Commonwealth v. Beach

COMMONWEALTH OF PENNSYLVANIA v. RICHARD WILLIAM BEACH Appellant

J-A18034-20

No. 1060 WDA 2019

SUPERIOR COURT OF PENNSYLVANIA

APRIL 14, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered May 28, 2019

In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0001554-2016

BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:

Appellant Richard William Beach appeals from the judgment of sentence imposed following his convictions for rape, aggravated indecent assault, unlawful contact with minors, corruption of minors, involuntary deviate sexual intercourse (IDSI)—forcible compulsion, IDSI—person less than sixteen years old, indecent exposure, indecent assault—forcible compulsion, simple assault, and endangering the welfare of children.¹ Appellant argues that the trial court violated his constitutional right to self-representation by ordering standby counsel to cross-examine certain witnesses. We affirm.

The underlying facts of this matter are well known to the parties. See Trial Ct. Op., 1/14/20, at 2-4. Briefly, Appellant was charged with multiple offenses based on allegations that he sexually abused K.H., his minor step-daughter, and K.B., his biological daughter, over a period of approximately three years, beginning in 2014 when they were approximately thirteen and fourteen-years old.

The matter proceeded to a jury trial, which was scheduled to begin on December 3, 2018.² That day, following jury selection, Appellant requested leave to proceed pro se and asked the trial court to allow his appointed counsel to remain as standby counsel. N.T. Trial, 12/3/18, at 4. The Commonwealth opposed Appellant's request to proceed pro se but argued that if the trial court granted his motion, standby counsel should conduct cross-examination of Appellant's immediate family members, including the two victims, K.H. and K.B., and a witness, A.B., who was Appellant's minor son.³ Id. at 5. The Commonwealth also objected to Appellant cross-examining Appellant's former live-in girlfriend, H.H., who was also the mother of both K.B. and A.B. Id.

After conducting a colloquy to confirm that Appellant's waiver of counsel was knowing, voluntary, and intelligent, the trial court granted Appellant'smotion to proceed pro se. Id. at 5-20. The trial court also granted Appellant's request for appointed counsel to act as standby counsel. Id. at 20.

Thereafter, the following exchange occurred:

THE COURT: So in regards to any witness proffered by [the] Commonwealth[,] the defense has the right to cross-examine that witness, however, the manner and scope of cross-examination are completely in the discretion of the court. In regards to an alleged victim in the matter or anyone who represents credibly that they are in fear of [Appellant], the court would permit cross-examination by the defense in the person of [standby counsel]. [Appellant] could give [standby counsel] a list of questions that he wants asked to the victims, the court will allow time for that kind of exchange, but it would be [standby counsel] who would conduct the examination, if necessary, to approach the witness it would be [standby counsel] who would approach the witness. This ruling would not apply to Commonwealth witnesses who were not alleged victims or family members or persons who knew [Appellant] personally such that they could assert credibly that they would be intimidated or feel threatened or uncomfortable by the questioning so it wouldn't apply to apply to Commonwealth professional witnesses such as police officers, expert witnesses, lab technicians, other people like that, do you understand the court's ruling [Appellant]?

[Appellant]: Your Honor is it my understanding from what you said that as long as they say that they are afraid of me you're saying I cannot question them is that what you're saying Your Honor?

THE COURT: No I'm not saying that. I'm saying you can question them, however, you personally can't question them, you would be questioning them through the vehicle of your standby counsel[.]

[Appellant]: Can I have a knowledge of who I can and cannot question myself Your Honor because I'm confused on that.

THE COURT: From the Commonwealth, who would you assert that you would be asking that [Appellant] not cross-examine them personally[?]

[The Commonwealth]: [H.H.], [K.B.], [K.H.], [A.B.].

[Appellant]: Your Honor those are the bulk of my questions to the people, I understand [K.B. and K.H.], I understand that. As far as [H.H. and A.B.] . . . I object.

THE COURT: So before each witness is called to the witness stand ordinarily outside the presence of the jury, we ask for an offer of proof as to that witness' testimony. Normally the witness[] is present during that offer of proof. If it's so desired, we can make inquiry of the witnesses on the record as to whether . . . they would feel intimidated or afraid by you--specifically the court's making a ruling right now, we're not even going to ask the question, the alleged named victims who are alleging that you sexually assaulted them or assaulted them in other ways we are not going to permit you to directly question those people. The other people who are not direct-alleged victims and that would include [H.H. and A.B.] . . .

Those people indicate on the recorded record that they would be uncomfortable being questioned directly by you because of their degree of familiarity with you or knowledge of you then we will--- the ruling will be that you may question them, you may cross-examine them, but only through the vehicle of [standby counsel] and not directly address them yourself[,] do you understand the court's ruling sir?

[Appellant]: Can you give me one second Your Honor.

THE COURT: So [Appellant,] just to make it clear. The court's ruling would not only protect the witnesses from being potentially intimidated for you. It would also protect you from the image that that would portray to the jurors who may consider that to be additional or re-victimization of the victim by you so those are two reasons the court would not allow you to ask the direct alleged victims questions. It would [i]nure their harm or it could [i]nure to your harm.

[Appellant]: Yes, Your Honor I understand that. What I was looking over here I was looking over the witness list. Out of this whole entire witness list, the five people that lived in the house where the alleged actions--- was--- whatever--- they're saying that out of that I cannot question any of them if---well I understand that too ---I understand [K.B. and K.H.] I get that.

What I'm not understanding is the [reasoning on A.B.] and then [H.H.], I didn't understand the [H.H.] or [A.B.]?

THE COURT: [H.H.] is who to you?

[Appellant]: My ex-girlfriend of 15 years.

THE COURT: If she indicates that she would be intimidated by your questioning her then that'll be the ruling. If she indicates that she wouldn't then that'll be the ruling, and [A.B.] is a minor child correct? Okay [A.B.] is a minor child. The Court needs to be more protective of minor children than adults and as a minor he wouldn't necessarily even get to make a decision like that on his own behalf. Frankly, a parent would have to make it for him. Who's [A.B.]'s parent?

The Commonwealth: [Appellant] and [H.H.], Your Honor.

THE COURT: Okay so in this matter--- in the unique situation in this matter you would not get to make that decision on his behalf but his mother could have input. The court would still reserve the right in regards to a minor child to be protective of the minor child if I thought it was going to be intimidating or extremely uncomfortable or prevent the minor child from being able to testify if he was questioned directly by you, the court's gotta make a ruling that permits testimony to be drawn forward, to be aired and considered by the jury and take in whatever manner they take it.

[Appellant]: Yes, Your Honor.

Id. at 35-39 (some formatting altered).

The following day, after standby counsel cross-examined both K.B. and K.H., the trial court held a conference outside the presence of the jury. See N.T. Trial, 12/4/18, at 127. At that time, the Commonwealth made an offer of proof as to H.H.'s trial testimony.⁴ Id. At the conclusion of the offer, the Commonwealth reiterated that H.H. was concerned with the possibility ofAppellant directly cross-examining her son, A.B. Id. at 129. In response, the trial court stated that, based on "the Pennsylvania Rules of Evidence and case law about the need to protect witnesses and the general need that has increased to protect minor witnesses," standby counsel must conduct cross-examination of A.B. Id. at 129. Appellant did not object to the trial court's ruling on A.B without a colloquy of A.B. Id.

Shortly thereafter, the Commonwealth conducted a colloquy of H.H. concerning the issue of cross-examination. Id. H.H. stated that Appellant emotionally and sexually abused her and that she would suffer emotional turmoil if Appellant were permitted to personally cross-examine her. Id. at 132-34. Appellant did not object to the colloquy or ask any additional questions. See id. Ultimately, the trial court ordered standby counsel to conduct cross-examination of H.H., noting that if Appellant "asked her questions[,] because of the past abuse she has described at his hands, she may be intimidated or prevented from coming forward with the full amount of information that the jury would need to consider." Id. at 134-35. Appellant did not object to the trial court's ruling as to H.H. Id. at 135.

Standby counsel subsequently conducted cross-examination of both A.B. and H.H. without objection by Appellant. See id. at 152-171, 174-75. The record demonstrates that Appellant performed the duties of counsel in all other respects, which included cross-examining the Commonwealth's other witnesses, participating in sidebar conferences, and presenting closing argument.

On December 7, 2018, the jury found Appellant guilty...