NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA
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v. :
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RICHARD BEENER, SR. :
:
Appellant : No. 2268 EDA 2025
Appeal from the PCRA Order Entered July 30, 2025 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0000814-2019
BEFORE: NICHOLS, J., McLAUGHLIN, J., and KING, J. MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 14, 2026 Richard Beener, Sr., appeals from the denial of his petition for relief under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. He argues that he raised meritorious claims of ineffective assistance of counsel. We affirm.
Following a bench trial, the trial court found Beener guilty of two counts each of rape of a child less than 13 years of age and involuntary deviate sexual intercourse, one count each of aggravated indecent assault of a person less
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than 13 years of age and corruption of minors, and three counts each of indecent assault―person less than 13 years of and indecent exposure. 1,2 Beener’s convictions stem from his interactions with his niece when she would visit his home. The victim testified that the assaults included Beener touching her vagina, masturbating in front of her while in his garage, trying to touch the victim’s body with balloons, including doing so while she and a friend were in a jacuzzi tub, removing his pants to get in the pool with the victim, and showing the victim pornography. Commonwealth v. Beener, No. 1993 EDA 2022, 2023 WL 6843402 at *5 (Pa.Super. filed October 17, 2023) (unpublished mem.); accord N.T., Feb. 1, 2022, at 46-66, 70-74. She further testified Beener placed his penis inside of her mouth while masturbating on several occasions. Beener, 2023 WL 6843402 at *5; N.T., Feb. 1, 2022, at 59. These acts occurred while the victim was between the ages of six and 11 years old. The Commonwealth also presented the testimony of the victim’s father and the victim’s friends. It also presented testimony “related to an incident in which Beener exposed himself and masturbated in the doorway of his residence in front of a five-year-old neighbor in June 2014.” Beener, 2023 WL 6843402 at *2; N.T., Feb. 1, 2022, at 23-30.
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118 Pa.C.S.A. §§ 3121(c), 3123(a), 3125(b), 6301(a)(1), 3126(a)(7), and 3127(a), respectively.
2 Beener initially entered a guilty plea in July 2021. Approximately four months
later, the court granted his motion to withdraw the plea. See Guilty Plea Colloquy, filed July 7, 2021; Motion to Withdraw Guilty Plea, filed October 1, 2021; Order, filed November 18, 2021.
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Beener presented testimony of a private investigator and his son, Gregory Beener (“Gregory”). Gregory testified that the victim visited the Beener household on multiple occasions and that she seemed “happy to be there[.]” Beener, 2023 WL 6843402 at *5. He further testified that Beener was never in the house alone with the victim and he could not remember a time when the victim would have been inside the garage. Gregory testified that he believed that the victim was lying about the allegations but admitted that “he was in school or working a lot” during the time period of the assaults. Id. at *6.
The court sentenced Beener to an aggregate term of 20 to 40 years’
incarceration. The sentence included a consecutive term of 10 to 20 years’ incarceration for each count of rape of a child and the imposition of no further penalty for all remaining charges. Beener appealed and challenged the admission and weight of the evidence, and the court’s denial of his post- sentence motion. We affirmed the judgment of sentence. See id. at *13.
Beener filed the instant PCRA petition in November 2024. Relevant to this appeal, Beener raised claims of ineffective assistance of trial counsel for failing to call Beener’s wife, Kelly Beener (“Kelly”), as a witness and failing to challenge the discretionary aspects of his sentence. The PCRA court held an evidentiary hearing where it heard testimony from Beener, Beener’s trial counsel, and Kelly.
Beener’s counsel testified that he originally was not going to present witnesses at trial because he “thought that the Commonwealth’s case would
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be so incredible[.]” N.T., PCRA Hearing, May 6, 2025, at 32-33. He later considered using Kelly as a witness. Counsel testified that “Kelly [knew] the most about the case” and “guided [him] through the case.” Id. at 33. Despite Kelly’s knowledge of the case, counsel decided against presenting her as a witness because “she talks a lot” and he “didn’t think she could withstand cross-examination.” Id. Counsel chose to use Beener’s son, Gregory, as a trial witness. He testified that he believed that Gregory would testify similarly to Kelly but “in a more efficient manner.” Id. at 53. Counsel testified that he and Beener discussed the decision not to use Kelly as a witness, but that Beener did not expressly agree with the strategy. See id. at 34-36.
Regarding Beener’s sentence, counsel testified that he did not challenge the sentence because “when [the trial judge] read that sentence - - when he read his findings of facts and when he read the sentence, he was pretty sure that that’s what he wanted to do.” Id. at 41. Counsel testified that in his experience, “A discretionary portion of what a judge does very rarely gets overturned by the Superior Court because it’s a matter of discretion. They are not going to substitute their discretion for - - the trial court’s discretion. It just never happens.” Id. He also testified that there were “better issues” that he proceeded with on appeal and that he “didn’t think [he] had a chance” with challenging Beener’s sentence. Id. at 41-42.
Beener testified that counsel discussed with him the decision not to present Kelly as a witness and that he “left it up to [counsel] mainly.” Id. at
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54. Beener did not testify about whether he asked counsel to challenge his sentence on direct appeal or if he desired to raise the issue.
Kelly testified that she expected to testify at Beener’s trial “to provide the timeline, the events that occurred, and my presence - - to provide[] facts of whereabouts, how [the victim] came to be at my home.” Id. at 13-14. She testified that sometime before trial, counsel informed her that she would not testify. Id. at 17. Regarding the bubble bath in the whirlpool tub, Kelly testified that the victim and her friend were in the bath and that she remained in the bathroom with the girls the entire time. Id. at 15. She testified that she asked Beener to come to the bathroom to see how high the bubbles were in the bathtub. Kelly testified that Beener came to the bathroom door, saw the bubbles, and then left. Id. She testified that Beener never touched either child. Id.
The court dismissed Beener’s petition. See Order, filed July 29, 2025. It concluded that counsel had a reasonable basis for not presenting Kelly as a witness and not challenging Beener’s sentence. See Memorandum Opinion, filed July 29, 2025, at 10-11, 14. This timely appeal followed.
Beener raises the following questions:
I. Did the [t]rial [c]ourt err by not finding [Beener’s] trial counsel ineffective for his failure to call a credible and critical witness during the trial of this case when trial counsel’s theory of the case was to challenge the credibility of the complaining witness?
II. Did the [t]rial [c]ourt err in holding that trial counsel was effective during the post-sentence and direct appeal of this case when counsel failed to challenge
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the discretionary aspects of the lengthy sentence by the filing of post-sentence motions for reconsideration of the sentence and where that failure prejudiced [Beener’s] right to challenge the imposed sentence?
Beener’s Br. at 7.
Our standard of review from the denial of PCRA relief is settled:
When reviewing an order denying a PCRA petition, we examine whether the determination of the PCRA court is supported by the record and free of legal error. We consider the record in the light most favorable to the prevailing party at the PCRA level, and grant great deference to the PCRA court’s findings that are supported in the record. Our standard of review of a PCRA court’s legal conclusions, however, is de novo.
Commonwealth v. Giles, 357 A.3d 555, 559 (Pa.Super. 2026) (internal quotation marks and citations omitted).
For claims of ineffective assistance of counsel, we presume that counsel was effective. See Commonwealth v. McCready, 295 A.3d 292, 298 (Pa.Super. 2023). To overcome this presumption, the petitioner must prove that:
(1) the underlying substantive claim has arguable merit; (2)
counsel did not have a reasonable basis for his or her act or omission; and (3) the petitioner suffered prejudice as a result of counsel’s deficient performance, that is, [there is]
a reasonable probability that but for counsel’s act or omission, the outcome of the proceeding would have been different.
Commonwealth v. Alceus, 315 A.3d 853, 859 (Pa.Super. 2024) (citation omitted). “A petitioner’s failure to satisfy any prong of this test is fatal to the claim.” Commonwealth v. Smith, 352 A.3d 111, 116 (Pa. 2026).
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When examining whether counsel had a reasonable basis, “we do not question whether there were other more logical courses of action which counsel could have pursued[.]” Commonwealth v. Anderson, 327 A.3d 273, 281 (Pa.Super. 2024) (citation omitted). Instead, “we must examine whether counsel’s decisions had any reasonable basis.” Id. (citation omitted). It may be determined that counsel lacked a reasonable basis for their decision where the petitioner proves that an alternative decision “offered a potential for success substantially greater than the course actually pursued.” See id. (citation omitted). Regarding the prejudice prong, it is “measured by whether there is a reasonable probability that the result of the proceeding would have been different.” Commonwealth v. Hannibal, 156 A.3d 197, 206 (Pa. 2016).
Beener claims that the PCRA court erred in denying his claim of ineffective assistance of counsel for failing to have Kelly testify at trial. He maintains that counsel’s concerns regarding Kelly’s testimony and ability to handle cross-examination “w[ere] demonstrably false” considering her testimony at the evidentiary hearing, which “demonstrated none of the tendencies claimed by counsel when [Kelly] answered each question put to her in a clear and concise manner.” Beener’s Br. at 23, 29. Beener also maintains that Kelly “would have provided testimony directly contradicting” the Commonwealth’s evidence related to an incident inside a bubble bath between the victim and Beener. Id. at 26. He points out Kelly’s evidentiary hearing testimony that “[Beener] did not commit the alleged offense, that
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[she] was present during the bubble bath, and that the complaining witness and her friend were submerged in bubbles and were not touched with balloons as alleged by the victim.” Id. (citing N.T., PCRA Hearing, at 14-15). He argues that Kelly’s testimony was “clearly exculpatory and would have bolstered the defense.” Id. Beener also likens counsel’s actions to those in Commonwealth v. Dennis, 950 A.2d 945, 964 (Pa. 2008), where counsel failed to investigate potential alibi witnesses.
A petitioner proves that counsel was ineffective for failing to call a witness where it is established that:
(1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have denied the defendant a fair trial.
Commonwealth v. Treiber, 121 A.3d 435, 464 (Pa. 2015) (citation omitted).
The PCRA court concluded counsel had a reasonable basis to not call Kelly as a witness. The record supports this conclusion, and the court did not err. Counsel testified he believed Kelly would not bear well under cross- examination and he was worried she would provide information unhelpful to the case. Counsel also explained that he believed Beener’s son could provide similar testimony but “in a more efficient manner.” N.T., PCRA Hearing, at 53. Beener failed to demonstrate that this was not a reasonable basis for choosing not to call Kelly as a witness and has not proven that Kelly’s testimony “offered
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a potential for success substantially greater than the course actually pursued.” Anderson, 327 A.3d at 281 (citation omitted). Beener’s focus on Kelly’s potential testimony regarding the bath does not change the outcome. The victim provided detailed accounts of Beener’s sexual abuse beyond the bath incident. See Beener, 2023 WL 6843402 at *3-4. The victim’s father also testified about her demeanor changing over time following the years spent at Beener’s home. See id. at *5. In addition, the Commonwealth introduced evidence of a separate incident between Beener and another minor that involved a balloon, like the bath incident in this case, and that incident resulted in Beener pleading guilty to indecent assault and lewdness. See id. at *2.3 Thus, even if Kelly could have testified about the bath incident, it would not have “offered a potential for success substantially greater than the course actually pursued,” considering the overwhelming evidence against Beener. Anderson, 327 A.3d at 281 (citation omitted); see Commonwealth v. Brown, 767 A.2d 576, 582 (Pa.Super. 2001) (stating “trial counsel will not be found ineffective for failing to investigate or call a witness unless there is some showing by the appellant that the witness’s testimony would have been
helpful to the defense”).4
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3“The charges related to an incident in which Beener exposed himself and masturbated in the doorway of his residence in front of a five-year-old neighbor in June 2014.” Beener, 2023 WL 6843402 at *2.
4 Beener’s reliance on Dennis is unavailing. There, our Supreme Court remanded the appellant’s case to the PCRA court to address his ineffectiveness (Footnote Continued Next Page)
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Next, Beener claims that the PCRA court erred in denying his ineffectiveness claim for counsel’s failure to challenge the discretionary aspects of Beener’s sentence. Beener maintains that his sentence of 20 to 40 years’ incarceration “is equivalent of a life sentence for a man who was 61 years of age at the time of the sentencing in this case.” Beener’s Br. at 37. Beener maintains “[t]he length of the sentence alone, and the practical effect that it would be a life sentence, would be sufficient for any reasonable attorney to challenge the sentence or, at a minimum to consult with [Beener] and determine if that claim should have been raised.” Id. at 41. He argues that he wanted to challenge his sentence, but counsel forfeited this right by failing to ask what issues he wished to have raised on appeal. See id. at 38. He further claims that counsel should have raised “a claim in post-sentence motions that the imposed sentence represented a[] significant and unreasonable deviation from the sentencing guidelines[.]” Id. at 36.
“Sentencing is within the discretion of the trial court and will not be disturbed absent an abuse of discretion.” Commonwealth Harris, 352 A.3d 460, 465 (Pa.Super. 2026). When imposing sentence, the court must consider “the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative
needs of the defendant.” 42 Pa.C.S.A. § 9721(b). Additionally, where the court
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claim for counsel’s failure to investigate a potential alibi witness. Dennis, 950 A.2d at 961-64, 979. Here, counsel spoke with Kelly but ultimately decided against using her as a witness. Thus, unlike Dennis, after thorough investigation, counsel declined to use Kelly as a witness.
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had the benefit of a presentence investigation report (“PSI”), we presume that it “was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors.” Commonwealth v. Hill, 348 A.3d 264, 287 (Pa.Super. 2025) (citation omitted).
This claim of ineffective assistance of counsel is meritless. The PCRA court concluded counsel had a reasonable basis to not challenge the sentence, and we agree. Counsel testified that he believed he had “better issues” to raise on appeal and that in his experience, claims challenging the discretionary aspects of sentence do not prevail due to the deference given to the trial court. Additionally, Beener did not testify that he asked counsel to challenge his sentence. See N.T., PCRA Hearing, at 54-57. Though Beener claims that the court imposed a sentence that amounts to a life sentence, he was not entitled to a “volume discount on his multiple convictions.” Commonwealth v. Brown, 249 A.3d 1206, 1216 (Pa.Super. 2021) (cleaned up). The standard guideline range for rape of a child is 84 to 240 months, i.e. seven to 20 years. The court imposed a term of 10 to 20 years. Thus, the court imposed a sentence within the Sentencing Guidelines. It also had the benefit of a PSI. Therefore, we presume the court was aware of Beener’s mitigating factors as well as information related to Beener, including his age at the time of sentencing. See Opinion, filed Jan. 3, 2023, at 24-25. Considering such, we cannot say that raising a challenge to the sentencing would have “offered a potential for success substantially greater than” counsel’s decision not to
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challenge the sentence. See Anderson, 327 A.3d at 281 (citation omitted). We affirm the order of the PCRA court dismissing Beener’s PCRA petition. See Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 785 (Pa.Super. 2015) (en banc) (rejecting ineffective assistance of counsel claim for failure to challenge sentence where appellant did not ask counsel about sentencing, court gave reasons on the record for sentence imposed, and appellant did not establish prejudice).
Order affirmed.
Date: 9/14/2026