Opinion
J-A25043-18 No. 1305 EDA 2017
12-31-2018
COMMONWEALTH OF PENNSYLVANIA v. DAVID SATCHELL, Appellant.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
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 In an unpublished memorandum filed on September 10, 2010, we affirmed his judgment of sentence, and our Supreme Court denied his petition for allowance of appeal on June 6,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).
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 In an unpublished memorandum filed on November 10, 2016, we agreed with the PCRA court that Satchell's claim of trial counsel's ineffectiveness lacked merit.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. 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:
President Judge Emeritus Stevens dissented and would have affirmed the denial of post-conviction relief.
"[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
Commonwealth v. McCloskey , 656 A.2d 1369, 1372 (Pa. Super. 1995).Satchell , unpublished memorandum at 4-6. Because the PCRA court dismissed Satchell's amended petition without a hearing, we remanded so that 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.
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.
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:
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?See Satchell's Brief at 2.
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?
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 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 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.
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.
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 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. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/31/18
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