Opinion
J-S45019-15 No. 1455 MDA 2014
07-28-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. KEVIN LEE BEAM Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
Former Justice specially assigned to the Superior Court.
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. In an opinion prepared for purposes of Beam's direct appeal, the trial court summarized the facts underlying Beam's convictions as follows:
18 Pa.C.S. §§ 3121(a)(2), 901(a)-3123(a)(7), 3125(a)(1), 3126(a)(8), and 4304(a)(1), respectively.
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.
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.
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.
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
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.
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 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?Brief for Beam at 5.
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?
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?
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)).
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 relevant opinions as our own. 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.
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.
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 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.
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.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. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2015
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