Com. v. Tolman, K. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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