Father Engelhardt Loses Appeal

By Ralph Cipriano
for Bigtrial.net

A day after they ruled against an appeal from Bernard Shero, a panel of three state Superior Court judges came to the same conclusion regarding the appeal of Shero's co-defendant, the late Father Charles Engelhardt.

In a 25-page decision issued today, the Superior Court judges ruled that seven appeal issues raised by Engelhardt are "either waived or devoid of merit." The judges then affirmed Engelhardt's sentence of 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 last November in jail after serving nearly two years of his sentence. In their opinion, the judges note "that appellant has passed away during the pendency of this appeal. However, consistent with our cases, we decline to dismiss this appeal as moot in its entirety."

This was before the judges went through the appeal issues and dismissed them as "either waived or devoid of merit."

In Engelhardt's appeal, the defense 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 countered that the pediatrician had never examined Billy Doe and was not qualified as an expert. After Dr. Magiotti testified, the prosecutor, Assistant District Attorney Mark Cipolletti, told the jury that the doctor's testimony amounted to "scientific medical corroboration" of Billy Doe's accusation of sex abuse. The pain was also a "silent witness" that the former altar boy was telling the truth, the prosecutor said.

In their decision, the Superior Court judges ruled that although Dr. Margiotti had never examined the alleged victim, "We find this distinction to be immaterial for the purposes of the Rule 702 issue," regarding expert witness testimony. In their decision, the judges do not state a reason but the 702 rule does allow an expert to express an opinion based on "sufficient facts or data."

The Superior Court judges mentioned in a footnote that the defense lawyers in the case did not seek to toss Dr. Margiotti's testimony under the hearsay rule. Perhaps they should have.

In oral arguments last October, Michael J. McGovern, on behalf of Father Engelhardt, accused Cipolletti of prosecutorial misconduct for something he said in his closing argument. Cipollettti stated 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.

But the Superior Court judges wrote that "a prosecutor has considerable latitude during closing arguments."

The Superior Court judges also noted that in his closing argument, McGovern told the jury that since the arrest of his client, the priest's "name and picture was spread all over the region, nationally, the internet, TV, radio, newspapers, national magazines, saying this is a child molester."

McGovern told the jury that a public announcement was made from every pulpit in the Archdiocese of Philadelphia that if there were any other victims of Father Engelhardt out there, they could come forward and contact the archdiocese or the district attorney.

"Ladies and gentlemen, there has not been one child or one student from any of the institutions that [Father Engelhardt] was associated with his entire life that came forward" to make a claim of abuse, McGovern told the jury, despite saturation media coverage.

"The trial court concluded that [Cipolletti's] remark was a fair response to" the closing argument by McGovern, the Superior Court judges wrote. As far as the Superior Court judges were concerned, "the trial court did not abuse its discretion when it denied appellant's request for a mistrial."

In the Engelhardt appeal, the last issue raised concerned the defense's subpoena of Billy Doe's older brother to testify at the 2013 trial of Engelhardt and his co-defendant, former Catholic school teacher Shero. McGovern had contended that Judge Ellen Ceisler erred when she denied McGovern's request for a bench warrant to subpoena Billy Doe's older brother. McGovern also faulted Judge Ceisler for her response when the jury asked in a question during deliberations why the older brother didn't testify.

During the trial, the prosecutor argued that the older brother had not been properly subpoenaed. When McGovern tried to argue, the judge cut him off, saying, "You sent it first class, you don't know if he got it."

The judge then announced that she would write a note back to the jury, saying, "There's no evidence that he received a subpoena."

The defense wanted to call Billy Doe's older brother because of a signed statement he gave a detective on Jan. 9, 2012. Like Billy Doe, Billy's older brother had served as an altar boy at St. Jerome's, where the alleged rapes occurred. Billy's older brother had also served as a sexton.

The statement showed that the older brother, then a 26-year-old lawyer, contradicted Billy on several key elements of his story, such as who took care of the sacramental wine after Mass, whether priests were ever alone with altar boys, and whether the doors to the church sacristy at  St. Jerome's were  kept locked.

But before the Superior Court would consider that issue, the judges faulted defense lawyers for making an argument "devoid of any discussion of our cases, standards, or any other legal authority on the subject of bench warrants, continuances, or jury questions."

So the Superior Court judges ruled that the issue of whatever happened to Billy Doe's older brother was "waived for want of development."