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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

DISSENTING MEMORANDUM BY STEVENS, P.J.E.:FILED NOVEMBER 10, 2016

        The   Majority        concludes    there   is   arguable   merit   to   Appellant’s

underlying claim that the trial court erred in failing to give the jury an

involuntary manslaughter instruction.              Accordingly, the Majority reverses

and remands to the PCRA1 court for a determination of whether appellate

counsel had a reasonable basis and whether Appellant was prejudiced by

appellate counsel’s failure to raise the claim on direct appeal.

        While the Majority offers a thoughtful, cogent analysis, I conclude

there is no arguable merit to Appellant’s underlying claim and, additionally,

Appellant has not met his burden on appeal as it relates to the prejudice



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1
    Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.



*Former Justice specially assigned to the Superior Court.
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prong of the ineffectiveness test.2            Thus, I would affirm the PCRA court’s

dismissal of Appellant’s PCRA petition and respectfully dissent.

       With regard to the underlying claim, “[o]ur standard of review when

considering the denial of jury instructions is one of deference—an appellate

court will reverse a court's decision only when it abused its discretion or

committed an error of law.”           Commonwealth v. Baker, 24 A.3d 1006,

1022 (Pa.Super. 2011) (quotation and quotation marks omitted). “The trial

court has broad discretion in phrasing its instructions, and may choose its

own wording so long as the law is clearly, adequately, and accurately

presented to the jury for its consideration.” Id. (citation and quotation

omitted).

       Involuntary manslaughter is defined as a killing that occurs when, “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, [an individual] causes the death of another person.” 18

Pa.C.S.A. § 2504(a).         An instruction on involuntary manslaughter is not

required unless it has been made an issue in the case and the facts would

support such a verdict.        Commonwealth v. McCloskey, 656 A.2d 1369

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2
 The Majority finds trial counsel properly requested a charge on involuntary
manslaughter and specifically noted his exception when the trial court
denied the request. Thus, the Majority concludes trial counsel cannot be
deemed ineffective with regard to the trial court’s failure to charge the jury
on involuntary manslaughter. I agree with the Majority in this respect.



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(Pa.Super. 1995).       “Stated as a three-part inquiry, we look to see, first,

whether appellant made a timely request for an instruction on involuntary

manslaughter, second, whether the offense was made an issue in the case,

and finally, whether the evidence at trial could support a verdict of

involuntary manslaughter.” Id. at 1372.

       In the case sub judice, I concur with the Majority that trial counsel

made a timely request for an involuntary manslaughter instruction;

however, I disagree that the offense was either made an issue in the case or

there was sufficient evidence at trial to support a jury verdict on involuntary

manslaughter only, as opposed to third-degree murder upon which Appellant

was convicted.

       As this Court indicated on direct appeal in this case, the evidence

revealed that Appellant willfully engaged in a gun battle with another group

of   men    during    the   afternoon     on   a   crowded   public   street. 3    The

Commonwealth presented the testimony of eyewitnesses to the gun battle,

including Appellant’s willful participation, as well as the fact Appellant

evaded police until he was captured in December 2007.                 Appellant’s trial

strategy, which the jury did not believe, was that he was merely present and

never fired his gun.


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3
  It is noteworthy that this Court deemed the evidence sufficient on appeal
to sustain Appellant’s conviction for third-degree murder.



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      The record demonstrated that Appellant acted with the requisite malice

for third-degree murder, including reasonably anticipating that death to

another would likely result, which carried the crime beyond the mere

recklessness or gross negligence for involuntary manslaughter.            See

Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977)

(regarding involuntary manslaughter); Commonwealth v. Packer, 2016

WL 3613038 (Pa.Super. filed 7/6/16) (defining malice); Commonwealth v.

DiStefano, 782 A.2d 574, 582 (Pa.Super. 2001) (regarding third-degree

murder). Accordingly, voluntary manslaughter was not made an issue in the

case, and the evidence does not support an involuntary manslaughter

instruction. Thus, I disagree with the Majority that there is arguable merit

to Appellant’s underlying ineffective assistance of counsel claim.

      Additionally, assuming, arguendo, there is arguable merit to the

underlying claim, I conclude Appellant has not met his burden with regard to

the prejudice prong of the ineffectiveness test. In his counseled appellate

brief, Appellant has not meaningfully discussed and developed an argument

as to the prejudice prong.   More specifically, aside from bald assertions that

the PCRA court should have held a hearing as to the prejudice prong of the

ineffectiveness test, see Appellant’s brief at 20-21, Appellant has presented

no argument with regard thereto.

      Our Supreme Court has held that an appellant “must set forth and

individually discuss substantively each prong of the [ineffectiveness] test.”


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Commonwealth v. Steele, 599 Pa. 341, 361, 961 A.2d 786, 797 (2008)

(citations omitted).   Accordingly, where an appellant “only addresses the

first prong, arguing that the underlying claim has arguable merit, followed

by a bald assertion of the lack of a reasonable basis [or] the fact of

prejudice[,] [s]uch undeveloped claims based on boilerplate assertions

cannot satisfy [an] [a]ppellant’s burden of establishing ineffectiveness.” Id.

(citations and footnote omitted).

      For all of the aforementioned reasons, Appellant has not met his

burden of proving arguable merit or prejudice with regard to appellate

counsel’s failure to raise on direct appeal the issue of whether the trial court

erred in failing to charge the jury on involuntary manslaughter. Thus, it is

unnecessary to remand this matter to the PCRA court for an evidentiary

hearing, and I respectfully dissent.




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