J-S55001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DAVID SATCHELL

                            Appellant                 No. 2005 EDA 2015


                    Appeal from the PCRA Order June 5, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0004687-2008


BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                       FILED NOVEMBER 10, 2016

        David Satchell appeals from the order entered in the Philadelphia

County Court of Common Pleas dismissing his petition filed pursuant to the

Post Conviction Relief Act (“PCRA”).1 After careful consideration, we reverse

and remand the case for an evidentiary hearing.

        The PCRA court set forth the relevant facts and procedural history as

follows:

        On May 20, 2007, at 2 p.m., 54-year-old Ronald Kennel (victim)
        was shot at the intersection of 16th and York Streets in North
        Philadelphia. While leaving the Red Top Bar, the victim was
        caught in the crossfire of a gunfight. He died from a single
        gunshot wound to the head.       Charlene McDonald was also
        injured during the incident. She was standing at the 16 th and
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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     York Street bus stop when the gunshots were fired.           As
     McDonald tried to run, she was shot in her right leg. She spent
     three days in the hospital and another two years in physical
     therapy.

     That afternoon, the residents of 16th and York Streets were
     hosting a barbecue competition. Over 30 people were outside
     preparing for the event. At 2 p.m., [Satchell] and two other
     men were seen walking west on York Street towards 17 th Street.
     Before the shooting occurred, a neighborhood resident phoned
     911, and described a man whom the evidence indicated was
     [Satchell]. “Young man walking with a gun . . . green shirt with
     white shirt underneath, wearing blue jeans, light-skinned, just
     scared half the neighborhood.” As Satchell passed by, people
     yelled, “Get the kids in the house. They have guns.” Within
     moments, gunshots were fired through the crowded area.
     Satchell and his two friends fired shots on York Street towards
     17th Street. Sixteen .40 millimeter fired cartridge casings were
     recovered near the intersection of York and Bancroft Streets. A
     second set of shooters, near 17th Street, fired shots towards 16th
     Street. Four .9 millimeter fired cartridge cases were found on
     the northeast corner of 17th and York Streets.          The bullet
     recovered from the victim’s head indicated that the bullet that
     killed him was from a 38/9 millimeter firearm.

     Derrick Williams saw Satchell fire his gun into the crowd.
     Williams also saw Satchell with two guns: one was “chrome and
     brown, then he had this automatic that was black, but it had this
     long clip that looked like it would hold 40 rounds.” After the
     exchange of gunfire, Satchell and his two friends ran towards
     Bancroft Street.

     Satchell tried unsuccessfully to enter two private homes on
     Bancroft Street. First, he approached Tracy Lester’s home at
     2402 Bancroft Street. Lester observed Satchell wearing a green
     shirt with a white thermal top underneath and saw that he had a
     gun in his hand as he tried to enter her home. Lester held her
     door closed as [Satchell] tried to push his way in.

     Satchell next tried to enter Daisy Coffey’s home at 2404 Bancroft
     Street. Coffey lived next door to Lester. As Satchell tried to
     enter Coffey’s house, she held her glass security door closed and
     told him, “you not coming in here.” Satchell had a silver gun in
     his hand. When he could not enter the premises, Satchell



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      jumped over Coffey’s gate into her yard, but hopped right back
      out after finding a pit bull in Coffey’s back yard.

      Later that evening, at Temple University Hospital, Lester
      identified Satchell as one of the shooters to Officer Nona Stokes
      and described what he had been wearing. Satchell was not
      arrested until December 19, 2007.

PCRA Court Opinion, 11/13/15, at 3-5.

      Following a jury trial, Satchell was convicted of third-degree murder,

criminal conspiracy, aggravated assault, and possessing instruments of

crime (PIC), for which he was sentenced to an aggregate term of 29 to 62

years in prison. This Court affirmed his judgment of sentence on September

10, 2010, and our Supreme Court denied his petition for allowance of appeal

on June 6, 2011.

      Satchell filed a pro se PCRA petition on September 16, 2011, alleging

ineffective assistance of both his trial and appellate counsel.       His court-

appointed counsel filed an amended PCRA petition on December 19, 2014.

The Commonwealth filed a motion to dismiss on February 23, 2015. On May

4, 2015, the PCRA court sent Satchell notice of its intent to dismiss his PCRA

petition without a hearing pursuant to Pa.R.Crim.P. 907. On June 5, 2015,

the court dismissed the petition, and this timely appeal follows.

      Satchell raises the following issue for our review:

      Did the PCRA Court err by holding, without having conducted an
      evidentiary hearing, that trial and appellate counsel were not
      ineffective for failing to present controlling authority on the issue
      of the applicability of an involuntary manslaughter jury
      instruction?

Appellant’s Brief, at 4.


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         There has long been a presumption in the law that counsel is “within

the wide range of reasonable professional assistance.”        Harrington v.

Richter, 131 S.Ct. 770, 787 (2011). The Pennsylvania Supreme Court has

set forth three elements which must all be proven in order to demonstrate

ineffective assistance of counsel. Commonwealth v. Williams, 863 A.2d

505, 513 (Pa. 2004) (“Failure to satisfy any prong of the test will defeat an

ineffectiveness claim.”). A defendant must prove that: (1) the underlying

claim is of arguable merit; (2) counsel’s performance lacked a reasonable

basis; and (3) the ineffective assistance of counsel caused him prejudice.

Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001).

         The PCRA court dismissed Satchell’s petition because it found that he

failed to meet the first prong of the Pierce test, since he did not prove that

the underlying claim of his right to an involuntary manslaughter instruction

was arguably meritorious. After reviewing the record and relevant case law,

we find that the PCRA court erred by failing to find arguable merit in

Satchell’s claim.

         Defendants are generally entitled to instructions that they have

requested and that are supported by the whole of the evidence presented at

trial.    Commonwealth v. Charleston, 94 A.3d 1012, 1026 (Pa. Super.

2014); see also Commonwealth v. Browdie, 671 A.2d 668, 673-74 (Pa.

1996) (“[W]e hold that a trial court shall only instruct on an offense where

the offense has been made an issue in the case and where the trial evidence

reasonably would support such a verdict.”). Additionally, “if any version of

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the evidence in a homicide trial, from whatever source, supports a verdict of

involuntary manslaughter, then the offense has been made an issue in the

case, and a charge on involuntary manslaughter must be given if

requested.” Commonwealth v. Draxinger, 498 A.2d 963, 965 (Pa. Super.

1985); see also Commonwealth v. McCloskey, 656 A.2d 1369, 1372 (Pa.

Super. 1995).

      Involuntary manslaughter is found where “as a direct result of the

doing of an unlawful act in a reckless or grossly negligent manner, or the

doing of a lawful act in a reckless or grossly negligent manner, [the

defendant] causes the death of another person.” 18 Pa.C.S.A. § 2504. At

trial, the Commonwealth called Derrick Williams, a close acquaintance of

Satchell, who testified that he saw Satchell, with two other men, firing at

another group of men through a crowded street.          As such, there was

evidence in the record that Satchell fired his gun in a reckless or grossly

negligent manner, causing the death of the victim.       The Commonwealth

argues that because Satchell himself testified that he never fired his gun, no

evidence was produced on record by Satchell that would justify an

involuntary manslaughter instruction. It asserts that the two cases raised by

Satchell in his brief, Draxinger and McCloskey, are both distinguishable

because, in those cases, the defendant admitted to a version of the events

in which he perpetuated a reckless or grossly negligent act.

      The Commonwealth misreads the application of evidence in the record

to involuntary manslaughter instructions laid out in Draxinger.       In that

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case, this Court held that evidence “from whatever source” would support

the   instruction.   Draxinger,     supra    (emphasis    added).      Here,   the

Commonwealth called witnesses who testified that Satchell was in the area

of the gunfight with a loaded firearm, with at least one witness testifying

that he saw Satchell shooting the weapon in a crowded street.           Satchell’s

testimony alone cannot be dispositive, as the evidence in the record

supporting the instruction can come from any witness. Therefore, based on

the evidence in the record, the jury could reasonably have found Satchell

guilty of involuntary manslaughter.      As such, there is arguable merit to

Satchell’s claim that the trial court erred by not giving this instruction.

      Given the arguable merit of the underlying claim, we must now

determine if Satchell’s claim satisfies the other two prongs of the Pierce

test: that there was no reasonable basis for counsel’s decision, and that the

ineffectiveness resulted in prejudice to Satchell. With regard to trial counsel,

we find that he cannot be deemed ineffective because, at trial, he argued for

an involuntary manslaughter instruction and objected when the court

declined to give one:

      The Court: Mr. Lammendola, I’m not giving manslaughter.

      Mr. Lammendola: I would ask for involuntary, Judge, also.
      Involuntary is applicable if there’s sufficient facts in the case to
      suggest that if it just may be involuntary. . . . I think the fact
      pattern or at least factual nature of the case would suggest that
      I- it would warrant an involuntary manslaughter charge.

      The Court: How is the defendant’s conduct reckless or grossly
      negligent?



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      Mr. Lammendola: By the fact of having a gun to begin with.

      The Court: The mere fact of possession of the gun?

      Mr. Lammendola: Well, under the circumstances –

      The Court:      Would make his conduct reckless or grossly
      negligent?

      Mr. Lammendola: Well –

      The Court: He claimed he didn’t do anything else but get shot
      at. He ran. He never fired his gun, so that’s why I looked at it.
      I put a Post-it on there that says requested, not given.

      Mr. Lammendola: Note my exception, Judge.

N.T. Trial, 6/17/09, at 64-66.

      As   the   above   exchange   indicates,   trial   counsel   requested   the

instruction, but the court did not give it. Satchell argues that counsel should

have, essentially, lectured the judge on Draxinger and its progeny in an

attempt to sway the court’s decision. However, we find that trial counsel’s

actions of asking for an instruction, explaining his basis for requesting it, and

noting his exception when it was denied were inherently reasonable.            As

such, the actions of trial counsel cannot form the basis for PCRA relief.

      We now turn to Satchell’s claim that appellate counsel was ineffective

for failing to raise the issue of the involuntary manslaughter instruction on

direct appeal.   As discussed, the involuntary manslaughter instruction was

arguably meritorious, and the issue of its denial was preserved by trial

counsel. However, the record as it currently exists is insufficient to enable

us to determine whether appellate counsel had a reasonable basis for failing

to raise the claim or whether Satchell suffered prejudice as a result thereof.



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The PCRA court dismissed Satchell’s petition without a hearing, at which

appellate counsel could have testified regarding any strategic reasons he

may have had for omitting the claim on appeal.2 Moreover, the PCRA court

did   not   address     the    reasonableness    and   prejudice   prongs   of   the

ineffectiveness analysis in its opinion, as it concluded (incorrectly, as we

have determined) that Satchell’s claim lacked arguable merit.

       Accordingly, we remand the case to the PCRA court so that it may hold

an evidentiary hearing to determine whether Satchell’s appellate counsel had

a reasonable basis for failing to raise the involuntary manslaughter claim on

appeal and whether Satchell suffered prejudice as a result of that failure.

       Order reversed. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

       Judge Dubow joins the Memorandum.

       PJE Stevens files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2016
____________________________________________


2
  We concede that we can think of no reasonable basis for counsel’s omission
of an arguably meritorious claim from an appellate brief. However, our duty
is not to speculate based on an incomplete record.



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