278 A.3d 885
Pa.2022Background
- Philadelphia officer Ryan Pownall is charged in the on-duty shooting death of David Jones; the DAO anticipated a peace-officer justification defense under 18 Pa.C.S. §508 and moved pretrial to bar the trial court from using the Suggested Standard Jury Instruction (Crim) §9.508B that tracks §508.
- The DAO argued §508(a)(1)’s disjunctive formulations (the ‘‘ors’’) permit constitutionally infirm justifications for deadly force under the Fourth Amendment as interpreted in Tennessee v. Garner and asked the court to effectively rewrite the statute (change ‘‘ors’’ to ‘‘ands’’) or excise offending provisions.
- The trial court denied the DAO’s motion, reasoning the motion alone was insufficient to establish §508’s unconstitutionality, the issue depends on trial evidence before instructions are given, and the court lacked authority to judicially rewrite a statute.
- The DAO filed a notice of interlocutory appeal; the Superior Court quashed the appeal, holding the order was neither appealable under Pa.R.A.P. 311(d) (did not terminate or substantially handicap prosecution) nor a collateral order under Pa.R.A.P. 313(b) (not separable from merits).
- The Pennsylvania Supreme Court granted review limited to the jurisdictional questions (appealability under Rules 311(d) and 313(b)) and affirmed the Superior Court: interlocutory appeal was not authorized because any constitutional challenge to §508 depends on the facts and evidence at trial and cannot be separated from the defendant’s guilt or innocence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Commonwealth may immediately appeal under Pa.R.A.P. 311(d) from denial of its motion to preclude use of SSJI §9.508B | Rule 311(d) permits appeal because the trial court’s order would let the defendant assert constitutionally invalid defenses and thereby enable evasion of conviction or substantially affect Commonwealth’s burden | Denial does not terminate or substantially handicap prosecution; alleged handicap is speculative and depends on trial evidence; Shearer bars appeals from orders that merely might affect prosecution burden | Denied: Rule 311(d) not satisfied — order does not suppress Commonwealth evidence nor produce a tangible, practical handicap; speculative effects insufficient |
| Whether the order is appealable as a collateral order under Pa.R.A.P. 313(b) (separable, important, irreparable) | The constitutionality of §508 is an important, distinct legal question; delay would irreparably lose review (acquittal or conviction would preclude Commonwealth appeal) | The constitutional claim is inseparable from the merits: any ruling would alter substantive criminal law as applied to Pownall and requires factual development; DAO first framed an as-applied challenge below so separability fails | Denied: fails separability prong — constitutional/question cannot be resolved without analyzing the facts and whether §508 applies to defendant’s conduct; collateral-order doctrine narrowly construed |
Key Cases Cited
- Tennessee v. Garner, 471 U.S. 1 (U.S. 1985) (deadly-force seizures are subject to Fourth Amendment reasonableness; use of deadly force to prevent escape of unarmed, nondangerous felons is unconstitutional)
- Graham v. Connor, 490 U.S. 386 (U.S. 1989) (reasonableness inquiry requires careful attention to facts and circumstances of each case)
- Scott v. Harris, 550 U.S. 372 (U.S. 2007) (factfinding is central to assessing constitutionality of use of force)
- Commonwealth v. Cosnek, 836 A.2d 871 (Pa. 2003) (history of Commonwealth interlocutory appeals under Rule 311)
- Commonwealth v. Shearer, 882 A.2d 462 (Pa. 2005) (Commonwealth cannot appeal every pretrial order that might affect its burden of proof; limits Rule 311(d) appeals)
- In re Twenty-Fourth Statewide Investigating Grand Jury, 907 A.2d 505 (Pa. 2006) (certain disclosure orders are appealable under Rule 311)
- Shearer v. Hafer, 177 A.3d 850 (Pa. 2018) (collateral-order doctrine requires separability, importance, irreparability and is narrowly construed)
- Commonwealth v. Boczkowski, 846 A.2d 75 (Pa. 2004) (suppression/exclusion rulings are classic interlocutory appeals for the Commonwealth)