COMMONWEALTH OF PENNSYLVANIA, Appellant v. RYAN POWNALL, Appellee
No. 17 EAP 2021
IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT
July 20, 2022
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
ARGUED: December 7, 2021
OPINION
JUSTICE DOUGHERTY DECIDED: July
This case concerns the tragic death of David Jones. Appellee Ryan Pownall, a (former) Philadelphia Police Officer, is charged with killing Jones by gunfire while on duty in his capacity as a police officer. Anticipating Pownall might pursue at trial a peace officer justification defense under
I. Background
We begin by emphasizing this is an interlocutory Commonwealth2 appeal of a
The case was assigned to the Honorable Barbara A. McDermott who scheduled it for a trial date of January 6, 2020. On April 1, 2019, Pownall filed a motion for change of venue or venire, which the DAO opposed. After conducting two mock jury selections over the span of several months to test whether Pownall could receive a fair trial in Philadelphia, the trial court concluded he could. Thus, on November 24, 2019, it denied his motion. See N.T. 11/25/2019 at 22.
Also on that date — which was only a little more than a month before trial was set to begin, yet “more than a year and two months after [Pownall]’s arrest . . . and more than two years and five months after” Jones’s death, Trial Court Op., 1/2/2020 at 2 n.2 — the DAO informed the trial court and Pownall that it intended to file a motion seeking to bar use of the suggested standard jury instruction relative to the peace officer justification defense. According to Assistant District Attorney
not to bar [Pownall] from a defense because I don’t think that is allowable or appropriate. But I do feel as though — and we, the [DAO], feel as though the law itself is unconstitutional. It is a request for a decision on the constitutionality of certain prongs of 508A1, and also for the jury instructions in light of that. But I don’t think it impacts the defense.
N.T. 11/25/2019 at 8. ADA Tripp asserted the DAO’s motion would merely provide “two alternatives for possible jury instructions . . . [b]ecause, again, I think you get into dicey territory, if the Commonwealth is trying to tell a defendant or defense counsel what they can and can’t argue as defenses.” Id. at 24.
The DAO filed its motion in limine later that day. Therein, it expressed its belief that “justification under section 508(a)(1) will be a trial issue” and submitted that “a pretrial determination of an issue related to the Pennsylvania Suggested Standard Jury Instruction for section 508 is necessary to prevent protracted mid-trial litigation.” Motion in Limine, 11/25/2019 at 2. More precisely, the DAO asked the trial court to
refrain from giving the Pennsylvania Suggested Standard Criminal Jury Instruction regarding section 508 because it is unconstitutional under the Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court, and equally unconstitutional under Article 1, Section 8 of the Pennsylvania Constitution.5 The [DAO] contends that when section 508 is read in light of controlling and persuasive Fourth Amendment jurisprudence regarding deadly force used in the apprehension of criminal suspects, that section’s confusing conjunctive and disjunctive clauses result in clearly untenable justifications for the use of such deadly force.
Id. at 3.
To contextualize the DAO’s arguments pertaining to Section 508, we turn briefly to the statute. It states:
(a) Peace officer‘s use of force in making arrest.--
(1) A peace officer, or any person whom he has summoned or directed to assist him, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force which he believes to be necessary to effect the arrest and of any force which he believes to be necessary to defend himself or another from bodily harm while making the arrest. However, he is justified in using deadly force only when he believes that such force is necessary to prevent death or serious bodily injury to himself or such other person, or when he believes both that:
(i) such force is necessary to prevent the arrest from being defeated by resistance or escape; and
(ii) the person to be arrested has committed or attempted a forcible felony or is attempting to escape and possesses a deadly weapon, or otherwise indicates that he will endanger human life or inflict serious bodily injury unless arrested without delay.
This text provides four circumstances in which a police officer’s use of deadly force
Returning to the DAO’s motion in limine, it detected no constitutional infirmity with respect to the first or fourth scenarios presented above. But it strongly contested the constitutionality of the other two, which we will refer to as the “forcible felony” and “deadly weapon” justifications. The DAO’s grievance with those specific justifications was based on its interpretation of Garner’s impact on substantive state criminal laws like Section 508. So, to add still more context, we now examine Garner.
Garner was decided nearly twelve years after Section 508 became effective. In that case, Edward Garner’s father filed an action in federal district court seeking damages under
Hymon’s use of deadly force to prevent Garner’s escape was authorized by a Tennessee statute and a Memphis Police Department policy. The statute provided that “[i]f, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest.” TENN. CODE ANN. §40-7-108 (former). The Police Department policy, though slightly more restrictive than the statute, still allowed the use of deadly force in cases of burglary. As a result, neither criminal nor administrative action was taken against Hymon for killing Garner.
The State of Tennessee subsequently intervened to defend the statute and sought certiorari before the United States Supreme Court, which was granted. On its review, the High Court affirmed. Initially, it held “there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Garner, 471 U.S. at 7; see id. at 8 (“it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out”). The Court continued: “To determine the constitutionality of a seizure we must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Id. (internal quotations, brackets, and citations omitted). It then looked to other situations in which it had conducted a similar balancing and resolved that, even if an officer has “probable cause to seize a suspect, [he] may not always do so by killing him.” Id. at 9.
In reaching this conclusion, the Court explained that on one side of the scale is the “interest of the individual, and of society, in judicial determination of guilt and punishment.” Id. Also on that side is a “suspect’s fundamental interest in his own life” which, the Court pointedly remarked, “need not be elaborated upon.” Id. Meanwhile, on the other side of the scale is a range of “governmental interests in effective law enforcement[,]” including a goal of reducing overall violence by encouraging peaceful submission. Id. Ultimately, however, the Court concluded that despite the importance of these legitimate objectives, effectuating a seizure by use of deadly force — the intrusiveness of which “is unmatched” — is “a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion.” Id. at 9-10. In other words, the Court was not persuaded “that shooting nondangerous fleeing suspects is so vital as to outweigh the suspect’s interest in his own life.” Id. at 11.
Two additional paragraphs from Garner warrant discussion. The first because it forms the crux of the DAO’s constitutional argument; the second because the DAO mostly ignores it notwithstanding its clear relevance to the DAO’s claim. Starting with the DAO’s preferred paragraph, it states:
The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape.
Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.
Id. (emphasis added). The second paragraph, which immediately follows the first, provides:
It is not, however, unconstitutional on its face. Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given. As applied in such circumstances, the Tennessee statute would pass constitutional muster.
Focusing on the first paragraph above (the bolded parts in particular), and relating it back to Section 508, the DAO argued the forcible felony justification “is unconstitutional because the available definition of ‘forcible felony’ is too broad, and includes felonies that, under Garner, would not warrant deadly use of force.” Motion in Limine, 11/25/2019 at 9. The DAO recognized the term “forcible felony” is not defined in the Crimes Code, but it looked to the subcommittee note for Suggested Standard Jury Instruction (Crim) §9.508B, which states:
Subparagraph 3.b(1) of subdivision 3.b is based on the first clause of Crimes Code section 508(a)(1)(ii), which uses the term “forcible felony,” a term not defined in the code. The trial judge should specify the particular crime involved, again depending on the evidence. The term “forcible felony” (and thus the applicability of this subparagraph of the instruction) appears to be limited to the felonies involving some element of force that are enumerated in the note to Instruction 9.508E.
Pa. SSJI (Crim) §9.508B, Subcommittee Note.
Based on the final sentence in this passage, the DAO naturally went searching for the list of “felonies involving some element of force that are enumerated in the note to Instruction 9.508E.” Id. But, as it turns out, no such list exists there. Nor are there any felonies “enumerated” in Instruction 9.508E itself (as opposed to within its note). So, the DAO instead seized other language from that Instruction referencing crimes involving or threatening “bodily injury,” “damage to or loss of property,” or a “breach of the peace[.]” Pa. SSJI (Crim) §9.508E. Assuming those must be the terms that define the bounds of a “forcible felony” as understood by Section 508, the DAO challenged them as “too broad to comport with Garner[.]” Motion in Limine, 11/25/2019 at 9.
Turning to the deadly weapon justification, the DAO found it “even more broad than the ‘forcible felony’ scenario, and even more out of step with constitutional requirements.” Id. (emphasis omitted). The DAO contended it allows “police officers to kill anyone — regardless of whether they are suspected of committing a felony, misdemeanor, or even an arrestable summary
More broadly, the DAO asserted its view that “[w]eapon possession does not by itself create a fair inference that a suspect creates the requisite danger demanded by the Garner Court.” Id. at 11. Rather, it argued Garner requires “some indication that the suspect created an objectively reasonable belief that he or she threatens the life or limb of the officer or others unless arrested without delay.” Id. (citation omitted). If the law was otherwise, the DAO feared the statute could permit the killing of fleeing suspects who merely possess any item recognized as a “deadly weapon” under Pennsylvania case law, which includes “knives, blackjacks, mace, mouse poison, and cars.” Id. at 10 (footnoted citations omitted).
Believing it had identified potential ways in which Section 508’s forcible felony and deadly weapon justifications could be applied in an unconstitutional manner, the DAO went on to offer a proposed remedy. To that end, it advised that “chang[ing] the offending ‘ors’ to ‘ands’ would bring Section 508(a)(1)(ii) within the relevant Fourth Amendment jurisprudence.” Id. at 13. Reformulating the statute in that way “would permit officers to only use deadly force against fleeing arrestees who attempted or committed a forcible felony and possess a deadly weapon and indicate that they would endanger human life or inflict serious bodily injury unless arrested without delay.” Id. at 16 (emphasis added). Put differently, the DAO asked the trial court to collapse three of the four independent justifications listed in Section 508 into one.
As for the corresponding suggested standard jury instruction — which, as we noted earlier, tracks Section 5089 — the
Pownall opposed the DAO’s motion. He found it “truly unimaginable that the most powerful[ ] elected law enforcement official in Philadelphia County would ignore the law in charging a peace officer, and then try to change the law that the peace officer had relied on in the performance of his duties.” Response to Motion in Limine, 12/4/2019 at 3.10
On the merits Pownall made several rejoinders. First, he noted the presumption that statutes are constitutional and the high burden for overcoming that presumption. He also criticized the DAO for failing to “cite to a single binding case in support of its position.” Id. at 4. Concerning Garner, Pownall stressed it was “a civil case [in which the High Court] held the [Tennessee statute] unconstitutional only ‘as applied.’” Id. at 7 (citation omitted). Pownall argued the Supreme Court “has never and would never require the state[s] to criminalize the use of deadly force by a peace officer” in any circumstance — a conclusion reached by at least one state supreme court. Id. at 7-8, citing People v. Couch, 461 N.W.2d 683, 684 (Mich. 1990) (“Garner was a civil case which made no mention of the officer’s criminal responsibility for his ‘unreasonable’ actions. Thus, not only is the [High] Court without authority to require this state to make shooting a nondangerous fleeing felon a crime, it has never even expressed an intent to do so.”) (emphasis in original). Finally, Pownall raised due process and ex post facto concerns based on the DAO’s resolve to have applied to his case a judicially altered version of Section 508 that was not in effect at the time of the underlying incident. See id. at 4 (asserting the DAO’s “attempt to change the law after the incident runs afoul of due process”); id. at 7 (claiming the DAO “seeks an ex post facto judicial rule of law to [his] sole detriment”).
The trial court, in its opinion, has provided an explanation for what happened next. The court describes how it intended to hold the DAO’s motion in limine under advisement because the motion “presented an evidentiary issue which would have to be determined upon hearing the evidence presented at trial.” Trial Court Op., 12/30/2019 at 1.11 Then, on December 23,
The trial court determined the DAO’s motion, “on its own, is insufficient to establish the unconstitutionality of Section 508[.]” Id. at 3. This statement implies the court believed the DAO needed to present something more to substantiate its underlying Fourth Amendment claim — presumably meaning evidence introduced at trial that would permit Pownall to seek an instruction on the allegedly unconstitutional forcible felony or deadly weapon justifications. Along similar lines, the court expressed concern that rather than launch an actual facial challenge to the statute, the DAO had raised only hypothetical problems in the abstract, untethered to Pownall’s case. See id. (“in lieu of arguing that the statute is plainly unconstitutional, the [DAO] suggests that the conjunctions used in that statute gives rise to an unconstitutional interpretation”). And, the court opined that “[i]rrespective of the constitutionality of the statute,” the DAO’s proposed remedy was “inappropriate.” Id.; see id. (“This [c]ourt has no authority to summarily rewrite portions of a criminal statute, for doing so would serve only to supersede the will of the people as placed into the hands of the legislature.”).
Having rejected the DAO’s arguments, the trial court proceeded to suggest that any appeal taken “should be quashed.” Id. at 4. It first asserted the DAO could not appeal under
The trial court further stated its order did not implicate the collateral order doctrine under
When the court returned after the holiday it promptly issued an order and opinion denying the DAO’s request to certify the case for interlocutory appeal under Section 702. The court described how none of the non-binding cases cited by the DAO in its request for certification — all of which were previously included in the DAO’s motion in limine — “suggest that the current construction of Section 508 is unconstitutional, or that the statute may be interpreted to justify a peace officer’s use of deadly force against a person who poses no threat to human life or safety.” Trial Court Op., 1/2/2020 at 2. Thus, seeing “no basis . . . to permit an interlocutory appeal” in the absence of a controlling question of law as to which there is substantial ground for difference of opinion, the court denied the DAO’s request. Id. In so doing, it conveyed discontent with the DAO’s decision “to wait until weeks before trial to present its motion” challenging Section 508. Id. at 2 n.2; see N.T. 1/6/2020 at 9 (indicating “frustration that this was last minute”).
When the DAO’s appeal reached the Superior Court, that tribunal issued a rule to show cause directing the DAO to explain why its appeal should not be quashed as interlocutory, citing
On September 4, 2020, the panel, through a per curiam order, followed the trial court’s recommendation and quashed the DAO’s appeal. The panel’s order explained the appeal was not authorized under
One other aspect of the panel’s per curiam order is notable. Like the trial court, the panel voiced its disapproval of the DAO’s request “that th[e c]ourt rewrite the statute, using conjunctive over disjunctive language.” Id. at *1 n.1. That remedy, the panel insisted, “would infringe on legislative action and violate the doctrine of separation of powers.” Id., citing
II. Arguments & Analysis
We granted allowance of appeal to consider whether the Superior Court erred in quashing the DAO’s appeal. Although we accepted review of three issues,12 given our disposition of the first two — which present pure questions of law we review de novo, see Commonwealth v. White, 910 A.2d 648, 652 n.3 (Pa. 2006) — we do not reach the final issue, in which the DAO argues the merits of its underlying Fourth Amendment claim.13 As well, we elect to consider the first two issues in the order they were addressed by the courts below, i.e., in reverse.
A. Appealability Under Rule 311(d)
i. Arguments
In its principal brief, the DAO argues its appeal is proper under Rule 311(d) on the basis that the trial court’s order denying its motion in limine “enable[s Pownall] to evade conviction through the use of a defense that violates constitutional rights.” DAO’s Brief at 15. This is enough to satisfy Rule 311(d), says the DAO, because our decisional law in this arena (which we discuss below) supposedly reduces to three principles: (1) Rule 311(d) is “based on the Commonwealth’s burden to prove its case beyond a reasonable doubt”; (2) “the exercise of Rule 311(d) jurisdiction is appropriate when the issue would otherwise evade review”; and (3) the rule is not limited to the suppression, exclusion, or preclusion of Commonwealth evidence. Id. at 19-20. Under this theory, it is irrelevant that the trial court’s order has nothing to do with the evidence the DAO may present as part of its case — what matters, in the DAO’s view, is that the order affects its burden of proof and involves an issue that might otherwise evade review. See id. at 20 (avowing order affects its burden of proof because “jury instructions based on Section 508(a)(1) would force [it] to disprove three elements, two of which are constitutionally invalid, rather than one constitutional element”).
Pownall responds that the language of Rule 311(d) and our decisions interpreting it permit the Commonwealth to take an interlocutory appeal only “where the trial court’s order terminates or substantially handicaps its prosecution or has the practical effect of doing so.” Pownall’s Brief at 29. Here, he submits, the DAO “has failed to explain how the order terminates or substantially handicaps its prosecution[.]” Id. at 28; see id. at 29 (the DAO “has not and cannot establish how the trial court’s order refusing to modify the language of a
In its reply brief, the DAO appears to partially retreat from its original position. Confronted with the case cited by Pownall, it now concedes Rule 311(d) “does not permit an appeal in every case where the order implicates the Commonwealth’s ability to meet its burden of proof.” DAO’s Reply Brief at 13. Instead, the DAO argues its “interest in proving its case must be balanced with a defendant’s right to present his chosen evidence — a right not at issue here.” Id. (emphasis omitted). It then reiterates its belief that the trial court’s order substantially handicaps its prosecution “by forcing it to disprove multiple justification defenses, two of which unconstitutionally immunize” Pownall. Id.
ii. Analysis
We have previously traced the history of Rule 311(d), which emanates from our decision in Commonwealth v. Bosurgi, 190 A.2d 304 (Pa. 1963). In that case, we “found that a pretrial suppression order which terminates or handicaps the prosecution has ‘such an attribute of finality as to justify the grant of the right of appeal to the Commonwealth.’” Commonwealth v. Cosnek, 836 A.2d 871, 874 (Pa. 2003), quoting Bosurgi, 190 A.2d at 308; see Commonwealth v. Dugger, 486 A.2d 382, 386 (Pa. 1985) (the Commonwealth may “appeal from a [non-]final order when [it] certifies in good faith that the suppression order terminates or substantially handicaps its prosecution”). In time, this “terminates or substantially handicaps” language made its way into Rule 311 via an amendment that became effective on July 6, 1992. See Cosnek, 836 A.2d at 874.
Since then, “this Court has taken a fairly categorical approach to the application of Rule 311(d).” In re Twenty-Fourth Statewide Investigating Grand Jury, 907 A.2d 505, 515 (Pa. 2006). For example, “[t]he classic case of an interlocutory order appealable by the Commonwealth as of right . . . is one granting a defense motion to suppress evidence.” Commonwealth v. Boczkowski, 846 A.2d 75, 87 (Pa. 2004) (citation omitted). This category covers all types of orders resulting in the suppression or exclusion of Commonwealth evidence. See Commonwealth v. Gordon, 673 A.2d 866, 868 (Pa. 1996) (finding “no essential difference between suppression rulings and rulings on motions in limine” that exclude evidence). And it includes orders that have “the practical effect” of suppressing or excluding evidence. See Commonwealth v. Matis, 710 A.2d 12, 18-19 (Pa. 1998) (pretrial order denying the Commonwealth’s motion for a continuance to secure the presence of necessary witness was “sufficiently similar to a suppression order to justify an appeal”). At the same time, we have held as a categorical matter that “the Commonwealth’s right to interlocutory appeals does not extend to appealing the admission of defense evidence.” Cosnek, 836 A.2d at 876 (emphasis added); see id. (allowing Commonwealth to appeal rulings admitting defense evidence would force the accused “to balance his right to a trial without delay with his fundamental right to present
evidence”; “[t]he chilling effect of such a
Although in Cosnek we seemed to imply
This case concerns a new type of order we have yet to address: one denying a pretrial Commonwealth motion in limine seeking to preclude the trial court’s use of a suggested standard jury instruction (or, as the DAO now portrays it, a facial attack to the statute upon which that instruction is based). Because such an order does not concern the suppression of evidence or fit neatly within any of the other discrete categories that we have held are appealable as of right by the Commonwealth, we must rely on the rule’s plain language to determine whether the order “terminate[s] or substantially handicap[s]” the DAO’s prosecution of Pownall.
The DAO rightfully declines to go so far as to say the trial court’s order pertaining to jury instructions somehow “terminates” its case, so we can rule that out immediately. What remains is the DAO’s sole argument that the order substantially handicaps its prosecution because the order “directly concerns [its] burdens of proof at trial[.]” DAO’s Brief at 20; see id. (“jury instructions based on Section 508(a)(1) would force the [DAO] to disprove three elements, two of which are constitutionally invalid, rather than one constitutional element”). On this front, however, we agree with Pownall that the
In Shearer, the Commonwealth took an interlocutory appeal from “a pretrial order granting [the defendant’s] request to compel the minor complainant to submit to a psychological exam for the purpose of aiding the trial court in determining whether [he] was competent to testify.” 882 A.2d at 464. The Commonwealth argued its appeal was proper under
This appeal faces the same problem. The only complaint the DAO makes about the trial court’s order is that it ostensibly “forc[es the DAO] to disprove multiple justification defenses, two of which unconstitutionally immunize [Pownall] from murder charges arising from the killing of any fleeing forcible felon or armed suspect.” DAO’s Reply Brief at 13. Even assuming for the moment that the DAO is correct about its constitutional claim, it is impossible to know in this pretrial posture whether the DAO will actually be forced to disprove anything. That could only theoretically occur if, at trial, some evidence is produced that would implicate Pownall’s ability to invoke the peace officer justification defense in the first place. See generally Commonwealth v. Capitolo, 498 A.2d 806, 809 (Pa. 1985) (defendant entitled to instruction on justification as defense to crime charged only where evidence is offered to support it).
In fact, though, such evidence alone would not be enough. To trigger the DAO’s hypothetical concerns, there would also have to be specific evidence that would permit the trial court, if it so chose in its discretion, to use the suggested standard jury instruction on the forcible felony or deadly weapon justifications exactly as written. And, even then, the DAO still might not have to disprove what it calls an “unconstitutional defense”15 depending on the evidence that is introduced. DAO’s Brief at 10. This is because the DAO alleges only that in some factual circumstances the use of the forcible felony or deadly weapon justifications could — though not always, and maybe not even in this case — result in “unconstitutional situations.” Id. at 21; see DAO’s Reply Brief at 18 (conceding in some cases “a suspect’s prior felony can [ ] be grounds for deadly force”); id. at 21 (admitting if a suspect possessed a deadly weapon that could be used to cause death or serious bodily injury “there would be no constitutional problem”).
As we see it, the DAO’s asserted substantial handicap is constructed on layer after layer of speculation and “what ifs.”
B. Appealability Under Rule 313(b)
i. Arguments
We now turn to the collateral order doctrine. The doctrine “permits an appeal as of right from a non-final collateral order if the order satisfies the three requirements set forth in Rule 313(b) — separability, importance, and irreparability.” Shearer v. Hafer, 177 A.3d 850, 858 (Pa. 2018) (“Hafer”). Here, the DAO argues it has met all three prongs. Starting with the second, it tersely proclaims that “whether Pennsylvania law permits police officers to take a life in violation of the Fourth Amendment is, without a doubt, an issue too important to be denied review.” DAO’s Brief at 11. As for the third requirement, the DAO submits its claim would be irreparably lost if review were postponed until final judgment, because if Pownall “is acquitted, the [DAO] may not appeal”; if he “is convicted, the [DAO] likewise could not appeal because it would not be an aggrieved party.” Id. at 12. It therefore believes “an interlocutory appeal is the only possible way for the constitutionality of Section 508(a)(1) to ever receive appellate review.” Id.
With respect to separability, the first prong, the DAO forthrightly “acknowledges that the trial court’s instructions on [Pownall]’s justification defense will likely impact the outcome of trial.” Id. at 14. Nevertheless, it insists that just because “the outcome of trial may hinge on these questions does not mean they concern the issue of guilt itself.” Id. The DAO takes the position that “while [Pownall]’s conviction or acquittal might turn on the outcome of this appeal, the constitutionality of Section 508(a)(1) does not turn on, or ever consider, whether or not [Pownall] is guilty.” Id.; see id. at 14-15 (characterizing its underlying issue as one of mere “statutory construction that is separable from and agnostic to [Pownall]’s guilt or innocence”).
For his part, Pownall claims the trial court’s order “did not satisfy any of the prongs required by
Pertaining to
Curiously, the DAO responds that “Section 508’s applicability to [Pownall] is not the subject of this appeal.” DAO’s Reply Brief at 6. It insists no “factual analysis is required here, where only the legality of the justification generally, not whether it can be asserted by [Pownall], is at issue.” Id. at 7; see id. at n.1 (“Neither [Pownall]’s ability to claim self-defense nor the evidence he may present to do so are at issue here.”). The DAO also disputes the relevance of the way it presented its claim below. In its view, “an argument that Section 508 gives rise to an unconstitutional interpretation of the statute is one and the same with an assertion that the statute is unconstitutional.” Id. at 8 (internal quotations omitted). Finally, the DAO disagrees with Pownall that mandamus or a civil suit would “provide an avenue for review of the claim at issue now.” Id. at 12.
ii. Analysis
We “construe the collateral order doctrine narrowly, and insist that each one of its three prongs be clearly present before collateral appellate review is allowed.” Hafer, 177 A.3d at 858 (internal quotations and citation omitted). This approach avoids undue corrosion of the final order rule and prevents delay resulting from piecemeal review of trial court decisions. See id. It also recognizes a party “may seek allowance of appeal from an interlocutory order by permission” under
We conclude it is impossible to separate the DAO’s claim — whether construed as a challenge to the suggested standard jury instruction, or as a facial or as-applied attack on the statute upon which the instruction is based — from the merits of the criminal case, i.e., Pownall’s potential guilt or innocence of the crimes charged. The reason for this is simple: a ruling in the DAO’s favor on its constitutional issue would, quite literally, result in an after-the-fact judicial alteration of the substantive criminal law with which Pownall has been charged. As it now stands, it is not a crime when, while making an arrest, a peace officer uses deadly force under any of the four situations presented in Section 508. The DAO seeks to have the judiciary upend this status quo, by eliminating two of the four distinct grounds for justification crafted by the legislature. Doing as the DAO asks, however, would essentially criminalize conduct the General Assembly has deemed non-criminal. The DAO basically recognizes as much, but still insists there is a distinction between the terms “guilt” or “innocence” and the words “conviction” or “acquittal.” See DAO’s Brief at 14 (admitting Pownall’s “conviction or acquittal might turn on the outcome of this appeal” but suggesting its issue “does not turn on, or even consider, whether or not [he] is guilty”). The argument is nonsensical, and we reject it.
The waffling nature of the DAO’s claim does not alter our conclusion. The DAO’s motion in limine was styled as an attack on the trial court’s potential use of Suggested Standard Jury Instruction (Crim) §9.508B. If that was the extent of the DAO’s claim, such issue would fail to be separable from the merits because, by its very nature, a jury instruction must be based on evidence introduced at trial. See supra n.11.
Alternatively, if, as the DAO now purports, its issue is “only whether Section 508(a)(1) is facially unconstitutional[,]” DAO’s Reply Brief at 1, its claim still would not be separable from the merits. “A statute is facially unconstitutional only where no set of circumstances exist[s] under which the statute would be valid.” Clifton v. Allegheny Cty., 969 A.2d 1197, 1222 (Pa. 2009) (citation omitted). “In determining whether a statute is facially
As noted, the DAO concedes there are some circumstances under which even the forcible felony and deadly weapon justifications could be applied constitutionally. Not only do these concessions essentially defeat the DAO’s claimed facial challenge, see, e.g., Schall v. Martin, 467 U.S. 253, 264 (1984) (a facial challenge fails where “at least some” constitutional applications exist), they highlight the need here — even if we were willing to accept the DAO’s most recent characterization of its claim as a facial challenge — to assess the evidence in the underlying case, for it’s entirely possible the facts as ultimately developed may not give rise to the type of “unconstitutional situation” feared by the DAO. DAO’s Brief at 21. See, e.g., Scott v. Harris, 550 U.S. 372, 378, 382 (2007) (since “Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force[,]’” the “first step in assessing the constitutionality of [an officer]’s actions is to determine the relevant facts”); Graham v. Connor, 490 U.S. 386, 396 (1989) (“proper application [of the reasonableness standard applied in Garner] requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight”).18
Beginning with the latter point, we reiterate the High Court’s instruction that in use-of-force cases the “first step in assessing the constitutionality of [an officer]’s actions is to determine the relevant facts.” Scott, 550 U.S. at 378. This directive makes sense because “the ‘reasonableness’ inquiry in [such] case[s] is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” 572 U.S. at 772 (emphasis added). As discussed, the same is not true of the present challenge, rendering these cases easily distinguishable. And, since the dissent directs us to no other authority to support its proposed expansion of “the collateral order doctrine’s reach [to] any Commonwealth appeal wherein it questions either the meaning of or the constitutional validity of a statutory defense[,]” Dissenting Op. at 3, we decline to adopt such a rule, as it would undermine the narrow approach favored by this Court and the United States Supreme Court with respect to collateral orders. See, e.g., Hafer, 177 A.3d at 858 (“while our Court has diverged from the federal approach in some regards, we nonetheless construe the collateral order doctrine narrowly”); Dig. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994) (“the ‘narrow’ exception should stay that way and never be allowed to swallow the general rule”). Graham, 490 U.S. at 397; see Scott, 550 U.S. at 383 (“in the end we must still slosh our way through the factbound morass of ‘reasonableness’”). It is also exactly how the Court proceeded in Garner: it applied the Fourth Amendment’s reasonableness test “to the use of a particular type of force in a particular situation” and held the officer’s use of deadly force unjustified under those discrete facts. Scott, 550 U.S. at 382. But, importantly, the Court refused to declare even Tennessee’s egregious statute facially unconstitutional. Instead, it explained that despite the statute’s unconstitutional authorization of the use of deadly force, there remained the possibility that in other cases the facts might reveal the officer nevertheless possessed “probable cause to believe that the suspect pose[d] a threat of serious physical harm, either to the officers or to others[.]” Garner, 471 U.S. at 11. “As applied in such circumstances,” the Court held, the “Tennessee statute would pass constitutional muster.” Id. at 12.
This is instructive. Although the DAO and the dissent steadfastly maintain the facts are entirely irrelevant to our analysis, see, e.g., DAO’s Reply Brief at 7 (arguing no “factual analysis is required here”); Dissenting Op. at 15 (contending this “is not a case where further development of the record would enrich our assessment”), the relevant law suggests the exact opposite.19 Our
This brings us to the second and final point. As we have said, the first time the DAO expressed an explicit intent to launch a facial challenge to Section 508 was before this Court. This late-in-the-game substitution renders the DAO’s current labeling of its claim dubious. Fortunately, “a litigant’s characterization of an argument as being facial or ‘as applied’ is not controlling.” Warner ex rel. Warner v. Lawrence, 900 A.2d 980, 989 n.10 (Pa. Cmwlth. Ct. 2006) (en banc). For the reasons we have discussed at length, we find the DAO’s claim is best construed as an as-applied challenge, which necessarily requires consideration of “a defendant’s particular circumstances.” Hairston, 249 A.3d at 1054 n.5. As-applied constitutional challenges of this nature cannot surmount the collateral order doctrine’s separability prong.
Because the DAO has failed to clearly prove its issue in this interlocutory appeal is entirely distinct from Pownall’s potential guilt or innocence of the crimes charged, and in accordance with our longstanding practice of construing the collateral doctrine order narrowly, we conclude the DAO’s appeal is not authorized by
We recognize the DAO’s fervent desire to put the troubling and recurring issue of police shootings in the spotlight. We agree the issue warrants serious examination, by every facet of government as well as those outside of it. But the proper forum for that debate is not an interlocutory appeal of a pretrial motion challenging a suggested jury instruction that might not even be applicable. Accordingly, we affirm the Superior Court’s order quashing the DAO’s unauthorized interlocutory appeal.
Chief Justice Baer and Justices Todd and Mundy join the opinion
Justice Dougherty files a concurring opinion.
Justice Wecht files a dissenting opinion in which Justice Donohue joins.
Former Justice Saylor did not participate in the consideration or decision of this matter.