Com. v. White, Q.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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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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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