Commonwealth, Aplt. v. Pownall, R.

[J-76-2021] [MO: Dougherty, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 17 EAP 2021

:

Appellant : Appeal from the Judgment of

: Superior Court entered on 9/4/2020

: at No. 148 EDA 2020 Quashing the

v. : appeal from the order entered on

: 12/30/2019 in the Court of Common

: Pleas, Philadelphia County, Criminal

RYAN POWNALL, : Division at No. CP-51-CR-0007307-

: 2018.

Appellee :

: ARGUED: December 7, 2021

DISSENTING OPINION

JUSTICE WECHT DECIDED: July 20, 2022

The Commonwealth charged ex-Philadelphia Police Officer Ryan Pownall with

criminal homicide, possession of an instrument of a crime, and recklessly endangering

another person in connection with the fatal shooting of David Jones. Anticipating that

Pownall would invoke the peace-officer justification defense at trial, the Commonwealth

filed a pretrial motion in limine seeking to prevent the trial court from issuing to the jury

the suggested standard jury instruction for that defense. That suggested instruction

mirrors the following statutory language:

A peace officer . . . 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. § 508(a)(1).

The Commonwealth argued that Section 508(a)(1)’s justification defense “is

unconstitutional under the Fourth Amendment to the United States Constitution, as

interpreted by the United States Supreme Court” in Tennessee v. Garner, 471 U.S. 1

(1985). Commonwealth’s Mot. in Limine, 11/25/2019, at 3. The Commonwealth’s

alternative instruction proposed to condition a police officer’s use of lethal force upon a

showing that the force was reasonably necessary to prevent an imminent threat of death

or serious bodily harm to either the officer or another person. The trial court declined the

Commonwealth’s invitation, ruling that “[t]he Commonwealth’s Motion in Limine, on its

own, is insufficient to establish the unconstitutionality of Section 508, and its suggested

remedies are inappropriate.” Tr. Ct. Op., 12/30/2019, at 3.

After the trial court denied the motion in limine, and before the commencement of

Pownall’s trial, the Commonwealth appealed, claiming that it was entitled to do so

pursuant to, inter alia, the collateral order doctrine, as embodied in Pa.R.A.P. 313. Under

Rule 313(b), an order is collateral and may be appealed before final judgment if it (1) 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 claim that “will be irreparably lost” if

appellate “review is postponed until final judgment.”

The Superior Court quashed the appeal by a per curiam judgment order,

concluding that the propriety of Pownall’s justification defense failed the separability

requirement of Rule 313(b). The Commonwealth now asks this Court to reverse the

Superior Court, again asserting that it has met all three requirements of the collateral

order doctrine and is entitled to an immediate appeal.

[J-76-2021] [MO: Dougherty, J.] - 2

Like the court below, today’s Majority concludes that the contested order is not a

collateral one, deciding that the issue raised therein is not separable from the main cause

of action. The Majority arrives at that determination by noting that separability exists

where the issue to be raised in the interlocutory appeal is entirely distinct from the central

issue underlying the case, which, in a criminal prosecution, “is whether the defendant

‘committed the crimes charged.’” Maj. Op. at 28 (quoting Commonwealth v. Shearer, 882

A.2d 462, 469 (Pa. 2005)). The crux of the Majority’s separability analysis is its belief that

the Commonwealth’s constitutional challenge and Pownall’s guilt or innocence are

hopelessly entangled. If the challenge is successful, the Majority asserts, it “would

essentially criminalize conduct the General Assembly has deemed non-criminal.” Id.

Taken to its logical end, the Majority’s reasoning removes from the collateral order

doctrine’s reach any Commonwealth appeal wherein it questions either the meaning of or

the constitutional validity of a statutory defense. This leads to the core infirmity in the

Majority’s rationale.

As a result of the Majority’s overly narrow assessment, the Commonwealth will

never be able to secure appellate review of a trial court’s denial of a challenge implicating

a statutory defense. If a defendant is acquitted, double jeopardy principles bar the

Commonwealth from seeking review of the challenged defense.1 On the other hand, if a

defendant is convicted despite the denial of a Commonwealth objection to a statutory

defense, the Commonwealth would not be an aggrieved party entitled to challenge the

denial on appeal.2 As far as I can tell, the only circumstance in which an appellate court

1 See Commonwealth v. Gibbons, 784 A.2d 776, 778 (Pa. 2001) (explaining that

double jeopardy bars a Commonwealth appeal from a judgment of acquittal).

2 Under Pa.R.A.P. 501, “[o]nly an aggrieved party can appeal from an order entered

by a lower court.” Commonwealth v. Polo, 759 A.2d 372, 373 n. 1 (Pa. 2000).

[J-76-2021] [MO: Dougherty, J.] - 3

ever could assess a Commonwealth challenge to the meaning or the constitutional validity

of a statutory defense would occur if a trial court certifies the order denying relief for

immediate pretrial appeal.3 Surely our appellate rules do not aim to turn trial judges into

the sole and final arbiters of vital matters of statewide import, such as the merits question

presented here. Yet that is the precise result of today’s decision.

What’s more, our caselaw on the collateral order doctrine does not mandate the

Majority’s conclusion. The Court today makes light of the settled principle that an issue

is separable from the main cause of action when it is analytically distinct from the central

question at trial. We are presented here with a purely legal question that may affect, but

cannot be affected by, the answer to the ultimate issue in this case. For that reason, the

Supreme Court of the United States has held that constitutional issues nearly identical to

the merits question in today’s case are reviewable before final judgment under the

collateral order doctrine.4 I would join the Supreme Court’s approach in that regard, and

I conclude that the collateral order doctrine entitles the Commonwealth to an interlocutory

appeal. Because the Majority holds otherwise, I respectfully dissent. I would instead

proceed to address the merits of the Commonwealth’s claim that Section 508(a)(1) runs

afoul of the Fourth Amendment.

A full account of my reasoning follows.

I. The Commonwealth is entitled to an appeal under Pa.R.A.P. 313.

“Generally speaking, an appellate court’s jurisdiction extends only to review of final

orders,” Shearer v. Hafer, 177 A.3d 850, 855 (Pa. 2018). Final orders are those which

3 See Pa.R.A.P. 312 (“An appeal from an interlocutory order may be taken by

permission pursuant to Chapter 13 (interlocutory appeals by permission).”); see also

Pa.R.A.P. 1311(a) (providing that “[a]n appeal may be taken by permission from an

interlocutory order” that meets one of three conditions).

4 See the discussion of Plumhoff v. Rickard, 572 U.S. 765 (2014), infra.

[J-76-2021] [MO: Dougherty, J.] - 4

“(1) dispose of all claims and all parties, (2) are explicitly defined as final orders by statute,

or (3) are certified as final orders by the trial court or other reviewing body.” Id. at 856

(citing Pa.R.A.P. 341). This “final judgment rule” is a principle that aims “to combine in

one review all stages of the proceeding that effectively may be reviewed and corrected if

and when final judgment results.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,

546 (1949). Delaying appellate adjudication until final judgment “maintains distinctions

between trial and appellate review, respects the traditional role of the trial judge, and

promotes formality, completeness, and efficiency.” Shearer, 177 A.3d at 855. Thus, the

rule bars review where an interlocutory appeal would make “unwise use of appellate

courts’ time, by forcing them to decide in the context of a less developed record, an issue

very similar to one they may well decide anyway later, on a record that will permit a better

decision.” Johnson v. Jones, 515 U.S. 304, 317 (1995).

As an exception to the final judgment rule, the purpose of the collateral order

doctrine is to allow an interlocutory appeal in those cases where rigid application of the

general rule would prove to be an exercise in empty formalism. See Bell v. Beneficial

Consumer Discount Co., 348 A.2d 734, 736 (Pa. 1975) (defining collateral orders as

orders that “possess sufficiently practical aspects of finality to make them appealable”).

The exception sets forth a three-pronged test to decide whether an order, while not

bringing a technical end of litigation, so closely partakes of the nature of a final order that

immediate appellate review is warranted.

One way that the collateral order doctrine does this is by requiring that the order in

question jeopardize rights that “will be irreparably lost” absent immediate review.

Pa.R.A.P. 313(b); see Cohen, 337 U.S. at 546. In other words, “the bell has been rung,

and cannot be unrung by a later appeal.” Commonwealth v. Harris, 32 A.3d 243, 249

(Pa. 2011). This irreparable-loss requirement ensures that interlocutory review occurs

[J-76-2021] [MO: Dougherty, J.] - 5

only in cases of necessity, thereby reflecting a central tenet of the final order rule: Trial

proceedings should not be delayed unnecessarily, and appellate courts should not review

matters that, “had the trial simply proceeded, would have turned out to be unnecessary.”

Johnson, 515 U.S. at 309.

The irreparable-loss prong goes a long way in promoting the goals of the final

judgment rule, but it does not do all the work. The separability and importance prongs

also ensure harmony with the spirit of the final judgment rule. “The requirement that the

matter be separate from the merits of the action itself means that review now is less likely

to force the appellate court to consider approximately the same (or a very similar) matter

more than once.” Id. at 311 (emphasis in original). Separability also confirms that there

is no need for additional information of “record that will permit a better decision.” Id.

at 317. The final requirement, the importance prong, tasks an appellate court with

assessing whether “the interests implicated in any given case” outweigh “the costs of

piecemeal litigation.” Geniviva v. Frisk, 725 A.2d 1209, 1213 (Pa. 1999). A trial court’s

order is weighty enough to warrant interlocutory review where it involves “rights deeply

rooted in public policy going beyond the particular litigation at hand.” Id. at 1214.

This Court has made clear that all three prongs of the collateral order doctrine must

be satisfied; otherwise, the final order rule mandates quashal. Shearer, 177 A.3d at 858.

Here, the Majority finds that the contested order does not raise an issue capable of

separation from the main cause of action, and on that basis quashes the

Commonwealth’s appeal. My colleagues note that, because this is a criminal case, the

main cause of action is “Pownall’s potential guilt or innocence of the crimes charged.”

Maj. Op. at 28. They observe that the Commonwealth’s challenge, if successful, would

limit the defenses available to Pownall and broaden his exposure to criminal liability.

From that observation, the Majority concludes that “it is impossible to separate” the

[J-76-2021] [MO: Dougherty, J.] - 6

Commonwealth’s constitutional claim from the question of Pownall’s culpability. Id. The

Majority anchors that assessment in its sweeping and generalized pronouncement that

separability exists only if the challenged order is “entirely distinct from Pownall’s potential

guilt or innocence of the crimes charged.” Id. at 30.

The Majority’s analysis turns upon an oversimplification of our caselaw defining

separability. That prong is not nearly as unforgiving as the Majority’s condensed account

would lead one to believe. Our separability principles aim to prevent an appellate court

from needlessly addressing identical issues more than once in a given case. In other

words, the separability requirement ensures that an appellate court need not decide an

interstitial question unnecessarily and futilely, nor an issue that requires further

development in the trial court. See Johnson, 515 U.S. at 309, 317. Thus, the crux of the

separability inquiry is whether the challenged order raises an issue that is “conceptually

and factually distinct from the merits.” Pridgen v. Parker Hannifin Corp., 905 A.2d 422,

433 (Pa. 2006). The Majority briefly mentions conceptual distinctness but fails to apply

that concept in a manner consistent with our precedent on the subject.

Like the Supreme Court of the United States,5 which at times has taken a narrower

view of the collateral order doctrine than has this Court,6 we have recognized that “a claim

is sufficiently separate from the underlying issues for purposes of collateral order review

if it ‘is conceptually distinct from the merits of plaintiff’s claim,’ that is, where, even if

5 “Because Pennsylvania adopted the collateral order doctrine from the United

States Supreme Court, we continue to look to that Court’s decisions for guidance in

defining the contours of Rule 313.” Brooks v. Ewing Cole, Inc., 259 A.3d 359, 370

(Pa. 2021).

6 See Shearer, 177 A.3d at 857 (recognizing that our collateral order doctrine has

wider application than its federal counterpart); Brooks, 259 A.3d at 370 (explaining that

“this Court has not remained in lockstep with the United States Supreme Court’s recently

imposed limitations on the collateral order doctrine in attorney-client privilege cases

grounded in the High Court’s determination that privilege claims are not irreparably lost

as they are reviewable after a final judgment”).

[J-76-2021] [MO: Dougherty, J.] - 7

‘practically intertwined with the merits, it nonetheless raises a question that is significantly

different from the questions underlying plaintiff’s claim on the merits.’” Id. (quoting

Johnson, 515 U.S. at 314). A claim is “significantly different” from the underlying issue “if

it can be resolved without an analysis of the merits of the underlying dispute.”

Commonwealth v. Williams, 86 A.3d 771, 781 (Pa. 2014); see id. (taking a “practical

approach” to questions of separability).

As a general rule, no assessment of the merits is needed if the challenged order

raises “a purely legal question.” Brooks, 259 A.3d at 372; see Mitchell v. Forsyth, 472

U.S. 511, 528 (1985) (holding that a claim of qualified immunity is separable from the

merits of the underlying claim because “[a]n appellate court reviewing the denial of the

defendant’s claim of immunity need not consider the correctness of the plaintiff’s version

of the facts, nor even determine whether the plaintiff’s allegations actually state a claim.

All it need determine is a question of law”). That said, the existence of some factual

overlap is not disqualifying. See Mitchell, 472 U.S. at 528 (holding that a party was

entitled to immediately appeal the trial court’s unfavorable resolution of legal issues,

notwithstanding that “the resolution of these legal issues will entail consideration of the

factual allegations that make up the plaintiff’s claim for relief”). The critical question is

whether “an appellate court’s frame of reference will be centered on the” legal question.

Pridgen, 905 A.2d at 433.

This case is focused squarely upon a constitutional analysis untethered to any

factual development or predicates. Each aspect of that analysis is a pure question of law

that can be resolved without resort to or consideration of the question of guilt or

innocence. The Commonwealth’s merits argument has three core components. First,

the Commonwealth claims that “Section 508(a)(1) permits the use of deadly force in

situations that violate a person’s constitutional rights by allowing law enforcement officers

[J-76-2021] [MO: Dougherty, J.] - 8

to employ it absent (1) a need to prevent death or serious bodily injury and (2)

consideration of whether such use of force is objectively reasonable.” Commonwealth’s

Br. at 23. Addressing this first aspect of the Commonwealth’s argument requires an

appellate court to interpret Section 508 (whether the statute would provide a justification

defense in the situations identified by the Commonwealth). Questions of statutory

construction present pure questions of law. Commonwealth v. Ramos, 83 A.3d 86, 90

(Pa. 2013). If the Commonwealth is correct, the second question is whether that reading

necessarily renders Section 508(a)(1) unconstitutional under Garner, another legal

question. See Commonwealth v. Bell, 211 A.3d 761, 765 (Pa. 2019) (“‘Whether § 1547(e)

of the Vehicle Code, 75 Pa.C.S. § 1547(e), is violative of . . . the Fourth Amendment to

the United States Constitution’ . . . [is] a question of law.”). An appellate court’s

assessment of those abstract questions will not turn upon, or even benefit from, case-

specific factual determinations.

The final component of the Commonwealth’s merits argument addresses the

remedy for the alleged constitutional defect. According to the Commonwealth, “[t]his

Court can correct the unconstitutional aspects of Section 508(a)(1)” by interpreting it in a

way that “would limit the use of deadly force to forcible felons fleeing with a deadly weapon

while requiring some additional indicia that they will cause death or serious bodily injury.”

Commonwealth’s Br. at 34, 37. The propriety of this proposed fix turns upon whether it

cures the alleged constitutional defect, and, more fundamentally, whether a court is

empowered to impose it, given the Commonwealth’s view that certain portions of Section

508(a)(1) are unambiguously unconstitutional.7 The adequacy and feasibility of a remedy

also are questions of law. See Commonwealth v. Batts, 66 A.3d 286, 293 (Pa. 2013)

7 Cf. Seila Law LLC v. Consumer Fin. Prot. Bureau, ___ U.S. ____, 140 S.Ct. 2183,

2207 (2020) (“Constitutional avoidance is not a license to rewrite Congress’s work to say

whatever the Constitution needs it to say in a given situation.”).

[J-76-2021] [MO: Dougherty, J.] - 9

(observing that a question as to the appropriate remedy for a violation of the Eighth

Amendment is a matter of law).

Thus, the Commonwealth’s claim is analytically distinct from the main questions in

this case—that is, whether the Commonwealth’s factual allegations are true, and whether

those facts support a conviction for third-degree murder, recklessly endangering another

person, and/or possession of an instrument of crime. Whether the Commonwealth can

prove that Pownall fired the bullet that killed Jones, or that Pownall even possessed a

firearm for that matter, has no bearing upon our ability to determine the meaning of

Section 508(a)(1), whether it is unconstitutional, and, if it is, how to remedy the

constitutional defect.

This view is consistent with our decisions in civil cases holding that pretrial orders

implicating the meaning and breadth of a statutory defense are separable from the main

cause of action. In one of our foundational separability decisions, Pridgen, we held that

a challenge concerning the availability of a defense arising under the federal General

Aviation Revitalization Act (“GARA”), 49 U.S.C. § 40101, was separable from the main

issue, which dealt with a manufacturer’s exposure in a products liability suit. GARA

contains a statute of repose that precludes tort liability for manufacturers of aircraft

components more than eighteen years after installation of the aircraft parts. The issue

raised on interlocutory appeal concerned “the scope of an original manufacturer’s ongoing

liability under GARA . . . for the alleged failure of replacement parts that [the appellant]

did not physically manufacture.” Pridgen, 905 A.2d at 432. The appellants contended

that the issue was separable from the main cause of action because the facts necessary

to determine the general scope of liability “(the age of an aircraft and the date of its first

sale) [are] separate from and collateral to the underlying controversy in aviation tort

litigation.” Id. at 429. We agreed, explaining:

[J-76-2021] [MO: Dougherty, J.] - 10

[T]he issue that Appellants seek to raise on appeal concerning the

application of the [time bar] to the original manufacturer and type certificate

holder is both conceptually and factually distinct from the merits of

Appellees’ underlying product liability causes of action. Again, to resolve

the legal claim presented, an appellate court’s frame of reference will be

centered on the terms of GARA, not on determinations of fact or the scope

of Appellants’ liability in the first instance.

Id. at 433.

More recently, in Brooks, we considered whether an order rejecting a defendant’s

invocation of the Sovereign Immunity Act, 42 Pa.C.S. §§ 8521-8527, in a negligence

action satisfies all three prongs of the collateral order doctrine. More specifically, the

issue was whether the defendant “was a ‘Commonwealth party’ subject to the Sovereign

Immunity Act’s waiver of immunity.” Brooks, 259 A.3d at 372. In finding that the issue

was separable from the main cause of action, we explained that the “issue is a purely

legal question that can be resolved by focusing on the Act and does not necessitate an

examination of the merits of [the plaintiff’s] negligence claim.” Id.

The contested orders in Pridgen and Brooks also affected the resolution of the

ultimate issue in those cases, just as the resolution of the Commonwealth’s claim here

might affect the outcome of this case. A ruling adverse to the party raising the defense

in those cases would have, “quite literally, result[ed] in an after-the-fact judicial alteration”

of the scope of that party’s potential liability. Maj. Op. at 28. Despite that possibility, we

held in each case that the claim was separable from the main cause of action. Those

rulings should bind us to the same ruling here. The Majority hardly pays lip service to

these important cases, let alone follows in their compelling footsteps. As in Pridgen and

Brooks, the questions raised by the contested order in this case—the meaning of Section

508(a)(1), its constitutionality, and the feasibility of the Commonwealth’s proposed

remedy—are “purely legal question[s] that can be resolved by focusing on” Section

508(a)(1), and do not “necessitate an examination of” Pownall’s guilt or innocence.

Brooks, 259 A.3d at 372; see Pridgen, 905 A.2d at 433 (“Again, to resolve the legal claim

[J-76-2021] [MO: Dougherty, J.] - 11

presented, an appellate court’s frame of reference will be centered on the terms of GARA,

not on determinations of fact or the scope of Appellants’ liability in the first instance.”).

The only distinction I discern between the circumstances before us and those in

Pridgen and Brooks is that those cases involved immunity-type defenses, which, unlike

justification defenses, aim to exempt the individuals entitled to immunity from the burden

of being haled into court and defending themselves in the first place. But that distinction

matters only for purposes of the irreparable-loss prong.8 As far as separability goes, I fail

to see how the immunity defenses at issue in Pridgen and Brooks differ in any meaningful

way from the justification defense at issue here. There is no principled distinction between

the inquiry in those cases and questions concerning the meaning and constitutionality of

a statutory defense in a criminal prosecution.9

Notably, the Supreme Court of the United States has addressed the

constitutionality of a police-officer’s use of force on interlocutory appeal pursuant to the

collateral order doctrine. In Plumhoff v. Rickard, the Court considered whether police

officers’ claims of qualified immunity based upon the contention that their “conduct did not

8 See Pridgen, 905 A.2d at 433 (“[T]he substantial cost that Appellants will incur in

defending this complex litigation at a trial on the merits comprises a sufficient loss to

support allowing interlocutory appellate review as of right, in light of the clear federal policy

to contain such costs in the public interest.”); Brooks, 259 A.3d at 373 (“Because

sovereign immunity protects government entities from a lawsuit itself, we conclude that a

sovereign immunity defense is irreparably lost if appellate review of an adverse decision

on sovereign immunity is postponed until after final judgment.”).

9 In an attempt to deprive Pridgen and Brooks of their salience here, the Majority

clings to the fact that those cases addressed civil appeals involving immunity-type

defenses. Maj. Op. at 30 n.18. But, as to separability, the distinction is without a

difference. The fact that immunity defenses aim to prevent a defendant from being haled

into court matters only for purposes of irreparable loss. For purposes of separability,

there is no meaningful distinction between justification defenses in criminal cases and

immunity-type defenses in civil cases. Both types of defenses bear directly upon the

likelihood that the defendant will be held liable (whether criminally or civilly) for the alleged

conduct.

[J-76-2021] [MO: Dougherty, J.] - 12

violate the Fourth Amendment and, in any event, did not violate clearly established law”

was separable from the main cause of action in a case brought under 42 U.S.C. § 1983.

Plumhoff, 572 U.S. at 773. Holding that the challenged order was collateral, the Plumhoff

Court explained that the constitutional issues “are quite different from any purely factual

issues that the trial court might confront if the case were tried; deciding legal issues of

this sort is a core responsibility of appellate courts, and requiring appellate courts to

decide such issues is not an undue burden.” Id. at 772, 773. Once again, the Majority

does not address this case substantively, nor even acknowledge the patent similarities

between it and the instant dispute. I see no reason why our view of separability should

be any different in this case. This appeal poses the abstract question of whether a statute

is unconstitutional. Indeed, the issue we face is a question of law entirely unadulterated

by facts, more so than the one that the Plumhoff Court confronted, which asked whether

the alleged facts demonstrated that the police officer’s use of force was unconstitutional.10

Undoubtedly, the constitutional and interpretive questions raised by the

Commonwealth bear directly upon the likelihood that Pownall will be convicted of the

crimes charged; however, that is not enough to defeat separability. See Johnson, 515

10 The Majority maintains that further factual development is needed to assess the

Commonwealth’s constitutional challenge. To that end, my colleagues take note of the

Supreme Court’s holding that, “in use-of-force cases the ‘first step in assessing the

constitutionality of [an officer’s] actions is to determine the relevant facts.’” Maj. Op. at

31-32 (alterations in original) (quoting Scott v. Harris, 550 U.S. 372, 378 (2007)). By

characterizing the Commonwealth’s position as a challenge to the constitutionality of

Pownall’s conduct, the Majority assumes (incorrectly) what it seeks to prove. Of course,

it would be impossible to assess the constitutionality of Pownall’s conduct without factual

findings or allegations. But the Commonwealth’s constitutional argument has nothing to

do with what Pownall did or is alleged to have done. Rather, the constitutional challenge

turns upon the terms of Section 508(a)(1). See Commonwealth’s Br. at 24 (“Section

508(a)(1) does not meet these basic Fourth Amendment requirements, both because

(1) it permits the use of deadly force in situations where such force is not necessary to

prevent death or serious bodily injury; and (2) it does not require the factfinder to consider

the objective reasonableness of the officer's actions.”).

[J-76-2021] [MO: Dougherty, J.] - 13

U.S. at 314 (“[A]lthough sometimes practically intertwined with the merits, a claim of

immunity nonetheless raises a question that is significantly different from the questions

underlying plaintiff's claim on the merits (i.e., in the absence of qualified immunity).”). The

salient question is not whether an appellate court’s resolution of the issue will affect the

ultimate outcome of the case. Rather, it is whether the constitutional claim can be

analyzed without considering whether Pownall in fact acted as the Commonwealth

alleges. And here it clearly can be so analyzed. Accordingly, the merits of the

Commonwealth’s appeal are separable from Pownall’s potential guilt or innocence.

The remaining prongs of Rule 313’s collateral order doctrine are satisfied here as

well. The Commonwealth has demonstrated irreparable loss because this appeal is its

one and only opportunity to secure appellate review of its challenge to Section 508. If the

jury acquits Pownall, double jeopardy precludes the Commonwealth from seeking

appellate review of the challenge to Section 508(a)(1). See Gibbons, 784 A.2d at 778;

Commonwealth v. Blystone, 119 A.3d 306, 313 (Pa. 2015) (Eakin, J., concurring) (“As the

Commonwealth cannot appeal once the jury has returned its verdict, appellate review

would be foreclosed and the right would indeed be irreparably lost.”). Conversely, if the

jury convicts Pownall notwithstanding the trial court’s denial of the Commonwealth’s

challenge, then the Commonwealth would not be an aggrieved party entitled to challenge

the denial on appeal. Polo, 759 A.2d at 373 n.1. Put simply, regardless of how Pownall’s

bell tolls, on this question that bell “cannot be unrung by a later appeal.” Harris, 32 A.3d

at 249.

I also am convinced that the challenge to Section 508(a)(1) raises an important

question of great concern to the public. This appeal asks whether the General Assembly

effectively has immunized police officers to commit homicide under circumstances that

violate the Fourth Amendment. Our answer to that question reaches far beyond this case.

[J-76-2021] [MO: Dougherty, J.] - 14

It lets citizens know whether their conduct during an arrest could place their lives in

jeopardy. It also puts law enforcement officers on notice of what conduct is or is not

lawful, so that they can perform their duties without fear of criminal or civil liability.

Because the Majority leaves these important questions unanswered and potentially

unanswerable, the status quo remains decisively in favor of a deadly force justification,

one as to which serious constitutional questions have been raised.

To be sure, the collateral order doctrine does not lend itself to crystal-clear,

brightline standards. The doctrine’s inherent flexibility prevents the Majority’s approach

from appearing unreasonable. Murky standards are not, however, an invitation to

disregard first principles. The practical motivations of the final judgment rule must guide

us through the turbidity. In my view, the Majority’s decision to apply the final judgment

rule is untethered to any of the rule’s concerns.11

This is not a case where further development of the record would enrich our

assessment. The Commonwealth presents a purely legal question, the answer to which

does not require evidentiary rulings or findings of fact. For that same reason, the

Commonwealth’s challenge is not a matter within the primary domain or discretion of a

trial court. Such matters are the heart of an appellate court’s work. And the Majority’s

analysis of the separability prong is particularly inconsistent with that prong’s animating

principle, which is to limit the number of times a reviewing court must consider issues that

are nearly identical. We are asked to decide a constitutional question that will remain

unanswered if we do not assess it here and now. If we were to decide this matter, there

would be no need for this Court or the Superior Court to consider it again, here or in any

other case. The Majority’s insistence upon an overly formalistic application of the final

11 See Shearer, 177 A.3d at 855 (“Considering issues only after a final order

maintains distinctions between trial and appellate review, respects the traditional role of

the trial judge, and promotes formality, completeness, and efficiency.”).

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judgment rule leaves the important questions implicated in this case unanswered, not just

today but perhaps indefinitely.

This appeal satisfies all three prongs of the collateral order doctrine. To hold

otherwise is to elevate formalism over pragmatism. Accordingly, I would proceed to

address the merits of the Commonwealth’s claim that Section 508(a)(1), as written, is

unconstitutional under the United States Supreme Court’s decision in Tennessee v.

Garner.

II. Merits

Garner was the first occasion upon which the Supreme Court considered the

constitutional implications of the use of deadly force in effectuating an arrest. That case

began when Tennessee police officer Elton Hymon responded to a report of a burglary in

a Memphis neighborhood. As Hymon was searching the exterior of the residence where

the crime reportedly occurred, he heard a door slam shut in the back of the house. When

Hymon entered the backyard, he saw a small individual, fifteen-year-old Edward Garner,

darting across the yard and toward a chain link fence, stopping just a few feet away.

Hymon ordered him to halt, but Garner proceeded to climb the fence. At that point,

Hymon, who was “reasonably sure” that Garner was unarmed, shot Garner in the back of

the head. Garner, 471 U.S. at 3. Garner died shortly thereafter.

Tennessee’s use-of-force statute codified the then-prevailing common law rule,

which provided that police officers may shoot any fleeing felon to prevent an escape.

Thus, Hymon’s conduct was statutorily permitted. The Supreme Court addressed

whether state laws authorizing the use of deadly force against fleeing, unarmed, and non-

violent felony suspects were unconstitutional.

The Garner Court’s analysis began with the pronouncement that “apprehension by

the use of deadly force is a seizure subject to the reasonableness requirement of the

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Fourth Amendment.”12 Id. at 7. As such, the Court employed the same basic analytical

framework applicable in all Fourth Amendment cases—that is, whether the intrusiveness

of the seizure is justified by the governmental interest underlying it. Unlike other

encroachments within the domain of the Fourth Amendment, however, “[t]he

intrusiveness of a seizure by means of deadly force is unmatched.” Id. at 9. Only a

comparably unrivaled state interest could justify such an intrusion. For that reason, the

Court rejected the contention that the government’s interest in effective law enforcement

justified killing a suspect. “The use of deadly force is a self-defeating way of apprehending

a suspect and so setting the criminal justice mechanism in motion. If successful, it

guarantees that that mechanism will not be set in motion.” Id. at 10. The Court held that

statutory provisions like Tennessee’s are unconstitutional to the extent that they authorize

the use of lethal force for the sole purpose of effectuating an arrest. Id. at 11 (“The use

of deadly force to prevent the escape of all felony suspects, whatever the circumstances,

is constitutionally unreasonable.”).

But the Garner Court stopped short of declaring the statute facially

unconstitutional, because there are circumstances in which it might be reasonable to kill

a fleeing felon. The lone governmental interest of sufficient weight, the Court decided,

was the need to protect the life of another. “Where the officer has probable cause to

believe that the suspect poses a threat of serious physical harm, either to the officer or to

others, it is not constitutionally unreasonable to prevent escape by using deadly force.”

Id. at 11. “Where the suspect poses no immediate threat to the officer and no threat to

others, the harm resulting from failing to apprehend him does not justify the use of deadly

12 See also Torres v. Madrid, ___ U.S. ___, 141 S.Ct. 989, 1003 (2021) (holding that

officers seized fleeing suspect the instant they shot her, although she eluded capture).

[J-76-2021] [MO: Dougherty, J.] - 17

force to do so.” Id. From these general principles, the Court articulated the following

clear standard:

[I]f the suspect threatens the officer with a weapon or there is probable

cause to believe that he has committed a crime involving the infliction or

threatened infliction of serious physical harm, deadly force may be used if

necessary to prevent escape, and if, where feasible, some warning has

been given.

Id. at 11-12.

The Court laid down what seemed to be a rigid three-part standard for assessing

a police officer’s use of deadly force. That test asks whether: (1) the suspect poses an

immediate threat of death or serious physical harm to the officer or others; (2) the use of

deadly force is necessary to prevent the suspect from escaping; and (3) where feasible,

the officer has warned the suspect that he intends to use lethal force. Despite the Garner

Court’s manifest distaste for extrajudicial killings by state actors,13 and despite its effort

to establish a highly limited set of circumstances where such killings were permissible,14

13 Capital punishment is the only other context where state-sanctioned killings are

constitutional. The federal Constitution imposes much stronger ex ante restraints on the

imposition of the death penalty than it does on a police officer’s use of lethal force.

Consider that the Supreme Court has held that murder is the only crime against a person

that can warrant imposition of the death penalty. See Kennedy v. Louisiana, 554 U.S.

407, 437 (2008) (“As it relates to crimes against individuals, though, the death penalty

should not be expanded to instances where the victim’s life was not taken.”). Garner,

conversely, allows state actors to kill based upon a much wider range of crimes, so-called

dangerous felonies. Moreover, the imposition of capital punishment for murder is

constitutional only if the government has adhered to the most rigid and robust procedural

constraints, such as bifurcation of the guilt and penalty phases. Capital trials are

unparalleled in the protections that they afford to the accused before his or her life is

taken. Nonetheless, for whatever reason, the High Court has determined that a fleeing

suspect is not entitled to remotely similar safeguards when a police officer decides to kill

the suspect. Indeed, Garner and its progeny require only probable cause despite the fact

that the penalty even for relatively minor offenses such as criminal trespass, which, if

graded as a second-degree felony carries a maximum prison sentence of ten years

requires proof beyond a reasonable doubt.

14 See Garner, 471 U.S. at 14 (denouncing the notion that all fleeing felons have

“already forfeited” their lives).

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subsequent Supreme Court decisions blurred the parameters of Garner’s clear test. The

Supreme Court’s decision in Scott v. Harris, 550 U.S. 372 (2007) is the most prominent

among these cases.

In Scott, the Court rejected any suggestion that Garner established “a magical

on/off switch that triggers rigid preconditions whenever an officer's actions constitute

‘deadly force.’” 550 U.S. at 382. Instead of adhering to the clarity that the Garner factors

provided to the bench, the bar, and law enforcement, the Scott Court favored an

amorphous standard bounded only by a particular reviewing court’s subjective view as to

whether a particular police officer’s “actions were reasonable.” Id. at 383. The Court

added no real content to this “reasonableness” inquiry, aside from reiterating that, as in

any Fourth Amendment case, “we must balance the nature and quality of the intrusion on

the individual’s Fourth Amendment interests against the importance of the governmental

interests alleged to justify the intrusion.” Id. (cleaned up). What this really means is that,

except in the clearest of cases, courts have to “slosh . . . through the factbound morass

of ‘reasonableness.’” Id.

Notwithstanding the Scott Court’s weakening of Garner, the use of lethal force—

meaning force that poses a “near certainty of death,” id. at 384 (emphasis in original)—

still can produce an obvious constitutional violation. Garner’s general principle that lethal

force is justified only when the officer reasonably believes it is necessary to protect himself

or others from serious physical harm is still good law. See Brosseau v. Haugen, 543 U.S.

194, 197-98 (2004). Categorically, then, the Fourth Amendment prohibits police conduct

that poses a near certainty of killing the suspect where nothing demonstrates that the

suspect poses a real and present danger to the life or physical well-being of the officer or

others. See Jefferson v. Lias, 21 F.4th 74, 81 (3d Cir. 2021) (explaining that “[a] passing

risk to a police officer is not an ongoing license to kill an otherwise unthreatening suspect”)

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(citation omitted); cf. Scott, 550 U.S. at 386 (“A police officer’s attempt to terminate a

dangerous high-speed car chase that threatens the lives of innocent bystanders does not

violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious

injury or death.”).

Applying what remains of Garner, I agree with the Commonwealth that Section

508(a)(1) is, at least in part, constitutionally defective. The Majority interprets Section

508(a)(1) as providing

four circumstances in which a police officer’s use of deadly force while

making an arrest is justified. First, when the officer reasonably believes

“such force is necessary to prevent death or serious bodily injury to himself

or such other person[.]” 18 Pa.C.S. § 508(a)(1). Second, when the officer

reasonably believes “such force is necessary to prevent the arrest from

being defeated by resistance or escape” and “the person to be arrested has

committed or attempted a forcible felony[.]” Id. at (a)(1)(i)-(ii). Third, when

the officer reasonably believes “such force is necessary to prevent the

arrest from being defeated by resistance or escape” and “the person to be

arrested . . . is attempting to escape and possesses a deadly weapon[.]” Id.

And fourth, when the officer reasonably believes “such force is necessary

to prevent the arrest from being defeated by resistance or escape” and “the

person to be arrested . . . indicates that he will endanger human life or inflict

serious bodily injury unless arrested without delay[.]” Id.

Maj. Op. at 5-6 (alterations in original; footnote omitted; and citation modified). The

Commonwealth asserts that the second (“forcible felony justification”) and third (“deadly

weapon justification”) of those four scenarios are unconstitutional because they permit an

officer to kill a fleeing suspect without any indicia that the suspect will harm the officer or

others.15

15 The Majority offers just one reasonable interpretation. Section 508(a)(1) also could

be interpreted such that “possesses a deadly weapon” not only modifies “is attempting to

escape” but also the phrase “has committed or attempted a forcible felony.” If the

possession requirement modifies the forcible felony requirement as well, then the “forcible

felony” justification would require proof that the person to be arrested both (1) has

committed or attempted to commit a forcible felony and (2) possesses a deadly weapon.

As a result, the “deadly weapon justification” would be a bit of a misnomer and could be

[J-76-2021] [MO: Dougherty, J.] - 20

The first and fourth circumstances conform with the requirements of Garner and

its progeny. The first situation conditions the justification defense upon proof of the

officer’s reasonable belief that deadly force is necessary to prevent death or serious

bodily injury to the officer or another. The fourth situation, which provides a catch-all that

covers scenarios not involving either a forcible felony or possession of a deadly weapon,

is almost entirely redundant of the first, except that, in addition to the requirement that the

suspect will endanger human life or inflict serious bodily injury, the officer must also

believe that the force is necessary to prevent the suspect from defeating the arrest. These

two are the only situations that adequately accommodate Garner’s core principle: that

the use of lethal force is constitutional when there are at least some facts reasonably

supporting the conclusion that the person to be arrested presents a danger to the life or

limb of another. See Garner, 471 U.S. at 11 (“Where the officer has probable cause to

believe that the suspect poses a threat of serious physical harm, either to the officer or to

others, it is not constitutionally unreasonable to prevent escape by using deadly force.”);

cf. Plumhoff, 572 U.S. at 777 (holding that an officer acted reasonably when he fatally

shot a fleeing suspect whose conduct while in flight “pose[d] a deadly threat for others”).

Conversely, the two challenged portions of Section 508(a)(1)—the forcible felony

and deadly weapon justifications—permit an officer to kill a fleeing suspect without any

retitled the “attempted escape” justification, which requires an attempted escape and

possession of a deadly weapon.

These competing interpretations provide further reason why we should address

the merits here and now. If the Majority’s reading is incorrect, the suggested jury

instruction for Section 508, which is likely used by many courts throughout this

Commonwealth, also is incorrect. Alas, my learned colleagues side-step this important

question, refusing to provide guidance as to how or when it will be possible to address it.

For purposes of this analysis, I accept the Majority’s proffered interpretation. But

regardless of which reading is superior, both constructions are unconstitutional because

they permit the use of lethal force without any facts indicating the suspect poses an

immediate danger.

[J-76-2021] [MO: Dougherty, J.] - 21

facts demonstrating that the suspect poses an actual threat of death or grave bodily injury

to the officer of others. The deadly weapon provision deems a suspect’s flight plus the

mere possession of a deadly weapon as sufficient in and of themselves to justify lethal

force. The forcible felony justification permits an officer to use deadly force based upon

the suspicion of a past crime involving violence, regardless of whether the officer has any

reason to believe that the fleeing suspect will harm someone if not apprehended

immediately. There is no constitutional situation in which the bare fact that the fleeing

suspect possesses a weapon or may have committed a violent crime at some point in the

past justifies the use of deadly force. See Perez v. Suszczynski, 809 F.3d 1213, 1220

(11th Cir. 2016) (holding that “the mere presence of a gun or other weapon is not enough

to warrant the exercise of deadly force”); Jefferson, 21 F.4th at 81; cf. Stewart v. City of

Euclid, 970 F.3d 667, 673 (6th Cir. 2020) (holding that the totality of circumstances did

not justify police officer’s use of deadly force against motorist, even though motorist drove

into police car at beginning of encounter).

Rather, the Fourth Amendment requires some further indication that the suspect

will harm the officer or another. Cf. Abraham v. Raso, 183 F.3d 279, 295 (3d Cir. 1999)

(explaining that past dangerousness does “not necessarily justify continuing to use lethal

force”). And, if the officer possessed such additional indicia of dangerousness, he would

be availing himself of either the first or fourth situations contemplated in Section 508(a)(1),

not the forcible felony or deadly weapon justification alone. As the Commonwealth

argues, the General Assembly’s use of the disjunctive “or” to separate Section 508(a)(1)’s

four scenarios has created independent exceptions.16 Section 508(a)(1) declares

16 See Commonwealth’s Br. at 34 (“The two impermissible scenarios of the escape

justification contain nothing more than ‘rigid preconditions,’ a checkmark beside each of

which will permit an officer to take the suspect’s life, without any consideration of the

objective reasonableness of that action. For this reason, too, the statute permits the use

of deadly force in situations that violate a person’s constitutional rights.”); id. at 24

[J-76-2021] [MO: Dougherty, J.] - 22

unambiguously that the presence of a deadly weapon or the reasonable belief that the

fleeing suspect committed a forcible felony is enough per se to justify a police officer’s

use of deadly force. However, deadly force is constitutional only if the totality of the

circumstances supports a reasonable belief that the fleeing suspect poses a risk of real

harm to the officer or others. Because the deadly weapon and forcible felony justifications

permit an officer to use lethal force based upon a single fact, without consideration of

whether the force was reasonable under the totality of the circumstances, those

provisions are unconstitutional. There is no constitutional situation in which mere

possession of a deadly weapon or suspicion of a crime, without more, can permit the use

of lethal force. For that reason, I would strike those provisions.

The first and fourth circumstances listed in Section 508(a)(1) comply with the

requirements of the Fourth Amendment. They also are entirely severable from the

unconstitutional portions. The first and fourth justification defenses are not “so essentially

and inseparably connected with, and so dependent upon,” the deadly weapon and forcible

felony justifications “that it cannot be presumed the General Assembly would have

enacted the remaining valid provisions without the void one[s].” 1 Pa.C.S. § 1925. Nor

would I conclude that “the remaining valid provisions, standing alone, are incomplete and

are incapable of being executed in accordance with the legislative intent.” Id. The second

and third circumstances in Section 508(a)(1) should be severed from the constitutional

portions. See, e.g., Commonwealth v. Hopkins, 117 A.3d 247, 252 (Pa. 2015) (“[E]ven if

certain provisions of a statute are deemed to run afoul of the federal or state Constitution,

(“Section 508(a)(1) does not meet these basic Fourth Amendment requirements, both

because (1) it permits the use of deadly force in situations where such force is not

necessary to prevent death or serious bodily injury; and (2) it does not require the

factfinder to consider the objective reasonableness of the officer’s actions.”).

[J-76-2021] [MO: Dougherty, J.] - 23

portions of the statute which are not so offensive may retain their viability through judicial

severing of those sections from the sections that are unconstitutional.”).

The Commonwealth agrees that “[a] disjunctive interpretation of

Section 508(a)(1)(ii) unquestionably infringes on Fourth Amendment rights established

by the United States Supreme Court,” but it asserts that, instead of removing the two

offending justifications, we should reinterpret Section 508(a)(1) by replacing its several

uses of “or” with the conjunctive “and.” Commonwealth’s Br. at 36-37. Under that

construction, lethal force would be permitted only when the officer reasonably believes

the fleeing suspect has committed or attempted to commit a forcible felony and

possesses a deadly weapon, and otherwise indicates that he will endanger human life or

inflict serious bodily injury unless arrested without delay.

That argument asks us for something that we cannot do. We possess no magic

wand that would allow us simply to remake “or” to mean “and.” Because “or” is disjunctive,

the statute unambiguously entitles a law enforcement officer to use lethal force if he

demonstrates any of Section 508(a)(1)’s four circumstances. In certain instances, the

use of a disjunctive when describing conditions that would trigger an event does not

preclude that same event from occurring when those same conditions occur

conjunctively. But a disjunctive set of prerequisites can never mean that all those

conditions must occur in order for the event to occur.17 Consider the following sentence:

If Andy takes out the trash or does the dishes, Brenda will walk the dog. If Andy takes

out the trash, then Brenda will walk the dog. If Andy does the dishes, Brenda will walk

the dog. If Andy does the dishes and takes out the trash, then Brenda still must walk the

dog. But under no reasonable interpretation is Andy required both to do the dishes and

17 See generally ANTONIN SCALIA & BRYAN A. GARNER, READING LAW : THE

INTERPRETATION OF LEGAL TEXTS 116-25 (2012) (explaining the conjunctive/disjunctive

canon).

[J-76-2021] [MO: Dougherty, J.] - 24

to take out the trash before Brenda will walk the dog. The word “or” does not preclude

multiple listed conditions from triggering an event, but there is no reasonable construction

of “or” that requires multiple conditions. Put simply, three conditions conjoined by an “or”

are alternatives, not three prongs or elements.

Thus, Section 508(a)(1) in no conceivable way conditions its justification defense

upon the presence of a gun, suspicion of a dangerous felony, and some other indicia of

dangerousness. The General Assembly unambiguously has declared that a police officer

can kill a fleeing suspect based upon the officer’s belief that the suspect possesses a

weapon, or upon the officer’s belief that the suspect committed a forcible felony, or if the

fleeing suspect otherwise indicates he will seriously harm or take the life of someone. By

treating the final scenario—other indicia of dangerousness—as its own distinct exception,

Section 508 declares that a fleeing suspect’s possession of a weapon or past commission

of a dangerous felony are proxies for the reasonable belief that the suspect poses an

immediate threat of serious physical harm. But, as the Scott Court made clear, there is

no “magical on/off switch that triggers rigid preconditions whenever an officer’s actions

constitute ‘deadly force.’” Scott, 550 U.S. at 382. Thus, Section 508(a)(1)’s forcible felony

and deadly weapon justifications are unambiguously unconstitutional. Because we have

no license to rewrite them, they must be stricken. Seila Law LLC, 140 S. Ct. at 2207

(“Constitutional avoidance is not a license to rewrite [the legislature’s] work to say

whatever the Constitution needs it to say in a given situation.”).

The final question in this case asks whether Pownall can be denied the opportunity

to invoke the unconstitutional portions of Section 508(a)(1). Pownall asserts that a judicial

ruling that alters Section 508 or that invalidates it in part amounts to an unconstitutional

[J-76-2021] [MO: Dougherty, J.] - 25

ex post facto law.18 Despite the patent unconstitutionality of the statute, I firmly agree

that Pownall cannot be denied its benefit. To deprive Pownall of the opportunity to invoke

the deadly weapon or forcible felony justifications at his trial would be to “expand[ ] the

scope of a criminal prohibition after the act is done.” Collins v. Youngblood, 497 U.S. 37,

49 (1990); see also Beazell v. Ohio, 269 U.S. 167, 169 (1925) (a law is ex post facto if it

“deprives one charged with [a] crime of any defense available according to law at the time

when the act was committed”). This is plainly forbidden by our Constitutions. To expose

Pownall to a higher probability of criminal sanction than what he faced at the time of the

alleged acts would violate the constitutional proscriptions on ex post facto laws.

In sum, our Constitutions favor trials over summary executions, and they value the

lives of suspects who carry deadly weapons just as much as the lives of the unarmed.

By justifying the use of deadly force on suspicions of criminal conduct, regardless of

whether the suspect actually poses a threat, Section 508(a)(1) impermissibly grants

police officers the power of judge, jury, and executioner. It improperly treats possession

of a weapon as a proxy for dangerousness. Cf. Commonwealth v. Hicks, 208 A.3d 916,

947 (Pa. 2019) (characterizing the lower court’s view “that the ‘possession of a concealed

firearm by an individual in public is sufficient to create a reasonable suspicion that the

individual may be dangerous’” as patent error). I agree with the Commonwealth that

Section 508(a)(1) is unconstitutional. But the canon of constitutional avoidance is no

savior here. We should strike the offending provisions. Nonetheless, if Pownall presents

18 The United States Constitution contains two provisions addressing ex post facto

laws. The first is found in Article I, Section 9, and serves as a limitation on Congress’

authority to pass such laws: “No Bill of Attainder or ex post facto Law shall be passed.”

U.S. CONST. art. I, § 9, cl. 3. The proscription appears for the second time in Article I,

Section 10, and, in this usage, constitutes a restriction on the power of the states: “No

State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the

Obligation of Contracts, or grant any Title of Nobility.” U.S. CONST. art. I, § 10, cl. 1.

Article I, Section 17 of the Pennsylvania Constitution similarly limits the General

Assembly’s power: “No ex post facto law . . . shall be passed.” PA. CONST. art I, § 17.

[J-76-2021] [MO: Dougherty, J.] - 26

facts that warrant application of any or all of the provisions of Section 508(a)(1), he is

entitled to a jury instruction that reflects the language of Section 508(a)(1) as it existed at

the time of the alleged offense because the retroactive deprivation of a statutory

justification would itself result in a constitutional violation.

All of these issues are separable from Pownall’s guilt or innocence. We are

presented with purely legal questions that do not hinge upon the veracity or adequacy of

the Commonwealth’s factual allegations. The result of the Majority’s contrary conclusion

is that these constitutional issues of statewide significance are likely to evade our review

forever. And the Commonwealth certainly will not be able to have them answered during

any appeal that follows Pownall’s trial. Because the Majority errs in concluding that the

collateral order doctrine does not allow us to answer these important questions, I dissent.

Justice Donohue joins this dissenting opinion.

[J-76-2021] [MO: Dougherty, J.] - 27