*1 “substantially is whether the out-of-state statute similar” to IV(a)(2). Article Id. at 1267. majority “supplants
The asserts that Petro- ....” analysis Majority op. language vich at 7. Since the of interpreted Article IV remains the same as when this Court Petrovich, I passage Article IV fail to understand how the of “supplanted” two-pronged Section 1586 could have this Court enunciated Petrovich.
I respectfully therefore dissent.
DISSENTING OPINION Justice N1GRO. I agree Zappala
As Chief Justice that Section 1586 did not “supplant” two-pronged test this Court enunciated Commonwealth, Petrovick v. Dep’t Transp., Bureau (1999), Driver Pa. Licensing, 559 A.2d 1264 analysis therefore Petrovich continues to control our Compact, Article IV of the Driver’s I respectful License must ly dissent.
Richard Supreme Pennsylvania. Court of May
Submitted
Decided Oct. *2 Germano, Stroudsburg, Brian R. for Richard DeMarco. Anderson, Pazuhanich, Ashley Bernard Mark Peter Stroudsburg, for Com. ZAPPALA, C.J., CAPPY, CASTILLE, NIGRO,
Before NEWMAN, SAYLOR, EAKIN, JJ.
OPINION THE OF COURT Justice NIGRO. granted appeal
We allowance the instant case to review whether the Court of Common County Pleas Monroe com- during mitted reversible error trial of Appellant Richard *3 by refusing charge DeMarco to on the defense follow, For duress. the reasons that we find that err, therеfore, Appellant’s court did and judgment vacate and sentence remand the case to the trial court for a trial. new 16, 1998, February On Frank Larwa called the Pocono Regional Mountain Department report Police to that Salvatore Blakeslee, Zarcone was at his home Pennsylvania, and had damaged call, his two cars. Shortly phone after Larwa’s Reynolds Officer Martin arrived at Lama’s home and ob- that driveway served two cars next to the home were damaged. Reynolds spoke Officer Appellant, Lama and who only people present were the in the home.1 Larwa told Reynolds Officer that appeared Zarcone had at his and home open inside, when he refused to door allow Zarcone injure Zarcone threatened to him and vandalized his two cars. Appellant Reynolds corroborated Lama’s statements. Officer Appellant asked Lama and a each make written statement Appellant living 1. had been with his sister Donna DeMarco and her boyfriеnd alleged February Larwa for some time before the events of Appellant approximately 1998. did not move out of the home until August which to gave and them forms on allegations their
make those statements. before Lama and Reynolds had to leave the home
Officer but later statements he returned Appellant wrote their Both Lama’s completed statements. pick up they what written statements substantiated Appellant’s signed day. Based on Reynolds earlier orally had told Officer allegations, Reynоlds filed Appellant’s Officer Lama’s April Zarcone. against threats On charge terroristic concerning charge. hearing was held preliminary hearing in a manner during preliminary Appellant testified Reynolds. previous statements Officer consistent with hearing, presented preliminary at the Based on the evidence sufficient evidence to that there was determined to trial. proceed 10, 1998, a trial was held on the terroristic November
On trial, Zarcone During Zarcone. charge against threats testify regarding the statements he made called during the testimony gave and the he Reynolds to Officer confirming his state- hearing. prior Instead of preliminary however, that his testimony, testified ments and accounts of what testimony were not true statements Appellant’s testimo- February on happened February at on Zarcone was not Lama’s house ny fact, and, had vandalized his cars himself. Lama telling him into the false that Lama had coerced also testified hearing. Reynolds preliminary and at the story both to Officer subsequently acquitted Zarcone the terroristic The charge. threats *4 his earlier statements
Based on the inconsistencies between trial, charged testimony Appellant at Zarcone’s was and his 4902, § two counts of perjury, two counts of 18 Pa.C.S. with 4903(a)(1),2 count of unsworn § Pa one swearing, false 18 C.S. perjury charged Appellant with two counts of The Commonwealth 2. because, according swearing to the Common- two of false counts wealth, perjury and one count Appellant either one count of committed alternatively perjury swearing or one count of false at Zarcone's trial of hearing. swearing preliminary false at the and one count of 267 4904(a)(1), authorities, § and one 18 Pa.C.S. falsification enforcement, 18 Pa.C.S. reports of law count false 4906(b)(l).3 trial, a from Appellant report obtained § Prior to Appellant expert found was expert in which a medical story Reyn telling false Officer by Lama into coerced its hearing. receipt Based on of preliminary and at olds planned to admit into evidence Appellant which report, trial, 13, 1999, Appellant’s on before September his a in limine requesting filed motion the Commonwealth any presenting trial from preclude Appellant that the provided duress regarding the defense evidence 309, § the duress defense Pa.C.S. following in the circumstances: applies (a) actor engaged is a defense that the General Rule.—It was charged conduct to constitute an offense because he use, of, a by to do so the use or threat unlawful coerced another, against person person оr of which force of firmness in his situation would have unable been to resist. (a)
(b) provided Exception. by defense subsection —The recklessly placed if actor this section is unavailable probable in a in which that would himself situation it was he subjected is also to duress. The defense unavailable situation, placing was himself such negligent he culpability suffices for the negligence whenever to establish charged. offense (effective 6, 1973), 334, § No.
P.L. Dec. June (2002). amended, Alternatively, § Pa.C.S. codified argued that if the trial court аllowed the Commonwealth present defense, Appellant the duress any experts court should evidence from medical re- exclude Appellant’s garding mental condition. charged receipt property, 18 Pa.C.S. also stolen was taking disposition, unlawful or 18 Pa.C.S. theft $3,000 3921(a), claims had taken based on Larwa's However, charge receipt of from him. the trial court dismissed the taking property acquitted stolen of theft unlawful disposition. *5 morning day trial,
On the Appellant’s the first pretrial court held a conference on the Commonwealth’s mo- tion in limine. The court ruled that Appellant could present evidence of the Appellant duress defense but that present any could not experts evidence from medical regard- ing because, his mental condition according court, to the trial such improperly evidence would Appellant’s credibility. bolster Consequently, trial, on the first of his Appellant argued although that he had made false Reyn- statements to Officer at preliminary olds and hearing, Larwa had him coercеd statements; making into those In support argument, of his Appellant presented his own testimony during Zarcone’s trial in which he stated that Larwa had forced him to tell story by shooting the false him with a B.B. Gun and him, choking as as testimony well Larwa’s at Zarcone’s trial in stated, which Laiwa “[Appellant’s] brain doesn’t work like yours N.T., 9/14/99, and mine.” at 45. addition,
In Appellant presented mother, evidence from his Charmaine Mesa. Mesa testified that Appellant’s hit father Appellant in the head just and, when he was nine months old result, as a Appellant оperations, underwent several and ulti- mately, had a plate placed metal According his head. Mesa, Appellant continues to suffer from severe headaches and seizures. Mesa also Appellant’s testified that school Appellant informed her that mentally is borderline retarded and will not be to intellectually able develop approxi- above mately third-grade Furthermore, level. Mesa that testified Appellant wife, both Tracey Zook, and his notified her that Larwa was threatеning Appellant. explained Mesa that she local police notified her in Philadelphia threats, about the but was told police they help Appellant could not jurisdiction. because he was outside of their Zook also at Appellant’s testified trial. She confirmed Appellant security receives social checks because ishe mental- ly disabled. Zook further testified that living she was Larwa’s home when Larwa coerced falsely into accusing Zook, Zarcone. she heard Larwa tеlling Appellant what say he should in court and away social kill or take threatening either testify security checks if he did rehearsed. day of made first the Commonwealth
At the end
any
the trial court exclude
additional
requesting
motion
*6
in-
and refrain from
regarding the duress defense
evidence
morning,
The next
structing
jury about that defense.
the
trial, the
court
day
second
of
trial
the start of the
the
before
ruling,
In
of its
support
motion.
granted the Commonwealth’s
provid-
noted that
duress defense is
initially
trial court
the
the
Nevertheless,
trial
then
in 18
309.
the
court
Pa.C.S.
ed
on the Superior
that based
Court’s decision
determined
indicated that living Appellant recklessly placed in a likely himself situation it was where that he would duress, supported even the evidence the duress defense, Appellant was not entitled to avail himself 309(b). in light defense of thе in 18 Pa.C.S. ruling limine, Given its on the Commonwealth’s motion in precluded the trial court Appellant from offering any addition- al concerning refused, the duress despite defense and Appellant’s requests, to instruct the de- n Indeed, fense. charge jury, its to the the trial court instructed, law, “as a legal matter there is no application of apply N.T., duress that would particular 9/15/99, this case.” deliberations, at 109. Following convicted of one perjury, count each of swearing, false unsworn falsifica- authorities, tion to repоrts false to law enforcement. The trial court subsequently sentenced to one to two years imprisonment conviction, perjury for his two concurrent terms of eleven and twenty-three one-half to *7 imprison- months ment for his swearing false and unsworn falsification to au- convictions, thorities and another concurrent term of six to twelve months imprisonment for his reports false to law enforcement conviction.
Appellant appealed from judgment of sentence to the Superior arguing, Court among things, other that in failing erred jury instruct the on the duress defense. Superior agreed The with the trial court that Appellant was required to offer evidence of the three elements forth in Berger set in order to establish the duress defense. The Superior Court then affirmed the trial finding court’s that because the satisfy evidence failed to two of those three elements, the duress proper defense was not in the instant case and jury was not to a charge entitled the defense.5 Appellant subsequently petition filed a Court, аllowance of appeal to this granted and we allocatur to Superior agreed The Court also with the trial court that the evidence Appellant recklessly indicated that placed himself in a situation where therefore, he would be to duress and even if the evidence defense, established the Appel- duress the defense was not available to 309(b). lant based on the in Section
271 properly courts determined whether the lower consider charge on duress jury to a the Appellant wаs entitled defense. refusing a trial court erred deciding
In whether instruction, whether the court give a we must determine der or committed an error of law. Von abused its discretion Commonwealth, 120, 553 Pa. Dep’t Transp., Heide v. (1998). 286, requests a A.2d Where defense, instruction on a trial court not refuse to jury regarding supported instruct the defense it is Commonwealth v. 538 Pa. Lightfoot, evidence the record.6 (1994). 648 A.2d is When there evidence defense, support it is “for of fact to pass upon the trier improper judge for the trial such evidencе exclude (internal by refusing charge.” quote consideration Id. omitted). citations above,
As noted both lower courts in instant case applied stringent three-part determining test whether the support evidence was sufficient to the duress defense. We conclude, however, three-part test applied wrong determining lower courts is test for whether the supports the duress defense. That one law, governed followed at common which the law of duress prior to the enactment of 18 Pa.C.S. 309 in 1972. See (M.D.Pa. v. Anthony, F.Supр. United States 339-40 1956) rule); (citing common law see also v. Commonwealth Schwartz, 154, 157 (1971) 445 Pa. 285 A.2d (citing common governing Pennsylvania); law rule as law duress 10 P.L.E. (1972) (same). Law 42 Criminal When the General Assem 309, however, bly it abrogated enacted Section the common *8 test, finding law it was too difficult to for defendants 309, (1972) (standard § meet. See 18 Pa.C.S. cmt. set forth in existing provides Section 309 liberalizes law which that the well-grounded must coercion be immediate induce a fear "[sjuch 6. We note that be adduced the defendant as case, or, part conceivably, may of his be found in the Commonwealth’s through own case in chief or be elicited cross-examination.” Common Rose, 880, 380, (1974). wealth v. 457 Pa. 321 A.2d 884-85 272 bodily injury); see also 18 Pa.C.S. 105
of death or serious (1972) (code “carefully cmt. defines crimes and defenses rather of common leaving than several centuries their definition (cid:127) law”). 309, Moreover, this the enactment of Section since determining repeatedly recognized has that the test Court is supports the duress defense the one whether the evidence statute, law rather than thе common set forth Pelzer, 235, Pa. v. 531 followed below.- See Commonwealth 407, (1992); v. 506 Kyslinger, 612 A.2d 413-14 Commonwealth (1984); 132, 389, v. Pa. 484 A.2d 390-91 Commonwealth 380, 986, (1980); Smith, 490 Pa. 416 A.2d 988 Commonwealth also, 216, 440, (1975); Pa. 340 A.2d see Santiago, v. (Crim.) court in Accordingly, Pa. 3.09.7 SSJI by using abrogated an of law instant case committed error supported the evidence common law test determine whether the duress defense here. 309, in Assembly in Section
As set forth the General Commonwealth, in this' order to establish the duress defense (1) of, that: there was a use or threat there must be evidence use, against person; оr another unlawful force (2) use, of, of such the use or threat to unlawful force was in the defen- person a nature that of reasonable firmness Thus, it. would have been unable resist dant’s situation 309, unlike under establish the duress defense under Section rule, law force or threatened force does the common bodily present impending death or serious need Instead, inquiry under 309 is injury. the relevant Section type was a of unlawful whether the force threatened force firmness in [the force that “a of reasonable dеfen- unable to resist.” Id. situation would have been dant’s] Superior erroneously Berger, 417 that the cited 7. We also note support Pa.Super. 612 A.2d for its conclusion applied While in test for duress in the instant case. its common law Berger quote portion Superior opinion, court did of the Court's Morningwake, Pa.Super. v. decision in Commonwealth duress, (1991), which forth the common law test for A.2d 158 set Berger ultimately that the duress defense was not viable concluded Moreover, Momingwake extent based on Section 309. to the duress, fоrth in law test for rather than that set common endorses disagree with it. we *9 added). hybrid objective-subjective This is a (emphasis (1972) (“[Section 309 cmt. is derived 309] one. See Pa.C.S. Code”); Model Penal from 2.09 of the Model Penal Section (1985); § § note id. 2.09 cmt. at 7 explanatory 2.09 Code (Tent. 1960). of fact must Draft No. While trier objective person of consider whether an reasonable firmness threat, ultimately it would have been able resist the must person base its decision on whether that would have been able subjectively if placed to resist the threat he was Therefore, determination, in making situation. its defendant’s “stark, factors, tangible fact which the trier of must consider another, from his size or [defendant] differentiate the like at strength age or or health.” 2.09 cmt. Model Penal Code 1960). (Tent. Although Draft No. the trier of fact is of particular to consider the defendant’s characteristics tem- fortitude, intelligence, courageousness, or moral perament, gross fact that a suffers from “a and verifiable” may irresponsibility” disability mental “that establish is Moreovеr, Id. at 6. of fact relevant consideration. the trier any surrounding should consider salient situational factors alleged duress, of defendant at the time such as the commit, severity of the offense the defendant was asked to used, nature the force used threatened be ways may alternative which the defendant have averted the force or threatened force. See id. 7-8. is
Even where the evidence sufficient establish the ele- 309(a), ments of the duress defense set forth however, the defendant still not be entitlеd to avail 309(b). himself of the defense under the in Section exception, to that is not avail- the duress defense recklessly able the evidence establishes that the defendant placed probable himself a situation where it was that he 309(b). pur- would to duress. 18 For Pa.C.S. poses “recklessly” of Section is defined as follows: person recklessly respect A acts to a material element consciously disregards an offense when he a substantial unjustifiable risk that the material exists or element will result from his conduct. Thе risk must be of such a nature and intent considering that, degree
nature him, and the circumstances known to the actor’s conduct disregard gross its involves a deviation from the standard would observe in the that a conduct actor’s situation. *10 added). 302(b)(3) (emphasis See also Common- §
18 Pa.C.S. 1199, Knight, wealth v. Pa.Super. 611 A.2d 1204-05 (1992). Therefore, for determining like the test whether the duress, subject determining to defendant was recklessly 309 is a whether a defendant acted under Section one. See Model hybrid objective-subjective Penal Code (1985). of fact must § 2.02 cmt. at 237-40 The trier decide disregarded grоss a risk that involves a whether the defendant objective person” what an “reasonable would deviation from subjectively placed was “in the [defendant’s] observe he 302(b)(3). Thus, making its deter- situation.” Pa.C.S. mination, again the trier of fact must take into account the from tangible stark factors that differentiate the defendant person surrounding situational factors another the salient the defendant. See 2.02 cmt. at 237-40 Model Penal Code (1985).
Here, Appellant presented evidence at trial that Larwa him, Gun, him to shot with a B.B. сhoked threatened security him or kill him if he did deprive of his social checks account of how his cars came to be not corroborate Larwa’s damaged. Appellant presented also evidence of his situation (1) occurred, including that he: suffers from when threats (2) seizures, mentally grade with a third is borderline retarded (3) level,8 security receives social because he is intellectual argued During Appellant's that evidence the Commonwealth head, seizures, plate a and was had suffered from mentally purposes could not be admitted for borderline retarded determining applicable whether the defense was under Section duress evidence, Although decided it subse- the trial court to allow quently questioned whether such evidence was relevant under Section N.T., 9/14/99, 157; Op. 309. See Tr. Ct. at 33. We find that the clearly tangible ways above evidence is indicative of stark in which capacity, from in terms of his health and mental differs others which, above, determining noted is relevant to whether a defendant (4) living Larwa disabled, was without mentally money to sufficient move alternative transportation or clearly above evidence was suffi- housing. We find Appel- present question for the as to whether cient i.e., pursuant to Section subject lant was duress threats was to unlawful force and whether in Appellant’s firmness Larwa that a would not have able resist. situation been found, however, that even if the evidence The trial court defense, the defense was not support sufficient duress 309(b). According on the available based Pelzer, court, decision in 531 Pa. this Court’s to the disagree. We compelled A.2d such a conclusion. Pelzer; trial court argued In erred the defendant duress refusing provide instruction co- statement showed that his post-arrest because his defense into victim. This shooting had coerced him argument, finding that rejected that defendant’s *11 only sup- tending was the evidence post-arrest statement and that the statement itself showed port the duress defense that “nothing [the ... can be more obvious than defen- that it was placed a situation in which knоwingly himself dant] subject Id. at that he would be duress.” probable Thus, Pelzer, clearly the in this based its decision that on not entitled to a duress defense instruction defendant was question fact that no as to whether or the evidence left recklessly in a placed defendant had himself situation subject it that he would be to duress. probable where was Here, court, there was evidence noted had with in the introduced at trial that lived Larwa card, had had a account and an ATM married past, bank worked, times, capable contacting and was had several also telephone. via There was others law failed to the assistance of enforcement officers had seek in the dealing alleged duress Larwa when he was into question factors call presence. officers’ While these therefore, properly subject it was was to duress under Section admitted. Appellant recklessly whether placed himself a situation it probable where was subject duress, he would be we do not find they obvious, it completely Pelzer, mаde as in that that was the case. This is particularly light so in of the situation, evidence of Appellant’s including the fact that he suffers from borderline mental retardation and that he was living with Larwa transportation without money sufficient to leave. Accordingly, we conclude that there was sufficient evidence to question raise a of fact as to whether or not Appellant had recklessly. acted
Given that the evidence introduced at trial was sufficient to
an
create
issue of fact for
Appel-
whеther
lant
to duress under Section 309 and whether the
309(b)
applies,
we find that the trial court
was required to
instruct the
regarding the duress defense
and committed
by refusing
reversible error
to do so. See
Lightfoot,
Justice EAKIN files a concurring opinion. EAKIN,
Justice Concurring. I agree with proposition that the trumps statute test,” pronged “three and that the defense was entitled to the instruction, despite contrary language in the caselaw. While testified, defendant never prior evidence included his testimony threats, making the duress instruction appropri- ate, and I therefore concur the reversal of prior However, decision. I agree cannot with the broad statements *12 of what is and is not relevant and admissible evidence as concerns this defense. (1)
The test (2) involves firmness, the accused’s circumstance. I believe language used my colleagues elevates subjеctive the accused’s firm- mental into equation; ness this is not part statute, of com- ments from the 1960 tentative draft of the Model Penal Code for open way “ex- notwithstanding. broad strokes These opinions about what a defendant perts” hindsight to offer resist, for the not which is the ultimate issue and could could relevant and such of retardation jury. Considerations case, appeal; of this they but are determinative given squarely they when are I them another would let presented. A.2d 264 LUCCHINO,
George Appellant, v. M. Pennsylvania, Department COMMONWEALTH Protection, Appellee. of Environmental Pennsylvania. Supreme Argued Dee. 23, 2002.
Decided Oct.