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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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