Com. v. Beck, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
MICHAEL WAYNE BECK
Appellant No. 1668 MDA 2016
Appeal from the Order Entered September 22, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0007955-2013
BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED DECEMBER 12, 2017
Michael Wayne Beck appeals from the September 22, 2016 order
entered in the York County Court of Common Pleas dismissing his petition filed
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. We
affirm.
This Court summarized the factual and procedural history of this matter
in a prior memorandum, as follows:
On May 16, 2013, B.B. (the Victim), who was 17 years-
old at the time, went to the house of his good friend, Carlos,
around 2:40 p.m., to wait for Carlos to get home from
school around 3:00 p.m. N.T., 3/5/14, at 64. The Victim
intended to wait on the porch for Carlos. Id. Upon arriving
at the house, the family dog began to bark, and [Beck],
Carlos’s father, heard the Victim on the porch and invited
him to wait inside for Carlos. Id. at 64-65. [Beck] and the
Victim sat in the living room and made small talk for several
minutes. Id. at 65-66. Eventually, the conversation shifted
to a discussion about college, which caused [Beck] to start
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crying about Carlos leaving, and that his girlfriend, and her
father, had both just passed away, so that he had no one
left. Id. at 67. The Victim was uncomfortable, but did not
want to be rude and leave. Id. When his phone rang, he
attempted to use it as an excuse to leave. Id. at 68. The
Victim stood up to leave, but [Beck] unexpectedly came up
to the Victim and began hugging him. Id. The Victim then
testified as follows.
[The Commonwealth]:
Q. And so how did you respond to being hugged
by him?
[The Victim]:
A. Well, it made me uncomfortable. I was kind
of just like, okay, you know, all right, that’s
enough. But he just didn’t let go and he just
kept pulling me in tighter and tighter, you know,
and then at which point he kind of like pulled his
head back a little and he stopped crying at that
point and he was just like staring at me in my
eyes and he put his left hand around the back
of my neck and he came in and tried to kiss me
and I jerked my head away.
I go whoa, what are you doing? What are
you doing? And he was like oh, nothing. I’m
like let me go. I’m like let me go, this is
uncomfortable. You’re not acting like yourself.
He goes, well of course I am. I feel fine. How
do you feel? At which point he patted my
stomach with his right hand while his left hand
was still around the back of my neck and then
he put his hand down and he grabbed my penis
through my jeans, on the outside of my jeans,
and then he started to stroke - - I guess feel,
fondle, I don’t know, my testicles through my
jeans like in between my legs.
Q. And . . . that fondling or feeling you talked
about, about how long did that last, if you
remember?
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A. I mean just a few seconds, just long enough
for it to register I mean about how he did it. It
was like a grab and then like this sort of a
motion.
At that point it just clicked to me what was
happening, you know, and I just like jerked
away from him and I grabbed his wrists and
brought them up and like pushed them off of me
and he kind of stumbled back and he raised his
hands and made a face as if he had been
caught, a face like whoa, whoa. And then at
that point I just needed to leave, so I ran out of
there.
Id. at 68-69.
On December 11, 2013, the Commonwealth filed an
information charging [Beck] with corruption of minors,
indecent assault, unlawful contact or communication with
minors, and open lewdness.[1] The unlawful contact or
communication with minors and open lewdness charges
were withdrawn prior to trial. On March 5, 2014, a two-day
jury trial commenced. On March 6, 2014, the jury found
[Beck] guilty of indecent assault and corruption of minors.
On July 30, 2014, [Beck] was sentenced to 6 to 23½
months’ imprisonment, followed by two years’ probation.
Thereafter, on August 29, 2014, [Beck] filed a timely notice
of appeal.
Commonwealth v. Beck, No. 1472 MDA 2014, unpublished mem. at 1-4
(Pa.Super. filed Aug. 25, 2015) (original footnotes omitted). This Court
affirmed Beck’s judgment of sentence on August 25, 2015.
On April 4, 2016, Beck filed the instant PCRA petition. The PCRA court
held hearings on the petition on June 20 and 23, 2016. On July 14, 2016, the
Commonwealth filed a memorandum in opposition of the petition. On July 25,
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118 Pa.C.S. §§ 6301(a)(1)(ii), 3126(a)(1), 6318(a)(1), and 5901,
respectively.
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2016, Beck filed a brief in support of the petition. On September 22, 2016,
the PCRA court dismissed the petition. Beck timely filed a notice of appeal.
Beck raises the following issues on appeal:
1. Whether the [PCRA] court erred in denying [Beck]’s
Petition for Post-Conviction Relief regarding [Beck]’s trial
counsel’s failure to call at trial character witnesses to testify
to [Beck]’s reputation for truthfulness?
2. Whether the [PCRA] court erred in denying [Beck]’s
Petition for Post-Conviction Relief regarding [Beck]’s trial
counsel’s failure to call at trial character witnesses to testify
to the [Beck]’s reputation for appropriateness around
children?
3. Whether the [PCRA] court erred in denying [Beck]’s
Petition for Post-Conviction Relief regarding [Beck]’s trial
counsel’s failure to call at trial character witnesses to testify
to [Beck]’s reputation for peacefulness?
4. Whether the [PCRA] court erred in denying [Beck]’s
Petition for Post-Conviction Relief regarding [Beck]’s trial
counsel’s failure to call at trial character witnesses to testify
to [Beck]’s reputation for self-control?
Beck’s Br. at 3 (answers below omitted).
Our standard of review from the denial of PCRA relief “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).
When analyzing claims of ineffective assistance of counsel, we begin
with the presumption that counsel was effective. Commonwealth v. Spotz,
18 A.3d 244, 259-60 (Pa. 2011). “[T]he defendant bears the burden of
proving ineffectiveness.” Commonwealth v. Ligons, 971 A.2d 1125, 1137
(Pa. 2009). To overcome the presumption of effectiveness, a PCRA petitioner
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must demonstrate that: “(1) his underlying claim is of arguable merit; (2)
counsel had no reasonable basis for his action or inaction; and (3) the
petitioner suffered actual prejudice as a result. If a petitioner fails to prove
any of these prongs, his claim fails.” Commonwealth v. Spotz, 84 A.3d 294,
311 (Pa. 2014) (internal quotation and citation omitted). Further,
[t]o establish the second ineffectiveness prong, the
petitioner must prove that an alternative not chosen offered
a potential for success substantially greater than the course
actually pursued. To establish the third prong, the
petitioner must show that there is a reasonable probability
that the outcome of the proceedings would have been
different but for counsel’s action or inaction.
Commonwealth v. Watley, 153 A.3d 1034, 1040 (Pa.Super. 2016) (internal
quotations and citations omitted), app. denied, 169 A.3d 574, (Pa. 2017).
Here, Beck alleges that trial counsel failed to call character witnesses
regarding his reputation for truthfulness, appropriateness around children,
peacefulness, and self-control. “[T]he importance of good character evidence
is well-recognized” in Pennsylvania. Commonwealth v. Nellom, 565 A.2d
770, 776 (Pa.Super. 1989). “Evidence of good character is substantive and
positive evidence, not a mere make weight to be considered in a doubtful
case, and, . . . is an independent factor which may of itself engender
reasonable doubt or produce a conclusion of innocence.” Commonwealth v.
Luther, 463 A.2d 1073, 1077 (Pa.Super. 1983) (quoting Commonwealth v.
Gaines, 75 A.2d 617, 629 (Pa.Super. 1950)). Accordingly, the “[f]ailure to
present available character witnesses may constitute ineffective assistance of
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counsel. Commonwealth v. Harris, 785 A.2d 998, 1000 (Pa.Super. 2001).
We have held that:
To satisfy the prejudice prong of [the ineffectiveness]
test when raising a claim of ineffectiveness for the failure to
call a potential witness at trial, our Supreme Court has
instructed that the PCRA petitioner must establish that: (1)
the witness existed; (2) the witness was available to testify
for the defense; (3) counsel knew, or should have known,
of the existence of the witness; (4) the witness was willing
to testify for the defense; and (5) the absence of the
testimony of the witness was so prejudicial as to have
denied the defendant a fair trial.
Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa.Super. 2014).
We have also discussed the admission of character evidence:
Under Pennsylvania Rule of Evidence 404(a)(1), a
“person’s character or character trait is not admissible to
prove that on a particular occasion the person acted in
accordance with the character or trait.” Pa.R.E. 404(a)(1).
Under Rule 404(a)(2)(A), a criminal defendant may
introduce evidence of a “pertinent” character trait.
“Pertinent” means relevant to the crimes charged.
Commonwealth v. Minich, 4 A.3d 1063, 1071 (Pa.Super.
2010). In rebuttal, the Commonwealth may offer evidence
of the defendant’s bad character. Pa.R.E. 404(a)(2)(A).
Pennsylvania law generally limits proof of character
evidence to a person’s reputation, and opinion evidence
cannot be used to prove character. Pa.R.E. 405(a).
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 781 (Pa.Super.)
(internal footnote omitted), app. denied, 123 A.3d 331 (Pa. 2015). We have
further explained that:
Evidence of good character offered by a defendant in
a criminal prosecution must be limited to his general
reputation for the particular trait or traits of
character involved in the commission of the crime
charged. The cross-examination of such witnesses by the
Commonwealth must be limited to the same traits. Such
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evidence must relate to a period at or about the time the
offense was committed, and must be established by
testimony of witnesses as to the community opinion
of the individual in question, not through specific acts
or mere rumor.
Commonwealth v. Johnson, 27 A.3d 244, 248 (Pa.Super. 2011) (quoting
Luther, 463 A.2d at 1077-78) (emphases in original).
I. Truthfulness
We first address Beck’s claim that trial counsel was ineffective for failing
to call character witnesses regarding his reputation for “truthfulness.” In
Commonwealth v. Kennedy, 151 A.3d 1117 (Pa.Super. 2016), this Court
discussed the admissibility of character evidence regarding truthfulness. We
explained the circumstances in which evidence regarding a defendant’s
truthfulness is admissible as follows:
[T]his Court has stated that, when truthfulness is not
relevant to the underlying criminal offense, a defendant may
only call witnesses to testify as to his or
her truthfulness when (a) he or she chooses to testify on his
or her own behalf, and (b) the Commonwealth attacks the
defendant’s truthfulness through either cross-examination
or by other witness’ testimony. Thus, this Court has held
that “where the prosecution has merely introduced evidence
denying or contradicting the facts to which the defendant
testified, but has not assailed the defendant’s community
reputation for truthfulness generally, evidence of the
defendant’s alleged reputation for truthfulness is not
admissible.”
In other words, [Pennsylvania Rule of Evidence] 608(a)
permits a testifying defendant to call witnesses to testify as
to his or her truthful character whenever the
Commonwealth attacks his or her general reputation for
truthfulness during trial. Conversely, Rule 404[(a)(2)(A)]
permits a defendant (testifying or non-testifying) to call
witnesses to testify as to his or her truthful character when
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the defendant’s reputation for truthfulness is pertinent to
the underlying criminal offense, e.g., perjury.
Id. at 1128 (internal citations omitted). Accordingly, “the term ‘pertinent’
refers to a character trait that is relevant to the crime charged against the
accused.” Minich, 4 A.3d at 1071. Because Beck was convicted of indecent
assault and corruption of minors, and truthfulness is not pertinent to either
offense, he was not entitled to present witnesses regarding his character for
truthfulness under Rule 404(a)(2)(A).
We turn now to the question whether Beck was entitled to present
testimony from character witnesses as to truthfulness under Rule 608. Beck
relies upon our Supreme Court’s decision in Commonwealth v. Fulton, 830
A.2d 567 (Pa. 2003). In Fulton, after this Court affirmed the appellant’s
judgment of sentence, Fulton filed a PCRA petition alleging that trial counsel
had been ineffective for failing to present evidence of the appellant’s good
reputation for truthfulness. Id. at 569. This Court affirmed the PCRA court’s
dismissal of the petition, and noted that character evidence for truthfulness
was admissible in only two circumstances, where: “(1) the character trait of
truthfulness is implicated by the elements of the charged offenses; or (2) the
defendant’s character for truthfulness was attacked by evidence of bad
reputation.” Id. The Supreme Court granted discretionary review to resolve
the question of trial counsel’s alleged ineffectiveness. In the opinion
announcing the judgment of the court, then-Justice Castille observed that:
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It has long been the law in Pennsylvania that a defendant
in a criminal case may introduce evidence of his reputation
for truthfulness in but two circumstances. First, the accused
may introduce evidence of his truthful character if the trait
of truthfulness is relevant to the crime with which he has
been charged. . . . Second, the accused may introduce
evidence of his truthful character if his reputation for
truthfulness has first been attacked by the prosecution.
Id. at 572. Then-Justice Castille concluded that “[i]n the absence of any effort
by the prosecution to impeach [the] appellant’s general reputation in the
community for truthfulness, evidence of [his] alleged good reputation for
veracity was inadmissible at his trial.” Id. at 574. Then-Justice Castille
disagreed with the appellant’s suggestion that, even in situations where
truthfulness is irrelevant to the defendant’s charges and his general reputation
for truthfulness has not been attacked, the defendant may introduce evidence
of his truthfulness whenever the credibility of his testimony has been
challenged or contradicted by the Commonwealth. Id. at 575.
Now-Chief Justice Saylor dissented, and, in reasoning adopted by four
members of the Court2 and consistent with the language of Rule 608,3
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The trial court concluded, incorrectly, that the only circumstances in
2
which a defendant’s reputation for truthfulness are admissible are those
contemplated by the opinion announcing the judgment of the court. See
Mem. Order Denying PCRA Petition, 9/22/16, at 3-4.
3 At the time Fulton was decided, Rule 608 provided, in relevant part:
(a) Reputation Evidence of Character
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suggested “a more flexible approach, which would allow the trial court to
permit rehabilitative evidence in limited situations where it believes that the
witness’s character for veracity has been impugned.” Id. at 578 (Saylor, J.,
dissenting). These situations could include vigorous cross-examination or
statements made in opening arguments, where a “witness’s character is
attacked by questions that are directed at an issue in the case, but
nevertheless have the actual effect of assailing the witness’s veracity.” Id. at
577-78 (Saylor, J., dissenting).
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The credibility of a witness may be attacked or supported by
evidence in the form of reputation as to character, but
subject to the following limitations:
(1) the evidence may refer only to character for truthfulness
or untruthfulness; and
(2) evidence of truthful character is admissible only after
the character of the witness for truthfulness has been
attacked by reputation evidence or otherwise.
Pa.R.E. 608(a) (2003).
In 2013, Rule 608, along with the other Pennsylvania Rules of Evidence,
was amended for stylistic reasons, with no intent to change the substance, to
provide in relevant part:
(a) Reputation Evidence. A witness’s credibility may be
attacked or supported by testimony about the witness’s
reputation for having a character for truthfulness or
untruthfulness. But evidence of truthful character is
admissible only after the witness’s character for truthfulness
has been attacked. Opinion testimony about the witness’s
character for truthfulness or untruthfulness is not
admissible.
Pa.R.E. 608(a).
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In Fulton, “the prosecutor used a specific instance of untruthfulness,
with limited relevance to the crime to which [the appellant] had been charged,
to establish [his] character for untruthfulness,” which included using the words
“lied” or “lie” repeatedly on cross-examination and in her closing argument.
Id. at 577-78. Chief Justice Saylor concluded that “[g]iven the net effect of
these statements” he could not conclude that the appellant’s ineffectiveness
claim lacked arguable merit. Id. at 579.
Beck argues that the Commonwealth placed his “veracity” at issue by
“vigorously cross-examin[ing]” him regarding the differences between his
account of the facts and the Victim’s account. Beck’s Br. at 19-20. Beck also
contends that the Commonwealth “emphasized in its closing argument . . .
that [this case] is essentially a determination of credibility between the
complainant and [Beck], and concluded that [Beck] was not to be believed.”
Id. at 20. After reviewing the record, including the Commonwealth’s cross-
examination of Beck and its closing argument, we conclude that the
Commonwealth neither attacked Beck’s reputation for truthfulness nor
assailed his character for veracity in the way envisioned by Chief Justice
Saylor. Cross-examination, as occurred here, that merely suggests that a
defendant has an understandable motive to deny culpability does not
constitute an attack on a defendant’s proclivity for truthfulness generally. The
net effect of the challenged statements falls short of the situation
contemplated by Chief Justice Saylor.
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Thus, Beck was not entitled to present evidence regarding his character
for truthfulness under Rule 608. Because the testimony Beck sought to
introduce regarding his reputation for truthfulness was inadmissible, his
underlying claim lacks arguable merit. The PCRA court therefore did not err
in dismissing Beck’s ineffectiveness claim based on trial counsel’s failure to
call witnesses regarding Beck’s character for truthfulness.
II. Appropriateness around Children and Self-Control
We next address Beck’s claims that trial counsel was ineffective for
failing to call character witnesses regarding Beck’s reputation for
“appropriateness around children” and “self-control.” Regarding Beck’s
reputation for “appropriateness around children,” the PCRA court found that
the underlying claim lacked arguable merit because none of the proposed
character witnesses’ testimony regarding Beck’s “appropriateness around
children” would have been admissible at trial. After reviewing the certified
record, the parties’ briefs, and the relevant law, we agree with and adopt the
PCRA court’s reasoning. Mem. Order Denying PCRA Petition, 9/22/16, at 4-6
(“Order”). Specifically, the PCRA court found that the proposed testimony of
witnesses Kenneth Sanders and James Driskell regarding Beck’s
“appropriateness around children” consisted of testimony about specific
instances of conduct and the witnesses’ opinion, which are inadmissible to
prove character. See Pa.R.E. 405. Further, the PCRA court found that the
proposed testimony of Carlos Beck was not responsive to the question of
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Beck’s reputation for “appropriateness around children.” In addition, trial
counsel testified at the PCRA hearing as follows:
Q. How about appropriate interactions with minor children?
A. Again, not something that there would be a reputation.
It would be more evidence of specific instances. He’s been
a teacher for 20 years and never had a problem. It’s specific
instances here. It’s not a reputation.
N.T., 6/20/16, at 63. Thus, counsel had a reasonable basis for not calling
character witnesses regarding Beck’s reputation for “appropriateness around
children” because he did not believe there was evidence of this character trait
other than inadmissible specific instances of conduct.
With regard to Beck’s character for “self-control,” the PCRA court
similarly observed that the testimony of Beck’s proposed character witnesses
would not have been admissible at trial, as the witnesses’ proposed testimony
regarding “self-control” was not proper character evidence regarding Beck’s
reputation in the community, but rather was “either personal opinion, or . . .
based on specific incidents of conduct and not on general reputation.” Order
at 9. Accordingly, Beck’s underlying claim lacks arguable merit.
Thus, Beck’s trial counsel was not ineffective for failing to call character
witnesses regarding his reputation for either “appropriateness around
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children” or “self-control” and the PCRA court did not err in dismissing these
claims.4
III. Peacefulness
Beck’s final claim is that trial counsel was ineffective for failing to call
character witnesses regarding his reputation for “peacefulness.” “In a case
where the crime charged is one of violence, evidence of reputation for non-
violent behavior is admissible.” Harris, 785 A.2d at 1000. The PCRA court
found: “In this case, there were no allegations that [Beck] employed force,
coercion, or inflicted physical pain or injury on the Victim. Instead, the
charges were based on [Beck]’s inappropriate touching/fondling of the
Victim’s genitals.” Order at 7. Because corruption of minors and indecent
assault as alleged here are not crimes of violence, and because there was no
allegation that Beck acted violently toward the Victim, any evidence regarding
Beck’s reputation for non-violent behavior/peacefulness would have been
irrelevant, and, thus, inadmissible at trial. See Pa.R.E. 402 (“Evidence that
is not relevant is not admissible.”). Thus, this claim lacks arguable merit and
the PCRA court did not err in dismissing Beck’s ineffectiveness claim.
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4Although it is difficult to envision a reputation for these traits that does
not consist of simply listing specific instances of conduct, because we agree
with the PCRA court that Beck’s proposed character evidence regarding these
traits was inadmissible, we need not reach the question whether these traits
are pertinent to Beck’s offenses under Rule 404. Cf. Reyes-Rodriguez, 111
A.3d at 782 n.6 (noting that “[a] person’s reputation as a good father or
caretaker may be pertinent to rebut a charge that a person sexually abused
children under his care”).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2017
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