Commonwealth, Aplt. v. Pownall, R. ( 2022 )

[J-76-2021]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 17 EAP 2021
:
Appellant : Appeal from the Judgment of
: Superior Court entered on 9/4/2020
: at No. 148 EDA 2020 Quashing the
v. : appeal from the order entered on
: 12/30/2019 in the Court of Common
: Pleas, Philadelphia County, Criminal
RYAN POWNALL, : Division at No. CP-51-CR-0007307-
: 2018.
Appellee :
: ARGUED: December 7, 2021
OPINION
JUSTICE DOUGHERTY DECIDED: July 20, 2022
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 18 Pa.C.S. §508 (setting forth circumstances in which a peace
officer’s use of deadly force while making an arrest is not a crime), the Philadelphia District
Attorney’s Office (“DAO”), on behalf of the Commonwealth, filed a pretrial motion in limine
seeking to preclude the trial court from using Suggested Standard Jury Instruction (Crim)
§9.508B, which largely tracks Section 508.1 The DAO argued that since the justification
statute supposedly violates the Fourth Amendment to the United States Constitution as
interpreted by the Supreme Court in Tennessee v. Garner, 471 U.S. 1 (1985), so too must
1 We provide the text of these authorities infra at 5 & n.9, respectively.
the standard jury instruction based on the statute. The trial court disagreed. It concluded
the DAO’s pretrial motion, by itself, was “insufficient to establish the unconstitutionality of
Section 508[.]” Trial Court Op., 12/30/2019 at 3. Moreover, the court believed the DAO’s
suggested remedy — proposing that it rewrite several disjunctive “ors” within the statute
to conjunctive “ands” — was an “inappropriate” request for it to “judicially usurp the
legislative function of the Pennsylvania General Assembly and rewrite Section 508 out of
whole cloth.” Id. For those reasons it denied the DAO’s request to certify the case for
interlocutory appeal. When the DAO appealed anyway, the Superior Court quashed,
reasoning the trial court’s order was not collateral and did not substantially handicap or
terminate the DAO’s prosecution. We granted review to determine whether the Superior
Court erred in quashing the appeal. Because we conclude it did not, we affirm.
I. Background
We begin by emphasizing this is an interlocutory Commonwealth2 appeal of a
pretrial order. As such, there are few uncontested facts presently before us regarding
2 Throughout this opinion we generally refer to “the DAO” instead of “the Commonwealth.”
We do this because the DAO’s principal argument is that “Section 508(a)(1) is facially
unconstitutional.” DAO’s Reply Brief at 1. Our rules do not contemplate this situation.
Ordinarily, when a party in a case “draws in question the constitutionality of any statute”
it must “give immediate notice in writing to the Attorney General[.]” Pa.R.A.P. 521(a).
This rule recognizes the fact that the Attorney General is “the chief law enforcement officer
of the Commonwealth[,]” 71 P.S. §732-206(a), and is statutorily charged with “uphold[ing]
and defend[ing] the constitutionality of all statutes[.]” 71 P.S. §732-204(a)(3).
Significantly, though, Rule 521 requires notice to the Attorney General only when “the
Commonwealth or any officer thereof . . . is not a party[.]” Pa.R.A.P. 521(a). The obvious
implication of the rule is that when a county district attorney prosecutes a case “in the
name of the Commonwealth,” 16 P.S. §1402(a), he or she assumes this duty to defend a
challenged statute’s constitutionality and no notice to the Attorney General is needed.
Here, the DAO takes the exact opposite stance: not only does it decline to uphold Section
508’s constitutionality, it leads the charge against it. In this unusual circumstance, and in
the absence of any indication the Attorney General has been given notice of the DAO’s
claimed facial attack to Section 508’s constitutionality, we find it prudent to refer to the
DAO’s position as its own rather than attribute it to the Commonwealth.
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the underlying incident, and it would be improper for us to comment on evidence that may
or may not eventually be introduced should this matter reach trial. All we can say for
certain in this posture is that on June 8, 2017, Jones was killed by gunfire following an
incident involving Pownall. At some later point, the DAO submitted the matter to the
Twenty-Ninth Philadelphia County Investigating Grand Jury, which eventually issued a
presentment recommending Pownall be charged with criminal homicide, possession of
an instrument of crime, and recklessly endangering another person.3 On September 4,
2018, the DAO charged Pownall in a criminal complaint with the latter two crimes; it also
charged third-degree murder under 18 Pa.C.S. §2502(c). It then sought to bypass a
preliminary hearing. Over Pownall’s objection, which was grounded in the plain text of
Section 4551(e) of the Investigating Grand Jury Act,4 the Honorable Robert J. Coleman
granted the DAO’s bypass motion on October 11, 2018 and bound the case over for trial
on the charges listed in the criminal complaint.
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.
3 18 Pa.C.S. §2501, §907, and §2705. Parenthetically, we note that although Section
2501 addresses criminal homicide generally, the actual criminal offenses for the various
degrees of murder are set forth in 18 Pa.C.S. §2502, not Section 2501. Likewise, the
remaining two species of criminal homicide, voluntary manslaughter and involuntary
manslaughter, are provided in 18 Pa.C.S. §2503 and §2504, respectively.
4 See 42 Pa.C.S. §4551(e) (“When the attorney for the Commonwealth proceeds on the
basis of a presentment, a complaint shall be filed and the defendant shall be entitled
to a preliminary hearing as in other criminal proceedings.”) (emphasis added).
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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 Tracy Tripp, the intent behind the DAO’s
forthcoming motion was
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 pre-
trial 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
5 The DAO later clarified “the relevant analysis under the Fourth Amendment is
coterminous with any analysis under Article I, Section 8 of the Pennsylvania Constitution.”
Motion in Limine, 11/25/2019 at 10 n.3.
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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.
18 Pa.C.S. §508.
This text provides four circumstances in which a police officer’s use of deadly force
while making an arrest is justified. First, when the officer reasonably believes “such force
is necessary to prevent death or serious bodily injury to himself or such other person[.]”
Id. at (a)(1).6 Second, when the officer reasonably believes “such force is necessary to
prevent the arrest from being defeated by resistance or escape” and “the person to be
6 The word “reasonable” does not appear in this portion of the statute. But, Section 501
instructs that the words “believes” and “belief” as used in Chapter 5 of the Crimes Code
— where the peace officer justification defense resides — mean “reasonably believes” or
“reasonable belief.” 18 Pa.C.S. §501. We therefore substitute this definition for clarity.
[J-76-2021] - 5
arrested has committed or attempted a forcible felony[.]” Id. at (a)(1)(i)-(ii). Third, when
the officer reasonably believes “such force is necessary to prevent the arrest from being
defeated by resistance or escape” and “the person to be arrested . . . is attempting to
escape and possesses a deadly weapon[.]” Id. And fourth, when the officer reasonably
believes “such force is necessary to prevent the arrest from being defeated by resistance
or escape” and “the person to be arrested . . . indicates that he will endanger human life
or inflict serious bodily injury unless arrested without delay[.]” Id.
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 42 U.S.C. §1983 for asserted violations of Garner’s constitutional rights committed
by Memphis Police Officer Elton Hymon. Late in the evening on October 3, 1974, Hymon
and another officer responded to a “prowler inside” call. When they arrived, a neighbor
gestured toward the house in question and informed the officers she heard glass shatter
and believed the house was being burglarized. Hymon approached the rear of the house,
where he heard a door slam and saw someone run across the backyard. The suspect,
Garner, stopped at a six-foot-high chain link fence at the edge of the yard. Hymon shined
his flashlight at Garner — a fifteen-year-old who was 5’4” tall and weighed roughly 100
pounds — and saw no sign of a weapon. Hymon then called out “police, halt” and took a
few steps forward, but Garner began to climb the fence. Convinced Garner would elude
[J-76-2021] - 6
capture if he made it over, Hymon shot him in the back of the head, killing him. Ten
dollars and a purse taken from the house were found on Garner’s body.
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.
With respect to Garner’s father’s civil suit, the district court found Hymon’s actions
to be authorized by the Tennessee statute. The Sixth Circuit Court of Appeals agreed
Hymon had acted in good-faith reliance on the statute and was therefore within the scope
of his qualified immunity. However, it reversed the district court’s dismissal of claims
against the City of Memphis. Relevant here, it reasoned the killing of a fleeing suspect is
a seizure under the Fourth Amendment, meaning it is constitutional only if reasonable.7
In this instance, the Sixth Circuit concluded, the facts as found did not justify the use of
deadly force against Garner under the Fourth Amendment.
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
7 “The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.” U.S. CONST.
amend. IV.
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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
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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.
Id. at 11-12.
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.
[J-76-2021] - 9
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 offense — who attempts to escape from arrest and happens to
possess a ‘deadly weapon[.]’” Id. at 10. This theoretical possibility, the DAO alleged,
“blatantly violates the Fourth Amendment’s prohibition against the use of deadly force
against misdemeanants.” Id. at 10-11 (citation omitted).8
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
8 We observe that on the next page of its motion the DAO undermined, if not plainly
contradicted, its own argument in this respect. See Motion in Limine, 11/25/2019 at 12
(clarifying it “does not suggest that a misdemeanant cannot ever create a threat that
necessitates a police officer’s use of deadly force”).
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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 DAO similarly recommended swapping the so-called
9 Suggested Standard Jury Instruction (Crim) §9.508B provides:
1. In this case, evidence was introduced that in preventing an arrestee from
escaping, the defendant may have used what is called “deadly force,” which
is defined as force that was readily capable of causing death or serious
bodily injury under the circumstances.
2. Special rules apply in determining whether the defense of justification is
available when deadly force was used to prevent an arrestee from escaping.
A person in the defendant’s position need not desist from efforts to prevent
the escape merely because the arrested person persists in his or her efforts
to escape.
3. Furthermore, the Commonwealth has the burden of disproving the
defense of justification. Thus, you cannot find the defendant guilty:
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offending “ors” with nonoffending “ands.” See id. at 20-21. Alternatively, it posited that
the trial court could “simply excise the unconstitutional provisions, and squarely focus on
the appropriate endangerment requirements[.]” Id. at 21.
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
a. unless the evidence convinces you beyond a reasonable doubt
that [he] [she] did not reasonably believe that deadly force was
necessary to prevent death or serious bodily injury to [himself]
[herself] [other person];
[b. and unless the evidence also convinces you beyond a reasonable
doubt that [he] [she] did not reasonably believe either that deadly
force was necessary to prevent [name of arrested person] from
escaping or that [name of arrested person]:
[(1) in attempting to escape had committed or attempted to
commit the crime of [crime]; [or]
(2) possessed a deadly weapon; [or]
(3) had indicated that [he] [she] would endanger human life or
inflict serious bodily injury unless [his] [her] custody was
secured without delay.]]
Pa. SSJI (Crim) §9.508B (brackets in original).
10 Pownall’s accusation about the DAO “ignoring the law” appears to refer to what
occurred (or perhaps did not occur) before the Investigating Grand Jury. In a motion he
filed two weeks after responding to the DAO’s motion in limine, Pownall averred that
[a] careful review of the legal instructions and definitions provided to the
Grand Jury indicates that the [DAO] never gave the grand jurors the
definitions of Murder (of any degree), Voluntary Manslaughter, or
Involuntary Manslaughter. Furthermore, they never instructed or advised
the Grand Jury of [Section] 508 which sets forth the law regarding the use
of permissible deadly force by a police officer[.]
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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,
Motion to Quash Presentment and for Dismissal of All Charges, 12/18/2019 at 2.
11 The subcommittee note to the relevant suggested standard jury instruction supports
the trial court’s inclination. See Pa. SSJI (Crim) §9.508B, Subcommittee Note (“the trial
judge should select the material for inclusion in the charge depending on the evidence
adduced at trial“); see also Pa.R.Crim.P. 647(B) (court need not rule on written requests
for jury instructions until “[b]efore closing arguments”). Also worth mentioning is the well-
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on December 23, 2019 — only days after Pownall sought to quash the presentment and
dismiss all charges based on alleged grand jury irregularities, see supra n.10 — counsel
for the parties “made an unscheduled appearance” in the trial court, at which time the
DAO requested a favorable ruling on its motion in limine and asserted its intent to appeal
if the motion was denied. Id. at 1-2. Faced with that demand, the court “elected to rule
on the [DAO’s motion] and explain its reasoning[.]” Id. at 2.
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 Pa.R.A.P. 311, which permits the Commonwealth to “appeal as of right from an
settled principle that the suggested standard jury instructions “are not binding and do not
alter the discretion afforded trial courts in crafting jury instructions; rather, as their title
suggests, the instructions are guides only.” Commonwealth v. Eichinger, 108 A.3d 821,
845 (Pa. 2014).
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order that does not end the entire case where [it] certifies in the notice of appeal that the
order will terminate or substantially handicap the prosecution.” Pa.R.A.P. 311(d). In the
trial court’s view, its order denying the DAO’s motion “in no way handicap[ped] the [DAO]’s
ability to present evidence or terminate[d]” its prosecution, because the order was “limited
only to the application of a jury instruction pertaining to [Pownall]’s possible affirmative
defense.” Trial Court Op., 12/30/2019 at 4; see id. (explaining the DAO was not prevented
“from presenting its case in chief”).
The trial court further stated its order did not implicate the collateral order doctrine
under Pa.R.A.P. 313. That rule permits an appeal as of right from a collateral order, which
is defined as “an order separable from and collateral to the main cause of action where
the right involved is too important to be denied review and the question presented is such
that if review is postponed until final judgment in the case, the claim will be irreparably
lost.” Pa.R.A.P. 313(b). From the court’s perspective, the DAO could not demonstrate
the order was separable from and collateral to the main cause of action because, “[b]y its
very nature, the propriety and necessity of a self-defense instruction, if requested by the
[d]efendant, cannot be decided without considering the evidence presented at trial and
its relation to the [d]efendant’s guilt.” Trial Court Op., 12/30/2019 at 5.
The trial court issued its ruling and opinion on December 30, 2019. In the afternoon
of the following day (New Year’s Eve), the DAO filed a petition asking the court to amend
its order by adding a certification permitting it to take an interlocutory appeal. See 42
Pa.C.S. §702(b) (trial court may in its discretion authorize appeal from an interlocutory
order where it believes the order “involves a controlling question of law as to which there
is substantial ground for difference of opinion and that an immediate appeal from the order
may materially advance the ultimate termination of the matter”). Exactly twenty minutes
later, before the court conceivably could have given the request serious deliberation, the
[J-76-2021] - 15
DAO filed a notice of appeal. In its notice, the DAO certified under Rule 311(d) that the
court’s order terminated or substantially handicapped its prosecution of Pownall; it also
invoked the collateral order doctrine under Rule 313(b).
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 a 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 Pa.R.A.P. 341(a) (“[A]n appeal may be taken as of right from any final
order[.]”). The DAO responded, after which the court discharged its rule and referred the
matter to the merits panel.
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 Pa.R.A.P. 311(d) or Pa.R.A.P. 313(b). Regarding
Rule 311(d), it reasoned the trial court’s order did not hinder the DAO’s prosecution since
it “does not exclude, suppress or preclude” any evidence. Commonwealth v. Pownall,
[J-76-2021] - 16
240 A.3d 905, 2020 WL 5269825 at *1 (Pa. Super. 2020) (per curiam). As for Rule 313(b),
the panel likewise “agree[d] with the trial court’s assessment that the necessity and
propriety of [Pownall]’s justification defense depends upon consideration of the evidence
presented at trial and therefore cannot be severed from the ultimate issue — [Pownall]’s
guilt or innocence.” Id. Consequently, the panel concluded the DAO had “failed to show
that the order is a collateral order[.]” Id.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 PA. CONST. art. V, §10. As such, the panel advised the DAO its
“[r]ecourse lies with the General Assembly.” Id.
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
12 The precise questions we agreed to consider, as framed by the DAO, are:
(1) Did the Superior Court err when it held that it did not have jurisdiction
over the Commonwealth’s appeal under the collateral order doctrine where
the appeal raised only the facial constitutionality of a broadly applicable
statute that in no way implicated the question of [Pownall’s] guilt or
innocence?
(2) Did the Superior Court improperly depart from this Court’s precedent by
holding that the Commonwealth may invoke its right to an interlocutory
appeal under Pa.R.A.P. 311(d) only where it arises from an order that
excludes, suppresses, or precludes the Commonwealth’s evidence?
(3) Did the Superior Court improperly depart from this Court’s precedent
and the General Assembly's Rules of Statutory Construction by stating that
it could not properly construe a statute to give effect [to] legislative intent?
Commonwealth v. Pownall, 252 A.3d 1074 (Pa. 2021) (per curiam).
[J-76-2021] - 17
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”).
13 Amicus curiae briefs have been filed in support of both parties. We do not discuss
them because none addresses the dispositive jurisdictional questions.
[J-76-2021] - 18
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 jury instruction that may not even be warranted in this case terminates or
substantially handicaps its prosecution”). He observes the only hindrance alleged by the
DAO is the possibility “that the trial court’s order makes it more difficult to satisfy its burden
of proof[.]” Id. at 28. However, citing another of our cases, Pownall asserts we have
“already rejected the claim that the Commonwealth may file an interlocutory appeal any
time a trial court issues an order that might potentially affect its ability to meet its burden
of proof.” Id. at 26, citing Commonwealth v. Shearer, 882 A.2d 462 (Pa. 2005).
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
[J-76-2021] - 19
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
[J-76-2021] - 20
evidence”; “[t]he chilling effect of such a choice would give the Commonwealth an
unwarranted and unfettered influence over the defense case”).
Although in Cosnek we seemed to imply Rule 311(d) is “limit[ed]” to pretrial rulings
resulting “in the suppression, preclusion or exclusion of Commonwealth evidence[,]” id.
at 877, two years later we clarified that statement in Shearer, supra. There, we explained
Cosnek simply “made clear that the application of Rule 311(d) in the suppression
context is limited to circumstances in which a pretrial ruling results in the suppression,
preclusion or exclusion of Commonwealth evidence.” 882 A.2d at 467 (internal quotations
and citation omitted; emphasis added). We expounded there are “other types of orders
that Cosnek did not address, but which may also be appealable under Rule 311(d).” Id.
at 466 n.6 (citations omitted). Indeed, this insight was borne out in several decisions
where we held appealable other kinds of orders that did not implicate the loss of evidence.
See, e.g., In re Twenty-Fourth Statewide Investigating Grand Jury, 907 A.2d at 515
(“disclosure orders concerning the subject of a grand jury investigation are a type of order
relating to a potential criminal prosecution that should be appealable as of right”); White,
910 A.2d at 659 (order denying Commonwealth’s request to invoke its constitutional right
to a jury would “hamper the presentation of its case” where the trial court had denied a
motion to recuse and the Commonwealth alleged “it will be forced to proceed before a
judicial fact-finder who is biased against it”);14 Commonwealth v. Karetny, 880 A.2d 505,
513 (Pa. 2005) (order quashing some though not all offenses “quite definitively terminates
14 The DAO directs us to parts of White that commanded only a plurality of the Court,
including a line purporting to overrule Cosnek. See DAO’s Brief at 19. Among other
things, those parts sought to resurrect the plurality author’s dissenting position in Cosnek,
which advocated a literal reading of Rule 311(d) that would permit a Commonwealth
appeal as of right whenever the Commonwealth certifies in good faith “that a pretrial ruling
substantially hampers the case[.]” Cosnek, 836 A.2d at 884 (Eakin, J., dissenting).
Because this Court has never adopted that literal view of Rule 311(d), the portion of White
cited by the DAO is of little relevance here.
[J-76-2021] - 21
the prosecution as to the quashed charge” and “imposes a handicap that the prosecution
cannot overcome”) (internal quotations and citation omitted).
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. Pa.R.A.P. 311(d). We conclude it does not.
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 DAO’s
argument is foreclosed by our decision in Shearer.
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 Rule 311(d) on the ground its case would be “over if the trauma inflicted on
the child results in his being unwilling or unable to cooperate or testify, or otherwise results
in or contributes to a defense verdict.” Id. at 468 (internal quotations, brackets, and
[J-76-2021] - 22
citation omitted). We disagreed. Notably, we flatly rejected the Commonwealth’s
“assertion that it should always be permitted to appeal any pretrial order that has the
potential to affect its ability to meet its burden of proof.” Id. at 467. In our view, the
claimed handicap was founded on nothing more than the Commonwealth’s “speculation
regarding the potential effects of the order[.]” Id. at 468. That, we held, “simply does not
suffice to establish” an order’s appealability under Rule 311(d). Id.
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
15We observe this characterization, among others, from the DAO’s brief appears to refute
ADA Tripp’s assertion that the DAO’s motion was not intended “to bar [Pownall] from a
defense[.]” N.T. 11/25/2019 at 8; see id. (“I don’t think it impacts the defense.”).
[J-76-2021] - 23
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.” Rule 311(d) requires more. As discussed, in every
case in which we have permitted a Commonwealth appeal as of right, the order appealed
from had a tangible or practical effect on the Commonwealth’s actual ability to prosecute
its case.16 In contrast, a challenge to a suggested standard jury instruction — the use of
which is left entirely to the discretion of the trial court, and would be appropriate only if
supported by evidence adduced at trial in any event — cannot reasonably be said to
handicap the prosecution in any way. Indeed, such an issue does not truly ripen until the
Commonwealth has already rested its case and the evidentiary record has closed. Thus,
we decline to recognize a new categorical Commonwealth appeal as of right under Rule
311(d) whenever the Commonwealth seeks to challenge the use of a jury instruction,
even if such attack is constitutional in nature.
16 As the review of our cases regarding Rule 311(d) makes clear, we have never held the
rule is satisfied merely when an order might “enable [a] defendant to evade conviction” or
alter the Commonwealth’s “burden to prove its case beyond a reasonable doubt.” DAO’s
Brief at 15, 19. Similarly, there is no support for the DAO’s position that Rule 311(d)
appeals are subject to a balancing test and that a defendant must identify some interest
that would weigh against the Commonwealth’s claimed need to appeal. See DAO’s Reply
Brief at 13. Nor have we ever said Rule 311(d) jurisdiction is appropriate solely when the
issue might “otherwise evade review.” DAO’s Brief at 20.
[J-76-2021] - 24
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 Rule 313(b), let alone all of them[.]” Pownall’s Brief at 14 (emphasis omitted).
[J-76-2021] - 25
Presenting his answers in the same order the DAO approached the rule’s tripartite test,
Pownall argues the DAO’s “effort to satisfy the second requirement of [Rule] 313(b) by
reframing the issue as one involving application of the Fourth Amendment’s protections
against unlawful seizure must be rejected” because “this was not the issue [it] presented
to the trial court.” Id. at 19. Instead, Pownall says, the DAO’s argument in the trial court
was “that the conjunctive language used in [Section] 508 gave rise to an unconstitutional
interpretation of the statute that could be remedied by changing the wording of the statute”
— not that the statute and its attendant jury instruction are facially unconstitutional under
the Fourth Amendment. Id. Next, Pownall deems as “simply untrue” the DAO’s allegation
that an interlocutory appeal is the only possible way for the constitutionality of Section
508 to receive appellate review. Id. at 20. He offers two possible alternatives to an
interlocutory appeal that he believes would allow for review of Section 508’s
constitutionality: a mandamus action aimed at the trial court related to its use of the
suggested standard jury instruction, and a civil damages action under 42 U.S.C. §1983,
which, he remarks, is “precisely what happened in” Garner. Id. at 21.
Pertaining to Rule 313(b)’s separability requirement, Pownall stresses the main
issue in the case is whether he “committed murder or whether his use of deadly force was
legally justified under the circumstances — which would provide a complete defense to
the charge of murder.” Id. at 15. Given that, he believes the trial court’s order “thoroughly
implicates the merits of the underlying defense.” Id. In this regard, Pownall agrees with
the lower courts that “the question of whether [Section] 508 even applie[s] to” his case
cannot “be considered without an analysis of the underlying facts and evidence in the
case.” Id. at 18.
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
[J-76-2021] - 26
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 Pa.R.A.P. 312, and that this “process would
be undermined by an overly permissive interpretation of Rule 313.” Id.17
As regards the doctrine’s three prongs, we need only address the first concerning
separability. We have held an order is separable from the main cause of action in a case
only “if it can be resolved without an analysis of the merits of the underlying dispute.”
Commonwealth v. Williams, 86 A.3d 771, 781 (Pa. 2014). “Stated differently, an order is
17Earlier, we noted the trial court declined to authorize an immediate permissive appeal.
We add that the DAO could have pursued review of that decision, but nothing in the record
suggests it did. See Pa.R.A.P. 1311, Note (explaining that at the time relevant here, “an
order refusing to certify an order as meeting the requirements of 42 Pa.C.S. §702(b) was
reviewed by filing a petition for review under Chapter 15”). This available but neglected
procedural avenue refutes the dissent’s assertion that “the only circumstance in which an
appellate court ever could assess a Commonwealth challenge to the meaning or the
constitutional validity of a statutory defense would occur if a trial court certifies the order
denying relief for immediate pretrial appeal.” Dissenting Op. at 3-4.
[J-76-2021] - 27
separable if it is ‘entirely distinct’ from the underlying issue in the case.’” Commonwealth
v. Blystone, 119 A.3d 306, 312 (Pa. 2015) (citation omitted). Although some slight
interrelatedness between the merits and the issue to be raised on interlocutory appeal is
tolerable, “the claim must nevertheless be conceptually distinct from the merits[.]” Id.(internal quotations and citation omitted). When it comes to criminal trials, the underlying
dispute is whether the defendant “committed the crimes charged[.]” Shearer, 882 A.2d
at 469. Thus, to assess separability in this context, we ask whether “resolution of th[e]
issue can be achieved independent from an analysis of whether [the defendant] is
guilty[.]” Commonwealth v. Kennedy, 876 A.2d 939, 943 (Pa. 2005); see Shearer, 882
A.2d at 469 (relevant inquiry is whether issue can be resolved without considering
defendant’s “potential guilt or innocence of the crimes charge[d]”).
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
[J-76-2021] - 28
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 invalid, courts do not look beyond the statute’s explicit requirements or speculate
about hypothetical or imaginary cases.” Germantown Cab Co. v. Phila. Parking Auth.,
206 A.3d 1030, 1041 (Pa. 2019), citing Wash. State Grange v. Wash. State Republican
Party, 552 U.S. 442, 449-50 (2008); see U.S. v. Raines, 362 U.S. 17, 22 (1960) (“The
delicate power of pronouncing [a statute] unconstitutional is not to be exercised with
reference to hypothetical cases thus imagined.”). As these standards plainly reflect,
“facial challenges are generally disfavored.” Clifton, 969 A.2d at 1223 n.37. They are
also “the most difficult challenge to mount successfully[.]” U.S. v. Salerno, 481 U.S. 739,
745 (1987).
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
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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
18 The dissent accepts the DAO’s latest framing of its issue as a pure legal question
divorced from the facts of Pownall’s case. See, e.g., Dissenting Op. at 13 (“This appeal
poses the abstract question of whether a statute is unconstitutional.”). From that vantage
point, the dissent argues our decision herein creates tension with other cases from this
Court and the United States Supreme Court which supposedly “held that constitutional
issues nearly identical to the merits question in today’s case are reviewable . . . under the
collateral order doctrine.” Id. at 4. We respectfully disagree. The appeals in the civil
cases cited by the dissent were taken following motions for summary judgment and, as
the dissent admits, involved “immunity-type defenses, which, unlike justification defenses,
aim to exempt the individuals entitled to immunity from the burden of being haled into
court and defending themselves in the first place.” Id. at 12. See Plumhoff v. Rickard,
572 U.S. 765 (2014) (qualified immunity); Brooks v. Ewing Cole, Inc., 259 A.3d 359 (Pa.
2021) (sovereign immunity); Pridgen v. Parker Hannifin Corp., 905 A.2d 422 (Pa. 2006)
(applicability of federal statute of repose for product liability claims against aircraft
manufacturers under the General Aviation Revitalization Act, 49 U.S.C. §40101). Such
orders are qualitatively different from what we have in this criminal case, in that they
“conclusively determine whether the defendant is entitled to immunity from suit[,]” which
“is both important and completely separate from the merits of the action[.]” Plumhoff,
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Finally, if, as we believe, the true nature of the DAO’s claim is an as-applied
challenge, then its claim fails for precisely the same reason. See, e.g., Commonwealth
v. Hairston, 249 A.3d 1046, 1054 n.5 (Pa. 2021), cert. denied sub nom., 142 S.Ct. 598(2021) (“an as-applied challenge to the constitutionality of a statute [asserts] that the
statute, even though it may generally operate constitutionally, is unconstitutional in a
defendant’s particular circumstances”). We find it appropriate to construe the DAO’s
claim in this manner for two reasons. First, the DAO did not raise a facial constitutional
challenge until it came before this Court. See DAO’s Reply Brief at 1 (asserting for the
first time in this litigation that Section 508 “is facially unconstitutional”). Second, this
treatment is most consistent with the High Court’s Fourth Amendment jurisprudence in
this arena.
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”).
[J-76-2021] - 31
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 careful review of the High Court’s Fourth Amendment
jurisprudence — including Garner, the decision upon which the DAO’s claim is grounded
— reveals that the facts matter a great deal when confronting a use-of-force claim. So,
in the absence of a clear intent on behalf of the DAO to raise a pure facial challenge from
19 Neither the DAO nor the dissent directs us to any case, from any jurisdiction, in which
a court entertained a facial Fourth Amendment challenge to a statute authorizing the use
of force. Although the High Court has indicated “facial challenges under the Fourth
Amendment are not categorically barred” in some respects, City of Los Angeles, Calif. v.
Patel, 576 U.S. 409, 415 (2015), the result in Garner, coupled with the Court’s repeated
admonition in cases like Graham and Scott that such claims are inherently fact bound,
gives us pause and raises a serious question about whether a facial claim is even viable
in this context. But we need not resolve this novel and prickly issue today.
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the start, we believe the proper course is to treat the claim in the same way such claims
were treated in Garner and its progeny.20
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
20 It is worth noting both the DAO and the dissent fail to identify any case in which a court
permitted a claim alleging a statute was facially unconstitutional to proceed on appeal by
way of the collateral order doctrine. Our own research has likewise failed to reveal any.
This is perhaps unsurprising since the Declaratory Judgments Act, 42 Pa.C.S. §§7531-
7541, typically serves as the vehicle for making such challenges in the civil context, and
in the criminal context, such claims ordinarily are raised by defendants, and thus would
not be irreparably lost if postponed until after trial. This again highlights the atypical nature
of this case, wherein the DAO is the party that purports to raise a facial challenge to a
statute that the Commonwealth typically has a duty to defend. Given the peculiarities of
the situation, it may be appropriate for the relevant Rules Committees to study this issue
further, and to consider whether this Court should adopt some mechanism that would
permit the Commonwealth the ability to contest more easily a statute’s constitutionality.
See Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 113 (2009) (“[R]ulemaking, ‘not
expansion by court decision,’ [is] the preferred means for determining whether and when
prejudgment orders should be immediately appealable.”) (citation omitted).
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in accordance with our longstanding practice of construing the collateral doctrine order
narrowly, we conclude the DAO’s appeal is not authorized by Rule 313(b).21
III. Conclusion
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.
21 Contrary to the dissent’s view, we do not hold “the Commonwealth will never be able
to secure appellate review of a trial court’s denial of a challenge implicating a statutory
defense.” Dissenting Op. at 3 (emphasis in original); see id. at 15-16 (suggesting the
DAO’s constitutional question “will remain unanswered” — “perhaps indefinitely” — “if we
do not assess it here and now”). We merely resolve the limited jurisdictional question
before us by holding the Commonwealth may not take an interlocutory appeal from an
order denying a pre-trial motion regarding the use of potential jury instructions. Although
there may be other ways to raise such a constitutional challenge, we have no occasion
to consider those methods here given the DAO’s chosen litigation strategy.
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