Commonwealth v. Bean

17 Pa. D. & C.5th 470
CourtPennsylvania Court of Common Pleas, Berks County
DecidedOctober 27, 2010
Docketno. CP-06-CR-2159-06
StatusPublished

This text of 17 Pa. D. & C.5th 470 (Commonwealth v. Bean) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Bean, 17 Pa. D. & C.5th 470 (Pa. Super. Ct. 2010).

Opinion

LUDGATE, J,

— Kevin M. Bean (hereinafter petitioner) appeals from this court’s opinion and order disposing of defendant’s petition for Post-Conviction Relief, decided August 25, 2010. This court adopts and incorporates its opinions and orders of August 25, 2010 and March 20, 2007.

Petitioner’s PCRA claims, primarily focusing on ineffective assistance of counsel, demonstrate how the availability of PCRA relief can permit a defendant to twist the trial record in order to scrutinize the minutiae of counsel’s performance. This case also demonstrates, however, the sound reasons for giving counsel wide discretion in matters of trial strategy, and respecting decisions made by counsel under high pressure trial situations. Because petitioner fails to allege that his counsel was constitutionally deficient, and because petitioner’s other claims are without merit, this court respectfully requests that petitioner’s appeal be denied.

FACTUAL AND PROCEDURAL HISTORY

On March 20, 2006, petitioner was charged with eight counts of aggravated assault, four counts of simple assault, two counts of recklessly endangering another person, and four counts of harassment stemming from an incident at Reading Hospital on March 19, 2006. Petitioner’s jury trial began on January 17, 2007, and on January 22, 2007, the jury found petitioner guilty of count 5, aggravated assault, 18 Pa. C.S.A. §2702(a)(3); count 9, simple assault, 18 Pa. C.S.A. §2701(a)(l); and count 10, simple assault, 18 Pa. C.S.A. §2701(a)(l). Petitioner was [473]*473sentenced on February 5,2007 to a period of incarceration of not less than one (1) nor more than four (4) years in Berks County Prison followed by eight (8) years of special probation under the supervision of the Pennsylvania Board of Probation and Parole.

On February 9, 2007, petitioner, through his attorney, Emmanuel Dimitriou, Esquire, filed a motion to reconsider sentence, which this court denied on February 12, 2007. Petitioner filed a timely notice of appeal. The Pennsylvania Superior Court affirmed judgment of sentence on April 7, 2008, and the Pennsylvania Supreme Court denied the petition for allowance of appeal on October 16, 2008.

On January 27, 2009, petitioner, through present counsel Glenn A. Zeitz, filed a timely petition for post-conviction relief (hereinafter “PCRA”) and related documents. This court ordered petitioner and the commonwealth to file briefs no later than March 5, 2009 regarding the scope of a PCRA hearing to be held, if any. On February 10, 2009, petitioner’s counsel requested this court amend its order to allow petitioner to file a response brief after the filing of the commonwealth’s brief. This court denied the request on February 13, 2009 and reiterated its order that the commonwealth and defendant were to file briefs no later than March 5, 2009. The commonwealth timely filed its brief on March 4, 2009.

As of March 27, 2009, however, petitioner had not yet filed a brief. On that date, this court issued a notice of intent to dismiss the PCRA petition without a hearing [474]*474pursuant to Pa.R.Crim.P.907(l) for failure to file a brief. On April 6, 2009, petitioner filed a response to the court’s notice of Intent and filed a listing of issues to be determined at a PCRA hearing. On April 21, 2009, this court dismissed petitioner’s PCRA petition. Petitioner filed a notice of appeal from this court’s dismissal on April 27, 2009 and on November 20, 2009, the Superior Court remanded the case for an evidentiary hearing on petitioner’s PCRA claims. On June 2, 2010, the court held the evidentiary hearing pursuant to the remand.

Following the evidentiary hearing, this court issued an opinion and order dismissing petitioner’s PCRA claims. Petitioner appealed on September 17, 2010, and, pursuant to this court’s order, filed a concise statement of errors complained of on appeal on October 4, 2010.

ISSUES RAISED BY PETITIONER

In his 1925(b) statement, petitioner alleges the following issues on appeal:

1. Whether trial counsel rendered ineffective assistance of counsel in his closing argument by twice conceding without the consent of his client that appellant-defendant Kevin M. Bean was at the very least guilty of simple assault which was then used by the commonwealth to satisfy the essential elements of 18 Pa. C.S.A. §2702(a) (3).

2. Whether the trial court erred by denying Mr. Bean a new trial based on newly discovered evidence which [475]*475would have established, inter alia, that Mr. Bean could not have intentionally or knowingly assaulted a member of a “protected class” under 18 Pa. C.S.A. §2702(a)(3) because he never saw the person he struck.

3. Whether Mr. Bean knowingly, voluntarily and intelligently waived his constitutional right to testify when he never stated or even acknowledged during his colloquy with the trial court to having discussed the “benefits and detriments of testifying” or that he was not “forced” to give up his right to testify; when the trial court never informed Mr. Bean that “juries sometimes do considered (sic) a defendant’s silence when deliberating” or on other constitutionally essential information during the colloquy; and when trial counsel’s basis for the waiver was unreasonable.

4. Whether trial counsel rendered ineffective assistance of counsel for failing to call Mr. Bean to testify as to the following:

a. He honestly misperceived deputy coroner Wally Woytovich’s grabbing his arm as a threat necessitating physical self-defense which would have then formed the basis to admit the testimony of Dr. Timothy E. Ring in accordance with the court’s decision in Commonwealth v. Pitts, 740 A.2d 726 (Pa. Super. 1989), and which also would have supported a defense theory of self defense.
b. He never had any prior contact with Mr. Woytovich which would have directly contradicted Mr. Woytovich’s testimony that they had met at a funeral [476]*476director’s meeting.
c. He did not strike Mr. Woytovich because of his status as deputy coroner.

5. Whether trial counsel rendered ineffective assistance of counsel for failing to argue prior to, during and after the trial that there was and is no reasonable basis in fact or law to support count 5 charging a violation of Pa. C.S.A. §2702(a)(3) and/or that aforesaid statute was unconstitutionally vague.

6. Whether trial counsel rendered ineffective assistance of counsel for failing to object to the points of charge as to count 5 and to propose certain points of charge pertaining to self defense.

7. Whether trial counsel rendered ineffective assistance of counsel for failing to meaningfully cross-examine Mr. Woytovich on certain areas of his testimony which would have lead to unequivocal answers directly exculpating Mr. Bean since the testimony would establish a lack of knowledge and intent on his part to commit a crime.

Based on the reasoning below, none of the petitioner’s claims entitle him to relief under the PCRA. This court therefore respectfully requests that the petitioner’s appeal be denied. In this discussion below, petitioner’s claims have been rearranged in order to deal with the issues more concisely; the petitioner’s claims from his Concise Statement have been referenced in the caption of each section.

[477]*477DISCUSSION

I.

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Cite This Page — Counsel Stack

Bluebook (online)
17 Pa. D. & C.5th 470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-bean-pactcomplberks-2010.