Argued November 18, 2014.
Appeal from the Judgment of the Superior Court entered on 12/26/2013 at No. 2171 EDA 2012 reversing the judgment of sentence entered on 7/24/2012 in the Court of Common Pleas, Criminal Division, Philadelphia County at No. CP-51-CR-0003530-2011. 2013 PA Super 327, 83 A.3d 426 .
Appeal Allowed May 8, 2014 at 26 EAL 2014.
Trial Court Judge: M. Teresa Sarmina, Judge.
Intermediate Court Judges: John T. Bender, President Judge; Christine Donohue, Judge; John L. Musmanno, Judge.
For Commonwealth of Pennsylvania, APPELLANT: Hugh J. Burns Jr., Esq., Ronald Eisenberg, Esq., Edward F. McCann Jr., Esq., Philadelphia District Attorney's Office, R. Seth Williams, Esq.
For William Lynn, APPELLEE: Thomas A. Bergstrom, Esq., Allison Khaskelis, Esq., H. Marc Tepper, Esq., Buchanan Ingersoll & Rooney, P.C.
MR. JUSTICE BAER. CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, STEVENS, JJ. Former Chief Justice Castille did not participate in the decision of this case. Mr. Justice Eakin, Madame Justice Todd and Mr. Justice Stevens join the opinion. Mr. Chief Justice Saylor files a dissenting opinion.
MR. BAER, JUSTICE.
Following a jury trial on charges that he endangered the welfare of children, William Lynn (Appellee) was convicted and sentenced to a term of three to six years of incarceration. On appeal from his judgment of sentence, he challenged the sufficiency of the evidence to sustain his conviction, contending that he had no direct supervision of the children he was found to have endangered. The Superior Court agreed, and reversed his conviction. On the Commonwealth's appeal, we reverse the Superior Court, concluding that there is no statutory requirement of direct supervision of children. Rather, that which is supervised is the child's welfare. Under the facts presented at trial, Appellee was a person supervising the welfare of many children because, as a high-ranking official in the Archdiocese of Philadelphia, he was specifically responsible for protecting children from sexually abusive priests.
Following eight years of education at St. Charles Borromeo Seminary in Wynnewood, Pennsylvania, Appellee graduated with a Bachelor's degree in Philosophy, and went on to earn two Master's degrees, in Divinity and Education Administration. Appellee was ordained as a priest in the Catholic Church on May 15, 1976. He served as a parish priest for eight years before becoming the Dean of Men at St. Charles Borromeo Seminary in 1984. In January 1991, Appellee was appointed Associate Vicar in the Office of the Vicar for Administration in the Archdiocese of Philadelphia. As Associate Vicar, one of Appellee's responsibilities was to assist Monsignor James Molloy by taking notes when they met with people regarding the sexual abuse of a minor by a member of the clergy, and, consequently, Appellee learned how to interview sexual abuse victims and record their allegations against a priest. N.T. 5/23/2012 at 183-85. In June 1992, Cardinal Anthony Bevilacqua appointed Appellee Secretary for Clergy for the Archdiocese of Philadelphia, where he served for twelve years, until June 2004.
As Secretary for Clergy, Appellee was responsible for ensuring that parishes were filled with enough priests, resolving disputes among priests, and handling clergy sexual abuse issues. N.T. 5/23/2012 at
Building upon the experience he acquired assisting Monsignor Molloy, Appellee learned how to handle the victims of clergy sex abuse and the priests who sexually abused minors, becoming the " point man" in the investigation into such allegations of clergy sexual abuse of minors within the Archdiocese of Philadelphia. N.T. 5/7/2012 at 246; 5/23/2012 at 173-202, 219-20. In this regard, it was his role to collect and assess information concerning allegations of sexual abuse against priests in the Archdiocese, discuss the allegations with the accused priests, participate in deciding how to address the allegations, and make recommendations to the Cardinal about the priests against whom allegations were made.
Indeed, by his own account, Appellee was the sole " funnel" of information concerning instances of clergy sex abuse, and it was his office alone that was responsible for not only receiving the allegations and exploring them, but also for passing vital information about abusive priests and their young victims up the chain of command in the Archdiocese. N.T. 5/23/2012 at 201, 220. Although he could only independently remove a priest from a parish if that priest admitted that he had abused someone, N.T. 5/23/2012 at 77, it was Appellee's responsibility to make recommendations about assignments to the Cardinal, who had the ultimate decision making authority. For example, Appellee could make recommendations to place a priest on administrative leave or restrict a priest's ministry by, for instance, prohibiting contact with the public or with children. In this respect, Appellee characterized protecting children as the most important part of his job, and explained that he worked " for" the children of the Archdiocese. N.T. 5/24/2012 at 56.
Upon learning of an abusive priest, Appellee considered his first priority to be the welfare of the victim. N.T. 5/24/2012 at 115 (" I mean, of course, I always understood that the child victim would come first." ); 5/23/2012 at 190-91 (when the prosecutor asked Appellee if there was " any job more important than protecting one of the innocent kids who was being sexually abused," Appellee answered in the negative). According to Appellee, the purpose of his investigations was, at least in part, to determine whether the offending priest " should be removed from ministry and taken out of the -- and children could be taken out of his way." N.T. 5/16/2012 at 98.
When Appellee first assumed the office of Secretary for Clergy in June 1992, he collected information about " problem priests" on a " need-be basis," whenever he received complaints about them. N.T. 5/7/2012 at 261. In addition, his position authorized him to be one of the few officials within the Archdiocese of Philadelphia with access to the " Secret Archives." The Secret Archives were located on the 12th floor of the Office of Clergy and maintained under lock and key; they contained information about " any kind of major infractions a priest would have," and which only a " very, very limited number of people within the Archdiocese had access to or a key to." N.T. 3/26/2012 at 213-14. The Secret Archives were largely in Appellee's control as Secretary for Clergy, and he routinely consulted them to determine if there was already information contained therein relevant to a priest about whom he had received complaints.
In early 1994, after receiving information about a particular priest, Rev. Dux, who was then in active ministry, Appellee consulted the Secret Archives and discovered documentation that this particular
priest had engaged in serious sexual misconduct in the past. This discovery caused Appellee to become concerned that there were other priests in active service against whom allegations of abuse had been asserted, and accordingly prompted him to conduct a comprehensive review of the Secret Archives to check for incidents of child sexual abuse among all priests in active ministry within the Archdiocese of Philadelphia.
This review encompassed 323 priests and resulted in a report created by Appellee on February 18, 1994, entitled " Report from the Secretariat for Clergy" (referred hereafter as " February 18, 1994 Report" ). This report identified 35 priests in active service with previous complaints of sexual abuse of minors. Appellee placed each of these 35 priests on one of three lists: three priests were identified as " pedophiles; " 12 priests as " Guilty of Sexual Misconduct with Minors; " and 20 were included on a list entitled " Allegations of Sexual Misconduct with Minors with No Conclusive Evidence." N.T. 5/16/2012 at 182-98. Regarding the 12 priests that Appellee determined were guilty of sexual misconduct with minors, he considered it his job " to do something about [them]." N.T. 5/16/2012 at 47.
Reverend Edward V. Avery was the first name on Appellee's list of priests whom he considered to be guilty of sexual misconduct with minors. Appellee was personally familiar with Rev. Avery, who had come to Appellee's attention about a year and a half earlier when he first became Secretary for Clergy, before he performed the comprehensive review of the Secret Archives. Appellee had investigated allegations into Rev. Avery's conduct, and memorialized his understanding of these allegations with notations to Rev. Avery's Secret Archives file indicating " alcoholism and action with same minor three times," and " action occurred more than five years ago." As will be discussed more fully below, the information contained in Rev. Avery's Secret Archives file revealed that he had built a trusting relationship with this minor, R.F., in his church, groomed R.F. with attention outside of the religious context, and, on several occasions, supplied R.F. with alcohol and engaged in inappropriate sexual conduct.
Specifically, Rev. Avery's Secret Archives file contained a letter written by R.F. on March 31, 1992, to Appellee's predecessor as Secretary for Clergy, Monsignor Jagodzinski, regarding his sexual abuse by Rev. Avery in the 1970s when R.F. was an adolescent. R.F. indicated that he wrote the letter out of concern for " other adolescent boys" who may also have been abused by Rev. Avery. N.T. 4/25/2012 at 38. R.F. attached a copy of a letter he had previously written to Rev. Avery in which he recounted the bond that had been formed between them when R.F. was around 11 years old, in the sixth grade, and Rev. Avery was the assistant pastor at St. Philip Neri Parish in East Greenville, and how Rev. Avery's sexual groping of him on multiple occasions had wreaked emotional havoc upon him at a young age. Allegedly because Monsignor Jagodzinski was in the process of ending his term, he had not responded to R.F.'s March 31, 1992 letter.
Once Appellee assumed the position of Secretary for Clergy, he reviewed R.F.'s letter, and, on September 28, 1992, met with him to discuss the allegations contained therein. R.F. provided further details regarding how Rev. Avery had victimized him at a young age. Specifically, when R.F. was an altar boy he helped Rev. Avery serve Mass. at St. Philip Neri. He described Rev. Avery as very charismatic, popular with young people, and active with the youth in the parish. Outside of church, Rev. Avery gave R.F. his first beer at age 12, and took R.F. and other boys from the parish to his home in New Jersey, where he supplied them with alcohol. There was a loft in Rev. Avery's New Jersey home with several beds where the boys would sleep, and Rev. Avery would join the boys in the loft to wrestle with them. According to Appellee's notes of his interview with R.F., during two or three such encounters, Rev. Avery's hand " slipped to [R.F.'s] crotch." N.T. 3/26/2012 at 255.
According to R.F., Rev. Avery continued this pattern of inviting him to participate in seemingly innocuous activities, and then groping him when vulnerable. By the time R.F. was 15 in 1978, Rev. Avery had been transferred from St. Philip Neri, but maintained contact with R.F. by telephone and invited him to parties where Rev. Avery was the disc jockey; a particular avocation of Rev. Avery's, and, notably, one that brought him into contact with multiple young men. Eventually R.F. began to assist Rev. Avery at parties. At a college party where R.F. helped Rev. Avery disc jockey, Rev. Avery supplied R.F. with alcohol, resulting in him becoming sick a few hours later, vomiting in the bathroom, and passing out in a hallway. Rev. Avery took R.F. back to the rectory where he resided, and encouraged R.F. to sleep in Rev. Avery's bed. When R.F. awoke several hours later, Rev. Avery's hands were inside R.F.'s shorts. In June 1981, when R.F. was 18, Rev. Avery invited him on a ski trip to Vermont. Rev. Avery, R.F., and his brother (J.F.) shared a hotel room. In the night, Rev. Avery joined R.F. in bed, and again molested him after he had fallen asleep, massaging his penis until it became erect and R.F. ejaculated.
The Secret Archives revealed that Rev. Avery had committed these offenses against R.F. after church officials had gone out of their way to accommodate Rev. Avery: when Rev. Avery was assistant pastor at Immaculate Heart of Mary Church in Chester, Pennsylvania, a church official had suggested in a memorandum to the Cardinal that Rev. Avery be appointed to St. Philip Neri to " avoid another breakdown" (the details of which are apparently unknown), which prompted Rev. Avery's gratitude to the church official for accommodating his " euphemistically speaking, predicament." N.T. 3/26/2012 at 228. Rather than utilizing his transfer to St. Philip Neri as an opportunity to focus on his priestly obligations, however, Rev. Avery had instead engaged in the grooming behavior and sexual molestation of R.F. described above.
After revealing the details of his sexual abuse to Appellee, R.F. sought assurances that Rev. Avery would not be permitted to harm anyone else. Appellee assured R.F. that the Archdiocese's " order of priorities is the victim, the victim's family, the Church, and the priest himself." N.T. 3/26/2012 at 259-60. Appellee met with Rev. Avery a week later on October 7, 1992, regarding R.F.'s allegations. Although Rev. Avery initially denied R.F.'s account and expressed shock that R.F. was in counseling for this issue, Rev. Avery confirmed many of the details R.F. had provided, including that he took kids to his house in New Jersey and " would rough
house with the boys . . .," and that he shared a bed with R.F. on the ski trip to Vermont, but stated that if he touched R.F. in the night, it was " accidental." N.T. 3/27/2012 at 10-11.
Regarding the incident after the college party in 1978, Rev. Avery claimed he had consumed too much alcohol to remember any details about that night, but admitted that it could be that something happened while he was intoxicated, and he did not remember. N.T. 3/26/2012 at 270. Appellee again spoke with Rev. Avery two days later by phone; Appellee's notes from this conversation do not include a denial, but reflected Rev. Avery's retort that R.F. " has a selective memory." N.T. 3/27/2012 at 5.
Following R.F.'s allegations and Rev. Avery's concession that the abuse could have happened, on October 16, 1992, Appellee informed Cardinal Bevilacqua of R.F.'s account, stated that Rev. Avery " expressed absolute denial," and informed the Cardinal that R.F. did not mention legal action. On November 2, 1992, Appellee informed R.F. that Rev. Avery had denied his allegations. Appellee recommended to Cardinal Bevilacqua that Rev. Avery be sent to an Archdiocese-affiliated mental health treatment facility, the St. John Vianney Center in Downingtown, for a four-day outpatient evaluation beginning November 30, 1992.
The Cardinal accepted the recommendation, and Rev. Avery went to St. John Vianney. As part of the evaluation process for Rev. Avery, Appellee had to complete a referral form intended to detail the background of issues important to Rev. Avery's assessment. Despite this request for details, Appellee did not include any information about Rev. Avery touching R.F. while wrestling, placing his hands inside R.F.'s shorts, massaging R.F.'s penis during the trip to Vermont, and did not mention that Rev. Avery conceded " it could be" that something happened. Rather, Appellee merely indicated there were allegations against Rev. Avery by an adult male about events that occurred when the man was in his teenage years, and focused on the fact that Rev. Avery had supplied alcohol to minors.
Even with such an incomplete picture of Rev. Avery's background, the staff at St. John Vianney recommended inpatient hospitalization, a recommendation which Cardinal Bevilacqua again accepted, and Rev. Avery was admitted for long term treatment on February 18, 1993. Less than three weeks later, on March 11, 1993, Appellee responded to a parishioner who had written about " unfavorable" calls that had been made regarding Rev. Avery by affirmatively misrepresenting that there had " never been anything but compliments heard in this office about Father Avery. . . ." N.T. 3/27/2012 at 38.
About six months after he was admitted to St. John Vianney, Rev. Avery's primary therapist, Wayne Pellegrini, Ph.D., reported to Appellee that Rev. Avery was ashamed and " acknowledged that the incident [with R.F.] must have happened . . . ." N.T. 3/27/2012 at 42. Additionally, Dr. Pellegrini informed Appellee that " there
remains [sic] concerns about the existence of other victims," and, based on Rev. Avery's failure to accept fully his own responsibility, continued treatment was strongly recommended " to prevent further acting out." Id.
On September 28, 1993, Appellee received Dr. Pellegrini's treatment plan for Rev. Avery's October 1993 release from St. John Vianney, which provided that Rev. Avery was not diagnosed with a sexual disorder for two reasons: " there is only one report of abuse," and Rev. Avery " had been drinking during those incidents. . . ." N.T. 3/27/2012 at 48. Nevertheless, Dr. Pellegrini recommended that Rev. Avery continue to receive outpatient treatment and an assignment where he would not be around children:
The treatment team's recommendations for [Rev. Avery] post discharge . . . 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 [sic] with whom [Rev. Avery] tends to overidentify with [sic]. Four, attendance at a 12-step [Alcoholics Anonymous] meeting for priests.
N.T. 3/27/2012 at 48.
Despite Rev. Avery's admission to Appellee that " it could be" that what R.F. alleged really happened, his admission to the staff at St. John Vianney that his abuse of R.F. " must have happened," Dr. Pellegrini's concern about the existence of other victims, and the recommendation of the treatment team at St. John Vianney that Rev. Avery be kept away from minors, Appellee's first recommendation for Rev. Avery's post-discharge assignment was as associate pastor at Our Lady of Ransom in Philadelphia, a parish with a grade school. N.T. 3/27/2012 at 52. Appellee made this recommendation, at least in part, because Rev. Avery had not been diagnosed as a pedophile. Appellee later admitted on cross-examination that the lack of a pedophilia diagnosis is a poor indicator of whether an individual will engage in acts of pedophilia. N.T. 5/23/2012 at 218-19 (acknowledging that " I've seen where a person is not diagnosed as a pedophile and yet has engaged in acts of pedophilia." ).
Cardinal Bevilacqua rejected Appellee's recommendation for Rev. Avery's placement for unknown reasons, suggesting instead that Rev. Avery be placed in a chaplaincy assignment. On November 22, 1993, Appellee recommended an assignment for Rev. Avery as Chaplain at Nazareth Hospital in Philadelphia, which would have provided housing for Rev. Avery on site. Pursuant to Rev. Avery's request, however, and despite Dr. Pellegrini's warning against placing him in a position that would give him access to minors, Appellee petitioned the Cardinal to permit Rev. Avery to live in a nearby rectory at St. Jerome's Church, which had a grade school attached. The Cardinal accepted this recommendation. Rev. Avery's placement was effective December 13, 1993, less than three months before Appellee placed Rev. Avery's name atop his list of " Priests Guilty of Sexual Misconduct with Minors," demonstrating his belief that R.F.'s allegations were credible. Despite his conclusion in this regard, Appellee never shared his belief that Rev. Avery was guilty of sexual misconduct with minors or Rev. Avery's admissions with anyone, while housing him where he had access to grade school children.
With the exception of St. Jerome's pastor, Father Joseph Graham, Appellee did not notify any of the priests who lived in St. Jerome's rectory about any of Rev. Avery's past conduct. Although Appellee informed Father Graham that Rev. Avery
was not to be around children, he did not explain this directive, and he also informed Father Graham that he had asked Rev. Avery to offer assistance in the parish. Accordingly, Rev. Avery assisted the parish by celebrating Mass. and helping with children's confessions on occasion. N.T. 5/29/2012, 107-08. Although Father Graham was allegedly assigned to help monitor Rev. Avery, he later testified that he was unaware of Rev. Avery's aftercare treatment plan, and he did not consider himself Rev. Avery's supervisor.
In the first year following his discharge from St. John Vianney, Rev. Avery met with a psychologist weekly, who notified Appellee on at least two occasions that Rev. Avery's aftercare integration team, which was to include Appellee, Father Graham, another priest, and his outpatient care providers from St. John Vianney, was initially slow to organize and met only sporadically thereafter. In November 1994, Appellee learned from Father Graham that Rev. Avery was again disc jockeying at weddings and parties. In December 1994, during a meeting of Rev. Avery and his aftercare integration team, Appellee instructed him to focus on his chaplaincy and his recovery, and stated that he should not be working as a disc jockey.
In February 1995, Appellee learned from another chaplain at Nazareth Hospital, Father Kerper, that Rev. Avery had disregarded this direction, continued to accept outside commitments, and had arranged for substitutes to cover his work at Nazareth Hospital on 25 of 31 Saturdays because of his disc jockeying priorities, one of which was at a dance at St. Jerome's Parish. Appellee's subsequent testimony revealed his knowledge that this was a grade school dance. N.T. 5/29/2012 at 122-23. Also around this time, Appellee learned that Rev. Avery's psychologist had agreed, at his request, to decrease the frequency of his sessions.
In September 1995, Appellee received a complaint from Father Kerper about Rev. Avery's activities as a disc jockey, stating that Rev. Avery had booked three events in one weekend and was soliciting new engagements, shirking his chaplaincy responsibilities within the hospital. N.T. 3/27/2012 at 75. Appellee brushed these concerns aside and instructed Father Kerper, who did not know that there were allegations of sexual misconduct against Rev. Avery, to take his concerns about Rev. Avery to his supervisor at Nazareth Hospital instead of the Secretary for Clergy.
In September 1996, Appellee again ignored R.F.'s attempts to ensure that other children were safe from Rev. Avery, choosing not to respond when R.F. requested by email that the diocese vouch for the safety of its children. Nor was there any indication in the Secret Archives or elsewhere that Appellee followed up on R.F.'s concern, or that of the staff at St. John Vianney, inquiring as to whether Rev. Avery was cultivating or, indeed, exploiting new victims from among the children he came into regular contact with at St. Jerome's parish, its grade school, or through the many parties and dances where he served as disc jockey.
Despite Rev. Avery's past transgressions, complaints that he was neglecting his work obligations, and information that he was instead again focusing on disc jockeying, an activity he had utilized in the past to put him in contact with minors, when Rev. Avery requested assistance to advance his career, Appellee was willing to help. In August 1997, Appellee assisted in the preparation of a letter to the National Association of Catholic Chaplains which stated that Rev. Avery was " a priest in good standing" and " has given exemplary
service these past four years" as Chaplain at Nazareth Hospital.
On September 5, 1997, Appellee wrote to Cardinal Bevilacqua requesting a letter of recommendation for Rev. Avery to pursue a Doctorate of Ministry in Spirituality from the Lutheran Theological Seminary in Philadelphia. Appellee was permitted to write the letter of recommendation himself, as the Cardinal's delegate, which he did, describing Rev. 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." N.T. 3/27/2012 at 85-86. Despite describing Rev. Avery as trustworthy, he told Rev. Avery that " in the future he should play things low-key," and that he should be " more low-key than he has been recently." Id. at 88-89.
Consistent with Dr. Pellegrini's 1993 warning to Appellee that Rev. Avery failed to accept responsibility for his actions, indicating the potential for " further acting out," N.T. 3/27/2012 at 42, an April 2, 1998 meeting between Appellee and Rev. Avery left Appellee with the impression (recorded in the Secret Archives) that Rev. Avery was again minimizing his need for treatment and " the allegations against him." During this meeting, Appellee informed Rev. Avery that he would be unable to recommend him to another diocese, because that would require the completion of a form stating that the priest had no allegations against him. Id. at 90-91.
Several months later, in the fall of 1998, D.G., a ten-year-old boy in approximately fifth grade, began training to serve Mass. as an altar boy at St. Jerome's. When he became an altar boy shortly thereafter, he served Mass. with the priests of St. Jerome's: Father Graham, Father McBride, Father Englehardt, and Rev. Avery. Neither D.G. nor his parents, nor anyone in the parish, knew either that Appellee had determined nearly four years before that Rev. Avery was guilty of sexual misconduct with a minor (R.F.) or his extensive and troubled history as recounted herein.
From around December 1998 through January 1999, Father Englehardt began sexually abusing D.G. after Mass, during what Father Englehardt referred to as " sessions." In early 1999, Rev. Avery encountered D.G. inside the church after school on a Friday afternoon. Rev. Avery pulled D.G. aside, informed the boy that he had heard about his " sessions" with Father Englehardt, and stated that " ours were going to begin soon." N.T. 4/25/2012 at 126-27. A week later, after D.G. served weekend Mass. with Rev. Avery, he asked D.G. to stay because their " sessions" were about to begin. After everyone else left, Rev. Avery took D.G. to the sacristy, where he made the boy do a " striptease" to music. Id. at 131. While telling the boy " [t]his is what God wants," Rev. Avery fondled D.G.'s penis with his hands, performed oral sex on him, and penetrated the boy's anus with his finger. Id. at 132-33. Rev. Avery instructed D.G. to perform oral sex on him until he ejaculated on the boy's neck and chest. Id. at 134-35. About two weeks later, Rev. Avery abused D.G. again in a similar fashion, this time also licking his anus. Rev. Avery told D.G. that he did a good job, God loved him, and they would be seeing each other again soon. Id. D.G., however, successfully found ways to avoid Rev. Avery and therefore to avoid further abuse by him. Nevertheless, the effect of this abuse was devastating: by the time D.G. was approximately 11 years old, he became withdrawn and began using drugs, which developed into a heroin addiction by age 17.
Id. at 146.
In 2002, following the eruption of the child sex abuse scandal in the Archdiocese of Boston, the leaders of the Catholic Church met in Dallas and produced the Dallas Charter for the Protection of Children and Young People of the United States Conference of Catholic Bishops (Dallas Charter), which established protocols for the Catholic Church with regard to child sex abuse. Among other things, the Charter required each diocese to establish an Archdiocesan Review Board (Review Board) to evaluate and act upon allegations of clergy sex abuse and eliminated the possibility of merely restricting a priest's ministry. Tr. Ct. Op. at 18-19.
Shortly following the Dallas Charter, on June 20, 2002, R.F.'s brother, J.F., called Appellee and detailed how he too was fondled by Rev. Avery when he was 14 or 15 years old, in the late 1970s. He explained that Rev. Avery had driven a van of several children to his house in New Jersey where he supplied them with alcohol. J.F. stated that Rev. Avery was " jumping on each kid. . . . tickling me. . . felt like he was going to grab me." N.T. 3/27/2012 at 96. J.F. additionally informed Appellee that Rev. Avery had been seen in the recent weeks of 2002 disc jockeying at parties.
On June 2, 2003, in accord with the procedure established by the Dallas Charter, Appellee initiated a " preliminary investigation" into the accusations made against Rev. Avery " on or about September 28, 1992, which resurfaced on or around June 19, 2002." N.T. 3/27/2012 at 101. On September 27, 2003, the Review Board found Rev. Avery in violation of the Essential Norms defining sexual abuse of a minor and concluded that he should be removed from active ministry and rectory living, " or any other living situation ...