J-S67019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

WILLIAM ERIC WEBB

                            Appellant                   No. 540 EDA 2016


                  Appeal from the PCRA Order January 20, 2016
                 In the Court of Common Pleas of Chester County
               Criminal Division at No(s): CP-15-CR-0004215-2012


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.                            FILED OCTOBER 11, 2016

         William Eric Webb (Appellant) appeals from the January 20, 2016

order denying his petition for relief filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

         In March 2014, a jury convicted Appellant of four counts each of

Aggravated Indecent Assault and Indecent Assault, and not guilty of two

counts of Indecent Assault.1 Appellant’s Motion for Extraordinary Relief was

denied on July 28, 2014. Appellant was subsequently found to be a Sexually

Violent Predator and was sentenced to an aggregate term of seven to

fourteen years’ imprisonment. Appellant filed a motion for reconsideration

on August 6, 2014, which was denied by the court on December 5, 2014.

____________________________________________


1
    18 Pa. C.S.§§ 3125(a), and 3126(a)


*
    Former Justice specially assigned to the Superior Court.
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      Appellant appealed his judgment of sentence on December 31, 2014.

However, appointed counsel discontinued the appeal on March 13, 2015.

      On July 17, 2015, through new counsel, Appellant timely filed a PCRA

petition, asserting ineffective assistance of trial counsel on several grounds.

On December 17, 2015, the PCRA court issued a Pa.R.Crim.P. 907 notice of

its intent to dismiss Appellant’s petition without a hearing.       The court

dismissed his petition on January 20, 2016.

      On February 11, 2016, Appellant timely appealed the dismissal of his

PCRA and thereafter filed a court-ordered 1925(b) statement.        The PCRA

court issued a responsive statement.

      Appellant raises the following issue:

      1. Did the PCRA Court err by dismissing Appellant’s PCRA
         Petition without a hearing where appellant claimed
         prosecutorial misconduct had not been properly objected to
         and preserved in the lower court by trial counsel where the
         prosecutor’s closing speech improperly and repeatedly
         commented upon the credibility of the prosecution’s witnesses
         and of the Appellant and attempted to shift the burden of
         proof to the Appellant?

Appellant’s Brief at 3.

      We will address Appellant’s issue in two parts: (1) whether the PCRA

court erred in dismissing Appellant’s petition without a hearing; and (2)

whether trial counsel was ineffective for failing to object to alleged

prosecutorial misconduct.

      Appellant asserts the PCRA court erred in denying his petition without

a hearing.    There is no absolute right to an evidentiary hearing.       See

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Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). On

appeal:

       A reviewing 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.

Id.

       Here, Appellant offers no factual dispute regarding the substance of

the prosecutor’s closing argument.             Rather, Appellant presents a legal

argument solely based on the undisputed record. Thus, the PCRA court did

not err when it concluded there was no genuine issue of material fact and

denied Appellant without an evidentiary hearing.

       Appellant next contends that trial counsel was ineffective for failing to

object to alleged prosecutorial misconduct. Appellant raises two instances of

prosecutorial misconduct. First, Appellant asserts that the prosecutor made

improper statements regarding witness credibility, and second, that the

prosecutor asserted his personal opinion in closing argument.2
____________________________________________


2
  Appellant objects to the following statements: “you can take that to the
bank,” and Appellant was “simply not” credible, Notes of Testimony (N.T.),
3/3/14, at 82; “I would suggest that what she said on the stand is credible,”
N.T. at 86; “she is credible” and “I will suggest that she is a highly credible
witness,” N.T. 3/3/14 at 88, 94. Appellant also asserts that the prosecutor
conveyed his personal opinion of the credibility of Ms. DiGrazio when the
prosecutor stated, “her demeanor was stellar.” N.T. at 107. Appellant takes
issue with the prosecutor’s argument that the Appellant had been “making
up a story.” N.T. at 129.



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     We presume counsel is effective.    Commonwealth v. Washington,

927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish

ineffective assistance of counsel, a PCRA petitioner must prove, by a

preponderance of the evidence: “(1) the underlying legal issue has arguable

merit; (2) counsel’s actions lacked an objective reasonable basis; and (3)

actual prejudice befell the petitioner from counsel’s act or omission.”

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009). “A petitioner

establishes prejudice when he demonstrates that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.”   Id.   A claim will be denied if the

petitioner fails to meet any of these requirements. Springer, 961 A.2d at

1267 (citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa.

2007)); Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).

     In reviewing the closing remarks of a prosecutor, we must consider

the context in which they were made. Commonwealth v. Judy, 978 A.2d

1015, (Pa. Super. 2009) (citing Commonwealth v. Sampson, 900 A.2d

887, 890 (Pa. Super. 2006)).     While it is improper for a prosecutor to

express a personal belief as to the credibility of the defendant or other

witnesses, the prosecutor may present argument regarding witnesses’

credibility if previously attacked by defense counsel. Commonwealth v.

Chmiel, 889 A.2d 501, 544 (Pa. 2005). Furthermore, “a prosecutor’s

contention that a defendant lied is neither unfair nor prejudicial when the

outcome of the case is controlled by credibility, the accounts of the victim

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and the defendant conflict, and defense counsel suggests that the victim is

fabricating.” Judy, 978 A.2d at 1024.

      In the instant case, Appellant’s closing argument was based on the

theory that the victims fabricated their stories. Trial counsel questioned the

behavior of all the victims and their actions following the assaults.

Furthermore, trial counsel asked the jury to assess whether Appellant and

the defense witness lied when testifying. See N.T. at 69. The entire case

hinged on the credibility of the witnesses.

      In response, the prosecutor made several remarks during closing

regarding the victims’ credibility, demeanor, and the absence of any motive

to fabricate their allegations against Appellant, as well as the lack of

credibility and the presence of motive to fabricate in Appellant’s testimony.

Examining these remarks in context, it is evident that the statements were

made properly in response to Appellant’s closing argument. Judy, 978 A.2d

at 1015.

      Finally,   Appellant   asserts   that   the   phrase,   “I   would   suggest”,

expresses the prosecutor’s personal opinion.          There is no merit to this

assertion. See Commonwealth v. Tolassi, 392 A.2d 750, 758 (Pa. Super.

1978) (“The mere use of first person terms does not automatically imply

that what follows is the prosecutor’s personal opinion.”)

      For the above reasons Appellant’s underlying claim of prosecutorial

misconduct is without merit. Accordingly, we discern no error in the PCRA

court’s decision to dismiss Appellant’s petition without a hearing.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2016




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