J. A20039/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellant :

:

v. : No. 250 MDA 2017

:

TERRENCE W. CLARKE :

Appeal from the Order Entered January 27, 2017,

in the Court of Common Pleas of Luzerne County

Criminal Division at No. CP-40-CR-0001020-2014

BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E. FILED DECEMBER 05, 2017

The Commonwealth appeals from the January 27, 2017 order entered 

in the Court of Common Pleas of Luzerne County that denied its pretrial

motion in limine that requested the trial court to enter an order “directing 

[appellee Terrence W. Clarke] to make a pretrial offer of proof as to his 

intention to raise the Use of Force/Deadly Force in Self-Defense” and 

“prohibit [appellee] from presenting at trial any evidence premised on 

[‘]JUSTIFICATION[’] Use of Force/Deadly Force in Self Defense” as 

premature. (Order of court, 1/27/17 (emphasis in original).) We quash.

The record reflects that appellee was charged with one count of 

criminal homicide, two counts of aggravated assault, and one count of 
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possession of firearm prohibited.1 The Commonwealth moved, without 

opposition, to sever the firearms violation from the remaining counts. The 

trial court granted the motion for severance. A jury convicted appellee of 

the firearms violation on October 29, 2014, and the trial court imposed 

judgment of sentence on December 22, 2014. In affirming appellee’s

judgment of sentence on that conviction, a panel of this court summarized 

the factual history underlying all of the charges against appellee, as follows:

At trial, [appellee] testified that he arrived at 

Shaker’s Bar on February 1, 2014, between 

10:30 p.m. and 11:00 p.m. When [appellee] exited 

the bar with friends at 2:00 a.m., he observed an 

“all-out fight” break out among a group of bar 

patrons. [Appellee] maintained that he was caught 

in the middle of the altercation when he noticed a 

gun fall to the floor. Although [appellee] 

acknowledged that he was prohibited from 

possessing a firearm as a condition of his probation, 

he testified that he picked up the firearm because he 

“didn’t want anything to happen to me.” [Appellee]

stated that as he attempted to walk away from the 

fight, he heard shots fired in his direction. Although 

[appellee] admitted that he was not physically 

involved in the altercation, he stated that he fired 

the weapon back in the direction of the fight in order 

to “protect” himself.

Pennsylvania State Troopers Nicholas Bressler and 

Matthew Hunter were on patrol near the Shaker Bar 

that evening when they heard shots fired. As the 

Troopers pulled up to the entrance to the Shaker Bar 

and exited their vehicle, Trooper Bressler observed 

[appellee] emerge from the bar and turn to 

discharge his firearm toward the crowd. Although 

[appellee] ignored the Troopers’ repeated demands 

 

1 18 Pa.C.S.A. §§ 2501(a), 2702(a)(1) and (a)(4), and 6105(a)(1), 

respectively.
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to drop the firearm and stand down, the Troopers 

apprehended [appellee] after a brief chase. The 

Troopers recovered the firearm nearby on the 

ground.

Commonwealth v. Clarke, 144 A.3d 191 (Pa.Super. 2016) (unpublished 

memorandum) (citations to notes of testimony omitted).

The trial court set forth the following procedural history:

[Appellee] was scheduled for trial on the remaining 

charges of Criminal Homicide and Aggravated

Assault on February 6, 2017 and the Commonwealth 

has renewed its previously filed July 17, 2014 Motion 

in Limine.[2]

At a pre-trial conference held January 23, 2017 the 

Commonwealth requested the Court order that 

[appellee] make a pre-trial offer of proof as to his 

intention to raise the Use of Force/Deadly Force in 

Self-Defense and further requested that the Court 

preclude [appellee] from presenting at trial any 

evidence premised on Justification--Use of Deadly 

Force in Self-Defense.[Footnote 2]

[Footnote 2] 18 Pa.C.S.A. §505.

 

2 The record reflects that when the Commonwealth filed its motion to sever 

the possessory firearms count from the remaining counts, it also filed a 

motion in limine pursuant to Pa.R.Crim.P. 578 and a brief in support thereof 

seeking preclusion of a self-defense jury instruction. The trial court set a 

briefing schedule and then scheduled oral argument for September 4, 2014. 

On September 4, 2014, the trial court entered a pre-trial order that 

addressed various discovery matters. With respect to the motion in limine, 

the trial court’s handwritten order states, “Court will rule @ right time.” 

(Order of court, 9/4/14; docket #17.) The record further reflects that at the 

close of evidence at appellee’s possessory firearms trial, appellee requested 

a jury instruction on justification. (Notes of testimony, 10/27-29/14 at 

184-189). Following argument, the trial court denied appellee’s request 

because the evidence appellee presented at trial was “speculative or 

debatable” and, therefore, “insufficient to establish the minimum standard 

as required to each element of the defense.” (Id. at 189-191.)
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On January 27, 2017 the Court entered an order 

denying the Commonwealth’s Motion in Limine to 

direct [appellee] to make a pre-trial offer of proof 

as to his intention to raise the Use of Force/Deadly 

Force in Self-Defense and further denied the 

Commonwealth’s Motion that the Court prohibit 

[appellee] from presenting at trial any evidence 

premised on Justification--Use of Force/Deadly Force 

in Self-Defense. The Court further indicated that 

such requests are premature prior to trial and 

reserved the right to rule on these requests when 

made at the appropriate time indicating that if such 

requests were made by the Commonwealth at the 

appropriate time the Court would take evidence on 

the issues out of the presence of the jury. The 

Commonwealth filed a Notice of Appeal to [the] 

Superior Court on February 2, 2017.

Trial court opinion, 3/24/17 at 2 (emphasis in original).

The record reflects that in its notice of appeal, the Commonwealth 

certified that the trial court’s January 27, 2017 order terminates or 

substantially handicaps its prosecution pursuant to Pa.R.A.P. 311(d). The 

trial court then ordered the Commonwealth to file a concise statement of 

matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). The 

Commonwealth timely complied. On February 22, 2017, this court ordered 

the Commonwealth to show cause, within ten days from the date of the

order, as to why the appeal should not be quashed as taken from an 

unappealable order. (Order of court, 2/22/17.) The Commonwealth filed a 

timely response. On March 8, 2017, this court discharged the show-cause 

order and referred the issue of appealability to this panel. Therefore, we 

must determine whether this appeal is properly before us.
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The Commonwealth contends that Pennsylvania Rule of Appellate 

Procedure 311(d) confers jurisdiction over this appeal to this court. 

Rule 311(d) provides that in a criminal case, “the Commonwealth may take 

an appeal as of right from an order that does not end the entire case where 

the Commonwealth certifies in the notice of appeal that the order will 

terminate or substantially handicap the prosecution.” Pa.R.A.P. 311(d). 

Although the Commonwealth included the requisite certification in its notice 

of appeal, our supreme court limits application of Rule 311(d) to 

circumstances in which “a pretrial ruling results in the suppression, 

preclusion or exclusion of Commonwealth evidence.” Commonwealth v. 

Shearer, 882 A.2d 462, 467 (2005), quoting Commonwealth v. Cosnek, 

836 A.2d 871, 877 (2003) (emphasis added). Therefore, Rule 311(d) does 

not confer jurisdiction upon this court to consider an interlocutory appeal 

from an order filed by the Commonwealth to preclude the introduction of 

defense evidence. Id. at 457; see also Cosnek, 836 A.2d at 877.

In its response to the show-cause order, the Commonwealth 

nevertheless maintains that Cosnek has no application for two reasons. The 

Commonwealth first argues that Cosnek is inapplicable because “the 

Commonwealth never sought to preclude any [defense] witness from 

testifying.” (Commonwealth’s response to order to show cause, 3/6/17 

at 1.) The Commonwealth then contends that because appellee testified at 

his firearms violation trial and the trial court denied his request for a jury 
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instruction on the defense of justification for want of evidence to sufficiently 

support the instruction, appellee should be bound by his former justification 

testimony, as well as by the trial court’s denial of his request for a 

justification instruction at that trial, when appellee is tried for criminal 

homicide and aggravated assault in the future. (Id. at 4.)

The Commonwealth’s arguments miss the mark. Although the 

Commonwealth has not sought to preclude any particular defense witness

from testifying, it does seek to preclude the defense from offering any 

witness or any other evidence to support a justification defense. Therefore, 

because the Commonwealth seeks to preclude the introduction of defense

evidence (specifically, any and all defense evidence to support justification), 

the Commonwealth’s appeal falls squarely within the mandates of Cosnek

and Shearer. Consequently, this court lacks jurisdiction over this appeal.

Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/5/2017