Commonwealth v. Pownall

Full title: COMMONWEALTH OF PENNSYLVANIA, Appellant v. RYAN POWNALL, Appellee

Court: Supreme Court of Pennsylvania

Date published: Jul 20, 2022

278 A.3d 885 (Pa. 2022)

Opinion

No. 17 EAP 2021

07-20-2022

COMMONWEALTH of Pennsylvania, Appellant v. Ryan POWNALL, Appellee

Matthew Hoffmann Davis, Esq., Lawrence Jonathan Goode, Esq., Lawrence Samuel Krasner, Esq., Carolyn Engel Temin, Esq., Nancy L. Winkelman, Esq., Philadelphia District Attorney's Office, for Appellant. Matthew Aaron Hamermesh, Esq., Daniel Segal, Esq., Hangley, Aronchick, Segal, Pudlin & Schiller, for Appellant Amicus Curiae Current and Former Elected Prosecutors, Attorneys General, and Law Enforcement Leaders. Sara Jeannette Rose, Esq., for Appellant Amicus Curiae ACLU of Pennsylvania. Charles Matthew Gibbs, Esq., Fortunato N. Perri Jr., Esq., McMonagle Perri, McHugh & Mischak, P.C., for Appellee. John R. Bielski, Esq., William James Campbell IV, Esq., Richard G. Poulson, Esq., Ralph J. Teti, Esq., for Appellee Amici Curiae Pennsylvania State Lodge Fraternal Order of Police, Fraternal Order of Police Lodge No. 5.

JUSTICE DOUGHERTY

Matthew Hoffmann Davis, Esq., Lawrence Jonathan Goode, Esq., Lawrence Samuel Krasner, Esq., Carolyn Engel Temin, Esq., Nancy L. Winkelman, Esq., Philadelphia District Attorney's Office, for Appellant.

Matthew Aaron Hamermesh, Esq., Daniel Segal, Esq., Hangley, Aronchick, Segal, Pudlin & Schiller, for Appellant Amicus Curiae Current and Former Elected Prosecutors, Attorneys General, and Law Enforcement Leaders.

Sara Jeannette Rose, Esq., for Appellant Amicus Curiae ACLU of Pennsylvania.

Charles Matthew Gibbs, Esq., Fortunato N. Perri Jr., Esq., McMonagle Perri, McHugh & Mischak, P.C., for Appellee.

John R. Bielski, Esq., William James Campbell IV, Esq., Richard G. Poulson, Esq., Ralph J. Teti, Esq., for Appellee Amici Curiae Pennsylvania State Lodge Fraternal Order of Police, Fraternal Order of Police Lodge No. 5.

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE DOUGHERTY This case concerns the tragic death of David Jones. Appellee Ryan Pownall, a (former) Philadelphia Police Officer, is charged with killing Jones by gunfire while on duty in his capacity as a police officer. Anticipating Pownall might pursue at trial a peace officer justification defense under 18 Pa.C.S. § 508 (setting forth circumstances in which a peace officer's use of deadly force while making an arrest is not a crime), the Philadelphia District Attorney's Office ("DAO"), on behalf of the Commonwealth, filed a pretrial motion in limine seeking to preclude the trial court from using Suggested Standard Jury Instruction (Crim) § 9.508B, which largely tracks Section 508.¹ The DAO argued that since the justification statute supposedly violates the Fourth Amendment to the United States Constitution as interpreted by the Supreme Court in Tennessee v. Garner , 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), so too must the standard jury instruction based on the statute. The trial court disagreed. It concluded the DAO's pretrial motion, by itself, was "insufficient to establish the unconstitutionality of Section 508 [.]" Trial Court Op., 12/30/2019 at 3. Moreover, the court believed the DAO's suggested remedy — proposing that it rewrite several disjunctive "ors" within the statute to conjunctive "ands" — was an "inappropriate" request for it to "judicially usurp the legislative function of the Pennsylvania General Assembly and rewrite Section 508 out of whole cloth." Id. For those reasons it denied the DAO's request to certify the case for interlocutory appeal. When the DAO appealed anyway, the Superior Court quashed, reasoning the trial court's order was not collateral and did not substantially handicap or terminate the DAO's prosecution. We granted review to determine whether the Superior Court erred in quashing the appeal. Because we conclude it did not, we affirm.

1 We provide the text of these authorities infra at –––– & n.9, respectively.

I. Background

We begin by emphasizing this is an interlocutory Commonwealth² appeal of a pretrial order. As such, there are few uncontested facts presently before us regarding the underlying incident, and it would be improper for us to comment on evidence that may or may not eventually be introduced should this matter reach trial. All we can say for certain in this posture is that on June 8, 2017, Jones was killed by gunfire following an incident involving Pownall. At some later point, the DAO submitted the matter to the Twenty-Ninth Philadelphia County Investigating Grand Jury, which eventually issued a presentment recommending Pownall be charged with criminal homicide, possession of an instrument of crime, and recklessly endangering another person.³ On September 4, 2018, the DAO charged Pownall in a criminal complaint with the latter two crimes; it also charged third-degree murder under 18 Pa.C.S. § 2502(c). It then sought to bypass a preliminary hearing. Over Pownall's objection, which was grounded in the plain text of Section 4551(e) of the Investigating Grand Jury Act,⁴ the Honorable Robert J. Coleman granted the DAO's bypass motion on October 11, 2018 and bound the case over for trial on the charges listed in the criminal complaint.

2 Throughout this opinion we generally refer to "the DAO" instead of "the Commonwealth." We do this because the DAO's principal argument is that "Section 508(a)(1) is facially unconstitutional." DAO's Reply Brief at 1. Our rules do not contemplate this situation. Ordinarily, when a party in a case "draws in question the constitutionality of any statute" it must "give immediate notice in writing to the Attorney General[.]" Pa.R.A.P. 521(a). This rule recognizes the fact that the Attorney General is "the chief law enforcement officer of the Commonwealth[,]" 71 P.S. § 732-206(a), and is statutorily charged with "uphold[ing] and defend[ing] the constitutionality of all statutes[.]" 71 P.S. § 732-204(a)(3). Significantly, though, Rule 521 requires notice to the Attorney General only when "the Commonwealth or any officer thereof ... is not a party[.]" Pa.R.A.P. 521(a). The obvious implication of the rule is that when a county district attorney prosecutes a case "in the name of the Commonwealth," 16 P.S. § 1402(a), he or she assumes this duty to defend a challenged statute's constitutionality and no notice to the Attorney General is needed. Here, the DAO takes the exact opposite stance: not only does it decline to uphold Section 508 ’s constitutionality, it leads the charge against it. In this unusual circumstance, and in the absence of any indication the Attorney General has been given notice of the DAO's claimed facial attack to Section 508 ’s constitutionality, we find it prudent to refer to the DAO's position as its own rather than attribute it to the Commonwealth.

3 18 Pa.C.S. § 2501, § 907, and § 2705. Parenthetically, we note that although Section 2501 addresses criminal homicide generally, the actual criminal offenses for the various degrees of murder are set forth in 18 Pa.C.S. § 2502, not Section 2501. Likewise, the remaining two species of criminal homicide, voluntary manslaughter and involuntary manslaughter, are provided in 18 Pa.C.S. § 2503 and § 2504, respectively.

4 See 42 Pa.C.S. § 4551(e) ("When the attorney for the Commonwealth proceeds on the basis of a presentment, a complaint shall be filed and the defendant shall be entitled to a preliminary hearing as in other criminal proceedings.") (emphasis added).

The case was assigned to the Honorable Barbara A. McDermott who scheduled it for a trial date of January 6, 2020. On April 1, 2019, Pownall filed a motion for change of venue or venire, which the DAO opposed. After conducting two mock jury selections over the span of several months to test whether Pownall could receive a fair trial in Philadelphia, the trial court concluded he could. Thus, on November 24, 2019, it denied his motion. See N.T. 11/25/2019 at 22.

Also on that date — which was only a little more than a month before trial was set to begin, yet "more than a year and two months after [Pownall]’s arrest ... and more than two years and five months after" Jones's death, Trial Court Op., 1/2/2020 at 2 n.2 — the DAO informed the trial court and Pownall that it intended to file a motion seeking to bar use of the suggested standard jury instruction relative to the peace officer justification defense. According to Assistant District Attorney Tracy Tripp, the intent behind the DAO's forthcoming motion was

not to bar [Pownall] from a defense because I don't think that is allowable or appropriate. But I do feel as though — and we, the [DAO], feel as though the law itself is unconstitutional. It is a request for a decision on the constitutionality of certain prongs of 508A1, and also for the jury instructions in light of that. But I don't think it impacts the defense.

N.T. 11/25/2019 at 8. ADA Tripp asserted the DAO's motion would merely provide "two alternatives for possible jury instructions ... [b]ecause, again, I think you get into dicey territory, if the Commonwealth is trying to tell a defendant or defense counsel what they can and can't argue as defenses." Id. at 24.

The DAO filed its motion in limine later that day. Therein, it expressed its belief that "justification under section 508(a)(1) will be a trial issue" and submitted that "a pre-trial determination of an issue related to the Pennsylvania Suggested Standard Jury Instruction for section 508 is necessary to prevent protracted mid-trial litigation." Motion in Limine, 11/25/2019 at 2. More precisely, the DAO asked the trial court to

refrain from giving the Pennsylvania Suggested Standard Criminal Jury Instruction regarding section 508 because it is unconstitutional under the Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court, and equally unconstitutional under Article 1, Section 8 of the Pennsylvania Constitution.^{[ 5 ]} The [DAO] contends that when section 508 is read in light of controlling and persuasive Fourth Amendment jurisprudence regarding deadly force used in the apprehension of criminal suspects, that section's confusing conjunctive and disjunctive clauses result in clearly untenable justifications for the use of such deadly force.

5 The DAO later clarified "the relevant analysis under the Fourth Amendment is coterminous with any analysis under Article I, Section 8 of the Pennsylvania Constitution." Motion in Limine, 11/25/2019 at 10 n.3.

Id. at 3.

To contextualize the DAO's arguments pertaining to Section 508, we turn briefly to the statute. It states:

(a) Peace officer's use of force in making arrest.--

(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. § 508.

This text provides 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[.]" Id. at (a)(1).⁶ 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.

6 The word "reasonable" does not appear in this portion of the statute. But, Section 501 instructs that the words "believes" and "belief" as used in Chapter 5 of the Crimes Code — where the peace officer justification defense resides — mean "reasonably believes" or "reasonable belief." 18 Pa.C.S. § 501. We therefore substitute this definition for clarity.

Returning to the DAO's motion in limine, it detected no constitutional infirmity with respect to the first or fourth scenarios presented above. But it strongly contested the constitutionality of the other two, which we will refer to as the "forcible felony" and "deadly weapon" justifications. The DAO's grievance with those specific justifications was based on its interpretation of Garner ’s impact on substantive state criminal laws like Section 508. So, to add still more context, we now examine Garner .

Garner was decided nearly twelve years after Section 508 became effective. In that case, Edward Garner's father filed an action in federal district court seeking damages under 42 U.S.C. § 1983 for asserted violations of Garner's constitutional rights committed by Memphis Police Officer Elton Hymon. Late in the evening on October 3, 1974, Hymon and another officer responded to a "prowler inside" call. When they arrived, a neighbor gestured toward the house in question and informed the officers she heard glass shatter and believed the house was being burglarized. Hymon approached the rear of the house, where he heard a door slam and saw someone run across the backyard. The suspect, Garner, stopped at a six-foot-high chain link fence at the edge of the yard. Hymon shined his flashlight at Garner — a fifteen-year-old who was 5’4" tall and weighed roughly 100 pounds — and saw no sign of a weapon. Hymon then called out "police, halt" and took a few steps forward, but Garner began to climb the fence. Convinced Garner would elude capture if he made it over, Hymon shot him in the back of the head, killing him. Ten dollars and a purse taken from the house were found on Garner's body.

Hymon's use of deadly force to prevent Garner's escape was authorized by a Tennessee statute and a Memphis Police Department policy. The statute provided that "[i]f, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest." TENN. CODE ANN. § 40-7-108 (former). The Police Department policy, though slightly more restrictive than the statute, still allowed the use of deadly force in cases of burglary. As a result, neither criminal nor administrative action was taken against Hymon for killing Garner. With respect to Garner's father's civil suit, the district court found Hymon's actions to be authorized by the Tennessee statute. The Sixth Circuit Court of Appeals agreed Hymon had acted in good-faith reliance on the statute and was therefore within the scope of his qualified immunity. However, it reversed the district court's dismissal of claims against the City of Memphis. Relevant here, it reasoned the killing of a fleeing suspect is a seizure under the Fourth Amendment, meaning it is constitutional only if reasonable.⁷ In this instance, the Sixth Circuit concluded, the facts as found did not justify the use of deadly force against Garner under the Fourth Amendment.

7 "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV.

The State of Tennessee subsequently intervened to defend the statute and sought certiorari before the United States Supreme Court, which was granted. On its review, the High Court affirmed. Initially, it held "there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment." Garner , 471 U.S. at 7, 105 S.Ct. 1694 ; see id. at 8, 105 S.Ct. 1694 ("it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out"). The Court continued: "To determine the constitutionality of a seizure 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. (internal quotations, brackets, and citations omitted). It then looked to other situations in which it had conducted a similar balancing and resolved that, even if an officer has "probable cause to seize a suspect, [he] may not always do so by killing him." Id. at 9, 105 S.Ct. 1694.

In reaching this conclusion, the Court explained that on one side of the scale is the "interest of the individual, and of society, in judicial determination of guilt and punishment." Id. Also on that side is a "suspect's fundamental interest in his own life" which, the Court pointedly remarked, "need not be elaborated upon." Id. Meanwhile, on the other side of the scale is a range of "governmental interests in effective law enforcement[,]" including a goal of reducing overall violence by encouraging peaceful submission. Id. Ultimately, however, the Court concluded that despite the importance of these legitimate objectives, effectuating a seizure by use of deadly force — the intrusiveness of which "is unmatched" — is "a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion." Id. at 9-10, 105 S.Ct. 1694. In other words, the Court was not persuaded "that shooting nondangerous fleeing suspects is so vital as to outweigh the suspect's interest in his own life." Id. at 11, 105 S.Ct. 1694.

Two additional paragraphs from Garner warrant discussion. The first because it forms the crux of the DAO's constitutional argument; the second because the DAO mostly ignores it notwithstanding its clear relevance to the DAO's claim. Starting with the DAO's preferred paragraph, it states:

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. 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 force to do so . It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead . The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.

Id. (emphasis added). The second paragraph, which immediately follows the first, provides:

It is not, however, unconstitutional on its face. 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. Thus, if 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. As applied in such circumstances, the Tennessee statute would pass constitutional muster.

Id. at 11-12, 105 S.Ct. 1694.

Focusing on the first paragraph above (the bolded parts in particular), and relating it back to Section 508, the DAO argued the forcible felony justification "is unconstitutional because the available definition of ‘forcible felony’ is too broad, and includes felonies that, under Garner , would not warrant deadly use of force." Motion in Limine, 11/25/2019 at 9. The DAO recognized the term "forcible felony" is not defined in the Crimes Code, but it looked to the subcommittee note for Suggested Standard Jury Instruction (Crim) § 9.508B, which states:

Subparagraph 3.b(1) of subdivision 3.b is based on the first clause of Crimes Code section 508(a)(1)(ii), which uses the term "forcible felony," a term not defined in the code. The trial judge should specify the particular crime involved, again depending on the evidence. The term "forcible felony" (and thus the applicability of this subparagraph of the instruction) appears to be limited to the felonies involving some element of force that are enumerated in the note to Instruction 9.508E.

Pa. SSJI (Crim) § 9.508B, Subcommittee Note.

Based on the final sentence in this passage, the DAO naturally went searching for the list of "felonies involving some element of force that are enumerated in the note to Instruction 9.508E." Id. But, as it turns out, no such list exists there. Nor are there any felonies "enumerated" in Instruction 9.508E itself (as opposed to within its note). So, the DAO instead seized other language from that Instruction referencing crimes involving or threatening "bodily injury," "damage to or loss of property," or a "breach of the peace[.]" Pa. SSJI (Crim) § 9.508E. Assuming those must be the terms that define the bounds of a "forcible felony" as understood by Section 508, the DAO challenged them as "too broad to comport with Garner [.]" Motion in Limine, 11/25/2019 at 9.

Turning to the deadly weapon justification, the DAO found it "even more broad than the ‘forcible felony’ scenario, and even more out of step with constitutional requirements." Id. (emphasis omitted). The DAO contended it allows "police officers to kill anyone — regardless of whether they are suspected of committing a felony, misdemeanor, or even an arrestable summary offense — who attempts to escape from arrest and happens to possess a ‘deadly weapon[.]’ " Id. at 10, 105 S.Ct. 1694. This theoretical possibility, the DAO alleged, "blatantly violates the Fourth Amendment's prohibition against the use of deadly force against misdemeanants." Id. at 10-11, 105 S.Ct. 1694 (citation omitted).⁸

8 We observe that on the next page of its motion the DAO undermined, if not plainly contradicted, its own argument in this respect. See Motion in Limine, 11/25/2019 at 12 (clarifying it "does not suggest that a misdemeanant cannot ever create a threat that necessitates a police officer's use of deadly force").

More broadly, the DAO asserted its view that "[w]eapon possession does not by itself create a fair inference that a suspect creates the requisite danger demanded by the Garner Court." Id. at 11, 105 S.Ct. 1694. Rather, it argued Garner requires "some indication that the suspect created an objectively reasonable belief that he or she threatens the life or limb of the officer or others unless arrested without delay." Id. (citation omitted). If the law was otherwise, the DAO feared the statute could permit the killing of fleeing suspects who merely possess any item recognized as a "deadly weapon" under Pennsylvania case law, which includes "knives, blackjacks, mace, mouse poison, and cars." Id. at 10, 105 S.Ct. 1694 (footnoted citations omitted).

Believing it had identified potential ways in which Section 508 ’s forcible felony and deadly weapon justifications could be applied in an unconstitutional manner, the DAO went on to offer a proposed remedy. To that end, it advised that "chang[ing] the offending ‘ors’ to ‘ands’ would bring Section 508(a)(1)(ii) within the relevant Fourth Amendment jurisprudence." Id. at 13, 105 S.Ct. 1694. Reformulating the statute in that way "would permit officers to only use deadly force against fleeing arrestees who attempted or committed a forcible felony and possess a deadly weapon and indicate that they would endanger human life or inflict serious bodily injury unless arrested without delay." Id. at 16, 105 S.Ct. 1694 (emphasis added). Put differently, the DAO asked the trial court to collapse three of the four independent justifications listed in Section 508 into one.

As for the corresponding suggested standard jury instruction — which, as we noted earlier, tracks Section 508 ⁹ — the DAO similarly recommended swapping the so-called offending "ors" with nonoffending "ands." See id. at 20-21, 105 S.Ct. 1694. Alternatively, it posited that the trial court could "simply excise the unconstitutional provisions, and squarely focus on the appropriate endangerment requirements[.]" Id. at 21, 105 S.Ct. 1694.

9 Suggested Standard Jury Instruction (Crim) § 9.508B provides:

1. In this case, evidence was introduced that in preventing an arrestee from escaping, the defendant may have used what is called "deadly force," which is defined as force that was readily capable of causing death or serious bodily injury under the circumstances.

2. Special rules apply in determining whether the defense of justification is available when deadly force was used to prevent an arrestee from escaping. A person in the defendant's position need not desist from efforts to prevent the escape merely because the arrested person persists in his or her efforts to escape.

3. Furthermore, the Commonwealth has the burden of disproving the defense of justification. Thus, you cannot find the defendant guilty:

a. unless the evidence convinces you beyond a reasonable doubt that [he] [she] did not reasonably believe that deadly force was necessary to prevent death or serious bodily injury to [himself] [herself] [other person] ;

[b. and unless the evidence also convinces you beyond a reasonable doubt that [he] [she] did not reasonably believe either that deadly force was necessary to prevent [name of arrested person] from escaping or that [name of arrested person] :

[(1) in attempting to escape had committed or attempted to commit the crime of [crime] ; [or]

(2) possessed a deadly weapon; [or]

(3) had indicated that [he] [she] would endanger human life or inflict serious bodily injury unless [his] [her] custody was secured without delay.]]

Pa. SSJI (Crim) § 9.508B (brackets in original).

Pownall opposed the DAO's motion. He found it "truly unimaginable that the most powerful[ ] elected law enforcement official in Philadelphia County would ignore the law in charging a peace officer, and then try to change the law that the peace officer had relied on in the performance of his duties." Response to Motion in Limine, 12/4/2019 at 3.¹⁰

10 Pownall's accusation about the DAO "ignoring the law" appears to refer to what occurred (or perhaps did not occur) before the Investigating Grand Jury. In a motion he filed two weeks after responding to the DAO's motion in limine, Pownall averred that

[a] careful review of the legal instructions and definitions provided to the Grand Jury indicates that the [DAO] never gave the grand jurors the definitions of Murder (of any degree), Voluntary Manslaughter, or Involuntary Manslaughter. Furthermore, they never instructed or advised the Grand Jury of [Section] 508 which sets forth the law regarding the use of permissible deadly force by a police officer[.]

Motion to Quash Presentment and for Dismissal of All Charges, 12/18/2019 at 2.

On the merits Pownall made several rejoinders. First, he noted the presumption that statutes are constitutional and the high burden for overcoming that presumption. He also criticized the DAO for failing to "cite to a single binding case in support of its position." Id. at 4. Concerning Garner , Pownall stressed it was "a civil case [in which the High Court] held the [Tennessee statute] unconstitutional only ‘as applied.’ " Id. at 7 (citation omitted). Pownall argued the Supreme Court "has never and would never require the state[s] to criminalize the use of deadly force by a peace officer" in any circumstance — a conclusion reached by at least one state supreme court. Id. at 7-8, citing People v. Couch , 436 Mich. 414, 461 N.W.2d 683, 684 (1990) (" Garner was a civil case which made no mention of the officer's criminal responsibility for his ‘unreasonable’ actions. Thus, not only is the [High] Court without authority to require this state to make shooting a nondangerous fleeing felon a crime , it has never even expressed an intent to do so.") (emphasis in original). Finally, Pownall raised due process and ex post facto concerns based on the DAO's resolve to have applied to his case a judicially altered version of Section 508 that was not in effect at the time of the underlying incident. See id. at 4, 105 S.Ct. 1694 (asserting the DAO's "attempt to change the law after the incident runs afoul of due process"); id. at 7, 105 S.Ct. 1694 (claiming the DAO "seeks an ex post facto judicial rule of law to [his] sole detriment").

The trial court, in its opinion, has provided an explanation for what happened next. The court describes how it intended to hold the DAO's motion in limine under advisement because the motion "presented an evidentiary issue which would have to be determined upon hearing the evidence presented at trial." Trial Court Op., 12/30/2019 at 1.¹¹ Then, on December 23, 2019 — only days after Pownall sought to quash the presentment and dismiss all charges based on alleged grand jury irregularities, see supra n.10 — counsel for the parties "made an unscheduled appearance" in the trial court, at which time the DAO requested a favorable ruling on its motion in limine and asserted its intent to appeal if the motion was denied. Id. at 1-2. Faced with that demand, the court "elected to rule on the [DAO's motion] and explain its reasoning[.]" Id. at 2.

11 The subcommittee note to the relevant suggested standard jury instruction supports the trial court's inclination. See Pa. SSJI (Crim) § 9.508B, Subcommittee Note ("the trial judge should select the material for inclusion in the charge depending on the evidence adduced at trial"); see also Pa.R.Crim.P. 647(B) (court need not rule on written requests for jury instructions until "[b]efore closing arguments"). Also worth mentioning is the well-settled principle that the suggested standard jury instructions "are not binding and do not alter the discretion afforded trial courts in crafting jury instructions; rather, as their title suggests, the instructions are guides only." Commonwealth v. Eichinger , 631 Pa. 138, 108 A.3d 821, 845 (2014).

The trial court determined the DAO's motion, "on its own, is insufficient to establish the unconstitutionality of Section 508 [.]" Id. at 3. This statement implies the court believed the DAO needed to present something more to substantiate its underlying Fourth Amendment claim — presumably meaning evidence introduced at trial that would permit Pownall to seek an instruction on the allegedly unconstitutional forcible felony or deadly weapon justifications. Along similar lines, the court expressed concern that rather than launch an actual facial challenge to the statute, the DAO had raised only hypothetical problems in the abstract, untethered to Pownall's case. See id. ("in lieu of arguing that the statute is plainly unconstitutional, the [DAO] suggests that the conjunctions used in that statute gives rise to an unconstitutional interpretation"). And, the court opined that "[i]rrespective of the constitutionality of the statute," the DAO's proposed remedy was "inappropriate." Id. ; see id. ("This [c]ourt has no authority to summarily rewrite portions of a criminal statute, for doing so would serve only to supersede the will of the people as placed into the hands of the legislature.").

Having rejected the DAO's arguments, the trial court proceeded to suggest that any appeal taken "should be quashed." Id. at 4. It first asserted the DAO could not appeal under Pa.R.A.P. 311, which permits the Commonwealth to "appeal as of right from an order that does not end the entire case where [it] certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution." Pa.R.A.P. 311(d). In the trial court's view, its order denying the DAO's motion "in no way handicap[ped] the [DAO]’s ability to present evidence or terminate[d]" its prosecution, because the order was "limited only to the application of a jury instruction pertaining to [Pownall]’s possible affirmative defense." Trial Court Op., 12/30/2019 at 4; see id. (explaining the DAO was not prevented "from presenting its case in chief").

The trial court further stated its order did not implicate the collateral order doctrine under Pa.R.A.P. 313. That rule permits an appeal as of right from a collateral order, which is defined as "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(b). From the court's perspective, the DAO could not demonstrate the order was separable from and collateral to the main cause of action because, "[b]y its very nature, the propriety and necessity of a self-defense instruction, if requested by the [d]efendant, cannot be decided without considering the evidence presented at trial and its relation to the [d]efendant's guilt." Trial Court Op., 12/30/2019 at 5. The trial court issued its ruling and opinion on December 30, 2019. In the afternoon of the following day (New Year's Eve), the DAO filed a petition asking the court to amend its order by adding a certification permitting it to take an interlocutory appeal. See 42 Pa.C.S. § 702(b) (trial court may in its discretion authorize appeal from an interlocutory order where it believes the order "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter"). Exactly twenty minutes later, before the court conceivably could have given the request serious deliberation, the DAO filed a notice of appeal. In its notice, the DAO certified under Rule 311(d) that the court's order terminated or substantially handicapped its prosecution of Pownall; it also invoked the collateral order doctrine under Rule 313(b).

When the court returned after the holiday it promptly issued an order and opinion denying the DAO's request to certify the case for interlocutory appeal under Section 702. The court described how none of the non-binding cases cited by the DAO in its request for certification — all of which were previously included in the DAO's motion in limine — "suggest that the current construction of Section 508 is unconstitutional, or that the statute may be interpreted to justify a peace officer's use of deadly force against a person who poses no threat to human life or safety." Trial Court Op., 1/2/2020 at 2. Thus, seeing "no basis ... to permit an interlocutory appeal" in the absence of a controlling question of law as to which there is a substantial ground for difference of opinion, the court denied the DAO's request. Id. In so doing, it conveyed discontent with the DAO's decision "to wait until weeks before trial to present its motion" challenging Section 508. Id. at 2 n.2; see N.T. 1/6/2020 at 9 (indicating "frustration that this was last minute").

When the DAO's appeal reached the Superior Court, that tribunal issued a rule to show cause directing the DAO to explain why its appeal should not be quashed as interlocutory, citing Pa.R.A.P. 341(a) ("[A]n appeal may be taken as of right from any final order[.]"). The DAO responded, after which the court discharged its rule and referred the matter to the merits panel.

On September 4, 2020, the panel, through a per curiam order, followed the trial court's recommendation and quashed the DAO's appeal. The panel's order explained the appeal was not authorized under Pa.R.A.P. 311(d) or Pa.R.A.P. 313(b). Regarding Rule 311(d), it reasoned the trial court's order did not hinder the DAO's prosecution since it "does not exclude, suppress or preclude" any evidence. Commonwealth v. Pownall , 240 A.3d 905, 2020 WL 5269825 at *1 (Pa. Super. 2020) (per curiam ). As for Rule 313(b), the panel likewise "agree[d] with the trial court's assessment that the necessity and propriety of [Pownall]’s justification defense depends upon consideration of the evidence presented at trial and therefore cannot be severed from the ultimate issue — [Pownall]’s guilt or innocence." Id. Consequently, the panel concluded the DAO had "failed to show that the order is a collateral order[.]" Id.

One other aspect of the panel's per curiam order is notable. Like the trial court, the panel voiced its disapproval of the DAO's request "that th[e c]ourt rewrite the statute, using conjunctive over disjunctive language." Id. at *1 n.1. That remedy, the panel insisted, "would infringe on legislative action and violate the doctrine of separation of powers." Id. , citing PA. CONST. art. V, § 10. As such, the panel advised the DAO its "[r]ecourse lies with the General Assembly." Id.

II. Arguments & Analysis

We granted allowance of appeal to consider whether the Superior Court erred in quashing the DAO's appeal. Although we accepted review of three issues,¹² given our disposition of the first two — which present pure questions of law we review de novo , see Commonwealth v. White , 589 Pa. 642, 910 A.2d 648, 652 n.3 (2006) — we do not reach the final issue, in which the DAO argues the merits of its underlying Fourth Amendment claim.¹³ As well, we elect to consider the first two issues in the order they were addressed by the courts below, i.e. , in reverse.

12 The precise questions we agreed to consider, as framed by the DAO, are:

(1) Did the Superior Court err when it held that it did not have jurisdiction over the Commonwealth's appeal under the collateral order doctrine where the appeal raised only the facial constitutionality of a broadly applicable statute that in no way implicated the question of [Pownall's] guilt or innocence?

(2) Did the Superior Court improperly depart from this Court's precedent by holding that the Commonwealth may invoke its right to an interlocutory appeal under Pa.R.A.P. 311(d) only where it arises from an order that excludes, suppresses, or precludes the Commonwealth's evidence?

(3) Did the Superior Court improperly depart from this Court's precedent and the General Assembly's Rules of Statutory Construction by stating that it could not properly construe a statute to give effect [to] legislative intent?

Commonwealth v. Pownall , ––– Pa. ––––, 252 A.3d 1074 (2021) (per curiam ).

13 Amicus curiae briefs have been filed in support of both parties. We do not discuss them because none addresses the dispositive jurisdictional questions.

A. Appealability Under Rule 311(d)

i. Arguments

In its principal brief, the DAO argues its appeal is proper under Rule 311(d) on the basis that the trial court's order denying its motion in limine "enable[s Pownall] to evade conviction through the use of a defense that violates constitutional rights." DAO's Brief at 15. This is enough to satisfy Rule 311(d), says the DAO, because our decisional law in this arena (which we discuss below) supposedly reduces to three principles: (1) Rule 311(d) is "based on the Commonwealth's burden to prove its case beyond a reasonable doubt"; (2) "the exercise of Rule 311(d) jurisdiction is appropriate when the issue would otherwise evade review"; and (3) the rule is not limited to the suppression, exclusion, or preclusion of Commonwealth evidence. Id. at 19-20. Under this theory, it is irrelevant that the trial court's order has nothing to do with the evidence the DAO may present as part of its case — what matters, in the DAO's view, is that the order affects its burden of proof and involves an issue that might otherwise evade review. See id. at 20 (avowing order affects its burden of proof because "jury instructions based on Section 508(a)(1) would force [it] to disprove three elements, two of which are constitutionally invalid, rather than one constitutional element").

Pownall responds that the language of Rule 311(d) and our decisions interpreting it permit the Commonwealth to take an interlocutory appeal only "where the trial court's order terminates or substantially handicaps its prosecution or has the practical effect of doing so." Pownall's Brief at 29. Here, he submits, the DAO "has failed to explain how the order terminates or substantially handicaps its prosecution[.]" Id. at 28; see id. at 29 (the DAO "has not and cannot establish how the trial court's order refusing to modify the language of a jury instruction that may not even be warranted in this case terminates or substantially handicaps its prosecution"). He observes the only hindrance alleged by the DAO is the possibility "that the trial court's order makes it more difficult to satisfy its burden of proof[.]" Id. at 28. However, citing another of our cases, Pownall asserts we have "already rejected the claim that the Commonwealth may file an interlocutory appeal any time a trial court issues an order that might potentially affect its ability to meet its burden of proof." Id. at 26, citing Commonwealth v. Shearer , 584 Pa. 134, 882 A.2d 462 (2005).

In its reply brief, the DAO appears to partially retreat from its original position. Confronted with the case cited by Pownall, it now concedes Rule 311(d) "does not permit an appeal in every case where the order implicates the Commonwealth's ability to meet its burden of proof." DAO's Reply Brief at 13. Instead, the DAO argues its "interest in proving its case must be balanced with a defendant's right to present his chosen evidence — a right not at issue here." Id. (emphasis omitted). It then reiterates its belief that the trial court's order substantially handicaps its prosecution "by forcing it to disprove multiple justification defenses, two of which unconstitutionally immunize" Pownall. Id.

ii. Analysis

We have previously traced the history of Rule 311(d), which emanates from our decision in Commonwealth v. Bosurgi , 411 Pa. 56, 190 A.2d 304 (1963). In that case, we "found that a pretrial suppression order which terminates or handicaps the prosecution has ‘such an attribute of finality as to justify the grant of the right of appeal to the Commonwealth.’ " Commonwealth v. Cosnek , 575 Pa. 411, 836 A.2d 871, 874 (2003), quoting Bosurgi , 190 A.2d at 308 ; see Commonwealth v. Dugger , 506 Pa. 537, 486 A.2d 382, 386 (1985) (the Commonwealth may "appeal from a [non-]final order when [it] certifies in good faith that the suppression order terminates or substantially handicaps its prosecution"). In time, this "terminates or substantially handicaps" language made its way into Rule 311 via an amendment that became effective on July 6, 1992. See Cosnek , 836 A.2d at 874.

Since then, "this Court has taken a fairly categorical approach to the application of Rule 311(d)." In re Twenty-Fourth Statewide Investigating Grand Jury , 589 Pa. 89, 907 A.2d 505, 515 (2006). For example, "[t]he classic case of an interlocutory order appealable by the Commonwealth as of right ... is one granting a defense motion to suppress evidence." Commonwealth v. Boczkowski , 577 Pa. 421, 846 A.2d 75, 87 (2004) (citation omitted). This category covers all types of orders resulting in the suppression or exclusion of Commonwealth evidence. See Commonwealth v. Gordon , 543 Pa. 513, 673 A.2d 866, 868 (1996) (finding "no essential difference between suppression rulings and rulings on motions in limine" that exclude evidence). And it includes orders that have "the practical effect" of suppressing or excluding evidence. See Commonwealth v. Matis , 551 Pa. 220, 710 A.2d 12, 18-19 (1998) (pretrial order denying the Commonwealth's motion for a continuance to secure the presence of necessary witness was "sufficiently similar to a suppression order to justify an appeal"). At the same time, we have held as a categorical matter that "the Commonwealth's right to interlocutory appeals does not extend to appealing the admission of defense evidence." Cosnek , 836 A.2d at 876 (emphasis added); see id. (allowing Commonwealth to appeal rulings admitting defense evidence would force the accused "to balance his right to a trial without delay with his fundamental right to present evidence"; "[t]he chilling effect of such a choice would give the Commonwealth an unwarranted and unfettered influence over the defense case").

Although in Cosnek we seemed to imply Rule 311(d) is "limit[ed]" to pretrial rulings resulting "in the suppression, preclusion or exclusion of Commonwealth evidence[,]" id. at 877, two years later we clarified that statement in Shearer , supra . There, we explained Cosnek simply "made clear that the application of Rule 311(d) in the suppression context is limited to circumstances in which a pretrial ruling results in the suppression, preclusion or exclusion of Commonwealth evidence." 882 A.2d at 467 (internal quotations and citation omitted; emphasis added). We expounded there are "other types of orders that Cosnek did not address, but which may also be appealable under Rule 311(d)." Id. at 466 n.6 (citations omitted). Indeed, this insight was borne out in several decisions where we held appealable other kinds of orders that did not implicate the loss of evidence. See, e.g. , In re Twenty-Fourth Statewide Investigating Grand Jury , 907 A.2d at 515 ("disclosure orders concerning the subject of a grand jury investigation are a type of order relating to a potential criminal prosecution that should be appealable as of right"); White , 910 A.2d at 659 (order denying Commonwealth's request to invoke its constitutional right to a jury would "hamper the presentation of its case" where the trial court had denied a motion to recuse and the Commonwealth alleged "it will be forced to proceed before a judicial fact-finder who is biased against it");¹⁴ Commonwealth v. Karetny , 583 Pa. 514, 880 A.2d 505, 513 (2005) (order quashing some though not all offenses "quite definitively terminates the prosecution as to the quashed charge" and "imposes a handicap that the prosecution cannot overcome") (internal quotations and citation omitted).

14 The DAO directs us to parts of White that commanded only a plurality of the Court, including a line purporting to overrule Cosnek . See DAO's Brief at 19. Among other things, those parts sought to resurrect the plurality author's dissenting position in Cosnek , which advocated a literal reading of Rule 311(d) that would permit a Commonwealth appeal as of right whenever the Commonwealth certifies in good faith "that a pretrial ruling substantially hampers the case[.]" Cosnek , 836 A.2d at 884 (Eakin, J., dissenting). Because this Court has never adopted that literal view of Rule 311(d), the portion of White cited by the DAO is of little relevance here.

This case concerns a new type of order we have yet to address: one denying a pretrial Commonwealth motion in limine seeking to preclude the trial court's use of a suggested standard jury instruction (or, as the DAO now portrays it, a facial attack to the statute upon which that instruction is based). Because such an order does not concern the suppression of evidence or fit neatly within any of the other discrete categories that we have held are appealable as of right by the Commonwealth, we must rely on the rule's plain language to determine whether the order "terminate[s] or substantially handicap[s]" the DAO's prosecution of Pownall. Pa.R.A.P. 311(d). We conclude it does not.

The DAO rightfully declines to go so far as to say the trial court's order pertaining to jury instructions somehow "terminates" its case, so we can rule that out immediately. What remains is the DAO's sole argument that the order substantially handicaps its prosecution because the order "directly concerns [its] burdens of proof at trial[.]" DAO's Brief at 20; see id. ("jury instructions based on Section 508(a)(1) would force the [DAO] to disprove three elements, two of which are constitutionally invalid, rather than one constitutional element"). On this front, however, we agree with Pownall that the DAO's argument is foreclosed by our decision in Shearer .

In Shearer , the Commonwealth took an interlocutory appeal from "a pretrial order granting [the defendant's] request to compel the minor complainant to submit to a psychological exam for the purpose of aiding the trial court in determining whether [he] was competent to testify." 882 A.2d at 464. The Commonwealth argued its appeal was proper under Rule 311(d) on the ground its case would be "over if the trauma inflicted on the child results in his being unwilling or unable to cooperate or testify, or otherwise results in or contributes to a defense verdict." Id. at 468 (internal quotations, brackets, and citation omitted). We disagreed. Notably, we flatly rejected the Commonwealth's "assertion that it should always be permitted to appeal any pretrial order that has the potential to affect its ability to meet its burden of proof." Id. at 467. In our view, the claimed handicap was founded on nothing more than the Commonwealth's "speculation regarding the potential effects of the order[.]" Id. at 468. That, we held, "simply does not suffice to establish" an order's appealability under Rule 311(d). Id.

This appeal faces the same problem. The only complaint the DAO makes about the trial court's order is that it ostensibly "forc[es the DAO] to disprove multiple justification defenses, two of which unconstitutionally immunize [Pownall] from murder charges arising from the killing of any fleeing forcible felon or armed suspect." DAO's Reply Brief at 13. Even assuming for the moment that the DAO is correct about its constitutional claim, it is impossible to know in this pretrial posture whether the DAO will actually be forced to disprove anything. That could only theoretically occur if, at trial, some evidence is produced that would implicate Pownall's ability to invoke the peace officer justification defense in the first place. See generally Commonwealth v. Capitolo , 508 Pa. 372, 498 A.2d 806, 809 (1985) (defendant entitled to instruction on justification as defense to crime charged only where evidence is offered to support it).

In fact, though, such evidence alone would not be enough. To trigger the DAO's hypothetical concerns, there would also have to be specific evidence that would permit the trial court, if it so chose in its discretion, to use the suggested standard jury instruction on the forcible felony or deadly weapon justifications exactly as written. And, even then, the DAO still might not have to disprove what it calls an "unconstitutional defense"¹⁵ depending on the evidence that is introduced. DAO's Brief at 10. This is because the DAO alleges only that in some factual circumstances the use of the forcible felony or deadly weapon justifications could — though not always, and maybe not even in this case — result in "unconstitutional situations." Id. at 21; see DAO's Reply Brief at 18 (conceding in some cases "a suspect's prior felony can [ ] be grounds for deadly force"); id. at 21 (admitting if a suspect possessed a deadly weapon that could be used to cause death or serious bodily injury "there would be no constitutional problem").

15 We observe this characterization, among others, from the DAO's brief appears to refute ADA Tripp's assertion that the DAO's motion was not intended "to bar [Pownall] from a defense[.]" N.T. 11/25/2019 at 8; see id. ("I don't think it impacts the defense.").

As we see it, the DAO's asserted substantial handicap is constructed on layer after layer of speculation and "what ifs." Rule 311(d) requires more. As discussed, in every case in which we have permitted a Commonwealth appeal as of right, the order appealed from had a tangible or practical effect on the Commonwealth's actual ability to prosecute its case.¹⁶ In contrast, a challenge to a suggested standard jury instruction — the use of which is left entirely to the discretion of the trial court, and would be appropriate only if supported by evidence adduced at trial in any event — cannot reasonably be said to handicap the prosecution in any way. Indeed, such an issue does not truly ripen until the Commonwealth has already rested its case and the evidentiary record has closed. Thus, we decline to recognize a new categorical Commonwealth appeal as of right under Rule 311(d) whenever the Commonwealth seeks to challenge the use of a jury instruction, even if such attack is constitutional in nature.

16 As the review of our cases regarding Rule 311(d) makes clear, we have never held the rule is satisfied merely when an order might "enable [a] defendant to evade conviction" or alter the Commonwealth's "burden to prove its case beyond a reasonable doubt." DAO's Brief at 15, 19. Similarly, there is no support for the DAO's position that Rule 311(d) appeals are subject to a balancing test and that a defendant must identify some interest that would weigh against the Commonwealth's claimed need to appeal. See DAO's Reply Brief at 13. Nor have we ever said Rule 311(d) jurisdiction is appropriate solely when the issue might "otherwise evade review." DAO's Brief at 20.

B. Appealability Under Rule 313(b)

i. Arguments

We now turn to the collateral order doctrine. The doctrine "permits an appeal as of right from a non-final collateral order if the order satisfies the three requirements set forth in Rule 313(b) — separability, importance, and irreparability." Shearer v. Hafer , 644 Pa. 571, 177 A.3d 850, 858 (2018) (" Hafer "). Here, the DAO argues it has met all three prongs. Starting with the second, it tersely proclaims that "whether Pennsylvania law permits police officers to take a life in violation of the Fourth Amendment is, without a doubt, an issue too important to be denied review." DAO's Brief at 11. As for the third requirement, the DAO submits its claim would be irreparably lost if review were postponed until final judgment, because if Pownall "is acquitted, the [DAO] may not appeal"; if he "is convicted, the [DAO] likewise could not appeal because it would not be an aggrieved party." Id. at 12. It therefore believes "an interlocutory appeal is the only possible way for the constitutionality of Section 508(a)(1) to ever receive appellate review." Id.

With respect to separability, the first prong, the DAO forthrightly "acknowledges that the trial court's instructions on [Pownall]’s justification defense will likely impact the outcome of trial." Id. at 14. Nevertheless, it insists that just because "the outcome of trial may hinge on these questions does not mean they concern the issue of guilt itself." Id. The DAO takes the position that "while [Pownall]’s conviction or acquittal might turn on the outcome of this appeal, the constitutionality of Section 508(a)(1) does not turn on, or ever consider, whether or not [Pownall] is guilty." Id. ; see id. at 14-15 (characterizing its underlying issue as one of mere "statutory construction that is separable from and agnostic to [Pownall]’s guilt or innocence").

For his part, Pownall claims the trial court's order "did not satisfy any of the prongs required by Rule 313(b), let alone all of them[.]" Pownall's Brief at 14 (emphasis omitted). Presenting his answers in the same order the DAO approached the rule's tripartite test, Pownall argues the DAO's "effort to satisfy the second requirement of [Rule] 313(b) by reframing the issue as one involving application of the Fourth Amendment's protections against unlawful seizure must be rejected" because "this was not the issue [it] presented to the trial court." Id. at 19. Instead, Pownall says, the DAO's argument in the trial court was "that the conjunctive language used in [ Section] 508 gave rise to an unconstitutional interpretation of the statute that could be remedied by changing the wording of the statute" — not that the statute and its attendant jury instruction are facially unconstitutional under the Fourth Amendment. Id. Next, Pownall deems as "simply untrue" the DAO's allegation that an interlocutory appeal is the only possible way for the constitutionality of Section 508 to receive appellate review. Id. at 20. He offers two possible alternatives to an interlocutory appeal that he believes would allow for review of Section 508 ’s constitutionality: a mandamus action aimed at the trial court related to its use of the suggested standard jury instruction, and a civil damages action under 42 U.S.C. § 1983, which, he remarks, is "precisely what happened in" Garner . Id. at 21.

Pertaining to Rule 313(b) ’s separability requirement, Pownall stresses the main issue in the case is whether he "committed murder or whether his use of deadly force was legally justified under the circumstances — which would provide a complete defense to the charge of murder." Id. at 15. Given that, he believes the trial court's order "thoroughly implicates the merits of the underlying defense." Id. In this regard, Pownall agrees with the lower courts that "the question of whether [ Section] 508 even applie[s] to" his case cannot "be considered without an analysis of the underlying facts and evidence in the case." Id. at 18.

Curiously, the DAO responds that " Section 508 ’s applicability to [Pownall] is not the subject of this appeal." DAO's Reply Brief at 6. It insists no "factual analysis is required here, where only the legality of the justification generally, not whether it can be asserted by [Pownall], is at issue." Id. at 7; see id. at n.1 ("Neither [Pownall]’s ability to claim self-defense nor the evidence he may present to do so are at issue here."). The DAO also disputes the relevance of the way it presented its claim below. In its view, "an argument that Section 508 gives rise to an unconstitutional interpretation of the statute is one and the same with an assertion that the statute is unconstitutional." Id. at 8 (internal quotations omitted). Finally, the DAO disagrees with Pownall that mandamus or a civil suit would "provide an avenue for review of the claim at issue now." Id. at 12.

ii. Analysis

We "construe the collateral order doctrine narrowly, and insist that each one of its three prongs be clearly present before collateral appellate review is allowed." Hafer , 177 A.3d at 858 (internal quotations and citation omitted). This approach avoids undue corrosion of the final order rule and prevents delay resulting from piecemeal review of trial court decisions. See id. It also recognizes a party "may seek allowance of appeal from an interlocutory order by permission" under Pa.R.A.P. 312, and that this "process would be undermined by an overly permissive interpretation of Rule 313." Id. ¹⁷ As regards the doctrine's three prongs, we need only address the first concerning separability. We have held an order is separable from the main cause of action in a case only "if it can be resolved without an analysis of the merits of the underlying dispute." Commonwealth v. Williams , 624 Pa. 405, 86 A.3d 771, 781 (2014). "Stated differently, an order is separable if it is ‘entirely distinct’ from the underlying issue in the case.’ " Commonwealth v. Blystone , 632 Pa. 260, 119 A.3d 306, 312 (2015) (citation omitted). Although some slight interrelatedness between the merits and the issue to be raised on interlocutory appeal is tolerable, "the claim must nevertheless be conceptually distinct from the merits[.]" Id. (internal quotations and citation omitted). When it comes to criminal trials, the underlying dispute is whether the defendant "committed the crimes charged[.]" Shearer , 882 A.2d at 469. Thus, to assess separability in this context, we ask whether "resolution of th[e] issue can be achieved independent from an analysis of whether [the defendant] is guilty[.]" Commonwealth v. Kennedy , 583 Pa. 208, 876 A.2d 939, 943 (2005) ; see Shearer , 882 A.2d at 469 (relevant inquiry is whether issue can be resolved without considering defendant's "potential guilt or innocence of the crimes charge[d]").

17 Earlier, we noted the trial court declined to authorize an immediate permissive appeal. We add that the DAO could have pursued review of that decision, but nothing in the record suggests it did. See Pa.R.A.P. 1311, Note (explaining that at the time relevant here, "an order refusing to certify an order as meeting the requirements of 42 Pa.C.S. § 702(b) was reviewed by filing a petition for review under Chapter 15"). This available but neglected procedural avenue refutes the dissent's assertion that "the only circumstance in which an appellate court 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." Op. at –––– – ––––.

We conclude it is impossible to separate the DAO's claim — whether construed as a challenge to the suggested standard jury instruction, or as a facial or as-applied attack on the statute upon which the instruction is based — from the merits of the criminal case, i.e. , Pownall's potential guilt or innocence of the crimes charged. The reason for this is simple: a ruling in the DAO's favor on its constitutional issue would, quite literally, result in an after-the-fact judicial alteration of the substantive criminal law with which Pownall has been charged. As it now stands, it is not a crime when, while making an arrest, a peace officer uses deadly force under any of the four situations presented in Section 508. The DAO seeks to have the judiciary upend this status quo, by eliminating two of the four distinct grounds for justification crafted by the legislature. Doing as the DAO asks, however, would essentially criminalize conduct the General Assembly has deemed non-criminal. The DAO basically recognizes as much, but still insists there is a distinction between the terms "guilt" or "innocence" and the words "conviction" or "acquittal." See DAO's Brief at 14 (admitting Pownall's "conviction or acquittal might turn on the outcome of this appeal" but suggesting its issue "does not turn on, or even consider, whether or not [he] is guilty"). The argument is nonsensical, and we reject it.

The waffling nature of the DAO's claim does not alter our conclusion. The DAO's motion in limine was styled as an attack on the trial court's potential use of Suggested Standard Jury Instruction (Crim) § 9.508B. If that was the extent of the DAO's claim, such issue would fail to be separable from the merits because, by its very nature, a jury instruction must be based on evidence introduced at trial. See supra n.11.

Alternatively, if, as the DAO now purports, its issue is "only whether Section 508(a)(1) is facially unconstitutional[,]" DAO's Reply Brief at 1, its claim still would not be separable from the merits. "A statute is facially unconstitutional only where no set of circumstances exist[s] under which the statute would be valid." Clifton v. Allegheny Cty. , 600 Pa. 662, 969 A.2d 1197, 1222 (2009) (citation omitted). "In determining whether a statute is facially invalid, courts do not look beyond the statute's explicit requirements or speculate about hypothetical or imaginary cases." Germantown Cab Co. v. Phila. Parking Auth. , 651 Pa. 604, 206 A.3d 1030, 1041 (2019), citing Wash. State Grange v. Wash. State Republican Party , 552 U.S. 442, 449-50, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) ; see U.S. v. Raines , 362 U.S. 17, 22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960) ("The delicate power of pronouncing [a statute] unconstitutional is not to be exercised with reference to hypothetical cases thus imagined."). As these standards plainly reflect, "facial challenges are generally disfavored." Clifton , 969 A.2d at 1223 n.37. They are also "the most difficult challenge to mount successfully[.]" U.S. v. Salerno , 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).

As noted, the DAO concedes there are some circumstances under which even the forcible felony and deadly weapon justifications could be applied constitutionally. Not only do these concessions essentially defeat the DAO's claimed facial challenge, see, e.g. , Schall v. Martin , 467 U.S. 253, 264, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984) (a facial challenge fails where "at least some" constitutional applications exist), they highlight the need here — even if we were willing to accept the DAO's most recent characterization of its claim as a facial challenge — to assess the evidence in the underlying case, for it's entirely possible the facts as ultimately developed may not give rise to the type of "unconstitutional situation" feared by the DAO. DAO's Brief at 21. See, e.g. , Scott v. Harris , 550 U.S. 372, 378, 382, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (since " Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer's actions constitute ‘deadly force[,]’ " the "first step in assessing the constitutionality of [an officer]’s actions is to determine the relevant facts"); Graham v. Connor , 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ("proper application [of the reasonableness standard applied in Garner ] requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight").¹⁸ Finally, if, as we believe, the true nature of the DAO's claim is an as-applied challenge, then its claim fails for precisely the same reason. See, e.g. , Commonwealth v. Hairston , ––– Pa. ––––, 249 A.3d 1046, 1054 n.5 (2021), cert. denied sub nom. , ––– U.S. ––––, 142 S.Ct. 598, 211 L.Ed.2d 371 (2021) ("an as-applied challenge to the constitutionality of a statute [asserts] that the statute, even though it may generally operate constitutionally, is unconstitutional in a defendant's particular circumstances"). We find it appropriate to construe the DAO's claim in this manner for two reasons. First, the DAO did not raise a facial constitutional challenge until it came before this Court. See DAO's Reply Brief at 1 (asserting for the first time in this litigation that Section 508 "is facially unconstitutional"). Second, this treatment is most consistent with the High Court's Fourth Amendment jurisprudence in this arena.

18 The dissent accepts the DAO's latest framing of its issue as a pure legal question divorced from the facts of Pownall's case. See, e.g. , Op. at ––––("This appeal poses the abstract question of whether a statute is unconstitutional."). From that vantage point, the dissent argues our decision herein creates tension with other cases from this Court and the United States Supreme Court which supposedly "held that constitutional issues nearly identical to the merits question in today's case are reviewable ... under the collateral order doctrine." Id. at ––––. We respectfully disagree. The appeals in the civil cases cited by the dissent were taken following motions for summary judgment and, as the dissent admits, 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." Id. at ––––. See Plumhoff v. Rickard , 572 U.S. 765, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014) (qualified immunity); Brooks v. Ewing Cole, Inc. , ––– Pa. ––––, 259 A.3d 359 (2021) (sovereign immunity); Pridgen v. Parker Hannifin Corp ., 588 Pa. 405, 905 A.2d 422 (2006) (applicability of federal statute of repose for product liability claims against aircraft manufacturers under the General Aviation Revitalization Act, 49 U.S.C. § 40101 ). Such orders are qualitatively different from what we have in this criminal case, in that they "conclusively determine whether the defendant is entitled to immunity from suit[,]" which "is both important and completely separate from the merits of the action[.]" Plumhoff , 572 U.S. at 772, 134 S.Ct. 2012 (emphasis added). As discussed, the same is not true of the present challenge, rendering these cases easily distinguishable. And, since the dissent directs us to no other authority to support its proposed expansion of "the collateral order doctrine's reach [to] any Commonwealth appeal wherein it questions either the meaning of or the constitutional validity of a statutory defense[,]" Op. at ––––, we decline to adopt such a rule, as it would undermine the narrow approach favored by this Court and the United States Supreme Court with respect to collateral orders. See, e.g. , Hafer , 177 A.3d at 858 ("while our Court has diverged from the federal approach in some regards, we nonetheless construe the collateral order doctrine narrowly"); Dig. Equip. Corp. v. Desktop Direct, Inc. , 511 U.S. 863, 868, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) ("the ‘narrow’ exception should stay that way and never be allowed to swallow the general rule").

Beginning with the latter point, we reiterate the High Court's instruction that in use-of-force cases the "first step in assessing the constitutionality of [an officer]’s actions is to determine the relevant facts." Scott , 550 U.S. at 378, 127 S.Ct. 1769. This directive makes sense because "the ‘reasonableness’ inquiry in [such] case[s] is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham , 490 U.S. at 397, 109 S.Ct. 1865 ; see Scott , 550 U.S. at 383, 127 S.Ct. 1769 ("in the end we must still slosh our way through the factbound morass of ‘reasonableness’ "). It is also exactly how the Court proceeded in Garner : it applied the Fourth Amendment's reasonableness test "to the use of a particular type of force in a particular situation" and held the officer's use of deadly force unjustified under those discrete facts. Scott , 550 U.S. at 382, 127 S.Ct. 1769. But, importantly, the Court refused to declare even Tennessee's egregious statute facially unconstitutional. Instead, it explained that despite the statute's unconstitutional authorization of the use of deadly force, there remained the possibility that in other cases the facts might reveal the officer nevertheless possessed "probable cause to believe that the suspect pose[d] a threat of serious physical harm, either to the officers or to others[.]" Garner , 471 U.S. at 11, 105 S.Ct. 1694. "As applied in such circumstances," the Court held, the "Tennessee statute would pass constitutional muster." Id. at 12, 105 S.Ct. 1694.

This is instructive. Although the DAO and the dissent steadfastly maintain the facts are entirely irrelevant to our analysis, see, e.g. , DAO's Reply Brief at 7 (arguing no "factual analysis is required here"); Op. at –––– (contending this "is not a case where further development of the record would enrich our assessment"), the relevant law suggests the exact opposite.¹⁹ Our careful review of the High Court's Fourth Amendment jurisprudence — including Garner , the decision upon which the DAO's claim is grounded — reveals that the facts matter a great deal when confronting a use-of-force claim. So, in the absence of a clear intent on behalf of the DAO to raise a pure facial challenge from the start, we believe the proper course is to treat the claim in the same way such claims were treated in Garner and its progeny.²⁰

19 Neither the DAO nor the dissent directs us to any case, from any jurisdiction, in which a court entertained a facial Fourth Amendment challenge to a statute authorizing the use of force. Although the High Court has indicated "facial challenges under the Fourth Amendment are not categorically barred" in some respects, City of Los Angeles, Calif. v. Patel , 576 U.S. 409, 415, 135 S.Ct. 2443, 192 L.Ed.2d 435 (2015), the result in Garner , coupled with the Court's repeated admonition in cases like Graham and Scott that such claims are inherently fact bound, gives us pause and raises a serious question about whether a facial claim is even viable in this context. But we need not resolve this novel and prickly issue today.

20 It is worth noting both the DAO and the dissent fail to identify any case in which a court permitted a claim alleging a statute was facially unconstitutional to proceed on appeal by way of the collateral order doctrine. Our own research has likewise failed to reveal any. This is perhaps unsurprising since the Declaratory Judgments Act, 42 Pa.C.S. §§ 7531 -7541, typically serves as the vehicle for making such challenges in the civil context, and in the criminal context, such claims ordinarily are raised by defendants, and thus would not be irreparably lost if postponed until after trial. This again highlights the atypical nature of this case, wherein the DAO is the party that purports to raise a facial challenge to a statute that the Commonwealth typically has a duty to defend. Given the peculiarities of the situation, it may be appropriate for the relevant Rules Committees to study this issue further, and to consider whether this Court should adopt some mechanism that would permit the Commonwealth the ability to contest more easily a statute's constitutionality. See Mohawk Indus., Inc. v. Carpenter , 558 U.S. 100, 113, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) ("[R]ulemaking, ‘not expansion by court decision,’ [is] the preferred means for determining whether and when prejudgment orders should be immediately appealable.") (citation omitted).

This brings us to the second and final point. As we have said, the first time the DAO expressed an explicit intent to launch a facial challenge to Section 508 was before this Court. This late-in-the-game substitution renders the DAO's current labeling of its claim dubious. Fortunately, "a litigant's characterization of an argument as being facial or ‘as applied’ is not controlling." Warner ex rel. Warner v. Lawrence , 900 A.2d 980, 989 n.10 (Pa. Cmwlth. Ct. 2006) (en banc ). For the reasons we have discussed at length, we find the DAO's claim is best construed as an as-applied challenge, which necessarily requires consideration of "a defendant's particular circumstances." Hairston , 249 A.3d at 1054 n.5. As-applied constitutional challenges of this nature cannot surmount the collateral order doctrine's separability prong.

Because the DAO has failed to clearly prove its issue in this interlocutory appeal is entirely distinct from Pownall's potential guilt or innocence of the crimes charged, and in accordance with our longstanding practice of construing the collateral doctrine order narrowly, we conclude the DAO's appeal is not authorized by Rule 313(b).²¹ III. Conclusion

21 Contrary to the dissent's view, we do not hold "the Commonwealth will never be able to secure appellate review of a trial court's denial of a challenge implicating a statutory defense." Op. at –––– (emphasis in original); see id. at –––– – –––– (suggesting the DAO's constitutional question "will remain unanswered" — "perhaps indefinitely" — "if we do not assess it here and now"). We merely resolve the limited jurisdictional question before us by holding the Commonwealth may not take an interlocutory appeal from an order denying a pre-trial motion regarding the use of potential jury instructions. Although there may be other ways to raise such a constitutional challenge, we have no occasion to consider those methods here given the DAO's chosen litigation strategy.

We recognize the DAO's fervent desire to put the troubling and recurring issue of police shootings in the spotlight. We agree the issue warrants serious examination, by every facet of government as well as those outside of it. But the proper forum for that debate is not an interlocutory appeal of a pretrial motion challenging a suggested jury instruction that might not even be applicable. Accordingly, we affirm the Superior Court's order quashing the DAO's unauthorized interlocutory appeal.

Chief Justice Baer and Justices Todd and Mundy join the opinion

Justice Dougherty files a concurring opinion.

Justice Wecht files a dissenting opinion in which Justice Donohue joins.

Former Justice Saylor did not participate in the consideration or decision of this matter.

JUSTICE DOUGHERTY, concurring

A special concurrence is unusual.^{1 1} But so is the Philadelphia District Attorney's Office's ("DAO") prosecution in this case. That is why I feel compelled to write separately, unconstrained by majority authorship, to pull back the curtain on some of the concerning irregularities that lurk just beneath the surface of this appeal.

1 Fortunately, I find myself in good company in this regard. See In re Adoption of M.R.D. , 636 Pa. 509, 145 A.3d 1117, 1133 n.1 (2016) (Todd, J., specially concurring) ("As members of this Court have previously noted, special concurrences are ‘somewhat unusual, but not without precedent.’ "), quoting Commonwealth v. King , 618 Pa. 405, 57 A.3d 607, 633 n.1 (2012) (Saylor, J., specially concurring); accord In re Bruno , 627 Pa. 505, 101 A.3d 635, 689 n.1 (2014) (Castille, C.J., specially concurring); see also Wheeling Steel Corp. v. Glander , 337 U.S. 562, 576, 69 S.Ct. 1291, 93 L.Ed. 1544 (1949) (Jackson, J., specially concurring) ("It cannot be suggested that in cases where the author is the mere instrument of the Court he must forego expression of his own convictions.").

1 See Commonwealth v. Gibbons , 567 Pa. 24, 784 A.2d 776, 778 (2001) (explaining that double jeopardy bars a Commonwealth appeal from a judgment of acquittal).

First, though, I must comment on an aspect of this case that regrettably is not so unusual: it involves yet another young life lost — again in my own hometown of Philadelphia — following an interaction with the police. Without expressing any view whatsoever about this particular case, I simply remark that what allegedly occurred here has become a far-too-familiar story, in this Commonwealth and beyond it. See Police Shootings Database , WASH. POST, https://wapo.st/3495bVY (last visited July 19, 2022) (reporting 156 people shot and killed by police in Pennsylvania since 2015, and more than 7,000 nationally). These tragic recurrences come at a steep and potentially irreversible cost. See, e.g. , Amicus ACLU of Pennsylvania's Brief at 10-11 ("the continuing use of deadly force by police ... erodes the ability of communities to trust the police and their willingness to work with the police to address crime"); Amicus Current and Former Elected Prosecutors’ Brief at 3 ("without accountability, there can be no public trust between law enforcement and the community, and especially, communities of color"); id. at 16 ("trust in government ... is integral to promoting and preserving public safety"). Frankly, we can no longer afford to turn a blind eye to the problem; it "warrants serious examination, by every facet of government as well as those outside of it." Majority Opinion at 34.^{2 2} At the same time, we must not lose sight of the fact that "[o]ur communities rely on locally elected prosecutors ... to ensure that their criminal legal system treats everyone fairly and equally, and follows the dictates of the Constitution." Amicus Current and Former Elected Prosecutors’ Brief at 22. This includes police officers charged with a crime. Yet, here, I cannot say the DAO has treated Pownall fairly and equally. At least three aspects of the DAO's prosecution give me serious pause: (1) its failure to provide the investigating grand jury with all relevant legal definitions; (2) its successful attempt to deny Pownall a preliminary hearing; and (3) its relentless but unsuccessful attempt to change the peace officer justification law prior to Pownall's trial. I examine each in turn.

2 I observe a bill was recently introduced in the legislature that seeks to amend the peace officer justification defense to allow the use of deadly force during an arrest only if the officer reasonably believes such force is necessary to "protect himself or another from imminent death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat." H.B. No. 2556, P.N. 3062 (Apr. 27, 2022).

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 , 563 Pa. 218, 759 A.2d 372, 373 n. 1 (2000).

(1) The Investigating Grand Jury Instructions

County investigating grand juries, like all other investigating grand juries (i.e. , multi-county and statewide), are a pure creature of statute. To summon an investigating grand jury a prosecutor must allege in an application to the president judge in the county that convening a grand jury "is necessary because of the existence of criminal activity within the county which can best be fully investigated using the investigative resources of the grand jury." 42 Pa.C.S. § 4543(b).^{3 3} If the application is approved and a grand jury is empaneled, the prosecutor may submit to it an investigation after notifying the supervising judge and alleging "one or more of the investigative resources of the grand jury are required in order to adequately investigate the matter." 42 Pa.C.S. § 4550(a).

3 The "investigative resources of the grand jury" are defined as:

The power to compel the attendance of investigating witnesses; the power to compel the testimony of investigating witnesses under oath; the power to take investigating testimony from witnesses who have been granted immunity; the power to require the production of documents, records and other evidence; the power to obtain the initiation of civil and criminal contempt proceedings; and every investigative power of any grand jury of the Commonwealth.

42 Pa.C.S. § 4542.

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).

Once an investigation is in the grand jury's hands it has "the power to inquire into offenses against the criminal laws of the Commonwealth alleged to have been committed within the county ... in which it is summoned." 42 Pa.C.S. § 4548(a). If it "appears" to the grand jury a criminal offense has been committed, it may "issue a presentment[.]" Id. at § 4548(b). A presentment does not initiate a criminal prosecution; it is "[a] written formal recommendation by an investigating grand jury that specific persons be charged with specific crimes." 42 Pa.C.S. § 4542. The process for issuing a presentment is spelled out in Section 4551 of the Investigating Grand Jury Act:

Should the investigating grand jury determine that upon the basis of evidence presented to it a presentment should be returned against an individual, the grand jury shall direct the attorney for the Commonwealth to prepare a presentment which shall be submitted to the investigating grand jury for a vote. Should a majority of the full grand jury vote approval for the presentment it shall then be submitted to the supervising judge. The supervising judge shall examine the presentment, and if it is within the authority of the investigating grand jury and is otherwise in accordance with the provisions of this subchapter, the supervising judge shall issue an order accepting the presentment.

Otherwise, the supervising judge shall refuse to accept the presentment and shall order that the investigating grand jury take further appropriate action.

42 Pa.C.S. § 4551(a).

Significantly, the Act excepts "the power to indict" from the otherwise expansive powers bestowed upon an investigating grand jury. 42 Pa.C.S. § 4548(c). As such, when "the Commonwealth proceeds on the basis of a presentment," it must then file a criminal complaint, after which "the defendant shall be entitled to a preliminary hearing as in other criminal proceedings." 42 Pa.C.S. § 4551(e).

Here, the DAO chose to submit its investigation of Pownall to the Twenty-Ninth Philadelphia County Investigating Grand Jury. I generally discern nothing wrong with that approach, so long as the DAO truly believed one or more of the investigative resources of the grand jury was required to adequately investigate the case. See 42 Pa.C.S. § 4550(a). Rather, it is the manner in which the DAO seems to have directed the grand jury's investigation that appears troubling.

On December 11, 2019, the supervising judge directed the DAO to turn over to Pownall the legal instructions given to the grand jury, as well as transcripts of those proceedings. Based on the materials produced, Pownall filed a motion to quash the presentment only days later. His motion alleged the DAO

intentionally failed to notify the [g]rand [j]ury of the [peace officer justification defense under 18 Pa.C.S. § 508 ], well knowing that to do so would have prevented the grand jury from recommending criminal charges. However, the misconduct did not end there. The prosecution then asked the grand jury to return a presentment on homicide charges which included murder, voluntary manslaughter, and involuntary manslaughter, without defining any of those charges. This grand jury had no idea that they would have [ ] to have found from the evidence that [ ] Pownall acted with premeditation for murder of the first degree, malice for any form of murder, a mistaken belief in self defense for voluntary manslaughter, or criminal recklessness for involuntary manslaughter. This may be [the] first time in the history of Pennsylvania jurisprudence that a District Attorney requested a grand jury to authorize criminal charges without explaining the law that applies to those charges because to do so would have prevented a finding of probable cause.

Memorandum of Law in Support of Motion to Quash Presentment and for Dismissal of All Charges, 12/18/2019 at 6 (emphasis in original); see id. at 11 ("The [DAO] had a legal and moral obligation to inform the grand jury of the law so that a fair and just probable cause determination could be made.").

In my view, if these allegations are true, as they appear to be,^{4 4} it implicates a potential abuse of the grand jury process. Nearly a century ago this Court stated what should be apparent: "The grand jury must know what crimes it is to investigate." Petition of McNair , 324 Pa. 48, 187 A. 498, 505 (1936). Yet, the DAO appears to have obtained a presentment in this case without providing the grand jury the definition for the crime that was actually charged in the subsequent complaint (third-degree murder), or the possible justification for that criminal offense. See generally Commonwealth v. French , 531 Pa. 42, 611 A.2d 175, 178 (1992) ("Whether an arresting officer's use of [deadly] force is unlawful is determined with reference to [Section] 508 of the Crimes Code[.]").^{5 5} Moreover, by failing to provide the grand jury with all relevant legal instructions, it also necessarily raises questions about the completeness of the factual record the DAO presented to the grand jury. In short, by depriving the grand jury of the full panoply of relevant legal definitions, the DAO has exposed the grand jury's resulting presentment to legitimate attack.

4 The record presently before us includes the limited and partially redacted materials the DAO disclosed to Pownall at the supervising judge's direction. Those materials were accompanied by a letter which refers to "[a]ttached [d]efinitions" that were "distributed to [the g]rand [j]urors on August 23, 2018[.]" DAO's Letter, 12/12/2019 at 1. This document says nothing of Section 508 ; further, it supports Pownall's position the DAO provided a definition only for "criminal homicide" generally under 18 Pa.C.S. § 2501, without defining any of the types of homicide set forth in 18 Pa.C.S. § 2502 (murder), § 2503 (voluntary manslaughter), or § 2504 (involuntary manslaughter). It stated:

Criminal Homicide, 18 Pa.C.S. § 2501

To find that this charge has been established, you must find probable cause that:

Ryan Pownall intentionally, knowingly, recklessly or negligently caused the death of David Jones.

A killing is considered criminal homicide if someone intentionally, knowingly, recklessly or negligently causes the death of another human being. Criminal homicide includes murder, voluntary murder, voluntary manslaughter, or involuntary manslaughter.

Definitions Provided to Grand Jury, 8/23/2018. This contrasts with the crimes alleged by the DAO when it submitted the investigation to the grand jury four months earlier. At that time, the transcripts reveal, the DAO announced it was specifically recommending murder under Section 2502, without mentioning criminal homicide under Section 2501.

4 See the discussion of Plumhoff v. Rickard , 572 U.S. 765, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014), infra .

5 We have explained the structure of Chapter 25 of the Crimes Code "create[s] one major homicide offense, that of criminal homicide, and [ ] the several types of homicide ... are constituent subsidiary offenses within the single major offense." Commonwealth v. Polimeni , 474 Pa. 430, 378 A.2d 1189, 1194 (1977) (plurality). This arguably undermines Pownall's claim the DAO was required to furnish the grand jury with the definitions for all "lesser included offenses of the overall crime of criminal homicide." Id. at 1194-95. Still, there is logical force to Pownall's argument since "[t]he differences between the classifications [of homicide] are largely a function of the state of mind of the perpetrator." Id. at 1195. By ultimately seeking a recommendation only for criminal homicide generally, the DAO avoided the need to present any evidence concerning Pownall's mental state. Even if this is legally permissible, when coupled with the other strategies employed by the DAO discussed below, it nevertheless raises genuine fairness concerns.

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. , ––– Pa. ––––, 259 A.3d 359, 370 (2021).

In fact, given the circumstances, the presentment in this case is perhaps best characterized as a "foul blow." We recently took note of the hostility an appellate court in New York expressed towards grand jury presentments, before the advent there of statutory procedural safeguards:

"A presentment is a foul blow. It wins the importance of a judicial document; yet it lacks its principal attributes — the right to answer and to appeal. It accuses but furnishes no forum for a denial. No one knows upon what evidence the findings are based. An indictment may be challenged — even defeated. The presentment is immune. It is like the ‘hit and run’ motorist. Before application can be made to suppress it, it is the subject of public gossip. The damage is done. The injury it may unjustly inflict may never be healed."

In re Fortieth Statewide Investigating Grand Jury , 647 Pa. 489, 190 A.3d 560, 570 (2018), quoting People v. McCabe , 148 Misc. 330, 266 N.Y.S. 363, 367 (N.Y. Sup. Ct. 1933). Historically, we have not taken the same dim view of grand jury presentments. Despite being "cognizant that the substantial powers exercised by investigating grand juries, as well as the secrecy in which the proceedings are conducted, yields the potential for abuses[,]" we believed close supervision by the judiciary and "adherence to the statutory framework is adequate to assure regularity in the proceedings." In re Twenty-Fourth Statewide Investigating Grand Jury , 589 Pa. 89, 907 A.2d 505, 512 (2006) (internal footnote omitted). I fear this case indicates otherwise.

The grand jury's presentment epitomizes my concern. As discussed, the grand jury approved it without full knowledge of the pertinent law. That is disconcerting enough. Equally disturbing, though, is the presentment itself. It is thirteen pages long and includes an introduction, closing, and seventy-four purported factual findings. There is no discussion of the law, except for the recommended charges (which, again, do not include third-degree murder) listed on the final page. Also significant is the way the prosecution used the presentment. The DAO successfully moved to unseal it and then, after charging Pownall, directed the press to its purported factual findings. Not surprisingly, multiple news sources reported on the presentment's one-sided account, with some even making the full document available online for anyone and everyone to read.^{6 6}

6 Ordinarily, I would provide these links for the benefit of the reader. I decline to do so here because it would only further erode Pownall's ability to receive a fair trial. In any event, I observe the DAO does not contest this extensive media coverage exists. See DAO's Brief on Defense's Motion for Change of Venire, 5/21/2019 at 3 (admitting at least "a dozen articles reference the presentment, DAO press conference, or quote a DAO spokesperson"); id. at 5 (tallying "105 local articles" related to Pownall's case).

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").

It is important to recall the Investigating Grand Jury Act defines a presentment merely as "[a] written formal recommendation ... that specific persons be charged with specific crimes." 42 Pa.C.S. § 4542. Nothing in this definition appears to endorse the type of gratuitous narrative provided in this case. Of course, it is anticipated that grand jury presentments will be somewhat biased; this is the unavoidable result of the Act requiring "the attorney for the Commonwealth" to prepare the presentment and submit it to the grand jury for a vote. 42 Pa.C.S. § 4551(a). If a grand jury is inclined to recommend charges against a person, the attorney for the Commonwealth tasked with drafting the presentment naturally will tend to favor those facts and theories most helpful to its future prosecution. Nevertheless, before endorsing the Commonwealth's portrayal of a case, the grand jury must at a minimum be advised of the full breadth of the applicable law. That deficiency here renders the entire presentment suspect.

(2) The Preliminary Hearing Bypass Motion

That the DAO provided the grand jury with a less-than-complete picture of the applicable law is not the most troubling part. Theoretically, that error could have been remedied by adherence to one of the statutory safeguards embedded in the process: the requirement that "the defendant shall be entitled to a preliminary hearing[.]" 42 Pa.C.S. § 4551(e). What is troubling is the DAO's effort to ensure that would not occur.

One week after charging Pownall the DAO filed a "Petition to File Bill of Information Without a Preliminary Hearing," commonly known as a bypass motion. See Pa.R.Crim.P. 565(A) ("When the attorney for the Commonwealth certifies ... that a preliminary hearing cannot be held for a defendant for good cause, the court may grant leave to the attorney for the Commonwealth to file an information with the court without a preliminary hearing."). According to the DAO, three factors "compell[ed] a preliminary hearing bypass ... here: complexity, expense, and the prosecution's offer of discovery to [Pownall]." Bypass Motion, 9/13/2018 at 4.

With respect to complexity, the DAO stated over a dozen witnesses testified before the grand jury and "many" of them would have to testify again if the case proceeded to a preliminary hearing. See id. at 1-4. In the DAO's view, "the delay occasioned by [recalling these witnesses] would run afoul of [this] Court's repeatedly expressed concern for superfluous delay." Id. at 4 (citations omitted).^{7 7} As for expense, the DAO lamented that "multiple police personnel and a doctor from the Medical Examiner's Office would [have to] be subpoenaed to testify[.]" Id. at 5. Lastly, the DAO explained it made an "enormous concession" by agreeing to provide Pownall with all discovery and redacted notes of testimony from those witnesses who testified before the grand jury within sixty days of trial. Id. (emphasis omitted).

7 Pownall has yet to go to trial nearly four years after his arrest. Since this is due entirely to the DAO's litigation strategy, its expressed concern for "superfluous delay" is incredible. It's also "logically untenable: bypassing the preliminary hearing would always spare the court from delay, and there would be no need to have a preliminary hearing in any case if preventing delay constituted ‘good cause.’ " Pownall's Objection to DAO's Bypass Motion, 9/14/2018 at 6 (emphasis in original).

7 Cf. Seila Law LLC v. Consumer Fin. Prot. Bureau , ––– U.S. ––––, 140 S.Ct. 2183, 2207, 207 L.Ed.2d 494 (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.").

To support its position Pownall was not entitled to a preliminary hearing, the DAO pointed to Commonwealth v. Bestwick , 489 Pa. 603, 414 A.2d 1373 (1980). There, we reaffirmed the principle that " ‘an investigating grand jury presentment is a constitutionally permissible and reasonable alternative to a preliminary hearing.’ " Id. at 1377, quoting Commonwealth v. McCloskey , 443 Pa. 117, 277 A.2d 764, 776 (1971). Importantly, though, Bestwick went on to explain this "controversy has been settled by the legislature" through its adoption of the Investigating Grand Jury Act — in particular, Section 4551(e) ’s directive that "the defendant shall be entitled to a preliminary hearing[.]" Id. at 1377 n.2 (internal quotations and citation omitted). Thus, while a preliminary hearing may not be required in any type of case as a constitutional matter, Bestwick recognized the General Assembly granted a statutory right to such a hearing when the Commonwealth elects to proceed by way of a presentment issued by an investigating grand jury. The DAO's failure to identify this distinction in its motion was inexplicable.

The DAO's reliance on Rule of Criminal Procedure 565 was also misplaced. Our rules contemplate a general defense "right to have a preliminary hearing, except in cases being presented to an indicting grand jury[.]" Pa.R.Crim.P. 540(F)(2) (emphasis added). Since 2012, this Court has authorized "the use of an indicting grand jury as an alternative to the preliminary hearing but only in cases in which witness intimidation has occurred, is occurring, or is likely to occur." Pa.R.Crim.P. 556, Comment. Rule 565, in turn, provides that, in non-grand jury cases, "[w]hen the attorney for the Commonwealth certifies to the court ... that a preliminary hearing cannot be held for a defendant for good cause, the court may grant leave to the attorney for the Commonwealth to file an information with the court without a preliminary hearing." Pa.R.Crim.P. 565(A).

That Rule 565 does not apply in this situation is made evident by our decision in McCloskey , supra . In that case, we held "an indictment based upon an investigating grand jury's presentment" was "lawful, even though no preliminary hearing was held." McCloskey , 277 A.2d at 766 (emphasis added); see id. at 774 ("the omission of a preliminary hearing for a defendant indicted pursuant to a presentment " does not "in any way prejudice[ ] him, or den[y] him a greater degree of protection than is available to a defendant in a criminal proceeding instituted by complaint and preliminary hearing.") (emphasis added). Nothing in our decision in McCloskey so much as hinted that a grand jury presentment, in the absence of an indictment, is a proper substitute for a preliminary hearing. Even in Bestwick , the defendant "was indicted" after the investigating grand jury issued its presentment. 414 A.2d at 1375.^{8 8} Tellingly, our rules now reflect the limited scenario we endorsed in McCloskey and Bestwick , but not the broader position staked out by the DAO. See, e.g. , Pa.R.Crim.P. 556.11 (permitting indicting grand jury to issue an indictment based "upon a presentment issued by an investigating grand jury," but only "if the grand jury finds the evidence establishes a prima facie case that (1) an offense has been committed and (2) the defendant has committed it").^{9 9}

8 In its bypass motion, the DAO relied on what appears to be the only reported decision in which the Commonwealth successfully evaded a preliminary hearing based solely on a grand jury presentment — i.e. , without an indictment. See DAO's Bypass Motion, 9/13/2018 at 3-5, citing Commonwealth v. Cassidy , 423 Pa.Super. 1, 620 A.2d 9 (1993). That thirty-year-old decision of the Superior Court does not, of course, bind this Court; and, it is dubious at best, because the panel did not so much as cite to Section 4551(e) let alone explain how its plain terms could be avoided.

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 Even if Rule 565 extended to presentments, the DAO clearly did not demonstrate "good cause" here. The comment to the rule explains the use of a preliminary hearing bypass is "limited to exceptional circumstances only." Pa.R.Crim.P. 565, Comment. According to Pownall, Assistant District Attorney Tracy Tripp ("ADA Tripp") informed the assigned preliminary hearing judge (before it was bypassed) that the hearing could be conducted in only "two [to] three hours." Pownall's Supplemental Objection to DAO's Bypass Motion, 9/25/2018 at 3. As Pownall aptly remarked, this "would be the standard length of any [h]omicide preliminary hearing ... on any given day." Id. Indeed, given Pownall's willingness "to stipulate to the various physical and forensic evidence," he anticipated the DAO might only need "to present two or three live witnesses and a video." Id. That hardly demonstrates good cause.

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. Op. at –––– 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.

Remarkably, the DAO appears to have known all this at the time it filed its motion. See DAO's Bypass Motion, 9/13/2018 at 6 (admitting it "could conceivably present the Investigating Grand Jury presentment to the Indicting Grand Jury, as happened ... in McCloskey "). Yet, it pressed forward anyway, curiously arguing a preliminary hearing would somehow "undermine the [g]rand [j]ury's hard work[.]" Id. One implication of this statement is that a preliminary hearing would have exposed the DAO's questionable means of obtaining the grand jury's presentment; another is that it might have led to the dismissal of some or all charges. Regardless, it is disturbing that the DAO went to such lengths to deprive Pownall of his statutory right to a preliminary hearing.^{10 10}

10 I recognize the supervising judge acceded to the DAO's bypass request. Unfortunately, we have no record of what occurred at the hearing on that motion. See Motion in Limine, 11/25/2019 at 2 n.1 (explaining the notes from the bypass hearing are irretrievably lost "because the stenographer transcribing that day has left the jurisdiction and failed to produce either the transcript or the original stenotype, preventing transcription"). For that reason, I do not address the supervising judge's role in this situation.

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.’ " Op. at –––– – –––– (alterations in original) (quoting Scott v. Harris , 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (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.").

(3) The Motion in Limine & Interlocutory Appeal

Finally, I turn to the DAO's motion in limine concerning Suggested Standard Jury Instruction (Crim) § 9.508B. The majority opinion describes the contents of the DAO's motion at length, so I do not repeat them here. See Majority Opinion at 4-12. Instead, I will focus on two aspects of the motion that warrant further scrutiny: (1) the DAO's lack of candor with respect to its underlying constitutional claim; and (2) the questionable timing of the motion's filing and subsequent appeal.

Regarding the High Court's decision in Tennessee v. Garner , 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), the majority notes the DAO neglected to acknowledge a key paragraph from that decision which seemingly undercuts its argument. See Majority Opinion at 8-9, quoting Garner , 471 U.S. at 11-12, 105 S.Ct. 1694 (declaring it constitutionally reasonable under the Fourth Amendment to use deadly force "[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm[,]" including when "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"). But several other omissions by the DAO also merit discussion.

First is the supremely relevant fact that Garner actually references Section 508. In order to evaluate the reasonableness of the conduct at issue in that case, the Supreme Court "looked to prevailing rules in individual jurisdictions." Garner , 471 U.S. at 15-16, 105 S.Ct. 1694. Its country-wide survey revealed approximately nineteen states at the time that had "codified the common-law rule," four that "retain[ed] the common-law rule[,]" two that "adopted the Model Penal Code's provision^{[ 11 11 ]} verbatim[,]" and eighteen others that "allow, in slightly varying language, the use of deadly force only if the suspect has committed a felony involving the use or threat of physical or deadly force, or is escaping with a deadly weapon, or is likely to endanger life or inflict serious physical injury if not arrested." Id. at 16-17, 105 S.Ct. 1694 (footnoted citations omitted). Section 508 falls within this latter category, as noted in Garner . See id. at 17, 105 S.Ct. 1694 n.18, citing 18 Pa.C.S. § 508.

11 See Model Penal Code § 3.07 (Proposed Official Draft 1962).

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.").

This is important, because it places us among those states that have joined "the long-term movement ... away from the rule that deadly force may be used against any fleeing felon[.]" Id. at 18, 105 S.Ct. 1694. In fact, for most of this Commonwealth's history we "followed the common law rule that if the felon flees and his arrest cannot be effected without killing him, the killing is justified." Commonwealth v. Chermansky , 430 Pa. 170, 242 A.2d 237, 239-40 (1968). Over time, however, we felt the "[s]tatutory expansion of the class of felonies ha[d] made the common law rule manifestly inadequate for modern law[,]" so we narrowed it. Id. at 240. In Chermansky , we declared that "from this date forward" the use of deadly force to prevent the escape of a fleeing felon "is justified only if the felony committed is treason, murder, voluntary manslaughter, mayhem, arson, robbery, common law rape, common law burglary, kidnapping, assault with intent to murder, rape or rob, or a felony which normally causes or threatens death or great bodily harm." Id. Then, four years later, our legislature abandoned the common-law rule altogether by adopting Section 508 of the Crimes Code.

Returning to Garner , the Third Circuit has deemed it relevant that the High Court in that case cited Section 508 "in developing [its] constitutional standard." In re City of Phila. Litig. , 49 F.3d 945, 953 n.5 (3d Cir. 1995) ; see id. at 979 n.2 (Lewis, J., concurring in part) ("the decision in [ Garner ] in significant respects mirrored, and in fact relied in part upon, [S]ection 508"); see also Estate of Fortunato v. Handler , 969 F. Supp. 963, 974 (W.D.Pa. 1996) ( Section 508 "received the seal of approval" in Garner ); Africa v. City of Phila. , 809 F. Supp. 375, 380 (E.D.Pa. 1992) ( Section 508 was "noted with apparent favor" in Garner ). This position finds support in Garner itself. To buttress its decision to pivot away from the harsh common-law rule, the Court observed "[t]here has been no suggestion that crime has worsened in any way in jurisdictions that have adopted, by legislation or departmental policy, rules similar to that announced today." Garner , 471 U.S. at 19, 105 S.Ct. 1694. The Court appears to have been referring to statutes like Section 508, as demonstrated by the next paragraph, which states: "Nor is there any indication that in States that allow the use of deadly force only against dangerous suspects, see [footnote referencing Section 508 ], the standard has been difficult to apply or has led to a rash of litigation involving inappropriate second-guessing of police officers’ split-second decisions." Id. at 20, 105 S.Ct. 1694. In other words, the Court apparently believed Section 508 adheres to "the standard" it ultimately adopted in Garner . Id.

Notwithstanding the obvious relevance of this aspect of Garner , the DAO said nothing about it in its motion. It also failed to mention the Garner Court did not hold the Tennessee statute "unconstitutional on its face" — it was merely an as-applied holding. Id. at 11, 105 S.Ct. 1694 ; see id. at 11-12, 105 S.Ct. 1694 (explaining the statute "would pass constitutional muster" if applied in certain other situations, such as "[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others"). And, the DAO likewise failed to address the import of Garner arising in the context of a Section 1983 civil action. That fact has led at least three state supreme courts to reject the position the DAO now asks us to embrace. See State v. Cooney , 320 S.C. 107, 463 S.E. 2d 597, 599 (1995) ("the holding in Garner ... does not change the State's criminal law"); People v. Couch , 436 Mich. 414, 461 N.W.2d 683, 684 (1990) ( Garner "did not ‘automatically’ modify this state's criminal law with respect to the use of deadly force to apprehend a fleeing felon"; "the power to define conduct as a state criminal offense lies with the individual states, not with the ... United States Supreme Court") (emphasis omitted); State v. Clothier , 243 Kan. 81, 753 P.2d 1267 (1988) ( Garner "has no application in a criminal case"); see also Chad Flanders & Joseph Welling, Police Use of Deadly Force: State Statutes 30 Years After Garner, 35 ST. LOUIS U. PUB. L. REV. 109, 110 (2015) ("[D]eciding the constitutional standard for Garner ’s civil rights suit did not disturb what the standard had to be for state criminal law prosecutions. States still have the authority to dictate under what circumstances police could justifiably use deadly force, and so avoid punishment under state law.") (emphasis and footnotes omitted); see id. at 127 ("the Fourth Amendment does not require or mandate any criminal sanction for the officer who has violated" its terms).^{12 12} I discuss all of this not as an attempt to resolve the DAO's underlying constitutional claim. On that issue I reserve final judgment until such time as it may arise in a proper case. Rather, my point is merely to demonstrate how the DAO's motion in limine — much like the legal instructions it gave to the investigating grand jury — presented only half the relevant picture. This type of advocacy would be worrisome coming from any litigant. See Pa.R.P.C. 3.3 (providing that all attorneys have a duty of candor toward a tribunal). That it was the prosecution's doing is even more concerning, particularly in light of the motion's timing, which I now address.

12 Pointing to Ohio as an example, the DAO presently argues in its brief that other courts "have disagreed with" cases like Couch and concluded that Garner "frame[s] an officer's justification defense in a state criminal law prosecution." DAO's Brief at 49, citing State v. White , 142 Ohio St.3d 277, 29 N.E.3d 939 (2015). The problem with this argument is that Ohio is one of the four states the Garner Court specifically observed was "without a relevant statute" and thus followed "the common-law rule." Garner , 471 U.S. at 16, 105 S.Ct. 1694. The DAO's underlying claim here concerns Garner ’s effect on state criminal law statutes, rendering common-law cases like White inapposite.

12 See also Torres v. Madrid, ––– U.S. ––––, 141 S.Ct. 989, 1003, 209 L.Ed.2d 190 (2021) (holding that officers seized fleeing suspect the instant they shot her, although she eluded capture).

The majority opinion describes the trial court's "discontent with the DAO's decision to wait until weeks before trial to present its motion challenging Section 508." Majority Opinion at 16 (internal quotations and citations omitted). The trial court's frustration was well founded, considering the DAO had "more than a year and two months" after Pownall's arrest to file its motion, yet it chose to wait until only weeks before trial was set to begin. Trial Court Op., 1/2/2020 at 2 n.2. But the timing of the DAO's motion was more than just frustrating: it also raises ethical concerns. Pownall filed his motion to quash the grand jury's presentment on December 18, 2019. Instead of responding to the accusations raised in that motion, five days later, counsel for the DAO "made an unscheduled appearance" in the trial court and demanded the court rule on its motion. Trial Court Op., 12/30/2019 at 1. It further warned the court it would take an immediate interlocutory appeal — with or without the court's permission — should the court deny its motion. See id. at 1-2. After the court did precisely that, the DAO followed through on its threat and filed the present improper appeal, thereby forestalling its need to answer Pownall's grand jury allegations by divesting the court of jurisdiction over the case.

When combined with the other tactics highlighted throughout this concurrence, a compelling argument may be made that the DAO's decision to delay Pownall's trial further by taking an unauthorized interlocutory appeal was intended to deprive him of a fair and speedy trial.

Consider the total sum of what occurred below. The DAO secured from the grand jury, which operates under the cover of secrecy, a slanted presentment written by the DAO's own attorneys, based on its preferred facts. Although the grand jury signed on to the DAO's take on the case, it did so without full awareness of the relevant legal definitions for murder or the defense under Section 508. Then, the DAO had the presentment unsealed so it could be disseminated to the press, which uncritically reported the "grand jury's findings." Meanwhile, the DAO maneuvered to bypass Pownall's statutory right to a preliminary hearing, at which the DAO would have been required to subject its evidence to cross-examination and prove a prima facie case for third-degree murder. Having succeeded in that endeavor, the DAO next fought to keep the case in Philadelphia before a Philadelphia jury despite extensive local media coverage; that effort also succeeded.^{13 13} Finally, as trial neared, there was only one obstacle that remained in the DAO's path to conviction: the legislatively authorized peace officer justification defense. So, the DAO, in the District Attorney's own words, did something "unusual" and "creative" — it challenged Section 508 and its corresponding suggested jury instruction because it believed they are "not fair." Pownall's Brief at 59, citing Chris Norris, Philly DA Reflects on Chauvin Verdict, Where Case Against Former Officer Ryan Pownall Stands , WHYY (Apr. 4, 2021), https://whyy.org/articles/philly-da-larry-krasner-reflects-on-chauvin-verdict-where-case-against-former-officer-ryan-pownall-stands/ (last visited July 19, 2022). After the trial court refused the DAO's motion — and faced with having to respond to Pownall's pending motion to quash the grand jury's presentment — the DAO took an unauthorized interlocutory appeal, knowing it would (at least temporarily) nullify both of those problems. Now, for the first time before this Court, the DAO finally admits its true intent in all this was simply to use Pownall's case as a vehicle to force a judicial determination on "whether Section 508(a)(1) is facially unconstitutional." DAO's Reply Brief at 1; see id. at 6 (asserting " Section 508 ’s applicability to [Pownall] is not the subject of this appeal"). What's more, despite having assured the trial court it was not trying "to bar [Pownall] from a defense[,]" N.T. 11/25/2019 at 8, the DAO now boldly asserts it would be appropriate for this Court to rewrite the law and retroactively apply it to Pownall's case because he supposedly "had fair notice of his inability to rely on this unconstitutional defense[.]" DAO's Brief at 10.

13 Notably, the DAO argued that although prosecutorial sources "carry authority and may prejudice a venire[,]" the extensive publicity in Pownall's case was "not so reliant on" those sources. DAO's Brief on Defense's Motion for Change of Venire, 5/21/2019 at 3-4. But it turns out the same prosecutor who authored this statement, ADA Tripp, was in fact participating in a documentary focused on the DAO. In 2021, during the pendency of this appeal, that documentary aired on television, including an entire episode dedicated solely to Pownall's case. See Pownall's Brief at 60-61, citing Philly D.A. , Episode 7, (PBS July 1, 2021). That a prosecutor would think it appropriate to poison the well of public opinion by participating in a documentary concerning an ongoing case is unconscionable to me. See, e.g. , Pa.R.P.C. 3.8(e) ("except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, [a prosecutor shall] refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused").

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, 128 S.Ct. 2641, 171 L.Ed.2d 525 (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.

We have explained a prosecutor has a responsibility to "seek justice within the bounds of the law, not merely to convict." Commonwealth v. Clancy , 648 Pa. 179, 192 A.3d 44, 52 (2018) (internal quotations and citation omitted). This is because a prosecutor acts as "a minister of justice and not simply that of an advocate." Pa.R.P.C. 3.8, Comment; see, e.g. , Commonwealth v. Briggs , 608 Pa. 430, 12 A.3d 291, 331 (2011) (a prosecutor, "unlike a private attorney, must exercise independent judgment in prosecuting a case and has the responsibility of a minister of justice and not simply that of an advocate") (internal quotations and citation omitted). As a minister of justice, a prosecutor shoulders a unique responsibility that "carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence." Pa.R.P.C. 3.8, Comment.

Little that has happened in this case up to this point reflects procedural justice. On the contrary, the DAO's prosecution of Pownall appears to be "driven by a win-at-all-cost office culture" that treats police officers differently than other criminal defendants. DAO CONVICTION INTEGRITY UNIT REPORT, OVERTURNING CONVICTIONS — AND AN ERA 2 (June 15, 2021), available at tinyurl.com/CIUreport (last visited July 19, 2022). This is the antithesis of what the law expects of a prosecutor.

JUSTICE WECHT, dissenting

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, 105 S.Ct. 1694, 85 L.Ed.2d 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.

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.’ " Op. at –––– (quoting Commonwealth v. Shearer , 584 Pa. 134, 882 A.2d 462, 469 (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 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 , 644 Pa. 571, 177 A.3d 850, 855 (2018). Final orders are those which "(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, 69 S.Ct. 1221, 93 L.Ed. 1528 (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, 115 S.Ct. 2151, 132 L.Ed.2d 238 (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. , 465 Pa. 225, 348 A.2d 734, 736 (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, 69 S.Ct. 1221. In other words, "the bell has been rung, and cannot be unrung by a later appeal." Commonwealth v. Harris , 612 Pa. 576, 32 A.3d 243, 249 (2011). This irreparable-loss requirement ensures that interlocutory review occurs 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, 115 S.Ct. 2151.

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, 115 S.Ct. 2151 (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, 115 S.Ct. 2151. 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 , 555 Pa. 589, 725 A.2d 1209, 1213 (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." Op. at ––––. 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 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 ––––.

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, 115 S.Ct. 2151. 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. , 588 Pa. 405, 905 A.2d 422, 433 (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 ‘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, 115 S.Ct. 2151 ). 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 , 624 Pa. 405, 86 A.3d 771, 781 (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, 105 S.Ct. 2806, 86 L.Ed.2d 411 (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, 105 S.Ct. 2806 (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 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 , 623 Pa. 420, 83 A.3d 86, 90 (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, 653 Pa. 515, 211 A.3d 761, 765 (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 , 620 Pa. 115, 66 A.3d 286, 293 (2013) (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:

[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. Op. at ––––. 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 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 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, 134 S.Ct. 2012. 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, 134 S.Ct. 2012. 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 U.S. at 314, 115 S.Ct. 2151 ("[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 , 632 Pa. 260, 119 A.3d 306, 313 (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. 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 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, 105 S.Ct. 1694. 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 nonviolent 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 Fourth Amendment."¹² Id . at 7, 105 S.Ct. 1694. 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, 105 S.Ct. 1694. 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, 105 S.Ct. 1694. 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, 105 S.Ct. 1694 ("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, 105 S.Ct. 1694. "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 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, 105 S.Ct. 1694.

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 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, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) is the most prominent among these cases.

14 See Garner , 471 U.S. at 14, 105 S.Ct. 1694 (denouncing the notion that all fleeing felons have "already forfeited" their lives).

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, 127 S.Ct. 1769. 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, 127 S.Ct. 1769. 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, 127 S.Ct. 1769 (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, 125 S.Ct. 596, 160 L.Ed.2d 583 (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") (citation omitted); cf . Scott , 550 U.S. at 386, 127 S.Ct. 1769 ("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 .

Op. at –––– – –––– (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 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.

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, 105 S.Ct. 1694 ("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, 134 S.Ct. 2012 (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 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 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.

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 ("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.").

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 , 632 Pa. 36, 117 A.3d 247, 252 (2015) ("[E]ven if certain provisions of a statute are deemed to run afoul of the federal or state Constitution, 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 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.

17 See generally Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 116-25 (2012) (explaining the conjunctive/disjunctive canon).

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, 127 S.Ct. 1769. 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 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, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) ; see also Beazell v. Ohio , 269 U.S. 167, 169, 46 S.Ct. 68, 70 L.Ed. 216 (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.

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.

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 , 652 Pa. 353, 208 A.3d 916, 947 (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 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.