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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 SHAWN BENDER                             :   No. 2531 EDA 2019

            Appeal from the PCRA Order Entered August 5, 2019
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0013839-2008


BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                               FILED JUNE 16, 2020

      The Commonwealth appeals from the August 5, 2019 Order entered in

the Philadelphia Common Pleas granting Appellee, Shawn Bender (“Bender”),

a new trial based on an ineffective assistance of counsel claim pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–46. After careful

review, we conclude that the PCRA court properly granted Bender a new trial

because his trial counsel provided ineffective assistance when counsel failed

to request a jury instruction for the lesser-included offense of Involuntary

Manslaughter during Bender’s trial for Murder and related charges.         We,

therefore, affirm the PCRA court's grant of a new trial.

      Bender’s arrest and conviction stem from a deadly car crash that

occurred in Philadelphia during the early morning hours of July 16, 2008,

which resulted in the deaths of Charles Johnson (“Johnson”) and Bender’s

fourteen-month-old daughter, Sharissa Bender (“Baby”). A prior panel of this
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Court set forth a detailed recitation of the events leading up to the crash,

which we adopt for purposes of this appeal. Commonwealth v. Bender, No.

105 EDA 2011, unpublished memorandum at *2-5 (Pa. Super. filed January

4, 2012). We provide the following details relevant to this appeal. On the

evening in question, an escalating conflict between Bender and Baby’s mother,

Jaleesa Hall (“Mother”), resulted in Bender threatening that Mother would

never see Baby again and brandishing something wrapped in fabric that

appeared to be a gun. Mother and Baby entered a car driven by Johnson and

proceeded to drive away while Bender was screaming and yelling. Bender

pursued Johnson’s car at a high rate of speed. Multiple witnesses saw Bender

drive erratically, run red lights, and hit Johnson’s car from behind several

times. Eventually, Johnson’s car crashed into a concrete barrier and burst

into flames. None of the passengers in Johnson’s car could recall the moment

of impact, but an accident reconstruction expert concluded that Bender’s car

hit Johnson’s car and began riding, or pushing, the car at a high rate of speed

so that Johnson was no longer in control of the car and crashed.         Police

recovered a black semi-automatic from Bender’s car, and a small caliber

handgun from Johnson’s car.

      Johnson and Baby both died as a result of the injuries they sustained in

the crash, while Mother and two additional passengers, Mother’s sister

(“Sister”) and cousin (“Cousin”), sustained life-threatening injuries. Bender

did not suffer serious injuries.




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      Appellant was subsequently charged with multiple counts of First-

Degree Murder, Third-Degree Murder, Attempted Murder, Aggravated Assault,

Recklessly Endangering Another Person (“REAP”), and Carrying a Firearm

Without a License in Philadelphia. Bender was not charged with Homicide by

Vehicle.

      At Bender’s four-day trial, the Commonwealth presented evidence to

prove the above-stated facts. Relevant to this appeal, Bender testified on his

own behalf and presented a different version of events.       See N.T. Trial,

2/25/10, at 18-39. In sum, Bender testified that Cousin called him to come

pick up Mother and Baby. Id. at 23. When he arrived, he saw Mother and

Baby inside Johnson’s car, and became concerned for Baby’s safety because

Baby was not in her car seat, which was in his car. Id. at 23-25. Bender

denied both threatening anyone and brandishing a weapon. Id. at 27-28.

Bender explained that he followed Johnson because he was concerned for

Baby’s safety, and wanted Baby to sit in a car seat. Id. at 28-30, 33. Bender

admitted that his car made contact with Johnson’s car twice; one time was

accidental and one time was to get Johnson’s attention to pull over because

Bender’s horn did not work. Id. at 31-35. Bender testified that he was also

trying to call Mother on his cell phone but the phone was not working, and

after the second tap on Johnson’s car, he dropped his cell phone, hit his head

on the steering wheel, and his vision was blurry. Id. Bender testified that,

at the time, he did not think he was doing anything wrong and was only

intending to get Johnson’s attention and ensure that Baby was safe. Id. at

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38-39. Bender denied hitting Johnson hard and said, even though they were

both driving at a high rate of speed, he was only trying to catch up to Johnson’s

car and lightly tap it from behind. Id. at 69-70.

        Bender’s trial counsel, Gary M. Feldman, Esq., asked the court to give a

jury instruction for Homicide by Vehicle, arguing that Bender’s actions were

reckless, but not with the “intent of being purposeful.” N.T. Trial, 2/24/10, at

192-197. The trial court denied the request for the jury instruction because

the Commonwealth had not charged Bender with that offense. Id. However,

at Attorney Feldman’s request, the trial court did take judicial notice of the

Homicide by Vehicle statute and allowed Attorney Feldman to read the statute

into the record.1 N.T. Trial, 2/25/10, at 85.

        During closing argument, Attorney Feldman argued to the jury that they

should not find Bender guilty of First-Degree Murder, which requires intent to

kill,   or   Third-Degree      Murder,     which   requires   malice;   rather,   the

Commonwealth should have charged Bender with Homicide by Vehicle, which

requires a mens rea of recklessness or negligence. N.T. Trial, 2/25/10, at

115-20.      Attorney Feldman argued that Bender did not have the intent to
____________________________________________


1 The Vehicle Code defines Homicide by Vehicle as follows: “Any person who
recklessly or with gross negligence causes the death of another person while
engaged in the violation of any law of this Commonwealth or municipal
ordinance applying to the operation or use of a vehicle or to the regulation of
traffic except section 3802 (relating to driving under influence of alcohol or
controlled substance) is guilty of homicide by vehicle, a felony of the third
degree, when the violation is the cause of death.” 75 Pa.C.S. § 3732(a).




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cause Johnson and Baby’s death and that his actions might have been reckless

or negligent, but lacked “malice,” which he explained was, “cruelty, coldness

of heart, wickedness to cause this accident.” Id.

        Attorney Feldman did not request a jury instruction for the lesser-

included offense of Involuntary Manslaughter, which, discussed infra, would

have required the jury to find that Bender acted recklessly or in grossly

negligent manner.

        On February 26, 2010, a jury returned a verdict of guilty on two counts

of Third-Degree Murder, three counts of Attempted Murder, three counts of

Aggravated Assault, REAP, and Carrying Firearms Without a License in

Philadelphia.2 That same day, the court sentenced Bender to a mandatory

term of life imprisonment, pursuant to 42 Pa.C.S. § 9715, for the second of

his two convictions of Third-Degree Murder.

        This Court affirmed his Judgement of Sentence, and the Pennsylvania

Supreme      Court    denied     allocatur     on   September   14,   2012.   See

Commonwealth v. Bender, No. 105 EDA 2011 (Pa. Super filed January 4,

2012), appeal denied, 53 A.3d 49 (Pa. 2012).

        Between August 20, 2012, and July 1, 2013, Bender filed three separate

pro se PCRA Petitions.         The PCRA court appointed counsel, who filed an



____________________________________________


2   18 Pa.C.S. §§ 2502(c), 901(a), 2702(a)(1), 2705, and 6108, respectively.




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Amended PCRA Petition.3 On October 8, 2018, Bender retained counsel, who

filed a second Amended PCRA Petition on January 30, 2019, alleging that trial

counsel was ineffective. Specifically, the Petition alleged that trial counsel,

Attorney Feldman, was ineffective when he failed to request jury instructions

for Involuntary Manslaughter, a lesser-included offense of Murder, because

Bender’s trial testimony provided “some evidence” entitling him to these

instructions for the deaths of Baby and Johnson. Second Amended PCRA Pet.,

1/30/19, at ¶10.        Further, the Petition alleged that “Attorney Feldman’s

omission so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place because it caused

Mr. Bender to be convicted of two counts of third-degree murder when he

should have been convicted of the lesser-included offense of involuntary

manslaughter.” Id. at ¶11 (citing 42 Pa.C.S. § 9543(a)(1)(i-ii)).

       On August 5, 2019, the PCRA court held an evidentiary hearing on

Bender’s Amended PCRA Petition. Attorney Feldman testified, inter alia, that

his case strategy was to convince the jury that Bender did not commit an

intentional act with malice as required to convict him of Third-Degree Murder;

____________________________________________


3  On August 6, 2014, the PCRA court appointed Todd Mosser, Esq., to
represent Bender. On January 22, 2016, the PCRA court relieved Attorney
Mosser of his appointment and appointed Jennifer Bretschneider, Esq., who
filed an Amended PCRA Petition on December 2, 2016. On August 24, 2017,
the PCRA court issued a Pa.R.Crim.P. 907 Notice to Dismiss Bender’s Petition
without a hearing. Bender filed a Response, requesting to proceed pro se. On
October 20, 2017, the PCRA court held a Grazier hearing and granted
Bender’s request to proceed pro se. On October 8, 2018, Appellant retained
counsel.

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he was hoping that the jury would convict Bender of a lesser-included offense;

he now knows that Homicide by Vehicle is not a lesser-included offense of

Third-Degree Murder but Involuntary Manslaughter is; he does not remember

if he had a strategic reason for failing to ask for an Involuntary Manslaughter

jury instruction; and he now wishes he had asked for such an instruction. N.T.

PCRA Hearing, 8/5/19, at 12-25.

        At the end of the hearing, the PCRA court granted Bender’s PCRA

Petition and awarded Bender a new trial on the charges of Third-Degree

Murder.

        The Commonwealth timely appealed and complied with Pa.R.A.P. 1925.4

The PCRA court did not file an Opinion pursuant to Pa.R.A.P. 1925.5


____________________________________________


4  Although the PCRA court granted a new trial on the Third-Degree Murder
charges pertaining to victims Johnson and Baby, the Commonwealth did not
appeal the charges pertaining to Baby as a victim, at Docket No. CP-51-CR-
0013840-2008. In Bender’s Brief, he argues that this Court should quash the
instant appeal because the Commonwealth failed to file separate notices of
appeal from a single order resolving issues on separate dockets, relying on
Pa.R.A.P. 341 (stating where “one or more orders resolves issues arising on
more than one docket or relating to more than one judgment, separate notices
of appeal must be filed”) and Commonwealth v. Walker, 185 A.3d 969, 971
(Pa. 2018) (holding “where a single order resolve issues arising on more than
one docket, separate notices of appeal must be filed for each case.”) Bender’s
reliance is misplaced. Rule 341 and Walker do not compel an appellant to
file an appeal at numerous dockets; rather, they require an appellant to file
separate notices of appeal for each docket number listed on an order if an
appellant chooses to file an appeal at numerous dockets. See Pa.R.A.P.
341; Walker, supra. Here, the Commonwealth chose to file an appeal at one
docket, therefore, Rule 341 and Walker are inapplicable. Accordingly, we
decline to quash this appeal.

5   The PCRA court judge retired without writing a Pa.R.A.P. 1925(a) Opinion.

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      The Commonwealth raises the following issue on appeal:

      Did the PCRA court err in granting post-conviction relief where
      [Bender] did not establish that trial counsel provided ineffective
      assistance of counsel by not requesting a jury instruction, where
      the jury’s trial verdict and this Court’s disposition on direct appeal
      disproved prejudice?

Commonwealth’s Br. at 4.

      We review an order granting or denying a petition for collateral relief to

determine whether the PCRA court’s decision is supported by the evidence of

record and free of legal error. Commonwealth v. Jarosz, 152 A.3d 344,

350 (Pa. Super. 2016) (citing Commonwealth v. Fears, 86 A.3d 795, 803

(Pa. 2014)). “The scope of review is limited to the findings of the PCRA court

and the evidence of record, viewed in the light most favorable to the prevailing

party at the PCRA court level.” Commonwealth v. Koehler, 36 A.3d 121,

131 (Pa. 2012). We will not disturb the findings of the PCRA court unless

there is no support for those findings in the record. Commonwealth v. Wah,

42 A.3d 335, 338 (Pa. Super. 2012).

      A PCRA petitioner who alleges ineffective assistance of counsel “will be

granted relief only when he proves, by a preponderance of the evidence, that

his conviction or sentence resulted from the ‘[i]neffective assistance of

counsel which, in the circumstances of the particular case, so undermined the

truth-determining process that no reliable adjudication of guilt or innocence

could have taken place.’” Commonwealth v. Johnson, 966 A.2d 523, 532

(Pa. 2009) (quoting 42 Pa.C.S. § 9543(a)(2)(ii)).



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      We presume counsel is effective. Commonwealth v. Cox, 983 A.2d

666, 678 (Pa. 2009). To overcome this presumption, a petitioner must

establish that: (1) the underlying claim has arguable merit; (2) counsel lacked

a reasonable basis for his act or omission; and (3) petitioner suffered actual

prejudice. Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015). In

order to establish prejudice, a petitioner must demonstrate “that there is a

reasonable probability that, but for counsel’s error or omission, the result of

the proceeding would have been different.” Koehler, 36 A.3d at 132 (citation

omitted). A court will deny the claim if the petitioner fails to meet any one of

these prongs. Jarosz, 152 A.3d at 350.

      In its Brief, the Commonwealth does not dispute that Bender’s

underlying claim has arguable merit or that Attorney Feldman lacked a

reasonable basis for the omission of the jury instruction.        Instead, the

Commonwealth focuses on the prejudice prong of the above-mentioned test

and avers that Bender did not prove that trial counsel’s failure to request an

Involuntary Manslaughter jury instruction prejudiced him. Commonwealth Br.

at 16. Specifically, the Commonwealth argues that the jury found that Bender

acted with malice sufficient to prove Third-Degree Murder and Aggravated

Assault, and acted with the specific intent required to prove Attempted

Murder, which “demonstrate that the jury never would have convicted him

only of [I]nvoluntary [M]anslaughter, which requires a lower mens rea of mere

recklessness or gross negligence.” Id. at 19.




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      The Commonwealth further argues that, on direct appeal, Bender

specifically challenged the sufficiency of the evidence supporting malice and

this Court found that the evidence supported the jury’s finding of malice. Id.

at 16.   Therefore, the Commonwealth contends, because the evidence

supports a finding of malice there is no reasonable likelihood that the jury

would have convicted Bender of a lesser-included offense of Third-Degree

Murder if Attorney Feldman had requested such an instruction. Id. at 22.

      “A defendant is entitled to a [jury instruction] on a lesser-included

offense only where the offense has been made an issue in the case and the

evidence would reasonably support such a verdict.” Commonwealth

v.   Barnes,   871   A.2d   812,   823   (Pa.   Super.    2005)   (emphasis   in

original), affirmed, 924 A.2d 1202 (Pa. 2007).           “Instructions regarding

[criminal offenses] which are not before the court or which are not supported

by the evidence serve no purpose other than to confuse the jury.”

Commonwealth v. Phillips, 946 A.2d 103, 110 (Pa. Super. 2008) (citation

omitted). “An offense may be considered a lesser included offense if each and

every element of the lesser offense is necessarily an element of the greater

offense.” Commonwealth v. Brandon, 79 A.3d 1192, 1194 (Pa. Super.

2013) (citation omitted).

      Appellant was charged with First- and Third-Degree Murder. Both are

defined as a killing conducted with malice. Commonwealth v. Packer, 168

A.3d 161, 168 (Pa. 2017); see also 18 Pa.C.S. § 2502(a) and (c).

“[M]alice comprehends not only a particular ill-will, but also a wickedness of

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disposition, hardness of heart, recklessness of consequences, and a mind

regardless of social duty, although a particular person may not be intended to

be injured.”     Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005)

(internal punctuation and citations omitted).           Further, “malice is present

under circumstances where a defendant did not have an intent to kill, but

nevertheless displayed a conscious disregard for an unjustified and extremely

high risk that his actions might cause death or serious bodily harm.” Packer,

168 A.3d at 168 (internal quotation marks and citations omitted).

         In contrast, Involuntary Manslaughter does not require malice. Rather,

it is defined as a killing that is committed recklessly or with gross negligence.

18 Pa.C.S. § 2504(a). As provided in the Crimes Code, “[a] person is guilty

of [I]nvoluntary [M]anslaughter when as a direct result of the doing of an

unlawful [or] lawful act in a reckless or grossly negligent manner, he causes

the death of another person.”         Id.   Involuntary manslaughter is a lesser-

included offense of Third-Degree Murder. Commonwealth v. Polimeni, 378

A.2d 1189, 1194-95 (Pa. 1977).

         Instantly, the PCRA court granted Bender’s PCRA petition for collateral

relief    because   trial   counsel   should     have   requested   an   Involuntary

Manslaughter jury instruction, and stated on the record: “Well, we never know

what the jury is going to do . . . Mr. Feldman provided no reasonable basis

[for not requesting the Involuntary Manslaughter jury instruction]. He didn’t

know about it. The record is completely devoid of it in terms of deciding in

his attempt to find a lesser[-]included offense with a different mens rea than

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malice regarding the two deaths.” N.T. PCRA Hearing, 8/5/19, at 38-39; N.T.

PCRA Hearing, 8/8/19, at 12. We agree.

     When Attorney Feldman argued to the jury that Bender’s actions lacked

malice, but conceded that they might have been reckless or negligent, he

made the offense of Involuntary Manslaughter an issue in the case.            See

Barnes, 871 A.2d at 823. When Bender testified to his version of events, he

provided evidence that would reasonably support a verdict of Involuntary

Manslaughter, namely that engaging in a high speed chase of Johnson’s car

and tapping it from behind to get his attention was reckless and grossly

negligent, but lacked malicious intent. Id. Accordingly, Bender would have

been entitled to a jury instruction for Involuntary Manslaughter if Attorney

Feldman had requested it.

     As the PCRA court stated, one never knows what a jury will decide. If

Attorney   Feldman   had    requested   a   jury   instruction   for   Involuntary

Manslaughter, there is a reasonable probability that the result of the

proceeding would have been different.        See Koehler, 36 A.3d at 132.

Attorney Feldman even testified that, looking back, he wishes he had asked

for an Involuntary Manslaughter jury instruction at the time of trial.

Accordingly, Bender proved by a preponderance of the evidence that he

suffered prejudice when Attorney Feldman failed to request a jury instruction

for the lesser included offense of Involuntary Manslaughter, and the PCRA

court did not err when it granted Bender’s PCRA Petition.




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      Further, we reject the Commonwealth’s argument that Bender was not

prejudiced because the jury made findings that Bender acted with malice

sufficient to prove Aggravated Assault, and acted with the specific intent

required to prove Attempted Murder, which both “demonstrate that the jury

never would have convicted him only of [I]nvoluntary [M]anslaughter, which

requires a lower mens rea of mere recklessness or gross negligence.”

Commonwealth Br. at 19. The jury convicted Bender of Attempted Murder

and Aggravated Assault for his actions towards Mother, Cousin, and Sister.

Bender was charged with First- and Third-Degree Murder with respect to

Johnson.   The jury’s findings regarding victims other than Johnson are

irrelevant to whether counsel should have requested a jury instruction on a

lesser-included offense for charges pertaining to Johnson’s death.

      We likewise reject the Commonwealth’s argument that the jury was

unlikely to render a different verdict if given an Involuntary Manslaughter

instruction because this Court found the evidence was sufficient to support the

jury’s finding of malice on direct appeal, and affirmed Bender’s conviction for

Third-Degree Murder. Id. at 16. The Commonwealth contends that, “[i]n

granting a new trial, the PCRA court set aside these findings of the jury and

substituted its own.” Id. at 22. This argument is unavailing.

      The standard of review this Court applies to a sufficiency claim in a direct

appeal is not the same standard that is applicable in our review of a claim

raised in a successful PCRA Petition. On direct appeal, this Court was required

to review Appellant’s sufficiency claim in the light most favorable to the

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Commonwealth, giving the Commonwealth the benefit of all reasonable

inferences to be drawn from the evidence. See Commonwealth v. Widmer,

744 A.2d 745, 751 (Pa. 2000). Effectively, our standard of review permitted

this Court to disregard Bender’s testimony in favor of the Commonwealth’s

interpretation of the facts on direct appeal.

      In turn, we review the evidence supporting Bender’s successful

ineffective assistance of counsel claim in the light most favorable to Bender to

determine whether the PCRA’s court’s decision is supported by the evidence

of record and free of legal error. See Koehler, 36 A.3d at 131; Jarosz, 152

A.3d at 350. Accordingly, we are not permitted to disregard Bender’s version

of events. Because we are compelled to utilize a different standard of review

for Bender’s PCRA appeal, it is of no moment that this Court affirmed the jury’s

finding of malice on direct appeal.

      In sum, the PCRA court did not err when it granted Bender a new trial

after finding that Attorney Feldman’s failure to request a jury instruction for

the lesser-included offense of Involuntary Manslaughter resulted in prejudice

to Bender. We, therefore, affirm the PCRA court's grant of a new trial.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2020




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