Com. v. Beam, K.

• Court: Superior Court of Pennsylvania
• Decided: July 28, 2015
• Docket: 1455 MDA 2014
• Status: Unpublished

Opinion

J-S45019-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

KEVIN LEE BEAM

Appellant No. 1455 MDA 2014

Appeal from the PCRA Order of July 29, 2014 In the Court of Common Pleas of Franklin County Criminal Division at No.: CP-28-CR-0000499-2009

BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.: FILED JULY 28, 2015

Kevin Beam appeals the July 29, 2014 order dismissing his petition for

relief pursuant to the Post Conviction Relief Act (“PCRA”) , 42 Pa.C.S. §§

9541-46. The PCRA court has comprehensively reviewed each of Beam’s

issues in two separate opinions, and has correctly concluded that Beam is

not entitled to PCRA relief. Except for two minor issues, we adopt the PCRA

court’s opinions as our own, and we affirm.

Beam was convicted by a jury of rape, criminal attempt to commit

involuntary deviate sexual intercourse, aggravated indecent assault,

indecent assault, and endangering the welfare of a child.1 In an opinion ____________________________________________

* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. §§ 3121(a)(2), 901(a)—3123(a)(7), 3125(a)(1), 3126(a)(8), and 4304(a)(1), respectively. J-S45019-15

prepared for purposes of Beam’s direct appeal, the trial court summarized

the facts underlying Beam’s convictions as follows:

On March 18, 2009, Valerie D., M.D., and [Beam] went to the Pennsylvania State Police Barracks in Chambersburg[, Pennsylvania] to report that M.D. had been raped. M.D. was 14 years[-]old at the time, and she was pregnant. Valerie D. is her natural mother. Beam was Valerie D.’s [boyfriend], and at the time, he was about 35 years[-]old. Though Valerie D. and Beam were never married, they had been in a long-term relationship, and M.D. referred to Beam as “dad” “most of the time.”

The day before, Valerie D. discovered that M.D. appeared to be pregnant. She went to K-Mart to get a pregnancy test for M.D., which came back positive. On the way to the store, Beam called Valerie D. and said that he had “something to tell [her].” When she returned home, Beam told Valerie D. that he and M.D. had been hunting in the woods a few months ago. M.D. got cold, so Beam took her back to their car, a Chevy Blazer. At some point, M.D. got out of the Blazer to go to the bathroom, when two unidentified, unknown individuals attacked and seized her. One held her down, and the other raped her. When Valerie D. asked why Beam had not told anyone about the story, he said that M.D. did not want her mother to know about the incident.

Unsurprisingly, the hunting story was a complete fabrication, invented by Beam to hide his own culpability. According to M.D., he made up the story on the night of March 17, 2009. On the way to the state police barracks, the three stopped at a gas station to get gas. While Valerie D. was inside the convenience store, Beam told M.D. to stick to his story. While being interviewed, M.D. told police the same story that Beam had told Valerie D. the night before: that a stranger had violated her during a hunting trip. She gave Trooper Courtney Pattillo, a criminal investigator, a written statement to that effect.

During the interview, M.D. was having a hard time answering questions, so Trooper Pattillo had Beam, then Valerie D., leave the interview room. Troopers G. David Peck and Jason Cachara interviewed Beam separately at the behest of Trooper Pattillo. [Trooper Pattillo] had an overall feeling that some things about the hunting story were not making sense.

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Troopers Peck and Cachara first began to interview Beam as an eyewitness, or more properly, the first person to see M.D. after the alleged hunting-trip rape. According to Trooper Peck, Beam answered questions slowly and with his head down. The troopers were incredulous that Beam had told no one of the strangers’ alleged rape of M.D. for over three months, but they were unsuccessful in finding out why he failed to disclose the story. Eventually, Trooper Peck asked Beam “point-blank” whether he had had any sexual contact with M.D. At first, Beam said that he had had a stroke about a week ago—for which he received no medical treatment—and could not remember anything about any sexual contact with M.D. Later during the interview, Trooper Peck returned to the topic. This time, Beam said that M.D. had asked him questions about sex, and his way of answering M.D.’s questions was to have sexual intercourse with her. The troopers read Beam [warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966)] and had him sign a Custodial Written Statement. At the bottom of the page, Beam wrote:

She comfied [sic] in me and was asking sexiul [sic] questions and it happened three times I am so sorry [M.D.] you are one of my [] babys [] I Love you and I am so sorry Val I Love you and I am so so sorry. it [sic] means sex KLB.

Beam elaborated on the written statement during his interview. Beam told the troopers that he had sex with M.D. three times in the living room of their home between December of 2008 and February of 2009. Beam was crying and said that he felt horrible. He also admitted that he made up the hunting-trip story. The entire interview lasted less than an hour. Afterwards, troopers allowed Beam to talk to Valerie D. He apologized to her and said that he did not tell anyone because he did not want to lose everything.

For her part, M.D. gave a second written statement implicating Beam. Trooper Peck related Beam’s information to Trooper Pattillo, who arrested Beam for rape.

Trooper Pattillo referred M.D. to the Children’s Resource Center, a children’s advocacy center that conducts forensic interviews and medical evaluations of children who are suspected victims of abuse. Shannon Cossaboom, a forensic interviewer, interviewed M.D. twice. Trooper Pattillo was present and witnessed the

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interviews. At the first interview, on March 27, 2009, M.D. had difficulty answering questions, so Cossaboom terminated the interview. The second interview occurred on April 16, 2010. Tapes of each interview were played to the jury at trial. In the interviews, M.D. implicates Beam in a series of ongoing abuse and rapes. She testified to the same under oath at trial, stating that Beam had intercourse with her at least five times.

Because of the alleged rape, M.D. chose to terminate the pregnancy. Trooper Pattillo contacted the clinic regarding deoxyribonucleic acid [DNA] testing on the fetus. [She] was informed that [she] would have to personally witness the abortion and then transport the feus to the state police’s crime lab. Because of that fact, and Beam’s statement, the Commonwealth and Trooper Pattillo decided not to preserve the fetus for [DNA] testing.

Trial Court Opinion, 5/23/2012, at 1-5 (references to notes of testimony

omitted). Following trial, Beam was sentenced to two hundred and forty-

nine months to seven hundred and eight months’ incarceration.

On November 8, 2012, we affirmed Beam’s judgment of sentence.

See Commonwealth v. Beam, No. 453 MDA 2013, slip op. at 1, 13 (Pa.

Super. Nov. 8, 2012). Beam did not file a petition for allowance of appeal

with the Pennsylvania Supreme Court.

On June 7, 2013, Beam filed a pro se PCRA petition. Counsel was

appointed to represent Beam. However, on May 6, 2014, counsel filed a no-

merit letter and a petition to withdraw as counsel pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On

May 12, 2014, the PCRA court granted counsel’s petition to withdraw as

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counsel, and afforded Beam notice of the court’s intent to dismiss the

petition without a hearing pursuant to Pa.R.Crim.P. 907.

On July 30, 2014, the PCRA court issued an order formally dismissing

Beam’s PCRA petition and the first of its two opinions in which the court

thoroughly analyzed Beam’s claims. See PCRA Court Opinion (“P.C.O.”),

7/30/2014, at 9-28. On August 28, 2014, Beam filed a notice of appeal. On

that same date, the PCRA court directed Beam to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Beam timely

complied. Finally, on October 6, 2014, the PCRA court issued the second of

its opinions addressing the claims raised by Beam throughout the PCRA

proceedings.

Beam now raises the following seven issues for our review:

I. Did the PCRA court err when it determined that [Beam] was not denied due process of law as well as [Beam’s] 5th Amendment right against self-incrimination [had not been] violated by trial counsel’s failure to object to inadmissible statements?

II. Did the PCRA court err when it determined that [Beam] was not denied due process of law by trial counsel’s failure to properly investigate and prepare for trial?

III. Did the PCRA court err when it determined that [Beam] was not denied due process of law by trial counsel’s failure to present exculpatory and impeachment evidence?

IV. Did the PCRA court err when it determined that [Beam] was not denied due process of law by direct appellate counsel’s failure to raise meritorious claims of error on appeal and file a petition for allowance of appeal on direct review?

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V. Did the PCRA court err when it determined that [Beam] was not denied due process of law by PCRA counsel’s failure to investigate, recognize and present meritorious claims for review?

VI. Did the PCRA court err when it determined that [Beam] was not denied due process of law when [Beam] received a sentence greater than what he was led to believe and could be run consecutively and did [Beam] receive an unconstitutional sentence?

VII. Did the PCRA court err when it determined that [Beam] was not denied due process of law when trial and appellate counsel’s cumulative errors denied him effective assistance of counsel?

Brief for Beam at 5.

Our review of a PCRA court order dismissing a petition under the PCRA

is subject to the following standard:

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court’s decision on any grounds if the record supports it. We grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Further, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012)

(quoting Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012);

internal citations omitted)).

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The vast majority of Beam’s claims challenge the effectiveness of

Beam’s trial and appellate counsel. Such claims are governed by the

following standard:

In Pennsylvania, counsel is presumed effective, and a defendant bears the burden of proving otherwise. In order to be entitled to relief on a claim of ineffective assistance of counsel, the PCRA petitioner must plead and prove by a preponderance of the evidence that (1) the underlying claim has arguable merit; (2) counsel whose effectiveness is at issue did not have a reasonable basis for his action or inaction; and (3) the PCRA petitioner suffered prejudice as a result of counsel’s action or inaction. When determining whether counsel’s actions or omissions were reasonable, we do not question whether there were other more logical course of actions which counsel could have pursued: rather, we must examine whether counsel’s decisions had any reasonable basis. Further, to establish prejudice, a petitioner must demonstrate that but for the act or omission in question, the outcome of the proceedings would have been different. Where it is clear that a petitioner has failed to meet any of the three, distinct prongs . . ., the claim may be disposed of on that basis alone, without a determination of whether the other two prongs have been met.

Commonwealth v. Steele, 961 A.2d 786, 796-97 (Pa. 2008) (citations and

internal quotation marks omitted; emphasis in original).

As noted earlier, the PCRA court has thoroughly analyzed most of

Beam’s issues, and has resolved them in light of the record and the

applicable law. Having independently reviewed the record and those claims

raised by Beam, we conclude that the PCRA court’s ruling is correct and

supported by the record. Thus, with respect to issues I-IV, the ineffective

assistance of counsel claim with regard to his sentence in issue VI, and issue

VII, we adopt the PCRA court’s reasoning for denying relief in its two

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relevant opinions as our own.2 See P.C.O., 7/30/2014, at 9-28; P.C.O,

10/6/2014, at 4-14. Both opinions are attached hereto for convenience.

We are left with two of Beam’s claims: (1) that PCRA counsel was

ineffective for failing to investigate, recognize and present meritorious claims

for review, see supra, Issue V; and (2) that his sentence was

unconstitutional pursuant to Alleyne v. United States, 133 S.Ct. 2151

(2013), see supra, Issue VI. We take each in turn, and hold that Beam is

not entitled to relief.

First, Beam contends that his PCRA counsel was ineffective. It is now

settled that a challenge to the effectiveness of PCRA counsel must first be

raised before the PCRA court in a response to PCRA counsel’s Turner/Finley

letter (if any), in a response to a PCRA court’s Rule 907 notice, or in a new

PCRA petition. See Commonwealth v. Ford, 44 A.3d 1190, 1197-98

(Pa. Super. 2012) (citing, inter alia, Commonwealth v. Pitts, 981 A.2d

875, 879 n.3, 880 n.4 (Pa. 2009) (finding challenge to PCRA counsel’s

effectiveness waived because petitioner failed to “challenge[] PCRA counsel’s ____________________________________________

2 In issue I, Beam contends that trial counsel was ineffective for failing to object to inadmissible statements. Before the PCRA court, Beam also argued that appellate counsel was ineffective for failing to raise the issue on direct appeal. The PCRA court treated this as a layered claim of ineffective assistance of counsel. See P.C.O., 10/6/2014, at 6 (citing Commonwealth v. McGill, 832 A.2d 1014, 1023 (Pa. 2003)). Beam appears to have abandoned the claim with regard to appellate counsel. Nonetheless, the PCRA court ruled that trial counsel was not ineffective in this regard as part of its discussion of whether appellate counsel was ineffective. Thus, we rely upon that portion of the court’s opinion in resolving Beam’s present claim.

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stewardship after receiving counsel’s withdrawal letter and the notice of the

PCRA court’s intent to dismiss his petition”)). Thus, in Ford, we held that,

“when counsel files a Turner/Finley no-merit letter to the PCRA court, a

petitioner must allege any claims of ineffectiveness of PCRA counsel in a

response to the court’s notice of intent to dismiss.” 44 A.3d at 1198.

Beam filed a response to the PCRA court’s notice of intent to dismiss,

thereby preserving the claim for our review. Among the thirty-one pages in

Beam’s response, he only devoted one sentence to this issue, stating that

“[i]t is further presented that [PCRA counsel] failed to properly investigate

the claims properly [sic] and adequately at all, even missing claims that

clearly have merit under State and Federal law.” Petitioner’s Answer to

Purposed [sic] Dismissal of Petition for Post-Conviction Collateral Relief,

6/2/2014, at 31. Beam did not identify the alleged missing claims, nor did

he specify in any way what PCRA counsel could have investigated further.

Similarly, in his brief to this Court, Beam alleges that PCRA counsel was

ineffective, but again fails to identify the claims that PCRA counsel did not

identify or investigate. Moreover, although Beam thoroughly discusses the

applicable standard for ineffective assistance of counsel claims, he does not

actually discuss each prong as it relates to his claim that PCRA counsel was

ineffective. Beam in no way demonstrated that he suffered prejudice due to

the alleged inadequacies of PCRA counsel. For these reasons, Beam has not

demonstrated that he is entitled to relief. See Steele, supra.

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Finally, Beam contends that the mandatory minimum sentence that

was imposed upon him was illegal pursuant to Alleyne. In Alleyne, the

United States Supreme Court held that “facts that increase mandatory

minimum sentences must be submitted to the jury” and must be found

beyond a reasonable doubt. Alleyne, supra at 2163. In light of this

holding, Beam maintains that his mandatory minimum sentence must be

vacated. The problem with this argument is that Beam’s case is not on

direct review, but is on review from the denial of his PCRA petition. To be

entitled to relief based upon Alleyne in this particular procedural context,

Alleyne must be held to apply retroactively to cases in which the judgment

of sentence has become final. Unfortunately for Beam, a panel of this Court

most recently held that Alleyne does not apply retroactively.

In Commonwealth v. Riggle, ___ A.3d ___, 2015 WL 4094427 (Pa.

Super. 2015), the PCRA-appellant sought relief under Alleyne, as Beam

does here. Id. at *3-4. A panel of this Court recognized that, to date, no

Pennsylvania court had determined whether Alleyne “is fully retroactive and

to be applied on collateral review.” Id. at *4. The panel noted that the

correct test to apply is derived from the United States Supreme Court’s

decision in Teague v. Lane, 489 U.S. 288 (1989).

Under the Teague framework, an old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are on direct review. A new rule applies retroactively in a collateral proceeding only (1) if the rule is substantive or (2) the rule is a ‘watershed rule of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.

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Riggle, supra, at *4 (quoting Whorton v. Bockting, 549 U.S. 406, 416

(2007) (internal citations omitted)). Following a comprehensive application

of Alleyne within the Teague framework, the panel held that Alleyne “is

not entitled to retroactive effect in [the] PCRA setting.” Riggle, supra, at

*6. Consequently, in light of Riggle, Beam is not entitled to the benefit of

Alleyne’s holding.

For all of the preceding reasons, Beam is not entitled to PCRA relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/28/2015

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IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA FRANKLIN COUNTY BRANCH

Commonwealth of Pennsylvania, Criminal Action

No. 499-2009 ~ vs.

Kevin Lee Beam, Post Conviction ReliefAct Defendant Honorable Carol L. Van Horn

OPINION AND ORDER OF COURT

/UL 3 0 2014 Before Van Hom, J. . rf:!4:.~ . ., '\ Circulated 07/09/2015 02:21 PM

IN THE COURT OF COMMON PLEAS OF THE 39Ttt JUDICIAL DISTRICT OF PENNSYLVANIA FRANKLIN COUNTY BRANCH

No. 499-2009 vs.

Kevin Lee Beam, Post Conviction Relief Act Defendant Honorable Carol L. Van Hom

STATEMENT OF THE CASE

On August 2, 2011, Kevin Lee Be4am ["Petitioner" or "Defendant"] was found guilty by

a jury of his peers of rape, 1 criminal attempt to commit involuntary deviate sexual intercourse,2

aggravated indecent assault;' indecent assault," and endangering the welfare of a child.5

BACKGROUND6

On March 18, 2009, Valerie D., M.D., and Kevin Beam went to the Pennsylvania State Police Barracks in Chambersburg to report that M.D. had been raped. N.T., 8/1/1 l at 122; N.T., 8/2/11, at 5-6. M.D. was 14 years old at the time, and she was pregnant. N.T., 8/1/11, at 111. Valerie D. is her natural mother. Id. at 72. Beam was Valerie D.'s girlfriend, and at the time, he was about 35 years old. Id. at 73-76. Though Valerie D. and Beam were never married, they had been in a long-term relationship, and M.D. referred to Beam as "dad" "most of the time." Id. at 27, 74. The day before, Valerie D. discovered that M.D. appeared to be pregnant. N.T., 8/1/11, 38-39, 77-78. She went to K-Mart to get a pregnancy test for M.D., which came back positive. Id. at 39, 78. On the way to the store, Beam called Valerie D. and said that he had "something to tell [her]." Id. at 77. When she returned home, Beam told Valerie D. that he and M.D. had been hunting in the woods a few months ago. Id. M.D. got cold, so Beam took her back to their car, a Chevy Blazer. At some point, M.D. got out of 1 18 Pa. C.S. § 3121(a)(2). 2 18 Pa. C.S. §§ 901(a)&3123(a)(7). 3 18 Pa. C.S. § 3125(a)(l). 4 18 Pa. C.S. § 3126(a)(8). 5 18 Pa. C.S. § 4304(a)(I). 6 The following Background and Procedural History is excerpted from the Court's May 23, 2012 Opinion filed in accordance with Pa.R.A.P. I 925(a) authored by the Honorable Richard Walsh.

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the Blazer to go to the bathroom, when two unidentified, unknown individuals attacked and seized her. Id. at 40-41, 77- 78. One held her down, and the other raped her. Id. at 40-41, 77-78. When Valerie D. asked why Beam had not told anyone about the story, he said that M.D. did not want her mother to know about the incident. Id. at 78. Unsurprisingly, the hunting story was a complete fabrication, invented by Beam to hide his own culpability. Id. at 40-41. According to M.D., he made up the story on the night of March 17, 2009. Id. at 41. On the way to the state police barracks, the three stopped at a gas station to get gas. While Valerie D. was inside the convenience store, Beam told M.D. to stick to his story. Id. While being interviewed, M.D. told police the same story that Beam had told Valerie D. the night before: that a stranger had violated her during a hunting trip. Id. at 40-43. She gave Trooper Courtney Pattillo, a criminal investigator, a written statement to that effect. Id. at 40-43, 53-54, 123-24; N.T., 8/2/11, at 6- 7: Def. 's Ex.2. During the interview, M.D. was having a hard time answering questions, so Trooper Pattillo had Beam, then Valerie D., leave the interview room. N.T., 8/2/11, at 7. Troopers G. David Peck and Jason Cachara interviewed Beam separately at the behest of Trooper Pattillo. Id. at 8. He had an overall feeling that some things about the hunting story were not making sense. Id. at 8. Troopers Peck and Cachara first began to interview Beam as an eyewitness, or more properly, the first person to see to M.D. after the alleged hunting-trip rape. N.T., 8/1/11, at 123. According to Trooper Peck, Beam answered questions slowly and with his head down. Id. at 124. The troopers were incredulous that Beam had told no one of the strangers' alleged rape of M.D. for over three months, but they were unsuccessful in finding out why he failed to disclose the story. Id. Eventually, Trooper Peck asked Beam "point-blank" whether he had had any sexual contact with M.D. Id. At first, Beam said that he had had a stroke about a week ago-for which he received no medical treatment-and could not remember anything about any sexual contact with M.D. Id. at 124- 25. Later during the interview, Trooper Peck returned to the topic. This time, Beam said that M.D. had asked him questions about sex, and that his way of answering M.D. 's questions was to have sexual intercourse with her. Id. at 126. The troopers read Beam Miranda7 warnings and had him sign a Custodial Written Statement. Id. at 124-28, Com.'s Ex. 3-A. At the bottom of the page, Beam wrote:

7 Miranda v. Arizona, 384 U.S. 436 (1966).

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She comfied in me and was asking sexiul questions and it hapened three times I am so sorry [M.D.'s nickname] you are one of my [ non-grammatical marking] babys [ non-grammatical marking] I Love you and I am so sorry Val I Love you and I am so so sorry. it means sex KLB.

Com's Ex. 3-A; see N.T., 8/1/11, at 128, 136-39.8 Beam elaborated on the written statement during his interview. Beam told the troopers that he had sex with M.D. three times in the living room of their home between December of 2008 and February of 2009. N.T., 8/1/11, at 130. Beam was crying and said that he felt horrible. Id. He also admitted that he made up the hunting-trip story. Id. The entire interview lasted less than an hour. Id. Afterward, troopers allowed Beam to talk to Valerie D. He apologized to her and said that he did not tell anyone because he did not want to lose everything. Id. at I 31. For her part, M.D. gave a second written statement implicating Beam. Id. at 55-56; Def. 's Ex. 4. Trooper Peck relayed Beam's information to Trooper Pattillo, who arrested Beam for rape. N.T., 8/1/11, at 131; N.T., 8/2/11, at 11. Trooper Pattillo referred M.D. to the Children's Resource Center, a children's advocacy center that conducts forensic interviews and medical evaluations of children who are suspected victims of abuse. N.T., 8/2/1 I, at 9-10, N.T., 8/1/11, at 102-103. Shanno Cossaboom, a forensic interviewer, interviewed M.D. twice. Trooper Pattillo was present and witnessed the interviews. At the first interview, on March 27, 2009, M.D. had difficulty answering questions, so Cossaboom terminated the interview. N.T., 8/1/11, at 106. The second interview occurred on April 16, 2010. Id. at 107-08. Tapes of each interview were played to the jury at trial. Id. at 116-20. In the interviews, M.D. implicates Beam in a series of ongoing abuse and rapes. She testified to the same under oath at trial, stating that Beam had intercourse with her at least five times. Id. at 33-34. Because of the alleged rape, M.D. chose to terminate the pregnancy. Id. at 45-46. As will be important below, Trooper Pattillo contacted the clinic regarding deoxyribonucleic-acid testing of the fetus. Id. at 9-10. He was informed that he would have to personally witness the abortion and then transport the fetus to the state police's crime lab. Id. at 9-10. Because of that fact, and

8 All grammatical and spelling errors are in the original statement. Beam wrote the final at Trooper Peck's request, to clarify that "it happened three times" meant that Beam had sexual intercourse with M.D. three times. N.T., 8/1/1 I, at 127.

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Beam's statement, the Commonwealth and Trooper Pattillo decided not to preserve the fetus for testing.

PROCEDURAL HISTORY

Trooper Pattillo originally charged Beam with seventeen 9 counts on March 18, 2009. Represented by Chief Public Defender Michael J. Toms, Esq., Beam waived his preliminary hearing. The charges were bound over for court, after which Beam waived · tiormal arraignment. 10

I. Beam's Competency Issues

On June 16, 2009, Beam moved for a psychiatric evaluation to determine his competency. The next day, the Honorable Carol L. Van Horn granted Beam's motion and appointed mental health counsel. She also appointed Dr. John Hume to evaluate Beam. The Court received Dr. Hume's report, and on December 7, 2009, Judge Van Horn found Beam not competent to stand trial and ordered him committed to Torrance State Hospital for evaluation pursuant to the Mental Health Procedures Act, 50 P.S. §§ 7402-03, with a directive to resume criminal proceedings when Beam's competence was restored. On February 4, 2010, Judge Van Horn extended Beams commitment for another 60 days based upon the opinion of Dr. Daleep Rathore, who opined that further treatment was necessary. Dr. Rathore noted that Beam's diagnosis at that time was depression, not otherwise specified, and history of alcohol abuse. Beam's competency was eventually restored, and he returned to Franklin County to answer to the criminal charges in early April 20 I 0.

II. Entry and Withdrawal of Plea

After some pretrial proceedings that are not relevant here, Beam entered into a plea deal on October 25, 20 I 0. He agreed to plead guilty to aggravated indecent assault and statutory sexual assault. In exchange, the Commonwealth agreed to dismiss the remaining charges and to consecutive sentences of 8-16 years for aggravated indecent assault and 1-2 years for statutory sexual assault. Beam equivocated somewhat on his written plea colloquy, specifically with regard to his satisfaction with his counsel's

9 They were six counts of rape, sexual assault, criminal attempt to commit involuntary deviate sexual intercourse, three counts of aggravated indecent assault, two counts of indecent assault, endangering the welfare of a child, and three counts of statutory sexual assault.

10 The Commonwealth chose not to file informations on several of the charges listed in the previous footnote.

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representation and with the voluntariness of the plea. Ultimately, however, Beam agreed to the plea, and this Judge accepted it. The Court also ordered an evaluation of Beam by the Sexual Offenders Assessment Board as required by Megan's Law II. Five days later, Beam sent a letter to the Clerk claiming that Attorney Toms had provided ineffective assistance of counsel and claimed that he "was forced to take another plea." Concerned, the Court ordered Beam brought before us for a hearing on December 8, 2010 to ascertain whether Beam's plea was involuntary. After the hearing, the Court allowed the Commonwealth time to respond to Beam's oral motion to withdraw his plea. The Commonwealth indicated that it was ready to take the case to trial; therefore, on January 18, 2011, the Court directed withdrawal of Beam's plea and set the matter for trial. The Cami further vacated the Public Defender's appointment and appointed new counsel. 11

III. Pretrial Motions

On July l, 2011, the Court pre-tried the case. Attorney Annie R. Gomez, Esq., appeared on behalf of Beam. Our pretrial order noted that Beam was going to trial on eight counts, with trial set for August 1 and 2, 2011.

A. Beam's Motion to Dismiss

The next significant event occurred on July 18, 2011, when Beam filed a counseled motion to dismiss. In the motion, Beam alleged that the Commonwealth committed a Brady12 violation by failing to preserve the DNA from the aborted fetus. He asked for dismissal or, in the alternative, an adverse inference jury instruction, Pennsylvania Standard Suggested Criminal Jury Instruction 3.218. Per Court order, the Commonwealth responded by denying that the DNA was Brady evidence. The Court ordered a hearing on the motion on August I, 2011, the morning of the first day of trial. At the Cami noted above, M.D. had an abortion. The fetus was destroyed, and no DNA testing was done to establish paternity. Trooper Pattillo, on the advice of the District Attorney's Office, did not do so for several reasons. He strongly believed that Beam was the father of the fetus. He also had a signed, written confession. Finally, he believed that he had to personally witness the abortion, per clinic and Pennsylvania State Police evidence-

11 It should be noted that Beam sent numerous letters to the Court, or filings to the Clerk, all of which were filed pursuant to Pennsylvania Rule of Criminal Procedure 576(A)(4) and (5). 12 Brady v. Ma1yland,373 U.S. 83 (1963).

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collection protocol, and he did not want to re-victimize M.D. by being present. N.T., 8/1/11, at 10-11. The District Attorney's Office was of the same mind. It believed that any DNA testing would be merely corroborative, as M.D. had never had sexual intercourse with anyone else. Admittedly, Trooper Pattillo had no experience in collecting evidence from aborted fetuses. He did not discover that M.D. would have been, and indeed was, under general anesthesia during the abortion. Id. at 12-14. On cross- examination, Beam asked Trooper Pattillo whether he was aware of statements that M.D. made about "hooking up" with a boyfriend on February 20, 2009. Id. at 16-18. Trooper Pattillo did not remember those statements. He testified that even if M.D. had "hooked up" with a boyfriend, and even if to M.D. "hooking up" meant intercourse, he did not think that the boyfriend could have been the father of the fetus. The medical report indicated that M.D. was six to eight weeks pregnant on March 18, 2009, temporally ruling out the boyfriend as a putative father.

B. The Commonwealth's Motion in Limine to Preclude Reference to Beam's IQ

Also significant, on July 28, the Commonwealth filed a motion in limine. In the motion, it averred that Attorney Gomez had stated, via email, that she intended to introduce into evidence the fact that Beam has an IQ of 71. She got this information from Beam's mental health records provided by Torrance State Hospital. The Court ordered a response, which Beam filed. He indicated that the purpose of the evidence was to explain the rudimentary nature of his written statement to state police. The Court denied Beam's motion to dismiss, specifically finding that no due process violation occurred. We took under advisement a request for jury instruction 3.2IB. We also granted the Commonwealth's motion in limine and excluded any evidence referencing Beam's IQ of 71.

IV. The Trial

Immediately after the ruling on the motions, trial began. At trial, the story unfolded as recounted above. M.D. testified that Beam began to have sexual contact with her when she was about 13. N.T., 8/1/11, at 28. She said that the contact began as inappropriate touching, which escalated to more serious abuse. Id. at 29-32. Eventually, Beam had sexual intercourse with M.D. multiple times. Id. at 32-34. He also tried unsuccessfully, to take nude pictures of M.D. Id. at 36. M.D. said that Beam told her not to tell anybody because "he would be gone" and M.D.'s half-sister

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(Valerie D. and Beam's child) would not have a father. Id. at 36- 37. On cross-examination, M.D. was asked questions about "hooking up" with a boyfriend, and whether she had made a statement during her forensic interview by the Children's Resource Center. Id. at 58-59. When asked what "hooked up" meant, she said "[p]robably that I was going out with him." Id. at 59. M.D. was also cross-examined on the hunting-trip story. Id. at 52-55 Valerie D. testified about how she discovered that M.D. was pregnant, and about her former relationship with Beam. Id. at 76. She said that she took M.D. to Chambersburg Hospital for examination on March 18, 2009, immediately after they left the state police barracks. Id. at 89. An emergency room nurse from Chambersburg Hospital read the intake report from M.D. 's visit to the hospital. According to the report, Valerie D. thought that M.D. was having nonconsensual intercourse with her, i.e. Valerie D.'s, boyfriend. Id. at 98. The hospital's examination indicated that M.D. was six to eight weeks pregnant. Id. The Commonwealth also presented evidence from two employees of the Children's Resource Center, to describe M.D.'s interviews and to lay the foundation for admitting the DVDs of the interviews. Finally, Troopers Peck and Pattillo testified about their investigation and interviews of the participants. Beam presented no evidence. Instead, he rested on his right to remain silent. The trial lasted two days. On August 2, the jury found Beam guilty of rape, criminal attempt to commit involuntary deviate sexual intercourse (IDSI), aggravated indecent assault, indecent assault, and endangering the welfare of a child. 13 The Court ordered a full presentence investigation report and a second assessment of Beam by the Sexual Offenders Assessment Board. Later, the Court appointed an expert to rebut the Board's finding that Beam was a sexually violent predator (SVP).

V. Sentence, Post-Sentence Motion, and Appeal

On January 23, 2012, the Court held hearings to determine Beam's SVP status and to sentence him. After receiving evidence and argument, the Court determined that Beam is not an SVP. We moved immediately into sentencing. The Court imposed sentences as recommended by the Commonwealth: for rape, 12-240 months; for attempted IDSI, 54-240 months; for aggravated indecent assault 60-120 months; for indecent assault, 3-24 months; and for endangering the welfare of a child, 12-84 months. Beam was

13 18 Pa. C.S. §§ 312 l(a)(2), 90 I (a) and 3123(a)(7), 3 I 26(a)(8), and 4304. The remaining three charges were no! prossed at the beginning of trial.

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subject to mandatory minimum sentences of ten years for the rape conviction, and five years for the aggravated indecent assault 14 conviction. The sentences-which are all within the standard range of the Sentencing Guide I ines-total 244-708 months, or 20 years and 9 months to 59 years. They include, of course, include other costs, fines, and conditions which are irrelevant for purposes of the appeal. On February 1, 2012, Beam filed a post-sentence motion for a new trial. The sole ground in support was that the jury's verdict was contrary to the weight of the evidence. The Court denied the motion without opinion or comment on February 6, 2012. This appeal followed on February 28, 2012. The next day, we ordered Beam to file a statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure l925(b )(2). On March 20, Beam timely filed his Rule 1925(b) concise statement. On the same date, Attorney Gomez moved to withdraw as counsel, alleging that certain highly inappropriate letters Beam sent her had destroyed the attorney-client relationship.15 We granted the motion on March 21, 2012, and appointed Todd Sponseller, Esq., to represent Beam for the purposes of this appeal.

(Opinion Sur Pa.R.A.P. 1925(a), 5/23/2012, at 1-10). The Honorable Richard Walsh handled the

instant case pre-trial through the appeal. The case is now before the undersigned for post-

conviction relief proceedings.

DISCUSSION

I. Post Conviction Relief Act

The Post Conviction Relief Act (PCRA) was enacted to provide individuals who are

convicted of crimes for which they are innocent, or those serving illegal sentences, with a means

to obtain collateral relief. See 42 Pa.C.S. § 9543. First, the defendant must demonstrate he was

convicted of a crime under the law of Pennsylvania, and that he is currently serving a sentence or

waiting to do so. See 42 Pa. C.S. §9543(a)(l). Second, the petitioner must prove, by a

14 On July 18, 2011, the Commonwealth filed a notice of intention to proceed on mandatory minimum sentences. 15 Given the nature of the communications, we granted the motion without a hearing.

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preponderance of the evidence, that his conviction or sentence resulted from one or more of the

enumerated statutory factors. See 42 Pa. C.S. §9543(a)(2). Third, a petitioner must demonstrate

the issues raised under the Act have not been previously litigated or waived, and finally, that the

failure to litigate such issues could not have resulted from a rational, strategic, or tactical

decision by counsel. See id. at §9543(a)(l), (3), (4). "Inherent in this pleading and proof

requirement is that the petitioner must not only state what his issues are, but also he must

demonstrate in his pleadings and briefs how the issues will be proved." Commonwealth v.

Rivers, 786 A.2d 923, 927 (Pa. 2001).

A. Claims of Ineffective Assistance of Counsel

Among the statutory factors from which a conviction or sentence may have resulted

creating an entitlement to post-conviction relief is the ineffective assistance of counsel. 42

Pa.C.S. §9543(a)(2)(ii). In light of the particular circumstances of a case, the ineffective

assistance of counsel must have so undermined the truth-determining process that "no reliable

adjudication of guilt or innocence could have taken place." Id.

Counsel is presumed effective. See Commonwealth v. Martin, 5 A.3d 177, 183 (Pa.

2010). The defendant bears the burden of proving otherwise, accomplished by satisfying the

three-pronged test laid out by our appellate courts in Pierce. See Commonwealth v. Pierce, 786

A.2d 203, 213 (Pa. 2001). First, the defendant must show the underlying substantive claim has

arguable merit. See id Second, it must be demonstrated that counsel did not have any

reasonable basis for their acts or failure to act designed to effectuate the client's interest. See id

Finally, a petitioner must demonstrate actual prejudice resulted from counsel's inadequate

performance. See id A petitioner demonstrates prejudice where he proves that "there is a

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reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different." See Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009).

Failure to satisfy any of the three prongs of the test will result in denial of the claimed

ineffective assistance. See Pierce, 786 A.2d at 221-22. The inquiry mirrors that set forth by the

United States Supreme Court, requiring both a showing that counsel's performance was

deficient, and that such deficiency was prejudicial. See Strickland v. Washington, 466 U.S. 668,

687-91, 104 S. Ct. 2052, 80 L.Ed.2d 674 (l 984). Finally, it has been repeatedly held that "no

number of failed [ineffectiveness] claims may collectively warrant relief if they fail to do so

individually." Johnson, 966 A.2d at 532 (citations omitted). Pursuant to the above standards,

this Court now analyzes the issues raised by the Beam.

As discussed below, Beam makes several allegations of counsel ineffectiveness, none of

which have merit. Beam presents his allegations in a highly disorganized manner and the Court

will attempt to address each claim of error with clarity below.

First, Beam was represented by Attorney Toms at the start of his proceedings. He makes

a general averment that Attorney Toms was ineffective for not "going after" exculpatory

evidence and investigating the case thoroughly. Beam's claim fails to show actual prejudice and

does not meet the third prong of the Pierce test. Beam has not identified any exculpatory

evidence Attorney Toms failed to "go after" and he does not explain how Attorney Toms failed

to investigate the case. In essence, Beam has failed entirely to prove that because of Attorney

Tom's alleged errors, there is a reasonable probability that the outcome of the proceedings would

have been different.

Second, the Jaw Office of James Reed was court-appointed to represent Beam, and he

argues that Attorney Reed was ineffective because he only met with Beam one time. As noted

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above with Attorney Toms, here, Beam only makes a general claim of ineffectiveness and he has

failed to meet the third prong of Pierce. He does not allege that he suffered any prejudice due to

Attorney Reed's failure to meet with him more than once. Moreover, Attorney Reed was not

Beam's trial or appellate counsel, and Beam's PCRA counsel asserted in his Turner/Finley letter

that he did not discover any specific acts or omissions by Attorney Reed to support an

ineffectiveness claim. (See Turner/Finley Letter, 5/6/2014, at 17). Accordingly, such a claim

against Attorney Reed lacks merit.

Third, Attorney Gomez, working for Attorney Reed, took on Beam's case as trial

counsel. Beam argues that she only had one month to prepare for trial which was not enough

time; therefore she was ineffective for failing to request a continuance. Beam argues specifically

that there was not adequate time to investigate the failure of the Commonwealth to preserve

DNA evidence from the aborted fetus. This latter assertion lacks merit as Attorney Gomez filed

a motion to dismiss before trial alleging that the Commonwealth committed a Brady'" violation

by failing to preserve the DNA from the fetus. Clearly, Attorney Gomez had investigated the

issue. Overall, Beam has also not shown actual prejudice as he has failed to prove there was a

reasonable probability that the proceedings would have resulted differently if Attorney Gomez

had more time to prepare for trial. See Commonwealth v. Wright, 961 A.2d 119, 132 (Pa. 2008)

("mere brevity of time to confer with counsel before trial does not constitute ineffective

assistance."); See also Commonwealth v. Williams, 950 A.2d 294, 313 (Pa. 2008) (counsel is not

per se ineffective upon having a short amount of time to prepare for trial). In fact, to the

contrary, the Court agrees with PCRA counsel in his Turner/Finley letter that the record of the

case and the trial transcripts clearly show that Attorney Gomez performed at trial in an

16 Brady v. Maryland, 373 U.S. 83 (1963).

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adequately prepared manner. (See Turner/Finley Letter, 5/6/2014, at 18). Beam's claim does not

meet the Pierce test and fails.

Fourth, Beam notes that his motion to dismiss ( or suppression motion as he refers to it)

was denied on August 1, 2011, the morning of trial. Beam argues that Attorney Gomez was

ineffective for failing to "push the issue" of having the suppression hearing take place before the

day of Beam's trial. Beam notes that had she acted in such a manner, "perhaps maybe" she

could have built a better defense. Beam's argument fails the first prong of the Pierce test as he

has not shown that his underlying substantive claim has arguable merit. The motion to dismiss

was filed on July 18, 2011, and the Court's calendar, not counsel, controls the scheduling of

hearings. Beam has not shown how, if at all, Attorney Gomez had the ability to "push the issue"

with the Court of holding a hearing sooner. Additionally, Beam's statement that "perhaps

maybe" Attorney Gomez could have built a better defense had she pushed the Court to decide the

motion prior to trial is pure conjecture and Beam has not shown that there was a reasonable

probability that the proceedings would have resulted differently. Once again, Beam has not

established the third prong of Pierce as he has failed to prove prejudice resulted from Attorney

Gomez's alleged errors.

Fifth, Beam argues that Attorney Gomez never challenged the victim's credibility

regarding inconsistent statements, nor questioned her inaccuracies, discrepancies, and

contradictions. This argument lacks merit as it is clear from the trial transcripts that Attorney

Gomez attacked the victim's credibility and cross-examined her on her prior inconsistent

statements. For example, when M.D. denied taking a sexual education class at school, Attorney

Gomez questioned the accuracy of that statement because M.D. had previously told Shannon

Cossaboom that she had a health class with sexual education. (N .T., 8/ 1/2011, at 50-51 ).

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Attorney Gomez also impeached the victim with three written statements she made to police on

March 18, 2009, the first, describing how she was raped by two men in the woods on the hunting

trip, the second and third, incriminating Beam. Id. at 52-54. Attorney Gomez clearly brought to

the jury's attention the differences in the statements and emphasized that the victim provided

more specific details in her first statement about the purported attack in the woods. Id. at 56.

Attorney Gomez also questioned the victim on her prior statements that she had a boyfriend and

they "hooked up." Id. at 58. Furthermore, Attorney Gomez attacked M.D. 's credibility and

discussed her inconsistent statements in her closing when she stated the following:

... [A] 14 year old girl could be suggested to say things? She gave three different statements within an hour, within less than an hour, the first involving two men in the woods being very specific. The second involving Kevin. The third involving Kevin. There was then a statement given at the emergency room just a few hours after she was at the police station. And this statement in the history, as was read to you by Nurse Morgan, this is a 14 year old female who was brought to the emergency department by her mother. She thought that the child has been having intercourse with her boyfriend. Is that her mother's statement? Is that the child's statement? If it is her mother's statement, was the mother saying just a few hours after they were at the police station that the mother thought her daughter was having intercourse with that boyfriend we heard about, that Brett Massey? Was her mother saying that she thought her daughter was having intercourse with Kevin which was her mother's boyfriend. Do we know what this statement means? I suggest to you not only was [M.D.] led through her questioning at the police station but also by Miss Cossaboom at the Children's Resource Center. Miss Cossaboom in her testimony here in the courtroom tried to indicate that she did not ask leading questions. I suggest after watching that video that she did ask leading questions. A lot of her questions resulted in yes or no answers. They weren't open-ended questions. They did not being with who, what, where, when, and why. They began with did this happen to you, did you hear about this? Did you see that? Thinking about this statement at the ER. She thought that the child had been having intercourse with her boyfriend. When the mother, Valerie Deree testified she said her first thought when she saw her 14 year old daughter in the bathtub with a little bit of a belly was that she was pregnant. Her first thought? Her 14 year

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old daughter? Not that her body was changing, not that she had gained a little bit of weight or ate a little more that day or was a little bloated but that she was pregnant. Why was that her first thought? Was it because she thought that [M.D.] was having intercourse with Brett Massy?

What does this come down to? Inconsistent statements of a young girl. Two men do this to her in the woods. Then it's Kevin. Then we have the statements at the hospital about this boyfriend. We have her saying in the Children's Resource Center video that she hooked up with this boyfriend Febrnary 20 of 2009.

(N.T., [Transcript of Proceedings of Closings] 8/2/2011, at 3-10). PCRA counsel, Attorney

Bayley, stated in his Turner/Finley letter besides the different statements given to police which

Attorney Gomez addressed, he had not "identified any 'inaccuracies, discrepancies, or

contradictions' that were not addressed by Attorney Gomez that would have provided any aid

whatsoever to Mr. Beam's defense." (Turner/Finley Letter, 5/21/2014, at 20). Accordingly,

Beam's claims fail the first prong of the Pierce test as they lack arguable merit.

Sixth, Beam argues that Attorney Gomez was ineffective because he would not have

received a sentence greater than the lawful maximum had Attorney Gomez not received his case

only one month prior to trial. Such a claim is meritless as the sentences relating to each count

are not greater than the lawful maximum.

Seventh, Beam argues that Attorney Gomez was ineffective for failing move for a

dismissal because the Commonwealth produced insufficient evidence to sustain his convictions.

A similar issue arose in in Commonwealth v. Natividad, 93 8 A.2d 310, 329 (Pa. 2007). In

Natividad, the defendant argued that his appellate counsel was ineffective for failing to properly

litigate and challenge the sufficiency of the evidence on appeal because his statement of the case

was deficient and he failed to file a reply brief or petition for reargument. Id. Such failures

prevented the Supreme Court from properly resolving the claim. Id. Pursuant to the

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requirements of a successful ineffective assistance claim, the Pennsylvania Supreme Court

reasoned that, "a petitioner must plead and prove properly all the elements of the Pierce test."

Id. The court found that the defendant's claim failed because he argued "the merits of his

underlying claim in substantial depth and also argue[ d] prejudice, but fail[ ed] to mention, let

alone plead and prove, the 'reasonable strategy' prong." kl.

Similarly in the instant case, Beam has failed to plead the three prongs of Pierce. He

makes the blanket assertion that counsel was "ineffective due to failure to object to the

insufficiency of the evidence ... " (See PCRA Petition, 6/7/2013, at 19). He fails the third prong

as he has not shown that he suffered any actual prejudice. In other words, Beam has not

established that had Attorney Gomez raised a sufficiency claim, there is a reasonable probability

that the result of the proceeding would have been different. See Commonwealth v. Johnson, 966

A.2d 523, 533 (Pa. 2009). Also, like Natividad, Beam has failed to plead or even establish that

Attorney Gomez did not have a reasonable basis or reasonable strategy for not challenging the

sufficiency of the evidence, implicating the second prong of Pierce. To the contrary, the Court

can discern Attorney Gomez's reasonable strategy through her post-sentence actions as she filed

a timely post-sentence motion arguing that the verdict was against the weight of the evidence.

"A motion for a new trial on the grounds that the verdict is contrary to the weight of the evidence

concedes that there is sufficient evidence to sustain the verdict." Commonwealth v. Rivera, 983

A.2d 1211, 1225 (Pa. 2009) (citation omitted). "[I]t is not enough to say that there was

something wrong with what counsel did; the petitioner must also demonstrate that there was no

reasonable basis for counsel's act." Commonwealth v. Rivers, 786 A.2d 923, 931 (Pa. 200 l ).

After evaluating the evidence presented at trial, clearly Attorney Gomez believed that a weight

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of the evidence claim would be more advantageous to Beam's case than a sufficiency of the

evidence claim. As such, Beam's ineffectiveness claim lacks merit.

Eighth, Beam argues that Attorney Gomez was ineffective for failing to request a taint

hearing with regard to the admissibility of M.D. 's previous statements and testimony at trial.

"Taint" is considered "the implantation of false memories or distortion of actual memories

through improper and suggestive interview techniques." Commonwealth v. Delbridge, 855 A.2d

27, 30 (Pa. 2003). When an allegation of taint is made, an appropriate investigation into the

issue is to hold a competency hearing because the issue of "taint" is relevant to a competency

determination and "[a] child's competency to testify is a threshold legal issue that a trial court

must decide, ... " Commonwealth v. Pena, 31 A.3d 704, 706 (Pa. Super. 2011 ); see also

Commonwealth v. Delbridge, 855 A.2d 27, 41 (Pa. 2003). All witnesses are presumed

competent. "A party who challenges the competency of a minor witness must prove by clear and

convincing evidence that the witness lacks 'the minimal capacity ... (1) to communicate, (2) to

observe an event and accurately recall that observation, and (3) to understand the necessity to

speak the truth.:" Pena, 31 A.3d at 707 (quoting Delbridge, 855 A.2d at 40). Allegations of

taint implicate the second prong, as it addresses the witness' mental capacity to observe an event

and the capacity to accurately recall or remember that observation. Pena, 31 A.3d at 707.

In discussing testimonial competency, Pennsylvania courts have clearly and unequivocally stated that taint is only 'a legitimate question for examination in cases involving complaints of sexual abuse made by young children.' Delbridge L 855 A.2d at 39 (emphasis added). When a witness is at least fourteen years old, he or she is entitled to the same presumption of competence as an adult witness. Rasche v. Mctloy, 397 Pa. 615, 156 A.2d 307, 310 (1959). In Commonwealth v. Judd, 897 A.2d 1224 (Pa. Super. 2006), appeal denied, 590 Pa. 675, 912 A.2d 1291 (2006), this Court held that because the juvenile sexual assault victim 'was fifteen years old when she testified at trial ... , any issue with her ability to correctly remember the events in question is properly a

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question of credibility not of taint.' Judd, 897 A.2d at 1229 ( emphasis added). Further, the concerns underlying the three-part test for evaluating the testimonial competency of minors 'become less relevant as the witness's age increases, ultimately being rendered totally irrelevant as a matter of law by age fourteen.' Id. (emphasis added). In Commonwealth v. Moore, 980 A.2d 647 (Pa. Super. 2009), this Court reiterated that the critical age for purposes of conducting a taint hearing is not the age at the time of the crime but the age at the time of trial. Moore, 980 A.2d at 648, 652 (where the minor witness was thirteen at the time of the crime but fourteen at the time of trial, the witness 'did not require a competency hearing. Any issues regarding [the witness]'s observation of the incident in question is a question of credibility and does not implicate taint.. .. [prior decisions of the Pennsylvania courts] preclude a competency hearing for [a] fourteen-year- old .... ').

Pena, 31 A.3d at 706-707. The victim in the instant case was 17 years old at the time of trial.

Consequently, as PCRA counsel notes in his Turner/Finley letter, any taint proceedings would

have been "totally irrelevant as a matter of law." Commonwealth v. Judd, 897 A.2d 1224, 1229

(Pa. Super. 2006); (see Turner/Finley Letter, 5/5/20 I 4, at 22). As such, Attorney Gomez was not

ineffective for failing to pursue said hearing. Beam's claim fails.

Ninth, Beam argues that his appellate counsel, Attorney Sponseller, also rendered

ineffective assistance of counsel. He argues that Attorney Sponseller "pulled documents out of

the appeal" pertaining to the following issues: the destruction of the fetus, how Beam was

coached into giving a confession, how his Miranda rights were violated during the interrogation,

and how the interrogation was not audio or video recorded. First, Beam has provided no proof of

such conduct. Second, "[m]erely stating that there is something wrong with what counsel did,

that his action violated the constitution . . . does not meet the requirements of an ineffectiveness

claim." Commonwealth v. Rivers, 786 A.2d 923, 931 (Pa. 2001). Beam's baseless, generalized

claim is without merit.

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Tenth, Beam asserts that both Gomez and Sponseller were ineffective for failing to

17 explain to him that his charges could run consecutively, which "caused prejudice by all of the

attorney's inaction." Beam's claims fail the third prong of the Pierce test as he has not shown

actual prejudice. Prejudice is demonstrated where a defendant proves that "there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding would have

been different." See Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009). Beam was tried

and convicted by a jury of his peers. After a conviction, sentencing is in the sound discretion of

the trial court, and "[g]enerally, Pennsylvania law 'affords the sentencing court discretion to

impose its sentence concurrently or consecutively to other sentences being imposed at the same

time or to sentences already imposed.'" Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super.

2011) ( quoting Commonwealth v. Pass, 9 I 4 A.2d 442, 446-4 7 (Pa. Super. 2006)). Beam has not

shown or even alleged how his attorneys' failure to inform him of the possibility of consecutive

sentences would have altered or changed Judge Walsh's sentencing scheme. His claims are

without merit.

Eleventh, Beam argues that Attorney Sponseller did not raise on appeal the issue of the

Commonwealth's failure to secure the victim's fetus whereby preventing DNA evidence.

Beam's claim is meritless as Attorney Sponseller did in fact raise this very issue on appeal. (See

Superior Court Memorandum filed November 8, 2012).

Each of the ineffective assistance of counsel claims raised by Beam lacks merit.

Additionally, each of the claims of ineffectiveness of Attorney Toms, Attorney Reed, and

Attorney Gomez are technically waived because the Beam was appointed a new attorney to

represent him on appeal, Attorney Sponseller. Therefore, any claims against trial counsels could

17 Beam cites Commonwealth v. Diehl, 61 A.3d 265, 266 (Pa. Super. 2013) for support, which is inapplicable here as it pertains to ineffective assistance for failure to advise a defendant about the possibility of consecutive sentences upon entering a guilty pica. Beam did not plead guilty in the instant case.

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have been raised on direct appeal by Attorney Sponseller. See Commonwealth v. Hickman, 799

A.2d 136, 140 (Pa. Super. 2002) ("[ a [ppellant's ineffectiveness of plea counsel claim is

technically waived for failure to raise it in a direct appeal.").

B. Claims of Violations of the Constitution of Pennsylvania or the Constitution or

Laws of the United States

Also among the statutory factors from which a conviction or sentence may have resulted

creating an entitlement to post-conviction relief is a violation of the Constitution of this

Conunonwealth or the Constitution or laws of the United States. 42 Pa. C.S. §9543(a)(2)(i).

Such a violation must have "so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place." Id.

First, Beam argues that the Police did not record his March 18, 2009 interrogation in

violation of Pa. R.C.P. 573. This claim is without merit as police are not required to record

interrogations, Our Superior Court has determined that "custodial interrogations do not need to

be recorded to satisfy the due process requirements of· the Pennsylvania Constitution."

Commonwealth v. Craft, 669 A.2d 394, 397 (Pa. Super. 1995); see also Commonwealth v

Harrell, 65 A.3d 420, 429 (Pa. Super. 2013).

Second, Beam argues repeatedly18 that the Commonwealth committed a Brady violation

when evidence of the fetus was destroyed; arguing that had the Commonwealth obtained the

DNA of the fetus it "very well could have proven the defendant was innocent and the victim was

fabricating her confession." (PCRA Petition, 6/7/2013, at 22). Beam is not entitled to relief on

this issue as it has been previously litigated. As noted above, to be eligible for relief under the

PCRA, the issues raised by Beam must fall under circumstance enumerated in 42 Pa. C.S. §

18 Beam makes several avcrments throughout his PCRA Petition premised on the Commonwealth's failure to secure the fetus and/or obtain DNA or physical evidence.

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9543(a)(2) and not have been previously litigated or waived. 42 Pa. C.S. § 9543(a)(3). An issue

has been previously litigated if "the highest appellate court in which the petitioner could have

had review as a matter of right has ruled on the merits of the issue." 42 Pa. C.S. § 9544(a)(2).

On appeal, Attorney Sponseller argued that Beam's "due process rights were violated by the

Commonwealth's destruction of evidence through its failure to preserve the fetus' DNA to allow

[Beam] to test the same and determine its exculpatory nature before the Superior Court." (See

Superior Court Memorandum filed November 8, 2012 at 5). The Superior Court rejected this

argument and affirmed the judgment of sentence in a thoroughly reasoned memorandum. Id.;

See also Commonwealth v. Bond, 630 A.2d 1281, 1282 (Pa. Super. 1993) ( claims that were

previously "discussed thoroughly" by the Superior Court in a memorandum affirming Beam's

judgment of sentence have been finally litigated and not subject to further review in post-

conviction proceedings). As such, Beam is not entitled to further review of the issue in his

PCRA petition.

Third, Beam argues that the Commonwealth did not produce his health records relating to

the time of the crime or records regarding his mental state during the interrogation which his

asserts are required pursuant to "the Federal Rule of the ABA Standards" if the prosecution

intends to use them at trial or if they are material to the defense. (See PCRA Petition, 6/7/2013,

at 21-22). Beam's claims fail as he has not cited any meaningful or relevant authority in support.

Fourth, Beam argues that police pressured him to incriminate himself during his

19 interrogations in violation of his Fifth Amendment rights. Overall, Beam argues that the

incriminating statements he made to police" were a product of unlawful interrogation methods

19 Beam does not seek recourse pursuant to his rights under the Pennsylvania Constitution. 20 Presumably before and after Beam waived his Miranda rights.

21 Circulated 07/09/2015 02:21 PM

because the police interrogated him from 9 a.m. to 6 p.m. (or nine hours) while he was in pain

without food, water, or contact with his family.

Upon examination of the record, Beam's assertions are baseless. Beam, Valerie D., and

M.D. arrived at the police station at approximately 9:00 a.m. on March 18, 2009. Trooper

Pattillo testified that he took Valarie D., M.D., and Beam to be interviewed. (N.T., 8/1/2011, at

5-7; N.T., 8/2/2011, at 6). Initially, Trooper Pattillo directed questions to Valerie D., inquiring

about general background information. (N.T., 8/2/2011, at 6). Then Trooper Pattillo gathered

similar background information from Beam. Id. Valerie D. explained that M.D. was pregnant

and that she was told M.D. was raped on a hunting trip. Id. As the interview progressed,

Trooper Pattillo asked Beam to leave the room because M.D. was having difficulty disclosing

information of a sexual nature. Id. at 7. M.D. then made a written statement about the rape on

the hunting trip at approximately 10:40 a.m.21 kl. at 7-8. Trooper Pattillo also re-interviewed

Beam, and his story matched M.D. 's description of the rape. Id. At some point, Trooper Pattillo

informed his supervisors that additional interviews needed to be conducted. Id. at 8. Thereafter,

Trooper Peck interviewed Beam. Id. at 9.

Trooper Peck testified that during his interview, Beam confessed to having sex with M.D.

at which point he was Mirandized and asked to give a written statement. Id. at 126. Beam

complied and made a written statement at 12:20 p.m. Id. at 127. Trooper Peck testified that his

interview with Beam, including the writing of the statement, lasted no more than an hour. Id. at

131. This testimony is supported by the fact that Beam's written statement was made at 12:20

p.m. After Beam gave his written statement, he was permitted to talk to Valarie. Id. at 131. He

was subsequently arrested. (N.T., 8/2/2011, at 11).

21 M.D. subsequently made two more written statements at approximately 11: l 5 a.m, and 11 :30 a.m. (N.T., 8/2/2011, at 18).

22 Circulated 07/09/2015 02:21 PM

Examining Beam's relative health, Trooper Peck testified that he did not recall Beam

having heart problems. Id. at 134. Beam did indicate that he was not feeling well, but after he

told the truth "he said he felt a lot better, and [Troper Peck] didn't see any indications of him

being sick or ill after that time." Id. at 134-135. Tooper Peck also testified that Beam never

requested medical attention or indicated that he had a failing pacemaker. Id. The only thing

Beam indicated was that he had a stroke the week prior which he didn't seek medical attention

for. Id. at 13 5.

The testimonies of Trooper Peck and Pattillo contradict Beam's assertions that he was

interrogated from 9 a.m, to 6 p.m. while he was in pain without food, water, or contact with his

family. Instead, the record supports the conclusion that he was interviewed (initially as a

witness) by police officers from approximately 9:00 a.m. to a little after 12:20 p.m. after which

he was allowed to speak to Valarie. Beam's assertions that police used unlawful interrogation

methods are meritless as they lack credible factual support,

Next, specifically examining the statement's Beam made before he was Mirandized+:

police are required to read a suspect his Miranda warnings when he is in custody and subject to

interrogation. "The prosecution may not use statements stemming from a custodial interrogation

of a defendant unless it demonstrates that he was apprised of his right against self-incrimination

and his right to counsel." Commonwealth v. Gaul, 912 A.2d 252, 255 (Pa. 2006). In other words,

"the Miranda safeguards come into play whenever a person in custody is subjected to either

express questioning or its functional equivalent." Id. (citing Rhode Island v. Innis, 446 U.S. 291

(1980)). "Before an individual is subjected to a custodial interrogation, he must make a knowing

and intelligent waiver of his privilege against self-incrimination and right to counsel after

adequate warning as to those rights." Commonwealth v. Johnson, 727 A.2d 1089, 1100 (Pa. 22 Miranda v. Arizona, 384 U.S. 436 ( 1966).

23 Circulated 07/09/2015 02:21 PM

1999). A court must examine the totality of the circumstances when determining whether

Miranda warnings are necessary. Id.

The question thus becomes whether Beam was in custody and whether the encounter rose

to the level of an interrogation. An individual is in custody for Miranda purposes when he "is

physically denied his freedom of action in any significant way or is placed in a situation in which

he reasonably believes that his freedom of action or movement is restricted by the interrogation."

Johnson, 727 A.2d at 1100. "The U.S. Supreme Court has elaborated that, in determining

whether an individual was in custody, the 'ultimate inquiry is ... whether there [ was] a 'formal

arrest or restraint on freedom of movement' of the degree associated with a formal arrest."'

Commonwealth v. Boczkowski, 846 A.2d 75, 90 (Pa. 2004) (quoting Stansbury v. California, 511

U.S. 318, 322 (1994)). The question of custody is objective and we must focus on the totality of

the circumstances. Boczkowski, 846 A.2d at 90.

Undoubtedly, Beam made incriminating statements to the police before being read his

Miranda rights. However, upon examination of the circumstances surrounding the statements, it

is clear that Beam was not in custody, and therefore not subject to custodial interrogation. Beam

freely arrived at the police station with Valerie D. and M.D. and he was initially questioned by

Trooper Pattillo at two different times. First, in the presence of Valerie D. and M.D. to gather

general background information, and second to determine if his version of the rape on the

hunting trip matched M.D. 's story. He was then questioned by Trooper Peck (for the initial 20 to

25 minutes) as a witness to the crime, not as the perpetrator. (N.T., 8/1/2011, at 135). At no

point was Beam formally arrested, nor was there any evidence presented to indicate that his

freedom of movement was restricted. Trooper Peck testified that he and the other Trooper who

24 Circulated 07/09/2015 02:21 PM

conducted the interview were not blocking Beam's way out of the door or restraining him in any

way. (N.T., 8/1/2011, at 133)

Commonwealth v. Foster is similar to the instant case. In Foster, the police wanted to

question the defendant as a "potential witness." Commonwealth v. Foster, 624 A.2d 144, 148

(Pa. Super. l 993). The defendant agreed to go to the police station to make a statement, and the

police physically transported the defendant to the station but did not put him under arrest or

deprive him of his freedom in any way. Id. "When they arrived at the police station, [defendant]

and Detective Fegan went to an interview room where the pair spoke alone for approximately

one hour and forty-five minutes." Id The court reasoned that this manner of questioning did not

constitute a "coercive atmosphere." Id. As such, the court concluded that the defendant was not

subject to a custodial interrogation. Id.

Similarly, Beam was not undergoing a custodial interrogation when he made

incriminating statements before he was read his Miranda rights; therefore, such statements were

admissible. Beam's claim that his pre-lvfiranda statements should have been suppressed is

Beam also argues that the police obtained his post-Aliranda confession unlawfully and it

should have been suppressed. Specifically, that Trooper Peck told Beam to add to his confession

that the word "it" meant "sex," which was a lie. Preliminarily, Beam's factual contention is

unsupported by the record. Trooper Peck testified at trial that Beam waived his Miranda rights

and then made a written statement. (N.T., 8/1/2011, at 127-128). Trooper Peck read the

statement which included the phrase, "and it happened three times." Id. at 128 (emphasis

added). Trooper Peck wanted to clarify what the word "it" meant, so Beam then wrote "it means

sex." Id. Trooper Peck testified on cross-examination that he "asked [BeamJ what it was that he

25 Circulated 07/09/2015 02:21 PM

had written previously in the statement. He said it means sex. I said can you write that down?

So he wrote it." Id. at 138 (emphasis added). Referring to his written statement, Beam then

answered "yes" to the following questions: "is the information contained in this two page

statement true and correct to the best of your knowledge and belief," "was this statement given

of your own free will and accord without any promises or threats," and "do you understand what

we 're talking about in this statement?" Id. at 129.

Examining the record, there is no evidence to suggest that Trooper Peck fabricated

Beam's oral statement that "it means sex," or forced him to write it down when it was not trne.

Trooper Peck simply sought clarification of Beam's written statement so as to avoid confusion.

The record shows that Beam freely offered this clarification, willingly wrote it down, and then

agreed that his statement as a whole was true and correct and given of his own free will.

Although Beam's factual contention lacks outright support, we will nonetheless examine

the legality of his written confession pursuant to Fifth Amendment's protection against self- 23 incrimination. "When deciding ... to suppress a confession, the touchstone inquiry is whether

the confession was voluntary," which is determined by examining the totality of the

circumstances. Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998) (citations omitted).

"The question of voluntariness is not whether the defendant would have confessed without

interrogation, but whether the interrogation was so manipulative or coercive that it deprived the

defendant of his ability to make a free and unconstrained decision to confess." Id.

When assessing voluntariness pursuant to the totality of the circumstances, a court should look at the following factors: the duration and means of the interrogation; the physical and psychological state of the accused; the conditions attendant to the detention; the attitude of the interrogator; and any and all other factors that could drain a person's ability to withstand suggestion and coercion. 23 As noted above, Beam does not seek recourse pursuant to the Pennsylvania Constitution.

26 Circulated 07/09/2015 02:21 PM

Id. As discussed in detail above, viewing the totality of the circumstances, Beam's interrogation

was anything but manipulative or coercive. His interview with Trooper Peck lasted no longer

than an hour, he freely arrived at the police station to answer questions as a witness, and his

movements were not restrained or controlled in any way. Based on testimony, Trooper Peck's

attitude was reasonable, especially considering he began the interview with the understanding

that Beam was a witness. Examining Beam's physical and psychological state, Beam argues that

his confession was involuntary due to the physical pain he was in. The Court disagrees. Beam

did indicate that he was not feeling well, but after he told the truth "he said he felt a lot better,

and [Troper Peck] didn't see any indications of him being sick or ill after that time." Id. at 134-

135. Furthermore, Trooper Peck testified that Beam's sick feelings "directly coincided with the

time [he] started asking him if he had sex with [M.D.]." Id. at 134. Beam never requested

medical attention during the interview or indicated that he had a failing pacemaker. Id.

Additionally, Trooper Peck did not recall Beam having any heart problems. (N.T., 8/1/2011, at

134). The only thing Beam told the Troopers was that he had a stroke the week prior which he

didn't seek medical attention for. Id. at 135. This evidence simply does not support a finding

that Beam was in such a compromised physical state that he was deprived of his ability to make a

free and unconstrained decision to confess. To the contrary, the evidence suggests that Beam's

ill feelings were caused by his own guilt and the internal conflict between his self-preservation

and his desire tell the truth. Upon examination of the totality of the circumstances, the Court

finds that Beam's confession was voluntary and his arguments to the contrary are meritless.

Finally, Beam argues that he received a sentence greater than the lawful maximum. This

claim is without merit as the sentences relating to each count are within the standard ranges

promulgated by the Pennsylvania Commission on Sentencing.

27 Circulated 07/09/2015 02:21 PM

CONCLUSION

This Court's review of the record and survey of the law reveals that Beam has made no

meritorious claims for relief under the PCRA. As such, the instant petition for post-conviction

collateral relief is dismissed without a hearing.

28 Circulated 07/09/2015 02:21 PM

IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA FRANKLIN COUNTY BRANCH

Commonwealth of Pennsylvania, Criminal Action I No. 499-2009 vs.

Kevin Lee Beam, Post Conviction Relief Act Defendant Honorable Carol L. Van Horn

OPINION sw· PA. R.A.P. 1925(a) AND ORDER OF COURT

Before Van Hom, J.

, , ,j OCT OR 2Q14 _ -· . , ~~ ~ .

/3J Circulated 07/09/2015 02:21 PM

IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA FRANKLIN COUNTY BRANCH

Kevin Lee Beam, Post Conviction Relief Act Defendant Honorable Carol L. Van Hom

STATEMENT OF CASE

The Court has comprehensively set forth the factual and procedural history of the above

captioned matter in its Opinion and Order of Court disposing of the Defendant's Petition for

Post-Conviction Relief. See attached Opinion and Order, July 30, 2014. Thus, we will not again

explain the case leading to the instant appeal, but instead incorporate such statement herein by

reference.

Following this Court's July 30, 2014 Opinion and Order, Defendant filed a Notice of

Appeal on August 28, 2014. That same day this Court issued an Order requiring Defendant to

file a Concise Statement of Matters Complained of on Appeal within twenty-one (21) days.

Defendant filed his Concise Statement of Matters Complained of on Appeal on September 18,

2014. The issue is now ripe for decision in this Opinion and Order of Court,

Many of the issues raised by Defendant have been previously litigated and addressed by

this Court or the Superior Court in Defendant's direct appeal or in our Order and Opinion

denying Defendant's PCRA petition. However, in this 1925 Opinion, it is beneficial to provide

the Superior Court with a comprehensive and inclusive understanding of each issue raised.

Therefore, we incorporate by reference all of the prior Opinions but still address each issue in

full.

ISSUES RAISED I Defendant raises the following issues in his Concise Statement

I. Defendant asserts his actual innocence and a manifest injustice has resulted in his wrongful conviction. 2. Defendant was denied due process of law when pretrial and trial counsel failed to request forensic DNA testing. 3. Defendant was denied due process and Fifth Amendment protection against self- incrimination when trial counsel failed to object to inadmissible statements and when appellate counsel failed to raise such a claim on appellate review. 4. Defendant was denied due process when trial counsel failed to properly investigate and prepare for trial. 5. Defendant was denied due process when Defendant received a sentence greater than what he was led to believe and it was not explained to Defendant the maximum allowable sentence to be imposed and that the sentences could be run consecutively. 6. Defendant was denied due process when trial counsel failed to present exculpatory and impeachment evidence. 7. Defendant was denied due process when trial counsel failed to make timely objection to the introduction of prejudicial and inadmissible evidence. 8. Defendant was denied due process when appellate counsel failed to raise meritorious claims of error on appeal and file a petition for allowance of appeal to the Pennsylvania Supreme Court during direct appellate review. 9. Defendant was denied due process when PCRA counsel failed to investigate, recognize and present meritorious claims presented for review. 10. Defendant was denied due process when the reviewing PCRA court denied Defendant's request for Post-Conviction Collateral Relief.

STANDARD OF REVIEW

Our appellate courts review an order dismissing a petition filed under the PCRA to

determine whether the decision of the PCRA court "is supported by evidence of record and is

free of legal error." Commonwealth v. Rivera, 10 A.3d 1276) 1279 (Pa. Super. 2010) (citation

omitted). The scope of review is limited: the reviewing court must view the findings of the

PCRA court and the evidence of record in the light "most favorable to the prevailing party at the

trial level." Id The decision of the PCRA court may be affirmed "on any grounds if it is

I Statement of Matters Complained ofon Appeal, 9/18/2014.

supported by the record." Id. In the case of a purely legal question, the standard of review is de

nova, and the scope of review is plenary. See Commonwealth v. Patton, 985 A.2d 1283, 1286

(Pa. 2009).

The assistance of counsel is presumed effective, and the PCRA defendant has the burden

to demonstrate otherwise by a preponderance of the evidence. See Commonwealth v. Pierce, 786

A.2d 203, 212 (Pa. 2001). Often referred to as the Pierce test, a showing of ineffective

assistance is made where a defendant proves: 1) the underlying substantive claim has arguable

merit, 2) there was no reasonable basis for counsel's actions or failure to act, and 3) prejudice

was suffered as a result of such deficient performance. Id at 213. It has been repeatedly held

that "trial counsel will not be deemed ineffective for failing to pursue a meritless claim."

Commonwealth v. Rega, 933 A.2d 997, 1019 (Pa. 2007).

For purposes of clarity, we begin by addressing Defendant's second error complained of

on appeal. Defendant argues he was denied due process of law when pretrial and trial counsel

failed to request forensic DNA testing. Although not specifically referenced in Defendant's

Concise Statement of Matters Complained of on Appeal, we assume Defendant is referring to

DNA testing of the destroyed fetus in question. Throughout Defendant's PCRA Petition he

makes several arguments premised on the Commonwealth's alleged failure to secure the fetus

and/or obtain DNA or physical evidence. As noted in our July 30, 2014 Order and Opinion, the

Superior Court rejected these various arguments in Defendant's direct appeal and as such a

PCRA claim against the Commonwealth on this issue has been "previously litigated.t" Wholly

absent from Defendant's PCRA Petition is any allegation that pretrial or trial counsel was

ineffective for "failing to request forensic DNA testing." A claim of error is deemed to be 2 42 Pa.C.S. § 9544.

waived if the defendant could have raised the issue at trial, on appeal, or in a prior post

conviction proceeding but failed to do so. 42 Pa.C.S. § 9544(b). In this case Defendant's PCRA

Petition is devoid of any allegations of ineffective assistance of counsel by pretrial/trial counsel

and any specific facts that would even infer such a claim. Thus, Defendant's PCRA Petition

should have contained sufficient facts to sustain an allegation for this type of ineffectiveness

claim that would properly satisfy the three prongs of the Pierce test.

The likely reason for the absence of these facts in Defendant's PCRA petition is that they

are simply contrary to the record. The victim's abortion in which the fetus was ultimately

terminated occurred on March 21, 2009. Trial counsel, Annie Gomez, took on Defendant's case

in July of 2011, approximately one month prior to Defendant's trial. Thus, the ability of Attorney

G6mez to request forensic DNA testing of the fetus had long since passed. Further, there were no

facts alleged in Defendant's PCRA petition which indicated that pretrial counsel, Attorney

Michael Toms3, even had an opportunity to request forensic DNA testing before the abortion

occurred. Defendant was originally charged on March 18, 2009. On March 19, 2009 he filed a

Motion for Indigent's Rights to Adequate Defense. Attorney Toms was then appointed to

represent the Defendant. Just two days later, the victim's abortion was performed, ultimately

destroying the forensic DNA in question. Given this timeline, we find it very likely that Attorney

Toms had yet to even meet with the Defendant or be informed of the pending abortion, let alone

have ample time to file a motion to request forensic DNA testing. Therefore, Attorney Toms

could not have been ineffective for failing to request forensic DNA testing. Thus, for the

aforementioned reasons, Defendant's assertion on this issue is meritless.

3 The Law Offices of James Reed was also subsequently court appointed as pretrial counsel but this was well after the victim's abortion occurred and forensic DNA could have been recovered.

In his third assignment of error, Defendant alleges he was denied due process and his

Fifth Amendment right against self-incrimination based on his trial counsel's alleged failure to

object to inadmissible statements and appellate counsel's failure to raise this claim on appellate

review. Defendant thus appears to structure this error as a layered ineffective assistance of

counsel claim. The Pennsylvania Supreme Court has established the criteria for a layered

ineffective assistance counsel claim stating:

[A] petitioner must plead in his PCRA petition that his prior counsel, whose alleged ineffectiveness is at issue, was ineffective for failing to raise the claim that the counsel who preceded him was ineffective in taking or omitting some action. In addition, a petitioner must present argument ... on the three prongs of the Pierce test as to each relevant layer of representation.

See Commonwealth v. u.out. 832 A.2d 1014, 1023 (Pa. 2003).

As such, in order to prove that appellate counsel was ineffective, Defendant must first

prove that trial counsel was ineffective by satisfying the Pierce test. In this case Defendant states

generally that "trial counsel failed to object to inadmissible statements." (See Def.' s Concise

Statement p. 1). Presumably, these inadmissible statements are a reference to Defendant's

argument that police pressured him to incriminate himself during his interview in violation of his

Fifth Amendment rights". We addressed this specific argument in our July 30, 2014 Order and

Opinion finding:

The testimonies of Trooper Peck and Pattillo contradict Beam's assertions that he was interrogated from 9 a.m. to 6 p.m. while he was in pain without food, water, or contact with is family. Instead the record supports the conclusion that he was interviewed (initially as a witness) by police officers from approximately 9:00 a.m. to a little after 12:20 p.m. after which he was allowed to speak to Valarie. Beam's assertions that police used unlawful

4 Specifically, Defendant argues that the incriminating statements he made to police were a product of unlawful interrogation methods because he was interrogated from 9 a.m. to 6 p.m. (nine hours) while he was without food, water or contact with his family.

I

interrogation methods are meritless as they lack credible factual support.

See id. at p. 23. We also analyzed Defendant's argument that he was not properly Mirandized

before he issued incriminating statements, finding "[sjimilarly, [Defendant] was not undergoing

a custodial interrogation when he made incriminating statements before he was read his Miranda

rights; therefore, such statements were admissible." In regards to Defendant's assertion that his

written confession was involuntary, we also found this argument to be meritless, concluding that

"the evidence suggests that [Defendant's] ill feeling were caused by his own guilt and the

internal conflict between his self-preservation and is desire to telJ the truth." See Opinion and

Order p. 27. July 30, 2014. Further, when reviewing all of the facts available in the record, we

concluded that Trooper Peck's interview of the Defendant could hardly be considered

"manipulative or coercive." Id. at 27.

Therefore, Defendant has failed to properly argue a layered ineffective assistance of

counsel claim on this issue because he cannot establish even the first prong of the Pierce test for

his trial counsel. In satisfying an ineffective assistance of counsel claim, the first prong of the

Pierce test requires the Defendant to show that his underlying substantive claim has arguable

merit. Pierce, 786 A.2d at 212. For the above mentioned reasons, Defendant's assertion that the

incriminating statements he gave were inadmissible is clearly without arguable merit. Therefore,

trial counsel was not ineffective for failing to object to these alleged "inadmissible statements"

and appellate counsel cannot be ineffective for failing to raise such a meritless claim on appellate

review.

In Defendant's fourth and sixth matters complained of on appeal, he argues he was

denied due process when trial counsel failed to properly investigate and prepare for trial and

present exculpatory and impeachment evidence. Defendant made a similar accusation in his

initial PCRA petition against pretrial counsel, Attorney Toms. As with Attorney Toms,

Defendant again fails to show actual prejudice and does not meet the third prong of the Pierce

test. Defendant has not identified any exculpatory evidence Attorney Gomez failed to "go after"

and does not explain Attorney Gomez's alleged failure to investigate. Therefore, similar to

Attorney Toms, Defendant has failed entirely to prove that because of Attorney Gomez's alleged

errors, there is a reasonable probability that the outcome of the proceedings would have been

different.

Additionally, we find Defendant's argument that Attorney Gomez failed to properly

prepare for trial to also be meritless. Defendant asserted in his PCRA petition that the fact

Attorney Gomez had only a month to prepare for trial amounted to ineffective assistance of

counsel. This Court rejected such an argument, finding that Attorney Gomez filed a motion to

dismiss before trial alleging that the Commonwealth committed a Brady violation and finding

that the record indicated Attorney Gomez performed at trial in an adequately prepared manner.

Therefore, Defendant cannot satisfy the Pierce test, as his claim lacks arguable merit.

Finally, this Court noted at length in our July 30, 2014 Order and Opinion, that Attorney

Gomez introduced various types of impeachment evidence. Specifically, Attorney Gomez

attacked the victim's credibility and cross-examined her on her prior inconsistent statements.5

See id at 13-15. Defendant has failed to identify any other impeachment evidence that was not

offered by Attorney Gomez. As such, this Court finds that Defendant has again failed to satisfy

the first prong of the Pierce test, as this claim has no arguable merit, and therefore this assertion

is meritless.

In Defendant's fifth matter complained of on appeal, he argues that he was denied due

process when he received a sentence greater than what he was lead to believe, that it was not 5 This Court provided numerous specific examples of this in our July 30, Opinion and Order on pages 13-15.

explained to him the maximum allowable sentence to be imposed, and that the sentences could

be run consecutively. Specifically, Defendant asserts that Attorney Gomez and Attorney

Sponseller were ineffective for failing to explain to him that his charges could nm consecutively

which "caused prejudice by all of the attorney's inaction." (See Def. 's PCRA Pet. p. 18 June 7,

2014). As outlined in our prior Order and Opinion, Defendant clearly fails the third prong of

Pierce as he has not shown actual prejudice because he has failed to show that there was a

reasonable probability that, but for counsel's professional errors, the result of the proceeding

would have been different. See Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009). As

this Court has previously outlined, "[defendant] has not shown or even alleged how his

attorneys' failure to inform him of the possibility of consecutive sentences would have altered or

changed Judge Walsh's sentencing scheme." See Opinion and Order, p. 19 July 30, 2014).

Finally, Defendant's reference to Commonwealth v. Diehl, 61 A.3d 265, 266 (Pa. Super 2013), is

not applicable to the case here as it concerns the failure to advise a defendant about the

possibility of consecutive sentences upon entering a plea. In this case, the Defendant did not

plead guilty but instead was convicted in a jury trial.

In Defendant's seventh matter complained of on appeal he claims that trial counsel failed

to make timely objection to the introduction of prejudicial and inadmissible evidence. Once

again Defendant fails to identify exactly what prejudicial and inadmissible evidence he is

referring to.6 This general language, coupled with the disorganized nature of Defendant's Prose

Petition, makes it difficult to identify what specific prejudicial and inadmissible evidence

Defendant is referring to. "When a court has to guess what issues an appellant is appealing, that

is not enough for meaningful review." Commonwealth v. Thompson, 778 A.2d 1215, I 223 (Pa.

Super. 2001 ). "When an appellant fails adequately to identify in a concise manner the issues

6 This Court has already addressed the alleged inadmissible statements contained in Defendant's third error.

sought to be pursued on appeal, the trial court is impeded in its preparation of a legal analysis

which is pertinent to those issues." In re Estate of Daubert, 757 A.2d 962, 963 (Pa. Super. 2000).

The Superior Court has found that when an issue is not specific enough for a trial court to

address, the issue is waived. Thompson, 778 A.2d at 1224. Because this Court cannot ascertain

exactly what evidence Defendant is asserting was prejudicial or inadmissible and that trial

counsel failed to make a timely objection to, we cannot address this issue and find it to be

waived. Additionally, without specific facts identifying the alleged inadmissible evidence,

Defendant would clearly be unable to satisfy the standard for ineffective assistance of counsel

under the Pierce test.

In Defendant's eighth matter complained of on appeal he alleges he was denied due

process when appellate counsel failed to raise meritorious claims of error on appeal and file a

Petition for Allowance of Appeal to the Pennsylvania Supreme Court. We find this assertion

meritless. First, Defendant's appellate counsel, Attorney Sponseller, did raise claims of error on

appeal he believed were meritorious. In fact, Attorney Sponseller raised three issues but each

issue was ultimately determined to be meritless by the Superior Court in Defendant's direct 7 appeal. Defendant argues specifically that Attorney Sponseller "pulled documents out of the

appeal" pertaining to various issues. 8 As we explained in our prior Opinion and Order, there was

no proof of this conduct and merely stating that there is something wrong with what counsel did,

such as that his action violated the constitution, fail to meet the requirements of an

7 The three issues raised for review by the Superior Court were:(\) Whether the Appetlant's due process rights were violated by the Commonwealth's destruction of evidence through its failure to preserve the fetus' DNA to allow the Appellant to test the same and determine its exculpatory nature (2) Whether the trial court's decision to grant the Commonwealth's motion in limine and exclude evidence of the Appellant's 71 IQ was an abuse of discretion (3) Whether the jury's verdict was against the weight of the evidence and as a result, the trial court's denial of a new trial was an abuse of discretion. Commonwealth v. Beam 453 MDA 2012 (Pa. Super. 2012). 8 These issues pertained to the destrnction of the fetus, how Defendant was coached into giving a confession, how his Miranda Rights were violated during interrogation, and how the interrogation was not audio or video recorded.

ineffectiveness claim. Additionally, many of these "pulled out issues" have already been found

meritless by this Cou11, such as how the Defendant's Miranda rights were allegedly violated.

Defendant also alleges that he was denied due process because Attorney Sponseller failed

to file a Petition for Allowance of Appeal to the Pennsylvania Supreme Court during direct

appellate review. In Commonwealth v. Hernandez, 755 A.2d 1 (Pa. Super. 2000), the Superior

Court held that "where there is an unjustified failure to file a requested direct appeal, the conduct

of counsel falls beneath the range of competence demanded of attorneys in criminal cases, denies

the accused the assistance of counsel guaranteed by the Sixth Amendment to the United States

Constitution and Article I, Section 9 of the Pennsylvania Constitution, as well as the right to

direct appeal under Article V, Section 9, and constitutes prejudice for purposes of Section

9543(a)(2)(ii)." In these circumstances and "where the remaining requirements of the PCRA are

satisfied, the petitioner is not required to establish his innocence or demonstrate the merits of the

issue or issues which would have been raised on appeal." Commonwealth v. Lantzy, 736 A.2d

564, 572 (Pa. 1999). Such an inquiry into the merits of the issues is unnecessary because "the

failure to perfect a requested appeal is the functional equivalent of having no representation at

all." Id. at 571. As such, a failure to file a requested appeal denies a fundamental right and

constitutes prejudice per se. Id. ("[A]n appellant need not show that the petition would likely

have been granted, but merely that the appeal was requested and counsel failed to act. In these

situations, the Supreme Court has effectively held that the prejudice prong of the test for

ineffective assistance has been established.") "Clearly, if a request to file a direct appeal is

necessary to sustain an ineffectiveness claim based upon the failure to file a direct appeal, then

such a request is also necessary where the alleged ineffectiveness is the failure to file a petition

for allowance of appeal." Commonwealth v. Bath, 907 A.2d 619, 622 (Pa. Super. 2006).

(

In the instant case, appellate counsel cannot be considered per se ineffective as the

Defendant has failed to provide any evidence that he requested an Allowance of Appeal to the

Supreme Court. The Defendant's original and amended petitions contain no facts which indicate

that he ever requested Attorney Sponseller to file a Petition for Allowance of Appeal to the

Pennsylvania Supreme Court during direct appellate review. As such, Defendant has failed to

prove per se ineffectiveness as Attorney Sponseller cannot be faulted for failing to take an action

never requested by the Defendant.

However, the ineffectiveness inquiry does not end there, and"[w]here a defendant does

not ask his attorney to file a direct appeal, counsel still may be held ineffective if he does not

consult with his client about the client's appellate rights." Commonwealth v. Markowitz, 32 A.3d

706, 714 (Pa. Super. 2011 ). This standard imposes a duty on counsel to adequately consult with

the defendant as to the advantages and disadvantages of an appeal where there is reason to think

that a defendant would want to appeal. See Roe v. Flores-Ortega 528 U.S. 470 (2000); see also

Commonwealth v. Touw, 781 A.2d 1250 (Pa. Super. 2001 ). Yet, the assistance of counsel is

presumed effective and to show ineffectiveness a Defendant has burden of satisfying the Pierce

test. Specifically, Roe and Touw impose a constitutional duty of appellate counsel to adequately

consult with the defendant as to advantages and disadvantages of an appeal only when "(I) ... a

rational defendant would want to appeal (for example, because there are non-frivolous grounds

for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was

interested in appealing." Touw, 781 A.2d at 1254 (quoting Roe, 528 U.S. at 480). Because we

have already discussed how Defendant failed to demonstrate to counsel his interest in an

Allowance of Appeal, we address only the former condition. We find the case in question

analogous with the Superior Court's decision in Bath. While addressing the same issue before

this Court, the Bath Cami stated:

Bath never suggests which of his issues on direct appeal would not be considered frivolous upon further appeal. We find that Bath has failed to meet the prejudice prong of the test for ineffective assistance of counsel because Bath never puts forward or describes an issue raised upon direct appeal that would rise above mere frivolity upon further review. More importantly, we find that Bath did, in fact, have to meet this burden.

Bath, 907 A.2d at 623. Similar to Bath, the Defendant in the instant case has failed to suggest

which of his issues on direct appeal would not be considered frivolous upon further appeal. As

such, the Defendant has failed to meet the prejudice prong of the Pierce test as he has not shown

that any issue raised upon direct appeal would "rise above mere frivolity upon further review."

Id. Therefore his claim lacks arguable merit. Finally, because the burden to show this on the

Defendant, we find Defendant's assertion on this issue meritless.

In his ninth matter complained of on appeal, Defendant argues that he was denied due

process and equal protection when PCRA counsel failed to investigate, recognize and present

meritorious claims for review. In this Court's January 29, 2014 Order, Attorney Mark F. Bayley

was appointed to represent the Defendant in the proceeding PCRA matters. Attorney Bayley

filed a Motion by Court-Appointed Counsel to Withdraw after concluding Defendant's PCRA

Petition had no merit on May 6, 2014. Attorney Bayless provided a detailed No Merit Letter

pursuant to Turner and Finley. The No Merit Letter was submitted after sufficient investigation

of the facts and law relevant to the case. After carefully analyzing the various issues raised in

Defendant's Petition, Attorney Bayley ultimately found that none contained merit. This Court

agreed and on May 12, 2014, granted Attorney Bayley's Motion to Withdraw as counsel.

Therefore, Defendant's assertion that PCRA counsel failed to investigate, recognize, and present

meritorious claims is clearly without merit. Attorney Bayley conducted sufficient investigation

as indicated throughout his No Merit Letter. Simply because there were no meritorious claims to

recognize and present does not mean Defendant was denied due process and equal protection.

Therefore, we find Defendant's argument on this issue meritless.

Finally we address Defendant's first and tenth matters complained of on appeal. In his

first matter complained of on appeal, Defendant generally reasserts his actual innocence and

states that a manifest injustice has resulted from a wrongful conviction. However, Defendant

provides no legal theories upon which relief could be granted on this "issue" and as such the

Court finds no further need to address it. In his final matter complained of Defendant claims he

was denied due process when this Court denied his request for Post Conviction Collateral Relief.

This Court detailed its reasoning for denying Defendant PCRA relief in our July 30, 2014

Opinion and Order. Based on this and this Court's authority to dismiss Defendant's PCRA

Petition, we find Defendant's final argument without merit.

Pursuant to the Opinion and Order dated July 30, 2014, the Court explained the analysis

involved in our determination that the allegations in Defendant's PCRA Petition lack arguable

merit. Therefore, the Court respectfully requests the appeal be dismissed, and the Superior Court

affirm our prior decision denying relief under the PCRA.