Commonwealth, Aplt. v. Pownall, R.

[J-76-2021] [MO: Dougherty, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
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
DISSENTING OPINION
JUSTICE WECHT DECIDED: July 20, 2022
The Commonwealth charged ex-Philadelphia Police Officer Ryan Pownall with
criminal homicide, possession of an instrument of a crime, and recklessly endangering
another person in connection with the fatal shooting of David Jones. Anticipating that
Pownall would invoke the peace-officer justification defense at trial, the Commonwealth
filed a pretrial motion in limine seeking to prevent the trial court from issuing to the jury
the suggested standard jury instruction for that defense. That suggested instruction
mirrors the following statutory language:
A peace officer . . . 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(a)(1).
The Commonwealth argued that Section 508(a)(1)’s justification defense “is
unconstitutional under the Fourth Amendment to the United States Constitution, as
interpreted by the United States Supreme Court” in Tennessee v. Garner, 471 U.S. 1(1985). Commonwealth’s Mot. in Limine, 11/25/2019, at 3. The Commonwealth’s
alternative instruction proposed to condition a police officer’s use of lethal force upon a
showing that the force was reasonably necessary to prevent an imminent threat of death
or serious bodily harm to either the officer or another person. The trial court declined the
Commonwealth’s invitation, ruling that “[t]he Commonwealth’s Motion in Limine, on its
own, is insufficient to establish the unconstitutionality of Section 508, and its suggested
remedies are inappropriate.” Tr. Ct. Op., 12/30/2019, at 3.
After the trial court denied the motion in limine, and before the commencement of
Pownall’s trial, the Commonwealth appealed, claiming that it was entitled to do so
pursuant to, inter alia, the collateral order doctrine, as embodied in Pa.R.A.P. 313. Under
Rule 313(b), an order is collateral and may be appealed before final judgment if it (1) is
“separable from and collateral to the main cause of action,” (2) involves a right that “is too
important to be denied review,” and (3) presents a claim that “will be irreparably lost” if
appellate “review is postponed until final judgment.”
The Superior Court quashed the appeal by a per curiam judgment order,
concluding that the propriety of Pownall’s justification defense failed the separability
requirement of Rule 313(b). The Commonwealth now asks this Court to reverse the
Superior Court, again asserting that it has met all three requirements of the collateral
order doctrine and is entitled to an immediate appeal.
[J-76-2021] [MO: Dougherty, J.] - 2
Like the court below, today’s Majority concludes that the contested order is not a
collateral one, deciding that the issue raised therein is not separable from the main cause
of action. The Majority arrives at that determination by noting that separability exists
where the issue to be raised in the interlocutory appeal is entirely distinct from the central
issue underlying the case, which, in a criminal prosecution, “is whether the defendant
‘committed the crimes charged.’” Maj. Op. at 28 (quoting Commonwealth v. Shearer, 882
A.2d 462, 469 (Pa. 2005)). The crux of the Majority’s separability analysis is its belief that
the Commonwealth’s constitutional challenge and Pownall’s guilt or innocence are
hopelessly entangled. If the challenge is successful, the Majority asserts, it “would
essentially criminalize conduct the General Assembly has deemed non-criminal.” Id.Taken to its logical end, the Majority’s reasoning removes from the collateral order
doctrine’s reach any Commonwealth appeal wherein it questions either the meaning of or
the constitutional validity of a statutory defense. This leads to the core infirmity in the
Majority’s rationale.
As a result of the Majority’s overly narrow assessment, the Commonwealth will
never be able to secure appellate review of a trial court’s denial of a challenge implicating
a statutory defense. If a defendant is acquitted, double jeopardy principles bar the
Commonwealth from seeking review of the challenged defense.1 On the other hand, if a
defendant is convicted despite the denial of a Commonwealth objection to a statutory
defense, the Commonwealth would not be an aggrieved party entitled to challenge the
denial on appeal.2 As far as I can tell, the only circumstance in which an appellate court
1 See Commonwealth v. Gibbons, 784 A.2d 776, 778 (Pa. 2001) (explaining that
double jeopardy bars a Commonwealth appeal from a judgment of acquittal).
2 Under Pa.R.A.P. 501, “[o]nly an aggrieved party can appeal from an order entered
by a lower court.” Commonwealth v. Polo, 759 A.2d 372, 373 n. 1 (Pa. 2000).
[J-76-2021] [MO: Dougherty, J.] - 3
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.3 Surely our appellate rules do not aim to turn trial judges into
the sole and final arbiters of vital matters of statewide import, such as the merits question
presented here. Yet that is the precise result of today’s decision.
What’s more, our caselaw on the collateral order doctrine does not mandate the
Majority’s conclusion. The Court today makes light of the settled principle that an issue
is separable from the main cause of action when it is analytically distinct from the central
question at trial. We are presented here with a purely legal question that may affect, but
cannot be affected by, the answer to the ultimate issue in this case. For that reason, the
Supreme Court of the United States has held that constitutional issues nearly identical to
the merits question in today’s case are reviewable before final judgment under the
collateral order doctrine.4 I would join the Supreme Court’s approach in that regard, and
I conclude that the collateral order doctrine entitles the Commonwealth to an interlocutory
appeal. Because the Majority holds otherwise, I respectfully dissent. I would instead
proceed to address the merits of the Commonwealth’s claim that Section 508(a)(1) runs
afoul of the Fourth Amendment.
A full account of my reasoning follows.
I. The Commonwealth is entitled to an appeal under Pa.R.A.P. 313.
“Generally speaking, an appellate court’s jurisdiction extends only to review of final
orders,” Shearer v. Hafer, 177 A.3d 850, 855 (Pa. 2018). Final orders are those which
3 See Pa.R.A.P. 312 (“An appeal from an interlocutory order may be taken by
permission pursuant to Chapter 13 (interlocutory appeals by permission).”); see also
Pa.R.A.P. 1311(a) (providing that “[a]n appeal may be taken by permission from an
interlocutory order” that meets one of three conditions).
4 See the discussion of Plumhoff v. Rickard, 572 U.S. 765 (2014), infra.
[J-76-2021] [MO: Dougherty, J.] - 4
“(1) dispose of all claims and all parties, (2) are explicitly defined as final orders by statute,
or (3) are certified as final orders by the trial court or other reviewing body.” Id. at 856
(citing Pa.R.A.P. 341). This “final judgment rule” is a principle that aims “to combine in
one review all stages of the proceeding that effectively may be reviewed and corrected if
and when final judgment results.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,
546 (1949). Delaying appellate adjudication until final judgment “maintains distinctions
between trial and appellate review, respects the traditional role of the trial judge, and
promotes formality, completeness, and efficiency.” Shearer, 177 A.3d at 855. Thus, the
rule bars review where an interlocutory appeal would make “unwise use of appellate
courts’ time, by forcing them to decide in the context of a less developed record, an issue
very similar to one they may well decide anyway later, on a record that will permit a better
decision.” Johnson v. Jones, 515 U.S. 304, 317 (1995).
As an exception to the final judgment rule, the purpose of the collateral order
doctrine is to allow an interlocutory appeal in those cases where rigid application of the
general rule would prove to be an exercise in empty formalism. See Bell v. Beneficial
Consumer Discount Co., 348 A.2d 734, 736 (Pa. 1975) (defining collateral orders as
orders that “possess sufficiently practical aspects of finality to make them appealable”).
The exception sets forth a three-pronged test to decide whether an order, while not
bringing a technical end of litigation, so closely partakes of the nature of a final order that
immediate appellate review is warranted.
One way that the collateral order doctrine does this is by requiring that the order in
question jeopardize rights that “will be irreparably lost” absent immediate review.
Pa.R.A.P. 313(b); see Cohen, 337 U.S. at 546. In other words, “the bell has been rung,
and cannot be unrung by a later appeal.” Commonwealth v. Harris, 32 A.3d 243, 249
(Pa. 2011). This irreparable-loss requirement ensures that interlocutory review occurs
[J-76-2021] [MO: Dougherty, J.] - 5
only in cases of necessity, thereby reflecting a central tenet of the final order rule: Trial
proceedings should not be delayed unnecessarily, and appellate courts should not review
matters that, “had the trial simply proceeded, would have turned out to be unnecessary.”
Johnson, 515 U.S. at 309.
The irreparable-loss prong goes a long way in promoting the goals of the final
judgment rule, but it does not do all the work. The separability and importance prongs
also ensure harmony with the spirit of the final judgment rule. “The requirement that the
matter be separate from the merits of the action itself means that review now is less likely
to force the appellate court to consider approximately the same (or a very similar) matter
more than once.” Id. at 311 (emphasis in original). Separability also confirms that there
is no need for additional information of “record that will permit a better decision.” Id.
at 317. The final requirement, the importance prong, tasks an appellate court with
assessing whether “the interests implicated in any given case” outweigh “the costs of
piecemeal litigation.” Geniviva v. Frisk, 725 A.2d 1209, 1213 (Pa. 1999). A trial court’s
order is weighty enough to warrant interlocutory review where it involves “rights deeply
rooted in public policy going beyond the particular litigation at hand.” Id. at 1214.
This Court has made clear that all three prongs of the collateral order doctrine must
be satisfied; otherwise, the final order rule mandates quashal. Shearer, 177 A.3d at 858.
Here, the Majority finds that the contested order does not raise an issue capable of
separation from the main cause of action, and on that basis quashes the
Commonwealth’s appeal. My colleagues note that, because this is a criminal case, the
main cause of action is “Pownall’s potential guilt or innocence of the crimes charged.”
Maj. Op. at 28. They observe that the Commonwealth’s challenge, if successful, would
limit the defenses available to Pownall and broaden his exposure to criminal liability.
From that observation, the Majority concludes that “it is impossible to separate” the
[J-76-2021] [MO: Dougherty, J.] - 6
Commonwealth’s constitutional claim from the question of Pownall’s culpability. Id. The
Majority anchors that assessment in its sweeping and generalized pronouncement that
separability exists only if the challenged order is “entirely distinct from Pownall’s potential
guilt or innocence of the crimes charged.” Id. at 30.
The Majority’s analysis turns upon an oversimplification of our caselaw defining
separability. That prong is not nearly as unforgiving as the Majority’s condensed account
would lead one to believe. Our separability principles aim to prevent an appellate court
from needlessly addressing identical issues more than once in a given case. In other
words, the separability requirement ensures that an appellate court need not decide an
interstitial question unnecessarily and futilely, nor an issue that requires further
development in the trial court. See Johnson, 515 U.S. at 309, 317. Thus, the crux of the
separability inquiry is whether the challenged order raises an issue that is “conceptually
and factually distinct from the merits.” Pridgen v. Parker Hannifin Corp., 905 A.2d 422,
433 (Pa. 2006). The Majority briefly mentions conceptual distinctness but fails to apply
that concept in a manner consistent with our precedent on the subject.
Like the Supreme Court of the United States,5 which at times has taken a narrower
view of the collateral order doctrine than has this Court,6 we have recognized that “a claim
is sufficiently separate from the underlying issues for purposes of collateral order review
if it ‘is conceptually distinct from the merits of plaintiff’s claim,’ that is, where, even if
5 “Because Pennsylvania adopted the collateral order doctrine from the United
States Supreme Court, we continue to look to that Court’s decisions for guidance in
defining the contours of Rule 313.” Brooks v. Ewing Cole, Inc., 259 A.3d 359, 370
(Pa. 2021).
6 See Shearer, 177 A.3d at 857 (recognizing that our collateral order doctrine has
wider application than its federal counterpart); Brooks, 259 A.3d at 370 (explaining that
“this Court has not remained in lockstep with the United States Supreme Court’s recently
imposed limitations on the collateral order doctrine in attorney-client privilege cases
grounded in the High Court’s determination that privilege claims are not irreparably lost
as they are reviewable after a final judgment”).
[J-76-2021] [MO: Dougherty, J.] - 7
‘practically intertwined with the merits, it nonetheless raises a question that is significantly
different from the questions underlying plaintiff’s claim on the merits.’” Id. (quoting
Johnson, 515 U.S. at 314). A claim is “significantly different” from the underlying issue “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); see id. (taking a “practical
approach” to questions of separability).
As a general rule, no assessment of the merits is needed if the challenged order
raises “a purely legal question.” Brooks, 259 A.3d at 372; see Mitchell v. Forsyth, 472
U.S. 511, 528 (1985) (holding that a claim of qualified immunity is separable from the
merits of the underlying claim because “[a]n appellate court reviewing the denial of the
defendant’s claim of immunity need not consider the correctness of the plaintiff’s version
of the facts, nor even determine whether the plaintiff’s allegations actually state a claim.
All it need determine is a question of law”). That said, the existence of some factual
overlap is not disqualifying. See Mitchell, 472 U.S. at 528 (holding that a party was
entitled to immediately appeal the trial court’s unfavorable resolution of legal issues,
notwithstanding that “the resolution of these legal issues will entail consideration of the
factual allegations that make up the plaintiff’s claim for relief”). The critical question is
whether “an appellate court’s frame of reference will be centered on the” legal question.
Pridgen, 905 A.2d at 433.
This case is focused squarely upon a constitutional analysis untethered to any
factual development or predicates. Each aspect of that analysis is a pure question of law
that can be resolved without resort to or consideration of the question of guilt or
innocence. The Commonwealth’s merits argument has three core components. First,
the Commonwealth claims that “Section 508(a)(1) permits the use of deadly force in
situations that violate a person’s constitutional rights by allowing law enforcement officers
[J-76-2021] [MO: Dougherty, J.] - 8
to employ it absent (1) a need to prevent death or serious bodily injury and (2)
consideration of whether such use of force is objectively reasonable.” Commonwealth’s
Br. at 23. Addressing this first aspect of the Commonwealth’s argument requires an
appellate court to interpret Section 508 (whether the statute would provide a justification
defense in the situations identified by the Commonwealth). Questions of statutory
construction present pure questions of law. Commonwealth v. Ramos, 83 A.3d 86, 90
(Pa. 2013). If the Commonwealth is correct, the second question is whether that reading
necessarily renders Section 508(a)(1) unconstitutional under Garner, another legal
question. See Commonwealth v. Bell, 211 A.3d 761, 765 (Pa. 2019) (“‘Whether § 1547(e)
of the Vehicle Code, 75 Pa.C.S. § 1547(e), is violative of . . . the Fourth Amendment to
the United States Constitution’ . . . [is] a question of law.”). An appellate court’s
assessment of those abstract questions will not turn upon, or even benefit from, case-
specific factual determinations.
The final component of the Commonwealth’s merits argument addresses the
remedy for the alleged constitutional defect. According to the Commonwealth, “[t]his
Court can correct the unconstitutional aspects of Section 508(a)(1)” by interpreting it in a
way that “would limit the use of deadly force to forcible felons fleeing with a deadly weapon
while requiring some additional indicia that they will cause death or serious bodily injury.”
Commonwealth’s Br. at 34, 37. The propriety of this proposed fix turns upon whether it
cures the alleged constitutional defect, and, more fundamentally, whether a court is
empowered to impose it, given the Commonwealth’s view that certain portions of Section
508(a)(1) are unambiguously unconstitutional.7 The adequacy and feasibility of a remedy
also are questions of law. See Commonwealth v. Batts, 66 A.3d 286, 293 (Pa. 2013)
7 Cf. Seila Law LLC v. Consumer Fin. Prot. Bureau, ___ U.S. ____, 140 S.Ct. 2183,
2207 (2020) (“Constitutional avoidance is not a license to rewrite Congress’s work to say
whatever the Constitution needs it to say in a given situation.”).
[J-76-2021] [MO: Dougherty, J.] - 9
(observing that a question as to the appropriate remedy for a violation of the Eighth
Amendment is a matter of law).
Thus, the Commonwealth’s claim is analytically distinct from the main questions in
this case—that is, whether the Commonwealth’s factual allegations are true, and whether
those facts support a conviction for third-degree murder, recklessly endangering another
person, and/or possession of an instrument of crime. Whether the Commonwealth can
prove that Pownall fired the bullet that killed Jones, or that Pownall even possessed a
firearm for that matter, has no bearing upon our ability to determine the meaning of
Section 508(a)(1), whether it is unconstitutional, and, if it is, how to remedy the
constitutional defect.
This view is consistent with our decisions in civil cases holding that pretrial orders
implicating the meaning and breadth of a statutory defense are separable from the main
cause of action. In one of our foundational separability decisions, Pridgen, we held that
a challenge concerning the availability of a defense arising under the federal General
Aviation Revitalization Act (“GARA”), 49 U.S.C. § 40101, was separable from the main
issue, which dealt with a manufacturer’s exposure in a products liability suit. GARA
contains a statute of repose that precludes tort liability for manufacturers of aircraft
components more than eighteen years after installation of the aircraft parts. The issue
raised on interlocutory appeal concerned “the scope of an original manufacturer’s ongoing
liability under GARA . . . for the alleged failure of replacement parts that [the appellant]
did not physically manufacture.” Pridgen, 905 A.2d at 432. The appellants contended
that the issue was separable from the main cause of action because the facts necessary
to determine the general scope of liability “(the age of an aircraft and the date of its first
sale) [are] separate from and collateral to the underlying controversy in aviation tort
litigation.” Id. at 429. We agreed, explaining:
[J-76-2021] [MO: Dougherty, J.] - 10
[T]he issue that Appellants seek to raise on appeal concerning the
application of the [time bar] to the original manufacturer and type certificate
holder is both conceptually and factually distinct from the merits of
Appellees’ underlying product liability causes of action. Again, to resolve
the legal claim presented, an appellate court’s frame of reference will be
centered on the terms of GARA, not on determinations of fact or the scope
of Appellants’ liability in the first instance.
Id. at 433.
More recently, in Brooks, we considered whether an order rejecting a defendant’s
invocation of the Sovereign Immunity Act, 42 Pa.C.S. §§ 8521-8527, in a negligence
action satisfies all three prongs of the collateral order doctrine. More specifically, the
issue was whether the defendant “was a ‘Commonwealth party’ subject to the Sovereign
Immunity Act’s waiver of immunity.” Brooks, 259 A.3d at 372. In finding that the issue
was separable from the main cause of action, we explained that the “issue is a purely
legal question that can be resolved by focusing on the Act and does not necessitate an
examination of the merits of [the plaintiff’s] negligence claim.” Id.
The contested orders in Pridgen and Brooks also affected the resolution of the
ultimate issue in those cases, just as the resolution of the Commonwealth’s claim here
might affect the outcome of this case. A ruling adverse to the party raising the defense
in those cases would have, “quite literally, result[ed] in an after-the-fact judicial alteration”
of the scope of that party’s potential liability. Maj. Op. at 28. Despite that possibility, we
held in each case that the claim was separable from the main cause of action. Those
rulings should bind us to the same ruling here. The Majority hardly pays lip service to
these important cases, let alone follows in their compelling footsteps. As in Pridgen and
Brooks, the questions raised by the contested order in this case—the meaning of Section
508(a)(1), its constitutionality, and the feasibility of the Commonwealth’s proposed
remedy—are “purely legal question[s] that can be resolved by focusing on” Section
508(a)(1), and do not “necessitate an examination of” Pownall’s guilt or innocence.
Brooks, 259 A.3d at 372; see Pridgen, 905 A.2d at 433 (“Again, to resolve the legal claim
[J-76-2021] [MO: Dougherty, J.] - 11
presented, an appellate court’s frame of reference will be centered on the terms of GARA,
not on determinations of fact or the scope of Appellants’ liability in the first instance.”).
The only distinction I discern between the circumstances before us and those in
Pridgen and Brooks is that those cases 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. But that distinction
matters only for purposes of the irreparable-loss prong.8 As far as separability goes, I fail
to see how the immunity defenses at issue in Pridgen and Brooks differ in any meaningful
way from the justification defense at issue here. There is no principled distinction between
the inquiry in those cases and questions concerning the meaning and constitutionality of
a statutory defense in a criminal prosecution.9
Notably, the Supreme Court of the United States has addressed the
constitutionality of a police-officer’s use of force on interlocutory appeal pursuant to the
collateral order doctrine. In Plumhoff v. Rickard, the Court considered whether police
officers’ claims of qualified immunity based upon the contention that their “conduct did not
8 See Pridgen, 905 A.2d at 433 (“[T]he substantial cost that Appellants will incur in
defending this complex litigation at a trial on the merits comprises a sufficient loss to
support allowing interlocutory appellate review as of right, in light of the clear federal policy
to contain such costs in the public interest.”); Brooks, 259 A.3d at 373 (“Because
sovereign immunity protects government entities from a lawsuit itself, we conclude that a
sovereign immunity defense is irreparably lost if appellate review of an adverse decision
on sovereign immunity is postponed until after final judgment.”).
9 In an attempt to deprive Pridgen and Brooks of their salience here, the Majority
clings to the fact that those cases addressed civil appeals involving immunity-type
defenses. Maj. Op. at 30 n.18. But, as to separability, the distinction is without a
difference. The fact that immunity defenses aim to prevent a defendant from being haled
into court matters only for purposes of irreparable loss. For purposes of separability,
there is no meaningful distinction between justification defenses in criminal cases and
immunity-type defenses in civil cases. Both types of defenses bear directly upon the
likelihood that the defendant will be held liable (whether criminally or civilly) for the alleged
conduct.
[J-76-2021] [MO: Dougherty, J.] - 12
violate the Fourth Amendment and, in any event, did not violate clearly established law”
was separable from the main cause of action in a case brought under 42 U.S.C. § 1983.
Plumhoff, 572 U.S. at 773. Holding that the challenged order was collateral, the Plumhoff
Court explained that the constitutional issues “are quite different from any purely factual
issues that the trial court might confront if the case were tried; deciding legal issues of
this sort is a core responsibility of appellate courts, and requiring appellate courts to
decide such issues is not an undue burden.” Id. at 772, 773. Once again, the Majority
does not address this case substantively, nor even acknowledge the patent similarities
between it and the instant dispute. I see no reason why our view of separability should
be any different in this case. This appeal poses the abstract question of whether a statute
is unconstitutional. Indeed, the issue we face is a question of law entirely unadulterated
by facts, more so than the one that the Plumhoff Court confronted, which asked whether
the alleged facts demonstrated that the police officer’s use of force was unconstitutional.10
Undoubtedly, the constitutional and interpretive questions raised by the
Commonwealth bear directly upon the likelihood that Pownall will be convicted of the
crimes charged; however, that is not enough to defeat separability. See Johnson, 515
10 The Majority maintains that further factual development is needed to assess the
Commonwealth’s constitutional challenge. To that end, my colleagues take note of the
Supreme Court’s holding that, “in use-of-force cases the ‘first step in assessing the
constitutionality of [an officer’s] actions is to determine the relevant facts.’” Maj. Op. at
31-32 (alterations in original) (quoting Scott v. Harris, 550 U.S. 372, 378 (2007)). By
characterizing the Commonwealth’s position as a challenge to the constitutionality of
Pownall’s conduct, the Majority assumes (incorrectly) what it seeks to prove. Of course,
it would be impossible to assess the constitutionality of Pownall’s conduct without factual
findings or allegations. But the Commonwealth’s constitutional argument has nothing to
do with what Pownall did or is alleged to have done. Rather, the constitutional challenge
turns upon the terms of Section 508(a)(1). See Commonwealth’s Br. at 24 (“Section
508(a)(1) does not meet these basic Fourth Amendment requirements, both because
(1) it permits the use of deadly force in situations where such force is not necessary to
prevent death or serious bodily injury; and (2) it does not require the factfinder to consider
the objective reasonableness of the officer's actions.”).
[J-76-2021] [MO: Dougherty, J.] - 13
U.S. at 314 (“[A]lthough sometimes practically intertwined with the merits, a claim of
immunity nonetheless raises a question that is significantly different from the questions
underlying plaintiff's claim on the merits (i.e., in the absence of qualified immunity).”). The
salient question is not whether an appellate court’s resolution of the issue will affect the
ultimate outcome of the case. Rather, it is whether the constitutional claim can be
analyzed without considering whether Pownall in fact acted as the Commonwealth
alleges. And here it clearly can be so analyzed. Accordingly, the merits of the
Commonwealth’s appeal are separable from Pownall’s potential guilt or innocence.
The remaining prongs of Rule 313’s collateral order doctrine are satisfied here as
well. The Commonwealth has demonstrated irreparable loss because this appeal is its
one and only opportunity to secure appellate review of its challenge to Section 508. If the
jury acquits Pownall, double jeopardy precludes the Commonwealth from seeking
appellate review of the challenge to Section 508(a)(1). See Gibbons, 784 A.2d at 778;
Commonwealth v. Blystone, 119 A.3d 306, 313 (Pa. 2015) (Eakin, J., concurring) (“As the
Commonwealth cannot appeal once the jury has returned its verdict, appellate review
would be foreclosed and the right would indeed be irreparably lost.”). Conversely, if the
jury convicts Pownall notwithstanding the trial court’s denial of the Commonwealth’s
challenge, then the Commonwealth would not be an aggrieved party entitled to challenge
the denial on appeal. Polo, 759 A.2d at 373 n.1. Put simply, regardless of how Pownall’s
bell tolls, on this question that bell “cannot be unrung by a later appeal.” Harris, 32 A.3d
at 249.
I also am convinced that the challenge to Section 508(a)(1) raises an important
question of great concern to the public. This appeal asks whether the General Assembly
effectively has immunized police officers to commit homicide under circumstances that
violate the Fourth Amendment. Our answer to that question reaches far beyond this case.
[J-76-2021] [MO: Dougherty, J.] - 14
It lets citizens know whether their conduct during an arrest could place their lives in
jeopardy. It also puts law enforcement officers on notice of what conduct is or is not
lawful, so that they can perform their duties without fear of criminal or civil liability.
Because the Majority leaves these important questions unanswered and potentially
unanswerable, the status quo remains decisively in favor of a deadly force justification,
one as to which serious constitutional questions have been raised.
To be sure, the collateral order doctrine does not lend itself to crystal-clear,
brightline standards. The doctrine’s inherent flexibility prevents the Majority’s approach
from appearing unreasonable. Murky standards are not, however, an invitation to
disregard first principles. The practical motivations of the final judgment rule must guide
us through the turbidity. In my view, the Majority’s decision to apply the final judgment
rule is untethered to any of the rule’s concerns.11
This is not a case where further development of the record would enrich our
assessment. The Commonwealth presents a purely legal question, the answer to which
does not require evidentiary rulings or findings of fact. For that same reason, the
Commonwealth’s challenge is not a matter within the primary domain or discretion of a
trial court. Such matters are the heart of an appellate court’s work. And the Majority’s
analysis of the separability prong is particularly inconsistent with that prong’s animating
principle, which is to limit the number of times a reviewing court must consider issues that
are nearly identical. We are asked to decide a constitutional question that will remain
unanswered if we do not assess it here and now. If we were to decide this matter, there
would be no need for this Court or the Superior Court to consider it again, here or in any
other case. The Majority’s insistence upon an overly formalistic application of the final
11 See Shearer, 177 A.3d at 855 (“Considering issues only after a final order
maintains distinctions between trial and appellate review, respects the traditional role of
the trial judge, and promotes formality, completeness, and efficiency.”).
[J-76-2021] [MO: Dougherty, J.] - 15
judgment rule leaves the important questions implicated in this case unanswered, not just
today but perhaps indefinitely.
This appeal satisfies all three prongs of the collateral order doctrine. To hold
otherwise is to elevate formalism over pragmatism. Accordingly, I would proceed to
address the merits of the Commonwealth’s claim that Section 508(a)(1), as written, is
unconstitutional under the United States Supreme Court’s decision in Tennessee v.
Garner.
II. Merits
Garner was the first occasion upon which the Supreme Court considered the
constitutional implications of the use of deadly force in effectuating an arrest. That case
began when Tennessee police officer Elton Hymon responded to a report of a burglary in
a Memphis neighborhood. As Hymon was searching the exterior of the residence where
the crime reportedly occurred, he heard a door slam shut in the back of the house. When
Hymon entered the backyard, he saw a small individual, fifteen-year-old Edward Garner,
darting across the yard and toward a chain link fence, stopping just a few feet away.
Hymon ordered him to halt, but Garner proceeded to climb the fence. At that point,
Hymon, who was “reasonably sure” that Garner was unarmed, shot Garner in the back of
the head. Garner, 471 U.S. at 3. Garner died shortly thereafter.
Tennessee’s use-of-force statute codified the then-prevailing common law rule,
which provided that police officers may shoot any fleeing felon to prevent an escape.
Thus, Hymon’s conduct was statutorily permitted. The Supreme Court addressed
whether state laws authorizing the use of deadly force against fleeing, unarmed, and non-
violent felony suspects were unconstitutional.
The Garner Court’s analysis began with the pronouncement that “apprehension by
the use of deadly force is a seizure subject to the reasonableness requirement of the
[J-76-2021] [MO: Dougherty, J.] - 16
Fourth Amendment.”12 Id. at 7. As such, the Court employed the same basic analytical
framework applicable in all Fourth Amendment cases—that is, whether the intrusiveness
of the seizure is justified by the governmental interest underlying it. Unlike other
encroachments within the domain of the Fourth Amendment, however, “[t]he
intrusiveness of a seizure by means of deadly force is unmatched.” Id. at 9. Only a
comparably unrivaled state interest could justify such an intrusion. For that reason, the
Court rejected the contention that the government’s interest in effective law enforcement
justified killing a suspect. “The use of deadly force is a self-defeating way of apprehending
a suspect and so setting the criminal justice mechanism in motion. If successful, it
guarantees that that mechanism will not be set in motion.” Id. at 10. The Court held that
statutory provisions like Tennessee’s are unconstitutional to the extent that they authorize
the use of lethal force for the sole purpose of effectuating an arrest. Id. at 11 (“The use
of deadly force to prevent the escape of all felony suspects, whatever the circumstances,
is constitutionally unreasonable.”).
But the Garner Court stopped short of declaring the statute facially
unconstitutional, because there are circumstances in which it might be reasonable to kill
a fleeing felon. The lone governmental interest of sufficient weight, the Court decided,
was the need to protect the life of another. “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.”
Id. at 11. “Where the suspect poses no immediate threat to the officer and no threat to
others, the harm resulting from failing to apprehend him does not justify the use of deadly
12 See also Torres v. Madrid, ___ U.S. ___, 141 S.Ct. 989, 1003 (2021) (holding that
officers seized fleeing suspect the instant they shot her, although she eluded capture).
[J-76-2021] [MO: Dougherty, J.] - 17
force to do so.” Id. From these general principles, the Court articulated the following
clear standard:
[I]f 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.
Id. at 11-12.
The Court laid down what seemed to be a rigid three-part standard for assessing
a police officer’s use of deadly force. That test asks whether: (1) the suspect poses an
immediate threat of death or serious physical harm to the officer or others; (2) the use of
deadly force is necessary to prevent the suspect from escaping; and (3) where feasible,
the officer has warned the suspect that he intends to use lethal force. Despite the Garner
Court’s manifest distaste for extrajudicial killings by state actors,13 and despite its effort
to establish a highly limited set of circumstances where such killings were permissible,14
13 Capital punishment is the only other context where state-sanctioned killings are
constitutional. The federal Constitution imposes much stronger ex ante restraints on the
imposition of the death penalty than it does on a police officer’s use of lethal force.
Consider that the Supreme Court has held that murder is the only crime against a person
that can warrant imposition of the death penalty. See Kennedy v. Louisiana, 554 U.S.
407, 437 (2008) (“As it relates to crimes against individuals, though, the death penalty
should not be expanded to instances where the victim’s life was not taken.”). Garner,
conversely, allows state actors to kill based upon a much wider range of crimes, so-called
dangerous felonies. Moreover, the imposition of capital punishment for murder is
constitutional only if the government has adhered to the most rigid and robust procedural
constraints, such as bifurcation of the guilt and penalty phases. Capital trials are
unparalleled in the protections that they afford to the accused before his or her life is
taken. Nonetheless, for whatever reason, the High Court has determined that a fleeing
suspect is not entitled to remotely similar safeguards when a police officer decides to kill
the suspect. Indeed, Garner and its progeny require only probable cause despite the fact
that the penalty even for relatively minor offenses such as criminal trespass, which, if
graded as a second-degree felony carries a maximum prison sentence of ten years
requires proof beyond a reasonable doubt.
14 See Garner, 471 U.S. at 14 (denouncing the notion that all fleeing felons have
“already forfeited” their lives).
[J-76-2021] [MO: Dougherty, J.] - 18
subsequent Supreme Court decisions blurred the parameters of Garner’s clear test. The
Supreme Court’s decision in Scott v. Harris, 550 U.S. 372 (2007) is the most prominent
among these cases.
In Scott, the Court rejected any suggestion that Garner established “a magical
on/off switch that triggers rigid preconditions whenever an officer's actions constitute
‘deadly force.’” 550 U.S. at 382. Instead of adhering to the clarity that the Garner factors
provided to the bench, the bar, and law enforcement, the Scott Court favored an
amorphous standard bounded only by a particular reviewing court’s subjective view as to
whether a particular police officer’s “actions were reasonable.” Id. at 383. The Court
added no real content to this “reasonableness” inquiry, aside from reiterating that, as in
any Fourth Amendment case, “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. (cleaned up). What this really means is that,
except in the clearest of cases, courts have to “slosh . . . through the factbound morass
of ‘reasonableness.’” Id.Notwithstanding the Scott Court’s weakening of Garner, the use of lethal force—
meaning force that poses a “near certainty of death,” id. at 384 (emphasis in original)—
still can produce an obvious constitutional violation. Garner’s general principle that lethal
force is justified only when the officer reasonably believes it is necessary to protect himself
or others from serious physical harm is still good law. See Brosseau v. Haugen, 543 U.S.
194, 197-98 (2004). Categorically, then, the Fourth Amendment prohibits police conduct
that poses a near certainty of killing the suspect where nothing demonstrates that the
suspect poses a real and present danger to the life or physical well-being of the officer or
others. See Jefferson v. Lias, 21 F.4th 74, 81 (3d Cir. 2021) (explaining that “[a] passing
risk to a police officer is not an ongoing license to kill an otherwise unthreatening suspect”)
[J-76-2021] [MO: Dougherty, J.] - 19
(citation omitted); cf. Scott, 550 U.S. at 386 (“A police officer’s attempt to terminate a
dangerous high-speed car chase that threatens the lives of innocent bystanders does not
violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious
injury or death.”).
Applying what remains of Garner, I agree with the Commonwealth that Section
508(a)(1) is, at least in part, constitutionally defective. The Majority interprets Section
508(a)(1) as providing
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[.]” 18 Pa.C.S. § 508(a)(1). 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.
Maj. Op. at 5-6 (alterations in original; footnote omitted; and citation modified). The
Commonwealth asserts that the second (“forcible felony justification”) and third (“deadly
weapon justification”) of those four scenarios are unconstitutional because they permit an
officer to kill a fleeing suspect without any indicia that the suspect will harm the officer or
others.15
15 The Majority offers just one reasonable interpretation. Section 508(a)(1) also could
be interpreted such that “possesses a deadly weapon” not only modifies “is attempting to
escape” but also the phrase “has committed or attempted a forcible felony.” If the
possession requirement modifies the forcible felony requirement as well, then the “forcible
felony” justification would require proof that the person to be arrested both (1) has
committed or attempted to commit a forcible felony and (2) possesses a deadly weapon.
As a result, the “deadly weapon justification” would be a bit of a misnomer and could be
[J-76-2021] [MO: Dougherty, J.] - 20
The first and fourth circumstances conform with the requirements of Garner and
its progeny. The first situation conditions the justification defense upon proof of the
officer’s reasonable belief that deadly force is necessary to prevent death or serious
bodily injury to the officer or another. The fourth situation, which provides a catch-all that
covers scenarios not involving either a forcible felony or possession of a deadly weapon,
is almost entirely redundant of the first, except that, in addition to the requirement that the
suspect will endanger human life or inflict serious bodily injury, the officer must also
believe that the force is necessary to prevent the suspect from defeating the arrest. These
two are the only situations that adequately accommodate Garner’s core principle: that
the use of lethal force is constitutional when there are at least some facts reasonably
supporting the conclusion that the person to be arrested presents a danger to the life or
limb of another. See Garner, 471 U.S. at 11 (“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.”);
cf. Plumhoff, 572 U.S. at 777 (holding that an officer acted reasonably when he fatally
shot a fleeing suspect whose conduct while in flight “pose[d] a deadly threat for others”).
Conversely, the two challenged portions of Section 508(a)(1)—the forcible felony
and deadly weapon justifications—permit an officer to kill a fleeing suspect without any
retitled the “attempted escape” justification, which requires an attempted escape and
possession of a deadly weapon.
These competing interpretations provide further reason why we should address
the merits here and now. If the Majority’s reading is incorrect, the suggested jury
instruction for Section 508, which is likely used by many courts throughout this
Commonwealth, also is incorrect. Alas, my learned colleagues side-step this important
question, refusing to provide guidance as to how or when it will be possible to address it.
For purposes of this analysis, I accept the Majority’s proffered interpretation. But
regardless of which reading is superior, both constructions are unconstitutional because
they permit the use of lethal force without any facts indicating the suspect poses an
immediate danger.
[J-76-2021] [MO: Dougherty, J.] - 21
facts demonstrating that the suspect poses an actual threat of death or grave bodily injury
to the officer of others. The deadly weapon provision deems a suspect’s flight plus the
mere possession of a deadly weapon as sufficient in and of themselves to justify lethal
force. The forcible felony justification permits an officer to use deadly force based upon
the suspicion of a past crime involving violence, regardless of whether the officer has any
reason to believe that the fleeing suspect will harm someone if not apprehended
immediately. There is no constitutional situation in which the bare fact that the fleeing
suspect possesses a weapon or may have committed a violent crime at some point in the
past justifies the use of deadly force. See Perez v. Suszczynski, 809 F.3d 1213, 1220
(11th Cir. 2016) (holding that “the mere presence of a gun or other weapon is not enough
to warrant the exercise of deadly force”); Jefferson, 21 F.4th at 81; cf. Stewart v. City of
Euclid, 970 F.3d 667, 673 (6th Cir. 2020) (holding that the totality of circumstances did
not justify police officer’s use of deadly force against motorist, even though motorist drove
into police car at beginning of encounter).
Rather, the Fourth Amendment requires some further indication that the suspect
will harm the officer or another. Cf. Abraham v. Raso, 183 F.3d 279, 295 (3d Cir. 1999)
(explaining that past dangerousness does “not necessarily justify continuing to use lethal
force”). And, if the officer possessed such additional indicia of dangerousness, he would
be availing himself of either the first or fourth situations contemplated in Section 508(a)(1),
not the forcible felony or deadly weapon justification alone. As the Commonwealth
argues, the General Assembly’s use of the disjunctive “or” to separate Section 508(a)(1)’s
four scenarios has created independent exceptions.16 Section 508(a)(1) declares
16 See Commonwealth’s Br. at 34 (“The two impermissible scenarios of the escape
justification contain nothing more than ‘rigid preconditions,’ a checkmark beside each of
which will permit an officer to take the suspect’s life, without any consideration of the
objective reasonableness of that action. For this reason, too, the statute permits the use
of deadly force in situations that violate a person’s constitutional rights.”); id. at 24
[J-76-2021] [MO: Dougherty, J.] - 22
unambiguously that the presence of a deadly weapon or the reasonable belief that the
fleeing suspect committed a forcible felony is enough per se to justify a police officer’s
use of deadly force. However, deadly force is constitutional only if the totality of the
circumstances supports a reasonable belief that the fleeing suspect poses a risk of real
harm to the officer or others. Because the deadly weapon and forcible felony justifications
permit an officer to use lethal force based upon a single fact, without consideration of
whether the force was reasonable under the totality of the circumstances, those
provisions are unconstitutional. There is no constitutional situation in which mere
possession of a deadly weapon or suspicion of a crime, without more, can permit the use
of lethal force. For that reason, I would strike those provisions.
The first and fourth circumstances listed in Section 508(a)(1) comply with the
requirements of the Fourth Amendment. They also are entirely severable from the
unconstitutional portions. The first and fourth justification defenses are not “so essentially
and inseparably connected with, and so dependent upon,” the deadly weapon and forcible
felony justifications “that it cannot be presumed the General Assembly would have
enacted the remaining valid provisions without the void one[s].” 1 Pa.C.S. § 1925. Nor
would I conclude that “the remaining valid provisions, standing alone, are incomplete and
are incapable of being executed in accordance with the legislative intent.” Id. The second
and third circumstances in Section 508(a)(1) should be severed from the constitutional
portions. See, e.g., Commonwealth v. Hopkins, 117 A.3d 247, 252 (Pa. 2015) (“[E]ven if
certain provisions of a statute are deemed to run afoul of the federal or state Constitution,
(“Section 508(a)(1) does not meet these basic Fourth Amendment requirements, both
because (1) it permits the use of deadly force in situations where such force is not
necessary to prevent death or serious bodily injury; and (2) it does not require the
factfinder to consider the objective reasonableness of the officer’s actions.”).
[J-76-2021] [MO: Dougherty, J.] - 23
portions of the statute which are not so offensive may retain their viability through judicial
severing of those sections from the sections that are unconstitutional.”).
The Commonwealth agrees that “[a] disjunctive interpretation of
Section 508(a)(1)(ii) unquestionably infringes on Fourth Amendment rights established
by the United States Supreme Court,” but it asserts that, instead of removing the two
offending justifications, we should reinterpret Section 508(a)(1) by replacing its several
uses of “or” with the conjunctive “and.” Commonwealth’s Br. at 36-37. Under that
construction, lethal force would be permitted only when the officer reasonably believes
the fleeing suspect has committed or attempted to commit a forcible felony and
possesses a deadly weapon, and otherwise indicates that he will endanger human life or
inflict serious bodily injury unless arrested without delay.
That argument asks us for something that we cannot do. We possess no magic
wand that would allow us simply to remake “or” to mean “and.” Because “or” is disjunctive,
the statute unambiguously entitles a law enforcement officer to use lethal force if he
demonstrates any of Section 508(a)(1)’s four circumstances. In certain instances, the
use of a disjunctive when describing conditions that would trigger an event does not
preclude that same event from occurring when those same conditions occur
conjunctively. But a disjunctive set of prerequisites can never mean that all those
conditions must occur in order for the event to occur.17 Consider the following sentence:
If Andy takes out the trash or does the dishes, Brenda will walk the dog. If Andy takes
out the trash, then Brenda will walk the dog. If Andy does the dishes, Brenda will walk
the dog. If Andy does the dishes and takes out the trash, then Brenda still must walk the
dog. But under no reasonable interpretation is Andy required both to do the dishes and
17 See generally ANTONIN SCALIA & BRYAN A. GARNER, READING LAW : THE
INTERPRETATION OF LEGAL TEXTS 116-25 (2012) (explaining the conjunctive/disjunctive
canon).
[J-76-2021] [MO: Dougherty, J.] - 24
to take out the trash before Brenda will walk the dog. The word “or” does not preclude
multiple listed conditions from triggering an event, but there is no reasonable construction
of “or” that requires multiple conditions. Put simply, three conditions conjoined by an “or”
are alternatives, not three prongs or elements.
Thus, Section 508(a)(1) in no conceivable way conditions its justification defense
upon the presence of a gun, suspicion of a dangerous felony, and some other indicia of
dangerousness. The General Assembly unambiguously has declared that a police officer
can kill a fleeing suspect based upon the officer’s belief that the suspect possesses a
weapon, or upon the officer’s belief that the suspect committed a forcible felony, or if the
fleeing suspect otherwise indicates he will seriously harm or take the life of someone. By
treating the final scenario—other indicia of dangerousness—as its own distinct exception,
Section 508 declares that a fleeing suspect’s possession of a weapon or past commission
of a dangerous felony are proxies for the reasonable belief that the suspect poses an
immediate threat of serious physical harm. But, as the Scott Court made clear, there is
no “magical on/off switch that triggers rigid preconditions whenever an officer’s actions
constitute ‘deadly force.’” Scott, 550 U.S. at 382. Thus, Section 508(a)(1)’s forcible felony
and deadly weapon justifications are unambiguously unconstitutional. Because we have
no license to rewrite them, they must be stricken. Seila Law LLC, 140 S. Ct. at 2207
(“Constitutional avoidance is not a license to rewrite [the legislature’s] work to say
whatever the Constitution needs it to say in a given situation.”).
The final question in this case asks whether Pownall can be denied the opportunity
to invoke the unconstitutional portions of Section 508(a)(1). Pownall asserts that a judicial
ruling that alters Section 508 or that invalidates it in part amounts to an unconstitutional
[J-76-2021] [MO: Dougherty, J.] - 25
ex post facto law.18 Despite the patent unconstitutionality of the statute, I firmly agree
that Pownall cannot be denied its benefit. To deprive Pownall of the opportunity to invoke
the deadly weapon or forcible felony justifications at his trial would be to “expand[ ] the
scope of a criminal prohibition after the act is done.” Collins v. Youngblood, 497 U.S. 37,
49 (1990); see also Beazell v. Ohio, 269 U.S. 167, 169 (1925) (a law is ex post facto if it
“deprives one charged with [a] crime of any defense available according to law at the time
when the act was committed”). This is plainly forbidden by our Constitutions. To expose
Pownall to a higher probability of criminal sanction than what he faced at the time of the
alleged acts would violate the constitutional proscriptions on ex post facto laws.
In sum, our Constitutions favor trials over summary executions, and they value the
lives of suspects who carry deadly weapons just as much as the lives of the unarmed.
By justifying the use of deadly force on suspicions of criminal conduct, regardless of
whether the suspect actually poses a threat, Section 508(a)(1) impermissibly grants
police officers the power of judge, jury, and executioner. It improperly treats possession
of a weapon as a proxy for dangerousness. Cf. Commonwealth v. Hicks, 208 A.3d 916,
947 (Pa. 2019) (characterizing the lower court’s view “that the ‘possession of a concealed
firearm by an individual in public is sufficient to create a reasonable suspicion that the
individual may be dangerous’” as patent error). I agree with the Commonwealth that
Section 508(a)(1) is unconstitutional. But the canon of constitutional avoidance is no
savior here. We should strike the offending provisions. Nonetheless, if Pownall presents
18 The United States Constitution contains two provisions addressing ex post facto
laws. The first is found in Article I, Section 9, and serves as a limitation on Congress’
authority to pass such laws: “No Bill of Attainder or ex post facto Law shall be passed.”
U.S. CONST. art. I, § 9, cl. 3. The proscription appears for the second time in Article I,
Section 10, and, in this usage, constitutes a restriction on the power of the states: “No
State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the
Obligation of Contracts, or grant any Title of Nobility.” U.S. CONST. art. I, § 10, cl. 1.
Article I, Section 17 of the Pennsylvania Constitution similarly limits the General
Assembly’s power: “No ex post facto law . . . shall be passed.” PA. CONST. art I, § 17.
[J-76-2021] [MO: Dougherty, J.] - 26
facts that warrant application of any or all of the provisions of Section 508(a)(1), he is
entitled to a jury instruction that reflects the language of Section 508(a)(1) as it existed at
the time of the alleged offense because the retroactive deprivation of a statutory
justification would itself result in a constitutional violation.
All of these issues are separable from Pownall’s guilt or innocence. We are
presented with purely legal questions that do not hinge upon the veracity or adequacy of
the Commonwealth’s factual allegations. The result of the Majority’s contrary conclusion
is that these constitutional issues of statewide significance are likely to evade our review
forever. And the Commonwealth certainly will not be able to have them answered during
any appeal that follows Pownall’s trial. Because the Majority errs in concluding that the
collateral order doctrine does not allow us to answer these important questions, I dissent.
Justice Donohue joins this dissenting opinion.
[J-76-2021] [MO: Dougherty, J.] - 27