J-S60018-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellee                :
                                         :
                   v.                    :
                                         :
JAMES E. STYLES,                         :
                                         :
                Appellant                :     No. 3474 EDA 2015


               Appeal from the PCRA Order November 13, 2015
            in the Court of Common Pleas of Philadelphia County,
            Criminal Division at No(s): CP-51-CR-0014913-2009

BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

DISSENTING MEMORANDUM BY STRASSBURGER, J.:FILED JANUARY 03, 2017

      Because counsel was ineffective by failing to ask for a jury instruction

for the defense of duress, I dissent and offer the following analysis.

      In concluding that trial counsel was not ineffective for failing to pursue

a jury instruction on this defense, the Majority holds that the PCRA court’s

analysis supports the fact that “it would not have given the duress defense

jury charge if requested by counsel because, like counsel, it could not find

any supporting case law.” Majority at 15-16.       However, my review of the

case law finds precedent for a duress defense and accompanying jury

instruction under similar circumstances in other jurisdictions, although I

recognize that this is an issue of first impression in Pennsylvania.1


1
 In Commonwealth v. Valcarel, 94 A.3d 397, 400 (Pa. Super. 2014), this
Court recognized that “the issue of duress as a defense to possessing a
*Retired Senior Judge assigned to the Superior Court.
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      In United States v. Moore, 733 F.3d 171 (6th Cir. 2013), Moore was

charged with possession of a firearm by a convicted felon, after an

altercation in a parking lot where Moore claimed that he only came into

possession of the firearm after another individual threatened to shoot him

with it.   Moore grabbed the gun, jumped into his car, and drove away.

Moore claimed that he “possessed the pistol in self-defense.   The district

court denied Moore an instruction on that affirmative defense, and the jury

found him guilty.” Id. at 173.   On appeal, the Sixth Circuit held that a

necessity defense to this possession charge is available “only in rare

situations” and contains

      five conjunctive requirements: The defendant must have (1)
      reasonably feared death or serious injury from an imminent
      threat, (2) not recklessly placed himself in the path of that
      threat, (3) had no reasonable alternative to possession, (4)
      reasonably believed that possession would avert the threat and



weapon … appears to be an issue of first impression.” In that case, the
appellant was a prisoner “charged with a violation of … possession of a
weapon or implement for escape.” Id. This Court concluded that the trial
court properly disallowed the appellant to pursue a defense of duress
because “there was no immediate threat of serious bodily injury.” Id.
(emphasis in original). This Court went on to analyze the situation the
appellant faced in that case, where he was afraid of some future attack by
“Fruit Muslims.” Id. This Court concluded that a defense of duress or self-
defense was not warranted because the appellant “was not convicted for
possessing the weapon of a disarmed attacker; he procured the weapon in
anticipation of an attack that might possibly happen at some unknown future
time.” Id. at 402. See also Commonwealth v. Berger, 612 A.2d 1037,
1041 (Pa. Super. 1992) (“Our Court has held that duress is a defense to all
criminal activity….”).




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     (5) maintained possession only as long as necessary to avoid the
     threat.

Id. at 174.   For the purposes of appeal, the parties agreed that Moore

presented sufficient evidence as to the first four elements and only

contested the fifth element because Moore did not “show that he gave up

possession as soon after the harm ended as possible.” Id.      Based on the

circumstances there, the Sixth Circuit held that Moore’s driving away with

the gun closed “the door on his necessity defense.” Id. Thus, Moore was not

entitled to relief, but a common law necessity defense was available to

Moore to defend the charge of possession of a firearm by a convicted felon.2

See, e.g., Marrero v. State, 516 So.2d 1052 (Fla. Dist. Ct. App. 3d 1987)

(holding that defense of justification available to persons not to possess


2
  We recognize that Moore utilizes the term “necessity” rather than
“duress.” However,

     [c]ourts have used the terms duress, necessity, and justification
     interchangeably. This may be due to the development of the
     defense by drawing upon common law. While the defense of
     duress covered the situation where the coercion had its source in
     the actions of other human beings, the defense of necessity, or
     choice of evils, traditionally covered the situation where physical
     forces beyond the actor’s control rendered illegal conduct the
     lesser of two evils. In modern times, [t]he traditionally separate
     defenses of necessity and duress have become increasingly
     blurred in modern decisions, to the point of merger.

United States v. Butler, 485 F.3d 569, 572 n.1 (10th Cir. 2007). See, e.g.,
United States v. Leahy, 473 F.3d 401, 406 (1st Cir. 2007) (“[E]ase in
administration favors treating [the common law defenses of duress,
necessity, and self-defense], in a federal felon-in-possession case, under a
single, unitary rubric: justification.”).



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charge where the defendant claims he grabbed the gun from his assailant

during an attack); People v. Dupree, 788 N.W.2d 399 (Mich. 2010)

(holding that common law affirmative defense of self-defense was available

as a defense for felon-in-possession statute where the defendant came into

possession of the weapon during a struggle); Harmon v. State, 849 N.E.2d

726 (Ind. Ct. App. 2006) (defense of self-defense available where the

defendant came into possession of gun during an altercation); State v.

Spaulding, 296 N.W.2d 870 (Minn. 1980); State v. Padilla, 164 P.3d 765

(Hawaii Ct. App. 2007); United States v. Panter, 688 F.2d 268 (5th Cir.

1982); Commonwealth v. Lindsey, 489 N.E.2d 666 (Mass. 1986).

      Based on the foregoing, it is evident that trial counsel, in not

recognizing that there was available law to support the testimony offered at

trial and request an accompanying jury instruction, acted unreasonably.3

Moreover, Appellant was prejudiced by counsel’s failure to request the

instruction because the outcome of the trial may have been different. 4 Had

trial counsel asked for the appropriate instruction, it would have been

reversible error for the trial court to have denied it. See Commonwealth v.

Kyslinger, 506 Pa. 132, 136 (1984) (holding that “refusal to issue to the

3
  In fact, it would be a crushing indictment on the Pennsylvania defense bar
to hold that attorneys were not required to look to other jurisdictions to find
case law in support of their positions.
4
  Notably, Appellant claimed, and there was some evidence to support, that
he came into possession of the gun only after an altercation. Moreover,
Officer Montanez immediately responded to the scene, ordered Appellant to
the ground, and recovered the gun.


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jury an instruction on the availability of the defense of duress was error. A

trial court may not refuse to charge the jury on the elements of a defense,

where the defense is supported by evidence in the record. Where there is

evidence to support a claimed defense, it is for the trier of fact to pass upon

that evidence and improper for the trial judge to exclude such consideration

by refusing the charge.”) (internal citations and quotation marks omitted)).

      Accordingly, I would reverse the order of the PCRA court and remand

for a new trial.




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