J. S55006/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                   v.                  :
                                       :
KENNETH JAMES TOLMAN,                  :         No. 1576 WDA 2014
                                       :
                        Appellant      :


                Appeal from the PCRA Order, August 27, 2014,
              in the Court of Common Pleas of Allegheny County
               Criminal Division at No. CP-02-CR-0007007-2007


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STRASSBURGER, J.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED NOVEMBER 16, 2015

        Kenneth James Tolman appeals from the order filed in the Court of

Common Pleas of Allegheny County which dismissed his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546.

        On December 5, 2006, Agent Lisa Ceh of the Pennsylvania Office of

Attorney General (“OAG”) entered a Yahoo! online chatroom entitled

“Pennsylvania 5.” (Notes of testimony, 6/9-12/09 at 243.) Agent Ceh was

working in an undercover capacity as part of her duties with the OAG Child

Predator Unit. Agent Ceh adopted a fictitious persona of “Kaylee Miler,” a

13-year-old girl living in Cranberry Township.    (Id. at 220.)   “Kaylee’s”

screen name was pttsweetii2011.     In this chat room, appellant, using the




* Retired Senior Judge assigned to the Superior Court.
J. S55006/15


screen name gato12201220,1 engaged pttsweetii2011 in conversation and

they exchanged biographical information.       [P]ttsweetii2011 immediately

identified herself as a 13-year-old girl. (Id. at 295.) Appellant nevertheless

asked pttsweetii2011 if she was home alone and whether she had a web

cam or a photo he could see. He stated that he had a web cam and that he

was naked. (Id. at 297.) He asked her if she ever had sex. When she said

“no” he asked: “Do you want to have sex?” and “do you masturbate?” (Id.

at 298-299.) He asked her: “you ever have a boy touch you before? . . .

was he hard? . . . did he cum? . . . he touch your pussy?” (Id. at 299-300.)

Appellant then stated: “I would let you touch me if you wanted.” (Id. at

301.)    He stated:   “I would lick your pussy if you let me.”   (Id. at 301.)

Appellant then asked: “Can you sneak out now?” (Id. at 303.) Appellant

then adjusted his web cam to broadcast himself to pttsweetii2011

masturbating and ejaculating.      (Id. at 325, 359.)    Appellant stated he

wanted to meet pttsweetii2011 “some place quiet and safe.” (Id. at 321.)

[P]ttsweetii2011 again stated that she was 13 and asked appellant if that

“was okay” to which appellant replied “Yep.” (Id. at 322.)

        After that initial chat on December 5, 2006, Agent Ceh went on

maternity leave, so pttsweetii2011 did not re-enter the chat room for

approximately four months. When pttsweetii2011 returned to the chat room


1
 Appellant’s profile name was “Bob Robertson.” There was no dispute that
appellant was the individual communicating under the screen name of
gato12201220.


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on April 4, 2007, she was again contacted by appellant. She reiterated that

she was 13 years old. At appellant’s request, Agent Ceh, in the guise of her

undercover persona, sent him two photographs of herself; one at age 12 and

one at age 13.      “Kaylee” also mentioned school, homework, chores, and

various things she was not permitted to do because of her age. (Id. at 286-

287.)

        Appellant expressed an interest in meeting “Kaylee” for the purpose of

engaging in sexual activity. Appellant asked pttsweetii2011 if she wanted to

be his girlfriend and asked her if she could “get out now?”        (Id. at 336.)

Appellant again stated that he was naked, and asked pttsweetii2011 to “let

me pick you up now” so he could see her nude.         (Id. at 338.)    Appellant

made plans to meet pttsweetii2011 later that week on Tuesday, April 10,

2007, at 9:30 a.m. at the Cranberry Mall so he could teach her how to kiss

while they were nude, she could watch him masturbate in person, and she

could sit on his lap while they kissed.      (Id. at 355.)   Appellant, for the

second     time,   activated   his   Web-cam   and   broadcasted    himself   to

pttsweetii2011 masturbating and ejaculating on his desk. (Id. at 358.)

        On Sunday, April 8, 2007, appellant sent pttsweetii2011 three off-line

messages asking her if she could meet on Monday, April 9, 2007.               On

Monday, April 9, 2007, appellant asked pttsweetii2011 if she could meet that

day around noon. Later, appellant asked pttsweetii2011 if she just wanted

to get an ice cream.      (Id. at 375.)   Later on that same day, appellant



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contacted pttsweetii2011 and asked her if she wanted to watch him “rubbing

his cock.”    (Id. at 378.)    Appellant then broadcasted himself for the third

time to pttsweetii2011 via webcam while masturbating. (Id. at 379.)

        On April 27, 2007, appellant, a radiology resident at UPMC, was

arrested at Children’s Hospital and charged with three counts of unlawful

contact with a minor; three counts of criminal use of communication facility,

and 3 counts of criminal attempt-unlawful contact with a minor.2

        Appellant’s first trial resulted in a hung jury.   His second trial took

place on June 9-12, 2009. The entire transcript of the chats was read to the

jury.    The trial court did not allow the jury to view the three 30-minute

Web-cam videos in their entirety because it would be unduly prejudicial to

appellant.     Instead, the trial court permitted an editorial one-minute

sampling of each video to be shown to the jury.        (Id. at 309.)   The trial

court allowed the Commonwealth to present evidence of the actual length of

each video. (Id. at 310.) Appellant testified in his own defense. Appellant

stated that he believed that he was chatting with another adult who was role

playing in a sexual fantasy.

        On June 12, 2009, the jury returned with a verdict of guilty on all

counts with the exception of one count of criminal attempt which was




2
  18 Pa.C.S.A. § 6318(A)(4), 18 Pa.C.S.A. § 7512(A), and 18 Pa.C.S.A.
§§ 901(a)/6318(a)(4) respectively.


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withdrawn before trial.    Appellant received a sentence at Count 1 of 6 to

12 months’ incarceration and at Count 2, a sentence of 6 to 12 months’

incarceration to run consecutively with Count 1, plus four years of probation.

No further penalty was assessed on the remaining counts.       Appellant was

also ordered to register as a sex offender for life.   Post-sentence motions

were timely filed and denied on September 30, 2009.        A timely notice of

appeal was filed, and on April 21, 2011, this court affirmed appellant’s

judgment of sentence. A petition for allowance of appeal was filed on behalf

of appellant on May 23, 2011.     The petition was denied on December 15,

2011.

        On December 4, 2012, appellant filed a pro se PCRA petition.          On

December 12, 2012, the court appointed counsel to represent appellant. On

June 16, 2014, an amended PCRA petition was filed. No evidentiary hearing

was held.     By order dated March 11, 2015, the trial court dismissed

appellant’s PCRA petition. Appellant raises the following issues on appeal:

             I.   WAS    MR.   TOLMAN  DENIED   EFFECTIVE
                  ASSISTANCE OF COUNSEL AT TRIAL AND ON
                  APPEAL BY VIRTUE OF SEVERAL INSTANCES
                  OF     TRIAL    COUNSEL’S   ACTS     OR
                  OMMISSIONS [SIC]    WHICH INDIVIDUALLY
                  AND/OR COLLECTIVELY PREJUDICED HIM AT
                  TRIAL?

                  a)      DID      THE       PROSECUTOR
                          IMPROPERLY    ARGUE     HIGHLY
                          INFLAMMATORY    “FACTS”   THAT
                          NOT    ONLY   WERE    NOT   IN
                          EVIDENCE,   BUT    HAD    BEEN
                          SPECIFICALLY EXCLUDED BY THE


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                                COURT, THEREBY THWARTING THE
                                ABILITY OF THE JURY TO RENDER
                                A FAIR AND ACCURATE VERDICT?

                       b)       DID THE PROSECUTOR COMMIT
                                MISCONDUCT     WHEN    HE
                                REPEATEDLY  RIDICULED THE
                                DEFENSE?

                       c)       WAS MR. TOLMAN DEPRIVED OF A
                                FAIR   TRIAL   AND  IMPARTIAL
                                VERDICT BY THE PROSECUTOR’S
                                CLOSING      ARGUMENT    THAT
                                IMPROPERLY ASKED THE JURY TO
                                “SEND A MESSAGE” WITH ITS
                                VERDICT, BUT THE SUPREME
                                COURT HAS REPEATEDLY HELD
                                THAT THIS TYPE OF ARGUMENT IS
                                PROHIBITED AND THAT IT CAUSES
                                PER SE PREJUDICE.

               II.     DID THE PCRA COURT ERR IN NOT HOLDING
                       AN EVIDENTIARY HEARING?

Appellant’s brief at 5-6.

      In PCRA appeals, our scope of review “is limited to the findings of the

PCRA court and the evidence on the record of the PCRA court’s hearing,

viewed    in     the        light   most   favorable   to   the   prevailing   party.”

Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation

omitted). Because most PCRA appeals involve questions of fact and law, we

employ a mixed standard of review.             Commonwealth v. Pitts, 981 A.2d

875, 878 (Pa. 2009).            We defer to the PCRA court’s factual findings and

credibility determinations supported by the record.               Commonwealth v.




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Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).               In contrast, we

review the PCRA court’s legal conclusions de novo. Id.

       Appellant’s first three issues assert ineffective assistance of trial

counsel.   “It is well-established that counsel is presumed effective, and [a

PCRA     petitioner]     bears   the   burden   of    proving   ineffectiveness.”

Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa. 2009); see also

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (“We . . .

presume that counsel is acting effectively.”).       To prevail on an ineffective

assistance of counsel (IAOC) claim, a PCRA petitioner must plead and prove

by a preponderance of the evidence that (1) the underlying legal claim has

arguable merit; (2) counsel had no reasonable basis for acting or failing to

act; and (3) the petitioner suffered resulting prejudice. Commonwealth v.

Baumhammers, 92 A.3d 708, 719 (Pa. 2014), citing Pierce, 527 A.2d at

975-976. A petitioner must prove all three factors of the “Pierce test,” or

the claim fails.   Id.    In addition, on appeal, a petitioner must adequately

discuss all three factors of the “Pierce test,” or the appellate court will reject

the claim. Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014).

       First, appellant takes issue with three statements made by the

prosecutor during closing arguments which appellant asserts deprived him of

a fair trial. He contends that trial counsel was ineffective because he failed

to object or request a curative instruction.




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      It is well established that a prosecutor, just as a defense attorney,

must have reasonable latitude in presenting a case to the jury and must be

free to present his or her arguments with “logical force and vigor.”

Commonwealth        v.      Smith,   416   A.2d   986   (Pa.   1980),    quoting

Commonwealth v. Cronin, 346 A.2d 59, 62 (Pa. 1975).                     Counsels’

remarks to the jury may contain fair deductions and legitimate inferences

from the evidence presented during the testimony.         Commonwealth v.

Fairbanks, 306 A.2d 866 (Pa. 1973); Commonwealth v. Stevens, 419

A.2d 533 (Pa.Super. 1980). The prosecutor may always argue to the jury

that the evidence establishes the defendant’s guilt, Commonwealth v.

Capalla, 185 A. 203 (Pa. 1936), although a prosecutor may not offer his

personal opinion as to the guilt of the accused either in argument or in

testimony from the witness stand. Commonwealth v. DiNicola, 468 A.2d

1078 (Pa. 1983); Commonwealth v. Pfaff, 384 A.2d 1179 (Pa. 1978);

Cronin, supra. Nor may he or she express a personal belief and opinion as

to the truth or falsity of evidence of defendant’s guilt, including the

credibility of a witness.    Commonwealth v. Kuebler, 399 A.2d 116 (Pa.

1979) (where defendant’s version of events was branded a “big lie”).

      However, not every intemperate or uncalled for remark by the

prosecutor requires a new trial. As we have stated many times:

            [C]omments by a prosecutor do not constitute
            reversible error unless the “unavoidable effect of
            such comments would be to prejudice the jury,
            forming in their minds fixed bias and hostility toward


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           the defendant so that they could not weigh the
           evidence objectively and render a true verdict.”
           Commonwealth v. Anderson, supra at 501 Pa.
           [275, at] 282, 461 A.2d [208, at] 211 [1983];
           Commonwealth v. Upsher, 497 Pa. 621, 627, 444
           A.2d 90, 93 (1982).

Commonwealth v. Carpenter, 515 A.2d 531 (Pa. 1986); Commonwealth

v. D’Ambro, 456 A.2d 140 (Pa. 1983). Furthermore, the prejudicial effect

of the prosecutor’s remarks must be evaluated in the context in which they

occurred. Carpenter, 515 A.2d 531, quoting Smith, 416 A.2d at 989.

                                      I.

     The first statement which appellant claims was improper was where

the prosecutor made reference to the fact that the jury was not shown all of

the three streaming videos sent to pttsweetii2011 which showed appellant

naked and masturbating.

           I would have loved to have inflamed your position by
           showing the videos in totality. The videos, we only
           showed a glimpse that represents the totality of
           those videos in one minute segments.           We’re
           expected as public servants to bring the evidence.
           Reasonable doubt? I say, prove it.

           . . . If we wanted to inflame, we would have showed
           the whole darn video . . . this isn’t a whodunit . . .
           We all know what he did and why he was
           masturbating. To sexually gratify himself with the
           thought of chatting with a 13-year old with a little bit
           of pussy hair. He wanted her to sit on his lap and
           face forward and kiss and touch her in a safe and
           quiet place.

Notes of testimony, 6/9-12/09 at 580-582.




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     Appellant argues that these comments included facts that were not in

evidence. He contends that because the Commonwealth was prohibited by

the trial court from using the entire video at trial, the prosecutor was

prohibited from revealing to the jury that the videos were longer than the

one-minute segments. He contends that the prosecutor’s argument invited

the jury to look beyond what they were shown and heard in court.       We

disagree with appellant’s argument.

     In order to evaluate whether the comments were improper, we must

look at the context in which they were made.       Carpenter, 617 A.2d at

1267. During defense counsel’s closing, defense counsel asked the jury to

consider why the videos were played and suggested that the Commonwealth

only showed the videos to inflame the passions of the jury:

           They had these visual transmissions, these horrible
           transmissions of him doing these sexual acts, which
           is no crime. Their theory was that if they play these
           things, no jury will ever be able to equate [sic] him
           because they will be so shocked of what they are
           seeing. Why were you shown that video? We’re not
           disputing what’s in that video, but our prosecutor
           here wanted you to see it.         It’s going to be
           interesting to hear what he says about why he did
           that. He’s going to say it’s an element, it’s the
           corpus of the crime. Look, he did it and because it
           was patently offensive and he wanted to do
           something with your mind, so you couldn’t judge the
           actual case and you couldn’t listen and say that’s no
           crime. But there’s another twist as to why they
           thought there would never be a trial. No person or
           any person should have to go through having these
           images portrayed in court to strangers, to a gallery,
           to the world, it’s almost unthinkable. No person
           should ever go through that. No person would ever


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            go through that unless they absolutely believed they
            were innocent.

Notes of testimony, 6/9-12/09 at 569-570.

      Examining the prosecutor’s comments within the context of defense

counsel’s comments, we are convinced that appellant was not prejudiced by

this portion of the Commonwealth’s closing argument.          The prosecutor

clearly responded to defense counsel’s insinuation that the only reason the

videos were shown was for shock value. The prosecutor’s comments were a

fair response to defense counsel’s suggestion that the portion they were

shown constituted the entirety of the transmission.          The prosecutor

explained that the amount of footage the jurors were shown was much less

than it could have been.   The Commonwealth fairly responded to remarks

made by appellant’s trial counsel.

      Further, the prosecutor’s comments did not contain facts that were not

in evidence.   The trial court specifically permitted the Commonwealth to

inform the jury through its witnesses that the video tapes were longer than

the one-minute segments that were shown to the jury.          The trial court

stated:

            [Y]ou can explain it through your witness that the
            overall length of the web transmission in the first
            case is roughly half an hour. That the jury would be
            able to track the length of that by virtue of the time
            on the screen during the chat. And you can remind
            them of the cumulative total at the end of all three
            chats when you go through it.




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                    You can ask your witness to say, and if we
              were to show the complete video, what would the
              length of the video transmission be in this case?
              That will be sufficient.

Id. at 310.

     Agent Ceh testified that the first video of appellant masturbating and

ejaculating was probably 20 minutes.     (Id. at 325.)   As Agent Ceh read

through the transcripts of the second two chats, it was clear from the

content of the chat when the Web-cam was turned on and what appellant

was doing on the video.    Agent Ceh also made frequent references to the

time stamp as she was reading, so that the jury was well aware of how long

the videos were. Further, appellant admitted on cross-examination that the

videos showed him exposing himself, showed his penis, that his penis was

erect, and that he ejaculated semen. (Id. at 511.) By making a reference

to the “whole” video, the prosecutor did not reveal anything that was not

already made known to the jury through Agent Ceh’s testimony and

appellant’s admissions.   It is well settled that a prosecutor’s remarks are

proper if they are supported by the evidence or they contain inferences

which may be reasonably derived from the evidence.       Commonwealth v.

Barren, 462 A.2d 233, 235 (Pa. 1983). Here, the comments were entirely

supported by the evidence.

     Next, appellant challenges the prosecutor’s use of “intense vulgarity”

when he used the word “pussy.”     Appellant claims that this was meant to

prove that appellant was a sick, vile, pedophile that needed to be locked


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away. (Appellant’s brief at 18.) We disagree. It is entirely proper for the

prosecutor to summarize the evidence presented, to offer reasonable

deductions and inferences from the evidence, and to argue that the evidence

establishes the defendant’s guilt.    Commonwealth v. Thomas, 54 A.3d

332, 338 (Pa. 2012). The “intense vulgarity” of which appellant complains

was nothing more than an accurate recitation of previously admitted

evidence. Agent Ceh read into evidence the chats between pttsweetii2011

and appellant.

         Clearly, the prosecutor’s statement was nothing more than an accurate

summary of the evidence presented by way of slight paraphrasing of

appellant’s own statements.      Appellant himself chose to make this vulgar

comment during his chats with Agent Ceh, and he was, therefore, the person

responsible for its introduction at trial. An objection by trial counsel would

have lacked arguable merit. Counsel cannot be deemed ineffective on this

basis.

                                       II.

         In his next issue, appellant challenges several comments by the

prosecutor which appellant claims improperly disparaged or ridiculed

appellant’s defense strategy.    Commonwealth v. Gilman, 368 A.2d 253,

258-259 (Pa. 1977).      The first statement which appellant challenges is as

follows:

              You’re going to have to come to the conclusion this
              is a very real case. All of our cases are real. They


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              involve real people and special agents Regis Kelly
              and Lis Ceh, that’s who they were when they took
              the stand and that’s who they’re going to be
              tomorrow Special Agents with the Office of Attorney
              General protecting and serving our community and
              representing our community.

Notes of testimony, 6/9-12/09 at 575.

      Appellant     argues    that    the    prosecutor’s       comments        implied   that

appellant’s defense was not real.             We do not agree.           A prosecutor has

reasonable latitude during his closing argument to advocate his case,

respond      to   arguments   of     opposing        counsel,   and    fairly   present   the

Commonwealth’s version of the evidence to the jury.                    Commonwealth v.

Hanible, 30 A.2d 426, 465 (Pa. 2011). This statement countered defense

counsel’s attempt to minimize the seriousness of his conduct. During closing

argument, defense counsel attempted to paint the case as less serious

because there was no actual 13-year-old child on the receiving end of

appellant’s communications and the entire case was all an unfortunate

misunderstanding over a harmless internet fantasy.                    While the prosecutor

challenged the characterization of the conduct by appellant as harmless

fantasy, he did not ridicule or denigrate appellant or his counsel. Appellant’s

counsel cannot be deemed ineffective for failing to make a meritless

objection.

      Appellant next alleges that defense counsel was ineffective for failing

to object to the following statement:




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           I remember back in my opening statement, I
           indicated to you that we had two issues in the case.
           Well, I stand corrected. The alpha dog came up and
           said no, ladies and gentlemen, we have one issue in
           this case. Our issue got to have that issue, take that
           ball and run with that issue, don’t believe that for a
           moment.

                 The issue in his case was the charges that we
           presented to you, not the defense charges that
           haven’t even been alleged in this case. It doesn’t
           matter that he didn’t have the intent to go meet with
           some child or some officer to conduct an ice cream
           reception party at Subway. That is easy to say
           something after the fact. I then say to you would
           Ben Roethlisberger kind of “wish I had done that or
           that?” That changes nothing, absolutely nothing. To
           their credit, they didn’t buy that crap. How dare he
           instruct you about that. That’s your role. Don’t let
           them get that ball. Hold on to your role as jurors, to
           find the facts based upon the competent evidence
           and the credibility evidence.

Notes of testimony, 6/9-12/09 at 579-580.

     Appellant asserts that these statements were inappropriate because

the prosecutor suggested to the jury that appellant’s defense was “crap” and

improper (“how dare he”). Appellant contends that under Gilman, this type

of argument is impermissible because it is disparaging to a legitimate

defense strategy and attacks defense counsel’s integrity. We do not agree.

     First, reviewing these comments in the context in which they were

made, we do not agree that these comments were anything other than the

prosecutor’s attempt to clarify the issues for the jury.    Defense counsel

focused on appellant’s testimony that he never really intended to meet with

“Kaylee.” Defense counsel stated during his closing argument: “[Appellant


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is] not a predator wanting to be with a 13-year old girl. The best evidence

is, he never showed up, he blew her off . . . If he was what they are trying

to make him out to be, he would have shown up.”          (Notes of testimony,

6/9-12/09 at 559.)

      The prosecutor pointed out that whether the appellant ultimately

showed up or not at the planned date and time was not the issue. The issue

was whether there was unlawful communication/contact with a minor and

whether there was criminal use of a communication device. In the rest of

the statement, the prosecutor correctly states that the jury should follow the

trial court’s instruction on the law and not be instructed by appellant’s

counsel. Neither the corrective statement of the law nor the oratorical flair

of the prosecutor constituted prejudice to appellant.     Once again, counsel

was not ineffective for failing to make a meritless objection.

      Next, appellant asserts that the following comment was in error:

              We got the records from Steel City Broadband as
              they supplied the Internet connection. We showed
              you those. There was a stipulation of facts from the
              witness who provided those things. We showed you
              the Internet connectivity bills from the Woodhawk
              Club, from Carol Rosey. She didn’t come into the
              room but she came in the form of a stipulation
              because they couldn’t discredit her.      Why even
              bother, why even argue their defense?

Id. at 582.

      This comment refers to the stipulation regarding the internet service

provider that was entered into by the parties and did not ridicule or



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disparage the defense. Since appellant did not deny that he was the person

chatting with Agent Ceh, the prosecutor simply pointed out that why would

they bother to argue that appellant was not the individual to whom the

internet connection he used was registered. Having met this element of the

crime of criminal use of a communication device, the prosecutor was simply

expressing the confidence he had in his own case with respect to the other

elements. This statement was a fair comment on the evidence, and did not

prejudice appellant.       Counsel’s failure to object did not render him

ineffective.

      Lastly, as it relates to this issue, appellant alleges that the following

statement should have been objected to and counsel’s failure to do so

constituted ineffective assistance of counsel.

               An entrapment? Don’t talk about entrapment. He
               got on there and admitted he was in control of the
               Web-cam. She didn’t give him the Web-cam. She
               didn’t go ahead and send the message. He wanted
               to show it to her, you know, that’s his thing. Buzz-
               Buzz, I’m not going to take any more time folks
               because this case was open and shut. Thank you.

Id. at 586.

      Once again, we find this statement was a fair comment on the

evidence. The prosecutor was within his rights to argue that appellant failed

to establish entrapment and did so by referring to the evidence. There was

no basis for objection.




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                                     III.

     In his third issue, appellant asserts that the prosecutor committed

prosecutorial misconduct which deprived appellant of his right to a fair trial

because he “asked the jury to send a message to the greater community

that they can’t sanction what occurred in this case.”    (Appellant’s brief at

40.) Appellant contends that the prosecutor made certain comments which

constituted an improper “send a message” argument which has been

forbidden by our supreme court.     Commonwealth v. DeJesus, 860 A.2d

102, 113-119 (Pa. 2004) (prosecutors forbidden to ask jury to send a

message to the community with its verdict because it invites jurors to ignore

sworn duty to decide matter exclusively upon the facts presented).

     Specifically, appellant contends that the prosecutor improperly asked

the jury to “send a message” when he said: “Ladies and gentlemen of the

jury, you are the Commonwealth’s safe haven and none of you are children.”

(Notes of testimony, 6/9-12/09 at 572.) “This was a real crime, committed

against real people” and these “special agents with the Office of Attorney

General protecting and serving our community and representing our

community.” (Id. at 575.)

     Viewing these comments in context, we find that the prosecutor did

not make an impermissible “send a message” argument.                 First, the

prosecutor never stated the words “send a message.”         Rather, appellant




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argues that the prosecutor’s other statements, taken together, amount to

that. Further, defense counsel stated during his closing argument:

                  The use of the word children is the
            Commonwealth’s safe harbor in this case. What do I
            mean? It’s whenever you’re challenged you’ll go to
            children. We get the agent on the stand and I’m
            asking her questions which are rather simple
            answers, it is either a yes or no. He went off and by
            saying “well, I was concerned they were protecting
            children here.” Agent Kelly says, “I can remember
            Children’s Hospital.” What is that all about?

                   Look, I stated this at the beginning of the trial.
            The reason they keep bringing up children is because
            it’s anticipated that when a jury hears this matter,
            when they hear the word children that something will
            happen and they will not be able to evaluate the
            actual evidence in this case. And the reason when I
            asked them questions and they go off to the children
            thing, “I’m not going to answer your question, I’m
            going to top you with a children’s statement.” I
            cannot figure out what the deal is with Children’s
            Hospital, why they are so insistent of trying to get
            this guy into Children’s Hospital other than they need
            to get that in front of you. They believe you are that
            unsophisticated.

Id. at 561-562.)

      The prosecutor’s comments were clearly in direct response to defense

counsel’s allegations that the Commonwealth was using the word “children”

as a “safe harbor” in order to gain an unwarranted conviction.               The

prosecutor appropriately countered that the jury was the Commonwealth’s

safe haven.    The other statement was nothing other than an accurate

summary of the testimony in evidence. There was no basis for an objection.

Counsel cannot be held ineffective for failing to raise a meritless claim.


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J. S55006/15


                                       IV.

      In his final issue, appellant asserts that the PCRA court erred in failing

to hold an evidentiary hearing on his PCRA petition.      There is no absolute

right to an evidentiary hearing on a PCRA petition, and if the PCRA court can

determine from the record that no genuine issue of material fact exists, then

a hearing is not necessary. Commonwealth v. Jones, 942 A.2d 903, 906

(Pa.Super. 2008). This court must examine the issues raised in the PCRA

petition in light of the record in order to determine whether the PCRA court

erred in concluding that there were no genuine issues of material fact and in

denying relief without an evidentiary hearing. Commonwealth v. Jordan,

772 A.2d 1011, 1014 (Pa.Super. 2011). Here, as discussed above, it was

readily apparent from the record that appellant could not demonstrate

arguable merit or that he suffered prejudice from his counsel’s failure to

object to the Commonwealth’s closing statement. The PCRA court did not

err in failing to hold an evidentiary hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/16/2015




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