Com. v. Childs, W. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM CHILDS,
Appellant No. 272 EDA 2013
Appeal from the Judgment of Sentence January 16, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012722-2010
BEFORE: BOWES, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 10, 2014
William Childs appeals from the judgment of sentence of sixteen to
thirty-two years incarceration followed by five years of probation imposed by
the trial court after one jury found him guilty of third-degree murder and
another jury declared him guilty of possession of an instrument of crime
(“PIC”). Since we find that instructing a jury regarding the evidentiary
presumption that a person acts reasonably in self-defense within his own
residence under 18 Pa.C.S. § 505(b)(2.1), would not have been a retroactive
application of that law under the facts of this case, we reverse and remand
for a new trial.
Appellant resided at 545 North Wannamaker Street with Michael
Beander and Samuel Andrews, the latter being the owner of the property in
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*
Retired Senior Judge assigned to the Superior Court.
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question. The decedent, Bryant Bell, had previously lived at the address.
Mr. Andrews invited Mr. Bell to his home on July 29, 2010, to celebrate
Mr. Bell’s birthday, which was the previous day. The men began consuming
alcohol before Appellant and Mr. Bell engaged in an argument. Appellant
remained seated throughout the argument; as he had previously suffered a
spinal cord injury resulting in him having to walk with the aid of a cane. Due
to the argument, Mr. Andrews asked Mr. Bell to leave. Accordingly, Mr. Bell
left the inside of the home along with Mr. Beander. Mr. Andrews retreated
to his room in the upstairs of the home.
Mr. Bell and Mr. Beander remained seated on the outside porch of the
residence. At some point, Appellant and Mr. Bell resumed their argument,
with Appellant remaining inside the home and yelling through a screen door.
According to Mr. Beander, Appellant called the victim a bitch and threatened
to “fuck him up.” Concomitantly, Mr. Bell responded with profanity, threats
to attack Appellant, and calling him a cripple.
Appellant also maintained to police that the victim was speaking to
Mr. Beander and threatening to beat up Appellant before walking across the
street. Appellant retrieved a knife from the kitchen table. Thereafter,
Mr. Bell returned to Appellant’s home, proceeded to grab a broomstick from
the porch area, and succeeded in opening the door. Mr. Bell struck
Appellant with the stick several times before Appellant stabbed Mr. Bell one
time in the chest. Appellant then called 911, but the stabbing resulted in
Mr. Bell’s death. At the time, Mr. Bell had cocaine in his system and a blood
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alcohol content of .082%. The Commonwealth charged Appellant with
criminal homicide and PIC. Appellant presented a claim of self-defense at
trial.
A jury initially deadlocked on the murder charge, but found Appellant
guilty of PIC on November 16, 2011. A subsequent trial occurred on the
homicide charge, which concluded one year from the first trial, on
November 16, 2012. At both trials, Appellant sought a jury instruction
based on Act No. 10 of 2011, relative to what is commonly known as the
“Castle Doctrine.” Specifically, Appellant asked that the jury be instructed
that it was presumed that he had a reasonable belief that deadly force was
immediately necessary to protect himself from serious bodily injury or death
since he acted inside his residence. The Commonwealth objected on the
basis that the law did not become effective until August 27, 2011, after
Appellant stabbed the victim. The court declined to provide the jury
instruction. Following the second trial, the jury found Appellant guilty of
third-degree murder.
Subsequently, the court sentenced Appellant to sixteen to thirty-two
years incarceration for the third-degree murder count and a consecutive
sentence of five years probation on the PIC charge. This timely appeal
ensued. The trial court directed Appellant to file and serve a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. Appellant
complied, and the trial court authored its opinion. The matter is now ready
for our review. Appellant’s sole contention on appeal is “Did not the trial
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court err in refusing to instruct the jury on the self-defense provisions
codified in Act No. 10 of 2011, 18 Pa.C.S. [§] 505(b)(2.1)?” Appellant’s
brief at 3.
The question before us today is whether consideration of 18 Pa.C.S.
§ 505(b)(2.1) at Appellant’s trial would have resulted in retroactive
application of that law. Section 505(b)(2.1) provides:
Except as otherwise provided in paragraph (2.2), an actor is
presumed to have a reasonable belief that deadly force is
immediately necessary to protect himself against death, serious
bodily injury, kidnapping or sexual intercourse compelled by
force or threat if both of the following conditions exist:
(i) The person against whom the force is used is in the process
of unlawfully and forcefully entering, or has unlawfully and
forcefully entered and is present within, a dwelling, residence or
occupied vehicle; or the person against whom the force is used
is or is attempting to unlawfully and forcefully remove another
against that other's will from the dwelling, residence or occupied
vehicle.
(ii) The actor knows or has reason to believe that the unlawful
and forceful entry or act is occurring or has occurred.
18 Pa.C.S. § 505(b)(2.1). Thus, § 505(b)(2.1) creates an evidentiary
rebuttable presumption that a defendant acts reasonably in using deadly
force where the defendant uses such force against a person unlawfully in or
attempting to enter his residence and knows or has reason to believe that
the person is there illegally.
The law of retroactivity is less than a model of clarity. In the criminal
context, retroactivity concerns usually arise in the context of ex post facto
issues. Whereas here there are no ex post facto implications, criminal case
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law has engrafted contract clause and civil law retroactivity analysis into the
criminal sphere. See Commonwealth v. Johnson, 553 A.2d 897 (Pa.
1989) (citing Creighan v. City of Pittsburgh, 132 A.2d 876, 871 (Pa.
1957)); see also Weaver v. Graham, 450 U.S. 24, 31 (1981) (“In using
the concept of vested rights, Harris v. Wainwright, 376 So. 2d, at 856, the
Florida court apparently drew on the test for evaluating retrospective laws in
a civil context.”).
This itself is problematic. While “since the beginning of the Republic
and indeed since the early days of the common law: absent specific
indication to the contrary, the operation of nonpenal legislation is
prospective only[,]” Kaiser Aluminum & Chemical Corp. v.
Bonjorno, 494 U.S. 827, 841 (1990) (Scalia, J., concurring), the same is
not true in criminal law. See id. n.1. (citing Yeaton v. United States, 5
Cranch 281, 283 (1809) (“it has been long settled, on general principles,
that after the expiration or repeal of a law, no penalty can be enforced, nor
punishment inflicted, for violations of the law committed while it was in
force, unless some special provision be made for that purpose by statute.”);
United States v. Tynen, 11 Wall. 88, 95 (1871) (“There can be no legal
conviction, nor any valid judgment pronounced upon conviction, unless the
law creating the offence be at the time in existence”)). Simply put, laws
that retroactively benefited an accused were not subject to the same civil
law prohibition against retroactive laws.
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Indeed, the common law doctrine of abatement has long been applied
in Pennsylvania. From the early days of this Commonwealth, the prohibition
against retroactive criminal laws did not apply to statutes affecting the
substantive rights of an accused where the law benefited the accused. In
Commonwealth v. Duane, 1 Binn. 601 (Pa. 1809), the Pennsylvania
Supreme Court expressly distinguished between the prohibition against civil
retroactive laws and ameliorative retrospective criminal legislation. There,
the defendant was indicted and found guilty of committing a libel against
Pennsylvania’s governor in his official capacity. However, prior to his
judgment of sentence, the legislature passed a law stating that no person
was to be prosecuted by indictment for publication of papers or for
investigating the official conduct of men in a public capacity. Counsel for
Duane argued that the law interfered with no vested right, did not violate
any right of property, and effectively terminated his prosecution. The
Pennsylvania Supreme Court agreed, with Chief Justice Tilghman stating, “If
the same expression had been used, as applied to a civil action, I should
have thought myself warranted in giving it a different construction, because
then it would have operated in a retrospective manner, so as to take away
from a citizen a vested right. But there is a wide difference between a civil
and a criminal action.” Id. at 608-609.
Importantly, it must first be determined whether the statute in
question would operate retroactively, Gehris v. Commonwealth,
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Department of Transportation, 369 A.2d 1271, 1273 (Pa. 1977), which is
generally permissible only in limited circumstances. The Pennsylvania
Supreme Court has held that “a statute does not operate retrospectively
merely because some of the facts or conditions upon which its application
depends came into existence prior to its enactment.” Id. In the civil arena,
Justice Joseph Story, writing while on circuit, offered a concise summary of
retroactive civil laws, which has subsequently been adopted by the United
States Supreme Court, see Landgraf v. USI Film Products, 511 U.S. 244
(1994), and utilized by courts in this Commonwealth. Justice Story opined,
“every statute, which takes away or impairs vested rights acquired under
existing laws, or creates a new obligation, imposes a new duty, or attaches a
new disability, in respect to transactions or considerations already past,
must be deemed retrospective[.]” Society for the Propagation of the
Gospel v. Wheeler, 22 F. Cas. 756, 767 (1814). Justice Duncan of the
Pennsylvania Supreme Court echoed this definition and cited Justice Story’s
opinion in Eakin v. Raub, 12 Serg. & Rawle 330, but, in doing so, also
recognized the critical distinction between the prohibition against civil
retroactive law and ameliorative criminal legislation. Id. at 362.
More recently, Pennsylvania courts have utilized the civil retroactivity
test in criminal cases by setting forth that a statute is impermissibly
retroactive if it “attaches new legal consequences to events completed
before its enactment. Retroactive application occurs only when the statute
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or rule relates back and gives a previous transaction a legal effect different
from that which it had under the law in effect when it transpired.”
Commonwealth v. Robinson, 7 A.3d 868, 871-872 (Pa.Super. 2010)
(internal quotations omitted).
Our Supreme Court has also held that, if no vested right or contractual
obligation is impaired or destroyed, a statute can apply to facts existing on
the law’s effective date, which resulted from events that occurred prior to
that date. Johnson, supra at 900 (“Only where a vested right or
contractual obligation is involved is a statute applied ‘retroactively’ when it is
applied to a condition existing on its effective date which resulted from
events which occurred prior to that date.”); See Creighan, supra at 871
(“a statute is not regarded as operating retroactively because of the mere
fact that it relates to antecedent events, or draws upon antecedent facts for
its operation”); Pope v. Pennsylvania Threshermen & Farmers Mut.
Cas. Ins. Co., 107 A.2d 191, 192 (Pa.Super. 1954) (“If ‘no vested right or
contractual obligation is involved, an act is not retroactively construed when
applied to a condition existing on its effective date even though the condition
results from events which occurred prior to that date.’”); Commonwealth
v. Palmer, 558 A.2d 882, 883 (Pa.Super. 1989); Cox v. Hart, 260 U.S.
427, 435 (1922) (“The proviso so construed impairs no vested right and
brings into existence no new obligation which affects any private interest.”);
Goodyear v. Rumbaugh, 13 Pa. 480, 481 (1850) (Married Women’s Act of
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1848 was not improperly retrospective because it did not “interfere with
vested rights.”).
This Court has defined a vested right as one that “so completely and
definitely belongs to a person that it cannot be impaired or taken away
without the person's consent.” In re R.T., 778 A.2d 670, 679 (Pa.Super.
2001). In Eakin, supra at 360, Justice Duncan opined, “a vested right is
where a man has power to do certain actions, or to possess certain things,
according to the laws of the land.” A vested right is fixed and without
condition. Ashbourne School v. Department of Education, 403 A.2d
161, 165 (Pa.Cmwlth. 1979).
Further, if a statute is remedial, curative, or validating legislation, it
may not be subject to the prohibition against retroactive application. Pope,
supra at 192 (“if a statute is curative, remedial or procedural only, it may
be applicable to litigation instituted prior thereto but not completed.”); In re
Malik, 8 A.2d 494 (Pa.Super. 1939); Commonwealth v. Duffy, 96 Pa. 506
(1880); Shonk v. Brown, 61 Pa. 320 (1869); Hepburn v. Curts, 7 Watts
300, 301 (Pa. 1838) (“The legislature, provided it does not violate the
constitutional prohibitions, may pass retrospective laws, such as in their
operation may affect suits pending, and give to a party a remedy which he
did not previously possess, or modify an existing remedy, or remove an
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impediment in the way of recovering redress by legal proceedings.”); but
see Commonwealth v. Shaffer, 734 A.2d 840 (Pa. 1999).1
In addition, legislative provisions that are purely procedural can
without censure apply retroactively. See Commonwealth v. Estman, 915
A.2d 1191 (Pa. 2007); Morabito's Auto Sales v. Commonwealth, 715
A.2d 384, 386 (Pa. 1998) (“It is well settled, however, that legislation
concerning purely procedural matters will be applied not only to litigation
commenced after its passage, but also to litigation existing at the time of
passage.”) Kuca v. Lehigh Valley Coal Co., 110 A. 731, 732 (Pa. 1920)
(holding a procedural statute was not retroactive because “it does not
disturb vested rights, or impair contract obligations.”). However, statutes
infringing substantive rights are generally not to apply retroactively.
Estman, supra. The legislature may, of course, clearly and manifestly
express an intent for a statute to apply retroactively. 1 Pa.C.S. § 1926; see
also Anderson v. Sunray Elec. Inc., 569, 98 A.2d 374, 375 (Pa.Super.
1953). (“Unless the legislature clearly manifests its intention otherwise, no
law may be construed to be retroactive, and then only where it does not
destroy vested rights or impair the obligations of contracts.”).
The Pennsylvania Supreme Court has defined procedural and
substantive law by opining, “substantive laws are those which affect rights,
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1
Application of the statute in Shaffer would have resulted in ex post facto
problems since the law expanded Pennsylvania’s corrupt organizations
statute to encompass illegal enterprises.
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while procedural laws are those which address methods by which rights are
enforced. The demarcation between substantive and procedural laws is,
however, at times shadowy and difficult to determine.” Morabito's Auto
Sales, supra at 386 (internal citations omitted); see also Estman, supra
at 1195 (quoting Commonwealth v. Morris, 771 A.2d 721, 738 (Pa.
2001), and stating, “substantive law is that part of the law which creates,
defines and regulates rights, while procedural laws are those that address
methods by which rights are enforced.”). “As threads are woven into cloth,
so does procedural law interplay with substantive law. Together, they create
a cohesive whole. However, it is this very proximity which often leads to
difficulty in identifying one thread as procedural and another as
substantive.” Laudenberger v. Port Authority of Allegheny County,
436 A.2d 147, 150 (Pa. 1981).
We add that, in varying contexts, this Court has considered new
statutory law to apply to proceedings that transpire after the effective date
of the law, even though the case began before the effective date of the new
law. For example, in In re C.R.F. III v. S.E.F., 45 A.3d 441 (Pa.Super.
2012), we applied the new Child Custody Act to a proceeding involving a
mother’s petition to relocate in a custody action that began before the
passage of the law. There, the statute became effective on January 24,
2011. The legislature, unlike here, expressly set forth that “a proceeding
under the former provisions of 23 Pa.C.S. Ch. 53 which was commenced
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before the effective date of this section shall be governed by the law in
effect at the time the proceeding was initiated.” 2010 Pa. Legis. Serv. Act
2010–112, §§ 4–5 (H.B.1639). Construing the word “proceeding” as not
encompassing an entire custody action, see also E.D. v. M.P., 33 A.3d
73 (Pa.Super. 2011), this Court ruled that, although the mother in C.R.F.
III filed her petition to relocate in the custody case before the effective date
of the statute, because the hearing commenced after that date, the new law
applied. The Supreme Court has not sua sponte struck down this statute as
impeding its procedural rule-making authority.
In Robinson, supra, this Court rejected the Commonwealth’s
contention that utilization of the Recidivism Risk Reduction Incentive
(“RRRI”) sentencing program to a person charged with crimes prior to its
enactment, was an impermissible retroactive application of that law. In
Robinson, the defendant was charged with various drug offenses that
transpired between February and April 2007. The court conducted a bench
trial on June 17, 2008. On November 24, 2008, the RRRI sentencing statute
became effective. The court issued its verdict on January 21, 2009, and
sentenced the defendant on April 16, 2009. The Robinson Court reasoned,
“the Legislature, in enacting the statute, did not impose new legal burdens
on past transactions or occurrences which Appellant committed.” Id. at
873. It added that Robinson had “no vested ‘right’ to be placed on parole,
because parole is an act of grace, not of right.” Id. The panel concluded,
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“application of the RRRI statute to a defendant convicted and sentenced
after the law became effective, as is the case with [Robinson], does not
violate the restriction set on the retroactive effect of statutes.” Id.
In Bethea v. Philadelphia AFL-CIO Hospital Assocation, 871 A.2d
223 (Pa.Super. 2005), this Court concluded, in a medical malpractice case
filed before the passage of the MCARE statute, that expert testimony
presented after the passage of the law had to meet the MCARE requirements
under section 512 of that act. The panel ruled that the statute in question
was procedural only and the prohibition against retroactive application did
not apply.
In Johnson, supra, our Supreme Court applied a new five-year
statute of limitations that became effective after the defendant committed
his crimes therein. The Johnson Court found that the defendant “had no
vested ‘right’ to be free from conviction within two years after he committed
the crime for which he was later tried.” Id. at 900. It added, “A criminal
statute of limitations is an act of legislative grace, not of right. Thus, the
concept of retroactivity, and the correlative presumption of prospectivity
embodied in 1 Pa.C.S. § 1926, are inapplicable here.” Id.
Appellant makes four separate arguments in support of his position
that the court erred in determining that the application of the evidentiary
presumption in this case would be impermissibly retroactive. First, he
maintains that the legislature did clearly and manifestly express an intent for
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the applicable law to apply to trials that occurred on or after its effective
date. According to Appellant, the General Assembly is not required to incant
“magic words” for a law to apply to a trial occurring after the effective date
of the statute. Appellant’s brief at 19. In this respect, he points out that in
enacting the legislation that created § 505(b)(2.1), the General Assembly
set forth in the preamble:
(1) It is proper for law-abiding people to protect themselves,
their families and others from intruders and attackers without
fear of prosecution or civil action for acting in defense of
themselves and others.
(2) The Castle Doctrine is a common law doctrine of ancient
origins which declares that a home is a person's castle.
(3) Section 21 of Article I of the Constitution of Pennsylvania
guarantees that the ‘right of the citizens to bear arms in defense
of themselves and the State shall not be questioned.’
(4) Persons residing in or visiting this Commonwealth have a
right to expect to remain unmolested within their homes or
vehicles.
(5) No person should be required to surrender his or her
personal safety to a criminal, nor should a person be required to
needlessly retreat in the face of intrusion or attack outside the
person's home or vehicle.”
Act 2011-10, June 28, P.L. 48. In Appellant’s view, the preamble recognizes
and endorses long-standing pre-existing common law and constitutional
rights, and did not intend for the implementation of the ameliorative
legislation to be deferred.
Second, Appellant posits that § 505(b)(2.1) creates a presumption
which only has “legal import . . . when the finder of fact is using the
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presumption to evaluate the evidence, and determine (in the circumstances
of the case at bar) the merits of the asserted claim of self-defense.”
Appellant’s brief at 20 (emphasis removed). Accordingly, a presumption is
only relevant at the time of trial and application of the statute to Appellant’s
trial after the effective date of the legislation is not improper. Put simply,
“the effective date of the Act No. 10 presumption must be linked to the time
of trial—not the time of the underlying conduct.” Appellant’s brief at 20-21.
Next, Appellant asserts that assuming arguendo that § 505(b)(2.1) is
substantive, it is ameliorative legislation, i.e., it is defendant favorable.
Appellant maintains that Pennsylvania law “has in place an ‘ameliorative
amendment’ doctrine when substantive criminal law has been amended in a
defendant-favorable manner.” Id. at 21. In this regard, Appellant
highlights that prior cases have determined that statutes that reduce a
criminal penalty after a defendant has committed the crime, but before the
defendant is sentenced, receive retrospective application. Id. (citing
Commonwealth v. Swavely, 322 A.2d 710 (Pa.Super. 1974);
Commonwealth ex rel. Milk v. Maroney, 181 A.2d 702 (Pa.Super.
1962)).
In Swavely, the defendant pled guilty to driving with a suspended
license on November 13, 1972. At the time of his arrest for that offense,
which occurred on January 23, 1972, the statutory penalty called for a fine
of at least $100 and not more than $500, or imprisonment for no more than
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three years, or both. However, on May 26, 1972, the legislature amended
the penalty provision to reduce the fine to not less than $100, nor more than
$200, or imprisonment not to exceed two months, or both. The new statute
did not contain a savings clause. The Swavely Court reasoned that because
the amended penalty statute “did not contain any ‘saving clause’ to continue
the effect of the prior repealed penalty provision, we hold that the lower
court erred in sentencing appellant under the repealed penalty provision[.]”
Swavely, supra at 711 (footnote omitted).
In support, the court in Swavely relied on Milk, supra. In Milk, the
defendant was incarcerated in a state correctional institution on a sentence
of ten to twenty years. The defendant escaped, and, after being
apprehended, pled guilty to that offense. The court imposed a seven-and-
one-half-to-fifteen-year sentence, but suspended the sentence. The
defendant attempted to escape from prison again, and the court revoked the
suspended sentence and directed the defendant to serve the sentence. Prior
to the defendant’s sentencing, however, the legislature reduced the
maximum punishment for his crime to ten years. The Milk Court ruled that
the defendant was subject to the lesser penalty.
Appellant acknowledges that the law in question does not pertain to a
reduction in a criminal penalty, but contends that its ameliorative effect is
greater because it is codifying common law and constitutional rights.
According to Appellant, “[t]here is no reason in logic to apply the
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ameliorative amendment doctrine only when there is a reduction in a
defendant’s penalty, but to withhold it when there is a recognition of
common law and constitutional rights that culminates in legislation that
vindicates this right[.]” Appellant’s brief at 22.
Lastly, Appellant argues that § 505(b)(2.1) is procedural and not
substantive. Appellant notes that the statute does not alter the substantive
elements of self-defense, but only creates an evidentiary presumption that
persons inside their own abodes act reasonably in using deadly force where
the other person is an intruder or attempting to illegally enter the residence.
Relying on Commonwealth v. DiFrancesco, 329 A.2d 204 (Pa. 1974),
Appellant submits that evidentiary presumptions are procedural. In
DiFrancesco, the Pennsylvania Supreme Court opined that a presumption
“is a procedural device which not only permits an inference of the ‘presumed
fact’, but also shifts to the opposing party the burden of producing evidence
to disprove the presumed fact.” Id. at 207 n.3.
Appellant also analogizes § 505(b)(2.1) to the Pennsylvania Rules of
Evidence, which apply to proceedings that begin on or after the effective
date of the rules. For Appellant, “[b]oth the Rules of Evidence and the Act
No. 10 presumption at issue here are procedural in a similar way—both set
rules as to what a jury can consider (and how it can consider it) in making
its fact-finding determination.” Appellant’s brief at 24.
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The Commonwealth replies that Appellant was not entitled to a self-
defense instruction because self-defense was not at issue.2 In support of
this position, it argues that Appellant claimed that he stabbed the victim
unintentionally. Reading Appellant’s statement to police after the incident,
the Commonwealth suggests that, because Appellant did not admit to
stabbing the victim intentionally, he received a windfall by getting a self-
defense instruction.
Appellant did inform police that, “I stabbed him unintentionally. I was
just trying to scare him. I didn’t mean to kill him.” N.T., 11/15/12, at 132.
However, in the same statement he also asserted that he was attempting to
poke the victim with the knife and set forth, “I did not mean to stab him to
hurt him. I just wanted to scare him. I didn’t mean to hurt or kill him, I
was just trying to defend myself.” Id. at 136. Mr. Beander also testified in
response to the prosecutor’s questioning that Appellant told him that he had
to defend himself and provided a similar statement to police during the
investigation. Another witness, Anginella Murray, also told police that
Appellant insisted that he acted in self-defense.
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2
The Commonwealth did not object to the jury instruction on self-defense
that the trial court provided, nor did it argue that self-defense was not at
issue. Indeed, during the first trial, the prosecutor in her opening statement
set forth that the jury would be instructed on self-defense. See N.T.,
11/8/11, at 69-70. At the second trial, the prosecutor indicated in her
opening statement that the court “may instruct you at the end of trial about
what self defense is.” N.T., 11/13/12, at 27.
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The Commonwealth relies on Commonwealth v. Harris, 665 A.2d
1172 (Pa. 1995), in advancing its argument. In Harris, the defendant shot
and wounded the father of his wife’s son inside the defendant’s home. The
defendant therein testified that his weapon, a shotgun, accidentally
discharged when his wife and the victim attempted to secure the weapon
from him. The Pennsylvania Supreme Court ruled that, because the
defendant testified that he did not intend to fire the weapon, a self-defense
instruction was not warranted. As Appellant’s statement and the evidence
herein are distinguishable from Harris, we reject the Commonwealth’s
position that no self-defense charge was warranted at all. It is evident that
Appellant was stating that he did not specifically intend to kill the victim, but
did intend to defend himself by poking his knife at the victim.
The Commonwealth also rejoins that, since Appellant stabbed the
victim on July 29, 2010, and the presumption in question did not become
law until August 27, 2011, he was not entitled to the requested jury
instruction at his trial that occurred post-August 27, 2011. It points out that
the statute was approved on June 28, 2011, and was to take effect in 60
days. Relying on 1 Pa.C.S. § 1926 and 1 Pa.C.S. § 1953, the
Commonwealth contends that the statute does not apply retroactively. In
this respect, § 1926 reads, “No statute shall be construed to be retroactive
unless clearly and manifestly so intended by the General Assembly.” 1
Pa.C.S. § 1926. Concomitantly, § 1953 provides,
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Whenever a section or part of a statute is amended, the
amendment shall be construed as merging into the original
statute, become a part thereof, and replace the part amended,
and the remainder of the original statute and the amendment
shall be read together and viewed as one statute passed at one
time; but the portions of the statute which were not altered by
the amendment shall be construed as effective from the time of
their original enactment, and the new provisions shall be
construed as effective only from the date when the amendment
became effective.
1 Pa.C.S. § 1953.
The Commonwealth maintains that although the preamble underscores
“the significance of the right of self-defense, [it] simply does not speak to
the question of retroactivity.” Commonwealth’s brief at 13. According to
the Commonwealth, the legislature was well aware of the manner in which it
could make the statute retroactive. It adds that Appellant’s reliance on
Swavely and Milk is misguided. The Commonwealth distinguishes those
cases on the grounds that they apply to sentencing. Without citation to any
Pennsylvania law, the Commonwealth asserts that those decisions “do not
speak to changes in the law that affect the manner in which the prior
conduct of the accused is evaluated at trial.” Commonwealth’s brief at 16.
The Commonwealth further rejects Appellant’s reliance on DiFrancesco and
posits that the applicable statute is not purely procedural. It sets forth that
the Pennsylvania Supreme Court has exclusive procedural rule making
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authority, and therefore, if the statute were considered procedural, it would
be of questionable constitutionality.3
The Commonwealth adds that, in Florida and Michigan, courts have
concluded that application of a new broader Castle Doctrine in those states
to criminal acts occurring before the passage of their respective laws would
have been impermissibly retroactive. See Smiley v. Florida, 966 So. 2d
330 (Fla. 2007); People v. Conyer, 762 N.W.2d 198 (Mich.App. 2008).
This case, unlike those matters, does not involve the application of Act 10 to
a claim of self-defense in one’s vehicle or in a setting outside of the
defendant’s home. Since this case does not involve an extension of the
Castle Doctrine to areas outside a person’s residence, the discussions
contained in those jurisdictions is unavailing.
The Castle Doctrine, as it is commonly known and was referred to in
the preamble to Act 10, existed at English common law well before the
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3
We note that our Supreme Court in Commonwealth v. Fisher, 741 A.2d
1234, 1241 (Pa. 1999), declared that a statutory provision relative to
aggravating factors for the death penalty statute was not substantive;
however, it did not declare the law to be an unconstitutional invasion of its
procedural rule-making authority. Importantly, the Supreme Court has sua
sponte ruled that statutes unconstitutionally violate its rule-making power.
In re Suspension of Capital Unitary Review Act, 722 A.2d 676 (Pa.
1999). Therefore, it is immaterial whether or not a party raises this concern
before that Court. To the extent the Commonwealth suggests that a
statutory provision that operates in a procedural manner can never be
passed by the legislature, we believe that position is legally untenable. See
Fisher, supra.
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founding of America.4 Lord Chief Justice Matthew Hale opined, where a man
“is assailed in his own house, he need not flee as far as he can, as in other
cases of se defendendo, for he hath the protection of his house to excuse
him from flying, as that would be to give up the protection of his house to
his adversary by flight.” People v. Tomlins, 107 N.E. 496, 497 (N.Y. 1914)
(quoting 1 Hale’s Plea of the Crown, 486). Justice Benjamin Cardozo, while
on the New York High Court one hundred years ago, posited that “[f]light is
for sanctuary and shelter, and shelter, if not sanctuary, is in the home. That
there is, in such a situation, no duty to retreat is, we think, the settled law in
the United States as in England.” Id. at 497.
The United States Supreme Court endorsed the Castle Doctrine in
Beard v. United States, 158 U.S. 550 (1895), reasoning that one had no
duty to retreat even when outside the dwelling if still on one’s own property.
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4
Lord Edward Coke opined in Semayne’s Case, 77 Eng. Rep. 194, 195
(K.B. 1604), “the house of every one is to him as his castle.” John Adams
remarked in 1774,
“An Englishman[’]s dwelling House is his Castle. The Law has
erected a Fortification round it—and as every Man is party to the
Law, i.e., the Law is a Covenant of every Member of society with
every other Member, therefore every Member of Society has
entered into a solemn Covenant with every other that he shall
enjoy in his own dwelling House as compleat a security, safety
and Peace and Tranquility as if it was surround with Walls of
Brass, with Ramparts and Palisadoes and defended with a
Garrison and Artillery[.]”
1 Legal Papers of John Adams, 137 (L. Kinvin Wroth & Hiller B. Zobel eds.,
1965).
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Pennsylvania courts first discussed the question of whether there is a duty to
retreat in one’s dwelling in 1952. See Commonwealth v. Fraser, 85 A.2d
126 (Pa. 1952). Therein, it adopted the common law doctrine stating that
the law governing the absence of a duty to retreat when in your own house
“has always been recognized as the law in this State, and the fact that it has
not been seriously questioned accounts for the apparent dearth of any
express statement or ruling on the subject by our appellate courts.” Id. at
128.
Prior to the passage of Act 10, aspects of the common law governing
self-defense in this Commonwealth had been codified by statute,5 in relevant
part, as follows:
(2) The use of deadly force is not justifiable under this section
unless the actor believes that such force is necessary to protect
himself against death, serious bodily injury, kidnapping or sexual
intercourse compelled by force or threat; nor is it justifiable if:
(i) the actor, with the intent of causing death or serious bodily
injury, provoked the use of force against himself in the same
encounter; or
(ii) the actor knows that he can avoid the necessity of using such
force with complete safety by retreating or by surrendering
possession of a thing to a person asserting a claim of right
thereto or by complying with a demand that he abstain from any
action which he has no duty to take, except that:
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5
We are cognizant that, at common law, the defendant bore the burden of
establishing self-defense by a preponderance of the evidence. See
Commonwealth v. Mouzon, 53 A.3d 738 (Pa. 2012). Currently, the
Commonwealth bears the burden of demonstrating beyond a reasonable
doubt that the defendant did not act in self-defense. Id. at 743.
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(A) the actor is not obliged to retreat from his dwelling or place
of work, unless he was the initial aggressor or is assailed in his
place of work by another person whose place of work the actor
knows it to be;
18 Pa.C.S. § 505.
Accordingly, before the passage of the new act, a self-defense claim by
an individual who was in his residence required that some evidence be
shown, by either the Commonwealth or the defendant, that the defendant
reasonably believed he was in imminent danger of death or serious bodily
injury and it was necessary to use deadly force to prevent such harm.
Additionally, the defendant must not have provoked the use of force against
himself in that same encounter with the intent of causing death or serious
bodily injury. Commonwealth v. Samuel, 590 A.2d 1245, 1248 (Pa. 1991)
(“in order to find that the defendant had forfeited his right to self-defense
pursuant to the doctrine of provocation, the facts must support the statutory
requirement that the defendant, with the intent of causing death or serious
bodily injury, provoked the use of force.”) (italics in original).
Following the passage of Act 10, it is explicitly presumed that a
person acts reasonably in using deadly force where another individual
unlawfully and forcefully enters or is in the process of entering the residence
of the person allegedly acting in self-defense. Hence, the defendant need
not introduce evidence that he reasonably believed he was in imminent
danger of death or serious bodily injury.
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Here, we find that Act 10 does not interfere with or impair a vested
right of either the Commonwealth or Appellant. While Appellant has a
vested right to self-defense, Act 10 does not interfere or impair that right.
Nor did Appellant have a vested right in favor of an evidentiary presumption.
The General Assembly did not impose additional legal burdens on Appellant
by passing the presumption. In addition, the Commonwealth has no vested
right against an evidentiary presumption in self-defense cases. Since the
Commonwealth has no vested right against the creation of evidentiary
presumptions with respect to self-defense claims, and Appellant has no
vested right to an evidentiary presumption in his favor, Act 10’s evidentiary
presumption for those acting in their homes would not operate retroactively
in trials occurring after its effective date simply because the criminal act
transpired before the passage of the statute.
We are aware that some iterations of the civil retroactivity test,
encased onto criminal matters, also discusses whether the law changes the
legal consequences of acts completed before the effective date of the
statute, or creates a new obligation, or imposes a new duty for past
transactions. See Robinson, supra. The legal consequences of Appellant
not retreating in his own home are identical before and after Act 10.
Further, the Commonwealth’s burden of proving beyond a reasonable doubt
that a person acted unreasonably in using deadly force inside his or her
home is unchanged.
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Both before and after Act 10, defendants were presumed innocent of
the crimes charged and were thereby presumed to have acted reasonably if
they forwarded a self-defense claim. The Commonwealth would present the
same evidence to establish Appellant’s guilt under either Act 10 or the
former law. Cf. Commonwealth v. Fisher, 741 A.2d 1234, 1241 (Pa.
1999) (since the same evidence would be used to prove a new aggravating
death penalty factor as under the prior law, the new statute did not affect
the substantive rights of the defendant). Thus, where the claim of self-
defense is premised on actions in the home, the evidentiary presumption in
Act 10 affects no new substantive change in the law.
Portions of Act 10 that are not relevant here undoubtedly broaden the
substantive rights of an accused. See e.g. 18 Pa.C.S. § 505(b)(2.3). Of
course, the prohibition against retroactive legislation that affects substantive
rights was never construed at common law to apply to laws that benefit the
accused, see Duane, supra; see also Landgraf, supra at 270-271, but
applied to laws that impaired or infringed a substantive right. The legislative
enactment of 1 Pa.C.S. § 1926, and its predecessor, 46 P.S. § 556, was
intended as a codification of the common law rule, not a rejection of that
rule. As Appellant recognizes, even after the legislature adopted a statutory
prohibition against retroactive legislation, that prohibition has not been
applied to ameliorative sentencing laws. See Swavely, supra; Milk,
supra; see also Robinson, supra.
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Although the evidentiary presumption for defendants acting in their
own residences is not a sentencing law, nor does it completely remove
criminal liability, neither does it create or define the right of self-defense in
one’s home. Instead, it addresses a method of enforcing that right of self-
defense.6 Moreover, evidentiary presumptions are procedural mechanisms.
DiFrancesco, supra. Accordingly, the evidentiary presumption for
defendants acting in their residence is not retroactive merely because it
would be used in a trial after the law’s effective date, where the person on
trial committed the acts prior to the statute’s enactment. Since the trial
court erroneously concluded that providing the jury instruction would have
been a retroactive application of the pertinent law, we find that Appellant is
entitled to a new trial.
Judgment of sentence reversed. Case remanded. Jurisdiction
relinquished.
Judge Ott joins the Memorandum.
Judge Strassburger files a Dissenting Memorandum.
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6
We note that we are not faced with the question as to how the evidentiary
presumption applies to a person in a vehicle self-defense case or other
aspects of the statute as it pertains to one’s right to stand his or her ground
outside the home.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2014
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