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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 
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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 fortynine 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 nomerit 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
/UL 3 0 2014 

Before Van Hom, .. rf:!4:.~ .. ., J. 

OPINION AND ORDER OF COURT 

Post Conviction Relief Act 

Defendant Honorable Carol L. Van Horn 

Kevin Lee Beam, 

vs. 

Criminal Action 

No. 499-2009 ~ 

Commonwealth of Pennsylvania, 

IN THE COURT OF COMMON PLEAS 

OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA 

FRANKLIN COUNTY BRANCH 

Circulated 07/09/2015 02:21 PM
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. 

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 

BACKGROUND6 

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

2 

a jury of his peers of rape, 

1 criminal attempt to commit involuntary deviate sexual intercourse, 2 

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

STATEMENT OF THE CASE 

Post Conviction Relief Act 

Defendant Honorable Carol L. Van Hom 

Kevin Lee Beam, 

vs. 

No. 499-2009 

Commonwealth of Pennsylvania, Criminal Action 

IN THE COURT OF COMMON PLEAS 

OF THE 39Ttt JUDICIAL DISTRICT OF PENNSYLVANIA 

FRANKLIN COUNTY BRANCH 

'\ Circulated 07/09/2015 02:21 PM
7 Miranda v. Arizona, 384 U.S. 436 (1966). 

3 

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: 

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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. 

4 

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 

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. 

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

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. 

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 

II. Entry and Withdrawal of Plea 

5 

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. 

I. Beam's Competency Issues 

Trooper Pattillo originally charged Beam with seventeen 

counts on March 18, 2009. 9 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 

ti l · 10 orma arraignment. 

PROCEDURAL HISTORY 

Beam's statement, the Commonwealth and Trooper Pattillo 

decided not to preserve the fetus for testing. 

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12 Brady v. Ma1yland, 373 U.S. 83 (1963). 

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). 

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 evidenceA. Beam's Motion to Dismiss 

6 

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. 

III. Pretrial Motions 

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 

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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 

IV. The Trial 

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. 

7 

B. The Commonwealth's Motion in Limine to Preclude 

Reference to Beam's IQ 

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 crossexamination, 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. 

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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. 

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 

V. Sentence, Post-Sentence Motion, and Appeal 

8 

(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). 

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15 Given the nature of the communications, we granted the motion without a hearing. 

14 On July 18, 2011, the Commonwealth filed a notice of intention to proceed on mandatory minimum sentences. 

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

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

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

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

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

I. Post Conviction Relief Act 

DISCUSSION 

conviction relief proceedings. 

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

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

9 

subject to mandatory minimum sentences of ten years for the rape 

conviction, and five years for the aggravated indecent assault 

conviction. 14 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 

l 925(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. 

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10 

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 

Circulated 07/09/2015 02:21 PM
11 

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

12 

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 

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13 

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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l4 

... [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 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

are not greater than the lawful maximum. 

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

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

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

15 

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

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

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

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

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

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

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. 

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? 

Circulated 07/09/2015 02:21 PM
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 

16 

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 

Circulated 07/09/2015 02:21 PM
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 

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

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

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

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

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

17 

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

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

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

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

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

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

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

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

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

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

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

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

Circulated 07/09/2015 02:21 PM
claim is without merit. 

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

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

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

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

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

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

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

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

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

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

18 

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

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

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

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-yearold .... '). 

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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. 

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

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

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

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

Superior Court Memorandum filed November 8, 2012). 

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

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

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

without merit. 

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

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

19 

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

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

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

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

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

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

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

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

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

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

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

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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. 

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

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

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

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

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

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

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

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

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

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

20 

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

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

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

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

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

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

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

Laws of the United States 

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

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

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

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

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19 Beam does not seek recourse pursuant to his rights under the Pennsylvania Constitution. 

20 Presumably before and after Beam waived his Miranda rights. 

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

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

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

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

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

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

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

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

PCRA petition. 

21 

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

judgment of sentence have been finally litigated and not subject to further review in postpreviously "discussed thoroughly" by the Superior Court in a memorandum affirming Beam's 

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

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

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

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

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

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

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

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

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

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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). 

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

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

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

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

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

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

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

Trooper Peck interviewed Beam. Id. at 9. 

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

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

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

22 

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

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

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

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

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

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

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

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

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

without food, water, or contact with his family. 

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

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23 

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). 

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. 

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24 

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 

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25 

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 

without merit. 

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 

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) 

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23 As noted above, Beam does not seek recourse pursuant to the Pennsylvania Constitution. 

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. 

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

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

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

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

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

incrimination. 23 "When deciding ... to suppress a confession, the touchstone inquiry is whether 

the legality of his written confession pursuant to Fifth Amendment's protection against selfAlthough Beam's factual contention lacks outright support, we will nonetheless examine 

26 

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

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

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

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

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

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

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

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

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

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

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

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27 

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. 

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28 

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. 

CONCLUSION 

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/3J 

, , ,j OCT OR 2Q14 _ -· . , 

~~ 

~ . 

Before Van Hom, J. 

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

Kevin Lee Beam, Post Conviction Relief Act 

Defendant Honorable Carol L. Van Horn 

vs. 

No. 499-2009 

I 

Commonwealth of Pennsylvania, Criminal Action 

IN THE COURT OF COMMON PLEAS 

OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA 

FRANKLIN COUNTY BRANCH 

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

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

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

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

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

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

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

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

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

reference. 

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

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

2 

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

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

STATEMENT OF CASE 

Post Conviction Relief Act 

Defendant Honorable Carol L. Van Hom 

Kevin Lee Beam, 

vs. 

No. 499-2009 

Commonwealth of Pennsylvania, Criminal Action 

IN THE COURT OF COMMON PLEAS 

OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA 

FRANKLIN COUNTY BRANCH 

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3 

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

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

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

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

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

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

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

STANDARD OF REVIEW 

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 selfincrimination 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. 

Defendant raises the following issues in his Concise Statement I 

ISSUES RAISED 

full. 

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

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4 

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. 

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). 

DISCUSSION 

(Pa. 2009). 

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 

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5 

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. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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. 

6 

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 

Opinion finding: 

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

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

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

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

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

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

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

[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. 

ineffective assistance counsel claim stating: 

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

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

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

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

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

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

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

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

review. 

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

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

7 

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

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

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

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

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

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

"manipulative or coercive." Id. at 27. 

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

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

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

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

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

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

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

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

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

interrogation methods are meritless as they lack credible factual 

support. 

I 

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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. 

8 

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

9 

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 

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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. 

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

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

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

appeal. 7 Defendant argues specifically that Attorney Sponseller "pulled documents out of the 

issue was ultimately determined to be meritless by the Superior Court in Defendant's direct 

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

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

10 

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

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

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

under the Pierce test. 

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

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

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

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

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

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

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

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

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11 

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). 

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12 

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 

( 

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13 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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. 

this Court, the Bath Cami stated: 

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

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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. 

CONCLUSION 

14 

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. 

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