Com. v. White, Q.

J.S59038/13

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
QUANN WHITE, :
:
Appellant : No. 830 EDA 2013

Appeal from the PCRA Order March 4, 2013
In the Court of Common Pleas of Lehigh County
Criminal Division No(s).: CP-39-CR-0002457-2009

BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 16, 2014

Appellant, Quann White, appeals from the order of the Lehigh County

Court of Common Pleas that denied his first, timely Post Conviction Relief

Act1

that the PCRA court erred when denying his ineffective assistance of counsel

elated to the failures of prior counsel to (1) admit into the

trial evidence inculpatory statements made by Donald Tillman, (2) object or

request a cautionary instruction to comments made by police investigators

while interrogating Appellant, (3) impeach an eyewitness, Kristi Farmer, (4)

object to evidence suggesting that Appellant had committed prior bad acts,

*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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request for an involuntary manslaughter instruction. We affirm.

Appel

persons not possess a firearm2 arise from the shooting of Joseph Botz in a

parking lot in the early morning hours of May 9, 2009. Appellant and Botz,

smoking marijuana on the evening of May 8th into May 9th. Immediately

before the shooting, Hurdle and Tillman entered a parking lot in their

maroon Mitsubishi Gallant and parked. Appellant, Botz, and Kenyata White

next to the Mitsubishi. Botz and Appellant exited the Ford and approached

Tillman, who was seated in the front passenger seat of the Mitsubishi. At

pistol, the pistol fired while Appellant and Botz were fighting Tillman to

recover the firearm, and the police prematurely concluded that Appellant

shot Botz before obtaining all of the evidence.

2
18 Pa.C.S. §§ 2502(a), 6105.

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We summarize the specific trial evidence and procedural history

relevant to this appeal.3 Olasheiba Hurdle and Donald Tillman both testified

for the Commonwealth. They stated that after Joseph Botz exited the blue

Ford, he initially approached Tillman, who was in the front passenger seat of

the maroon Mitsubishi. They testified that Appellant, who had also been in

the Ford, approached Botz, shot him, and then returned to the Ford.

Kenyata White then drove Appellant out of the parking lot. Tillman also

testified that earlier on the evening of May 8, 2009, Appellant told him that

nt] and somebody did something

and went back and told [Botz], so [Botz] came back and told [Appellant] he
4
N.T. Trial, 2/4/10, at 72.

The Commonwealth also called Kristi Farmer, who was exiting a car in

the parking lot at the time of th

exited the Ford and one shot the other. Farmer also testified that she

recognized the shooter from a bar and was told his name was Twaan or

Quaan. However, she did not make an in-court identification of Appellant as

the shooter.

3
The PCRA court opinion contains a more comprehensive summary of the
trial evidence. See PCRA Ct. Op., 5/22/13, at 1-5.
4
As noted below, this testimony was the subject of a motion in limine raised
by the Commonwealth.

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Dr. Samuel Land, a forensic pathologist, testified for the

s] mouth causing an explosive explosion that

caused fractures of the maxilla, [and] tears of the lip. . . . [T]he gas

expansion caused tearing of the right cheek[, and there was tearing of the

Id. at 46. Dr. Land noted there

Id. at 47.

Commonwealth. He stated that he saw a gun in the Ford after Appellant

returned to the vehicle following the shooting and acknowledged that

at 253.

Additionally, the Commonwealth played audio recordings of two

interrogations of Appellant by police investigators. The first interrogation

occurred on May 10, 2009, the day after the shooting. That same day,

investigators filed a criminal complaint against Appellant. The second

interrogation occurred on December 7, 2009, after Appellant was in custody

and requested to speak with the investigators. Both recordings contained

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statements.

Appellant testified on his own behalf at trial. He denied possession of

the pistol on the night of the shooting and testified that Botz believed

Tillman stole the firearm. Appellant stated that he and Botz approached

Tillman in the parking lot and attempted to wrestle Tillman out of the

window of the Mitsubishi when he heard a shot and saw Botz fall. He

testified that he and Botz were best friends.

that

occurred after the shooting. Although she was prepared to testify that

hearsay objection to that testimony, and the trial court sustained the

objection. N.T. Trial, 2/8/10, at 175-77.

Appellant also presented evidence that he suffered from glaucoma and

vision in his left eye and limited vision in his right eye, which allowed him to

see only shadows in front of his face.

which the trial court denied. The jury was thereafter instructed on murder

of the first degree and third degree. On February 9, 2010, the jury returned

a guilty verdict on murder of the first degree. The trial court separately

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found Appellant guilty of person not to possess a firearm. On March 18,

2010, the trial court sentenced Appellant to a mandatory life sentence

the firearms offense.

ate counsel raised

request for an involuntary manslaughter instruction. Moreover, prior

precluded

statement and permitted Tillman to testify that Appellant stated he intended

to kill Botz. This Court affirmed the judgment of sentence on April 6, 2011,

and the Pennsylvania Supreme Co

allowance of appeal on August 24, 2011. Commonwealth v. White, 1810

EDA 2010 (unpublished memorandum) (Pa. Super. Apr. 6, 2011), appeal

denied, 357 MAL 2011 (Pa. Aug. 24, 2011).

Appellant obtained private PCRA counsel, Burton A. Rose, Esq., who

filed the underlying timely PCRA petition on August 27, 2012, and an

amended petition on November 13, 2012. On November 19, 2012, the

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PCRA court5 held an evidentiary hearing, at which trial counsel, prior

appellate counsel, and
6

Appellant presents the following questions for review:

I. WAS THE APPELLANT DENIED EFFECTIVE ASSISTANCE
OF TRIAL COUNSEL IN FAILING TO PRESENT A PROPER
FOUNDATION TO PERMIT INTRODUCTION OF TESTIMONY
THAT DONALD TILLMAN HAD KILLED THE VIC[T]IM?

II. DID TRIAL COUNSEL PROVIDE INEFFECTIVE
ASSISTANCE IN FAILING TO OBJECT OR REQUEST
CAUTIONARY INSTRUCTIONS REGARDING REPEATED
REFERENCES AT TRIAL THAT THE POLICE BELIEVED THAT
THE APPELLANT WAS INCREDIBLE AND WAS GUILTY?

III. DID TRIAL COUNSEL PROVIDE INEFFECTIVE
ASSISTANCE IN FAILING TO IMPEACH KEY PROSECUTION
WITNESS KRISTI FARMER WITH HER PREVIOUS CRIM[E]N
FALSI CONVICTIONS AND HAVING BEEN UNDER THE
INFLUENCE OF ALCOHOL?

IV. DID TRIAL COUNSEL PROVIDE INEFFECTIVE
ASSISTANCE IN FAILING TO OBJECT OR REQUEST
CAUTIONARY INSTRUCTIONS REGARDING REFERENCES
THAT THE APPELLANT MAY HAVE COMMITTED ANOTHER
SERIOUS CRIMINAL OFFENSE?

V. DID [PRIOR] APPELLATE COUNSEL PROVIDE
INEFFECTIVE ASSISTANCE IN FAILING TO ADVANCE AND
PRESERVE ON APPEAL THE ERROR ON THE PART OF THE
TRIAL JUDGE IN REFUSING TO INSTRUCT THE JURY AS TO
INVOLUNTARY MANSLAUGHTER?

5

trial and sentencing proceedings. The Honorable Douglas G. Reichley
presided over the instant PCRA proceedings.
6
Appellant timely filed his notice of appeal and complied with the PCRA

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new trial based on

conclusion that no PCRA relief was due.

Our standards of reviewing an order denying PCRA relief are well

settled.

We must examine whether the record supports the PCRA

findings will not be disturbed unless there is no support for
the findings in the certified record.

. . . [A] PCRA petitioner will be granted relief only when he
proves, by a preponderance of the evidence, that his

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

stated:

It is well-established that counsel is presumed to
have provided effective representation unless the
PCRA petitioner pleads and proves all of the
following: (1) the underlying legal claim is of

lacked any objectively reasonable basis designed to
3) prejudice, to
the effect that there was a reasonable probability of

The PCRA court may deny an ineffectiveness claim if the

prongs. Moreover, a PCRA petitioner bears the burden of

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Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)

there is any basis on the record to suppor

Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa. Super. 2009) (citation

omitted).

Additionally, a PCRA petitioner must demonstrate that the issues

raised by his petition have not been waived. Commonwealth v. Steele,

could have raised it but failed to do so before trial, at trial, during unitary

review, on appeal or in a prior state post-conviction proceeding. 42 Pa.C.S.

Id. (quotation marks omitted). A PCRA claim of trial error,

which was not raised in a direct appeal, is generally not a basis for relief

unless an independent IAC claim is presented. See id. at 799 (concluding

that allegation of error with respect to evidentiary ruling was waived where

petitioner could have raised it on direct appeal but did not do so).

trial counsel failed to admit evidence of the alleged exchange between his

conversation with Tillman regarding who shot Botz. At the PCRA hearing,

she testified that shortly after they were interviewed

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death, she asked Tillman who shot Botz, and Tillman responded that he did

By way of further background, the record establishes that trial counsel

was aware of Appella

See N.T., 2/8/10, at 175-77. However, trial counsel did not cross-

he defense, the Commonwealth

hearsay objection. The trial court sustained the objection, ruling that the
7
pro The

court further opined that the proffer was inadmissible because trial counsel

failed to disclose the alleged prior statement to Tillman during cross-

examination or give him an opportunity to explain or deny making the

statement. The trial record also suggests that Tillman left Pennsylvania by

did not seek to compel his attendance for the presentation of the defense.

-examining Tillman or

7
See Pa.R.E. 803(2) (subsequently amended Jan. 17, 2013).

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compelling his attendance durin

that his proffer was admissible as an excited utterance. Although the PCRA

court determined that trial counsel possessed a reasonable strategic basis

for not questioning Tillman about his alleged inculpatory statement, PCRA

Ct. Op., 5/22/13, at 8-9, we conclude that Appellant is not entitled to relief

for a different reason.

At the outset, we note that an assertion that the trial court erred in

t was

proffer was admissible under the rules governing hearsay evidence has been

See Steele,

961 A.2d at 799.

namely, that trial counsel was

ineffective for failing to establi

statement it appears that the trial court relied on Pa.R.E. 613 when

counsel to establish a foundation during the examination of Tillman. Rule

613 provided, in relevant part:

(a) Examining witness concerning prior
inconsistent statement. A witness may be examined
concerning a prior inconsistent statement made by the
witness, whether written or not, and the statement need

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not be shown or its contents disclosed to the witness at
that time, but on request the statement or contents shall
be shown or disclosed to opposing counsel.

(b) Extrinsic evidence of prior inconsistent
statement of witness. Unless the interests of justice
otherwise require, extrinsic evidence of a prior inconsistent
statement by a witness is admissible only if, during the
examination of the witness,

(1) the statement, if written, is shown to, or if not
written, its contents are disclosed to, the witness;

(2) the witness is given an opportunity to explain or
deny the making of the statement; and

(3) the opposing party is given an opportunity to
question the witness.

Pa.R.E. 613(a), (b) (subsequently amended Jan. 17, 2013). The admission

hment

does not depend on the truth of the matter asserted, but rather the fact that

testimony.8 See McManamon v. Washko, 906 A.2d 1259, 1268 (Pa.

Super. 2006).

8
By way of contrast, Pa.R.E. 801 defined hearsay as follows:

assertion or (2) nonverbal conduct of a person, if it is
intended by the person as an assertion.

statement.

made by the declarant while testifying at the trial or

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Instantly, Appellan

his alleged statement to his wife. Rather, Appellant sought to admit his

See N.T., 2/8/10, at 175-77; see also

exculpatory evidence was a critical omission at trial, for if the jury heard and

en

Thus, it was improper for the trial court to suggest that a foundation

under Rule 613 was required. Compare Pa.R.E. 613 with Pa.R.E. 803(2).

Rather, the proper inquiry was wh

exception to the hearsay rule. See

hearing, offered in evidence to prove the truth of the
matter asserted.

Pa.R.E. 801 (subsequently amended Jan. 17, 2013). Pa.R.E. 803(2)
provided the following exception to the general rule excluding hearsay:

Rule 803. Hearsay exceptions; availability of declarant
immaterial

* * *

(2) Excited utterance. A statement relating to a
startling event or condition made while the declarant
was under the stress of excitement caused by the event
or condition.

Pa.R.E. 803(2) (subsequently amended Jan. 17, 2013).

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foundation

under Rule 613 lacks arguable merit because trial counsel cannot be held

ineffective for failing to do that which our rules of evidence did not require. 9

For these reasons, we conclude that no relief was due based on the instant

IAC claim.

A

two audio-recorded interrogations. Appellan

10
Appellant was lying to them,11

statements were consistent,12

inconsistent with the other witnesses.13 Appellant also refers to comments

9
Moreover, Appellant does not expressly argue that trial counsel should
have attempted to impeach Tillman with a prior inconsistent statement to

ignore the fact that the Commonwealth would be entitled to a cautionary

matters asserted.
10
N.T., 2/8/10, at 104, 117, 145, 150.
11
N.T., 2/5/10, at 223, 225, 248, 264; N.T., 2/8/10, at 133.
12
N.T., 2/5/10, at 215, 218; N.T., 2/8/10, at 105-06.
13
Id.

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that Appellant would not be believed if he went to court. 14 Appellant argues

rsonal assurances that . . .

erred when concluding that trial counsel stated a reasonable strategy for

declining to object or failing to request a cautionary instruction. No relief is

due.

As noted above, one day after the shooting, on May 10, 2009, police

investigators interrogated Appellant and later that same day filed a criminal

complaint against him. Subsequently, while Appellant was in custody, he

requested to speak with investigators, and the second interrogation occurred

on December 7, 2009. In the May 10th recording, Appellant stated that he

was with Botz on the night of May 8, 2009, but was unaware that Botz was

killed because Botz left his group without incident. In the December 7th

recording, Appellant conceded he was present when Botz was killed.

Appellant told investigators that Botz believed that Tillman stole his pistol

and that Botz confronted Tillman while Tillman was in the passenger seat of

the Mitsubishi Gallant. Appellant then joined Botz in attacking Tillman.

Similar to his trial testimony, Appellant asserted that he and Botz tried to

wrestle Tillman out of the car when he heard a gunshot and saw Botz fall to

14
N.T., 2/8/10, at 134. See also N.T., 2/5/10, at 247-48, 254.

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both interrogations.15

did not contest the playing

of the audio recordings of the interrogations in a motion in limine or a

request for an offer of proof. Therefore, we are left to presume that the

inconsistent statements and his consciousness of guilt. See N.T., 2/9/10, at

24 (indicating that trial court instructed jury on consciousness of guilt based

comments and opinions were presented to the jury by the playing of audio

recordings, not by direct testimony from the investigators. Third, the trial

court, as Appellant observes, did not issue specific instructions to guide the

ry that it should

to his December 7, 2009 statement.

It is well settled that:

[A] basic requisite for the admissibility of any evidence in a
criminal case is that it be competent and relevant.

15
A copy of the recordings played to the jury were not forwarded to this
Court as part of the certified record. However, the recordings were
transcribed into the notes of testimony at trial.

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Evidence is relevant when it tends to establish facts in
issue or in some degree advances the inquiry and thus has
probative value. Not all relevant evidence is admissible,
however, and the trial court may exercise its discretion to
exclude evidence that, though relevant, may confuse,
mislead, or prejudice the jury. Since rulings on the
relevancy of evidence rest within the sound discretion of
the trial court, they will not be reversed absent a manifest
abuse of discretion.

Commonwealth v. Hindi, 631 A.2d 1341, 1344 (Pa. Super. 1993).

Commonwealth v. Crawford, 718 A.2d

768, 772 (Pa. 1998) (citation omitted). An individual, by virtue of his

the witnesses. See, e.g., Commonwealth v. Potter, 285 A.2d 492, 493

(Pa. 1971) (noting it is improper for prosecutor to express to jury his

Commonwealth

v. Sampson, 900 A.2d 887, 890 (Pa. Super. 2006) (same);

Commonwealth v. Montavo, 653 A.2d 700, 705 (Pa. Super. 1995)

responsibility to ascertain and assess the facts and, instead, defer to the

see also Commonwealth v. Flor, 998 A.2d 606, 642

or innocence] leaves an indelible imprint on the minds of the jury and

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Instantly, the trial evidence regarding, the credibility of Appellant and

specialized knowledge for the jury to evaluate. See Crawford, 718 A.2d at

772; Montavo, 653 A.2d at 705. Therefore, we agree with Appellant that

there was arguable merit to his claim that the recordings contained

objectionable statements that could be construed as invading the exclusive

fact-finding function of the jury.16

reasonable strategic basis for declining to object or a request for a

cautionary instruction, we are mindful of the following principles:

[A] review of matters involving trial strategy is deferential.
Trial counsel will be deemed to have acted reasonably if
the course chosen by trial counsel had some reasonable

Moreover, a claim of ineffectiveness will not succeed by
comparing, in hindsight, the trial strategy trial counsel
actually employed with the alternatives foregone. Finally,
[a]lthough we do not disregard completely the
reasonableness of other alternatives available to counsel,
the balance tips in favor of a finding of effective assistance

any reasonable basis.

16
The Commonwealth suggests there was no arguable merit to this claim
See

the underlying question of whether the jury should have heard the

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Commonwealth v. Miller, 987 A.2d 638, 653 (Pa. 2009) (citations and

quotation marks omitted); see also Strickland v. Washington, 466 U.S.

668, 690 (

investigation of law and facts relevant to plausible options are virtually

Furthermore,

[c]ounsel are not constitutionally required to forward any
and all possible objections at trial, and the decision of
when to interrupt oftentimes is a function of overall
defense strategy being brought to bear upon issues which
arise unexpectedly at trial and require split-second
decision-making by counsel. Under some circumstances,
trial counsel may forego objecting to an objectionable
remark or seeking a cautionary instruction on a particular
point because [o]bjections sometimes highlight the issue
for the jury, and curative instructions always do.

Commonwealth v. Koehler, 36 A.3d 121, 146 (Pa. 2012) (citations and

quotation marks omitted).

Instantly, trial counsel testified at the PCRA hearing that his defense

Appellant shot Botz. N.T., 11/19/12, at 19. Rather than object to the

Id. at 19-20. Trial counsel also testified that he

considered requesting a cautionary instruction, but was concerned that it

-

examination. Id. at 20-21. Lastly, trial counsel stated that the recordings

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nd suggested that the jury

Id. at 21.

stated a basis for foregoing objections to the matters identified by Appellant

in his PCRA

Appellant was lying and they believed Appellant was guilty, we discern no

was reasonable in light of his strategy to show that the investigators

by requesting a cautionary instruction constituted a reasonable strategy.

See Koehler, 36 A.3d at 146.

statements, who

permitted the jury to hear comments that Appellant would not be believed or

performance must be deferential once counsel states a reasonable basis for

his action or omission. See id.; Strickland, 466 U.S. at 690; Miller, 987

A.2d at 653. Based on our review of the record, we cannot conclude that

ing

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contemporaneous objections or cautionary instructions regarding these

-benefit analysis had some

See Koehler, 36 A.3d

146. Accordingly, under the totality of the circumstances presented in this

case, we agree with the PCRA court that Appellant did not overcome the

strong presumption that trial counsel provided constitutionally effective

representation.17 Thus, no relief is due.

trial counsel stated a reasonable strategic basis for not impeaching Kristi

Farmer with her prior crimen falsi conviction and not emphasizing she was

drinking alcohol before witnessing the shooting. To reiterate, Farmer

testified that she saw a blue car, with three occupants, park next to a red

car containing a male and a female. Id. at 175-76. She stated that a male

wearing a red shirt and a black hat exited the blue car and went to the

passenger side of the red car and shook hands with the male in the

passenger seat. Id. at 176-77. A second male, who was wearing a blue

hoodie, exited the blue car and shot the male standing next to the red car.

Id. whether

17
It would be preferable for counsel to seek redaction of objectionable
comments before audio recordings are played to the jury. However, such
hindsight evaluations of alternatives are not permitted when assessing the
tegies. See Miller, 987 A.2d at 653.

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prior conviction.

During cross-examination, trial counsel impeached Farmer with a

statement she made in a recorded interview with police on the morning of

the shooting. Specifically, trial counsel noted that Farmer initially described

the occupants of the blue car as four mal

Id. at 197. Trial counsel emphasized that Farmer did not testify to several

details in her prior statement and impeached her trial testimony that she

saw the second male from the blue car holding something in his hand using

her prior statements. Id. at 197-213, 221. However, trial counsel did not

consumption of alcohol. Moreover, although trial counsel was aware that

Farmer had at a prior crimen falsi conviction, he did not cross-examine her

regarding it. Subsequently, during the charging conference, trial counsel

crimen falsi conviction

., 2/8/10, at 312.

The Commonwealth averred that it intended to question her about prior

convictions but did not do so. Id.

With respect to his failure to clarify that Farmer had been drinking

alcohol before witnessing the shooting, trial counsel testified at the PCRA

hearing that

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her statement immediately after being at the bar was
better for the defense than her statement when she was
still put on the witness stand . . . . She said four Muslim
guys with long beards did it. And then she turned her
b
better than her coming in and saying something about how
she saw what happened[.]

Id. at 38.

With respect to his decision not to impeach Farmer with crimen falsi,

trial counsel explained:

Wha
bully with her because she was a very soft witness. She
cried and carried on a lot, and that kind of thing, and the
last thing I wanted to do was press her with something
that really had very little to do with this case clearly. And
in terms of crimen falsi, it was not the, oh my God,
thundering clap of doom as to her credibility.

Now, Ms. Farmer made statements in this case that I
thought did much more damage to her and much more
damage to her testimony then for lack of a better term
this stupid summary retail theft did. The her first
statement about four men with Muslim beards being in the
car, as opposed to three men in the car, and then . . . the
kind of half-hearted attempt to identify [Appellant], I
thought was much more persuasive and much more telling
to the jury about her fashioning her statement and her
testimony than attacking her with [crimen falsi].

Id. at 32-33.

Following our review, we discern no abuse of discretion or error in the

basis for declining to clarify that Farmer drank alcohol before witnessing the

statement to the police that four Muslim males were at the scene of the

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Appellant guilty. Accordingly, we agree with the PCRA

alcohol did not state a basis for relief.

crimen falsi, we acknowledge trial

Farmer and instead wanted to focus on her prior statement. We further note

crimen falsi

explanation failed to consider that Farmer was a unique witness because she

provided independent corroboration of the inculpatory testimony of Donald

ement was reasonable, her crimen falsi would

not distract from that strategy and could impeach her trial testimony. Trial

counsel, moreover, failed to consider any alternatives to presenting this

issue, such as entering into a stipulation with the Commonwealth before the

close of evidence. See N.T. Trial, 2/8/10, at 312 (indicating Commonwealth

stated a rea crimen falsi.

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crimen

falsi

because she was an eyewitness to the shooting and was not connected to

Olasheiba Hurdle and Donald Tillman, as well as Kenyata White, who

acknowledged that Appellant had a firearm with him after the shooting and

-examination upon her prior inconsistent statement, we

crimen falsi at trial did not taint

the fairness of the proceeding or affect the outcome at trial. Therefore, we

discern no basis to conclude that Appellant established prejudice for the

purposes of this claim of ineffectiveness. See Spotz, 84 A.3d at 312. Thus,

no relief is due.

trial counsel was not ineffective for failing to object to evidence of

considered in a motion in limine. Specifically, the Commonwealth proffered

going to shoot Joseph Botz, the victim in this case [a]nd the reason that he

is going to shoot him is because when [Appellant] was in prison [Appellant]

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N.T., 2/2/10, at 32. Trial counsel objected, arguing that the proffer was too

vague and unduly prejudicial because it referenced Appellan

incarceration. Id. The trial court determined that the proffer was

admissible but required the Commonwealth to instruct Tillman not to

Id. at 34.

trial counsel did object to the

established that the alleged acts between Appellant and his cellmate were

prior bad acts.18 Accordingly, no relief is due.

18
As noted above, Tillman subsequently testified at trial that Appellant told

and went back and told [Botz], so [Botz] came back and told [Appellant] he

testimony:

So why did [Botz] have it coming? A secret. It was a
secret about [Appellant]. One the [Appellant] would go to
such great lengths to protect. But even today we still

worth killing for. The secret, whatever it was that [Botz]

He made sure of that.

N.T., 2/8/10, at 347.

We note that at the time of the PCRA hearing, trial counsel testified

and his cellmate engaged in same-sex intercourse and that Botz learned of
this activity. N.T., 11/19/12, at 41-42.

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his claim that prior appellate counsel was ineffective for failing to raise a

n involuntary

manslaughter charge. The PCRA court concluded this claim was meritless

because the trial court properly ruled that an involuntary manslaughter

instruction was not warranted in light of the evidence. Appellant contends

he was entitled to the instruction in light of his evidence that he had been

struggling with Tillman when the firearm discharged and that prior appellate

counsel should have raised the issue on appeal. No relief is due.

As to the arguable merit prong of this claim, it is well settled that

[d]efendants are generally entitled to instructions that
they have requested and that are supported by the
evidence. We have explained that the reason for this rule

rationally be applied to the facts presented at trial may
confuse them and place obstacles in the path of a just

based on the desired charge and may not claim
entitlement to an instruction that has no basis in the

Commonwealth v. Hairston, 84 A.3d 657, 668 (Pa. 2014) (citations

omitted).

The Pennsylvania Supreme Court has made clear that the issuance of

lesser-in

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Commonwealth v. Williams, 415 A.2d 403, 404-05 (Pa. 1994).

Indeed, the Williams Court cautioned

to instruct a jury on possible verdicts that are unsupported
by any evidence can serve only to pervert justice: Not only
may the jury be confused by what appear to be irrelevant
instructions, and thereby possibly reach a mistaken
verdict, but a conviction for the lesser offense may occur
out of discriminatory favor for the defendant or out of
animosity for the victim, or the jury might substitute its
own visceral reaction for the classification established by
the legislature.

Id.

The legal principles underlying an involuntary manslaughter charge are

as follows:

Involuntary manslaughter is defined as a killing that occurs

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

§ 2504(a).

Commonwealth v. Fletcher, 986 A.2d 759, 791 (Pa. 2009).

Although Appellant asserts his testimony established he was criminally

reckless by wrestling with Tillman, the Commonwealth presented the only

evidence regarding the manner and cause of death. Specifically, the

presented no evidence countering this expert testimony. Accordingly,

merely reckless was unsupported in the record, and his attempt to focus the

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J. S59038/13

jury upon the alleged struggle prior to the firing of the gun did not warrant

an involuntary manslaughter instruction. See Williams, 415 A.2d 403, 404

(Pa. 1994) (recklessness for involuntary manslaughter charge not suggested

.

Thus, we agree with the PCRA court that this IAC claim was meritless.

Order affirmed.

Judge Panella joins the memorandum.

Judge Bowes concurs in the result.
Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/16/2014

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