Commonwealth v. Pownall

278 A.3d 885

COMMONWEALTH of Pennsylvania, Appellant

v.Ryan POWNALL, Appellee

No. 17 EAP 2021

Supreme Court of Pennsylvania.

Argued: December 7, 2021

Decided: July 20, 2022

Matthew Hoffmann Davis, Esq., Lawrence Jonathan Goode, Esq., Lawrence Samuel Krasner, Esq., Carolyn Engel Temin, Esq., Nancy L. Winkelman, Esq., Philadelphia District Attorney's Office, for Appellant.

Matthew Aaron Hamermesh, Esq., Daniel Segal, Esq., Hangley, Aronchick, Segal, Pudlin & Schiller, for Appellant Amicus Curiae Current and Former Elected Prosecutors, Attorneys General, and Law Enforcement Leaders.

Sara Jeannette Rose, Esq., for Appellant Amicus Curiae ACLU of Pennsylvania.

Charles Matthew Gibbs, Esq., Fortunato N. Perri Jr., Esq., McMonagle Perri, McHugh & Mischak, P.C., for Appellee.

John R. Bielski, Esq., William James Campbell IV, Esq., Richard G. Poulson, Esq., Ralph J. Teti, Esq., for Appellee Amici Curiae Pennsylvania State Lodge Fraternal Order of Police, Fraternal Order of Police Lodge No. 5.

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE DOUGHERTY

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, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), so too must 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 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.

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 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 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...