Appeal from the Judgment of Entered Sentence July 24, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003530-2011
BEFORE: BENDER, P.J., DONOHUE, J., and MUSMANNO, J.
Appellant, Monsignor William J. Lynn, appeals from the judgment of sentence of 3 – 6 years' incarceration, imposed following his conviction under the pre-amended version of the endangering the welfare of children (EWOC) statute, 18 Pa.C.S. § 4304 (amended 2007). Appellant presents ten questions for our review, generally falling into four categories. First, Appellant challenges the sufficiency of the evidence supporting his conviction by arguing, inter alia, that his conduct was not within the reach of the EWOC statute, either as a principal or an accomplice. Second, he claims the trial court abused its discretion by improperly admitting evidence of twenty-one instances of prior bad acts. Third, Appellant asserts the trial court abused its discretion by improperly charging the jury. Fourth, he claims the trial court abused its discretion when it denied his motion for a mistrial following prosecutorial misconduct that occurred during the Commonwealth's closing argument. After careful review, we reverse.
Appellant served as Secretary for Clergy ("Secretary") for the Archdiocese of Philadelphia ("Archdiocese") from June of 1992 until June of 2004. "During his tenure as Secretary …, in addition to solving disputes among priests, and ensuring that parishes were filled with enough priests, [Appellant]'s responsibilities included handling clergy sexual abuse issues." Trial Court Opinion (TCO), 4/12/13, at 3. In his capacity as Secretary, Appellant did not have direct authority to transfer, remove, or even restrict the nature of a priest's ministry. Such powers rested with the Archbishop. Nevertheless, Appellant "was the sole 'funnel' for information concerning clergy sex abuse, and it was his office alone that could pass on vital information about priests and their young victims up the chain of command." TCO, at 4.
Appellant was one of a limited number of church officials with access to the Archdiocese's Secret Archives, a repository of information regarding any major infraction committed by a priest within the Archdiocese. In 1994, Appellant's investigation into allegations concerning an active priest, whom he found to have had engaged in serious past misconduct as documented within the Secret Archives, prompted Appellant "to conduct a comprehensive review of the priests within the Archdiocese[.]" Id. at 5. Appellant identified thirty-five priests who had previously been accused of sexual misconduct against minors and classified them into three categories: 1) 'pedophiles, ' 2) priest 'guilty of sexual conduct with minors, ' and 3) priests subject to 'allegations of sexual misconduct with minors with no conclusive evidence.' Id.
The first name that appeared under the heading 'guilty of sexual conduct with minors' was that of Reverend Edward V. Avery ("Avery"). In March of 1992, R.F. wrote to Appellant's predecessor, Monsignor Jagodzinski, regarding sexual abuse he suffered at Avery's hands during the 1970's when R.F. was an adolescent. In the letter, R.F. complained that Avery's abuse had "wreaked emotional havoc" on him as a youth, and he wrote to Jagodzinski out of concern for others that might be victimized. However, Jagodzinski was in the process of ending his term as Secretary, and R.F. did not receive a response until Appellant discovered the letter when he began his term as Secretary a few months later. After reading R.F.'s letter, Appellant arranged to meet with him in September of 1992.
At that meeting, attended by R.F., Appellant, and Reverend Joseph R. Cistone, R.F. "divulged the details of his relationship with Avery and how he was victimized." Id. at 7. The trial court reported R.F.'s allegations as follows:
R.F. was one of the altar servers who helped Avery serve Mass. at St. Philip Neri. "[Avery] had a lot of charisma. He was very popular with the young people; did a lot of things for the young people in the parish." R.F.'s relationship with Avery blossomed away from church. Avery gave R.F. his first beer at age 12. Avery took R.F. and other boys from their parish to his home in North Wildwood, NJ, where he provided alcohol. "There was generally beer there. And it was for anyone to consume." There were between eight and ten beds in Avery's loft, where all of the boys would sleep. Avery would come up to that area and wrestle with them. According to [Appellant]'s notes of that meeting, R.F. told him that during these encounters Avery's hand "slipped to [R.F.'s] crotch, at least on two or three occasions."
This pattern of inviting R.F. to participate in seemingly-innocuous activities, and then groping him when vulnerable, escalated when R.F. was 15 years old. Even after Avery was transferred from St. Philip Neri, he maintained a connection with R.F. through the phone and by inviting him to help disc jockey parties. In 1978, after assisting at a number of events at which Avery taught R.F. how to use the disc jockey equipment, Avery took R.F. to Smokey Joe's Cafe in West Philadelphia to help disc jockey a party for college students. Avery allowed the then 15-year-old to drink; after a few hours R.F. became ill and went to the bathroom where he vomited before passing out in a back hallway. Avery took R.F. back to the rectory, where he encouraged the boy to sleep in his bed. When R.F. Awoke several hours later, Avery's hands were inside his shorts.
In June 1981, when R.F. was 18, Avery again lured him to participate in what appeared to be an ordinary activity: Avery invited R.F. on a ski trip to Killington, Vermont. Avery, his brother and R.F. shared a hotel room. In the night, Avery joined R.F. in bed, and again molested the boy after he had gone to sleep. On this occasion, Avery massaged R.F.'s penis until he became erect and ejaculated.
Id. at 7 – 8 (internal citations to the record omitted). After the September, 1992 meeting, R.F. sought assurances from Appellant that Avery would not be permitted to harm anyone else. Appellant reassured R.F., telling him that "the Archdiocese's 'order of priorities is the victim, the victim's family, the Church, and the priest himself.'" Id. at 8.
A week later, Appellant met with Avery. At that meeting:
Avery denied R.F.'s account and expressed "shock" when [Appellant] told him that R.F. was going to counseling for this issue, [however, ] Avery confirmed many of the details of R.F.'s story. Avery admitted that he took kids to his Shore house and "would rough-house with them in the loft …[.]" He admitted to sharing a bed with R.F. while on a ski trip to Vermont, but stated that if he touched R.F. in the night it was "accidental" due to "tossing and turning" because he had "gotten sick on some red sauce from dinner." Finally, Avery admitted that the night R.F. got drunk at Smokey Joe's Cafe, he took the boy back to the rectory, but did "not remember much about the events afterward, since he had so much to drink himself." He admitted it "could be" that something happened while he was under the influence of alcohol that he might not remember. "[Appellant] asked if he thought these things could have happened and Avery responded: I don't know." [Appellant] spoke with Avery on the phone about these allegations again two days later; the notes from that phone interview do not include a denial. Instead, Avery's retort to the allegations was, "[R.F.] has a selective memory."
Id. at 8 – 9.
Following R.F.'s allegations and Avery's tepid denials, Appellant "recommended that Avery be sent to an Archdiocese-affiliated mental health facility, St. John Vianney, for a four-day outpatient evaluation, starting on November 30, 1992." Id. at 9.
As part of the evaluation process, Sandra O'Hara, M.S., the Program Director at St. John Vianney, asked [Appellant] to complete a referral form with "detailed background on issues important for our consideration in assessing Father Avery." Despite Ms. O'Hara's request for details, [Appellant] did not include any information whatsoever about Avery touching R.F. while wrestling, placing his hands inside R.F.'s shorts in the rectory after disc jockeying at Smokey Joe's Cafe, or massaging R.F.'s penis until he ejaculated during their trip to Vermont. Instead, the defendant answered the question, "What specific behaviors/problems have you observed that cause you concern?" by writing, "When asked about these allegations, Fr. did admit to taking the minor into a place serving alcohol while he was disc jockey." [Appellant] also failed to mention that Avery admitted that it "could be" that something happened, and that he had reportedly been under the influence of alcohol. Though
[Appellant] provided St. John Vianney with an incomplete, misleading referral,  the facility still recommended inpatient hospitalization. Cardinal Bevilacqua accepted that recommendation. Roughly six months after Avery was admitted to St. John Vianney Hospital, his primary therapist, Wayne Pellegrini, Ph.D., reported to [Appellant] that Avery "acknowledged that the incident [with R.F.] must have happened …." In addition, Dr. Pellegrini added, "there remains [sic] concerns about the existence of other victims." Dr. Pellegrini strongly recommended continued treatment in order to prevent future abuse: "Finally, Father Ed is at a point in treatment with his shame that necessitates continued inpatient treatment to prevent further acting out." On September 28, 1993, [Appellant] received the final pieces of information regarding Avery's sexual misconduct, treatment and plan for the future prior to his release from St. John Vianney on October 22, 1993. Dr. Pellegrini stated that Avery was not officially diagnosed with a "sexual disorder" because of "a number of reasons." The two reasons given were: "there is only one report of abuse" and "Father Ed had been drinking during those incidents, both by his and the victim's report." Though Dr. Pellegrini's team did not diagnose Avery with a sexual disorder, they still recommended that he receive continued outpatient treatment and that he receive an assignment where he would be separate from children:
The treatment team's recommendations for Father Ed post discharge from the Villa include: One, continued outpatient treatment. Two, an aftercare integration team, ministry supervision. Three, a ministry excluding adolescents and with a population other than vulnerable minorities with whom Father Ed tends to overidentify [sic] with. Four, attendance at a 12-step [Alcoholics Anonymous] meeting for priests.
Id. at 10 – 11.
Appellant's first recommendation for Avery's reassignment within the Archdiocese did not conform to Dr. Pellegrini's advice; Appellant suggested that Avery be placed as an associate pastor at Our Lady of Ransom, a parish with a grade school. Appellant justified the placement in a letter to Monsignor Molloy ("Molloy") based upon the fact that Avery had not been diagnosed as a pedophile, and because the priest at that parish had agreed to "work with a priest who requires some supervision." N.T., 3/27/12, at 51. Nevertheless, Cardinal Bevilacqua, the Archbishop, rejected Appellant's recommendation, and instead suggested that Appellant find a chaplaincy for Avery. Appellant obliged, and soon found an opening for Avery as a chaplain at Nazareth Hospital.
Although chaplains were able to reside at Nazareth Hospital, Appellant successfully petitioned the Cardinal to permit Avery to live in a rectory at St. Jerome's Church pursuant to Avery's request. In a letter dated December, 2, 1993, Cardinal Bevilacqua appointed Avery to the chaplaincy at Nazareth Hospital and residency at St. Jerome's, effective December 13, 1993. Father Joseph Graham ("Graham"), St. Jerome's pastor, was the only church official at St. Jerome's alerted regarding Avery's abuse of R.F. Graham was told by the Archdiocese that Avery "was not to be around children and was to live in the parish, be around other priests, and minister to the local hospital." N.T., 5/23/12, at 50. On February 18, 1994, Appellant placed Avery's name on the list of priests 'guilty of sexual conduct with minors, ' demonstrating his belief that R.F.'s accusations against Avery were truthful. TCO, at 13; N.T., 3/27/12, at 15.
In the first year following Avery's discharge from St. John Vianney, Avery saw a psychologist from that institution on a weekly basis. That psychologist notified Appellant on at least two occasions that Avery's aftercare integration team was slow to organize and that, afterwards, the group only met with Avery sporadically. Then, in late November of 1994, Father Graham contacted Appellant and notified him that Avery had been working as a disc jockey at weddings. Around the same time, Appellant was notified by another chaplain at Nazareth Hospital, Father Kerper, that Avery "keeps accepting many outside commitments, especially on weekends. These commitments usually entail weddings or events where he is the disc jockey." N.T., 3/27/12, at 67. Those commitments had caused some discord with the hospital and with his fellow chaplains, the latter being repeatedly asked by Avery to cover his weekend shifts. In a follow up letter, Father Kerper also indicated that Avery was scheduled to perform as a disc jockey at a dance at St. Jerome's in December of 1994.
In December of 1994, Avery met with his aftercare integration team (consisting of Appellant, Graham, and another priest) and his outpatient care providers from St. John Vianney. At that meeting, Avery was told by Appellant that he was committing too much time to his disc jockey activities. Appellant told Avery that Avery "must make a success of [the chaplaincy] assignment because he will never be assigned to parish work." Id. at 69. Appellant's notes of the meeting went on to state:
Even though this had been said to him before, it seems as if this was the first time he was really ready and able to hear it. This did upset him. I also reminded him he should not have been doing the work as a disc jockey, that he should be concentrating on his work as Chaplain and his own recovery. This, too, seemed to be the first time he could hear what was said.
We agreed he would work out therapy sessions with his therapist. He will continue to see his therapist and follow his aftercare plan. This was an upsetting session for him, but it seems as if he is just beginning to realize all the ramifications of past actions.
N.T., 3/27/12, at 69 – 70 (Commonwealth's Exhibit C-59 read into the record).
On February 22, 1995, Appellant received a letter from Avery's psychologist notifying him that she had agreed to decrease the frequency of Avery's sessions at Avery's request. She wrote that "this treatment approach for Father Avery continues to be positive and I anticipate he will continue to progress toward the goals we have discussed[, ]" but noted that "[i]f he appears to be having difficulty" complying with his treatment regimen under the revised schedule, "the frequency of his sessions will increase according to need." Commonwealth's Exhibit C-60. Father Kerper repeatedly raised concerns about Avery's shirking of his duties as chaplain at Nazareth Hospital until September 27, 1995. At that time, however, Appellant "instructed Father Kerper to convey his concerns about Avery to his supervisor at Nazareth Hospital, not to the Secretary for Clergy." TCO, at 15.
From the time R.F.'s accusations first came to light in 1992 until 1996, R.F. repeatedly wrote to Appellant to inquire about how the Archdiocese was dealing with Avery. For instance, on September 17, 1996, R.F. e-mailed Appellant and therein stated, "I'm not asking for details[, ] what I want to know is[, ] is he rehabilitated or in a situation where he can't harm others. Will the diocese vouch for the safety of its children. For my peace of mind I need to know." TCO, at 15 (quoting Commonwealth's Exhibit C-75). There was no evidence that Appellant ever responded to R.F.'s email. Detective Joseph Walsh, an investigator who "culled and compiled records of the Archdiocese[, ]" testified that as of September of 2002, "there were no documents suggesting that the defendant followed up on R.F.'s concern for other victims." TCO, at 16.
In 1997, Appellant made efforts "to help advance [Avery's] career." Id. Avery wrote the Cardinal to ask for a letter of recommendation in order to pursue a doctoral degree from the Lutheran Theological Seminary of Philadelphia. The letter was passed on to Appellant by the Cardinal's representative with instructions to handle the matter as the Cardinal's delegate. The trial court described the content of that letter and Appellant's follow-up with Avery as follows:
[Appellant] authored a letter describing Avery as a "very sincere, hard[-]working priest. He is honest and trustworthy. He is a man who is in touch with his spiritual life and this becomes evident in his work and service." A few weeks later, [Appellant] followed up with Avery about the letter of recommendation. Even though [Appellant] portrayed Avery as "trustworthy" to the Lutheran Theological Seminary, he told the priest that "in the future he should play things low-key, " and that he had to be "more low-key than he has been recently."
TCO, at 16 (internal citations omitted).
Avery remained in outpatient treatment with St. John Vianney therapists until 1998, and had regularly attended Alcoholics Anonymous meetings for the first two years after his discharge in 1993. Nevertheless, after meeting with Avery in April of 1998, Appellant expressed concerns about Avery's rehabilitation. In a note placed in Avery's Secret Archive file, Appellant wrote that Avery was "minimiz[ing] his experience … and the allegations against him." TCO, at 17 (quoting Commonwealth's Exhibit C-83). During the April, 1998 meeting, Appellant told Avery that he would not recommend him for a position in another diocese because such a recommendation would require Appellant to certify that the priest seeking the transfer "has not had allegations against him." Id.
In the fall of 1998, D.G., a ten-year-old boy just beginning the fifth grade, commenced training to serve as an altar boy at St. Jerome's. D.G. was also a student at St. Jerome's grade school. He advanced quickly in his training and, by the end of his first semester that year, he was a "full-fledged altar boy." TCO, at 17. D.G. began assisting the priests of St. Jerome with Mass. both on weekends and before school on weekdays. He received a schedule from the parish on which he and the other altar boys were given their Mass. assignments up to a month in advance.
D.G. recalled serving Mass. with four priests: Graham, Avery, Englehardt, and McBride. At some point during the winter of 1998 to 1999, Englehardt began sexually abusing D.G. after Masses. Englehardt referred to these events as "sessions." In early 1999, D.G. encountered Avery inside the church after school on a Friday. Avery pulled D.G. aside and told him that he heard about D.G.'s "sessions" with Father Englehardt, and that "ours were going to begin soon." N.T., 4/25/12, at 126. A week later, D.G. was serving weekend Mass. with Avery when Avery told him to stay after the service because their "sessions" were going to begin.
As Mass. ended that day and the parishioners cleared out, D.G. and another altar boy began cleaning up. Eventually the other altar boy left, leaving D.G. alone with Avery. Avery took D.G. into the sacristy,  turned music on, and ordered D.G. to striptease for him. Avery then fondled D.G.'s penis and performed oral sex on him. Avery also penetrated D.G.'s anus with his finger. He then ordered D.G. to perform oral sex on him.
Eventually, Avery ejaculated on the boy's neck and chest. D.G. recalled that Avery told him "[t]hat I'm doing good. God loves me. This is what God wants, and it's time for me to become a man." N.T., 4/25/12, at 132. Two weeks later, after D.G. served Saturday Mass. with Avery, Avery subjected D.G. to another "session." D.G. was sexually abused in a similar fashion as the previous occasion, with the additional indignity of having Avery lick his anus. Afterward, Avery told D.G. that he did a good job, God loved him, and that Avery would be seeing him again soon. Id. at 140.
Avery did not abuse D.G. after the second incident, as D.G. found ways to avoid Avery by switching his scheduled Masses with other altar boys. Nevertheless, the effect of the sexual abuse committed by Avery was devastating. "Leading up to his sixth grade year, D.G. had become withdrawn and began using drugs. Alcohol and marijuana [abuse] gave way to [abuse] of Percocet, Oxycontin, and Xanax, until D.G. developed a full blown heroin addiction." TCO, at 18. Avery's abuse of D.G. was not reported to the Archdiocese until January 30, 2009, by which time the Appellant was no longer Secretary for Clergy. Appellant left that position to become the pastor at St. Joseph's Parish on June 28, 2004.
Two years after Avery's abuse of D.G. concluded, the child sex abuse scandal in the Archdiocese of Boston erupted, causing leaders in the Catholic Church to reexamine the manner in which they dealt with priests accused of sexually abusing minors. Consequently,
leaders of the Catholic Church met in Dallas in June 2002 and produced the "Dallas Charter, " which set forth requirements that the Diocese[s] around the nation had to follow when it came to child sex abuse. The "Dallas Charter" is a document in which the bishops of the United States "pled [sic] to the Catholics of the United States that they would offer proper care, spiritual, psychological care, to victims of sexual abuse by the clergy and offer prompt and proper investigation of accusations and dealings with those accused." As part of that promise, the Charter required each Diocese to establish a Review Board to evaluate and act upon allegations of clergy sex abuse. Additionally, the Charter eliminated the possibility of restricting a priest's ministry. While the scandal in Boston and the Dallas Charter were visible turning points in the Church's public stance on allegations of sexual misconduct, canonical law had always prohibited clergy sex abuse. For example, "No. 8 of the Essential Norms, " which was in place long before 2002, stated:
When even a single act of sexual abuse by a priest or deacon is admitted or is established after an appropriate process in accord with canon law, the offending priest or deacon will be removed permanently from ecclesiastical ministry, not ...