J-S67019-16

*

Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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