Lead Opinion
OPINION
JUSTICE WECHT
In this discretionary appeal, Javonn Eric Clancy challenges the dismissal of the petition he filed under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541 -46. In that petition, Clancy alleged that his trial counsel was ineffective for failing to object to purportedly inflammatory statements made by the prosecutor during closing arguments. Specifically, the prosecutor characterized Clancy as a "dangerous man" and a "cold blooded killer." We hold that, within the context of the instant case, the prosecutor's statements constituted permissible oratorical flair. Accordingly, we conclude that Clancy's claim of ineffectiveness of counsel lacks arguable merit. We affirm the order of the Superior Court.
On July 30, 2012, Clancy was on the 300 block of Linmar Terrace in Aliquippa, Beaver County, talking with several individuals, including Dyquane Norman. Marquay Lavar Rigins approached Norman to discuss a past robbery. Clancy inserted himself between the two men, insulted Rigins, and punched Rigins in the face. Rigins responded by knocking Clancy to the ground and hitting him. The men grappled on the ground for a few moments until Norman intervened. Once Clancy and Rigins were separated, Clancy drew a handgun and fired multiple shots at Rigins. As Rigins attempted to flee, Clancy shot him three times in the back. One bullet pierced Rigins' aorta, ultimately causing his death.
Clancy dropped the gun and fled Linmar Terrace. He ran into a nearby wooded area and emerged into a yard on Green Street. Susan Ours, the owner of the property, asked Clancy whether he needed help. When Ours informed Clancy that he was on private property, Clancy apologized and began walking down Green Street. Clancy then stopped at a convenience store, purchased a bottle of water, and went to a friend's house to charge his cell phone. Soon after, Clancy fled to Pittsburgh, in adjoining Allegheny County. Clancy evaded authorities until he turned himself in on September 4, 2012.
The Commonwealth charged Clancy with criminal homicide, 18 Pa.C.S. § 2501, and carrying a firearm without a license, 18 Pa.C.S. § 6106(a)(1). At trial, Clancy argued to the jury that his actions did not *48amount to first-degree murder because he had been moved by passion as a result of the fight with Rigins. Clancy testified that, "my anger took over me ... I just pulled the gun out ... I heard one bang, and then after that I just heard the click." Notes of Testimony ("N.T."), Trial Vol. III, 4/11/2013, at 125. Clancy further testified that he neither aimed the gun at Rigins nor intended to shoot him.
The Commonwealth presented several witnesses, including Norman, who testified that Clancy verbally engaged and struck Rigins first with little provocation, and that Clancy fired multiple shots directly at Rigins as the latter fled. The prosecutor displayed and asked questions about a twelve-second surveillance video that partially depicted the events at issue. Although the fight and the shooting occurred outside of the camera's frame, the video appeared to show Clancy's hand pulling something out of his pants before bystanders in the area began to run away. The video also depicted one bystander running alongside Rigins as he fled.
During his closing argument, the prosecutor disputed Clancy's claim that he indiscriminately shot his gun in anger, pointing out that Clancy shot Rigins three times in the back without hitting any of the bystanders. The prosecutor further argued:
[T]he fact that residents of Linmar, given how the snitch[-]free mentality runs rampant ... the fact that they came forward speaks volumes, because even in their eyes, this was a cowardly act of murder.
* * *
[Clancy is] trying to win points with you. [His testimony] was so insincere, and if you have had an opportunity to watch him throughout this trial, he doesn't sit over here on an island.... Cold, collected, no emotion from him. He's a killer, a killer.
* * *
He's so cool and collected, he stops at a store and gets water after having just emptied his firearm, three shots in the back of an unarmed man. Not only does he drink water. He starts making phone calls.... He goes to a friend's house, a girl. He gives us her name, and he remembers charging his phone, calm, cool, collected ....
* * *
This was a cowardly killing even by Linmar standards.
* * *
He is the lone shooter. He did a cowardly killing. He did a first[-]degree murder.
* * *
That's a dangerous man. That is a cold blooded killer.
N.T., Trial Vol. IV, 4/12/2013, at 35, 37, 42, 45, 47-48. Clancy's trial counsel, Steven Valsamidis, raised no objections.
The jury found Clancy guilty of first-degree murder, 18 Pa.C.S. § 2502(a), and carrying a firearm without a license, 18 Pa.C.S. § 6106(a)(1). On May 29, 2013, the trial court sentenced Clancy to life imprisonment without the possibility of parole for first-degree murder. The trial court also sentenced Clancy to a concurrent term of two to seven years' imprisonment for carrying a firearm without a license. Clancy filed post-sentence motions challenging the weight and sufficiency of the evidence, which motions the trial court denied on August 28, 2013.
On August 29, 2014, the Superior Court affirmed Clancy's judgment of sentence. See Commonwealth v. Clancy , 1594 WDA 2013,
*49On August 13, 2015, Clancy timely filed a pro se PCRA petition. The PCRA court appointed counsel, who, on November 17, 2015, filed an amended PCRA petition. Therein, Clancy argued, inter alia , that his prior counsel was ineffective for failing to object to the above-quoted portions of the prosecutor's closing argument. Clancy asserted that the prosecutor's statements amounted to an impermissible expression of personal belief, that they disparaged a defense "strategy," and that they inflamed the jury.
At a February 26, 2016 evidentiary hearing, Clancy's PCRA counsel called Attorney Valsamidis to testify. Attorney Valsamidis testified that he did not believe that the prosecutor's closing argument was objectionable, and that he believed that the prosecutor's argument would be perceived negatively by the jury. N.T., PCRA Hearing, 2/26/2016, at 56-57. With regard to the "cold blooded killer" remark, Attorney Valsamidis explained:
Given the testimony that had come in, that was the theory of the case that Javonn Clancy had killed Mr. Riggins [sic ]. It's closing argument. There's a certain amount of argument permissible. It did catch my attention because I was wondering if he was going to elaborate on it. If he would have said something to the effect of, "He needs to be punished," he couldn't say that without putting his own opinion into it.
If he would have said, referencing the safety of the jurors at home, the community, something along those lines in conjunction with that statement, that would be playing upon emotion or putting his own opinion in it. But just simply stating that he's a killer, that's the theory of their case. He was permitted to argue it.
* * *
The other reason I didn't object is ... I thought during his closing argument he came across as combative or dislikable [sic ] and almost desperate at times, because the, some of the things that you just referenced weren't supported by the facts, and I felt that he was hanging onto calling him names, referencing how he's a killer.
I perceived it as the case. His theory was that he shot somebody, and that's dangerous. I didn't take that as him playing upon the emotion of the jurors.
Id. at 59. The PCRA court denied Clancy's PCRA petition. On July 15, 2016, Clancy filed a timely notice of appeal. On August 5, 2016, Clancy complied with the PCRA court's order to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
In its Pa.R.A.P. 1925(a) opinion, the PCRA court first noted that, to be eligible *50for relief under the PCRA, Clancy had to plead and prove, by a preponderance of the evidence, that the ineffectiveness of his trial counsel "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." PCRA Ct. Op. at 5 (citing 42 Pa.C.S. § 9543(a)(2) ). After setting forth the elements of an ineffective assistance of counsel claim,
Turning to the statements that Clancy challenged,
The PCRA court next rejected Clancy's reliance upon *51Commonwealth v. Capalla ,
[R]eferring to a defendant in a murder trial as a "murderer" or "killer," or a killing as "cold blooded," may be regarded as oratorical [flair] where there is sufficient evidence to support the allegations that the defendant killed the victim in the case. The context in this case should be particularly noted. The sole issue presented to the jury was whether [Clancy] was guilty of voluntary manslaughter due to provocation or murder of the first degree. [Clancy's] trial counsel argued strenuously and repeatedly that [Clancy] could only be found guilty ... of voluntary manslaughter. In this context, the prosecutor's reference to a "cold blooded" killing could well be regarded by the lay person and jury member as argument that the killing was not due to provocation but rather a "willful, deliberate and premeditated killing."
Finally, the PCRA court pointed out that, even if those statements constituted prosecutorial misconduct, Clancy had failed to prove the other elements of his ineffective assistance of counsel claim. The court determined that, based upon the foregoing case law and Attorney Valsamidis' testimony at the PCRA hearing, Clancy's trial counsel had reasonable strategic bases for declining to object during the prosecution's closing argument. As for prejudice, the court reasoned that:
[Clancy] claims if only he had not been called a killer, the trial would have been different. [Clancy] was on trial for murder. The very nature of the charges is an allegation that [Clancy] killed someone. There was no evidence or implication that [Clancy] had killed before or that he had a reputation for killing. No reasonable person in the context of this case could have concluded that the Commonwealth was arguing anything other than the murder charge alleged, to wit, that [Clancy] killed the victim.
* * *
[Clancy] asserts that referring to him as "cold blooded" incited the jury to act out of passion rather than according to the evidence. [Clancy] himself admitted the killing, and claimed as his defense that it was provocation, not planning, that led to the killing. Thus, to contrast a pair of euphemisms, the question before the jury was whether the killing was "cold blooded" or "hot blooded." Was it an "intentional killing" that was "willful, deliberate [or] premeditated," or did [Clancy] act out of "a sudden and intense passion resulting from serious provocation"? 18 Pa.C.S. §§ 2502, 2503. Given the volume of evidence in this case, it cannot be said that using a figure of speech, "cold blooded," to describe what the Commonwealth argued was a deliberate killing was prejudicial in this case.
Id. at 45-46 (citation modified). The PCRA court concluded that, because the evidence *52of his guilt was "overwhelming," Clancy had not been prejudiced by the prosecutor's remarks. Id. at 46.
In a unanimous, unpublished decision, the Superior Court affirmed the PCRA court's order denying Clancy's PCRA petition. Commonwealth v. Clancy , 1037 WDA 2016,
We granted Clancy's Petition for Allowance of Appeal, rephrasing the issues for review as follows:
(1) Where, in closing argument, the district attorney characterized [Clancy] as a "cold blooded killer" and a "dangerous man," did the district attorney violate the ruling of this Court announced in Commonwealth v. Capalla ,, 322 Pa. 200 , 205 (1936) ? 185 A. 203
(2) Were the district attorney's characterizations of [Clancy] during closing argument permissible oratorical emphasis consistent with Pennsylvania Rules of Professional Conduct 3.4(c) and [American Bar Association ("ABA") ] Standards for Criminal Justice 3-5.8?4
Commonwealth v. Clancy ,
In order to determine the point at which a prosecutor's statements exceed these bounds, we first must review the role of the prosecutor. We have long understood that the prosecutor's role is threefold; she serves as an "officer of the court," as an "administrator of justice," and as an "advocate." Commonwealth v. Starks ,
As an officer of the court, the prosecutor has the responsibility to serve the public interest and to "seek justice within the bounds of the law, not merely to convict." Starks ,
*53Pa.R.P.C. 3.8 cmt. 1; see also MODEL RULES OF PROF'L CONDUCT 3.8 cmt. 1 ( AM. BAR ASS'N 2015) ("ABA Model Rules").
As an "administrator of justice," the prosecutor has the power to decide whether to initiate formal criminal proceedings, to select those criminal charges which will be filed against the accused, to negotiate plea bargains, to withdraw charges where appropriate, and, ultimately, to prosecute or dismiss charges at trial. See, e.g. , 16 P.S. § 1402(a) ("The district attorney shall sign all bills of indictment and conduct in court all criminal and other prosecutions...."); Pa.R.Crim.P. 507 (establishing the prosecutor's power to require that police officers seek approval from the district attorney prior to filing criminal complaints); Pa.R.Crim.P. 585 (power to move for nolle prosequi ); see also ABA Standards §§ 3-4.2, 3-4.4. The extent of the powers enjoyed by the prosecutor was discussed most eloquently by United States Attorney General (and later Supreme Court Justice) Robert H. Jackson. In his historic address to the nation's United States Attorneys, gathered in 1940 at the Department of Justice in Washington, D.C., Jackson observed that "[t]he prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous." Robert H. Jackson, The Federal Prosecutor , 31 AM. INST. CRIM. L. & CRIMINOLOGY 3, 3 (1940).
As an advocate, the prosecutor generally is free to "[assert] the client's position under the rules of the adversary system."
A lawyer shall not ... when appearing before a tribunal, assert the lawyer's personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but the lawyer may argue, on the lawyer's analysis of the evidence, for any position or conclusion with respect to the matters stated herein....
Pa.R.P.C. 3.4(c). Moreover, Section 3-6.8 of the ABA Standards states that:
(a) In closing argument to a jury (or to a judge sitting as trier of fact), the prosecutor should present arguments and a fair summary of the evidence that proves the defendant guilty beyond reasonable doubt. The prosecutor may argue all reasonable inferences from the evidence in the record, unless the prosecutor knows an inference to be false. The prosecutor should, to the extent time permits, review the evidence *54in the record before presenting closing argument. The prosecutor should not knowingly misstate the evidence in the record, or argue inferences that the prosecutor knows have no good-faith support in the record. The prosecutor should scrupulously avoid any reference to a defendant's decision not to testify.
(b) The prosecutor should not argue in terms of counsel's personal opinion, and should not imply special or secret knowledge of the truth or of witness credibility.
(c) The prosecutor should not make arguments calculated to appeal to improper prejudices of the trier of fact. The prosecutor should make only those arguments that are consistent with the trier's duty to decide the case on the evidence, and should not seek to divert the trier from that duty.
(d) If the prosecutor presents rebuttal argument, the prosecutor may respond fairly to arguments made in the defense closing argument, but should not present or raise new issues. If the prosecutor believes the defense closing argument is or was improper, the prosecutor should timely object and request relief from the court, rather than respond with arguments that the prosecutor knows are improper.
ABA Standards § 3-6.8.
Moreover, in consideration of their broad powers and discretion, prosecutors are required to fulfill certain special responsibilities, such as disclosing exculpatory information to the defense. See Pa.R.P.C. 3.8(d) ; Brady v. Maryland ,
*55Commonwealth v. Cicere ,
While the prosecutor must be mindful of the foregoing principles at every stage of a criminal trial, this Court has focused upon prosecutorial conduct during closing argument as "a matter of special concern because of the possibility that the jury will give special weight to the prosecutor's arguments, not only because of the prestige associated with his office, but also because of the fact-finding facilities presumably available to him." Commonwealth v. Cherry ,
In 1916, this Court decided Commonwealth v. Ronello ,
Twenty years later, in the seminal case of Commonwealth v. Capalla , this Court built upon Ronello and, for the first time, established definitive limits to permissible prosecutorial statements. In Capalla , the defendant was on trial for murder, but he maintained that he shot the victim in self-defense. During closing argument, the prosecutor called the defendant "a cold blooded killer." See Capalla ,
It is no part of a district attorney's duty, and it is not his right, to stigmatize a defendant. He has a right to argue that the evidence proves the defendant guilty as charged in the indictment, but for the district attorney himself to characterize the defendant as 'a cold blooded killer' is something quite different. No man on trial for murder can be officially characterized as a murderer or as 'a cold blooded killer,' until he is adjudged guilty of murder or pleads guilty to that charge.... [The prosecutor's] statement was equivalent to an expression of belief on the part of the district attorney that the defendant was guilty of murder in the first degree. There are no facts in the record warranting any such belief on the part of any one, and even if there were, the first officials who had the right to give expression to that belief were the jurors after the case was committed to their keeping.
The Capalla Court did not discuss the prosecutor's role as an advocate, focusing *56little attention upon the concern of other courts at the time that, in the words of Judge Learned Hand, "[t]o shear [the prosecutor] of all oratorical emphasis, while leaving wide latitude to the defense, is to load the scales of justice." Di Carlo v. United States ,
In decisions following Capalla , we displayed little tolerance for terms that, in the view of this Court, amounted to an expression of the prosecutor's personal belief about the defendant's guilt. In Commonwealth v. Lipscomb ,
We have since reinforced the principles that animated Capalla with our disciplinary rules and our citation of the ABA Standards on prosecutorial conduct. See Commonwealth v. Cronin ,
With regard to other types of remarks, however, we evaluated prosecutorial misconduct claims in the context of 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.
Commonwealth v. Stoltzfus ,
In M. Johnson , the defendant asserted that, in drawing comparisons between the defendant and witnesses who had lied at trial, the prosecutor impermissibly expressed his belief in the defendant's guilt. M. Johnson ,
A prosecutor, of course, must have reasonable latitude in presenting his case and must be free as well to make his arguments with logical force and vigor. In addition, we have ruled consistently that not every intemperate or improper remark by the prosecution requires a new trial.
On the other hand, we have decided with equal clarity that there are lines of permissible conduct which cannot be crossed in the interests of basic fairness and justice. Because a jury tends to attach special importance to the Commonwealth's arguments, we are compelled to guard against utterances which unduly inflame and prejudice those members.
Id. at 996 (internal citations and quotation marks omitted). Addressing the substance prong of the two-part analysis, we explained that "we have drawn the first and brightest line at the point where the language and inferences of the summation no longer relate back to the evidence on the record." Id. We also recognized that, "[w]ithin this broad context, of course, we also permit prosecutorial comment which has been inspired by the improper closing arguments of defense counsel." Id. ; see Perkins ,
Similarly, in Commonwealth v. D'Amato ,
Before we leave the subject matter of prosecutorial misconduct, we note that, while [the prosecutor's] conduct and arguments did not rise to the level that would unduly prejudice [the defendant] or deprive him of a fair trial, we are troubled by some of her remarks and comments, particularly ... the "executioner" remark. As an officer of the court and an instrument of the criminal justice system, the prosecutor's duty is to seek justice, not simply convictions. The prosecutor's conduct at trial must be tempered by this dual responsibility. We will not hesitate, in appropriate cases, to refer matters of improper trial conduct of either the defense attorney or the prosecutor to the disciplinary board where the record suggests that the Code of Professional Responsibility may have been transgressed.
Id. at 314 (emphasis omitted).
In Commonwealth v. J. Johnson ,
To reiterate, we conclude only that because of the unusual circumstances presented in the instant case, the prosecutor's comments were neither unfair nor prejudicial. In so holding, we do not wish to sanction the use of the terms, "you lied." A prosecutor must act properly during the entire trial. His or her conduct during trial should neither be vindictive nor should he or she attempt in any manner whatsoever to influence the jury by arousing their prejudices.
Id. at 1308. Although we did not focus solely upon the substance of the remark, as we had in Capalla , we recognized that the prosecutor's responsibilities as an officer of the court take precedence over her duties as an advocate. Thus, our decisions in M. Johnson , D'Amato , and J. Johnson conveyed an unequivocal message to prosecutors that, even where misconduct might not result in a mistrial per se , this Court will not ignore instances in which a prosecutor violates her duties as a representative of this Commonwealth by utilizing epithets and personal assertions of belief during closing argument. At the same time, however, we recognized that prosecutors may be afforded some leeway in responding to defense counsel's arguments.
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, as in Capalla . 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.
In Hall , for example, a capital murder case, we evaluated the prosecutor's statements that "the only thing colder than the grave of [the victim] is [the defendant's] heart" and that, after shooting a store clerk in the head, the defendant "walked out coolly, calmly, and collected, with a .357 revolver waving at patrons in the store." Hall ,
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.
*61In Chamberlain , a murder case, the defendant claimed that he was innocent in the murder of his wife, and that the real killer framed him by committing the murder on the day that Chamberlain's wife would have been eligible for a no-fault divorce. Chamberlain ,
We first reiterated that, "[a]lthough a prosecutor may argue to the jury that the evidence establishes the defendant's guilt, arguments from personal opinion as to the guilt of the accused are not proper."
[T]he prosecutor did not merely label [Chamberlain] a murderer. Rather, he argued that the evidence and the reasonable inferences therefrom led to the conclusion that [Chamberlain] was a murderer. By asserting that the evidence led to the conclusion that [Chamberlain] was guilty, the prosecutor did not advocate his personal belief of [Chamberlain'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.
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 in Capalla 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 *62prosecutor's closing argument, requires clarification.
Since Capalla , this Court and others have sought to strike a fair balance between the prosecutor's rights and responsibilities during closing argument.
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. See, e.g. , M. Johnson ,
The substance prong requires a court to examine the challenged remark in the context of the issues presented at trial. See D'Amato ,
However, "there is no per se rule which requires the grant of a new trial whenever the district attorney acts improperly." M. Johnson ,
[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.
Stoltzfus ,
Having clarified the applicable test for evaluating prosecutorial statements, we now turn to the instant case. When reviewing a denial of PCRA relief, we must determine whether the PCRA court's factual findings are supported by the record, and whether its conclusions of law are free from legal error. Commonwealth v. Williams ,
[T]o obtain relief under the PCRA based on a claim of ineffectiveness of counsel, PCRA petitioner must satisfy the performance and prejudice test set forth in Strickland . In Pennsylvania, we have applied the Strickland test by requiring a petitioner to establish that: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's action or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's error, with prejudice measured by whether there is a reasonable probability that the result of the proceeding would have been different. Commonwealth v. Pierce ,, 567 Pa. 186 , 213 (2001). Counsel is presumed to have rendered effective assistance, and, if a claim fails under any required prong of the Strickland test, the court may dismiss the claim on that basis. Commonwealth v. Ali , 786 A.2d 203 , 608 Pa. 71 , 291 (2010). 10 A.3d 282
Commonwealth v. VanDivner , --- Pa. ----,
In rejecting Clancy's argument that Capalla compels a finding that the "cold blooded killer" remark was reversible error, the PCRA court opined that our decisions in Chamberlain and Hall "modified" Capalla "sub silentio." See PCRA Ct. Op. at 13. The PCRA court determined that, because the prosecutor's characterization of Clancy during closing argument as a "dangerous man" and a "cold blooded killer" was permissible oratorical flair, Clancy's ineffective assistance of counsel claim lacked arguable merit. Id. at 14. Significantly, inasmuch as Clancy raises his argument in the context of an ineffective assistance of counsel claim, our inquiry focuses upon whether Attorney Valsamidis should have objected to the prosecutor's remarks.
Because Clancy specifically challenges the permissibility of the "cold blooded killer" remark pursuant to Capalla , we begin our analysis there. In 1936, the Capalla Court held that the prosecution's characterization of the defendant as a "cold blooded killer" constituted an impermissible expression of belief, reasoning that it was the role of the jury to determine guilt. Capalla ,
However, in Hall , we held that the prosecutor's reference to the defendant's "cold heart" was permissible. See Hall ,
*65Consistent with our clear departure from Capalla 's rigid standard, and mindful of our concomitant allowance of oratorical flair, we hold that offense-centric statements generally are permissible. These are statements that speak to the elements of the particular charges levelled against the defendant and the evidence necessary to prove those elements at trial, such as those at issue in Hall and Chamberlain . The prosecutor must be free to argue that the facts of record establish every element of the crime charged, and must be free to respond fairly to the arguments of the defense. Thus, we should not preclude or condemn a prosecutor's characterizations of the defendant that are both based upon the record and that inherently inform elements of an offense at issue, especially where the remarks constitute a fair response to defense counsel's argument. However, when statements deteriorate into impermissible characterizations and inflammatory name-calling that are divorced from the record or irrelevant to the elements of the crime at issue, they are substantially unwarranted and must be scrutinized for prejudicial effect.
In the instant case, the Commonwealth sought a conviction for first-degree murder. Thus, the prosecutor had to prove both that Clancy killed Rigins and that he did so with specific intent to kill. See 18 Pa.C.S. § 2502(a) ; Commonwealth v. Simpson ,
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. See, e.g. , Commonwealth v. Mattison ,
The facts of the instant case are analogous to those in Hall , in which we evaluated the prosecutor's reference to the defendant's "cold heart." Hall ,
Finding that the prosecutor's statements had a reasonable evidentiary foundation, we now inquire as to whether those statements facilitate "the trier's duty to decide the case on the evidence." ABA Standards § 3-6.8(c). The sole issue before the jury was whether Clancy killed Rigins intentionally or whether Rigins had provoked him. See 18 Pa.C.S. §§ 2502(a), 2503. As the PCRA court observed, the term "in cold blood" denotes willfulness and premeditation, the state of mind required for a first-degree murder conviction. PCRA Ct. Op. at 13; see Cold Blood , BLACK'S LAW DICTIONARY (10th ed. 2014) ("A killer's state of mind when committing a willful and premeditated homicide < a shooting in cold blood>"). Similarly, the term "dangerous" is understood as "likely to cause serious bodily harm," which speaks to specific intent to kill. See Dangerous , BLACK'S LAW DICTIONARY (10th ed. 2014). Moreover, as the PCRA court noted, "to contrast a pair of euphemisms, the question before the jury was whether the killing was 'cold blooded' or 'hot blooded.' " PCRA Ct. Op. at 45. In light of the theory advanced by the defense-that Clancy, enraged by losing *67the fight with Rigins, indiscriminately shot his gun in anger-the challenged remarks were a fair response to the defense argument that Clancy had killed Rigins in the heat of passion. See J. Johnson ,
In light of the foregoing, we find that Clancy's ineffectiveness claim lacked arguable merit. Pursuant to the two-part test that this Court adopted over forty years ago, the prosecutor's remarks were permissible in the particular, developed context of Clancy's trial.
We caution that our holding in this case should not be understood as a rubber stamp or seal of approval upon a prosecutor's use of invective or derogatory epithets masquerading as reasonable and relevant inferences. Today, we pay respect both to Judge Hand's concern that we not deprive the prosecutor "of all oratorical emphasis," Di Carlo ,
We recognize as well the validity of the concerns expressed on prior occasions by Chief Justice Saylor, who has opined that "justice would be better served if the Court were to enforce a higher standard of professionalism and caution prosecutors to restrain themselves" by "confin[ing] themselves more closely to the evidence and the applicable law both in the presentation of evidence and in arguments to jurors." Burno ,
This analysis must extend beyond a cursory or perfunctory review of the *68record. For example, in a case in which the crime at issue does not require a showing of specific intent, a prosecutor's reference to the defendant as "cold blooded" would likely not be permissible, regardless of how much evidence on the record supports the statement. Similarly, it may not be proper to refer to a defendant as a "cold blooded killer" where the defense's argument does not warrant that reference. For example, where the defense in a first-degree murder trial is mistaken identity, rather than heat-of-passion, the term "cold blooded killer" may not be appropriate. Prosecutorial remarks do not constitute permissible oratorical flair simply because they are based upon the underlying facts of the case or because they relate to an underlying element of the crime. Both requirements must be met. To fulfill his duty as an advocate, a prosecutor has numerous tools in his arsenal. Recourse to inappropriate invective is not one of them.
For the foregoing reasons, we affirm the Superior Court's order.
Chief Justice Saylor and Justices Baer, Todd, Dougherty and Mundy join the opinion.
Justice Donohue files a concurring opinion.
Notes
Relevant to the appeal before us today, Clancy raised the following issues in his Pa.R.A.P. 1925(b) statement:
1. Did the PCRA Court commit an error by concluding that the Assistant District Attorney did not merely label the defendant as a murderer and in further finding that his statements regarding the defendant as being a cold blooded killer were not the actions of the prosecutor in advocating his personal belief of the defendant's guilt and was counsel therefore ineffective for failing to object to such testimony?
2. Whether the PCRA court committed an error in dismissing the case of Commonwealth v. Capalla ,, 322 Pa. 200 (1936) [,] as being inapplicable to this case and, as having been modified "sub silentio"? 185 A. 203
* * *
6. Was trial counsel ineffective by failing to object to the conduct of the prosecutor who, during closing arguments, opening statements[,] and other portions of the trial made objectionable statements and elicited evidence which constituted improper statements and/or statements of personal beliefs on behalf of the prosecutor?
Concise Statement, 8/5/2016 (citation modified).
The PCRA court explained that:
[W]e apply a three-pronged test for determining whether trial counsel was ineffective, derived from our application in Commonwealth v. Pierce ,, 515 Pa. 153 , 975 (1987), of the performance and prejudice test articulated by the United States Supreme Court in Strickland v. Washington , 527 A.2d 973 , 466 U.S. 668 , 104 S.Ct. 2052 (1984). The Pierce test requires a PCRA petitioner to prove: (1) the underlying legal claim was of arguable merit; (2) counsel had no reasonable strategic basis for his action or inaction; and (3) the petitioner was prejudiced-that is, but for counsel's deficient stewardship, there is a reasonable likelihood the outcome of the proceedings would have been different. Pierce , 80 L.Ed.2d 674 . If a petitioner fails to prove any of these prongs, his claim fails. Moreover, counsel is presumed to be effective, and a petitioner must overcome that presumption to prove the three Strickland /Pierce factors. 527 A.2d at 975
PCRA Ct. Op. at 5-6 (quoting Commonwealth v. Simpson ,
In evaluating the permissibility of the prosecutor's statements, the PCRA court did not specifically discuss the "dangerous man" comment. See PCRA Ct. Op. at 7-17. Rather, the court addressed that statement generally within a list of comments that Clancy challenged. Id. at 10.
Clancy refers to Section 5.8 of the first edition of the ABA Standards, which most closely corresponds to Section 6.8 of the most recent edition, entitled "Closing Arguments to the Trier of Fact." Compare Criminal Justice Standards for the Prosecution Function § 3-5.8 ( Am. Bar Ass'n 1971) with Criminal Justice Standards for the Prosecution Function § 3-6.8 ( Am. Bar Ass'n 2015) ("ABA Standards").
In Starks , this Court noted that, "[w]ith respect to the closing argument of the lawyer for the Commonwealth, we have expressly adopted the rationale of the [ABA Standards]." Starks ,
Over the course of his career, Justice Robert Jackson developed ample perspective on the power vested in the prosecutor. Not only did Justice Jackson serve as the Attorney General of the United States, but he later would interrupt his service as a Justice on the High Court in order to serve at President Truman's request as Chief United States Prosecutor at the Nuremberg Trials, where he prosecuted Nazi war criminals. See generally Henry T. King, Jr., Robert Jackson's Vision for Justice and Other Reflections of a Nuremberg Prosecutor , 88 GEO. L.J. 2421, 2423 (2000).
See also Pa.R.P.C. 3.3 (providing that all attorneys have a duty of candor toward a tribunal, must disclose adverse legal authority to the tribunal, and must not offer evidence that the attorney knows to be false).
Rule 3.8 of Pennsylvania's Rules of Professional Conduct states that:
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for, obtaining counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and
(e) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule. Pa.R.P.C. 3.8.
See Capalla ,
Specifically, we stated that:
Our decisions in the cases cited above [e.g. , Lipscomb ] were declaratory of Disciplinary Rule DR 7-106(C)(4) of the Code of Professional Responsibility, which provides: '(C) In appearing in his professional capacity before a tribunal, a lawyer shall not: ... (4) Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, [o]r as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.'438 Pa. xxv , ci-cii (1970) (emphasis supplied). See also American Bar Association Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function, 5.8(b) (Approved Draft, 1971).
Cronin ,
See, e.g., Commonwealth v. Meyers ,
See also Commonwealth v. M. Johnson ,
See, e.g., Commonwealth v. Gilman ,
During closing argument, the prosecutor stated that:
They have been found guilty in any event. However, I cannot pick and choose my witnesses. Sure, I would like to have law-abiding citizens as witnesses. The problem is that crimes usually aren't committed in front of law-abiding citizens. It is other criminals who see crimes committed. They are the ones who see the crimes. Robert Ahlborn and Scott Dunn, they are criminals. They have lied. The defendant, Michael Johnson, is their friend. What does that tell you about Michael Johnson? Ask yourselves that. Who do criminals associate with?
M. Johnson ,
The prosecutor stated:
[F]or the time we have been here together, hearing this evidence, we've been in the presence of a murderer.
* * *
Say to him, when you will come back, through your foreperson, and then as I called upon you earlier, each and every one of you to rise, as is your duty, say to him that beyond any reasonable doubt, the law, when applied to the facts in this case, says to him what [the victim] said that night. What his heart, violence and motive, horror and ability and willingness and awesome lack of concern for anybody by his own evil deed, say to him, say to him what I say now, that when you rise you will announce before God and this court and us that you, Terry Chamberlain, are guilty of taking human lives. You're guilty of murder. You are a murderer.
Chamberlain ,
See, e.g. , Rory K. Little, The ABA's Project to Revise the Criminal Justice Standards for the Prosecution and Defense Functions , 62 HASTINGS L.J. 1111, 1113 (2011) (noting that "[b]alanced representation is the goal" of the ABA Standards for Criminal Justice).
In her Concurring Opinion, Justice Donohue cogently argues that this Court's standard for evaluating claims of prosecutorial misconduct has grown too permissive, and that we should return to our approach in Capalla . However, Justice Donohue readily concedes that "our more recent cases have largely abandoned the sound principles set forth in [Capalla ]." Concurring Opinion (Donohue, J.) at 70. Although we appreciate the concerns that Justice Donohue has articulated, to view the instant case as merely a straightforward application of Capalla would require us to overlook, if not expressly overrule, volumes of binding precedent developed through the intervening decades. Rather than providing an "apologia" for the asserted flaws of our jurisprudence, as Justice Donohue deems this Opinion, id. at 72, we simply have sought herein to summarize and apply the law as it exists today, particularly as viewed through the lens of a claim asserting the ineffectiveness of counsel-a claim which "must be judged under the existing law at the time of trial" because "counsel cannot be deemed ineffective for failing to predict future developments or changes in the law." Commonwealth v. Spotz ,
Although we offer no specific example, we do not foreclose the possibility that a prosecutor's comment may relate to an element of a charged offense and the evidence offered in support thereof, but nonetheless be "intemperate, uncalled for and improper," Stoltzfus ,
Although Justice Donohue similarly acknowledges that our later decisions departed from our approach in Capalla , she nonetheless maintains that Capalla "remained good law in this Commonwealth" until today's decision, which she characterizes as overruling Capalla for the first time. Concurring Opinion (Donohue, J.) at 71 n.5. To the contrary, herein we simply recognize what already is manifest in our jurisprudence-a clear inconsistency between Capalla and our more recent, binding precedent.
In Hall , the prosecutor argued in closing as follows:
And about this defendant, to understand his mindset, again, to get into his mind as to how he acted when he shot and killed [the victim], we also must look at what he did after.... After he was laughing, joking, showing guns, hey, you like this, he went back to Philly, he went back to McDonald's, he ate, went home, and then he went to visit his daughter. After he shot and killed a man, just went about as in every other perfect normal day. That tells you tons about his mind, what was in it.
Ladies and gentlemen, I submit to you we have proven our case beyond a reasonable doubt. 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.
Hall ,
Although placing numerous other remarks at issue before the lower courts (e.g. , "cowardly killing," "snitch-free mentality"), Clancy exclusively calls for this Court to review the prosecutor's characterization of Clancy as a "dangerous man" and a "cold blooded killer." Therefore, we do not opine upon the propriety of any other aspect of the prosecutor's closing argument. To be clear, we do not intend for this decision to foreclose future challenges to prosecutorial conduct similar to those discussed, but not evaluated, herein.
Concurrence Opinion
In 1936, this Court roundly condemned a prosecutor's reference to a criminal defendant in closing argument as a "cold blooded killer." Commonwealth v. Capalla ,
Today, in sharp contrast, the learned Majority permits, and perhaps even encourages, a prosecutor's use of precisely the same epithet ("cold blooded killer") that we denounced in Capalla . According to the Majority, our law in this area has "evolved,"
I take issue with both of these contentions. With respect to the first, I disagree *69with the Majority's repeated references to prosecutors as "zealous advocates." This Court has emphasized that because prosecutors, unlike private attorneys, have the added responsibility of a "minister of justice," there are limits to the adversarial nature of their conduct. See e.g. , Commonwealth v. Eskridge ,
More importantly, I do not perceive any shift over time in a prosecutor's ability to advocate forcefully on behalf of the Commonwealth during closing argument. As early as 1901, this Court observed that upon determining that the accused is guilty of the crime charged, the prosecutor should "lead [the jury] to [its] own judgment by pointing out to them, intelligently and impartially, the evidence which cannot fairly justify any other conclusion." Commonwealth v. Bubnis ,
*70Moreover, "flair" is defined as "a skill or instinctive ability to ... make good use of something." https://www.merriam-webster.com/dictionary/flair. There is no skill or instinctive ability involved with name-calling. Indeed, it is the antithesis of oratorical flair.
I likewise disagree with the Majority's insistence that this Court now permits "harsh characterizations of the defendant" because, over time, we have placed an increased emphasis on whether such remarks have the "unavoidable effect" of prejudicing the jury's ability to consider the evidence objectively.
Contrary to the Majority's assertion, the Court in Capalla did in fact place an emphasis on unavoidable prejudice. We cited to Commonwealth v. Ronello ,
While I disagree with its reasons, I must concede the result of the Majority's analysis-that our more recent cases have largely abandoned the sound principles set forth in Capalla . As the Majority indicates, the law began its regrettable turn in Commonwealth v. D'Amato ,
*71Following D'Amato , we completed our abandonment of Capalla in Commonwealth v. Chamberlain ,
The precedential basis for our ruling in Chamberlain was not clear. We cited to, inter alia, Capalla for the proposition that "a prosecutor may argue to the jury that the evidence establishes the defendant's guilt."
Today the Majority makes clear that the laudatory core principles of Capalla are no longer in vogue.
In my view, this Court's rejection of Capalla is most unfortunate for several reasons. The personal opinions of prosecutors, expressed in epithets hurled at criminal defendants, are neither evidence that the jury may consider in reaching its verdict nor reasonable inferences from the evidence of record.
The use of epithets is, of course, "beyond the scope of fair play" because it is highly prejudicial to the defendant's right to a fair trial. The personal opinions of a prosecutor may well take on overarching significance to the jury, as he or she is a representative of the Commonwealth (and, indeed, of the people of the Commonwealth). When a prosecutor resorts to name-calling, he or she abandons the role of a minister of justice with its concomitant obligation to see that justice is not compromised in an effort to obtain convictions. See, e.g. , Commonwealth v. Collins ,
This Court has made clear that "the prosecuting attorney enjoys an office of unusual responsibility, and that his trial conduct should never be vindictive or attempt in any manner to influence the jury by arousing their prejudices.'" Starks ,
In my view, the prosecutor's accusation that Clancy is a "dangerous man" and a "cold blooded killer" was also prejudicial in another way. These terms are not appropriately limited in the scope of their reference, as they suggest not merely that Clancy killed the victim in this case, but rather that he is the type of person who is capable of killing more generally, and without remorse or feeling. An "epithet" is a term that "expresses a quality or attribute regarded as characteristic of the person or thing mentioned." https://en.oxforddictionaries.com/definition/epithet. In other words, name-calling constitutes a statement of personal opinion by the prosecutor on the character of the defendant - in this case, a statement on Clancy's propensity for dangerousness and violence. By effectively overruling Capalla , the Majority allows prosecutors to surreptitiously introduce propensity evidence in contravention of Pa.R.E. 404, and to do so without the introduction of any character evidence at trial.
Perhaps it is true that when this Court decided Capalla in 1936, public discourse was more genteel than the crassness routinely encountered today. Such does not, however, provide any reason why we should abandon the reasonable and sound principles for the behavior of prosecutors we adopted in Capalla . To the contrary, it constitutes good reason for demanding greater adherence to these principles - to keep today's baseness and crassness out of our courtrooms, allowing juries to decide cases based solely upon the evidence. We should expect more from prosecutors, not less. Because the Majority plainly does not, I cannot join its decision.
What the Majority describes is a degeneration of the law, not an evolution.
The Majority represents that in Commonwealth v. Starks ,
In further support of its contention that prosecutors are "zealous advocates," the Majority also cites to the preamble to the Rules of Professional Conduct, which provides that as an advocate, a lawyer may "zealously assert the client's position under the rules of the adversary system." Pa.R.P.C. Preamble [2]. This provision, however, describes the functions of lawyers generally, not those of prosecutors. The relevant provision of the Rules of Professional Conduct for prosecutors is Rule 3.8 ("Special Responsibilities of a Prosecutor"), which does not contain any reference to "zealous" advocacy.
While the Majority identifies Commonwealth v. Stoltzfus ,
Unlike the Majority, I do not consider our decision in Commonwealth v. Hall ,
I cannot agree with the Majority's contention that it is merely summarizing and applying the law "as it exists today." Majority Op. at 62 n.17. I likewise cannot agree with the Majority's decision to condone (indeed, approve of) the prosecutor's bad behavior here on the highly questionable ground that Clancy's counsel's failure to object is excused because he could not be expected to "predict future developments or changes in the law."
Until today, despite our unfortunate decisions in D'Amato and Chamberlain , Capalla remained good law in this Commonwealth, and it required no predictions of future developments or changes in the law for a prosecutor to know that stigmatizing a defendant by calling him a "cold blooded killer" was not permitted. When the prosecutor in this case called Clancy a "cold blooded killer," Capalla expressly and emphatically forbade the use of precisely this epithet. Even in Chamberlain , we cited to Capalla with approval. It is today's decision that, for the first time, overrules Capalla , freeing prosecutors to call defendants "cold blooded killers" in their closing arguments in this and future cases.
One federal court has cogently explained that name-calling results in an especially pernicious form of prejudice:
This type of shorthand characterization of an accused, not based on evidence, is especially likely to stick in the minds of the jury and influence its deliberations. Out of the usual welter of grey facts it starkly rises - succinct, pithy, colorful, and expressed in a sharp break with the decorum which the citizen expects from the representative of his government.
Hall v. United States ,
According, I concur only in the result reached by the Majority, namely its affirmance of the Superior Court's determination that Clancy has not established a claim of ineffective assistance of counsel. At the evidentiary hearing on Clancy's PCRA petition, PCRA counsel testified that he intentionally did not object to the prosecutor's name-calling because, in his view, it made the prosecutor come across as "combative or dislikable [sic] and almost desperate at times, because ... some of the things that you just referenced weren't supported by the facts, and I felt that he was hanging onto calling him names, referencing how he's a killer." N.T., 2/26/2016, at 56-57. Based upon this unrebutted testimony, Clancy failed to satisfy the second required element for an ineffectiveness claim - that "counsel had no reasonable strategic basis for his action or inaction." See, e.g., Commonwealth v. Pierce ,