J-S65009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DEJEREK BASIL SMALLWOOD                    :
                                               :
                       Appellant               :   No. 538 MDA 2019

             Appeal from the PCRA Order Entered January 17, 2019
                  In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0000778-2014


BEFORE:      PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.:                   FILED: FEBRUARY 6, 2020

        Appellant, De’jerek1 Basil Smallwood appeals, nunc pro tunc, from the

order entered on January 11, 2019, denying his first petition filed pursuant to

the Pennsylvania Post Conviction Relief Act (PCRA).2 Appellant seeks relief

from the aggregate judgment of sentence of life imprisonment without the

possibility of parole, followed by 3 to 6 years’ imprisonment, imposed after a



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 In the PCRA court opinion and the briefs on appeal, the parties spell
Appellant’s first name “Dejerek.” However, at trial, Appellant stated he spells
his first name “De’jerek.” N.T. Trial, 11/05/15, at 585. Therefore, we will use
that spelling.

2   42 Pa.C.S.A. §§ 9541–9546.
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jury convicted him of two counts of murder in the first degree and one count

of conspiracy to deliver heroin.3 Appellant contends the PCRA court erred in

denying relief where trial counsel was ineffective because: (1) she failed to

call a character witness; and, (2) she failed to object to remarks made by the

assistant district attorney during closing statements in which she stated

Appellant “decided to be judge, jury, and executioner that night.” N.T. Trial,

11/6/15, at 690; Appellant’s Brief at 4. Based on the following, we affirm.

        We take the underlying facts and procedural history in this matter from

this Court’s decision on direct appeal and our review of the certified record:

        The trial court summarized the facts of the crime as follows:

              On November 23, 2013, at approximately 7:00 PM
              police were dispatched to an alley between South
              Hartley Street and West Mason Avenue in York
              Township, located in York County, Pennsylvania. Upon
              arrival, police found two victims lying in the street.
              The responding officer used his flashlight to check on
              the first victim and determined he was dead. The
              second victim was still alive but not speaking. The
              victim pulled up his shirt to show the officer where he
              had been shot. Shortly thereafter, the second victim
              passed. Prior to EMS arrival[,] other officers from the
              department had arrived on scene and set up a crime
              scene with yellow tape to secure any evidence that
              might have been in and around the area. The first
              victim was       identified   as Braydon Aldinger;
              identification was made from his license in his wallet.
              The wallet was not photographed nor was it marked
              as evidence. The responding officer gave the wallet to
              Aldinger’s mother who was on scene. The second
              victim was identified as Derek Ferree; identification
              was made from his license in his wallet. At that time,
____________________________________________


3   18 Pa.C.S.A. §§ 2502, 903, and 35 P.S. § 780-113(a)(30), respectively.

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          responding officers did not see anyone else in the
          alleyway of South Hartley Street and West Mason
          Avenue. The coroner arrived on scene and ruled both
          deaths a homicide caused by gunshot wounds.
          Homicide detectives were called in to investigate and
          eyewitnesses were taken to the station for
          questioning.

          The same night, on November 23, 2013, homicide
          detectives interviewed Arianna Tavares (Tavares),
          who told police she was an eyewitness to the crime.
          During the interview Tavares told detectives, she was
          with both victims that night and they had arranged to
          meet with Appellant and a second man Laquan
          Pierrelouis (Pierrelouis), in the alley way of South
          Hartley to buy heroin. Tavares told detectives that one
          of the victims punched Appellant in the face and a
          tussle broke out. She explained that once the tussle
          started, she began to run away from the alley and that
          is when she heard the two shots. On December 10,
          2013, charges were filed against Appellant and
          Pierrelouis based off of the police interview with
          Tavares.

          York County Police Department’s homicide detective
          George Ripley was assigned as lead detective on this
          case. Detective Ripley collected a surveillance video
          taken by the security system in the back of Lincoln
          Charter School, which is located across from the crime
          scene. The surveillance video showed a group of five
          people, four males, and one female walking down the
          alley of South Hartley Street. The video shows an
          altercation and one male running from the crime
          scene with a weapon in his hand.

          Three days later, on November 26, 2013, Tavares was
          interviewed by police for a second time. During this
          interview she was shown the surveillance video
          collected from Lincoln Charter School. After viewing
          the video, she identified Appellant as the individual
          running down the alley with the weapon in his hand.
          Tavares explained that she could identify Appellant
          because of the clothes he was wearing.


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      Appellant’s jury trial began on November 2, 2015, and on
      November 6, 2015, the jury convicted Appellant as described
      above. The trial court sentenced Appellant on December 18, 2015,
      to concurrent terms of life imprisonment for the two murder
      convictions and a consecutive term of imprisonment of three to
      six years for conspiracy to deliver heroin. Appellant filed a timely
      post-sentence motion, which the court denied on May 6, 2016.
      Appellant filed a timely notice of appeal on May 31, 2016. Both
      Appellant and the trial court complied with Pa.R.A.P. 1925.

Commonwealth v. Smallwood, 2017 WL 972116, at *1 (Pa. Super. Mar.

13, 2017) (unpublished memorandum) (citation and footnote omitted).

      On March 13, 2017, this Court affirmed the judgment of sentence. Id.

On April 23, 2017, the Pennsylvania Supreme Court denied leave to appeal.

See Commonwealth v. Smallwood, 170 A.3d 1005 (Pa. 2017).

      Appellant filed the instant, timely pro se PCRA petition on June 26, 2018.

The PCRA court appointed counsel. An evidentiary hearing took place on

December 4, 2018.

      At the close of the hearing, the PCRA court partially denied Appellant’s

PCRA petition. Following the submission of briefs on the remaining issues, the

court denied the rest of the PCRA petition on January 11, 2019. Appellant did

not immediately file an appeal. On March 24, 2019, Appellant filed a motion




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to file a notice of appeal nunc pro tunc. The PCRA court granted the motion

on March 29, 2019. On April 2, 2019, Appellant filed a notice of appeal.4

       Our standard of review is well settled:

       This Court analyzes PCRA appeals in the light most favorable to
       the prevailing party at the PCRA level. Our review is limited to the
       findings of the PCRA court and the evidence of record and we do
       not disturb a PCRA court’s ruling if it is supported by evidence of
       record and is free of legal error. Similarly, [w]e grant great
       deference to the factual findings of the PCRA court and will not
       disturb those findings unless they have no support in the record.
       However, we afford no such deference to its legal conclusions.
       [W]here the petitioner raises questions of law, our standard of
       review is de novo and our scope of review is plenary. Finally, we
       may affirm a PCRA court’s decision on any grounds if the record
       supports it.

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (quotation

marks and citations omitted). Furthermore, where, as here, the defendant

alleges counsel rendered ineffective assistance, we note:

       In order to obtain relief under the PCRA premised upon a claim
       that counsel was ineffective, a petitioner must establish beyond a
       preponderance of the evidence that counsel’s ineffectiveness so
       undermined the truth-determining process that no reliable
       adjudication of guilt or innocence could have taken place. When
       considering such a claim, courts presume that counsel was
       effective, and place upon the appellant the burden of proving
       otherwise. Counsel cannot be found ineffective for failure to assert
       a baseless claim.

       To succeed on a claim that counsel was ineffective, Appellant must
       demonstrate that: (1) the claim is of arguable merit; (2) counsel
       had no reasonable strategic basis for his or her action or inaction;
       and (3) counsel’s ineffectiveness prejudiced him.
____________________________________________


4Appellant timely filed a concise statement of errors complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). The PCRA
court issued an opinion on May 6, 2019 adopting its January 11 2019 opinion.

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Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (quotation

marks and citations omitted). “To demonstrate prejudice, a petitioner must

show that there is a reasonable probability that, but for counsel’s actions or

inactions, the result of the proceeding would have been different.”

Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015).

      In his first claim, Appellant contends counsel was ineffective for failing

to call his mother to testify as a character witness at trial. Appellant’s Brief,

at 9-16; N.T. PCRA Hearing, 12/04/18, at 19-21.

      At the evidentiary hearing, PCRA counsel questioned one of Appellant’s

trial attorneys, Dawn Cutaia, Esquire, about her failure to call Appellant’s

mother, Yolanda Smallwood as a character witness to testify about Appellant’s

reputation for truthfulness. N.T. PCRA Hearing, 12/04/18, at 19-20. Ms. Cutaia

testified she had discussed the issue with Appellant and with co-counsel

Suzanne Smith and both attorneys were concerned Yolanda Smallwood would

not be a good witness because “[they] believed she had an alcohol

addiction[.]” Id. at 20.

      Yolanda Smallwood also testified at the hearing, she admitted she had

a prior arrest for public drunkenness but claimed the arrest was “years ago.”

Id. at 35. She further stated, “[t]hat’s why I don’t understand why [trial

counsel] would say that. I never was around her smelling like alcohol, and I

never came to one of my son’s court hearings with a hangover.” Id. at 36.




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Ultimately, Yolanda Smallwood denied having a problem with alcohol, “at that

time.” Id.

      To prove that trial counsel provided ineffective assistance for
      failing to call a witness, a petitioner must demonstrate:

             (1) the witness existed; (2) the witness was available
             to testify for the defense; (3) counsel knew of, or
             should have known of, the existence of the witness;
             (4) the witness was willing to testify for the defense;
             and (5) the absence of the testimony of the witness
             was so prejudicial as to have denied the defendant a
             fair trial.

Commonwealth v. Brown, 196 A.3d 130, 167 (Pa. 2018) (citation omitted).

      An attorney’s failure to present character witnesses may constitute

ineffective assistance of counsel. Commonwealth v. Harris, 785 A.2d 998,

1000 (Pa. Super. 2001). However, an attorney who chooses not to present

evidence of her client’s good character is not ineffective so long as the attorney

had   a   “reasonable   strategic   basis”   not   to   proffer   such   evidence.

Commonwealth v. Von Horn, 797 A.2d 983, 988 (Pa. Super. 2002).

      Here, Appellant argues the witness would have testified as to his

reputation for truthfulness. See Appellant’s Brief, at 9-16. However, our

review of the record demonstrates such testimony would not have been

admissible in his case. In Commonwealth v. Fulton, 830 A.2d 567 (Pa.

2003), the Pennsylvania Supreme Court reaffirmed the long-standing principle

that rehabilitative evidence of a defendant’s good reputation for truthfulness

is admissible only in cases where either the character trait of truthfulness is

implicated by the elements of the charged offenses, or in cases where the

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Commonwealth         specifically   impeached    the   defendant’s   reputation   for

truthfulness. See Fulton, 830 A.2d at 572-73. The Pennsylvania Supreme

Court went on to explain:

       where the prosecution has merely introduced evidence denying or
       contradicting the facts to which the defendant testified, but has
       not assailed the defendant’s community reputation for
       truthfulness generally, evidence of the defendant’s alleged
       reputation for truthfulness is not admissible. Similarly, cross-
       examination of the defendant that challenges the veracity of his
       testimony in the particular case, but does not touch upon his
       general reputation in the community for being truthful, does not
       open the door to the introduction of good character evidence
       concerning reputation for truthfulness.

Id. at 573 (citations omitted).

       We have reviewed the record, and the elements of the charged offenses

did not implicate the character trait of truthfulness. Further, Appellant does

not point to any instance wherein the Commonwealth impugned his reputation

for truthfulness.5     See Appellant’s Brief, at 9-16. Thus, Appellant has not

demonstrated the Commonwealth ever “attacked, impugned or otherwise

besmirched his general reputation in the community for telling the truth.”

Fulton, 830 A.2d at 573. Therefore, the witness’s testimony would not have


____________________________________________


5 The record demonstrates, on direct examination, Appellant admitted he lied
in his initial statement to police. N.T. Trial, 11/05/15, at 597. On cross-
examination, the Commonwealth questioned Appellant about the admitted lies
he told the police but never generally impugned his reputation for truthfulness
in the community. Id. at 614-15. This is the exact type of questioning our
Supreme Court held in Fulton, “does not open the door to the introduction of
good character evidence concerning reputation for truthfulness.” Fulton, 830
A.2d at 573.


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been admissible with respect to showing his truthfulness and counsel was not

ineffective for failing to call her. See id. at 573. Appellant’s first claim does

not merit relief. See Michaud, 70 A.3d at 867.

       In his second and final claim, Appellant maintains trial counsel was

ineffective for failing to object to the assistant district attorney’s statement

during closing argument, “[t]he [d]efendant decided to be judge, jury and

executioner that night.”6 N.T. Trial 11/06/15, at 690. We disagree.

       With respect to the range of permissible comments in closing

arguments, this Court has stated:

             It is axiomatic that during closing arguments the
       prosecution is limited to making comments based upon the
       evidence and fair deductions and inferences therefrom. Indeed,
       given the critical role that the Commonwealth plays in the
       administration of justice, a prosecutor has been historically
       prohibited from expressing a personal belief regarding a
       defendant’s guilt or innocence or the veracity of the defendant or
       the credibility of his witnesses.

             However, because trials are necessarily adversarial
       proceedings, prosecutors are entitled to present their arguments
       with reasonable latitude. Moreover, it is well settled that
       defendants are entitled to a fair trial, not a perfect one. Thus, a
       prosecutor’s remarks do not constitute reversible error unless
       their unavoidable effect [was] to prejudice the jury, forming in
       their minds fixed bias and hostility toward the defendant so that
       they could not weigh the evidence objectively and render a true
       verdict.



____________________________________________


6 At the evidentiary hearing, Ms. Cutaia stated she did not object to the
Commonwealth’s remark made because she did not think the remark “was
objectionable.” N.T. PCRA Hearing, supra at 27.


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Commonwealth v. Ligon, 206 A.3d 515, 519-20 (Pa. Super. 2019) (citations

and internal quotation marks omitted).

      In support of his contention that the prosecutor’s remarks were

improper, Appellant relies on a single case, Commonwealth v. Anderson,

415 A.2d 887 (Pa. 1980). See Appellant’s Brief, at 17-19. In Anderson,

during closing arguments, the Commonwealth referred to the murder of the

victims as an assassination, called the appellant an executioner, and implied

that the defendants murdered the victims because they violated a “code.”

Anderson, 415 A.2d at 888. Our Supreme Court stated:

      We have repeatedly said the district attorney is a quasi-judicial
      officer representing the Commonwealth, and his duty is to seek
      justice, not just convictions. The district attorney must limit his
      remarks to facts in evidence and legitimate inferences therefrom.
      The district attorney may not ask the jury to draw unwarranted
      deductions from the evidence. During summation, the district
      attorney must present the facts in a manner which allows the jury
      to dispassionately and objectively evaluate the testimony in a
      sober frame of mind and which produces a verdict warranted by
      the evidence, not one inspired by emotion. Finally, we have
      condemned remarks by the district attorney which stigmatize a
      defendant.

Id. at 888-89 (citations omitted). Ultimately, the Anderson court concluded

the evidence did not support the inferences the defendant assassinated the

victims, acted as an executioner, or killed them because of the violation of a

street code; therefore, it held the prosecutor’s remarks were improper,

reversed the denial of PCRA relief, vacated the judgment of sentence, and

ordered a new trial. Id. at 890.




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      However, our Supreme Court decided Anderson almost forty years ago

and Appellant entirely ignores subsequent developments in the law. As we

noted in Ligon,

      in Commonwealth v. D’Amato, 514 Pa. 471, 526 A.2d 300, 313
      (1987), our Supreme Court concluded that a prosecutor’s closing
      argument, which characterized the defendant as a “clever,
      calculating, and cunning executioner,” did not require reversal.
      There, the Court emphasized that the prosecutor’s remarks were
      made in fair response to the defense’s characterization of the
      defendant as an uneducated man tricked into a confession.
      Likewise, in Commonwealth v. Chamberlain, 612 Pa. 107, 30
      A.3d 381, 408 (2011), our Supreme Court emphasized that a
      prosecutor’s statements must be viewed in light of the evidence
      presented in the case. In Chamberlain, the Court held that the
      prosecutor’s description of the defendant as a “murderer” did not
      require reversal where inferences from the evidence in the case
      could lead to the conclusion that the defendant had murdered the
      victim. Id.

Ligon, supra at 520.

      In a recent decision, Commonwealth v. Clancy, 192 A.3d 44 (Pa.

2018), our Supreme Court addressed the issue of whether trial counsel was

ineffective for failing to object to the prosecutor’s closing remarks wherein the

prosecutor called the defendant a “dangerous man” and a “cold-blooded

killer.” Id. at 47. As in the instant matter, the murder in Clancy arose out of

a street fight; again, like the instant matter, the defendant shot and killed an

unarmed man. Id.

      The Commonwealth charged the defendant with criminal homicide and,

at trial, the defendant argued he lacked the necessary intent to kill because

the killing arose out of the heat of passion. Id. at 48. During closing


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arguments, the prosecutor made several remarks disputing the defendant’s

claim he acted in the heat of passion, ultimately concluding with the remarks

quoted above. Id.

      Clancy unsuccessfully sought PCRA relief based upon trial counsel’s

failure to object to the remarks. Id. at 49-51. Our Supreme Court affirmed

the denial of PCRA relief; after a lengthy review of the history of the law in

this area, the Court stated:

      Over time, our precedents came to express greater recognition of
      the prosecutor’s right to advocate, and our understanding of
      permissible prosecutorial conduct expanded. The propriety of the
      prosecutor’s remarks no longer was confined to the words
      themselves, viewed in isolation . . . Under the two-part test, our
      substance analysis centered upon the elements of the charges
      leveled against the defendant and the evidence necessary to
      prove those elements at trial. In conducting that analysis, we also
      evaluated whether the remarks fairly were made in response to
      defense counsel’s arguments.

                                   ****

            Prosecutorial misconduct . . . will not be found where
            comments were based on evidence or proper
            inferences therefrom or were only oratorical flair.
            Moreover, in order to evaluate whether the comments
            were improper, we must look at the context in which
            they were made. We note that this is a relatively
            stringent standard against which [the defendant]
            must labor.

                                   ****

      Thus . . . this Court has tolerated harsh characterizations of the
      defendant when they are germane to the law that applies to the
      case at hand and to a particular element of an offense at issue.
      Moreover, in determining whether the prosecutor’s statement is
      proper, this Court has made clear that, where applicable, we must


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     consider whether the contested remarks constitute a fair response
     to the arguments of the defense.

     The foregoing overview of the roles of the prosecutor and the
     cases in which this Court has addressed the duties and rights that
     attend those roles reveals that the definition of permissible
     oratorical flair has broadened over time, as this Court’s emphasis
     has shifted to comprehend the role of a prosecutor not only as an
     officer of the court but as an advocate as well. As a result, the
     distinct line between permissible oratorical flair and improper
     expressions that had been drawn . . . has become somewhat
     blurred. Although we find no profound flaw in our body of
     precedent, it nonetheless appears that our jurisprudence, as it
     relates to the propriety of a prosecutor’s closing argument,
     requires clarification.

                                  ****

     To assess prosecutors’ adherence to these principles, we have
     required Pennsylvania courts to evaluate both the substance of
     the challenged remark and its effect upon the jury. We discern no
     reason to depart from this approach. The two-part analysis
     provides a practical framework for evaluating prosecutorial
     remarks in which a fair balance may be struck between the
     prosecutor’s duties as an officer of the court and his rights as an
     advocate.

     The substance prong requires a court to examine the challenged
     remark in the context of the issues presented at trial. The court
     first must determine whether the remark reasonably relates to the
     facts of the case. A statement is impermissible where the
     language and inferences of the summation no longer relate back
     to the evidence on the record. Upon finding that the statement at
     issue has a reasonable evidentiary foundation, the court next
     must determine whether the statement facilitates the trier’s duty
     to decide the case on the evidence. The remark not only must be
     based upon the evidence; it also must bear relevance to the
     crimes at issue. Merely derogatory, ad hominem characterizations
     of the defendant or defense counsel are beyond the bounds of
     permissible advocacy; the prosecutor’s comments must be
     tethered to the elements of the charged offenses and the evidence
     offered to prove those elements, and also should be tailored to a
     fair and reasonable rebuttal of the arguments advanced by the
     defense.

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     However, there is no per se rule which requires the grant of a new
     trial whenever the district attorney acts improperly. If the court
     determines that the statement was improper, it must then
     evaluate the effect of the remark pursuant to the unavoidable
     prejudice test:

           [W]here the language of the district attorney is
           intemperate, uncalled for and improper, a new trial is
           not necessarily required. The language must be such
           that its unavoidable effect would be to prejudice the
           jury, forming in their minds fixed bias and hostility
           toward the defendant, so that they could not weigh
           the evidence and render a true verdict. The effect of
           such remarks depends upon the atmosphere of the
           trial, and the proper action to be taken is within the
           discretion of the trial court.

Id. at 60-63 (footnotes, citations and quotation marks omitted). Applying the

above-quoted standards, the Supreme Court ultimately concluded that the

remarks made by the prosecutor were not improper and that, therefore,

counsel had no basis to object to them. Id. at 66-68. The Court specifically

noted,

     The state of mind that must be proven in a murder prosecution is
     an abstraction that cannot be established merely by a recitation
     of the physical evidence in the case. Often, the defendant’s state
     of mind can be established only by circumstantial proof and the
     jury’s powers of deduction and inference. In confronting this
     evidentiary challenge, prosecutors require some latitude in their
     arguments to the jury. In cases like the one before us today,
     in which the defendant admits to the physical act of killing
     the victim but argues self-defense, or some lesser degree
     of culpability, it is especially important that we allow
     prosecutors to respond fairly to arguments made in the
     defense closing argument.

Id. at 65-66 (citations and quotation marks omitted; emphasis added).




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     In its opinion denying Appellant’s PCRA petition, the trial court aptly

applied Clancy and discussed the issue as follows:

     In the present case, the Commonwealth stated the following
     during its closing argument, which [Appellant] alleges caused him
     prejudice:

           The Defendant decided to be judge, jury, and
           executioner that night. He decided what crimes Derek
           Ferree and Braydon Aldinger were guilty of. He
           decided what that punishment was, and that
           punishment was death.

     Like in Clancy, [Appellant] did not dispute the issue of whether
     he killed the victims in this matter. The main issue for the jury to
     decide in this case was whether [Appellant’s] actions were
     justified and in self-defense, warranting acquittal, or whether
     [Appellant] was not justified and his actions were either
     unreasonable, with malice, or specifically intended, warranting
     voluntary manslaughter, third-degree, or a first-degree murder
     conviction, respectively.

     [The PCRA court] find[s] the statements above were based on a
     reasonable evidentiary foundation. At trial, [Appellant] had
     argued that he was not guilty of murder or manslaughter and
     argued he acted in self-defense when he shot the victims because
     they were attacking him, may have been trying to rob him, and
     he was scared. The Commonwealth attempted to refute that
     assertion by arguing [Appellant] brought a gun to a drug deal, he
     could have easily retreated, the [v]ictims were not armed and only
     attacked [Appellant] with their fists, and the fact that the victims
     were hit more than once by bullets in vital parts of their bodies.

     By referring to [Appellant] as the “judge, jury, and executioner”,
     the Commonwealth was asserting that [Appellant’s] act of
     shooting the victims multiple times after they had just beat him
     up and tried to rob him was a conscious and deliberate decision
     rather than spur of the moment or a justified act. The
     Commonwealth asserted a reasonable evidentiary inference that
     [Appellant] had the specific intent to kill, rebutted [his] argument
     for self-defense, and referring to [him] as “judge, jury, and
     executioner” was arguing that reasonable inference that
     [Appellant] took justice into his own hands and made a conscious

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          and deliberate decision to kill the [v]ictims when he shot each one
          multiple times in vital parts of their bodies.

          Similarly, [the PCRA court] find[s] that the statements facilitated
          the trier’s duty to decide the case on the evidence and it was
          relevant to the crimes at issue. As noted in Clancy, it is often
          difficult for the Commonwealth to prove first-degree murder
          merely based on the physical evidence and it is often forced to
          persuade the jury based on circumstantial evidence and
          inferences to support the argument that a [d]efendant specifically
          intended to kill someone.

          Therefore, considering the test set forth in Clancy, we find that
          the statement that [Appellant] was “judge, jury, and executioner”
          was permissible oratorical flair. [Appellant] has failed to
          demonstrate that he suffered prejudice when his trial counsel
          failed to object to these comments. He is not entitled to
          relief on this claim.

Trial Court Opinion, 1/11/19, at 20-22 (record citation omitted).

          We have thoroughly reviewed the record and applicable law in this

matter, and we discern no error of law or abuse of discretion in the trial court’s

discussion of this issue. Appellant’s second and final claim does not merit

relief.

          In light of the foregoing, our review of this matter demonstrates that

the record supports the PCRA court’s denial of relief and is free from legal

error and abuse of discretion.

          Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/06/2020




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