Inmate loses sex abuse appeal

Leigh, former city resident, claimed trial attorney was ‘ineffective’

A former Altoona man has lost his bid to overturn convictions for the sexual abuse of a young child that resulted in a lengthy prison sentence, according to a Superior Court decision handed down Wednesday.

William Donald Leigh, 48, was convicted in 2014 of two counts of attempted rape of a child, one count each of rape and aggravated indecent assault of a child and two counts of involuntary deviate sexual intercourse.

Blair County Judge Timothy M. Sullivan sentenced Leigh to 25.5 to 51 years in a state correctional institution.

Leigh is presently housed at the SCI Waymart.

Hollidaysburg attorney Paul M. Puskar appealed Sullivan's July 11, 2018, order dismissing Leigh's post-conviction petition.

The defense charged Leigh's trial attorney, Mark Zearfaus, was "ineffective" in his representation.

The post-trial petition focused on the Leigh's complaints that he was not aware until jury selection was about to begin that the prosecution had offered the defense a plea agreement of 10 to 20 years.

Another issue addressed in the defense appeal was that Zearfaus did not call Leigh's daughter to the stand to refute the story told by the child victim -- that she had been repeatedly sexually abused by Leigh between the ages of 5 and 8.

The child was 9 years old at the time of Leigh's trial.

During a post-conviction hearing last year, Zearfaus testified that Leigh and he reviewed to 10- to 20-year plea offer during a meeting at the Blair County Prison and that Leigh rejected it and decided on a trial by jury.

Leigh contended Zearfaus was confident of victory in the case and the attorney shook his head from side-to-side, an indication to him the plea offer should be rejected.

Zearfaus stated he believed Leigh had a strong defense to the charges, but "it does not mean you are going to win."

Sullivan rejected the failed plea agreement as a reason to order a new trial.

He also rejected the argument that Zearfaus had erred by not calling Leigh's daughter to refute the victim's credibility.

The Superior Court panel hearing the case, including Judges Alice B. Dubow, Maria McLaughlin and James G. Colins, focused on the failure to call the daughter as a witness.

It listed five criteria for overturning a jury's decision based on the failure to call a witness.

One of points made by the Superior Court was that the witness must be willing to testify.

During the hearing in Blair County, Zearfaus said he believed the daughter would be a strong witness for the defense, but she informed him she did not want to testify.

He said calling an unwilling witness had risks including the possibility of "unexpected testimony harmful to the defense."

During the post-trial hearing, the daughter denied telling Zearfaus she did not want to testify.

The Superior Court pointed out that, in his decision, Sullivan found Zearfaus' testimony more credible than the testimony of Leigh and his daughter.

Therefore the appeals court concluded the daughter "was neither available, nor prepared, to cooperate and testify for (Leigh) at trial."

The Superior Court, in its opinion written by Dubow, added, "Trial counsel had a reasonable basis for not insisting that she testify."

It upheld Sullivan's dismissal of Leigh's post-trial opinion.

The 2014 trial included testimony that the sexual abuse came to light after the victim told a friend what Leigh was doing to her. The friend told her mother, who reported the situation to the victim's grandmother.

It was the grandmother who reported the alleged offenses to Altoona police.

Prior to bringing charges, the young victim related her story to a forensic interviewer at a child advocacy center.

The recorded interview was played for the jury, and the jury, after two hours of deliberation, believed the story told by the child and returned the guilty verdicts, despite testimony by the victim's mother, grandmother and a babysitter that the child was not a credible witness.

Leigh can request a review of his case by the Pennsylvania Supreme Court.