Tuesday, March 24, 2015

Bernard Shero Loses Appeal

By Ralph Cipriano
for Bigtrial.net

The state Superior Court has turned down Bernard Shero's request for a new trial.

In a 36-page decision posted online today, a panel of three Superior Court judges ruled that seven appeals issues raised by Shero at a hearing last Oct. 28th "are either waived or devoid of merit."

In their decision, the Superior Court judges affirmed the June 12, 2013 sentence imposed on Shero by Judge Ellen Ceisler. The judge sentenced Shero, 51, to 8 to 16 years in jail after he was convicted by a jury of rape of a child, attempted rape, involuntary deviate sexual intercourse with a child, endangering the welfare of a child, corruption of a minor, and indecent assault.

In its decision, the Superior Court judges did not address the appeal filed on behalf of Shero's co-defendant, Father Charles Engelhardt, except in a footnote to say that the priest's case is "currently pending before this court." Judge Ceisler sentenced Father Engelhardt to 6 to 12 years in jail after being convicted of endangering the welfare of a child, corruption of a minor and indecent assault.

The 67-year-old priest died in prison last November. In spite of his client's death, defense lawyer Michael J. McGovern, and Engelhardt's religious order, the Oblates of St. Francis de Sales, had vowed to continue the appeal,  to clear the priest's name. But the courts aren't bound by such sentiments. When an appellant dies, a court can decide that since there's no longer any controversy, the appeal is "abated."

In the case of Father Engelhardt, it's not stated what the Superior Court will do with the priest's appeal. But in treating Shero's appeal separately, the Superior Court judges didn't do Shero any favors. Twice, the Superior Court judges ruled against Shero for raising appeal issues that applied only to Engelhardt.

McGovern, Engelhardt's lawyer, could not be reached for comment.

Burton A. Rose, the defense lawyer for Shero, said he was "very disappointed" by the Superior Court decision and that he would appeal to the state Supreme Court.

In his appeal to the Superior Court, Rose had accused prosecutors of misconduct for not telling him about a witness they interviewed before trial -- Judy Cruz-Ransom, a social worker who was a victims’ assistance coordinator for the Philadelphia archdiocese.

Cruz-Ransom and another archdiocesan social worker, Louise Hagner, took the first statement from Billy Doe, the alleged victim in the case, after he called in on an archdiocesan hotline to claim he had been abused.

Billy Doe is a grand jury's pseudonym for a former altar boy who claimed when he was 10 and 11, he was raped in separate attacks by two priests and a former school teacher.

In a civil deposition, Cruz-Ransom corroborated the testimony of Hagner in the criminal case: that Billy Doe had appeared sober and seemed to be faking tears as he told the two social workers wild stories about being anally raped by his alleged assailants for hours. Billy also claimed he was punched and knocked unconscious, tied up with altar sashes and strangled with a seat belt.

But when Billy retold his stories to the police and grand jury, all that violence and anal rape was dropped from the narrative. Billy attempted to explain it away by claiming he was high on drugs when he talked to the social workers.

The Superior Court judges, however, ruled that the "bulk of Cruz-Ransom's statements were merely cumulative evidence, as they would serve to corroborate Hagner's testimony."

Cruz-Ransom's statements would only "highlight more inconsistencies" in Billy Doe's accounts of his alleged abuse, "which were already well established to the jury by defense counsel through Hagner's testimony," the Superior Court judges found.

In addition, the Superior Court judges wrote, the state Supreme Court has consistently ruled that claims of new evidence discovered post-trial cannot succeed in an appeal where the sole purpose is to impeach the credibility of a trial witness.

In his appeal, defense lawyer Rose had also faulted Judge Ceisler for allowing the prosecutor, Assistant District Attorney Mark Cipolletti, to misstate evidence in his closing statement to the jury regarding the number of absences Billy Doe had on the final marking period of his sixth grade report card. 

At trial, Billy Doe testified that after he was raped by Shero, his homeroom and English teacher, he became seriously ill and missed a lot of school. 

Billy Doe's report card for the time period in question, however, the fourth quarter of the 1999-2000 school year, showed zero absences. In his closing statement to the jury, prosecutor Cipolletti, according to Rose, told the jury three times that Billy Doe during the fourth quarter of sixth grade was absent 3 1/2 days.

The report card showing zero absences was "evidence of reasonable doubt," Rose told the Superior Court judges when he argued his appeal last October. "Where he [Cipolletti] got that number I don't know."

The defense objected at trial, but Judge Ceisler overruled their objections. Judge Ceisler decided not to instruct the jury that Cipolletti had stated the wrong facts. Instead, the judge decided to rely on the jury's memory of what the facts were.

In their filings with the Superior Court, the district attorney's office acknowledged that Cipolletti got it wrong. However, "without evidence that the Commonwealth's misstatement was intentional," Shero's argument "cannot succeed," the judges wrote.

Merely paraphrasing a witness's testimony, or misquoting it, does not constitute a reversible error unless the "prosecutor deliberately attempts to destroy the objectivity of the jury," the Superior Court judges wrote.

So, absent a confession by Cipolletti, that argument wasn't going anywhere.

In addition, Judge Ceisler had instructed jurors that they were not bound by the prosecutor or the defense lawyers' "recollection of the evidence," the Superior Court judges wrote. Instead, Judge Ceisler told jurors, "It is your recollection of the evidence and your recollection alone that must guide your deliberations."

Another issue in the Shero appeal was raised by McGovern, on behalf of both defendants.

McGovern accused Cipolletti of prosecutorial misconduct for saying in his closing argument that although there was no other alleged victim of Engelhardt out there except for Billy Doe, more victims might be coming forward.

"What he [McGovern] didn't tell you was no child, no student has come forward" -- dramatic pause -- "yet," Cipolletti told the jury.

In their ruling, the Superior Court judges wrote that this closing argument was "directed at Engelhardt." So Shero "cannot vicariously litigate claims of another party," the Superior Court judges wrote.

Shero "cannot be prejudiced by remarks that were directed at Engelhardt" because those remarks "did not implicate" Shero "in any way," the Superior Court judges wrote.

In another appeal issue, the judges used another issue involving Engelhardt to say that it posed no harm to Shero.

In his appeal, defense lawyer Rose had faulted Judge Ceisler for allowing Dr. Gerald Margiotti, a pediatrician, to testify as an expert witness to the jury.

Dr. Margiotti testified about the victim in the case, Billy Doe, saying that Billy's boyhood complaint of testicular pain was consistent with sexual abuse suffered after the alleged attack by Engelhardt.

The defense cried foul because the pediatrician had never examined Billy Doe and was not qualified as an expert. Rose told the Superior Court judges that had he known that Judge Ceisler was going to allow Dr. Margiotti to testify as an expert witness, he would have brought in his own expert witness to refute the doctor.

After Dr. Magiotti testified, the prosecutor told the jury that the doctor's testimony amounted to "scientific medical corroboration" of Billy Doe's accusation of sex abuse, Rose told the judges. Assistant District Attorney Mark Cipolletti told the jury that Billy's testicular pain was a "silent witness" that the victim was telling the truth.

"Dr. Margiotti's testimony was only relative to incidents involving Engelhardt," the Superior Court judges wrote. So Shero was "not permitted to argue that the trial court abused its discretion in admitting testimony against Engelhardt."

McGovern also faulted Judge Ceisler for allowing prosecutor Cipolletti to conduct a lengthy cross-examination during the Engelhardt-Shero trial of his own witness, former priest Ed Avery.

On the eve of the first archdiocese sex abuse trial against Msgr. William J. Lynn, Avery had pleaded guilty to involuntary deviate sexual intercourse with a child and conspiring with Lynn to endanger the welfare of a child. At the time, Avery was facing a possible sentence of 13 1/2 to 17 years, when he cut a deal for a plea bargain that resulted in a  sentence of 2 1/2 to 5 years.

At the second archdiocese sex abuse trial, the Engelhardt-Shero case, the prosecution called Avery as their witness. When Cipolletti asked Avery if he had raped Billy Doe, Avery recanted, saying he had lied to take the plea bargain because he didn't want to die in jail. The truth was that he never touched Billy Doe, Avery told Cipolletti. He wouldn't even know Billy if he was in the courtroom.

Cipolletti, then was allowed by the judge to treat Avery as a hostile witness. The prosecutor proceeded to cross-examine Avery on whether he had abused six other alleged victims, even though there was "no evidence on the record" about any of the other alleged victims, McGovern told the Superior Court judges.

But, the Superior Court judges found, neither defense counsel objected on the basis of "Rule 404, or improper bolstering grounds at trial." Rather the only objection raised was that the questioning of Avery was "outside the scope of everything."

Since neither defense counsel raised "a Rule 404 argument" at trial, "We deem this issue waived," the Superior Court judges wrote.

Shero remains in jail at SCI Houtzdale, Clearfield County, a prison located nearly four hours northwest of Philadelphia.

30 comments:

  1. Under traditional criminal law rules, when a defendant dies during his direct appeal, not only does the appeal "abate," but so, too, does the underlying conviction. The charges would be dismissed entirely. Unless Pennsylvania doesn't follow that traditional rule, Engelhardt's supporters would do just as well or better by encouraging abatement rather than trying to continue with this appeal.

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    1. And the Oblates and Englehardt's family can have a joint press conference to proclaim loudly, once and for all, Englehardt's innocence as a family member and a priest in good order given the fact the appeal abated along with the underlying conviction. They can have the press conference here in Philadelphia and make sure the news media covers it well. That is one way to upstage both Seth Williams and Superior Court, both of whom will choose to remain silent and not try to rebut their arguments.

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  3. Abatement instead of continuing with the appeal may bet he preferred route, but what about getting a pardon from the Governor?

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  4. What the hell happened?

    It looked very favorable for Shero during the October oral arguments. The two female judges (who had apparently thoroughly digested the briefs that were submitted by both sides) were asking the ADA very pointed questions.

    And what's the bullshit about the '404 rule' - improper bolstering grounds at trial? Just because neither defense attorney specifically raised it as such, doesn't the essence of their valid objection about the way that Avery was questioned count for anything? WTF! This sounds like the Superior Court is deliberately playing semantic games.

    The 'justices' took their good old time formulating their reply, probably anticipating an appeal to the Supreme Court.

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  5. Superior Court made that kind of a decision not to help Shero. They know full well an appeal to the Supreme Court by Shero's attorney is more likely as this is what Seth Williams would have done had the appeal gone the other way for Shero by getting the charges dropped against him.

    Point needing to be made is that our criminal system is designed to get defendants convicted and sent to prison regardless of how innocent they may be It is easy to focus on the fates of priests and teacher incarcerated because of Billy Doe and to forget the fate of a black man accused of rape after being picked up by police and taken to lineup where he was picked out by victim. No matter what airtight alibi he may proffer at his defense, a skillful ADA can weave a trove of evidence aimed at getting a jury to convict the man and a judge to send him away for decades. Those things happen a lot as one can be picked up and arrested at any time of the day or night based on a victim's description of her rapist. Plus media coverage of the rape incites public demands on the DA and police to find and get convicted/jailed for life a defendant at all costs. This is what happened to priests and teachers in the infancy stages of the priest abuse scandal as everything possibly was done to ensure the skids were greased toward a conviction. Willing judges Sarmina and Ceisler participated in this type of hanging trial by denying motions by defense to drop charges. Monsignor Lynn was convicted of crimes committed decades before he became a priest and was born by the abusive use of the 1972 Child Endangerment law which did not apply to Lynn as an administrator in its original version and prosecutors were able to use the 2007 version of the law to convict Lynn of crimes he was said to have committed even though he left the position in 2004.

    It does not look good for Shero and it looks like he will have to serve the remaining six years of his incarceration and he has no idea if he will even be paroled after serving that minimum term. All for a rape he did not commit.

    Abatement for Englehardt is the right strategy as when he died, the charges were simply dismissed because he filed an appeal on his conviction. He died as a legally declared innocent person without a criminal record. Had he not filed an appeal, he would have died as a convicted person with a criminal record. Best thing for Englehardt's relatives and the Oblates is to issue a statement saying that Englehardt died a legally innocent person.

    Let's hope for the best for Shero as the appeal goes to the Supreme Court of Pennsylvania. And let's hope good minds on the bench will prevail and that Lynn's appeal will be decided on favorable grounds.

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    1. "All for a rape he did not commit." WRONG! A jury of his peers found that he did indeed commit rape. Your opinion does not invalidate the jury's decision. As for the question of abatement... big deal. That pedophile will never get to sexually abuse another little boy. Go ahead and blame the legal system, the media, the judges... and whoever else you want to blame. Yes, let us "hope for the best" for convicted pedophile Shero... the "best" being that some one in his "home" (for the next several years) gives him a taste of what he gave to that young victim.

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    2. where is the victim in the case? find a juror and see what they have to say now. code of silence they have managed to keep.

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    3. "where is the victim in this case?" I don't know. Why don't you go out and try to find him? Perhaps you could also find the jurors that convicted this pedophile priest and pester them about some "code of silence" they have managed to keep? Funny, you don't seem too concerned about the decades long code of silence from the "men of God" in the hierarchy of this religious sect that enabled these pedophile priests to abuse even more innocent children. When you are through pestering the victim of these crimes (and the jury that found your "heroes" guilty as charged...), maybe you could pester the numerous Bishops and Cardinals who allowed these sexual assaults to fester under their "Christian" supervision.

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  6. Simple answer - judge should have struck from the record Billy Doe's claims of sexual assault when defense attorney filed motion to strike from the record such after stories of sexual assault differed each time they were told. Once stricken from the record, Billy Doe would not exist as a victim in the jury's eyes and they would have nothing to convict the priests and teacher of alleged crimes of sexual assault.

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  7. Goes to show the reach of the DA's office and FOP have in the state.

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    1. DA Seth has no lucrative law firm offers on hand and nobody wants him to run for Mayor or even Governor.

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  8. "Cowardly judges kick can full of sh&^ down road....."

    End of story- for now.

    One must be a true contortionist in order to 'successfully' persecute priests.

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  9. Engelhardt lost his appeal as well... Three molesters (Avery, Engelhardt, and Shero) got what they deserved. Two are rotting in prison, and one is dead. Justice served.

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    1. And, justice was served when OJ's lawyers used politics, lies, distortions and theatrics to 'vindicate' their 'innocent' client.

      This brand of 'justice' was almost served in Ferguson, Mo, where a politically-motivated lynching of another innocent (individually and collectively) was recently turned back- by evidence.

      'Jim Crow's' justice was practiced in the south for three generations.

      Been there, done that- it wasn't good.

      The vicious redefinition of 'justice' will turn on it's leftist owner, beware when the political power base makes its inevitable shift.

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    2. Anon - i have 56 bags of heroin to sell you from the FOP evidence room

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    3. Anonymous @ 1:42. Short and sweet and to the point. Thank You.

      Seth Williams : RETRY MCCORMICK, PUT AWAY BRENNAN and any other piece of scum with a white collar who thinks children are play toys.

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    4. I wholeheartedly agree! They should also go after the members of the hierarchy of this religious sect who facilitated the sexual abuse of innocent children by moving these pedophile priests from location to location, foisting them off on unsuspecting congregations so they could abuse new victims.

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  10. Ultimately, it looks like it was a mistake for Engelhardt's lawyer not to put him on the stand. Why would an innocent man NOT testify on his own behalf at trial? Now he goes down in history as a convicted child molester. Law Enforcement is cleaning house on molesting priests. This is something the Church should have done LONG ago.

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    1. Testifying can backfire on you as it is both the defense and the prosecution who get a crack at you. Remember Father Andy declined to testify the second trial and still won due to another hung jury. Why testify and help them convict you? The jury chose to convict because Judge Ceisler denied various defense motions to strike from the record Danny Gallagher's contrived stories about abuse that he could not keep straight. Had the judge done what she should have done, the jury would have no option other than to acquit both the priest and teacher.

      Ceisler and sister fellow judge Sarmina should be disbarred from the practice of law. Sarmina should not be serving as a civil case judge at all.

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    2. ahh - another monday morning QB

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    3. What kind of "man of God" would refuse an opportunity to swear on his "Holy" book, take the witness stand and shout out his innocence to the whole world? A guilty one, of course. A person that is so lacking in the courage of his convictions that he refused to stand up and proclaim his innocence. A person that has no faith that his God will protect him when he takes the witness stand. Indeed, a true monster... er, I meant "man of God!"

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  11. besides the 404 rule, I saw a number of other rules cited in this denied appeal as well as Fr Engelhardt's ...just a lot of rhetoric from Superior Court that just shows those 2 men didn't stand a chance of winning their appeals in this state........

    danny's constantly shifting stories of abuse clearly illustrated throughout this entire process should have been enough to gain acquittal in the trial......Reasonable Doubt ..... a concept that doesn't seem to have any relevance to this wrongful conviction and incarceration of those 2 innocent me.....all at the hands of a pathological lying drug addict, danny Gallagher......

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  12. What the Engelhardt and Shero family want is the truth to come out. The truth that Daniel Gallagher made up the molestation stories that he couldn't even keep straight himself. The truth being that the only reason this case made its way into the courtroom is because of Dan Gallagher's very connected family which include: First: his father SGT James Gallagher, a 5th district Philadelphia Police Officer, Second, his uncle, Michael Trask, financial secretary for the FOP Lodge 5, and 3rd: Councillman Ron Trask. The Gallagher/Trask family are the scum of the earth but know all the right people. We are aware youf family is suffering in other ways. God works in funny ways.

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    1. The FOP has no control over what a judge does and the Councilman has no way to influence a case against the priest and teacher. The problem is Judge Ceisler and her refusal to grant the defense motions to strike from testimony Danny Gallagher's contrived molestation stories that he could not keep straight himself. No other judge would do what Ceisler and Sarmina did in discharging his or her duties on the bench. What Ceisler and Sarmina did on the bench was akin to an umpire insisting on being able to call four strikes for a strikeout vice the commonly accepted three strikes..

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    2. Both families have heard the truth once at trial and now by the superior court. Charlie and Bernie are child molesters. I can understand them not believing their family member is a child molester but they will go through the stages, denial, anger etc. and finally acceptance. If they wish to have their hearts ripped out every time there is a ruling instead of moving on with their life the only thing I can say is I will pray for them.

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    3. your prayers are not needed.

      the families know the truth - innocent men who were found guilty by a corrupt judicial system that should undergo a review for all involved in this comedy act that continues

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    4. they will go through the stages, denial, anger etc. and finally acceptance...

      perfect example of what the Gallagher family did when they discovered their son daniel, danny was a drug addict, con, thief. easiest way out that he saw was to blame others and the parents agreed. it could not have been their fault that he turned out that way. i mean what mother does not know her son is on drugs, especially one who works in the medical field. and james sr, he would never see the signs being a police officer in the districts he worked in. Denial, denial, denial is where they are still at. money is the ultimate goal for this family and has been since the day he walked into the da's office - "how much money can I get" to paraphrase danny's comment. be proud people that you are defending an individual who hopefully will admit on his deathbed or before he sticks that final needle in his arm that it was all a fabrication of his mind and that the true abuse started within the walls of his home...could never meet the expectations that adopted son james jr. laid out for him to follow.

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    5. They will go through all the stages, denial, anger, etc, and finally acceptance- sounds similar to what a family of alcoholics went through.

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