J-A25043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DAVID SATCHELL,                          :
                                          :
                    Appellant.            :   No. 1305 EDA 2017


                 Appeal from the PCRA Order, March 29, 2017,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0004687-2008.


BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                    FILED DECEMBER 31, 2018

     David Satchell appeals from the order denying his first petition for relief

pursuant to the Post Conviction Relief Act (“PCRA”), following his conviction

for third-degree murder and related offenses. 42 Pa.C.S.A. §§ 9541-9546.

We affirm.

     Satchell’s convictions were the result of his participation in a gunfight

on a crowded street in Philadelphia that caused the death of one innocent

bystander and serious bodily injury to another. The trial court sentenced him

to an aggregate term of 29 to 62 years of imprisonment. In an unpublished

memorandum filed on September 10, 2010, we affirmed his judgment of

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

on June 6, 2011.    Commonwealth v. Satchell, 13 A.3d 978 (Pa. Super.

2010), appeal denied, 21 A.3d 677 (Pa. 2011).
J-A25043-18



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

he raised claims of the ineffective assistance of both trial and appellate

counsel.    The PCRA court appointed counsel, and PCRA counsel filed an

amended petition on December 19, 2014.           Thereafter, the Commonwealth

filed a motion to dismiss. On May 2, 2015, the PCRA court issued Pa.R.Crim.P.

907 notice of its intention to dismiss the amended PCRA petition without a

hearing. Satchell filed a response. By order entered June 5, 2015, the PCRA

court dismissed the petition.

       Satchell filed a timely appeal to this Court.         In an unpublished

memorandum filed on November 10, 2016, we agreed with the PCRA court

that Satchell’s claim of trial counsel’s ineffectiveness lacked merit.      See

Commonwealth v. Satchell, 2016 WL6649241 (Pa. Super. 2016).                  The

panel majority, however, agreed with Satchell that his claim of appellate

counsel’s ineffectiveness had arguable merit.1 Specifically, he claimed that

appellate counsel failed to raise on appeal his entitlement to a jury instruction

on the crime of involuntary manslaughter. The panel majority reasoned:

              “[I]f any version of 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


____________________________________________


1President Judge Emeritus Stevens dissented and would have affirmed the
denial of post-conviction relief.


                                           -2-
J-A25043-18


        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, of 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 recklessly 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 events in
        which he perpetuated a reckless and grossly negligent act.

            The Commonwealth misreads the application of evidence
        in the record to involuntary manslaughter instructions laid
        out in Draxinger. In that 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.

Satchell, unpublished memorandum at 4-6.             Because the PCRA court

dismissed Satchell’s amended petition without a hearing, we remanded so that



                                     -3-
J-A25043-18



the court could “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.” Id. at 8.

      The PCRA court held an evidentiary hearing on March 20, 2017.

Appellate counsel testified that he believed the focus of the appeal should be

limited to those issues which had the strongest possibility of success. Thus,

he believed the best approach to Satchell’s appeal was a sufficiency claim, due

to the absence of malice to support a third-degree murder conviction, coupled

with a claim that the trial court erred in failing to give a voluntary

manslaughter instruction. See N.T., 3/20/17, at 7-20. Based upon his review

of recent case law, counsel opined that a request for a jury instruction on

involuntary manslaughter would not have been successful, and such a claim

would dilute the strength of his two other issues.     Id.   Finally, appellate

counsel stated that, although he was not aware of the Draxinger decision,

had he known of it, his appellate strategy would not have changed. Id.

      On March 29, 2017, the PCRA court concluded that appellate counsel

had a reasonable basis to strategically emphasize and pursue a claim based

upon voluntary manslaughter rather than involuntary manslaughter, given the

facts presented, i.e., a “shootout between two competing gangs on the streets

of Philadelphia.” N.T., 3/29/17, at 14. This timely appeal followed. Both

Satchell and the PCRA court have complied with Pa.R.A.P. 1925.

      Satchell raises the following issues:

                                     -4-
J-A25043-18


         1. Did the PCRA Court err by holding prior appellate counsel
            had a reasonable basis for failing to argue on direct
            appeal that the trial court erred in failing to charge the
            jury with involuntary manslaughter?

         2. Did the PCRA Court err in denying Satchell PCRA relief in
            light of the law of the case doctrine established by this
            Court at 2005 EDA 2015?

See Satchell’s Brief at 2.

      Our scope and standard of review is well settled:

         In PCRA appeals, our scope of review is limited to the
         findings of the PCRA court and the evidence on the record
         of the PCRA court's hearing, viewed in the light most
         favorable to the prevailing party. Because most PCRA
         appeals involve questions of fact and law, we employ a
         mixed standard of review. We defer to the PCRA court's
         factual findings and credibility determinations supported by
         the record. In contrast, we review the PCRA court's legal
         conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted).

      In his prior appeal, Satchell raised a claim of ineffective assistance of

appellate counsel. To obtain relief under the PCRA premised on a claim that

counsel was ineffective, a petitioner must establish, by a preponderance of

the evidence, that counsel's ineffectiveness 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). “Generally, counsel’s performance is presumed to be constitutionally

adequate, and counsel will only be deemed ineffective upon a sufficient

showing by the petitioner.” Id. This requires the petitioner to demonstrate


                                     -5-
J-A25043-18



that: (1) the underlying claim is of arguable merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) counsel’s

act or omission prejudiced the petitioner. Id. at 533.

      As to the first prong, “[a] claim has arguable merit where the factual

averments, if accurate, could establish cause for relief.” Commonwealth v.

Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en banc). “Whether the facts

rise to the level of arguable merit is a legal determination.’”     Id. (citing

Commonwealth v. Saranchak, 866 A.2d 292, 304 n.14 (Pa. 2005).

      As to the second prong of this test, counsel's strategic decisions cannot

be the subject of a finding of ineffectiveness if the decision to follow a

particular course of action was reasonably based and was not the result of

sloth or ignorance of available alternatives. Commonwealth v. Collins, 545

A.2d 882, 886 (Pa. 1988).     Counsel's approach must be "so unreasonable

that no competent lawyer would have chosen it." Commonwealth v. Ervin,

766 A.2d 859, 862-63 (Pa. Super. 2000) (citation omitted).        A petitioner

asserting ineffectiveness based upon strategy must demonstrate that the

“alternatives not chosen offered a potential for success substantially greater

than the tactics utilized.” Commonwealth v. Clark, 626 A.2d 154, 157 (Pa.

1993). “We do not employ a hindsight analysis in comparing counsel’s actions

with other efforts he [or she] may have taken.” Stewart, 84 A.3d at 707. A

PCRA petitioner is not entitled to post-conviction relief simply because a




                                     -6-
J-A25043-18


chosen strategy was unsuccessful. Commonwealth v. Buksa, 655 A.2d 576,

582 (Pa. Super. 1995).

       As to the third prong of the test for ineffectiveness, “[p]rejudice is

established if there is a reasonable probability that, but for counsel’s errors,

the result of the proceeding would have been different." Stewart, 84 A.3d at

707.      “A reasonable probability ‘is a probability sufficient to undermine

confidence in the outcome.’” Id. (quoting Commonwealth v. Rathfon, 899

A.2d 365, 370 (Pa. Super. 2006).

       Regarding the first prong of the test, this Court has already determined

that Satchell’s claim of appellate counsel’s ineffectiveness had arguable merit.

Regarding the second and third prongs, the Honorable M. Teresa Sarmina has

prepared a thorough and well-reasoned opinion that explains why appellate

counsel’s chosen strategy was reasonable, and why the alternatives suggested

by Satchell did not offer “a potential for success substantially greater than the

tactics utilized” by appellate counsel. Clark, supra. After careful review, we

agree.2

       In addition, we note that in reaching this conclusion, Judge Sarmina did

not violate the “law of the case” doctrine. She does not take issue with our

prior determination that the Draxinger decision gave arguable merit to


____________________________________________


2 Judge Sarmina further concluded that Satchell could not establish the
prejudice prong of the ineffective assistance test. See PCRA Court Opinion,
8/10/17, at 11 n.24.


                                           -7-
J-A25043-18


Satchell’s ineffectiveness claim. Just because an involuntary manslaughter

charge might have been appropriate does not automatically render appellate

counsel ineffective for failing to appeal the trial court’s failure to give that

charge. As noted, appellate counsel may have had good reason for failing to

appeal this issue. After hearing counsel’s testimony, as we directed in our

prior memorandum, Judge Sarmina concluded counsel’s strategy on appeal

was reasonable.

      We therefore adopt Judge Sarmina’s August 10, 2017 opinion as our

own in disposing of the present appeal. The parties are directed to attach a

copy of the trial court opinion to this memorandum in the event of further

proceedings.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/18




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:,·..
.I                                  PHILA:DELPHIA COURT OF COMMON PLEAS
                                           CRIMiNALTRIAL DMSION

            COMMONWEALTH
                                                                                                     CP-51-CR�0004.687�2008
                                                                       ...
                         v.
                                                             FILED=                                 Superior Court Docket
                                                                                                    No.e 2005 EDA 2015
             DAVID SATCHELL                             AUG 10 2017
                                                   Office of Judicial Records         7.�       '    .. -·   -   -... �      -      .. -
                                                                                      . CP·SI-CR--0004681·2008 Co,nm I! 8alctreJI, Daliid •
                                                    · A.ppeals/PosfTrial                                         ,:,Pinion




                                                                                                    Ill lll7986892271
                                                                                                             lHJI 11 Ill
             Sannina,.J.
             A�gu�t 10, 20.17

                                                               OPINION
                                                                .    .
                                                                                     \...,.._
                                                                                                - =-�--.         ·-·-.·---
        PROCEDURAL HISTORY:

                   On June 17; 2009, following a Jury tnal'rbefore this Court, David Satchell (hereafter,

        pennoner) was convicted ofrnurder of tlie thud degree (H..:3), cnrrunal conspiracy (F-1), aggravated

        assault (F-1 ),2 and possessing instruments of cnme                  (M:- l)(PIC)?          Sentencing was deterred unnl

        Aug\'St 3, 2009; at which time petitioner was sentenced on five charges to a cumulative. term of not·

        less than 27 years nor more than 58 years            10 prison.'       Notes ofTesi:unoriy (N;T.) 8/3/09 at 19-20.



        I   At trial, petitioilet was represented by James Lamrnendola, Esquire

        2 The aggravated assault was charged separately, iJhdei:.CP-51-C:R.�0004694�2.0QS The rcma1mng charges were .as to CP-
        51-CR-0004687-2Q08 Peuuones's P.CRA pennon was filed only as to CP-51�cR�0004687-2008; and Supenor Court's
        cernandonly concerned 5.t-CR;()004687-2008

        3 i.8 Pa CS §§250i(c); 903, 2702(a)(l), and 907(a);.respecuv.ely Dunng the rnal, b.ut pnor to the commencement.of
        evidence; petitioner pled.guilry to.the.charge of c:arry1rtg a firearm wtth�n1t a license, 18.P.a CS §6.106 N T.. 6/i7/09 at.
        10 It was.agreed that�·1fpebt1onei was convicted by the 1ury, pennonee would proceed by way ofbench tnal as to the
        charge ofpersons nor to possess firearms (F 2), 18 Pa C.S -, 6105 lg_ at 10::12 Pennoner proceeded in dus .fasluon, and
                                                      7

        the Court found rum gutlty of tius. charge NT· 8/'J/09 at 20

        4  Fpr the charge oftlutd degree murder, penucnerwes senienced to a tcrlll of' notless than 18 years nor more than 40
        · years in. pnson As to the charge of cnmma! conspiracy� petitioner was sentenced to a concurrent term ·Ofnotless than 7
          years nor ;ni:,re than 14 years 111 pnson As to the charge of persons not to possess firearm, pennorier \V;\S sentenced to :a
          conseeunve .term of n.9tle!!S than 2 years no.r more thail4 years sn prison Asto the charge of µrearms not to be earned
        without a license, pennoner was sentenced. to a concurrent sentence of not less than 2 years 110.r more than 4 years 111.
        pnson As.to the ch:irge of PlC, penttonei: was sentenced to a concurrent term of not less than 1 year nor more than: 5.
        years confinement. As .to CP-51.CR-0004694, on the charge of aggravated assault, pennoner was sentenced to a
        consecunve.term of nor less th)in 7.yeais nor mere than 14 y.carsm pnson NT 8/3/09 at 19.-:20
On August 11, 2009;pursuant.to the Commonwealth's motion to .reconsider, petitioner's sentence

was vatated,5 and; on that same date, this        Court re-sentenced petitioner to a cumulative term.ofnot

less than 29 years nor more than 62 years in prison."

          Petitioner did not file post-sentence monons. Pennoner filed a timely nonce of appeal to

Superior Court on September I, 2009.7 On September 10, 2010, Supenor Court affirmed

peunoner's Judgment of sentence, and on Jurie 6; 2011, our Supreme Court denied peuuo11er's

pennon for allowance of appeal,"

           On-September 16, 2011, pet:11:1oner filed a prose petition pursuant to the Post-Conviction

Relief Act (PCRA). 9 Counsel was appotnted/0 and, on December 19, 2014, filed a11 amended

petition   on pennoner..s behalf; On February 23, 2015, the Commonwealth filed a monon to dismiss,
           After ccnsidenng the Issues and reviewing the filings, on May 4, 2015� tlus Court sent

pentioner notice of tts mtent to.deny and dismiss lus i>CRApeti.tton without a bearing pursuant to



> The basis for re-sentencing was tha� peunooer's ongmil sentences were all msstakeniy 111. the minganng range· NT
8/11 /09 at 3                                                                                           .   .

6Asto the charge 0.fcrimtilali::onspli:a:cy, pe::t1t1oner was sentenced to. a concurrent term of not less than 9 yeai:s rtor
more than 18 ye!its ui pnson .. Asto the charge ofpersons.nor to possess firearms, pennoner was sen:tcnced.toa.
consecuave-rerm .of not less tharr 4 ye:,rs nor more than 8 ye:irs in pnscn, As to the 'charge of Iirearms not to be earned
without a hcensc,<peuboner was sentenced to a concurrent sentence of not less thari 2 years nor more .than4 years in
pnson: As to the ci)a_rge of PlC, pe�ti�nerwas sentenced to aconcuerent term.of not less th:i.n 9 months n:or rilO:!::e than
5 year� confinement< The sentences for murder m the tlurd degree and carrying a firearm w1thou.t a license were
unchanged. N\T. 8/'J/09 at i0-12; As to CP-51-CR�0004694, the charge ofaggravared assault, pennoner was sentenced
tQ a consecutive term ·ofnotless than 7 years nor more that:1 l4 years m pnsori ld. at.19-W.

1 James   Lammendola, Esquire, ccmtinu�d to represent peuuoner on appeal

. s Comnfoowealth v. Sa tcheli. No 27 52 EDA :2009 (l'.a Super , Sept 1 O; 2010) (memorandum opm1on), a/lo,allir dtnr,d,
  No. 599 EAL 20i0 (Pa ,June 6; 201. 1)            ·

 9   42 Pa.C.S §f954}-9546

 ioJoseph Scott O'Keefe, Esqwre, (nowjudge O'Keefe) was appomted to repres�ntpeuu�mer on collateral attack, but
 was penrutted towitl:ldraw.by the Court upon his-appomtment-tc the.bench on the Ph1ll)delph1a CourtofCorrunon .
 Pleas Thereafter, on July 20, 2012;.Earl Kauffman, Esquire, was appointed to i:epresentpetmoner Counsel railed to
 make a ftli.ng an tlus PCRA mattee, and the Court therefo� had. Mr Kauffman removed. as PCRA counsel Todd
 Michael Mosser, Esqwre, was .then appointed to represent pennoner 01.1 September 2, 2014 Notw:tthstandtng his .
 removal as counsel, Mr. Kauffman proceeded to    file a� letter 9n, October 3, 2014; which was not.considered by
 this, Court. .   .

                                                             2
Pa.R.Crtm.P. 907 (907 Nonce). Consistent with            1�   907Nouce, the Court disnussed.pentioner's

PCRA .petmen on June 5; 2015. Petinoner appealed; and on November 10, 2016, Superior Cotirt

remanded the petition for this Court to determine tf appellate counsel had a: rational basis for not

raising a chum that this Court erred m refusiiiglo charge the jury on mvohmtary manslaughter This

Court therefore· held an evidennary heanng on March 20.arid 29, 2017 /and1 finding that. appellate

counsel had.had a.reasonable basis in not pursuing the matter on appeal, this Court dismrssedthe

petition on March 29, 2017 m open court: This timely appeal followed.

FACTSu
        On May 20; 2007, at2 p;m > 54-ycar-old Ronald. Kennel (�'lcwn) was shot at the mrersecnon

.of l6ti. and.York Streets in North Plu:ladelplua. N;T. 6/ 15/09 at .137. Whtle leaving the Red Top

Bar; the vrcnm was caught in the crossfire of a gunfight N.T. 6/15/09 at 79, N.T. 6/i6/09 at 41-

42. He died from a singlegunshot wound to the head .. N.T: 6/16/09 at B. Charlene !vkDonald.

was also mjured dunng the Incident Id:. at 1)-76. She was standing at the 16'n arid York Street bus

stop when   the gunshots were med. Id at 72, 77.           As Ms. lvkDoo�1d tried        to run; she was. shot 1i1.
her nght leg, Id. at 73�7 5. She spent three. days. in the hospital and another two years in physical

therapy: Id, at 76.

        That afternoon> the residents of 161h and YorkStreets were hosting a barbecue competition.

NT: 6/16/09 lilt 24. Over 30 people were outside prepanng for the event. .Id. at 3L At 2 p.m.,

pennonec and two other men were seen wallunt west on York Street towards l 7 Street, Id. at 2.4-
                                                                            i.                  1




25. Before the shooting occurred. a neighborhood resident phoned 91 I, and described a man whom

the evidence indicated was peunonen "Young man walking wnh a gun,.... gre�n shut with white shirt

underneath, weanng. blue Jeans, light.,-skinned, JUSt seated half the neighborhood •• N.T 6/16/09 at




II These facts ar.e re-presented here (from thls Court's previous opinion to Supenor Court on this matter, d�ted

November 3; 2015) for ease of d1spos1non
154; N.T. 6/17/09 at 40-4L As pennoner passed by> people yelled, "Getthe kids                       in the   house.

They have guns." � at 24. 30 W1tlun moments, gunshots were fired through the crowded area

N.T. 6/16/09 at. 24, 31 -. Pennoner and his two .fnends fu:cd shots on York Street towards 171h

Street; N.T. 6/15/09       at t30.   Sixteen .40 millimeter tired cai;t11dge casings were recovered nearthe

mtersecuon of York and Bancroft Stseets," Id at J 16-18. A second set of.shooters, near 17'h Street;

fired shots towards 16 Street. N.r. 6/15/09 atl.30. Four .. 9 rmlltmeter fired cartridge casings were
                      1,..




found on the northeast corner of 17'h arid York Streets. Id. at 113;.N.T, 6/16/09 at 111�12 The

bullet recovered from the vicnm's head indicated that the bullet that killed luin was from a 38/9

millimeter fi.reann.13 N T 6/16 /08 at 114-15.

         Deenck Williams saw pennoner fire lus gun .mto the crowd. N.T. 6/15/09 .at 130, 140. Mr.

Wtlhams also saw pennoner with twq guns: one was "chrome and brown, then he had this

automatic that was black, but it had this long chp that.lookedhke 1t would hold 40 rounds." Id at

136 .. After the exchange ofgunfire, petitioner and his two friends             ran towards Bancroft Street. .lit.
at 143-44.
         Pennoner tned unsuccessfully to enter two pnvate homes on Baricroft Street First, he

approached Tracy. Lester's home at
                                 . 2402 Bancroft Street. N:T; 6/16/09 at25; N;T. 6/15/09 .it 47;


Ms; Lester observed petiitonerweanng a green shirt with' a wlute thermal top underneath and saw

that he had a gun m his hand as he tned          to enter her home. Id at 25,.33, 36; 49. Ms. Lester.held

her..door closed as petitioner tned to push hisway m, NT. 6/16/09 at 33.

         Pennoner next tried to enterDaisy Coffey's homeat2404 Bancroft Street; N.T. 6/15/09 at

47, 56. Ms Coffey lived next.doorto M�. Lester. N.T.. 6/lS/09 at 47. As. pct1t1Qner tried to enter



ii.Bancroft
     .         . rs iocated
            Street   .      between
                             .  .   N
                                    . 16.
                                      . •h Street
                                               .  and
                                                  ·.  N p.r!i Street Ir is closer to t61h Street where pentsonerwas
seeqwa�g

IJ Thus, based on the physical evidence .�t the scene, the gunshot tha.t killed· the decedent came from the group shooting
at petibonec and Ius cohorts and not from penuoner's fireai:m NT 6/16/09 at 114-118.

                                                            4
Ms. Coffe.ts house, she held her glass security door dosed and told him, "you not. coming m here ••

Id. at 47-50.     Petitioner had a silver gun m his hand Id. at 47 � 51, 62. When he could not enter the

premises, pennoner Jumped over Ms Coffofs gate into her yard, but hopped nght back out after

finding a ptt bull m Ms; Coffey's back yard. Id .. at49, 57

           Laterthat everung, at Temple University Hospital, Ms; Lester identified petmoner as one of

the shooters to Officer Nona Stokes and described what he had been wearing; N�T. 6/16/09 at 36,

48-49. Petitioner was not arrested until December 19, 2007.14

LEGAL ANALYSIS:

           Pentioner claims on appeal that this Court erred when 1t. did not find that prior appellate

counsel was iaeffecnve for failing to include 111 his appeal a request for a charge of mvohintary

manslaughter basedon          Commonwealth v. DraX1.Qger; 498 A.2d 963            (Pa.Super. 1985), in support of

the propos1t1on that an involuntary 111anslaughter mstrucuon should have been given at pcunoner's
mal." J925(J:i) Statement5./19/i7 atl.

           At .the heanng, Michael Diamondstem; Esquire, the attorney who handled penuoner's .direct

appeal, conceded he was, not familiar with Draxmger until he was contacted in connection with. the

heanng N.T.. 3/20/17 at 13,16 However, because the cases Mr Diamondstein did rely on

established he had.a reasonable basis. for not purs�ng this issue. on appeal, pennoner's claim                  fails.



14   �t the nme of msarresr seven months later, Pennoner had a fully loaded black 40 caliber &rearm NT 6/16/0.9 at
59 ·.                                                                for
      A· fir�arms expert resufied ihat tlus gun was not responsible. any of the bullets fired on May 20; 2007 M.. at 85
No other w.eapons were recovered from pennoner        Id at 58�60.
1$   Tlus Court has rephrased petsuoner's clauns fot ease of disposrnon

16   Petlboner claims this alone .prov.es I\1r Dramondstein's. meffecnveness, citing Common�:e;dth v Lennox, 428 A 2d
2�8. 230(Pa.Super 1981). to say that :Mr Diamondstein should have been famihnr with Praxmger; as all defense.
altomeys need to be aware of current law 19'25(b) StatementS/t9/t7at 2 Evenrf-a case from thirty yearsago is
coessdered "current," (he 1S$i1C 111:Lennox    was that counselhad ·faded to ta:tlor a claim to the issues relevant and
                                                                                                to.
mentoriolis in !us dtcri t's case; specJfically a diuin based on Pa R Crim.P 11 ()0 whrch was hkdy provide hrs chent with
relief. �. 428 A 2d �.t230 Instead counsel appealed in vague, "boilerplate language," thus Lennrus rs
tUStln{;W'shab)e a.nd does not p�oytde the support d:iat peunoner dnims ht at 231.
         Mr. Diamondstem testified that he did not.raise the involuntary manslaughter issue on

appeal for three reasons: to avoid the "kitchen smk" type of appeal thai 1s. disfavored by Judges,

because the case.law indicated such a .claim would.have. failed, and to focus on strongcc claims.      N.T.
3/20/17 at.9-11. He.rhen.concisely-conveyedhis dunking: "ldidn't thmkitwas a rnentonous

argwnenttosuggest that a gun battle on the streets of Philadelphia was an involuntary manslaughter:"

N.T. 3/20/17 at 15 . In appellate counsel's professional opinion, arguillg on appeal that the evidence

U1   the record supported a charge of involuntary manslaughter would have been futile Id. at 15-19.

         Simple appellate strategy req:wres that counsel should put to.i:th the .best issues on appeal as

courts do not look fiwc:>rably op. appeals. that are filled with fnvolous claims. Com:inonwea:lih v.

Bracei,795 A.2cl 935, 950    (Pa. 2001) ,atv�Jones v. Ba:rnes, 46� us, 745, 748 (1983) Counsel's

strategy ts presumed effectrve.afit has a reasonable basts. to.advance the client's interests.

Commonwealth y. Miller, 819 A 2d 505,.517 (Pa. 2002). The appeal was pursued by Mr:

Diamondstem on only two grounds; sufficiency of the evidence and court error th denying counsel's

requesrfor a charge of voluntary manslaughter N.T 3/20/17 at 8, Mr. Diarnondstem wanted the

narrowest attack possible, to focus oh claims he thought could succeed; Id,, As he. had cases telling

him that, under· the circumstances, an appeal challenging the Court's derua) of an involuntary·

manslaughter charge would lack ment, he did notpursuethat claim m hrstailored appeal. Id.

         Narrowing the appeal to the. strongestissues rs a valid strategy, and is reasonable grounds for

not adding a weak claim that .nsks d!Juttng a stronger one. As Superior Court specifically noted, and ·

Mr. Diamondstemrecognized, thebasrs..ofa charge oflnvo1un�a:ty manslaughterwould not have

been based on petitioners' own testimony, and would in fact have been contrary to. petitioner's

testimony attnal Commonwealth v; Satchell� No. 2005 EDA 2()15 at �3, shp. op. (Pa.Super. .Nov.

lO, 2016); N:T. 3/20/17at 8. Attnal,.petttioner had maintained he had not fired his gun Mr .

Diamondstem was aware that a charge       ()f involuntary manslaughter required atleast an

                                                     .6
acknowledgementthatpetinoner had fired, sunply recklessly or wtth gross negligence ratherthan

mahctously.whichwould be requiredfor the charge.ofthird degree murder. SceCommonwealth v.

Wnght, 865 A.2d 894 (Pa.Super .' 2004) (requinngpennoncr co admirfinng gun to. give such.a

charge).

       Theussue ofa pennoaer's resnmony leavmg him without a proper basis to secure art

instruction on mvoluntary manslaughter was central to two cases upon which Mr. Dramondstem had

relied; Coinrnonweali:h v Wright, 865 A.2d at 894, and Commomvealth v StTiJth; 513 A.2d 1371;

l375 (Pa .. 1986) .. Both. ofthese cases hold that when the evidence supporting a charge of

involuntary manslaughter contradicts pennoner's own tesumony.,.g1.vmg such an mstrucnon as

unproper. Wnght, 86.5 A.2d at 8.96 Sm1th1 which the.Supreme Court decided one year afrer

Draxmger, .addinonally held that when an ..mstrucnon on involuntary manslaughter.i'would havehad

no legitimate relation to the evidence presented at trial," and when the eviderice overwhelmingly

mdicates intent, there ts no need to provide such an instrucnon. 513 A:2d ad378 While the

Supreme Court did not reference Draxing.er in       Smtth, 1t did make dear that "any evidence" rs not

enough to support a charge for involuntary manslaughter, there must be enough supportmg
evidence to make. such an uistruction "reasonable." . Id. Smith was robbing the pharmacy where the

victim worked, was seen with the gun threatening to shoot the ..vicnm, and his gun matched the

murder weapon. Id. at.1373 .After the store had been robbed, and the. valuables taken from the

occupants of'thepharmacy, the killmg shot was fired. Id Our Supreme Courtfound 1t

unreasonable under the circumstances to believe that the shooting was reckless rather than

malicious. Id.

           In Draxuiger, a husband (defendant) and wife were.inroxicatedand argued for two hours;

Dra�er; 498 A.2d af964. The police were called but, by the time they arrived, the defendant had

a gunshot wound     111   hts arm, and the wife was deceased.   ld.   The defendant was the only witness.


                                                       7
the only accounts ofwhat happened were by him, and hrs recollections differed as timewentby Id:

at 964.,.65 Dtaxmger holds, iill�r alitt. "If any version of the evidence 111 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 mvoluntary manslaughter must be given 1£ requested." Draxulget,

498 A ..2d at965. Draxinger cites a number of cases            to hold thi!.t the mvoluntary manslaughter
instruction should be given whenever "any evidence''17 supports u, including Commonwealth v .·

Williams. 415A2d403 (Pa. 1980). However, Williams states:

              Since these cases were handed down, tnal judges have lacked a standard approved by a
              ma1or1ty of the full court defirung the circumstances under which a defendant's request for
              an involuntary manslaughter charge should be granted. To clanfy this siruanon, we now hold
              that in a murder prosecution, an invohmtary manslaughter charge shall be given only when
              requested, and where the o.ffense has been made an issue in the case and trial evidence
              reasonably would support such a verdict. The rule. is firmly grounded ar logic and policy,
              for to instruct a Juty on possible verdicts that.are unsupported by any evidence can serve ·
              only to pervertjusnee, Not only may the Jury be confused by what appears to be.irrelevant
              mstnrcnons, and thereby possibly reach a mistaken verdict, but a conviction for the lesser
              offense may occur out cif discnmmatory. faypr for the defendant or out ofanimosity for the
              victim; or. the Jtity rmghr.subsntute its own visceral reaction for the classificanon established
              by the legislature.

Williams, 415 A.2d af404 {emphasis added). It is noteworthy that, despite indicating when such an

instmcnon should be given; the Supreme Court did not hold such art mstrucuon ,vas warranted in

Williams. The facts there mdicated that Williams had beaten a: blind mart to death with a lead p1pe

as he was robbing him, Id. Out Supreme Court held "it would· be ludicrous to suggest that

· appellantrecklessly or negligently struck.twelve blows with an iron pipe to the blind victim's head,"

. Id .. To warrantan instrucnon on involuntary manslaughter, and make.it "an issue in the case,"

penneners need to provide evidence that reasonably supp·orts such an mstruction


i'l Other cases aUoWUig involuntaty maoslaught<!r msteucuons based on "any evidence'! from ''whateyer source" either
predate the cases chscussed,111pra; m Com.monwealth Y Pohmeru, .378 A 2d 1189. 1192 (Pa 1977) ("[11] there IS present
trom whatever source evidence which would pemut the facr�finder to return ;l verdict of mvoluntary manslaughrer, a.
!)efendant1s enntled,upon request, to.a charge on th� elements of that offense;'), oe deal.with cases ofself-defense, �
Commonwealth v Chadeston, 94 A 5d. t Qt 2, i 039 (Pa Super 2014) (involuntary manslaughter instrucnons are proper
••it that fatalwound 1S 1nfucted dunng the course i)fa defensive struggle for .a firearm'?

                                                           8
         The evidence Supenor Court believed could be a basis for an involuntary manslaughter

.instruotion in this case was the testunony of "Perpck Williams; a close. acquaintanceof-Satchell, who

testified that he saw Satchell, with two other men, finng at-another group ofmen through a crowded

street, Assuch, therewas evidence.in the record that Satehell fired his gun ma: 'reckless or grossly

neghgent manner." Commonwealth v Satchell, 2005 EDA 2015, 2016 WL 6649241, at *3 (Pa.

Super. Ct. Nov. 10, 2016).18

         The requirement.from Wilha'ms that the evidence reaSoritibfy needs to support the charge of

involuntary manslaughter is stillthe controlling law ,i!i not the "any evidence" language from

Draxmger. Commonwealth v; McCloskey, 10 years after the Drax1nger decision, cites \Vtlhams to

say "a charge on involuntary manslaughter shall be given only where the trial evidence 'reasonably

would support such a verdict,' [mearung] JUSt that: .a verdict," 656 A 2d 1369, 137$ (Pa.Super,

1995). The evidence must indicate not just the possibility of a verdict of involuntary manslaughter,

but that a reasonable Jury would. render such a verdict on the evidence presented. As petitioner's

direct appeal challenged the suffic1en:cy of the evidence to prove. the mahcious intent needed for

tlurd degree murder; and Superior Court there had affirmed that the evidence was sufficient,20 'Mr.




 18
    In Commonwealth y Scales, 648 A:2dt205, 1208 (PaSuper, 1994), SupenorCeurr addressed a threat to the general
                                                                                      a
 pubbc rather than to a paca.cular vicnm There, the defendant, dnvtnglus car through crowd of.pedesteans, was found
 to have the rcquisire.rnahce and intentfor tlu:rd degree murder, arid, therefore, an insrrucnon on thvoluric:iry
 manslaughter was found. not to be supported by the.evidence, despite pennoner's request. Supenor Court :,.nalogued
·that at was asif defenda:nt"had pointed and 6xecl a·gun down the crowded-street wuh.peopleja the.hne of fire"· til As
                                                                                                               .claun
 polritl!lg and finng � gu,n into a crowded. s(reet ts exactly what the 1uty found pennoner dld here, 1t 1� clear that a
 t.hat ms acnons were reckless, not rnahctous, ,votiid ha.v.e failed There IS ample case law md1catlhg that pursumg-the
 issue that.rt was tnal court error (O reject the r�uest for an mvoluntary.rnani,Jaughter charge would have faded

              (rom W�liams bas been cired by S'1penor Court up ta. the present � Commonwealth Y Hess, 915
19 This pnaciple
EDA 2016, 2017 WL $17125; at "'4 (Pa Super Mar 1, 2017) (stabbing an unarmed .man several tunes in the back.does
not.support a.charge.of U)voluntary manslaug}.lter)
20�D,ssennng Op1ruon ofJµsnce Sreyens, tn Cornrnonwe�Jtb v Satchell, No. 2005 EDA 2015 at "'5; shp op.
(Pa Super Nov. 10, 2016).(clanfylilg thar Supenor Courtalready found the evidence suffioent for third degree murder)


                                                           9.
Diamondstem's inference that an mstrucnon for involuntary manslaughter would have been rejected

was correct �1

        Draxingei's facts ate unusual,      and not at all similar to the facts in' tlus case. The husband's

test.lJ:nonyuiDraX1nger could have reasonablysupported anumber ofverchcts·based on how

credible the Jury found the defendant In Snuth, the Supreme Court found the facts dearly did not

support a charge of involuntary manslaughter: shooting.someone aftera robbery is completed is not

reckless, it is mahcious Willlams, which both Drax.ulge.t and Srtuth cue, had even dearer facts. no

reasonable .)ury could find beanng a blind.man to death was anydurig but malicious. In the presenr

case, intentionally sheeting rnulnple times through a crowded street was malicious- Peutioner was

well aware'. the area he was shooting ID to was frill of people. 'Evidence that, despite what he; testified

to, pennoner did fire the gun "with. two other men . through a crowded street" was not enough on

1ts own for an instruction on involuntary manslaughter, given the ample guidance from.Supreme

Cow:t and Superior Court case law. There needed to be some evidence q£ a lesser mens rea that

petitioner's acuons were neghgent or reckless, not mahcious. Instead, the evidence showed' that

petitioner and his · two companions fired a· total of 16 shots while mnocent bystanders were put at

nsk.21 The Commonwealth's wnnesses.and the very actions of peuttoner and his companions,

provided the malice, yet petitioner claimed innocence. None. of the evidence indicated his firing of

the gun was a mistake, or an accident. Even if pet.le.oner had testified that he did fire; but had been

reckless, he could not have prevailed under the circumstances of this case. Petitioner provided




21 Mr Dsamondstem tesnfied that, due to rhe crrcumstances of tbe case, even.if he had been aware ofDraxmger.Jus
strategy would.not have changed NT 3/20/17 ar 14 ..

225" Commonwealth v: Rammhal, �3 A 3d 602, 607"oa (Pa 20.11), Common,vea1th y Overby� 836 A2d 20; i2 (Pa
2003) {noting that number ofshots fired-.can consntu_te circumstannal evidence of both specific intenr and mahce)


                                                         10
nothing to dispute what Superior Court had earlier found: petmoner's conduct was mahcious, and

the evidence was sufficient to support a convicnon for tlurd degree. murder."

            For the! foregoing zeasonsj.appellate counsel had a reasonable basis               not to advocate m'favor
of the mv.oJuntary manslaughter instruction, and therefore, the dismissal of petrnoner's PGRA

petm.on should be affirmed."

                                                                    l3YTHE COURT·

                                                                          ·�

                                                                       /11.    . .... ·. . . . . ·.
                                                                               .   . .           .   :
                                                                          ..             .               .   .


                                                                    M.  TEREsisii.iiNA.].




2l '"Abscnt some evidence showing that vicum's death was an accident caused by defendant's extreme carelessness;
defendant was not entitled to mstrucaon on 1t1volunt:iry manslaughter as lesser included offense of murder; defendant
needed evsdence.that would tend to show that heacted red<les�ly. or with gross ncgligencetn causing vicnm's death."
!;:ommoiiwealth y Solqs, 687 A 2d 1139rl l40 (Pa Super 1996) fitmg18 Pa CS A §25Q4(a) Pennoncr bad beaten his.
grandfather; and .confessed to the murder givin:g his monve as "just wani[ing) to . take his gun!l :ind bullets. and kill some
one (sic},; 'ut. The evidence indicated that penuoner.had acted WlUl fl\ab1=e, not .recklessness 0[ gtoss negligence
     f�r all th.e same reasons,.pet1t1oner was not prejudiced. by appellate counsel's failure, as an appeal c1t111g
.2� Arid,
Draxm�r still would have failed� providmg pet1t1one.r with no relief
