Com. v. Lowery, M.

J-A11044-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL L. LOWERY :
:
Appellant : No. 308 WDA 2020
Appeal from the Judgment of Sentence Entered January 29, 2020
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0015203-2018
BEFORE: McLAUGHLIN, J., KING, J., and McCAFFERY, J.
CONCURRING MEMORANDUM BY McLAUGHLIN, J.:
FILED: August 5, 2021
I respectfully concur. I write separately only to set forth my reasons for
rejecting Appellant’s justification argument.
In Commonwealth v. Capitolo, 498 A.2d 806, 809 (Pa. 1985), the
Pennsylvania Supreme Court held that in order to invoke the defense of
justification under the general justification statute,1 the defendant “must first
offer evidence” of the elements of such a defense:
(1) the actor was faced with a clear and imminent harm, not one that
is debatable or speculative;
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1 See 18 Pa.C.S.A. § 503. Appellant makes no argument about, and I offer no
opinion on, 18 Pa.C.S.A. § 510, which relates to “[c]onduct involving the
appropriation, seizure or destruction of, damage to, intrusion on or
interference with property. . . .”
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(2) the actor could reasonably expect that the actor’s actions would be
effective in avoiding this greater harm;
(3) there is no legal alternative that would have been effective in
abating the harm; and
(4) the General Assembly has not acted to preclude the defense by a
clear and deliberate choice regarding the values at issue.
The Capitolo Court concluded that the defendants there – protestors
conducting a sit-in at a nuclear power plant – had failed to carry the initial
burden of production because, as a matter of law, the harm they claimed was
insufficiently imminent.
The trial court was correct in ruling that, as a matter of law,
justification was not an available defense to Appellees. . . . To be
imminent, the danger must be, or must reasonably appear to be,
threatening to occur immediately, near at hand, and impending.
. . . [I]t is abundantly clear that Appellees could not establish that
their criminal conduct was necessary to avoid harm or evil to
themselves or others.
Id. Having resolved the appeal at this initial step, the Court did not say
whether the prosecution or the defense bore the burden of persuasion.
We offered an answer to that question in Commonwealth v. Manera,
827 A.2d 482, 485 (Pa.Super. 2003). In that case, we were considering if a
defendant in a prosecution for operating a vehicle while under suspension for
a DUI-related offense could claim justification. Id. at 484. In determining that
the defendant could assert the defense, we suggested that once the defendant
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has carried the initial burden of production, the prosecution must then
disprove the defense:
Of course, the fact that a defense is theoretically available for a
given crime does not mean that the Commonwealth must
disprove justification in every case. Because justification is an
affirmative defense, the defendant has the burden of asserting an
appropriate offer of proof in order to be entitled to a jury
instruction on justification.
Id. at 485 n.7 (emphasis added).
However, because we were not tasked with identifying the party bearing
the ultimate burden of persuasion, our statement was dicta. In subsequent
cases, we have confusingly stated – apparently again in dicta – that the
defendant bears the “burden of proof.” See, e.g., Commonwealth v.
Clouser, 998 A.2d 656, 659 (Pa.Super. 2010) (holding evidence was
insufficient to warrant a justification instruction).2 I respectfully do not believe
Commonwealth v. Chine, 40 A.3d 1239, 1243 (Pa.Super. 2012), decides
this issue because it involved a different statute and a different defense. The
defendant there raised 18 Pa.C.S. § 505, which relates to the use of force in
self-protection, which is not in issue here.
Fortunately, I do not believe we need to resolve this question to dispose
of this appeal. I agree that the evidence in this case was insufficient to prove
that Lowery lacked “less drastic and non-criminal means to alleviate his
____________________________________________
2 See also Commonwealth v. McMillan, No. 3178 EDA 2019, 256 A.3d
1056, unpublished memorandum at *5 (Pa.Super. filed Dec. 9, 2020) (stating
that because “justification is an affirmative defense, the defendant has the
burden of proof.”).
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circumstances.” Majority Op. at 7 (quoting Trial Ct. Op. at 7). In other words,
he did not “first offer evidence” sufficient to establish the elements of
justification, and his justification claim fails. Capitolo, 498 A.2d at 809.
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