Com. v. Clarke, T.

J. A20039/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 250 MDA 2017
:
TERRENCE W. CLARKE :
Appeal from the Order Entered January 27, 2017,
in the Court of Common Pleas of Luzerne County
Criminal Division at No. CP-40-CR-0001020-2014
BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E. FILED DECEMBER 05, 2017
The Commonwealth appeals from the January 27, 2017 order entered
in the Court of Common Pleas of Luzerne County that denied its pretrial
motion in limine that requested the trial court to enter an order “directing
[appellee Terrence W. Clarke] to make a pretrial offer of proof as to his
intention to raise the Use of Force/Deadly Force in Self-Defense” and
“prohibit [appellee] from presenting at trial any evidence premised on
[‘]JUSTIFICATION[’] Use of Force/Deadly Force in Self Defense” as
premature. (Order of court, 1/27/17 (emphasis in original).) We quash.
The record reflects that appellee was charged with one count of
criminal homicide, two counts of aggravated assault, and one count of
J. A20039/17
possession of firearm prohibited.1 The Commonwealth moved, without
opposition, to sever the firearms violation from the remaining counts. The
trial court granted the motion for severance. A jury convicted appellee of
the firearms violation on October 29, 2014, and the trial court imposed
judgment of sentence on December 22, 2014. In affirming appellee’s
judgment of sentence on that conviction, a panel of this court summarized
the factual history underlying all of the charges against appellee, as follows:
At trial, [appellee] testified that he arrived at
Shaker’s Bar on February 1, 2014, between
10:30 p.m. and 11:00 p.m. When [appellee] exited
the bar with friends at 2:00 a.m., he observed an
“all-out fight” break out among a group of bar
patrons. [Appellee] maintained that he was caught
in the middle of the altercation when he noticed a
gun fall to the floor. Although [appellee]
acknowledged that he was prohibited from
possessing a firearm as a condition of his probation,
he testified that he picked up the firearm because he
“didn’t want anything to happen to me.” [Appellee]
stated that as he attempted to walk away from the
fight, he heard shots fired in his direction. Although
[appellee] admitted that he was not physically
involved in the altercation, he stated that he fired
the weapon back in the direction of the fight in order
to “protect” himself.
Pennsylvania State Troopers Nicholas Bressler and
Matthew Hunter were on patrol near the Shaker Bar
that evening when they heard shots fired. As the
Troopers pulled up to the entrance to the Shaker Bar
and exited their vehicle, Trooper Bressler observed
[appellee] emerge from the bar and turn to
discharge his firearm toward the crowd. Although
[appellee] ignored the Troopers’ repeated demands
1 18 Pa.C.S.A. §§ 2501(a), 2702(a)(1) and (a)(4), and 6105(a)(1),
respectively.
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to drop the firearm and stand down, the Troopers
apprehended [appellee] after a brief chase. The
Troopers recovered the firearm nearby on the
ground.
Commonwealth v. Clarke, 144 A.3d 191 (Pa.Super. 2016) (unpublished
memorandum) (citations to notes of testimony omitted).
The trial court set forth the following procedural history:
[Appellee] was scheduled for trial on the remaining
charges of Criminal Homicide and Aggravated
Assault on February 6, 2017 and the Commonwealth
has renewed its previously filed July 17, 2014 Motion
in Limine.[2]
At a pre-trial conference held January 23, 2017 the
Commonwealth requested the Court order that
[appellee] make a pre-trial offer of proof as to his
intention to raise the Use of Force/Deadly Force in
Self-Defense and further requested that the Court
preclude [appellee] from presenting at trial any
evidence premised on Justification--Use of Deadly
Force in Self-Defense.[Footnote 2]
[Footnote 2] 18 Pa.C.S.A. §505.
2 The record reflects that when the Commonwealth filed its motion to sever
the possessory firearms count from the remaining counts, it also filed a
motion in limine pursuant to Pa.R.Crim.P. 578 and a brief in support thereof
seeking preclusion of a self-defense jury instruction. The trial court set a
briefing schedule and then scheduled oral argument for September 4, 2014.
On September 4, 2014, the trial court entered a pre-trial order that
addressed various discovery matters. With respect to the motion in limine,
the trial court’s handwritten order states, “Court will rule @ right time.”
(Order of court, 9/4/14; docket #17.) The record further reflects that at the
close of evidence at appellee’s possessory firearms trial, appellee requested
a jury instruction on justification. (Notes of testimony, 10/27-29/14 at
184-189). Following argument, the trial court denied appellee’s request
because the evidence appellee presented at trial was “speculative or
debatable” and, therefore, “insufficient to establish the minimum standard
as required to each element of the defense.” (Id. at 189-191.)
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On January 27, 2017 the Court entered an order
denying the Commonwealth’s Motion in Limine to
direct [appellee] to make a pre-trial offer of proof
as to his intention to raise the Use of Force/Deadly
Force in Self-Defense and further denied the
Commonwealth’s Motion that the Court prohibit
[appellee] from presenting at trial any evidence
premised on Justification--Use of Force/Deadly Force
in Self-Defense. The Court further indicated that
such requests are premature prior to trial and
reserved the right to rule on these requests when
made at the appropriate time indicating that if such
requests were made by the Commonwealth at the
appropriate time the Court would take evidence on
the issues out of the presence of the jury. The
Commonwealth filed a Notice of Appeal to [the]
Superior Court on February 2, 2017.
Trial court opinion, 3/24/17 at 2 (emphasis in original).
The record reflects that in its notice of appeal, the Commonwealth
certified that the trial court’s January 27, 2017 order terminates or
substantially handicaps its prosecution pursuant to Pa.R.A.P. 311(d). The
trial court then ordered the Commonwealth to file a concise statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). The
Commonwealth timely complied. On February 22, 2017, this court ordered
the Commonwealth to show cause, within ten days from the date of the
order, as to why the appeal should not be quashed as taken from an
unappealable order. (Order of court, 2/22/17.) The Commonwealth filed a
timely response. On March 8, 2017, this court discharged the show-cause
order and referred the issue of appealability to this panel. Therefore, we
must determine whether this appeal is properly before us.
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The Commonwealth contends that Pennsylvania Rule of Appellate
Procedure 311(d) confers jurisdiction over this appeal to this court.
Rule 311(d) provides that in a criminal case, “the Commonwealth may take
an appeal as of right from an order that does not end the entire case where
the Commonwealth certifies in the notice of appeal that the order will
terminate or substantially handicap the prosecution.” Pa.R.A.P. 311(d).
Although the Commonwealth included the requisite certification in its notice
of appeal, our supreme court limits application of Rule 311(d) to
circumstances in which “a pretrial ruling results in the suppression,
preclusion or exclusion of Commonwealth evidence.” Commonwealth v.
Shearer, 882 A.2d 462, 467 (2005), quoting Commonwealth v. Cosnek,
836 A.2d 871, 877 (2003) (emphasis added). Therefore, Rule 311(d) does
not confer jurisdiction upon this court to consider an interlocutory appeal
from an order filed by the Commonwealth to preclude the introduction of
defense evidence. Id. at 457; see also Cosnek, 836 A.2d at 877.
In its response to the show-cause order, the Commonwealth
nevertheless maintains that Cosnek has no application for two reasons. The
Commonwealth first argues that Cosnek is inapplicable because “the
Commonwealth never sought to preclude any [defense] witness from
testifying.” (Commonwealth’s response to order to show cause, 3/6/17
at 1.) The Commonwealth then contends that because appellee testified at
his firearms violation trial and the trial court denied his request for a jury
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instruction on the defense of justification for want of evidence to sufficiently
support the instruction, appellee should be bound by his former justification
testimony, as well as by the trial court’s denial of his request for a
justification instruction at that trial, when appellee is tried for criminal
homicide and aggravated assault in the future. (Id. at 4.)
The Commonwealth’s arguments miss the mark. Although the
Commonwealth has not sought to preclude any particular defense witness
from testifying, it does seek to preclude the defense from offering any
witness or any other evidence to support a justification defense. Therefore,
because the Commonwealth seeks to preclude the introduction of defense
evidence (specifically, any and all defense evidence to support justification),
the Commonwealth’s appeal falls squarely within the mandates of Cosnek
and Shearer. Consequently, this court lacks jurisdiction over this appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/2017
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