J-A04011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellant

                        v.

    FRANCIS GERALD SCHULZE

                             Appellee                 No. 439 MDA 2017


                Appeal from the Order Entered February 17, 2017
              In the Court of Common Pleas of Lackawanna County
                Criminal Division at No.: CP-35-CR-0000799-2016


BEFORE: STABILE, NICHOLS, and RANSOM,* JJ.

MEMORANDUM BY STABILE, J.:                             FILED JUNE 20, 2018

        The Commonwealth appeals from the February 17, 2017 order of the

Court of Common Pleas of Lackawanna County (“trial court”), denying in part

the Commonwealth’s pretrial motions in limine. Upon review, we quash.

        Following the shooting death of Joseph Molinaro (the “Victim”) by

Appellee Francis Gerald Schulze, acting in his capacity as an off-duty police

officer, the Commonwealth charged Appellee with first-degree murder, third-

degree murder, two counts of aggravated assault, simple assault, and

recklessly endangering another person.1 On December 5, 2016, anticipating


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*   Retired Senior Judge assigned to the Superior Court.
118 Pa.C.S.A. §§ 2502(a), and (c), 2702(a)(1), and (4), 2701(a)(1), and
2705, respectively.
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Appellee’s assertion of a peace officer justification defense under 18 Pa.C.S.A.

§ 508(a),2 the Commonwealth filed motions in limine, seeking to, inter alia,

preclude Appellee from introducing into evidence (1) criminal convictions,

wrongs or acts of the Victim under Pa.R.E. 404(b), and (2) the Victim’s blood

alcohol content (“BAC”) at the time of his death. Appellee also filed motions

in limine.3 Following a hearing, on February 17, 2017, the trial court granted

in part and denied in part the Commonwealth’s motions in limine.4            The


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2   Section 508(a) of the Crimes Code provides in pertinent part:
        (1) A peace officer, or any person whom he has summoned or
        directed to assist him, 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.A. § 508(a).
3  Appellee’s motions in limine overlapped in substance with the
Commonwealth’s in limine motions insofar Appellee sought the admission of
the Victim’s prior bad acts and BAC.
4Although not at issue on this appeal, the trial court also granted in part and
denied in Appellee’s motions in limine.

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Commonwealth timely filed in this Court an interlocutory appeal as of right

under Pa.R.A.P. 311(d).    On March 10, 2017, the trial court directed the

Commonwealth to file a Pa.R.A.P. 1925(b) statement of errors complained of

on appeal. The Commonwealth complied, challenging the trial court’s denial

of its motions in limine concerning the Victim’s prior bad acts and BAC. The

trial court did not issue a Pa.R.A.P. 1925(a) opinion.

      On March 28, 2017, a motions panel of this Court issued an order

directing the Commonwealth to show cause why the instant appeal should not

be quashed, consistent with Commonwealth v. Cosnek, 836 A.2d 871 (Pa.

2003), as taken from an unappealable order. The Commonwealth answered

on April 7, 2017, asserting that the instant pretrial order was distinguishable

from the order in Cosnek and, as a result, appealable.       Alternatively, the

Commonwealth claimed that it would assert jurisdiction under Pa.R.A.P. 313,

relating to collateral orders. On April 10, 2017, the motions panel discharged

the March 28, 2017 order to show cause and referred the jurisdictional issue

to this panel.

      On appeal, the Commonwealth raises two issues for our review.

      [I.] Whether, in a homicide prosecution where the defense of “Use
      of Force in Law Enforcement” has been raised and the defense of
      “Use of Force in Self-Protection” has been precluded pre-trial, the
      defendant can introduce evidence of the victim’s prior criminal
      convictions of which he had no knowledge?

      [II.] Whether, in a homicide prosecution where the defense of
      “Use of Force in Law Enforcement” has been raised and the
      defense of “Use of Force in Self-Protection” has been precluded
      pretrial, the defendant can introduce evidence of the victim’s
      blood alcohol content of which he had no knowledge?

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The Commonwealth’s Brief at 5.

      Before we may address the merits, we must determine whether we have

jurisdiction to entertain this appeal. B.L. v. T.B., 152 A.3d 1014, 1016 (Pa.

Super. 2016) (court may raise question of subject matter jurisdiction sua

sponte). As noted, this appeal lies from the February 17, 2017 pretrial order

denying the Commonwealth’s motions in limine to preclude Appellee from

introducing into evidence (1) criminal convictions, wrongs or acts of the Victim

under Pa.R.E. 404(b), and (2) the Victim’s BAC at the time of his death.

      As we recently explained in Commonwealth v. Parker, 173 A.3d 294

(Pa. Super. 2017):

      Appellate review of any court order is a jurisdictional question
      defined by rule or statute. This principle applies to appellate
      review of a pretrial order. A court may consider the issue of
      jurisdiction sua sponte. In evaluating our jurisdiction to allow [a
      party’s] appeal, we look to other criminal cases involving appeals
      of pretrial orders. . . . In this Commonwealth, an appeal may
      only be taken from: 1) a final order or one certified by the trial
      court as final; 2) an interlocutory order as of right; 3) an
      interlocutory order by permission; or 4) a collateral order.

Id. at 296 (quotation marks and citations omitted). A final order is defined

as any order that: “(1) disposes of all claims and of all parties; [ ] (2) is

explicitly defined as a final order by statute; or (3) is entered as a final order

pursuant to [Pennsylvania Rule of Appellate Procedure 341(c)].”         Pa.R.A.P.

341(b). Instantly, the parties agree that the appeal does not lie from a final

order.   Moreover, the Commonwealth argues only the second and fourth

categories of appeal where the order on appeal implicates an interlocutory



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appeal as of right under Rule 311 or the collateral order doctrine under

Pa.R.A.P. 313.5

       We first address whether Rule 311 confers jurisdiction upon us. As an

exception to the general rule of finality, the Commonwealth may invoke this

Court’s jurisdiction under Rule 311, relating to interlocutory appeals as of

right, which provides in part:

       (d) Commonwealth appeals in criminal cases.--In a criminal
       case, under the circumstances provided by law, 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). Even though the Commonwealth has included the requisite

certification in its notice of appeal, our Supreme Court has limited the

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 (Pa. 2005) (citation

omitted) (citing Cosnek, supra) (emphasis added). As a result, 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. (citations omitted).



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5 Regarding the category of interlocutory appeals by permission under
Pa.R.A.P. 312, the trial court did not certify the instant order for immediate
appeal and the Commonwealth did not file a petition for permission to appeal
under Pa.R.A.P. 1311.

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      In Cosnek, the Commonwealth attempted to appeal immediately, under

Rule 311(d), a pretrial ruling that denied its motion in limine to exclude certain

defense evidence. On appeal, our Supreme Court explained:

      The Commonwealth’s ability to take an interlocutory appeal as of
      right from the suppression or exclusion of its own evidence is
      rooted in the particular burden which it bears to prove its case.
      The defense, in contrast, carries a particular privilege to retain
      control over its own evidence. Both interests are protected when
      we limit the application of Rule 311(d) to those “circumstances
      provided by law” in which a pretrial ruling results in the
      suppression, preclusion or exclusion of Commonwealth evidence.

Cosnek, 836 A.2d at 877. The Supreme Court further explained that Rule

311(d) permits the Commonwealth to appeal as of right only pretrial rulings

that suppress, preclude or exclude the evidence it intends to offer at trial. Id.

The Supreme Court held that the Commonwealth’s right to interlocutory

appeals “does not extend to appealing the admission of defense evidence.”

Id. at 876. The Court explained:

      Were this Court to allow the Commonwealth to appeal rulings
      admitting defense evidence as of right, the accused would be
      forced to balance his right to a trial without delay with his
      fundamental right to present evidence. The chilling effect of such
      a choice would give the Commonwealth an unwarranted and
      unfettered influence over the defense case, a practice specifically
      disapproved in Lewis v. Court of Common Pleas of Lebanon
      County, 260 A.2d 184, 188 (Pa. 1969) (holding that a prosecutor
      could not discourage a witness from talking with the defense
      attorney).

Id.   In Commonwealth v. White, 910 A.2d 648 (Pa. 2006) (plurality), an

equally divided Supreme Court revisited the Cosnek holding, albeit under

different   factual   circumstances.    The   Court   considered   “whether    an



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interlocutory appeal as of right, pursuant to [Rule] 311(d), lies from a trial

court’s denial of motion for recusal[.]” White, 910 A.2d at 651. Although the

order at issue in White did not implicate a pretrial ruling resulting in the

suppression, preclusion or exclusion of Commonwealth evidence, the Supreme

Court, in a divided plurality opinion, concluded that the Commonwealth did

have a right to an interlocutory appeal. The Court reasoned that “if the judge

is unable to preside and serve as fact-finder impartially, and an unfair verdict

is rendered, the Commonwealth, unlike a criminal defendant in a similar

circumstance, has no appellate recourse.” Id. at 655. Thus, the plurality

opinion, authored by Justice Eakin (joined by Justices Castille and Newman),

would have overruled Cosnek to the extent it limited the scope of Rule 311(d)

to pretrial evidentiary rulings. White, 910 A.2d at 655. The plurality opinion,

however, did not in any way reject or disapprove of Cosnek’s validity in

identical factual circumstances (pretrial evidentiary rulings) such as those

present in the instant case.     Accordingly, notwithstanding White, Cosnek

remains controlling authority.

      Here, the instant case is factually and procedurally indistinguishable

from Cosnek, a binding precedent. The Commonwealth challenges the trial

court’s pretrial denial of its motions in limine, which sought to preclude

Appellee from introducing the Victim’s prior bad acts and BAC at trial as part

of Appellee’s defense. Thus, consistent with Cosnek and Shearer, we lack

jurisdiction under Rule 311(d), because the Commonwealth challenges the




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trial court’s denial of its motions in limine seeking to preclude Appellee from

introducing the Victim’s prior bad acts and BAC.

      The Commonwealth, in the alternative, argues that the trial court’s

pretrial order is a collateral order appealable under Pa.R.A.P. 313, which, like

Rule 311(d), provides an exception to the general rule that an appeal may be

taken only from final orders. Rule 313 provides:

      (a) General rule. An appeal may be taken as of right from a
      collateral order of an administrative agency or lower court.

      (b) Definition. A collateral order is an order separable from and
      collateral to the main cause of action where the right involved is
      too important to be denied review and the question presented is
      such that if review is postponed until final judgment in the case,
      the claim will be irreparably lost.

Pa.R.A.P. 313. An order is collateral if (1) it 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 question, which is such that if review is

postponed until final judgment in the case, the claim will be irreparably lost.

Shearer, 882 A.2d at 468. Rule 313 is jurisdictional in nature. See Parker,

173 A.3d at 297.     As a result, if a non-final order satisfies each of the

requirements articulated in Rule 313, it is immediately appealable. Id. We

construe, however, the collateral order doctrine narrowly to avoid piecemeal

determinations and protracted litigation. Id. (citations and quotation marks

omitted). Before an order can be considered collateral, each prong of the

collateral order doctrine must be clearly present. Id. (citations omitted).




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       Instantly, given the nature of the evidence that Appellee seeks to

introduce, i.e., the Victim’s criminal convictions or prior bad acts and BAC at

the time of his death, it is clear that the Commonwealth is unable to meet the

first prong of the collateral order doctrine. The evidence of the Victim’s prior

bad acts and BAC goes to the merits of the case and is inextricably related to

Appellee’s Section 508(a)(1) defense that he reasonably believed he needed

to act with deadly force to avoid death or serious bodily injury. Accordingly,

the pretrial order here is not separable or collateral to the main cause of

action.6 We therefore conclude that the instant pretrial order is not collateral

to the main cause of action.

       In sum, because the Commonwealth’s appeal from the pretrial order is

neither an interlocutory appeal as of right nor an appeal subject to the

collateral order doctrine, we lack jurisdiction to entertain it. As a result, we

quash the instant appeal and decline to address the merits of the

Commonwealth’s appeal.

       Appeal quashed. Jurisdiction relinquished.




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6 We need not address the second or third prongs of the collateral order
doctrine based upon our disposition of the first prong. See Spanier v. Freeh,
95 A.3d 342, 345 (Pa. Super. 2014) (“Absent the satisfaction of all three
prongs of the collateral order test, this Court has no jurisdiction to consider
an appeal of an otherwise non-final order.”).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/20/2018




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