this Court
concluded that by Sandusky’s own argument he could not establish the after-
discovered evidence would be used for a purpose other than impeachment,
nor could he establish that such after-discovered evidence would compel a
different verdict. Id.
In Sandusky III, Sandusky raised another Rule 720(c) claim in which
he sought to present different after-discovered evidence pertaining to notes
and emails written by members of the Louis Freeh investigative team,4 but we
declined to address the merits of this claim after concluding Sandusky failed
to comply with the procedural requirement of Rule 720(c) that he file a
“prompt” post-trial motion for a new trial when he learned of such evidence
during the post-sentence phase but waited six months to file a Rule 720(c)
motion. Id. at *7.
In the case sub judice, Sandusky raises a new after-discovered evidence
claim in a timely-filed PCRA petition in which he again asserts that victim
testimony used against him at trial was tainted through the improper use of
repressed memory therapy and suggestive interviewing techniques. In this
regard, he offers new evidence in the form of a recorded 2018 interview
____________________________________________
4 The investigative team led by Louis Freeh, Esq., was appointed by the Penn
State Board of Trustees to conduct an independent inquiry into events
surrounding Sandusky’s crimes.
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between civil attorney Andrew Shubin and his client, victim S.S., and a 2021
podcast in which “Second Mile” graduate and supporter of Sandusky, A.J.
Dillen, played audio recordings he surreptitiously obtained while falsely posing
as a Sandusky victim in over 100 therapy sessions with Attorney Shubin’s
chosen therapist, Cynthia MacNab. Sandusky argues this new after-
discovered evidence calls into question the court’s prior factual findings that
neither suggestive interviewing techniques nor repressed memory therapy
played a role in altering and enhancing purported memories and allegations
of abuse.
Specifically, Sandusky claims he presented to the PCRA court
“compelling evidence that Attorney Shubin and therapist MacNab tainted the
memories and claims of their clients via suggestive and improper interviewing
and therapy techniques.” Reply Brief of Appellant, at 4. This new evidence,
he insists, “shows that Attorney Shubin helped to alter his clients’ claims of
sexual abuse and that the therapist he sent his clients to, Cynthia MacNab,
was actively engaged in a type of discredited therapy with Shubin’s clients,
including multiple individuals who testified at Sandusky’s trial, that can result
in false memories.” Brief of Appellant, at 30.
From this introduction, Sandusky refers to excerpts from the 2018
interview between Shubin and S.S., who did not testify at Sandusky’s trial
because, Sandusky infers from the record, he had denied sexual abuse during
statements given to law enforcement investigators. Sandusky highlights
where Shubin first asks S.S., generally, if Sandusky ever touched him, which
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draws denials from S.S. such as, “Not that I ever recall, no”, and “I don’t
remember doing nothing”, before asking more specifically if Sandusky tried to
have anal sex with him in the showers, to which S.S. replied, “No.” When
Shubin asks, “Okay, so you don’t remember that happening at all or just not
in the showers?”, S.S. responds, “In the showers, or, I don’t think ever. . . I
don’t think at least. I don’t recall that.” “Motion for New Trial on the Ground
of After-Discovered Evidence and Request for Evidentiary Hearing”,
6/16/2022, Exhibit A, “Interview with [S.S.], PART I”, p. 11.
While S.S. eventually identifies and describes episodes of abuse,
Sandusky underscores that such accusations occurred only after the many
opportunities S.S. had to tell criminal investigators but failed to do so.
Sandusky further highlights another response given by S.S. when he said, “I
just said, ‘no, nothing happened,’ and [I] just buried it even more[,]” to the
extent it may be viewed as parroting a term of art suggested by Shubin. Brief
of Appellant at 32 (emphasis in original).
The Commonwealth disputes the claimed importance and probative
value of such evidence and observes the S.S. interview differently than does
Sandusky. It begins by noting that S.S. was not alone with Attorney Shubin
during the first segment of the interview but was accompanied by his mental
health treatment provider, Jill Curley. Brief of Commonwealth, at 20. The
Commonwealth notes that in the same interview S.S. specifically related being
sexually assaulted by Sandusky in a pool, a dormitory room, in the shower,
and at Sandusky’s home. Id. (citing Motion for New Trial, Exhibit A, supra,
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at pp. 1, 3, 10, and 13). It was only when S.S. asked Ms. Curley to leave the
interview room, but remain nearby—because he was embarrassed to share
graphic details in the presence of a female—that Shubin was alone with S.S.
Id. (citing “Motion for New Trial”, Exhibit A, “Interview with Shawn Sinisi,
PART II, at p.1). Also noteworthy in the Commonwealth’s view, apparently as
it signified a moment of earnest, poignant personal reflection in his own words
rather than a manifestation of undue influence, was S.S.’s observation that,
“. . . up until the edge of now like I don’t know who I am anymore, like he . .
. like he stole like my childhood from me, like I didn’t have a life to grow up
to.” Id. (citing “Motion for New Trial”, Exhibit A, PART II, at p. 25).
Sandusky offers the Atty. Shubin/S.S. interview as a template to apply
to the assessment of three Sandusky victim/accusers who testified against
him at trial—D.S., J.S., and R.R. He observes that, like S.S., these three
witnesses originally denied being subjected to sexual abuse before eventually
changing their stories and alleging abuse only after retaining Shubin and
seeing therapist Cynthia MacNab. Brief of Appellant, at 33.
As for witness A.J. Dillen’s self-styled “sting” operation of Shubin and
MacNab, Sandusky claims it reveals that Shubin likely enhanced his other
clients’ stories of abuse by suggesting the occurrence of additional acts, such
as groping, in the same way that he enhanced Dillen’s story of abuse. Brief
of Appellant, at 34. He offered recordings of their sessions to support his
position that Shubin was suggesting to clients that only by making certain
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accusations would they become eligible to receive large civil suit settlement
offers.5
Dillen presented a similar opinion on Shubin’s colleague, therapist
Cynthia MacNab, with whom he met weekly for three years and surreptitiously
recorded their sessions. According to Sandusky, the critical aspect of the
Dillen/MacNab recordings is that they indicate MacNab espoused an opinion
that some Sandusky accusers “dissociated” and had forgotten—or, stated in
another way, had repressed—memories of abuse. Sandusky offers the
following excerpts of the recordings as creating an issue of material fact
regarding whether MacNab engaged in repressed memory therapy:
MacNab: Having sat with these guys [Sandusky accusers],
some of them, and having watched them struggle with the
aftermath of it and the memories of it, I believe them, the ones
I’ve met with. Because I don’t think people can make that kind of
stuff up unless they’re tremendous actors.
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5 One excerpt included Shubin telling Dillen,
Because victims, and you know this, they come forward and they
. . . you know, they say nothing happened, right? It’s typical,
“Nothing happened to me. Jerry was a father figure to me, right?
And then, you know, they later say, they go before a grand jury
and they say, “Well, you know, something happened but, you
know, it was only this, and I don’t remember,” you know?
And then when they get to the right people, like psychologists,
therapists, you know, the right attorneys and, you know, they
understand that they need to get it all out on the table, otherwise
– you know, that’s their only chance, and then they get the
support because they’re talking to someone who understands, or
they go to a psychologist or a therapist, and then they remember
a whole lot more, right?
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...
I think that it’s hard for people to fake the kind of emotions that I
have seen in some of them. And I think, yeah, you’re right, it’s
subjective, but I have a pretty good bullshit detector, I think, so I
rely on it.
...
MacNab: We’re talking about why you repressed or hid it or
whatever (inaudible).
Dillen: Right.
MacNab: I think that people do repress memories, and I think
that people don’t really – I mean, I think there’s a whole
continuum of what that means. Sometimes it means they totally
forget and it’s not in their consciousness at all until something
happens some time in their life, like they have a child and the child
reaches the age that they were when they were abused, and then
suddenly this stuff comes flooding back, and it’s like, “What the
hell?” So, that’s at this end of the continuum. At this end of the
continuum, the other side is knowing but not wanting to think
about it and sort of putting it out of your mind, the way you deal
with anything that’s unpleasant, but knowing it’s there but just
not focusing on it. And then there’s everything in between. So,
this over here on this end, where they didn’t remember, that’s
repressed memory, and this isn’t, but I prefer to use the term
“dissociation.” Dissociation just means, disconnect, and there’s
different ways that we can disconnect, and we all do it to a greater
or lesser degree, you know?
...
But yes, people can disconnect for years, and they can disconnect
from – what’s the acronym? I’m not going to be able to
remember. They can disconnect from the knowledge of what
happened, they can disconnect from the feelings of what
happened, they can disconnect from the body sensations of what
happened and – there’s one more, I can’t remember it.
(Inaudible) So, -- or all of those. And, you know, you talk about
– a dissociation happens when you’re in a situation that is beyond
what’s normal, what people normally encounter, and combat is a
good example, and I think that’s where we first started learning
about PTSD, was with combat veterans.
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...
A person can be abused, forget about it, and then something
happens that—some little thing, like the way the light comes in
through a window or something can trigger the memory years and
years later, and suddenly they have a memory of being abused,
and it’s very confusing and can kind of startle you (audible) like,
[՝]What the hell is happening?[´]
...
So, we’ve talked about dissociation, and I guess I’ll go again to
that to try to explain this to you. The mind has a lot of stuff built
into it that helps protect it, and one of the things is dissociation. .
. . So, the mind does what it does. It sort of forgets pieces,
forgets pieces or chunks them up so that you don’t have to try to
take in the whole overwhelming thing. Does that make any
sense?
...
I’ve talked to quite few guys who were abused by Jerry Sandusky,
and this is the case pretty much for all of them, they forget. Not
really, because it’s kind of back there, kind of back there[.]
...
Some of them remembered on their own, like you did eventually,
in more adulthood. I talked to a guy yesterday who’s in his 20s
and he didn’t remember until the last six months, I would say, and
he was, like, eight or nine when it happened.
...
Some didn’t remember, some did, but they put it out of their
minds, ‘I’m not going to think about that,’ didn’t tell anybody.
Nobody told anybody.
“John Ziegler Production, ‘With the Benefit of Hindsight’”, 4/10/2021, pp.
112, 116, 122-23, 123, 125, 159, 160, 183, 186.
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Herein, Sandusky contends the trial court erred when it dismissed his
after-discovered evidence claim without first conducting an evidentiary
hearing on his proffer alleging that Attorney Shubin and therapist MacNab
used improperly suggestive interviewing techniques and controversial
repressed memory therapy, respectively, to manipulate those Second Mile
participants who initially denied sexual abuse into changing their stories to
claim sexual abuse victimization.
Regarding when a PCRA court should conduct an evidentiary hearing
on a Rule 720 motion, pertinent decisional law has recognized:
“A post-sentence motion for a new trial on the ground of after-discovered evidence must be filed in writing promptly after such
discovery.” Pa.R.Crim.P. 720(C). The comment to the Rule
states, unlike ineffectiveness claims, evidence discovered during
the post-sentence stage must be raised with the trial court,
evidence discovered while the case is on direct appeal must be
raised then, along with a request for remand to the trial court, and
evidence discovered after direct appeal should be raised in the
context of the PCRA. See id., 720 cmt.
Castro, 93 A.3d 818, 825 n.4 (Pa. 2014).
As Sandusky’s after-discovered evidence claim is raised after the
expiration of time for a direct appeal, we review his claim within the context
of, and according to standards applicable to, the PCRA. Our standard of review
of an order denying PCRA relief is well-established:
Our review of a PCRA court's decision is limited to examining
whether the PCRA court's findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. We view the findings of the PCRA court and the evidence
of record in a light most favorable to the prevailing party. With
respect to the PCRA court's decision to deny a request for an
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evidentiary hearing or to hold a limited evidentiary hearing, such
a decision is within the discretion of the PCRA court and will not
be overturned absent an abuse of discretion. 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. Murchison, 294 A.3d 1251, 1260-61 (Pa. Super. 2023)
(en banc) (quoting Commonwealth v. Mason,
130 A.3d 601, 617 (Pa. 2015)
(citations and quotation marks omitted)).
Applying the standards of the PCRA to Sandusky’s present motion for
an evidentiary hearing pursuant to Rule 720(C), we observe:
The PCRA court may dismiss a petition without conducting an
evidentiary hearing when the court is satisfied that there are no
genuine issues concerning any material fact, the defendant is not
entitled to postconviction collateral relief, and no legitimate
purpose would be served by any further proceedings. See
Pa.R.Crim.P. 909(B)(2); see also Commonwealth v. Johnson,
139 A.3d 1257, 1273 (Pa. 2016).
Further, an evidentiary hearing is intended for the presentation of
evidence, and not the potential discovery of evidence. See
Commonwealth v. Castro, 93 A.3d [at] 828 []. Such a hearing
is not meant to function as a fishing expedition for any possible
evidence that may support a petitioner's speculative claims or
allegations. Id.
Commonwealth v. Soto, No. 831 EDA 2023,
2024 WL 2153513, at *4 (Pa.
Super. Ct. May 14, 2024) (non-precedential decision cited for persuasive
value)6.
____________________________________________
6 This Court may cite its non-precedential memoranda filed after May 1, 2019,
for persuasive value. See Pa.R.A.P. 126(b).
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Within the context of Rule 720(c), it is the movant’s burden to produce
evidence sufficient to satisfy each of the four prongs of the rule, as discussed
supra. See Castro, 93 A.3d at 821 n. 7 (citing Commonwealth v. Pagan,
950 A.2d 270, 292 (Pa. 2008)). After careful review of the record, party
briefs, and the PCRA court’s opinion, we conclude that Sandusky fails to satisfy
the requirements of both the third and fourth prong of Rule 720(c), such that
the PCRA court properly denied him an evidentiary hearing.
Initially, we consider the offer of Mr. Dillen’s recordings of Attorney
Shubin, who stated victims must procure the right attorneys and come to
understand they have only one chance to reveal their story. Despite
Sandusky’s protestations otherwise, such commentary could implicate only
the credibility of the witnesses represented by Attorney Shubin, for if there is
any undue suggestion implicit or explicit in his recorded words at issue, it is
that monetary damages in a civil suit against Sandusky would require a
plaintiff to make certain accusations. Indeed, it strains credulity to suggest
that these words attributed to him, alone, could have altered witnesses’
memories or confused them into falsely believing they were sexual abuse
victims when they previously believed they were not and offered denials to
that effect. Therefore, we discern no error with the PCRA court’s refusal to
grant an evidentiary hearing based on this evidence, which, because it could
serve no defense purpose other than to impeach the testimony of the
witnesses counseled by Attorney Shubin, fails to satisfy the requirements of
the third prong of Rule 720(c). See Sandusky II, 203 A.3d at 1060 (holding
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Sandusky’s failure to establish use of repressed memory, or memory altering,
therapy or technique required the conclusion that evidence could not be used
for a purpose other than impeachment).
Similarly, we perceive no error with the denial of an evidentiary hearing
after review of the secretly recorded statements of therapist Cynthia MacNab
during her sessions with Mr. Dillen, reproduced supra. Nowhere in Dillen’s
account does MacNab suggest she employed repressed memory therapy with
any of the Sandusky witnesses at issue, and we find it particularly noteworthy
that despite Mr. Dillen’s completion of a three-year “sting” operation in which
he gained MacNab’s confidence and received therapy through deception, at no
time does Dillen claim MacNab recommended or implemented repressed
memory therapy in his case. In fact, as the Commonwealth points out, the
recordings revealed that MacNab categorically denied engaging in any
suggestive techniques, including repressed memory therapy, stating to Dillen,
“I did not suggest things to you. I never suggested any memories to you.”
N.T., 4/10/2021, at 211.
The PCRA court determined that both Dillen’s recordings and the
Sandusky-sympathetic podcast commentary based thereon were the product
of a biased producer advocating on Sandusky’s behalf rather than attempting
to discover new facts bearing on the truth-determining process that took place
at trial. Given the PCRA court’s findings, which we determine are supported
by the record and reached after due consideration of the integrity of the
proffered after-discovered evidence, the motives of those offering it, and the
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overall strength of the evidence supporting the conviction, we conclude
Sandusky made no presentation sufficient to warrant an evidentiary hearing,
let alone be awarded a new trial, pursuant to the Rule 702(c). Because he
failed to present any evidence of undue influence of repressed memory
therapy on witnesses, he could meet neither the Rule 702(c) third prong
requirement, as discussed supra, nor the fourth prong requirement that such
evidence would likely compel a different verdict if he were awarded a new
trial. See Sandusky II, 203 A.3d at 1060 (concluding Rule 702(c) fourth
prong not met where credible evidence undermined the after-discovered
evidence claims).
Finally, on the contested interview of Attorney Shubin and S.S.,
recounted supra, Sandusky points to no more than the fact that S.S., like
other Second Mile accusers of Sandusky, denied sexual abuse before being
represented by Attorney Shubin and receiving therapy from MacNab, and then
alleged sexual abuse after receiving therapy. This fact alone is not indicative
of undue influence or suggestion, nor does it imply the use of a discredited
repressed memory therapy by Shubin, MacNab, or anyone else. To award an
evidentiary hearing on nothing more than the occurrence of a common result
of appropriate psychological therapy, i.e., a patient’s eventual
acknowledgment of a difficult traumatic event, would unacceptably lower the
standard for obtaining a hearing to simply having requested one. The
information and evidence presented in this matter do not raise an issue of
material fact. The only facts alleged are that multiple child victims were
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averse to making the difficult revelation of sexual abuse at first but came
forward later. On this record, we find no error with the PCRA court’s order
denying relief without a hearing on Sandusky’s after-discovered evidence. 7
In Sandusky’s remaining issues, he offers a two-part challenge to the
trial court’s order imposing costs after this Court vacated the original
restitution portion of his criminal sentence in the amount of $95,047.88 for
want of a causal connection between the restitution and his underlying crimes.
First, he argues the trial court exceeded its authority conferred by this Court
in our “limited remand” order directing it to address the original restitution
amount when it permitted the Commonwealth to introduce evidence showing
that much of the amount was properly categorized as costs, rather than
restitution, and then enter an order imposing such costs. The Commonwealth
maintains that the trial court followed this Court’s order calling for it to
ascertain the origin and basis of the $95,047.88 restitution and address any
outstanding issues relating to it.
Following remand, a trial court has jurisdiction only to address the issues
upon which the appellate court has based its remand. Commonwealth v.
____________________________________________
7 Because the Attorney Shubin/S.S. interview and the Dillen recordings—
whether considered individually or in conjunction—supplied no indication of
memory altering techniques or therapies used on clients or patients, we
conclude that Sandusky failed to lay the factual or evidentiary basis necessary
to introduce the expert testimony on repressed memory/false memory
therapy or other memory-altering interview techniques that Dr. Barden was
enlisted to provide. See Sandusky II, 201 A.3d at 1063 (holding expert
testimony on the subject of repressed memory would be irrelevant without
underlying evidence that victims underwent repressed memory therapy before
trial).
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Sepulveda, 144 A.3d 1270, 1280 n.19 (Pa. 2016). In Sandusky III, this
Court vacated the restitution component of Sandusky’s criminal sentence and
remanded for further consideration of any outstanding issues related to the
$95,047.88 in question. We directed:
Therefore, we vacate that portion of [Sandusky’s] criminal
sentence at case number 2422-2011 requiring him to pay $
95,047.88 in restitution. Furthermore, limited remanded is
appropriate due to conflicting representations in the record as to
the origins of the $95,047.88 in restitution. Upon remand, the
sentencing court shall address any outstanding issues related to
the $95,047.88 in restitution discussed above and ensure that
[Sandusky] is resentenced in conformity with [18 Pa.C.S.] §
1106(a).
Sandusky III, supra at **5-6.
In assigning the trial court the task of determining the “origins” of, and
“address[ing] any outstanding issues related to,” the $95,047.88 placed into
question, this Court’s remand directive authorized the trial court to properly
reapportion the amount into restitution and court costs, respectively, and
impose court costs as part of that process. Thus, the trial court did not impose
new costs not already contemplated in the original restitution sentence.
Accordingly, we reject Sandusky’s argument that the trial court exceeded the
scope of our remand directive.
In the second part to Sandusky’s challenge to the court’s order imposing
costs, he asserts that the trial court erroneously calculated court costs at
$44,688.58 when, he says, $22,766.96 of those costs was not supported by
any testimony or verified statements and where the individuals responsible
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for creating the records did not testify. The Commonwealth identified the
referenced $22,766.96 as the cost of reimbursing the Bellefonte Borough
Police Department, and it contends that it satisfied its burden of proof and
production through the testimony of Bellefonte Borough Police Chief Shawn
Weaver, who was the designated “Incident Commander” responsible for
organizing an operational group of police officers from neighboring
communities to provide security and other measures during the 2012
Sandusky criminal trial. N.T. at 5/25/2023, at 4-5.
At the hearing on costs, Chief Weaver explained that “through months
and months of preparation meetings with neighboring departments,
neighboring chiefs, with all the stakeholders in the community to include the
school district, the -- PennDOT, emergency management, EMA” and others,
they assumed responsibility for critical public safety and logistical matters.
N.T. at 5. During the preliminary hearing and the nine-day trial, law
enforcement effectuated measures such as temporarily closing roads including
the state highway running in front of the courthouse, escorting school children
walking to and from two elementary schools located near the courthouse to
ensure their safe passage amidst the large influx of media, increased vehicular
traffic, and pedestrian traffic, rerouting vehicular traffic—which Chief Weaver
indicated required “quite a bit of manpower every day to make sure the
vehicular traffic wasn’t . . . interfering with the media[,]” and providing
security details throughout the trial. N.T. at 5-8.
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As to the security detail, Chief Weaver testified that they provided “extra
measures” to ensure the safety of not only the trial judge but also everyone
else involved with the trial. N.T. at 8. He elaborated,
We – not just for the Judge, but for the whole event, we had a
tactical response team which was manned with 3 or 4 special
officers with special equipment every day. We had 5 to 6
additional officers from other jurisdictions assigned to us for the
9-day trial from Penn State, State College, Ferguson Township,
Patton Township. And also, that does not include the normal
compliment of officers that I had out during the day, to include
myself, who were assigned to the 9-day trial as well.
...
[With respect to “extra” security measures for the judge,
witnesses, attorneys], PSP had a helicopter, the state police had
a helicopter. We had another trial going on at the same time, so
we also had details to make sure that the judge[s] arrived safely
for both trials. We had a detail to make sure that the jurors got
in safe, the witnesses for both trials. So, it was a very hectic
morning every day, the mornings were very hectic making sure
everyone arrived safely.
...
[While trial was in session,] a lot of foot patrols were being done.
The tactical team were in their places. We also had a plain clothes
detail that would, you know, operate in the peripheral, if you will.
[Chief Weaver adds that all of the extra measures were taken also
to ensure the safety of Mr. Sandusky.]
...
[With respect to ensuring Mr. Sandusky’s safety during the
preliminary hearing, Chief Weaver explained that] [f]irst of all, we
were briefed daily. Probably like, I would say if I can recall, 2 to
3 weeks prior to the December hearing, preliminary hearing, we
were briefed I would say every other day by PSP intel, intelligence,
on threats, possible threats Mr. Sandusky had against – or, you
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know, remained against him. They were scouring the internet,
you know, blogs, whatnot. So, we were briefed quite a bit on that.
Other steps were we basically had a contingent of 60 sworn
officers, state, local, federal, and the sheriff’s department.
Everything was geared towards the safety of everybody, to include
Mr. Sandusky. We had – for his trip here, we had following
vehicles, police vehicles as well as an aircraft and a live feed to
command post. We had a command post set up at the Logan Fire
Hall, which is about a block east of us – or north of us. We had
numerous foot patrols of state and local officers. . . . We brought
bomb barriers, a barricade – they’re barricades to prevent any
vehicles coming in, we got them from the University. They
basically, if you hit a button if someone tries to go through them,
you know, spikes come up through.
We did a preliminary search of the courthouse with a bomb dog
prior to the hearing. Quite a bit went into it. A lot of preparation,
a lot of – everywhere from having the rope to put barricades out
to having a medical plan in case there was an emergency, in case
of anyone trying to harm Mr. Sandusky. [Chief Weaver goes on
to confirm that for the 9-day trial they “basically mirrored” the
preliminary hearing security details just described.] N.T. at 13.
...
[After each day of trial], [t]here was a transport team that I’m
pretty sure the sheriff’s department provided the vehicle and the
contingent of probation also helped, probation and parole, they
traveled with Mr. Sandusky I do presume. But we had following
our staff in the police vehicles and I do believe several – on several
occasions the state police helicopter was available to help facilitate
that.
...
[Chief Weaver agrees that Sandusky’s trial “obviously involved
overtime for his department” and “the involvement of other
municipalities that [he] mentioned.”]
N.T. 9–15.
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The Commonwealth handed Chief Weaver a copy of the document he
prepared and submitted to “either the Attorney General’s Office or the Court
Administrator’s Office of Centre County” reflecting the overtime hours that
Bellefonte Borough, Spring Township, Ferguson Township, State College, and
Patton Township rendered in connection with the Sandusky trial. N.T. at 16-
17. The total overtime cost submitted was $22,766.96. Chief Weaver testified
that the document he prepared was based on the individual invoices provided
by each municipality at the time, but he explained that all the invoices were
“purged” from their respective files after the passing of 8 years, which was
two years longer than required under statute. N.T. at 17.
Chief Weaver added that the $22,766.96 did not include other hours of
non-sworn officers and “straight time” during which the officer was on duty.
N.T. at 18. He elaborated, “This is way lower that what the actual – you’re
talking about meetings, prep time, drawing up the incident operation plan.
This is probably, I would estimate, 25 percent of [the cost]. That’s not
including administrative time. There’s a lot of hidden costs associated with
this.” N.T. at 18.
The trial court indicated that “in terms of recordkeeping, the
explanation, the court is satisfied with the explanation.” N.T. at 20. Oral
argument on total costs ensued, and the Commonwealth explained that it
arrived at the $44,688.57 figure by subtracting from the initial figure of
$95,047.88 the salaries that had been reimbursed by the state, and the
$7,942.04 costs of incarceration. N.T. at 21.
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Herein, Sandusky’s challenge to the final amount of costs centers on his
contention that, “The Commonwealth presented an invoice through the Centre
County Deputy Court Administrator that referenced reimbursement to the
county for outside law enforcement in the amount of $22,766.96. The
Commonwealth did not present any testimony or evidence on how that figure
was arrived at, and it produced no supporting documentation for that figure.”
Brief of Appellant, at 61.
The Commonwealth counters that the reimbursement was justified
through the detailed testimony of Chief Weaver regarding both the additional
services and overtime incurred by numerous law enforcement officers from
neighboring police departments. Furthermore, the trial court deemed credible
his testimony that the $22,766.96 figure he recorded on the document
submitted to Centre County at the conclusion of the trial was the sum of all
invoices submitted to him by the participating law enforcement departments.
The Commonwealth has the burden of proof to show that the costs of
prosecution incurred were necessary to the prosecution of the defendant.
Commonwealth v. Garzone, 993 A.2d 306 (Pa. Super. 2010)
(acknowledging costs may be allocated to convicted defendants under 16 P.S.
§ 1403 where costs were necessary to bring defendant to conviction). Here,
Sandusky directs us to no authority precluding a trial court from weighing the
evidence presented on the issue of prosecution costs and deciding the matter
on a credibility determination supported by official documentation, nor do we
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find error with the trial court’s credibility assessment under the relevant
record.
Specifically, the trial court acted well within its discretion when it
determined that Chief Weaver supplied credible testimony about not only the
uncommon additional services and overtime required of numerous law
enforcement personnel to maintain the safety of both the public at large and
court personnel, witnesses, lawyers, jurors and parties involved in this high-
profile, emotionally charged criminal trial, but also his preparation of post-trial
documentation he submitted to the county seeking reimbursement of the
$22,766.96 in total expenses incurred by the participating police departments
in the aggregate. This figure, he testified under oath, was supported by post-
trial invoices signed and submitted by each police department in the ordinary
course of business. Although the underlying invoices had been purged long
after the departments had been reimbursed and in a manner consistent with
governing law, the trial court reasonably credited Chief Weaver’s testimony
that all payments had been substantiated with appropriate post-trial
documentation. Accordingly, we reject Sandusky’s challenge to the imposition
of costs.
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Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 9/19/2024
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