Com. v. Vanistendael, C.

J-S24021-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER R. VANISTENDAEL
Appellant No. 1080 WDA 2016
Appeal from the PCRA Order June 23, 2016
In the Court of Common Pleas of Venango County
Criminal Division at No: CP-61-CR-0000197-2006
BEFORE: PANELLA, STABILE, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED JULY 28, 2017
Appellant, Christopher R. Vanistendael, appeals from the June 23,
2016 order entered in the Court of Common Pleas of Venango County
(“PCRA court”), denying his petition for collateral relief pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we
reverse.
The PCRA court summarized the factual and procedural history of the
matter as follows.
In May to June of 2004, [Appellant] was acquainted with a
minor, A.L. The minor was then 14 and 15 years of age during
the relevant time frame, born June 8, 1989. [Appellant], 24 at
the time the two became acquainted, born April 26, 1989 [(sic)],
and whose age was known to A.L. On May 17, 2004, A.L. and a
friend snuck out of her home to meet [Appellant], who was
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*
Former Justice specially assigned to the Superior Court.
J-S24021-17
driving his car, with several passengers. A.L. and the others
were provided with Smirnoff malt liquor, and that night she
“made out” with [Appellant]. A.L. again met with [Appellant]
while staying at her friend’s house a week later with her friend,
while [Appellant] drove them around.
On several occasions, A.L. would sneak out of her house
and meet with [Appellant]. On one occasion, her and her friend
Ember met [Appellant] at a cabin, and informed [Appellant] that
she was in eighth grade. However, [Appellant] and A.L. engaged
in sexual acts that night. A.L. testified to 12 to 15 occasions on
which she and [Appellant] engaged in sexual intercourse in his
vehicle and in the cabin, along with oral sex on most of those
occasions. Other witnesses corroborated A.L. and [Appellant]
having sex in the cabin. A.L.’s stepfather eventually became
aware of the relationship via Ember’s mother. A.L.’s father
alerted police, leading to an investigation and eventually charges
brought against [Appellant].
***
Given that [Appellant] was 24 and A.L. was 14-15 at the
time of the relationship, [Appellant] was charged with
Involuntary Deviate Sexual Intercourse (“IDSI”) with a person
less than 16 years of age, Statutory Sexual Assault, Corruption
of Minors, and Indecent Assault of a Person less than 16 years of
age, though this last charge was dismissed by information. After
proceeding to a jury trial, [Appellant] was found guilty on
October 12, 2006. He was sentenced January 22, 2007, to an
aggregate of 10 to 23 years incarceration with a five year
probationary tail.
At trial, [Appellant] was represented by Robert L. Downey,
Esq. Following trial, [Appellant] employed Neil Rothschild, Esq.
Attorney Rothschild consulted [Appellant’s] father, though not
[Appellant] in determining the best strategy following sentence
would not be a direct appeal, limited to the record, but to file a
PCRA petition, opening the possibility of an additional evidentiary
hearing. This PCRA alleging ineffective assistance of trial
counsel for failure to raise a mistake of age defense, was denied.
Attorney Troy M. Frederick filed an appeal of this denial,
alleging Attorney Rothschild to have provided ineffective
assistance for several issues, including failing to file a direct
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appeal, though not for questioning trial counsel’s failure to object
to ADA Carbone’s statements. The Superior court eventually
remanded for hearing on whether [Appellant] waived his direct
appellate rights.
Attorney Karyn A. Rok represented [Appellant] on this
remand, and eventually the Supreme Court of Pennsylvania
reinstated [Appellant’s] direct appeal rights. The direct appeal
challenged in part, the statements challenged in the instant
PCRA petition, but since trial counsel did not object and preserve
the issue, the issue was deemed waived.
Following the exhaustion of this direct appeal, [Appellant]
filed the instant PCRA July 8, 2015. Attorney Pamela R.
Logsdon-Sibley was appointed August 6, 2015. A hearing was
held on the PCRA issues on April 19, 2016. The petition sounds
in claims of prosecutorial misconduct against then-ADA Carbone
for two statements made during his closing arguments.
Assistant District Attorney James C. Carbone
engaged in prosecutorial misconduct in his closing
argument at trial by making statements regarding
putting away a ‘preferential predator’ and ‘how other
people could be harmed if you don’t decide this
right.’ ADA Carbone also improperly commented on
[Appellant’s] silence and his decision not to take the
stand in his closing argument[.] Said statements
prejudiced the jurors to form in their minds a fixed
bias and hostility toward the [Appellant] such that
the jurors could not weight the evidence and render
a true verdict.
[Appellant] then alleges ineffective assistance of counsel claims
against each of his prior attorneys.
Attorney Robert L. Downey, Jr. was ineffective in
failing to object to the aforementioned prosecutorial
misconduct and to request curative instructions or
mistrial. His ineffectiveness so undermined the
truth-determining process that no reliable
adjudication of guilt or innocence could have taken
place.
Attorneys Neil E. Rothschild and Troy M. Frederick
were both ineffective for failing to raise the
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aforementioned prosecutorial misconduct and the
ineffectiveness of Attorney Downey related to that
misconduct.
Attorney Kathryn Rok did raise some of the
prosecutorial misconduct in [Appellant’s] reinstated
direct appeal. However, she failed to raise the
comments on [Appellant’s] silence, or the
ineffectiveness of prior counsel in failing to object to
or address the misconduct it in the first PCRA and
ensuing appeals, resulting in [Appellant’s claim of
prosecutorial misconduct being deemed waived,
although arguable having merit according to the
Superior Court Opinion. Therefore, Attorney Rok
was ineffective in her representation of [Appellant]
on direct appeal.
PCRA Court Opinion, 6/23/16, at 1-4 (internal citations omitted).
Appellant raises one issue on appeal, which we quote verbatim.
I. Is trial counsel ineffective when he fails to object to or ask
for mistrial after inappropriate and inflammatory
comments by the prosecutor in closing arguments
regarding “putting away a preferential predator” and “how
other people could be harmed if you don’t decide this
right.”
Appellant’s Brief at 4.
A PCRA petitioner is entitled to relief if he pleads and proves that prior
counsel rendered ineffective assistance of counsel. 42 Pa.C.S.A.
§ 9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a PCRA petitioner
must plead and prove by a preponderance of the evidence that (1) the
underlying legal claim has arguable merit; (2) counsel had no reasonable
basis for acting or failing to act; and (3) the petitioner suffered resulting
prejudice.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa.
Super. 2015) (en banc). In order to prevail the petitioner must prove all
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three prongs of the Pierce test or the claim fails. Id. (citing
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987)). This Court defers
to the PCRA court’s factual findings and credibility determinations if
supported by the record; however, we review the PCRA court’s legal
conclusion’s de novo. Id. at 779.
The first prong of the Pierce test requires that a petitioner prove the
underlying claim has arguable merit. In the matter sub judice, a panel of
this Court previously determined that merit existed.
In these statements, despite the facetious manner in which
he couched them, Assistant District Attorney Carbone told the
jury that unless they convict [Appellant], other people
(impliedly, other children) would be preyed upon by [Appellant].
These statements imposed a heavy burden on the collective
consciousness of the jury and turned its members’ attention
away from the task of weighing the evidence before them; as
such there is a strong argument that they do constitute
prosecutorial misconduct and that [Appellant] is entitled to a
new trial. See Commonwealth v. Cooper, 941 A.2d 655, 668
(Pa. 2007) (holding that a new trial is warranted where
prosecutor’s comments “prejudice the jurors and form in their
minds a fixed bias and hostility toward the defendant such that
the jurors could not weigh the evidence and render a true
verdict.”).
Commonwealth v. Vanistendael, No. 479 WDA 2013, unpublished
memorandum, at 5 (Pa. Super. filed September 15, 2014). This Court found
that Appellant waived the argument because Attorney Downey failed to
object at the time the statements were made. Id. at 6. However, this Court
noted:
We have read the closing arguments of both parties and
conclude that any plea for sympathy made by defense counsel
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was extraordinarily subtle, as the vast majority of his argument
was dedicated to challenging the credibility of some of the
Commonwealth’s witnesses, who were friends of the victim. In
fact, defense counsel mentioned [Appellant’s] diminished mental
capacity only in context of his argument that he was easily
manipulated by the victim’s friends. Even if defense counsel’s
statement could be viewed as an attempt to curry sympathy for
[Appellant], we cannot agree that a call to save other children by
convicting [Appellant] is a fair rebuttal thereto. No part of the
statement by Assistant District Attorney Carbone at issue
responded to anything said by defense counsel in his closing
argument.
Id. at 6 n.2. Upon review of the record,1 we agree that Appellant
successfully satisfied the first prong of the Pierce test, namely that there is
an arguable claim of prosecutorial misconduct.
The next issue is whether Appellant satisfied the second prong of the
Pierce test, namely, whether counsel had a reasonable basis for acting or
failing to act. “The test for deciding whether counsel had a reasonable basis
for his action or inaction is whether no competent counsel would have
chosen that action or inaction, or, the alternative, not chosen, offered a
significantly greater potential chance of success.” Commonwealth v.
Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (citing Commonwealth v.
Colavita, 993 A.2d 874 (Pa. 2010)).
In the matter sub judice, Appellant’s trial counsel testified as to his
basis for not objecting to the statements made by Assistant District Attorney
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1
Moreover, the PCRA court found that Appellant independently satisfied this
prong of the Pierce test. See PCRA Court Opinion, 6/23/16, at 5.
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Carbone. Essentially, trial counsel “[didn’t] want to throw the spotlight on
the incident. It could be so harmful.” N.T. PCRA Proceeding, 6/20/16, at 3.
In Commonwealth v. Green, 611 A.2d 1294 (Pa. Super. 1992), this Court
found that the prosecutor’s closing argument discussing the number of
homicides in Philadelphia or shootings in Los Angeles constituted egregious
misconduct which could not readily be corrected. Id. at 1299. Thus, this
Court reversed the judgment of sentence and remanded for a new trial. Id.Trial counsel testified that he did not want to object because that could
draw the statement to the attention of the jury. If Appellant was not
entitled to a mistrial, this could be an appropriate tactical decision; however,
the statements made by Attorney Carbone could lead to a mistrial. See
Cooper, 941 A.2d at 668; Green, 611 A.2d at 1299. Thus, it is irrelevant
that such an objection would draw the jury’s attention to the statement
because the jury would be discharged. Therefore, we find that trial counsel
did not have a reasonable basis for failing to object to Attorney Carbone’s
statement that “I’m not gonna even say anything about how we wanna put
away a preferential predator and how other people --- that would be bad;
that would be wrong; I would not do that. How other people could be
harmed if you don’t decide this right.” See N.T. Counsel Openings and
Closings of Jury Trial Only, 10/12/16, at 55-56 (sic).
The final inquiry is whether Appellant satisfied the third prong of the
Pierce test, namely did he establish that he suffered prejudice. As
discussed above, the statements made by Attorney Carbone constitute
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prosecutorial misconduct. Therefore, these statements entitle Appellant to a
mistrial because the jury “could not weigh the evidence and render a true
verdict.”2 See Cooper, 941 A.2d at 668. As such, trial counsel’s failure to
object to the statement by Attorney Carbone led to Appellant’s conviction.
Therefore, we find that Appellant has satisfied the third prong of the Pierce
test.
As we find that Appellant has satisfied all three prongs of the Pierce
test, Appellant is entitled to a new trial due to the ineffective assistance of
trial counsel.
PCRA order reversed and remanded. Jurisdiction relinquished.
Judge Panella joins this memorandum.
President Judge Emeritus Stevens files a dissenting statement.
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2
While the PCRA court noted that it would have sustained the objection but
not ordered a mistrial, the previous panel of this Court believed it was
sufficient to entitle Appellant to a new trial and we agree. See
Vanistendael, 479 WDA 2013, at 4 (citing Cooper, 941 A.2d at 668).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2017
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