Opinion
957 MDA 2023
06-18-2024
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered June 29, 2023 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0005760-2014.
Benjamin D. Kohler, Esq.
BEFORE: BOWES, J., STABILE, J., and MURRAY, J.
MEMORANDUM
MURRAY, J.:
Lamar Douglas Clark (Appellant) appeals from the order denying his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. This case returns to us after we vacated a prior order denying PCRA relief, and remanded the matter to the PCRA court for an evidentiary hearing. Commonwealth v. Clark, 276 A.3d 249, 400 MDA 2020 (Pa. Super. 2022) (unpublished memorandum at 9-10) (hereinafter, "Clark-Remand"). After careful review, we reverse the order, vacate Appellant's judgment of sentence in part, and remand for a new trial.
The procedural history underlying this appeal is convoluted. In January 2015, the Commonwealth charged Appellant with criminal homicide, attempted criminal homicide, and related offenses, arising from his firing a handgun five times inside a bar in Lancaster. The shooting resulted in the death of one man and caused injuries to two other patrons. Randall L. Miller, Esquire (trial counsel), represented Appellant following his arrest.
The case proceeded to a six-day jury trial in May 2016. In Clark- Remand, this Court detailed the trial evidence:
[B]efore 10:00 p.m. on November 7, 2014, Appellant entered Shenk's Cafe, a neighborhood tavern in Lancaster, Pennsylvania, with Daniel Ishman [(Ishman)]…. The bar area of Shenk's Cafe is a narrow space, approximately 14 feet wide. At the time Appellant entered, the crowd in the barroom was estimated at between 20 and 50 people.
Appellant and Ishman left the bar and returned approximately twenty minutes later with Joshwin Gonzalez [(Gonzalez)]…. At around 10:00 p.m., Appellant called Ishman over and said that "he felt like someone was after him." Then, as Gonzalez approached, Appellant told him to stop and asked why he was coming over. Gonzalez replied that he thought Appellant had called [to] him. Appellant then pointed a [revolver] at [Gonzalez] and fired five shots. Three people were struck by gunfire.
[] Gonzalez suffered a gunshot wound to the left arm. Cynthia Boots, a customer who had been seated near the jukebox, suffered a wound to the left breast. Barry Diffenderfer, a customer also seated near the jukebox, suffered a fatal wound to the chest….
Shortly after the shooting, police observed Appellant running naked on Chestnut Street, approximately two blocks from
Shenk's Cafe. As Appellant was being detained [by police in a parking lot], a juvenile [(J.V.)] called to police and gave a revolver to Lancaster City Detective Stanley Roache[ (Detective Roache),] explaining that Appellant had given the weapon to [J.V.]. That weapon, a five-shot revolver, contained five spent .38 caliber cartridges. Four .38 caliber bullets were recovered from Shenk's Cafe; one had DNA from [] Gonzalez and a second had DNA from Cynthia Boots. A fifth bullet was recovered from the body of Barry Diffenderfer. The [revolver] that [J.V.] gave to police was traced back to the late father of Appellant's current girlfriend[,] at the address where Appellant lived with his girlfriend.
Police were able to identify and interview approximately twelve people who had been in Shenk's Cafe that night. One witness, Veldresha Lucas [(Lucas)], Appellant's sister, testified to seeing the interaction between Appellant, Ishman and Gonzalez that preceded the shooting[,] as well as the shooting itself.Others testified to hearing shots and hiding in fear.
Appellant also presented evidence[, which we discuss further infra]…. Martha Cuelo testified that she overheard Ishman saying that "they [(i.e., Ishman and Gonzalez)] had set up Appellant and he was going to never come out."
On cross examination, Detective Roache testified that [J.V.,] the juvenile who handed him the pistol[,] told him that Appellant had said "they tried to kill me." Police Officer Ben Bradley, who was present when Appellant was detained and transported him to the police station, also testified on both direct and cross
examination that Appellant had said "they tried to set me up in Shenk's."
Trial counsel filed a pretrial motion in limine to preclude evidence that Appellant attempted to steal a car shortly after the shooting. See Motion in Limine, 4/25/16, ¶ 9(bb). The trial court granted Appellant's motion in limine and precluded any evidence on this matter.
Lucas testified for the Commonwealth and described the shooting, which she witnessed while seated at the bar. See N.T., 4/28/16, at 75-78. Lucas confirmed seeing Appellant fire five shots at Gonzalez. Id. at 78. However, Lucas testified, "when my brother was firing the shots, [Ishman] was behind [Appellant] pulling him. Shots were still firing at that time." Id. at 81. Lucas further stated she did not see Gonzalez or anybody aside from Appellant with a firearm. Id.
Clark-Remand, 276 A.3d 249 (unpublished memorandum at 1-4) (footnotes added; citation and brackets omitted).
At trial, the defense proposed the following theory: (1) Appellant had acted in justifiable self-defense in firing one shot at Gonzalez, as Gonzalez brandished a handgun and approached Appellant inside Shenk's Cafe; and (2) after Appellant fired the first shot, Ishman grabbed the gun with his hand, which caused four more shots to eject. See, e.g., N.T., 5/2/16, at 11-12, 17-18 (trial counsel's closing argument to the jury); see also Commonwealth v. Ventura, 975 A.2d 1128, 1143 (Pa. Super. 2009) (detailing the elements the Commonwealth bears the burden of disproving where the defendant raises the issue of self-defense). Appellant did not testify at trial. However, he presented testimony from Joshua Welsh (Welsh), in support of his self-defense theory.
Welsh testified he was inside Shenk's Cafe and witnessed the shooting and the events immediately preceding it. See N.T., 4/29/16, at 131-40. Welsh watched as Gonzalez approached Appellant in a threatening fashion, with "[Gonzalez's] hand on a gun." Id. at 137. Welsh described Appellant's response to Gonzalez's armed approach as follows: "[Appellant], he keeps looking back and then says: Yo, stop reaching. Yo, stop reaching." Id. at 138. According to Welsh, Appellant then withdrew a handgun and fired one shot at Gonzalez. Id. at 139. Welsh testified that after the first shot, "Ishman[] grabbed [Appellant's] hand and [Ishman stated]: I got this." Id. (emphasis added). Welsh then heard "[t]hree to four" more shots fired. Id. at 140. Welsh confirmed he was unable to see "who's pulling the trigger at that point," due to "[t]heir hands [being] over the top of" the gun. Id. (emphasis added).
It is undisputed that only Welsh testified to seeing Gonzalez with a gun. See PCRA Court Opinion, 1/31/20, at 10 ("Welsh was the only defense witness able to describe the events inside Shenk's Cafe and the only witness to put a weapon in the hands of [] Gonzalez.").
The defense also presented testimony from Lisa Thornton (Thornton), Appellant's girlfriend. Id. at 165. Thornton stated that the day after the shooting, she went to Ishman's house with Appellant, Ishman, and Lucas. Id. at 168. According to Thornton, Ishman described to the group the events that preceded the shooting. Id. at 170-74. According to Thornton, Ishman statedhe "reached over top" of Appellant's hand after Appellant fired the first shot, and additional shots were fired. Id. at 171, 173-75.
The Commonwealth did not raise a hearsay objection.
At the conclusion of trial, the trial court instructed the jury on various matters trial counsel requested, including self-defense, third-degree murder, and voluntary manslaughter. Importantly, trial counsel did not request an instruction on involuntary manslaughter.
Involuntary manslaughter is a lesser included offense of murder. Commonwealth v. Polimeni, 378 A.2d 1189, 1193 (Pa. 1977). A conviction for involuntary manslaughter would have required the jury to find that Appellant acted recklessly or in a grossly negligent manner. 18 Pa.C.S.A. § 2504(a). The mens rea for murder, on the contrary, is malice. Id. § 2502; Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017) (defining malice).
The jury found Appellant guilty of eleven counts of recklessly endangering another person (REAP), two counts of aggravated assault, and one count each of third-degree murder and firearms not to be carried without a license. The jury acquitted Appellant of two counts of attempted murder and one count of first-degree murder. On July 7, 2016, the trial court sentenced Appellant to serve an aggregate 38½ to 81 years in prison.
Id. §§ 901(a), 2502(a).
Appellant filed a counseled direct appeal challenging, inter alia, the sufficiency of the evidence underlying one aggravated assault conviction. This Court affirmed Appellant's judgment of sentence. Commonwealth v. Clark, 169 A.3d 1211, 1289 MDA 2016 (Pa. Super. 2017) (unpublished memorandum) (Clark I). Appellant filed a petition for allowance of appeal, which the Pennsylvania Supreme Court denied. Commonwealth v. Clark, 177 A.3d 829 (Pa. 2018) (per curiam).
On November 26, 2018, Appellant, acting pro se, timely filed his first PCRA petition. Appellant raised numerous claims alleging trial counsel's ineffectiveness. The PCRA court appointed Edwin G. Pfursich, IV, Esquire (prior PCRA counsel), to represent Appellant. Prior PCRA counsel did not file an amended PCRA petition.
The matter proceeded to an evidentiary hearing on July 23, 2019 (2019 PCRA hearing), where prior PCRA counsel represented Appellant. Among others, trial counsel testified at the 2019 PCRA hearing.
The PCRA court dismissed Appellant's PCRA petition on January 31, 2020. Appellant timely appealed, represented by prior PCRA counsel. This Court deemed all of Appellant's issues waived, based on his failure include any supporting legal authority in his appellate brief. Commonwealth v. Clark, 248 A.3d 482, 400 MDA 2020 (Pa. Super. 2021) (unpublished memorandum at 6) (Clark II); see also Pa.R.A.P. 2119(a) (requiring appellants to develop arguments with citation to and analysis of relevant legal authority).
In February 2021, prior PCRA counsel filed a petition for allowance of appeal (allocatur petition) of the Clark II decision to the Pennsylvania Supreme Court. Shortly thereafter, Appellant filed, with the Supreme Court, a petition challenging prior PCRA counsel's effectiveness during the PCRA proceedings. Appellant emphasized prior PCRA counsel's failure to cite any legal authority in his Clark II Superior Court brief, which resulted in the waiver of all claims.
In the allocatur petition, prior PCRA counsel again failed to support any of his arguments with citation to relevant legal authorities.
In Commonwealth v. Clark, 254 A.3d 723 (Pa. 2021) (per curiam) (Clark III) the Supreme Court agreed with Appellant, vacated this Court's memorandum and order, and reinstated Appellant's PCRA appeal rights nunc pro tunc. Id. at 725. The Supreme Court explained,
Subsequently, in Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), the Supreme Court similarly held, "a PCRA petitioner may, after a PCRA court denies relief, and after obtaining new counsel or acting pro se, raise claims of PCRA counsel's ineffectiveness at the first opportunity to do so, even if on appeal." Id. at 401. Justice Wecht, in his concurring opinion in Bradley, acknowledged that Clark III presented a similar scenario. Id. at 408-09 (Wecht, J., concurring).
[a]t the appellate stage, PCRA review may be forfeited when a petitioner's counsel files a brief waiving all preserved claims of error for lack of development, as occurred here. In light of the patently deficient handling of his PCRA appeal, [Appellant] raised a challenge to [prior PCRA counsel's] stewardship at the earliest possible opportunity.Id. The Supreme Court remanded the matter to the PCRA court for the appointment of new counsel, and granted prior PCRA counsel leave to withdraw. Id.
On remand, the PCRA court appointed John M. Masslon, II, Esquire (current counsel), to represent Appellant. On Appellant's behalf, current counsel filed another appeal from the PCRA court's January 31, 2020, order dismissing Appellant's PCRA petition. On March 21, 2022, this Court rendered our decision in Clark-Remand.
In Clark-Remand, we explained that Appellant, "with the assistance of current counsel, [] filed a reply brief [in this Court]. Appellant's reply brief include[d] three additional claims of ineffective assistance by prior PCRA counsel." Clark-Remand, 276 A.3d 249 (unpublished memorandum at 6) (footnote citation to Bradley omitted). This Court determined that Appellant complied with Bradley, and "raised the supplemental claims challenging prior PCRA counsel's effectiveness at the earliest opportunity in his reply brief." Id. at 9 (footnote omitted); see also id. (concluding that Appellant's ineffectiveness claims properly constituted "more than mere boilerplate assertions of PCRA counsel's ineffectiveness." (quoting Bradley, 261 A.3d at 402)).
Accordingly, we
vacate[d] the order denying PCRA relief and [] remand[ed] the matter to the PCRA court for an evidentiary hearing to permit … prior PCRA counsel[] to testify concerning the supplemental ineffectiveness claims included in Appellant's reply brief.Clark-Remand, 276 A.3d 249 (unpublished memorandum at 9-10); see also Bradley, 261 A.3d at 381 ("In some instances, the record before the appellate court will be sufficient to allow for disposition of any newly-raised ineffectiveness claims. However, in other cases, the appellate court may need to remand to the PCRA court for further development of the record and for the PCRA court to consider such claims as an initial matter." (internal citation omitted)).
The Clark-Remand Court did not address the merits of Appellant's ineffectiveness claims.
On remand, current counsel filed a supplemental PCRA petition on May 25, 2022. The PCRA court held an evidentiary hearing on August 31, 2022 (2022 PCRA hearing), where Appellant, trial counsel, and prior PCRA counsel testified.
The PCRA court ultimately denied Appellant's supplemental PCRA petition on June 29, 2023. This timely appeal followed. Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
Appellant presents three issues for review:
1. Did the PCRA Court err by holding that [trial counsel] did not provide ineffective assistance of counsel by failing to request an involuntary manslaughter instruction?
2. Did the PCRA Court err by holding that [trial counsel] did not provide ineffective assistance of counsel by failing to object to evidence excluded by the Trial Court before trial?
3. Did the PCRA Court err by holding that [prior PCRA counsel] did not provide ineffective assistance of counsel by dropping the claim that [trial counsel] was ineffective by not seeking a weapon-focus effect instruction?
Appellant's Brief at 3.
When reviewing the denial of a PCRA petition, we examine whether the determination of the PCRA court is supported by the record and free of legal error. Commonwealth v. Drummond, 285 A.3d 625, 633 (Pa. 2022). We "consider the record in the light most favorable to the prevailing party at the PCRA level," and "grant great deference to the PCRA court's findings that are supported in the record." Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa. Super. 2018) (citations omitted). "[T]he petitioner has the burden of persuading th[e appellate c]ourt that the PCRA court erred and that such error requires relief." Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019).
Here, it is undisputed that Appellant's PCRA petition is timely, as he filed it within one year of his judgment of sentence becoming final. See 42 Pa.C.S.A. § 9545(b)(1) (all PCRA petitions must be filed within one year of the date the judgment of sentence becomes final). In each of his claims, Appellant asserts all prior counsel's ineffectiveness. Appellant's Brief at 3.
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.A. § 9543(a)(2)(ii)). Pennsylvania law presumes counsel is effective; a PCRA petitioner bears the burden of proving otherwise. Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018); see also Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super. 2014) ("As a general and practical matter, it is more difficult for a defendant to prevail on a claim litigated through the lens of counsel ineffectiveness, rather than as a preserved claim of trial court error." (citation omitted)).
To overcome the presumption of counsel's effectiveness, a PCRA petitioner must plead and prove each of the following three prongs:
(1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's action or failure to act; and (3) he suffered prejudice as a result of counsel's error, with prejudice measured by whether there is a reasonable probability the result of the proceeding would have been different. Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (employing ineffective assistance of counsel test from Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987)). … Additionally, counsel cannot be deemed ineffective for failing to raise a meritless claim. Finally, because a PCRA petitioner must establish all the Pierce prongs to be entitled to relief, we are not required to analyze the elements of an ineffectiveness claim in any specific order; thus, if a claim fails under any required element, we may dismiss the claim on that basis.Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (citations modified).
With respect to the "reasonable basis prong" of the Pierce test, we have stated,
[i]t is … axiomatic that the test for evaluating a claim of ineffective assistance of counsel is whether the record supports a conclusion that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interest. In making this assessment we are not to employ a hindsight evaluation to determine whether other alternatives may have been more reasonable, but whether there was a reasonable basis for the course of action actually selected.Charleston, 94 A.3d at 1027 (emphasis omitted) (quoting Commonwealth v. Musi, 404 A.2d 378, 380 (Pa. 1979)).
Regarding the "prejudice prong" of the ineffectiveness test, the Charleston Court stated:
A defendant raising a claim of ineffective assistance of counsel is required to show actual prejudice; that is, that counsel's ineffectiveness was of such magnitude that it "could have reasonably had an adverse effect on the outcome of the proceedings."Id. at 1019 (brackets omitted) (quoting Commonwealth v. Spotz, 84 A.3d 294, 315 (Pa. 2014)).
In his first issue, Appellant argues the PCRA court improperly rejected his ineffectiveness claim based on trial counsel's failure to request an involuntary manslaughter jury instruction. See Appellant's Brief at 29-50. Appellant claims the trial "evidence supported a finding that he recklessly fired four rounds while defending himself[,]" and thus, trial counsel lacked any reasonable basis for not requesting an involuntary manslaughter instruction. Appellant's Reply Brief at 3 (footnote and emphasis added; citation omitted); see also id. at 3-4 ("The involuntary-manslaughter theory was that shots two through five were fired recklessly after [] Ishman grabbed the revolver."). As Appellant correctly observes, the PCRA court conceded Appellant's underlying claim has arguable merit. Appellant's Brief at 32 (citing PCRA Court Opinion, 6/29/23, at 8, n.9).
As stated above, it is undisputed that Appellant intentionally fired the first round at Gonzalez, purportedly acting in self-defense.
Appellant emphasizes trial counsel successfully sought a jury instruction on voluntary manslaughter. Id. at 32-33; see also id. at 33 (pointing out the "penalty for voluntary manslaughter is four times harsher" than that for involuntary manslaughter (citations omitted)). Appellant argues that, where trial counsel had elicited testimony from Welsh and Thornton establishing only involuntary manslaughter, counsel lacked any reasonable basis for not requesting an involuntary manslaughter instruction. Id. at 38.
Appellant further claims the "PCRA [c]ourt's finding that [trial counsel] pursued an all-or-nothing [defense] strategy is belied by the fact that [trial counsel] requested a voluntary manslaughter instruction." Id. at 34. Appellant contends trial counsel was not asking the jury to focus on a binary murder/acquittal option. Rather, he was trying to ensure the jury convicted [Appellant] of the least serious charges possible. Not requesting an involuntary-manslaughter instruction deviated from this strategy, particularly given that the evidence in the case fully supported the instruction.Id. at 36-37.
Moreover, Appellant argues trial counsel's explanation of his "strategic reason for not requesting an involuntary-manslaughter instruction" was legally "illogical" and "a mistake." Id. at 32, 33 (capitalization modified); see also id. at 44 ("There is simply no way to reconcile some parts of [trial counsel's] PCRA hearing testimony with other parts of his testimony."). Appellant avers trial counsel "chose to call [Welsh and Thornton as trial witnesses] and elicit testimony supporting only an involuntary manslaughter conviction." Id. at 38. Thus, Appellant argues, trial counsel's "'strategy' conflicted with his other trial actions." Appellant's Reply Brief at 10; see also id. ("During his closing argument, [trial counsel] focused on how [Ishman] grabbing the revolver caused the reckless firing of shots two through five. The reckless firing of shots … supports an involuntary manslaughter conviction…." (citing N.T., 5/2/16, at 11-12, 17-18)).
Appellant argues he suffered actual prejudice from trial counsel's failure to request the instruction, as "there is a reasonable likelihood the outcome of the proceedings would have been different but for" counsel's ineffectiveness. Appellant's Brief at 50 (citation omitted). Appellant argues the jury
reached a compromise [verdict] because jurors reached an impasse during deliberations. If it were presented with the option to find [Appellant] guilty of involuntary manslaughter, it may have reached a different compromise.Id. at 49; see also id. at 50 ("Juries sometimes render verdicts that outsiders cannot explain.").
Finally, Appellant distinguishes our Supreme Court's decision in Musi, 404 A.2d 378. See Appellant's Brief at 35-38; Appellant's Reply Brief at 8-9. In Musi, a jury found the appellant guilty of third-degree murder, in connection with the shooting death of her husband. Musi, 404 A.2d at 379; see also id. at 381 (noting the appellant "concedes that the killing occurred while she was committing the act of pointing the rifle at the victim."). At trial, the appellant unsuccessfully testified that "the rifle discharged only because her husband grabbed it while she was holding it." Id. at 380.
On direct appeal, the appellant claimed defense counsel was ineffective for failing to request a jury instruction on involuntary manslaughter. Id. at 381-82. The Musi Court affirmed appellant's judgment of sentence, concluding she failed to meet her burden of establishing defense counsel's ineffectiveness:
[A]ccepting the version of the facts most favorable to the defense, the appellant was at least guilty of reckless or grossly negligent conduct which was the legal cause of the death. In the charge given by the [trial] court, the jury's alternatives were confined to either finding a malicious killing (i.e., murder), an intentional killing resulting from provocation and passion[,] or an acquittal. Thus[,] if the jury had accepted the version of the defense, it could properly have returned a verdict of not guilty. If, however, trial counsel had sought and obtained a charge as to involuntary manslaughter, the option of an outright acquittal on this record would have been eliminated. In view of the presence of this legitimate reason for electing not to request a charge that would virtually end all hope of an acquittal, we cannot conclude[,] as urged by appellant[,] that counsel's decision was without a reasonable basis to effectuate his client's best interests.Id. at 382 (citation and footnotes omitted).
Here, Appellant argues that in Musi, defense counsel "had many strategic bases for his action." Appellant's Reply Brief at 9. By contrast, in this case, trial counsel "lacked a reasonable strategic basis for not seeking an involuntary-manslaughter instruction." Id. Appellant further(points out that "in Musi[,] the only evidence that supported the involuntary-manslaughter instruction was Musi's own testimony." Id. (citation and quotation marks omitted)).
The Commonwealth counters that the PCRA court properly denied relief, where (1) the evidence did not support a jury charge for involuntary manslaughter; (2) such charge "was inconsistent with the version of facts presented by the defense and the reasonable trial strategy agreed to by trial counsel and [Appellant]"; and (3) Musi is controlling. Commonwealth Brief at 8, 16-23. According to the Commonwealth, trial counsel's chosen strategy was reasonably designed to effectuate the interests of [Appellant,] because it was consistent with his version of the facts and gave him the greatest probability of being acquitted of all but one offense.Id. at 18.
It is well settled 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. Instructions regarding matters 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. Patton, 936 A.2d 1170, 1176 (Pa. Super. 2007) (citation, ellipses, and brackets omitted); see also Commonwealth v. Hairston, 84 A.3d 657, 668 (Pa. 2014) ("[I]nstructing the jury on legal principles that cannot rationally be applied to the facts presented at trial may confuse them and place obstacles in the path of a just verdict." (citation omitted)).
A jury instruction on involuntary manslaughter is warranted when the evidence adduced at trial supports a finding that the defendant caused the death of another person "as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner[.]" 18 Pa.C.S.A. § 2504(a). "[I]f the evidence in a homicide trial supports a verdict of involuntary manslaughter, the offense is an issue in the case, and a charge on involuntary manslaughter must be given if requested." Commonwealth v. McCloskey, 656 A.2d 1369, 1372 (Pa. Super. 1995) (citations and quotation marks omitted).
Instantly, at the 2019 PCRA hearing, prior PCRA counsel questioned trial counsel about the defense's trial strategy:
Q. [Prior PCRA counsel:] And what was the defense strategy at trial, the theory of the case from a defense perspective?
A. [Trial counsel:] Well, the defense theory was that of self-defense; in the alternative, imperfect self-defense.
Q. And what was your theory of the case? How was it your intention to show, at least raise the issue, of self-defense?
A. Okay. My strategy was that [Appellant] was in fear of serious bodily injury or death from Mr. Gonzalez inside Sh[e]nk's Ca[f]e. And [Appellant] had a revolver. Mr. Gonzalez had a firearm. I believe, an automatic. And that as Mr. Gonzalez approached [Appellant] inside Sh[e]nk's Ca[f]e, [Appellant] told him, stop. He did not. He continued to approach. The gun was being carried by Mr. Gonzalez. [Appellant] then reached, I believe, in his pocket for the revolver. And he discharged a shot, which I believe struck Mr. Gonzalez.
There was a fellow who was with [Appellant] … name[d] Ishman. [] Ishman manipulates, if you will, the gun in [Appellant's] hand such that the gun discharges an additional time; I believe, a total of four additional times.N.T., 7/23/19, at 9-10 (emphasis and footnote added).
"A defense of 'imperfect self-defense' exists where the defendant actually, but unreasonably, believed that deadly force was necessary." Commonwealth v. Son Truong, 36 A.3d 592, 599 (Pa. Super. 2012) (en banc) (citing, inter alia, 18 Pa.C.S.A. § 2503(b)). "A successful claim of imperfect self-defense reduces murder to voluntary manslaughter." Id.; see also Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 (Pa. 2012).
Prior PCRA counsel elicited the following testimony regarding trial counsel's failure to request an involuntary manslaughter instruction:
Q. [Prior PCRA counsel:] There was testimony from [] Welsh that multiple shots are fired when [Appellant] and [] Ishman were struggling for the firearm, correct?
A. [Trial Counsel:] I don't know if struggling for the firearm is the correct -- this is a very fact-intensive situation. I don't know that they were struggling for it.
In fact, Mr. Welsh, I believe, his testimony was that Ishman's hand essentially completely encompassed the hand of [Appellant] as the additional four shots were going off. So, I guess, arguably you can say that was the situation where they were fighting with [the gun]. But under the circumstances, I was given the instruction [by Appellant], and it was always the strategy, that this was going to be a self-defense case, okay? Or in the alternative[,] imperfect [self-defense], if [Appellant's] belief was not reasonable. So I did not ask for … [a jury instruction on] involuntary manslaughter, because I didn't think that it was appropriate to the facts of the case and frankly, I didn't think [the trial court] was going to give it to me.
* * *
Q. So your testimony is your basis for not asking for involuntary manslaughter is that, based upon the evidence presented, you did not believe that the facts supported it?
A. Correct. In other words, we were going for it all. The only thing that we knew that the self-defense had absolutely no effect on was [the charge of] carrying a firearm without a license. That has nothing to do with self-defense. But the REAP counts, … the aggravated assault counts and criminal homicide, whether it's first or third degree [murder] or voluntary manslaughter, that all had to do with self-defense. That was a strategic decision that I made in agreement with [Appellant]. And he's a smart man.Id. at 25-26 (emphasis added). However, trial counsel's statement, "we were going for it all," was directly contradicted by trial counsel's request for a voluntary manslaughter instruction.
In its opinion, the PCRA court addressed Appellant's ineffectiveness claim based on trial counsel not requesting an involuntary manslaughter instruction, and found the underlying claim has arguable merit. PCRA Court Opinion, 6/29/23, at 8, n.9. Nevertheless, the PCRA court found Appellant failed to establish the reasonable basis prong of the ineffectiveness test, pursuant to Musi. Id. at 9-10. The PCRA court observed that in Musi, trial counsel had a reasonable basis for not requesting an instruction on involuntary manslaughter. Id. at 9 (quoting Musi's holding that "the appellant was at least guilty of reckless or grossly negligent conduct which was the legal cause of the death"; and if trial counsel "had sought and obtained a charge as to involuntary manslaughter, the option of an outright acquittal on this record would have been eliminated." Musi, 404 A.2d at 382 (citation omitted)). The PCRA court concluded that like Musi,
[s]o too in the present case, [Appellant] was at least guilty of reckless or grossly negligent conduct[,] as he illegally possessed a firearm and fired it multiple times indoors in a public place, conduct for which he was convicted on eleven counts of [REAP]. Accordingly, the [PCRA] court cannot conclude that trial counsel lacked a reasonable basis to effectuate [Appellant's] best interests. To the contrary, the court firmly finds that the actions taken reflect a firm decision made by counsel and [Appellant].
PCRA Court Opinion, 6/29/23, at 9-10 (footnotes omitted; formatting and capitalization modified). The PCRA court, like prior PCRA counsel, ignores the voluntary manslaughter instruction requested by trial counsel, as well as the evidence and argument trial counsel presented to the jury.
The circumstances here are similar to those presented in Commonwealth v. DiVentura, 411 A.2d 815 (Pa. Super. 1979). In DiVentura, this Court addressed whether defense counsel was ineffective for failing to request a jury instruction on voluntary manslaughter in a case where appellant faced a murder charge. Id. at 816. We observed, in a trial on a murder indictment, when there is evidence presented from whatever source that would permit the trier of fact to return a verdict of involuntary manslaughter, the defendant is entitled, upon request[,] to a charge on the elements of involuntary manslaughter.Id. at 816-17 (emphasis added) (citing Polimeni, 378 A.2d at 1191). We concluded, "under the facts of this case such a charge was required, if it had been requested." Id. at 817; see also id. at 818 (where the appellant testified at trial in his defense and claimed the strangling death of his wife was accidental, stating, "[i]f believed, the [appellant's] testimony might support a conviction for a grossly negligent or reckless killing. Such a killing would meet the statutory definition of involuntary manslaughter."). Thus, appellant's underlying claim had arguable merit. Id. at 817-18.
The DiVentura Court further concluded defense counsel lacked any reasonable basis for not requesting an involuntary manslaughter instruction. Id. at 818. We stated, "[u]nlike the situation in Musi, there was no assertion of trial strategy as the reason for counsel's decision not to request the instruction." Id. (citation modified; footnote omitted). We further determined appellant established prejudice resulting from counsel's ineffectiveness, reversed his judgment of sentence, and remanded for a new trial. Id.
We are also guided by this Court's decision in Commonwealth v. Bender, 237 A.3d 1060, 2531 EDA 2019 (Pa. Super. 2020) (unpublished memorandum). There, the PCRA petitioner (petitioner) claimed his defense counsel (Attorney Feldman) was ineffective for failing to request an involuntary manslaughter instruction at petitioner's jury trial, where he was convicted of third-degree murder and related charges. Id. (unpublished memorandum at 6-7). The PCRA court agreed and granted petitioner a new trial on the charges of third-degree murder, based on Attorney Feldman's ineffectiveness. Id. at 7-8.
Pursuant to Pa.R.A.P. 126(b)(1)-(2), unpublished non-precedential memorandum decisions of the Pennsylvania Superior Court filed after May 1, 2019, may be cited for their persuasive value.
The Commonwealth appealed the grant of PCRA relief to this Court. Id. at 8. We affirmed, rejecting the Commonwealth's claim that petitioner failed to establish prejudice resulting from Attorney Feldman's failure to request an involuntary manslaughter instruction:
The Commonwealth did not dispute that petitioner's underlying claim had arguable merit, and that Attorney Feldman had no reasonable basis for his failure to request the jury instruction. Bender (unpublished memorandum at 9).
When Attorney Feldman argued to the jury that [petitioner'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 [Commonwealth v.] Barnes, 871 A.2d [812,] 823 [(Pa. Super. 2005) ("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." (emphasis omitted))]. When [petitioner] 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 [the victim's] car and tapping it from behind to get his attention was reckless and grossly negligent, but lacked malicious intent. Id. Accordingly, [petitioner] 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 [Commonwealth v.] Koehler, 36 A.3d [121,] 132 [(Pa. 2012) (discussing prejudice prong of ineffectiveness test)]. … Accordingly, [petitioner] 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 [petitioner's] PCRA petition.Bender (unpublished memorandum at 12-13) (emphasis added; capitalization modified).
The Bender Court further
reject[ed] the Commonwealth's argument that [petitioner] was not prejudiced because the jury made findings that [petitioner] acted with malice …, which [] demonstrate[s] that the jury never would have convicted him only of involuntary manslaughter, which requires a lower mens rea of mere recklessness or gross negligence.Id. at 13-14 (citation, quotation marks and brackets omitted; capitalization modified).
Based on DiVentura and Bender, we conclude the PCRA court erred. As stated above, trial counsel (1) requested and received a jury instruction on voluntary manslaughter; (2) presented evidence from Welsh and Thornton that, if believed by the jury, could reasonably support a conviction for a reckless killing; and (3) asserted in his closing argument that after Appellant fired the first shot at Gonzalez in self-defense, consistent with Welsh's testimony, Ishman "took control of the gun and caused the wild shooting" of the remaining rounds. N.T., 5/2/16, at 11-12, 17. We conclude Appellant established, by a preponderance of the evidence, the reasonable basis and prejudice prongs of the ineffectiveness test. See, e.g., DiVentura, 411 A.2d at 816 ("[I]n a trial on a murder indictment, when there is evidence presented from whatever source that would permit the trier of fact to return a verdict of involuntary manslaughter," the defendant is entitled to a jury instruction on the offense upon request); Bender (unpublished memorandum at 12-13) (holding PCRA petitioner's defense counsel was ineffective for failing to request involuntary manslaughter jury instruction, where petitioner produced some evidence at trial that would reasonably support a verdict for the offense). Cf. Commonwealth v. Carter, 466 A.2d 1328, 1332-33 (Pa. 1983) (affirming denial of PCRA relief, and holding trial counsel was not ineffective for failing to request instruction on voluntary manslaughter where no evidence existed that would reasonably support a conviction for the crime).
Accordingly, we conclude the PCRA court erred in denying relief on Appellant's claim based on trial counsel's failure to seek a voluntary manslaughter instruction. We therefore reverse the PCRA court's denial of relief on this issue, and remand for a new trial on all charges, aside from the charge of firearms not to be carried without a license. See DiVentura, 411 A.2d at 818.
Our disposition renders Appellant's second and third issues moot.
See Commonwealth v. Smith, 379 A.2d 96, 97 (Pa. 1977) (holding the trial court's reversible error in denying "appellant's requested instruction on involuntary manslaughter does not require reversal of the weapons offense convictions." (footnote omitted)); see also Bender (unpublished memorandum at 8, 13).
Order reversed.
Judgment of sentence affirmed, in part, and vacated, in part. Case remanded for new trial. Jurisdiction relinquished.
Judgment Entered.