Bernard Shero Loses Appeal, by Ralph Cipriano, Big Trial (March 24, 2015)

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.