J-S13009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

    ANTONIO DANTE BUTLER,

                             Appellant                  No. 550 WDA 2018


              Appeal from the PCRA Order Entered March 21, 2018
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0005536-2010


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                           FILED MAY 13,2019

        Antonio Dante Butler (Appellant) appeals from the post-conviction

court’s March 21, 2018 order denying his first, timely petition filed under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After review, we

affirm.

        On appeal, Appellant raises the following three issues, asserting

ineffective assistance of counsel, in his Statement of the Questions Involved

section of his brief:

              I.     Whether trial counsel gave ineffective assistance for
                     failing to request a corrupt and polluted source charge
                     concerning Orlando Anderson?


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S13009-19


              II.    Whether trial counsel gave ineffective assistance for
                     failing to request a Kloiber[1] instruction when
                     Orlando Anderson misidentified Appellant prior to the
                     trial?


              III.   Whether counsel gave ineffective assistance for failing
                     to file a jury instruction concerning voluntary
                     manslaughter?

Appellant’s brief at 5.

       In addressing Appellant’s issues, we are guided by the following:

       “In reviewing the propriety of an order granting or denying PCRA
       relief, an appellate court is limited to ascertaining whether the
       record supports the determination of the PCRA court and whether
       the ruling is free of legal error.” Commonwealth v. Johnson, …
       966 A.2d 523, 532 ([Pa.] 2009). We pay great deference to the
       findings of the PCRA court, “but its legal determinations are
       subject to our plenary review.” Id.

Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013).

       We have reviewed the certified record, the briefs of the parties, and the

applicable law. Additionally, we have reviewed the thorough, well-reasoned

opinion of the Honorable Anthony Mariani of the Court of Common Pleas of

Allegheny County.         We conclude that Judge Mariani’s extensive opinion

accurately disposes of the issues presented by Appellant. See PCRA Court’s

Opinion at 1-10.2 Accordingly, we adopt his opinion as our own and affirm the

order denying Appellant’s PCRA petition for the reasons set forth therein.
____________________________________________


1   Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).

2  In Appellant’s Pa.R.A.P 1925(b) Statement of Errors, he raised an
ineffectiveness claim contending that his attorney “fail[ed] to object to the
prosecutor’s improper closing argument that called Appellant a cold-blooded



                                           -2-
J-S13009-19



       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/13/2019




____________________________________________


killer[.]” Appellant has not included this issue in his brief and, therefore, it is
waived. See Pa.R.A.P. 2116(a) (“No question will be considered unless it is
stated in the statement of questions involved or is fairly suggested thereby.”).
As such, we do not adopt Judge Mariani’s opinion relating to that issue.


                                           -3-
                                                                        Circulated 04/22/2019 02:31 PM




JN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                                       CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA                            )
                                                        )
        vs.                                             ) CC No. 201005536
                                                        )
                                                                                                                      '   .
ANTONIO DANTE BUTLER                                    )
                                                        )
                                                        )
                                                                                                         --...
                                                                                                          -..
                Petitioner
                                                                                                         �
                                                        )
                                                                                      :..    ..
                                        OPINION
                                                                                        -�·- ..            0
                                                                                        ..., '               (.,..)
                                                                                            :---   (




Mariani, J.

        This is an appeal of a denial of Antonio Dante Butler's (Petitioner), petition

pursuant to the Post-Conviction Relief Act (hereinafter referred to as, "PCRA"), 42

Pa.C.S. § 9541, et seq. After a jury trial, Petitioner was convicted of First Degree Murder

and a violation of the Uniform Firearms Act. Petitioner was sentenced to a term of life

imprisonment and a consecutive term of imprisonment of not less than 31h years nor

more than 7 years imprisonment relative to the firearms charge.          On direct appeal, the

Superior Court affirmed Petitioner's judgment of sentence at 1619 WDA 2012.                        The

Pennsylvania Supreme Court denied allocatur on March 16, 2016. Petitioner timely filed

a petition pursuant to the PCRA challenging the effectivness of his trial counsel. After

this Court denied that petition, Petitioner filed the instant appeal.



       As set forth in this Court's prior opinion, the relevant facts presented at trial were

as follows:


                Orlando Anderson testified that on December 29, 2009, he
                was looking for a ride to visit his friend, Erica Daye, to
                help fix her daughter's bike.       He bumped into the
                [petitioner] on Third Street in Pitcairn. He asked the
       (petitioner] if he could get a ride to Erica Daye's residence
      on McGinnis Street. The [petitioner] told him he'd have to
      ask the victim in this case, Lamont Ford, who was known
      as "Lolo", When the victim showed up, Anderson asked
      for the ride. The victim agreed to drive Anderson to Erica
      Daye's residence. All three got into the victim's vehicle.
      The [petitioner] sat in the front passenger seat and
    · Anderson sat in the rear passenger seat. Ford told
      Anderson and the [petitioner] that he had to stop at his
      aunt's house before they stopped at Erica Daye's residence.
      After the victim got back in the vehicle, they left for Erica
      Daye's residence. As they approached the residence,
      Anderson told Ford to drive on Brinton Road and tum onto
      Kay Street. The three men engaged in normal conversation
      during the ride. Ford and the [petitioner] appeared "cool"
      with each other and there was no tension in the vehicle.
      When the vehicle stopped on Kay Street, Anderson exited
      the vehicle. As he just started walking away, he heard a
      gunshot. He turned around and saw a number of muzzle
      flashes inside the vehicle. The (petitioner] was halfway
      inside the vehicle firing gunshots toward Ford.            The
      vehicle then drifted forward and hit another vehicle.
      Anderson was still close to the shooting scene. The
      [petitioner] turned toward him and fled the scene running
      down Brinton Road toward Second Street.             Anderson
      stayed at the scene screaming for help and waited for help
      to arrive. He testified that the [petitioner] was wearing a
      red jacket, boots and black jeans at the time of the shooting.

    Brandon Marto testified that on December 29, 2009, he was
    driving his pick-up truck on Brinton Road in Pitcairn, just
    as it was starting to get dark. According to Marta, it was
    dusk. While he was driving he heard a "pop" and thought
    be had blown a tire. He heard another "pop" and observed
    a car parked on the side of Kay street. As he turned to
    look down Kay Street, he observed a man standing outside
    the passenger's side of the car shooting into it. He then
    observed the flashes of five gunshots. He observed another
    man standing outside the car on the driver's side of 'the
    vehicle. He testified that the shooter was approximately
    5'9" - 5'10" and weighed approximately 160 pounds. At
/   the time of the shooting, he was wearing a red, long sleeved
    windbreaker, jeans and boots and he had short hair. He
    testified that the gun was dark in color, probably black. As
    he drove by the shooting scene, be was able to observe the
    shooter run from the scene.



                                   2
                  Reverend Deacon Byron Johnson testified that he lived
                  near the scene of the shooting on Brinton Road. He
                  testified that he heard gunshots on the day of the shooting
                  and he looked out the window of his residence.
                  Immediately after the shooting he observed a black male
                  walking toward his residence from what appeared to be
                  Kay Street. The male was wearing a red coat, a hoodie,
                  jeans and boots. He kept his hands in his pockets. He
                  walked away from the scene on Second Street.             Deacon
                  Johnson testified that after the [petitioner] was arrested and
                  he saw a photograph of the [petitioner] in the newspaper,
                  he recognized the [petitioner] as the person he saw on the
                  day of the shooting. He could not, however, identify the
                  [petitioner] at trial, attributing his inability to do so on the
                  three year gap between the time he saw the [petitioner] on
                  the street and the time he was asked to identify the
                  [petitioner] in the courtroom.

                  Brian Franklin testified that on January 28, 2010, he and
                  the [petitioner] were cellmates in the Allegheny County
                  Jail. On that date, the [petitioner] asked Franklin if police
                  could get DNA from a Pepsi can.1 Franklin advised the
                  [petitioner] that he believed DNA could be obtained from
                  the can. The [petitioner] then asked him whether DNA or
                  other evidence could be obtained from a vehicle. Franklin
                  asked the [petitioner] why he was asking these questions.
                  The [petitioner] replied by telling Franklin that he was
                  involved in a case. He told Franklin that he pulled the
                  trigger in a homicide case. The [petitioner] explained that
                  the [petitioner] had a "beef' with the victim and he wanted
                  a fair fight with the victim. The victim did not want to
                  fight. The [petitioner] explained that he asked for a ride
                  from the victim to pay for his cell phone bill.          The
                  [petitioner] basically disclosed the same events of the night
                  of the shooting as described by Orlando Anderson. He told
                  Franklin about the stop at the victim's aunt's house.
                  According to the [petitioner], even though he never saw the
                  victim with a gun, he thought the victim went into the
                  house to get a gun. The [petitioner] told Franklin that the
                  vehicle came to a stop and he shot the victim because he
                  thought the victim was going to shoot him first. He stated

1
  Testimony at trial established that detectives had provided the [petitioner] with a can of Pepsi while he
was in custody. After drinking the Pepsi, the (petitioner] discarded the can and police officers removed the
can from a trash container in the [petitioner]'s presence. The detectives then confronted the [petitioner)
about it and the [petitioner] made statements. The statements were barred from trial.


                                                     3
                that Orlando Anderson was in the back seat of the vehicle
                at the time of the shooting. He stated that he got rid of the
                gun.     Days after the incident, the [petitioner] begged
                Franklin not to tell anybody what he had told Franklin.




        Petitioner raises a number of claims that trial counsel rendered ineffective assistance

of counsel. It is well established that counsel is presumed effective and the petitioner bears

the burden of proving ineffectiveness. Commonwealth v. Cooper, 596 Pa. 119, 941 A.2d

655, 664 (Pa. 2007). Under the federal constitution, to obtain relief on a claim of

ineffective assistance of counsel, a petitioner must rebut that presumption and

demonstrate that counsel's performance was deficient, and that such performance

prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-91, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984).        As set forth in Commonwealth v. Dennis, 17 A.2d 297, 301

(Pa.Super. 2011),

                [i]n our Commonwealth, we have rearticulated the
                Strickland Court's performance and prejudice inquiry as a
                three-prong test. Specifically, a petitioner must show: (1)
                the underlying claim is of arguable merit; (2) no reasonable
                basis existed for counsel's action or inaction; and (3)
                counsel's error caused prejudice such that there is a
                reasonable probability that the result of the proceeding
                would have been different absent such error.
                Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213
                (Pa. 2001).



       The standard remains the same for claims under Pennsylvania and federal law. A

claim of ineffectiveness will be denied if the petitioner's evidence fails to meet any of these

prongs. Id. at 221-222. Moreover, the credibility determinations of a trial court hearing a

PCRA petition are binding on higher courts where the record supports such credibility


                                              4
assessments. Commonwealth v. R. Johnson, 600 Pa. 329, 356-57, 966 A.2d 523, 539

(2009).

          The threshold inquiry in a claim of ineffective assistance of counsel is whether the

issue/argument/tactic which counsel has forgone and which forms the basis for the

assertion of ineffectiveness is of arguable merit. Commonwealth v. Ingram. 404 Pa.

Super. 560, 591 A.2d 734 (Pa.Super. 1991).         Counsel cannot be considered ineffective

for failing to assert a meritless claim. Commonwealth v. Tanner, 600 A.2d 201 (Pa.Super.

1991).



          This Court does not believe that Petitioner can overcome the presumption that

trial counsel rendered effective assistance of counsel. Petitioner's first claim is that trial

counsel rendered ineffective assistance of counsel by failing to request a "corrupt and

polluted source" instruction concerning the testimony of Orlando Anderson. This claim is

without merit. A "corrupt and polluted source" instruction, which informs the jury that

the accomplice is a corrupt and polluted source whose testimony should be viewed with

great caution, is required when an accomplice's testimony implicates the defendant.

Commonwealth v. Wholaver, 177 A.3d 136, 165 (Pa. 2018); Commonwealth v. Smith,

609 Pa. 605, 17 A.3d 873, 906 (2011) (quoting Commonwealth v. Chmiel, 536 Pa. 244,

639 A.2d 9, 13 (1994)); Commonwealth v. Collins. 957 A.2d 237, 262 (Pa.Super. 2008)

Accomplice liability requires evidence that the person: (1) intended to aid or promote the

substantive offense; and (2) actively participated in that offense by soliciting, aiding, or

agreeing to aid the principal. Collins, citing Commonwealth v. Rega, 593 Pa. 659, 933

A.2d 997, 1014 (2007), cert. denied, 552 U.S. 1316, 128 S.Ct. 1879, 170 L.Ed.2d 755




                                               5
(2008).


       The record in this case does not remotely establish that Orlando Anderson was an

accomplice of Petitioner. As set forth above, the trial evidence established that the petitioner

acted alone when he shot and killed the victim.         There is absolutely no evidence that

Orlando Anderson intended to aid or promote the murder of the victim nor was there any

evidence establishing that Orlando Anderson actively participated in the murder by

soliciting, aiding, or agreeing to aid the petitioner. Because this Court would not have

given the "corrupt and polluted source" instruction on this record, trial counsel could not

have rendered ineffective assistance of counsel for failing to request such an instruction.



       Petitioner next claims that trial counsel rendered ineffective assistance of counsel

because he failed to request a Kloiber instruction concerning Orlando Anderson's

identification of the petitioner. As set forth in Commonwealth v. Ali. 10 A.3d 282. 303-

(Pa. 2010):

               Under Kloiber, "a charge that a witness' [ s] identification
               should be viewed with caution is required where the
               eyewitness: (1) did not have an opportunity to clearly view
               the defendant; (2) equivocated on the identification of the
               defendant; or (3) had a problem making an identification in
               the past." Commonwealth v. Gibson, 547 Pa. 71, 688 A.2d
               1152, 1163 (1997) (citing Kloiber). Where an eyewitness
               has had "protracted and unobstructed views" of the
               defendant and consistently identified the defendant
               "throughout the investigation and at trial," there is no need
               for a Kloiber instruction. Commonwealth v. Dennis, 552
               Pa. 331, 715 A.2d 404, 411 (1998). When the witness
               already knows the defendant, this prior familiarity creates
               an independent basis for the witness's in-court
               identification of the defendant and weakens ineffectiveness
               claims based on counsel's failure to seek a Kloiber
               instruction. See Commonwealth v. Fisher. 572 Pa. 105, 813
               A.2d 761. 770-71 (2002) (Opinion Announcing Judgment


                                               6
                of the Court) (witness's in-court identification valid based
                on witness having known defendant for eleven years);
                Commonwealth v. [Freddie] Johnson, 433 Pa. 34, 248 A.2d
                840, 841-42 (1969) (witness had known defendant for
                three years prior to robbery and murder; no trial court error
                in not issuing Kloiber instruction); see also Commonwealth
                v. [Clarence] Johnson. 419 Pa.Super. 625, 615 A.2d 1322,
                1335-36 (1992) (witness knew defendant and "bad seen
                him on several occasions" prior to murder; defendant not
                entitled to Kloiber instruction because witness's in-court
                identification was supported by independent basis).


In this case, a Kloiber instruction would not have been granted by this Court. Orlando

Anderson clearly viewed Petitioner prior to, during and after the shooting and murder of the

vicitm. Orlando Anderson never equivocated on the identification of Petitioner and he did

not have a problem identifying Petitioner in the past.    Orlando Anderson clearly identified

Petitioner at trial as the person who shot and killed the victim in this case. During his

testimony at trial, Orlando Anderson advised the jury that he intentionally failed to identify

Petitioner prior to trial during a photo array out of fear for his personal safety. In consdering

the totality of Orlando Anderson's testimony at trial, it is clear that his identification of

Petitioner was clear, unequivocal and accurate. This Court would not have provided a

Kloiber instruction at trial and trial counsel could not, therefore, have rendered deficient

assistance of counsel.


       Petitioner next challenges trial counsel's failure to request a voluntary

manslaughter instruction to the jury.      An "unreasonable belief" manslaughter charge

shall be given only when requested by the defendant at trial, where the offense has been

made an issue in the case, and the trial evidence reasonably would support such a verdict.

Commonwealth v.          Patton,   936 A.2d    1170,    1177   (Pa.Super. 2007) see         also

Commonwealth v. Robinson, 554 Pa. 293, 721 A.2d 344, 353 (Pa. 1999) (citing


                                               7
Commonwealth v. Browdie, 543 Pa. 337, 671 A.2d 668, 674 (Pa. 1996); Commonwealth

v. Williams, 537 Pa. 1, 640 A.2d 1251 (Pa. 1994)) Commonwealth v. White. 490 Pa. 179,

415 A.2d 399 (1980) (involuntary manslaughter); Commonwealth v. Williams, 490 Pa.

187, 415 A.2d 403 (1980) (involuntary manslaughter).        A defendant is not entitled to a

jury instruction that has no basis in the evidence presented at trial. See Commonwealth

v. Carter, 502 Pa. 433, 466 A.2d 1328 (Pa. 1983) (defendant not entitled to unreasonable

belief voluntary manslaughter instruction where no evidence supported such charge).




          In order to obtain a verdict of voluntary manslaughter, the Commonwealth has the

burden of proving beyond a reasonable doubt that a homicide was not a justifiable act of

self-defense. Commonwealth v. White. 492 Pa. 489, 491, 424 A.2d 1296 (1981);

Commonwealth v. Walley. 466 Pa. 363, 353 A.2d 396 (1976). A killing which occurs

because a [petitioner] mistakenly believes that he or she is justified in taking such action

constitutes voluntary manslaughter. See 18 Pa.C.S.A. § 2503(b); Commonwealth v. Cain.

484 Pa. 240, 398 A.2d 1359 (1979); Commonwealth v. Nau, 473 Pa. 1, 373 A.2d 449

(1977).      The crime of voluntary manslaughter is codified at 18 Pa.C.S. § 2503, which

provides in relevant part:



                 (a) General rule.--A person who kills an individual without
                 lawful justification commits voluntary manslaughter if at
                 the time of the killing he is acting under a sudden and
                 intense passion resulting from serious provocation by:

                 (1) the individual killed; or

                 (2) another whom the actor endeavors to kill, but he




                                                 8
               negligently or accidentally causes the death of the
               individual killed.

               (b) Unreasonable belief killing justifiable. -- A person who
               intentionally or knowingly kills an individual commits
               voluntary manslaughter if at the time of the killing he
               believes the circumstances to be such that, if they existed,
               would justify the killing under Chapter 5 of this title
               (relating to general principles of justification), but his belief
               is unreasonable.


       A charge on voluntary manslaughter would not have been given to the jury if

requested by trial counsel. Voluntary manslaughter requires a killing to be intentional or

knowing.     Petitioner's theory at trial was that he did not shoot and kill the victim.

Moreover, there were no credible facts of record establishing circumstances upon which

Petitioner could have believed he was justified in shooting the victim. There was no trial

testimony that the victim was seen with a weapon prior to the shooting. By an accounts,

the victim was sitting behind the steering wheel of his vehicle at the time he was shot.

There was no hostility whatsoever inside the vehicle prior to the shooting. Because the

evidence in this case demonstrated that petitioner shot and killed someone who was no

threat to him, the jury would not have been charged on voluntary manslaughter.

Accordingly, the failure to request such a jury instruction is not ineffective assistance of

counsel.



       Finally, as recognized in Commonwealth v. Toledo, 529 A.2d 480, 484 (Pa.Super.

1987), where a jury who was instructed on the offenses of first degree murder and third

degree murder returns a verdict of guilt on first degree murder, any error in failing to

request a jury instruction for voluntary manslaughter would be harmless.           Therefore,




                                              9
assuming, but not conceding, that trial counsel erred in failing to request such an

instruction, the error would have been harmless.



       Petitioner finally claims that the trial counsel was ineffective for not objecting to the

prosecutor's characterization of Petitioner as a "cold-blooded killer" during the

Commonwealth's closing argument. As set forth in Commonwealth v. Chamberlain, 30

A.3d 381, 407-408 (Pa. 2011), a case in which the prosecutor called the defendant a

"murderer":

              It is well established that a prosecutor must have reasonable
              latitude in presenting a case to the jury, and must be free to
              present arguments with "logical force and vigor."
              D'Amato. 526 A.2d at 309 (citing Commonwealth v.
              Smith. 490 Pa. 380, 416 A.2d 986 (1980)); Commonwealth
              v. Cronin, 464 Pa. 138, 346 A.2d 59, 62 (1975). Counsel
              may comment upon "fair deductions and legitimate
              inferences from the evidence presented during the
              testimony." D' Amato, 526 A.2d at 309; Commonwealth v.
              Fairbanks, 453 Pa. 90, 306 A.2d 866 (1973). Although a
              prosecutor may argue to the jury that the evidence
              establishes the defendant's guilt, D'Amato, 526 A.2d at
              309; Commonwealth v. Capalla. 322 Pa. 200, 185 A. 203
              (1936), arguments from personal opinion as to the guilt of
              the accused are not proper. D'Amato, 526 A.2d at 309;
              Commonwealth v. DiNicola, 503 Pa. 90, 468 A.2d 1078
              (1983); Commonwealth v. Pfaff, 477 Pa. 461, 384 A.2d
              1179 (1978).

              Moreover, not every remark by the prosecutor, even
              assuming it is intemperate or uncalled for, requires a new
              trial. D' Amato, 526 A.2d at 309. A prosecutor's comments
              do not amount to reversible error unless the "unavoidable
              effect of such comments 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
              objectively and render a true verdict." Id.; Commonwealth
              v. Carpenter, 511 Pa. 429, 515 A.2d 531 (1986);
              Commonwealth v. D' Ambro, 500 Pa. 303, 456 A.2d 140
              (1983). Moreover, the prejudicial effect of the prosecutor's



                                             10
              remarks must be evaluated in the context in which they
              occurred. D'Amato, 526 A.2d at 309; Carpenter, 515 A.2d
              at 531; Smith, 416 A.2d at 989. In applying these standards
              on appellate review, we have explained that whether this
              standard has been violated by the language of the
              prosecutor is not in the first instance an appellate court's
              decision to make; rather, it is the duty of the trial judge to
              rule upon the comments and we are limited to reviewing
              whether the trial court abused its discretion. D' Amato, 526
              A.2d at 309; Commonwealth v. Simon. 432 Pa. 386, 248
              A.2d 289, 292 (1968).

              Appellant's first assertions of prejudice, premised on the
              prosecutor's use of "murderer," fail when these portions of
              the argument are viewed in context. As the trial court
              explained, in each instance, the prosecutor did not merely
              label Appellant a murderer. Trial Ct. Opinion, Oct. 7, 1996,
              at 78. Rather, he argued that the evidence and the
              reasonable inferences therefrom led to the conclusion that
              Appellant was a murderer. Id. at 80. By asserting that the
              evidence led to the conclusion that Appellant was guilty,
              the prosecutor did not advocate his personal belief of
              Appellant's guilt. The prosecutor is free to argue that the
              evidence leads to the conclusion of guilt, and is permitted
              to suggest all favorable and reasonable inferences that arise
              from the evidence. Commonwealth v. Sam, 535 Pa. 350,
              635 A.2d 603 (1993).



       In Commonwealth v. Hall, 701 A.2d 190, 199-200 (Pa. 1997), the prosecution

presented the following closing argument:

              And I would like to end by stating that the only thing colder
              than the grave of [the victim], is this guy's heart. The only
              thing colder, because he put him there, and he made sure he
              was going there. Because if he didn't shoot the second
              time, we might not be here. But he wanted to put him there
              the first time, and the instinct saved him, and the second
              time there was no instinct in the world that could have
              saved him, because he intentionally shot and killed him.
              And he walked out coolly, calmly, and collected, with a
              .357 revolver waving at patrons in the store.




                                            11
  In disagreeing with the defendant that the closing argument was improper, the

  Pennsylvania Supreme Court stated:

                A distinguishing feature of first-degree murder is the
                presence of malice which may be found from the
                circumstances surrounding the murder. Malice can be
                demonstrated by evidence of "wickedness of disposition,
                hardness of heart, wanton conduct, cruelty, recklessness of
                consequences and a mind regardless of social duty." Here,
                the prosecutor's comments were not made for the sole
                purpose of inflaming the passion of the jury and impairing
                their ability to render a fair verdict. Rather, the prosecutor
                was recounting the evidence produced at trial and how this
                evidence showed that appellant killed the victim with the
                necessary malice for first-degree murder. Therefore, we
                find that the prosecutor's reference to appellant's "cold
                heart" was proper argument since he was merely arguing a
                reasonable inference which could be drawn from the
                evidence.

Id. at at 200 (internal citation omitted).


        This Court is convinced that the comments made by the prosecutor in this case were

not improper. The record makes clear that the prosecutor's comment that the petitioner was

a cold-blooded killer because, "that's what the evidence in this case has proved (the

petitioner] to be."   The prosecutor was not infusing his own personal opinions into his

argument. On the contrary, the argument made by the prosecutor was tailored to convince

the jury that Petitioner acted with "wickedness of disposition, hardness of heart, wanton

conduct, cruelty, recklessness of consequences and a mind regardless of social duty"

which was required to prove malice. This Court believes that the comments were within

the proper purview of closing argument and, because the "cold-blooded killer" comment

was based on the evidence and tailored to the law of first degree murder, the prosecutor's

comments did not prejudice the jury by forming a fixed bias and hostility toward the




                                             12
defendant such that the jury was prevented from weighing the evidence objectively in this

case. This Court believes the verdict in this case was a true verdict.



       For the foregoing reasons, the denial of Petitioner's PCRA petition should be

affirmed.


                                              By the Court:




                                                                           L{tZ./t, C   J.




                                             13
