J-S37023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
J-S37023-17


       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?



                                    -2-
J-S37023-17


                 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,

____________________________________________


       118 Pa.C.S. §§ 6301(a)(1)(ii), 3126(a)(1), 6318(a)(1), and 5901,
respectively.

                                           -3-
J-S37023-17


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

                                      -4-
J-S37023-17


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



                                     -5-
J-S37023-17


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

                                      -6-
J-S37023-17


         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

                                      -7-
J-S37023-17


         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:




                                    -8-
J-S37023-17


               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



____________________________________________


       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



                                           -9-
J-S37023-17


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).



____________________________________________


          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).

                                          - 10 -
J-S37023-17


      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.


                                     - 11 -
J-S37023-17


      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


                                       - 12 -
J-S37023-17


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




                                     - 13 -
J-S37023-17


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.

____________________________________________


       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”).


                                          - 14 -
J-S37023-17


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2017




                          - 15 -
