J-S85028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

LOUIS CHUKWU

                            Appellant                No. 1711 EDA 2015


                    Appeal from the PCRA Order May 4, 2015
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010979-2011


BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY RANSOM, J.                           FILED JANUARY 09, 2017

       Appellant, Louis Chuckwu, appeals from the May 4, 2015 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 2013, a jury convicted Appellant of aggravated indecent

assault without consent, indecent assault without consent, unlawful contact

with a minor, and corruption of minors.1         In June 2013, Appellant was

sentenced to an aggregate term of six to twelve years of incarceration for

the aggravated indecent assault and unlawful contact with a minor. The trial

court also sentenced Appellant to a concurrent term of one to two years of


____________________________________________


1
   18 Pa.C.S. §§ 3125(a)(1), 3126(a)(1), 6318(a)(1) and 6301(a)(i),
respectively.



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incarceration for the indecent assault without consent. No further sentence

was imposed on the charge of corruption of minors.

       Appellant timely appealed his judgment of sentence; however, he

discontinued the appeal in November of 2013. Appellant timely filed a PCRA

petition in February 2014. In May 2015, following a hearing, the PCRA court

denied Appellant’s petition holding that there were no meritorious arguments

therein.2

       On June 1, 2015, Appellant timely appealed the dismissal of his PCRA

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

issued an opinion in January 2016.

       Appellant raises the following issue:

       1. Did the PCRA Court err by holding that trial counsel was not
          ineffective for failing to object and move for a mistrial after
          the prosecutor thrice personally denigrated [Appellant] during
          her outrageous closing argument?

Appellant’s Brief at 4.

       This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error. See Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007).           We afford the court’s factual
____________________________________________


2
  Appellant raised numerous claims of ineffective assistance of counsel in his
counseled PCRA petition; however, the trial court limited the scope of the
PCRA hearing to the single claim of whether trial counsel was ineffective for
failing to object to hearsay statements by Appellant’s niece, A.N. Notes of
Testimony (N.T.), 5/4/15, at 3.



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findings deference unless there is no support for them in the certified record.

Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).

      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. Counsel will not be considered

ineffective for failing to pursue meritless claims. Commonwealth v. Tilley,

780 A.2d 649 (Pa. 2001).     A claim will be denied if the petitioner fails to

meet any of these requirements. Commonwealth v. 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).

      Appellant contends trial counsel was ineffective for failing to object to

the Commonwealth’s closing statement, wherein Appellant asserts the

prosecutor inserted her personal opinion, thrice asking Appellant, “How dare

you?” Appellant’s Brief at 10-14.

      With regard to a prosecutor’s statement,

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      Generally, a prosecutor's arguments to the jury are not a basis
      for the granting of a new trial unless the unavoidable effect of
      such comments would be to prejudice the jury, forming in their
      minds fixed bias and hostility towards the accused which would
      prevent them from properly weighing the evidence and
      rendering a true verdict.

Commonwealth v. Spotz, 896 A.2d 1191, 1222 (Pa. 2006). A prosecutor

must be free to present her arguments with logical force and vigor, and

advocacy is permitted so long as there is a reasonable basis in the record for

the prosecutor’s remarks. See Commonwealth v. Chmiel, 30 A.3d 1111,

1146 (Pa. 2011).        Comments based on the evidence or reasonable

inferences therefrom are not objectionable, nor are comments amounting to

oratorical flair. Id.

      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 ten-year-old victim, R.F., fabricated her story of being

awoken by Appellant inserting his fingers into her vagina as she lay in a bed

with Appellant’s sleeping daughters and niece. N.T., 3/6/13, at 15-19, 163-

66. Trial counsel questioned all the members of Appellant’s family present

on the night of the incident, including A.N., who denied making a statement

to the victim that Appellant had done “the same thing to her.” 3 Id. at 20-

24, 40-48, 135-43, 160-66. Trial counsel argued that the members of the

family,   including     Appellant,     testified   truthfully.   Id.   at   160-166.

Furthermore, trial counsel asked the jury to assess whether the victim lied

when testifying, asking, “Why would she make it up, I don’t know. But that’s

not our burden.” Id. at 166. The entire case hinged on the credibility of the

victim.

       In response, the prosecutor compared the motives of the witnesses

who testified:

       Let’s talk about the other witnesses, his children and his niece.
       How dare you put your children through that. How dare you.
       Now I’m not going to call a child a liar. They were all very
       brave. I met them beforehand, and I did my best to make them
       all comfortable. But nobody wants to see their daddy go to jail.
____________________________________________


3
  Appellant’s three children, niece and wife were at home at the time of the
incident. Trial Court Opinion, 1/14/15, at 4-5.



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     Nobody wants to see anything bad happen to their uncle,
     especially if you think maybe you had something to do with it
     because you told your friend that he did it to you, too. On one
     side we have a girl with nothing to gain and no motivation [to]
     lie. And on the other side we have three children with a whole
     lot to lose here. How dare you parade your children in and out
     of here that way.

Id. at 175.

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

were proper, as they were (1) based upon the evidence and reasonable

inferences therefrom, and (2) oratorical flair responsive to Appellant’s

closing argument. Chmiel, 30 A.3d 1146 (Pa. 2011).

     For the above reasons, Appellant’s underlying claim of prosecutorial

misconduct is without merit, and trial counsel cannot be deemed ineffective

for failing to pursue a meritless claim. See Tilley, 780 A.2d 649 (Pa. 2001);

Johnson, 966 A.2d at 533. Accordingly, we discern no error in the PCRA

court’s decision to dismiss Appellant’s petition following an evidentiary

hearing. Appellant’s claim is without merit, and he is entitled to no relief.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/2017




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