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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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
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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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