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.

MEM ORANDUM 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 “direct ing
[appellee Terren ce 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/Dead ly F orce in Self Defense” as
premat ure. (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 ofJ. A20039/17

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possession of firearm prohibited. 1 The Commonwealth moved , without
opposition, to sever the firearms violation from the remaini ng counts . The
trial court granted the motion for severance. A jury convicted appellee of

the firearms violation on Oc tober 29, 2014, and t h e trial court imposed
judgment of sentence on December 22, 2014. In affirming appellee’s
ju dgment of sentence on that conviction , a panel of this court summarized
the factual history underlying al l of the charges against appellee , as follows:

At trial, [a ppellee] 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] maintain ed that he was caught in the middle of the altercation when he noticed a gun fal l 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 b ecause he “didn’t want an ything 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 th at 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 to ward 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.J. A20039/17

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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 t rial 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 an d 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.[Footno te 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

- tri al 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 recor d further reflects that at the close of e vidence at appellee’s possessory firearms trial , appellee requested a jury instruction on justification . (Notes of t estimony, 10/27

- 29/14 at 184

- 189). Following argument, the trial court denied appellee’ s request because the evidence appellee presented a t trial was “speculative or debatable” and, therefore, “ ins ufficient to establish the mini mum standard as required to each element of the defense.” ( Id. at 189

- 191.)J. A20039/17

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- On January 27, 2017 the Court entered a n order denying the Common wealth’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

- D efense and further denied the Commonwealth’s Motion that the Court prohibit [appellee] f r om 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.

Tr ial 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 J anuary 27, 2017 order terminates or
substantially handicaps its prosecution pursuant to Pa.R.A.P. 311(d)

. T he

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

Commo nwealth 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 C ommonwe alth filed a
timely response. On March 8, 2017, t his 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

.J. A20039/17

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The Commonwealth contends th at 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

th e 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 Commonwea lth

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 juryJ. A20039/17

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-

instr uction 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

homicid e and aggravated assault in the future . ( Id. at 4.)
The Commonwealth’s arguments miss the mark. A lthough the

Commonwealth has not sought to preclude any particular defense witness
from testifyin g, 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 evide nce 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