J-S55001-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAVID SATCHELL,

Appellant No. 2005 EDA 2015

Appeal from the PCRA Order June 5, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0004687-2008

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

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

The Majority concludes there is arguable merit to Appellant’s 

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

involuntary manslaughter instruction. Accordingly, the Majority reverses 

and remands to the PCRA1court for a determination of whether appellate 

counsel had a reasonable basis and whether Appellant was prejudiced by 

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

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

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

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

____________________________________________

1

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. 
J-S55001-16

- 2 -

prong of the ineffectiveness test.2 Thus, I would affirm the PCRA court’s 

dismissal of Appellant’s PCRA petition and respectfully dissent. 

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

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

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

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

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

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

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

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

omitted).

Involuntary manslaughter is defined as a killing that occurs when, “as 

a direct result of the doing of an unlawful act in a reckless or grossly 

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

negligent manner, [an individual] causes the death of another person.” 18 

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

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

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

____________________________________________

2 The Majority finds trial counsel properly requested a charge on involuntary 

manslaughter and specifically noted his exception when the trial court 

denied the request. Thus, the Majority concludes trial counsel cannot be

deemed ineffective with regard to the trial court’s failure to charge the jury 

on involuntary manslaughter. I agree with the Majority in this respect. 
J-S55001-16

- 3 -

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

whether appellant made a timely request for an instruction on involuntary 

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

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

involuntary manslaughter.” Id. at 1372. 

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

made a timely request for an involuntary manslaughter instruction; 

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

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

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

was convicted. 

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

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

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

Commonwealth presented the testimony of eyewitnesses to the gun battle, 

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

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

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

never fired his gun. 

____________________________________________

3

It is noteworthy that this Court deemed the evidence sufficient on appeal 

to sustain Appellant’s conviction for third-degree murder. 
J-S55001-16

- 4 -

The record demonstrated that Appellant acted with the requisite malice 

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

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

recklessness or gross negligence for involuntary manslaughter. See 

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

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

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

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

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

case, and the evidence does not support an involuntary manslaughter 

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

to Appellant’s underlying ineffective assistance of counsel claim.

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

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

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

brief, Appellant has not meaningfully discussed and developed an argument 

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

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

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

no argument with regard thereto. 

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

individually discuss substantively each prong of the [ineffectiveness] test.” 
J-S55001-16

- 5 -

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

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

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

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

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

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

(citations and footnote omitted). 

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

burden of proving arguable merit or prejudice with regard to appellate 

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

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

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

hearing, and I respectfully dissent.