Com. v. Childs, W.

J-A21012-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

WILLIAM CHILDS,

Appellant No. 272 EDA 2013

Appeal from the Judgment of Sentence January 16, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012722-2010

BEFORE: BOWES, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 10, 2014

William Childs appeals from the judgment of sentence of sixteen to

thirty-two years incarceration followed by five years of probation imposed by

the trial court after one jury found him guilty of third-degree murder and

another jury declared him guilty of possession of an instrument of crime

(“PIC”). Since we find that instructing a jury regarding the evidentiary

presumption that a person acts reasonably in self-defense within his own

residence under 18 Pa.C.S. § 505(b)(2.1), would not have been a retroactive

application of that law under the facts of this case, we reverse and remand

for a new trial.

Appellant resided at 545 North Wannamaker Street with Michael

Beander and Samuel Andrews, the latter being the owner of the property in

____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A21012-14

question. The decedent, Bryant Bell, had previously lived at the address.

Mr. Andrews invited Mr. Bell to his home on July 29, 2010, to celebrate

Mr. Bell’s birthday, which was the previous day. The men began consuming

alcohol before Appellant and Mr. Bell engaged in an argument. Appellant

remained seated throughout the argument; as he had previously suffered a

spinal cord injury resulting in him having to walk with the aid of a cane. Due

to the argument, Mr. Andrews asked Mr. Bell to leave. Accordingly, Mr. Bell

left the inside of the home along with Mr. Beander. Mr. Andrews retreated

to his room in the upstairs of the home.

Mr. Bell and Mr. Beander remained seated on the outside porch of the

residence. At some point, Appellant and Mr. Bell resumed their argument,

with Appellant remaining inside the home and yelling through a screen door.

According to Mr. Beander, Appellant called the victim a bitch and threatened

to “fuck him up.” Concomitantly, Mr. Bell responded with profanity, threats

to attack Appellant, and calling him a cripple.

Appellant also maintained to police that the victim was speaking to

Mr. Beander and threatening to beat up Appellant before walking across the

street. Appellant retrieved a knife from the kitchen table. Thereafter,

Mr. Bell returned to Appellant’s home, proceeded to grab a broomstick from

the porch area, and succeeded in opening the door. Mr. Bell struck

Appellant with the stick several times before Appellant stabbed Mr. Bell one

time in the chest. Appellant then called 911, but the stabbing resulted in

Mr. Bell’s death. At the time, Mr. Bell had cocaine in his system and a blood

-2-
J-A21012-14

alcohol content of .082%. The Commonwealth charged Appellant with

criminal homicide and PIC. Appellant presented a claim of self-defense at

trial.

A jury initially deadlocked on the murder charge, but found Appellant

guilty of PIC on November 16, 2011. A subsequent trial occurred on the

homicide charge, which concluded one year from the first trial, on

November 16, 2012. At both trials, Appellant sought a jury instruction

based on Act No. 10 of 2011, relative to what is commonly known as the

“Castle Doctrine.” Specifically, Appellant asked that the jury be instructed

that it was presumed that he had a reasonable belief that deadly force was

immediately necessary to protect himself from serious bodily injury or death

since he acted inside his residence. The Commonwealth objected on the

basis that the law did not become effective until August 27, 2011, after

Appellant stabbed the victim. The court declined to provide the jury

instruction. Following the second trial, the jury found Appellant guilty of

third-degree murder.

Subsequently, the court sentenced Appellant to sixteen to thirty-two

years incarceration for the third-degree murder count and a consecutive

sentence of five years probation on the PIC charge. This timely appeal

ensued. The trial court directed Appellant to file and serve a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. Appellant

complied, and the trial court authored its opinion. The matter is now ready

for our review. Appellant’s sole contention on appeal is “Did not the trial

-3-
J-A21012-14

court err in refusing to instruct the jury on the self-defense provisions

codified in Act No. 10 of 2011, 18 Pa.C.S. [§] 505(b)(2.1)?” Appellant’s

brief at 3.

The question before us today is whether consideration of 18 Pa.C.S.

§ 505(b)(2.1) at Appellant’s trial would have resulted in retroactive

application of that law. Section 505(b)(2.1) provides:

Except as otherwise provided in paragraph (2.2), an actor is
presumed to have a reasonable belief that deadly force is
immediately necessary to protect himself against death, serious
bodily injury, kidnapping or sexual intercourse compelled by
force or threat if both of the following conditions exist:

(i) The person against whom the force is used is in the process
of unlawfully and forcefully entering, or has unlawfully and
forcefully entered and is present within, a dwelling, residence or
occupied vehicle; or the person against whom the force is used
is or is attempting to unlawfully and forcefully remove another
against that other's will from the dwelling, residence or occupied
vehicle.

(ii) The actor knows or has reason to believe that the unlawful
and forceful entry or act is occurring or has occurred.

18 Pa.C.S. § 505(b)(2.1). Thus, § 505(b)(2.1) creates an evidentiary

rebuttable presumption that a defendant acts reasonably in using deadly

force where the defendant uses such force against a person unlawfully in or

attempting to enter his residence and knows or has reason to believe that

the person is there illegally.

The law of retroactivity is less than a model of clarity. In the criminal

context, retroactivity concerns usually arise in the context of ex post facto

issues. Whereas here there are no ex post facto implications, criminal case

-4-
J-A21012-14

law has engrafted contract clause and civil law retroactivity analysis into the

criminal sphere. See Commonwealth v. Johnson, 553 A.2d 897 (Pa.

1989) (citing Creighan v. City of Pittsburgh, 132 A.2d 876, 871 (Pa.

1957)); see also Weaver v. Graham, 450 U.S. 24, 31 (1981) (“In using

the concept of vested rights, Harris v. Wainwright, 376 So. 2d, at 856, the

Florida court apparently drew on the test for evaluating retrospective laws in

a civil context.”).

This itself is problematic. While “since the beginning of the Republic

and indeed since the early days of the common law: absent specific

indication to the contrary, the operation of nonpenal legislation is

prospective only[,]” Kaiser Aluminum & Chemical Corp. v.

Bonjorno, 494 U.S. 827, 841 (1990) (Scalia, J., concurring), the same is

not true in criminal law. See id. n.1. (citing Yeaton v. United States, 5

Cranch 281, 283 (1809) (“it has been long settled, on general principles,

that after the expiration or repeal of a law, no penalty can be enforced, nor

punishment inflicted, for violations of the law committed while it was in

force, unless some special provision be made for that purpose by statute.”);

United States v. Tynen, 11 Wall. 88, 95 (1871) (“There can be no legal

conviction, nor any valid judgment pronounced upon conviction, unless the

law creating the offence be at the time in existence”)). Simply put, laws

that retroactively benefited an accused were not subject to the same civil

law prohibition against retroactive laws.

-5-
J-A21012-14

Indeed, the common law doctrine of abatement has long been applied

in Pennsylvania. From the early days of this Commonwealth, the prohibition

against retroactive criminal laws did not apply to statutes affecting the

substantive rights of an accused where the law benefited the accused. In

Commonwealth v. Duane, 1 Binn. 601 (Pa. 1809), the Pennsylvania

Supreme Court expressly distinguished between the prohibition against civil

retroactive laws and ameliorative retrospective criminal legislation. There,

the defendant was indicted and found guilty of committing a libel against

Pennsylvania’s governor in his official capacity. However, prior to his

judgment of sentence, the legislature passed a law stating that no person

was to be prosecuted by indictment for publication of papers or for

investigating the official conduct of men in a public capacity. Counsel for

Duane argued that the law interfered with no vested right, did not violate

any right of property, and effectively terminated his prosecution. The

Pennsylvania Supreme Court agreed, with Chief Justice Tilghman stating, “If

the same expression had been used, as applied to a civil action, I should

have thought myself warranted in giving it a different construction, because

then it would have operated in a retrospective manner, so as to take away

from a citizen a vested right. But there is a wide difference between a civil

and a criminal action.” Id. at 608-609.

Importantly, it must first be determined whether the statute in

question would operate retroactively, Gehris v. Commonwealth,

-6-
J-A21012-14

Department of Transportation, 369 A.2d 1271, 1273 (Pa. 1977), which is

generally permissible only in limited circumstances. The Pennsylvania

Supreme Court has held that “a statute does not operate retrospectively

merely because some of the facts or conditions upon which its application

depends came into existence prior to its enactment.” Id. In the civil arena,

Justice Joseph Story, writing while on circuit, offered a concise summary of

retroactive civil laws, which has subsequently been adopted by the United

States Supreme Court, see Landgraf v. USI Film Products, 511 U.S. 244

(1994), and utilized by courts in this Commonwealth. Justice Story opined,

“every statute, which takes away or impairs vested rights acquired under

existing laws, or creates a new obligation, imposes a new duty, or attaches a

new disability, in respect to transactions or considerations already past,

must be deemed retrospective[.]” Society for the Propagation of the

Gospel v. Wheeler, 22 F.Cas. 756, 767 (1814). Justice Duncan of the

Pennsylvania Supreme Court echoed this definition and cited Justice Story’s

opinion in Eakin v. Raub, 12 Serg. & Rawle 330, but, in doing so, also

recognized the critical distinction between the prohibition against civil

retroactive law and ameliorative criminal legislation. Id. at 362.

More recently, Pennsylvania courts have utilized the civil retroactivity

test in criminal cases by setting forth that a statute is impermissibly

retroactive if it “attaches new legal consequences to events completed

before its enactment. Retroactive application occurs only when the statute

-7-
J-A21012-14

or rule relates back and gives a previous transaction a legal effect different

from that which it had under the law in effect when it transpired.”

Commonwealth v. Robinson, 7 A.3d 868, 871-872 (Pa.Super. 2010)

(internal quotations omitted).

Our Supreme Court has also held that, if no vested right or contractual

obligation is impaired or destroyed, a statute can apply to facts existing on

the law’s effective date, which resulted from events that occurred prior to

that date. Johnson, supra at 900 (“Only where a vested right or

contractual obligation is involved is a statute applied ‘retroactively’ when it is

applied to a condition existing on its effective date which resulted from

events which occurred prior to that date.”); See Creighan, supra at 871

(“a statute is not regarded as operating retroactively because of the mere

fact that it relates to antecedent events, or draws upon antecedent facts for

its operation”); Pope v. Pennsylvania Threshermen & Farmers Mut.

Cas. Ins. Co., 107 A.2d 191, 192 (Pa.Super. 1954) (“If ‘no vested right or

contractual obligation is involved, an act is not retroactively construed when

applied to a condition existing on its effective date even though the condition

results from events which occurred prior to that date.’”); Commonwealth

v. Palmer, 558 A.2d 882, 883 (Pa.Super. 1989); Cox v. Hart, 260 U.S.

427, 435 (1922) (“The proviso so construed impairs no vested right and

brings into existence no new obligation which affects any private interest.”);

Goodyear v. Rumbaugh, 13 Pa. 480, 481 (1850) (Married Women’s Act of

-8-
J-A21012-14

1848 was not improperly retrospective because it did not “interfere with

vested rights.”).

This Court has defined a vested right as one that “so completely and

definitely belongs to a person that it cannot be impaired or taken away

without the person's consent.” In re R.T., 778 A.2d 670, 679 (Pa.Super.

2001). In Eakin, supra at 360, Justice Duncan opined, “a vested right is

where a man has power to do certain actions, or to possess certain things,

according to the laws of the land.” A vested right is fixed and without

condition. Ashbourne School v. Department of Education, 403 A.2d

161, 165 (Pa.Cmwlth. 1979).

Further, if a statute is remedial, curative, or validating legislation, it

may not be subject to the prohibition against retroactive application. Pope,

supra at 192 (“if a statute is curative, remedial or procedural only, it may

be applicable to litigation instituted prior thereto but not completed.”); In re

Malik, 8 A.2d 494 (Pa.Super. 1939); Commonwealth v. Duffy, 96 Pa. 506

(1880); Shonk v. Brown, 61 Pa. 320 (1869); Hepburn v. Curts, 7 Watts

300, 301 (Pa. 1838) (“The legislature, provided it does not violate the

constitutional prohibitions, may pass retrospective laws, such as in their

operation may affect suits pending, and give to a party a remedy which he

did not previously possess, or modify an existing remedy, or remove an

-9-
J-A21012-14

impediment in the way of recovering redress by legal proceedings.”); but

see Commonwealth v. Shaffer, 734 A.2d 840 (Pa. 1999).1

In addition, legislative provisions that are purely procedural can

without censure apply retroactively. See Commonwealth v. Estman, 915

A.2d 1191 (Pa. 2007); Morabito's Auto Sales v. Commonwealth, 715

A.2d 384, 386 (Pa. 1998) (“It is well settled, however, that legislation

concerning purely procedural matters will be applied not only to litigation

commenced after its passage, but also to litigation existing at the time of

passage.”) Kuca v. Lehigh Valley Coal Co., 110 A. 731, 732 (Pa. 1920)

(holding a procedural statute was not retroactive because “it does not

disturb vested rights, or impair contract obligations.”). However, statutes

infringing substantive rights are generally not to apply retroactively.

Estman, supra. The legislature may, of course, clearly and manifestly

express an intent for a statute to apply retroactively. 1 Pa.C.S. § 1926; see

also Anderson v. Sunray Elec. Inc., 569, 98 A.2d 374, 375 (Pa.Super.

1953). (“Unless the legislature clearly manifests its intention otherwise, no

law may be construed to be retroactive, and then only where it does not

destroy vested rights or impair the obligations of contracts.”).

The Pennsylvania Supreme Court has defined procedural and

substantive law by opining, “substantive laws are those which affect rights,
____________________________________________
1
Application of the statute in Shaffer would have resulted in ex post facto
problems since the law expanded Pennsylvania’s corrupt organizations
statute to encompass illegal enterprises.

- 10 -
J-A21012-14

while procedural laws are those which address methods by which rights are

enforced. The demarcation between substantive and procedural laws is,

however, at times shadowy and difficult to determine.” Morabito's Auto

Sales, supra at 386 (internal citations omitted); see also Estman, supra

at 1195 (quoting Commonwealth v. Morris, 771 A.2d 721, 738 (Pa.

2001), and stating, “substantive law is that part of the law which creates,

defines and regulates rights, while procedural laws are those that address

methods by which rights are enforced.”). “As threads are woven into cloth,

so does procedural law interplay with substantive law. Together, they create

a cohesive whole. However, it is this very proximity which often leads to

difficulty in identifying one thread as procedural and another as

substantive.” Laudenberger v. Port Authority of Allegheny County,

436 A.2d 147, 150 (Pa. 1981).

We add that, in varying contexts, this Court has considered new

statutory law to apply to proceedings that transpire after the effective date

of the law, even though the case began before the effective date of the new

law. For example, in In re C.R.F. III v. S.E.F., 45 A.3d 441 (Pa.Super.

2012), we applied the new Child Custody Act to a proceeding involving a

mother’s petition to relocate in a custody action that began before the

passage of the law. There, the statute became effective on January 24,

2011. The legislature, unlike here, expressly set forth that “a proceeding

under the former provisions of 23 Pa.C.S. Ch. 53 which was commenced

- 11 -
J-A21012-14

before the effective date of this section shall be governed by the law in

effect at the time the proceeding was initiated.” 2010 Pa. Legis. Serv. Act

2010–112, §§ 4–5 (H.B.1639). Construing the word “proceeding” as not

encompassing an entire custody action, see also E.D. v. M.P., 33 A.3d

73 (Pa.Super. 2011), this Court ruled that, although the mother in C.R.F.

III filed her petition to relocate in the custody case before the effective date

of the statute, because the hearing commenced after that date, the new law

applied. The Supreme Court has not sua sponte struck down this statute as

impeding its procedural rule-making authority.

In Robinson, supra, this Court rejected the Commonwealth’s

contention that utilization of the Recidivism Risk Reduction Incentive

(“RRRI”) sentencing program to a person charged with crimes prior to its

enactment, was an impermissible retroactive application of that law. In

Robinson, the defendant was charged with various drug offenses that

transpired between February and April 2007. The court conducted a bench

trial on June 17, 2008. On November 24, 2008, the RRRI sentencing statute

became effective. The court issued its verdict on January 21, 2009, and

sentenced the defendant on April 16, 2009. The Robinson Court reasoned,

“the Legislature, in enacting the statute, did not impose new legal burdens

on past transactions or occurrences which Appellant committed.” Id. at

873. It added that Robinson had “no vested ‘right’ to be placed on parole,

because parole is an act of grace, not of right.” Id. The panel concluded,

- 12 -
J-A21012-14

“application of the RRRI statute to a defendant convicted and sentenced

after the law became effective, as is the case with [Robinson], does not

violate the restriction set on the retroactive effect of statutes.” Id.

In Bethea v. Philadelphia AFL-CIO Hospital Assocation, 871 A.2d

223 (Pa.Super. 2005), this Court concluded, in a medical malpractice case

filed before the passage of the MCARE statute, that expert testimony

presented after the passage of the law had to meet the MCARE requirements

under section 512 of that act. The panel ruled that the statute in question

was procedural only and the prohibition against retroactive application did

not apply.

In Johnson, supra, our Supreme Court applied a new five-year

statute of limitations that became effective after the defendant committed

his crimes therein. The Johnson Court found that the defendant “had no

vested ‘right’ to be free from conviction within two years after he committed

the crime for which he was later tried.” Id. at 900. It added, “A criminal

statute of limitations is an act of legislative grace, not of right. Thus, the

concept of retroactivity, and the correlative presumption of prospectivity

embodied in 1 Pa.C.S. § 1926, are inapplicable here.” Id.

Appellant makes four separate arguments in support of his position

that the court erred in determining that the application of the evidentiary

presumption in this case would be impermissibly retroactive. First, he

maintains that the legislature did clearly and manifestly express an intent for

- 13 -
J-A21012-14

the applicable law to apply to trials that occurred on or after its effective

date. According to Appellant, the General Assembly is not required to incant

“magic words” for a law to apply to a trial occurring after the effective date

of the statute. Appellant’s brief at 19. In this respect, he points out that in

enacting the legislation that created § 505(b)(2.1), the General Assembly

set forth in the preamble:

(1) It is proper for law-abiding people to protect themselves,
their families and others from intruders and attackers without
fear of prosecution or civil action for acting in defense of
themselves and others.

(2) The Castle Doctrine is a common law doctrine of ancient
origins which declares that a home is a person's castle.

(3) Section 21 of Article I of the Constitution of Pennsylvania
guarantees that the ‘right of the citizens to bear arms in defense
of themselves and the State shall not be questioned.’

(4) Persons residing in or visiting this Commonwealth have a
right to expect to remain unmolested within their homes or
vehicles.

(5) No person should be required to surrender his or her
personal safety to a criminal, nor should a person be required to
needlessly retreat in the face of intrusion or attack outside the
person's home or vehicle.”

Act 2011-10, June 28, P.L. 48. In Appellant’s view, the preamble recognizes

and endorses long-standing pre-existing common law and constitutional

rights, and did not intend for the implementation of the ameliorative

legislation to be deferred.

Second, Appellant posits that § 505(b)(2.1) creates a presumption

which only has “legal import . . . when the finder of fact is using the

- 14 -
J-A21012-14

presumption to evaluate the evidence, and determine (in the circumstances

of the case at bar) the merits of the asserted claim of self-defense.”

Appellant’s brief at 20 (emphasis removed). Accordingly, a presumption is

only relevant at the time of trial and application of the statute to Appellant’s

trial after the effective date of the legislation is not improper. Put simply,

“the effective date of the Act No. 10 presumption must be linked to the time

of trial—not the time of the underlying conduct.” Appellant’s brief at 20-21.

Next, Appellant asserts that assuming arguendo that § 505(b)(2.1) is

substantive, it is ameliorative legislation, i.e., it is defendant favorable.

Appellant maintains that Pennsylvania law “has in place an ‘ameliorative

amendment’ doctrine when substantive criminal law has been amended in a

defendant-favorable manner.” Id. at 21. In this regard, Appellant

highlights that prior cases have determined that statutes that reduce a

criminal penalty after a defendant has committed the crime, but before the

defendant is sentenced, receive retrospective application. Id. (citing

Commonwealth v. Swavely, 322 A.2d 710 (Pa.Super. 1974);

Commonwealth ex rel. Milk v. Maroney, 181 A.2d 702 (Pa.Super.

1962)).

In Swavely, the defendant pled guilty to driving with a suspended

license on November 13, 1972. At the time of his arrest for that offense,

which occurred on January 23, 1972, the statutory penalty called for a fine

of at least $100 and not more than $500, or imprisonment for no more than

- 15 -
J-A21012-14

three years, or both. However, on May 26, 1972, the legislature amended

the penalty provision to reduce the fine to not less than $100, nor more than

$200, or imprisonment not to exceed two months, or both. The new statute

did not contain a savings clause. The Swavely Court reasoned that because

the amended penalty statute “did not contain any ‘saving clause’ to continue

the effect of the prior repealed penalty provision, we hold that the lower

court erred in sentencing appellant under the repealed penalty provision[.]”

Swavely, supra at 711 (footnote omitted).

In support, the court in Swavely relied on Milk, supra. In Milk, the

defendant was incarcerated in a state correctional institution on a sentence

of ten to twenty years. The defendant escaped, and, after being

apprehended, pled guilty to that offense. The court imposed a seven-and-

one-half-to-fifteen-year sentence, but suspended the sentence. The

defendant attempted to escape from prison again, and the court revoked the

suspended sentence and directed the defendant to serve the sentence. Prior

to the defendant’s sentencing, however, the legislature reduced the

maximum punishment for his crime to ten years. The Milk Court ruled that

the defendant was subject to the lesser penalty.

Appellant acknowledges that the law in question does not pertain to a

reduction in a criminal penalty, but contends that its ameliorative effect is

greater because it is codifying common law and constitutional rights.

According to Appellant, “[t]here is no reason in logic to apply the

- 16 -
J-A21012-14

ameliorative amendment doctrine only when there is a reduction in a

defendant’s penalty, but to withhold it when there is a recognition of

common law and constitutional rights that culminates in legislation that

vindicates this right[.]” Appellant’s brief at 22.

Lastly, Appellant argues that § 505(b)(2.1) is procedural and not

substantive. Appellant notes that the statute does not alter the substantive

elements of self-defense, but only creates an evidentiary presumption that

persons inside their own abodes act reasonably in using deadly force where

the other person is an intruder or attempting to illegally enter the residence.

Relying on Commonwealth v. DiFrancesco, 329 A.2d 204 (Pa. 1974),

Appellant submits that evidentiary presumptions are procedural. In

DiFrancesco, the Pennsylvania Supreme Court opined that a presumption

“is a procedural device which not only permits an inference of the ‘presumed

fact’, but also shifts to the opposing party the burden of producing evidence

to disprove the presumed fact.” Id. at 207 n.3.

Appellant also analogizes § 505(b)(2.1) to the Pennsylvania Rules of

Evidence, which apply to proceedings that begin on or after the effective

date of the rules. For Appellant, “[b]oth the Rules of Evidence and the Act

No. 10 presumption at issue here are procedural in a similar way—both set

rules as to what a jury can consider (and how it can consider it) in making

its fact-finding determination.” Appellant’s brief at 24.

- 17 -
J-A21012-14

The Commonwealth replies that Appellant was not entitled to a self-

defense instruction because self-defense was not at issue.2 In support of

this position, it argues that Appellant claimed that he stabbed the victim

unintentionally. Reading Appellant’s statement to police after the incident,

the Commonwealth suggests that, because Appellant did not admit to

stabbing the victim intentionally, he received a windfall by getting a self-

defense instruction.

Appellant did inform police that, “I stabbed him unintentionally. I was

just trying to scare him. I didn’t mean to kill him.” N.T., 11/15/12, at 132.

However, in the same statement he also asserted that he was attempting to

poke the victim with the knife and set forth, “I did not mean to stab him to

hurt him. I just wanted to scare him. I didn’t mean to hurt or kill him, I

was just trying to defend myself.” Id. at 136. Mr. Beander also testified in

response to the prosecutor’s questioning that Appellant told him that he had

to defend himself and provided a similar statement to police during the

investigation. Another witness, Anginella Murray, also told police that

Appellant insisted that he acted in self-defense.

____________________________________________
2
The Commonwealth did not object to the jury instruction on self-defense
that the trial court provided, nor did it argue that self-defense was not at
issue. Indeed, during the first trial, the prosecutor in her opening statement
set forth that the jury would be instructed on self-defense. See N.T.,
11/8/11, at 69-70. At the second trial, the prosecutor indicated in her
opening statement that the court “may instruct you at the end of trial about
what self defense is.” N.T., 11/13/12, at 27.

- 18 -
J-A21012-14

The Commonwealth relies on Commonwealth v. Harris, 665 A.2d

1172 (Pa. 1995), in advancing its argument. In Harris, the defendant shot

and wounded the father of his wife’s son inside the defendant’s home. The

defendant therein testified that his weapon, a shotgun, accidentally

discharged when his wife and the victim attempted to secure the weapon

from him. The Pennsylvania Supreme Court ruled that, because the

defendant testified that he did not intend to fire the weapon, a self-defense

instruction was not warranted. As Appellant’s statement and the evidence

herein are distinguishable from Harris, we reject the Commonwealth’s

position that no self-defense charge was warranted at all. It is evident that

Appellant was stating that he did not specifically intend to kill the victim, but

did intend to defend himself by poking his knife at the victim.

The Commonwealth also rejoins that, since Appellant stabbed the

victim on July 29, 2010, and the presumption in question did not become

law until August 27, 2011, he was not entitled to the requested jury

instruction at his trial that occurred post-August 27, 2011. It points out that

the statute was approved on June 28, 2011, and was to take effect in 60

days. Relying on 1 Pa.C.S. § 1926 and 1 Pa.C.S. § 1953, the

Commonwealth contends that the statute does not apply retroactively. In

this respect, § 1926 reads, “No statute shall be construed to be retroactive

unless clearly and manifestly so intended by the General Assembly.” 1

Pa.C.S. § 1926. Concomitantly, § 1953 provides,

- 19 -
J-A21012-14

Whenever a section or part of a statute is amended, the
amendment shall be construed as merging into the original
statute, become a part thereof, and replace the part amended,
and the remainder of the original statute and the amendment
shall be read together and viewed as one statute passed at one
time; but the portions of the statute which were not altered by
the amendment shall be construed as effective from the time of
their original enactment, and the new provisions shall be
construed as effective only from the date when the amendment
became effective.

1 Pa.C.S. § 1953.

The Commonwealth maintains that although the preamble underscores

“the significance of the right of self-defense, [it] simply does not speak to

the question of retroactivity.” Commonwealth’s brief at 13. According to

the Commonwealth, the legislature was well aware of the manner in which it

could make the statute retroactive. It adds that Appellant’s reliance on

Swavely and Milk is misguided. The Commonwealth distinguishes those

cases on the grounds that they apply to sentencing. Without citation to any

Pennsylvania law, the Commonwealth asserts that those decisions “do not

speak to changes in the law that affect the manner in which the prior

conduct of the accused is evaluated at trial.” Commonwealth’s brief at 16.

The Commonwealth further rejects Appellant’s reliance on DiFrancesco and

posits that the applicable statute is not purely procedural. It sets forth that

the Pennsylvania Supreme Court has exclusive procedural rule making

- 20 -
J-A21012-14

authority, and therefore, if the statute were considered procedural, it would

be of questionable constitutionality.3

The Commonwealth adds that, in Florida and Michigan, courts have

concluded that application of a new broader Castle Doctrine in those states

to criminal acts occurring before the passage of their respective laws would

have been impermissibly retroactive. See Smiley v. Florida, 966 So.2d

330 (Fla. 2007); People v. Conyer, 762 N.W.2d 198 (Mich.App. 2008).

This case, unlike those matters, does not involve the application of Act 10 to

a claim of self-defense in one’s vehicle or in a setting outside of the

defendant’s home. Since this case does not involve an extension of the

Castle Doctrine to areas outside a person’s residence, the discussions

contained in those jurisdictions is unavailing.

The Castle Doctrine, as it is commonly known and was referred to in

the preamble to Act 10, existed at English common law well before the

____________________________________________
3
We note that our Supreme Court in Commonwealth v. Fisher, 741 A.2d
1234, 1241 (Pa. 1999), declared that a statutory provision relative to
aggravating factors for the death penalty statute was not substantive;
however, it did not declare the law to be an unconstitutional invasion of its
procedural rule-making authority. Importantly, the Supreme Court has sua
sponte ruled that statutes unconstitutionally violate its rule-making power.
In re Suspension of Capital Unitary Review Act, 722 A.2d 676 (Pa.
1999). Therefore, it is immaterial whether or not a party raises this concern
before that Court. To the extent the Commonwealth suggests that a
statutory provision that operates in a procedural manner can never be
passed by the legislature, we believe that position is legally untenable. See
Fisher, supra.

- 21 -
J-A21012-14

founding of America.4 Lord Chief Justice Matthew Hale opined, where a man

“is assailed in his own house, he need not flee as far as he can, as in other

cases of se defendendo, for he hath the protection of his house to excuse

him from flying, as that would be to give up the protection of his house to

his adversary by flight.” People v. Tomlins, 107 N.E. 496, 497 (N.Y. 1914)

(quoting 1 Hale’s Plea of the Crown, 486). Justice Benjamin Cardozo, while

on the New York High Court one hundred years ago, posited that “[f]light is

for sanctuary and shelter, and shelter, if not sanctuary, is in the home. That

there is, in such a situation, no duty to retreat is, we think, the settled law in

the United States as in England.” Id. at 497.

The United States Supreme Court endorsed the Castle Doctrine in

Beard v. United States, 158 U.S. 550 (1895), reasoning that one had no

duty to retreat even when outside the dwelling if still on one’s own property.

____________________________________________
4
Lord Edward Coke opined in Semayne’s Case, 77 Eng. Rep. 194, 195
(K.B. 1604), “the house of every one is to him as his castle.” John Adams
remarked in 1774,

“An Englishman[’]s dwelling House is his Castle. The Law has
erected a Fortification round it—and as every Man is party to the
Law, i.e., the Law is a Covenant of every Member of society with
every other Member, therefore every Member of Society has
entered into a solemn Covenant with every other that he shall
enjoy in his own dwelling House as compleat a security, safety
and Peace and Tranquility as if it was surround with Walls of
Brass, with Ramparts and Palisadoes and defended with a
Garrison and Artillery[.]”

1 Legal Papers of John Adams, 137 (L. Kinvin Wroth & Hiller B. Zobel eds.,
1965).

- 22 -
J-A21012-14

Pennsylvania courts first discussed the question of whether there is a duty to

retreat in one’s dwelling in 1952. See Commonwealth v. Fraser, 85 A.2d

126 (Pa. 1952). Therein, it adopted the common law doctrine stating that

the law governing the absence of a duty to retreat when in your own house

“has always been recognized as the law in this State, and the fact that it has

not been seriously questioned accounts for the apparent dearth of any

express statement or ruling on the subject by our appellate courts.” Id. at

128.

Prior to the passage of Act 10, aspects of the common law governing

self-defense in this Commonwealth had been codified by statute,5 in relevant

part, as follows:

(2) The use of deadly force is not justifiable under this section
unless the actor believes that such force is necessary to protect
himself against death, serious bodily injury, kidnapping or sexual
intercourse compelled by force or threat; nor is it justifiable if:

(i) the actor, with the intent of causing death or serious bodily
injury, provoked the use of force against himself in the same
encounter; or

(ii) the actor knows that he can avoid the necessity of using such
force with complete safety by retreating or by surrendering
possession of a thing to a person asserting a claim of right
thereto or by complying with a demand that he abstain from any
action which he has no duty to take, except that:

____________________________________________
5
We are cognizant that, at common law, the defendant bore the burden of
establishing self-defense by a preponderance of the evidence. See
Commonwealth v. Mouzon, 53 A.3d 738 (Pa. 2012). Currently, the
Commonwealth bears the burden of demonstrating beyond a reasonable
doubt that the defendant did not act in self-defense. Id. at 743.

- 23 -
J-A21012-14

(A) the actor is not obliged to retreat from his dwelling or place
of work, unless he was the initial aggressor or is assailed in his
place of work by another person whose place of work the actor
knows it to be;

18 Pa.C.S. § 505.

Accordingly, before the passage of the new act, a self-defense claim by

an individual who was in his residence required that some evidence be

shown, by either the Commonwealth or the defendant, that the defendant

reasonably believed he was in imminent danger of death or serious bodily

injury and it was necessary to use deadly force to prevent such harm.

Additionally, the defendant must not have provoked the use of force against

himself in that same encounter with the intent of causing death or serious

bodily injury. Commonwealth v. Samuel, 590 A.2d 1245, 1248 (Pa. 1991)

(“in order to find that the defendant had forfeited his right to self-defense

pursuant to the doctrine of provocation, the facts must support the statutory

requirement that the defendant, with the intent of causing death or serious

bodily injury, provoked the use of force.”) (italics in original).

Following the passage of Act 10, it is explicitly presumed that a

person acts reasonably in using deadly force where another individual

unlawfully and forcefully enters or is in the process of entering the residence

of the person allegedly acting in self-defense. Hence, the defendant need

not introduce evidence that he reasonably believed he was in imminent

danger of death or serious bodily injury.

- 24 -
J-A21012-14

Here, we find that Act 10 does not interfere with or impair a vested

right of either the Commonwealth or Appellant. While Appellant has a

vested right to self-defense, Act 10 does not interfere or impair that right.

Nor did Appellant have a vested right in favor of an evidentiary presumption.

The General Assembly did not impose additional legal burdens on Appellant

by passing the presumption. In addition, the Commonwealth has no vested

right against an evidentiary presumption in self-defense cases. Since the

Commonwealth has no vested right against the creation of evidentiary

presumptions with respect to self-defense claims, and Appellant has no

vested right to an evidentiary presumption in his favor, Act 10’s evidentiary

presumption for those acting in their homes would not operate retroactively

in trials occurring after its effective date simply because the criminal act

transpired before the passage of the statute.

We are aware that some iterations of the civil retroactivity test,

encased onto criminal matters, also discusses whether the law changes the

legal consequences of acts completed before the effective date of the

statute, or creates a new obligation, or imposes a new duty for past

transactions. See Robinson, supra. The legal consequences of Appellant

not retreating in his own home are identical before and after Act 10.

Further, the Commonwealth’s burden of proving beyond a reasonable doubt

that a person acted unreasonably in using deadly force inside his or her

home is unchanged.

- 25 -
J-A21012-14

Both before and after Act 10, defendants were presumed innocent of

the crimes charged and were thereby presumed to have acted reasonably if

they forwarded a self-defense claim. The Commonwealth would present the

same evidence to establish Appellant’s guilt under either Act 10 or the

former law. Cf. Commonwealth v. Fisher, 741 A.2d 1234, 1241 (Pa.

1999) (since the same evidence would be used to prove a new aggravating

death penalty factor as under the prior law, the new statute did not affect

the substantive rights of the defendant). Thus, where the claim of self-

defense is premised on actions in the home, the evidentiary presumption in

Act 10 affects no new substantive change in the law.

Portions of Act 10 that are not relevant here undoubtedly broaden the

substantive rights of an accused. See e.g. 18 Pa.C.S. § 505(b)(2.3). Of

course, the prohibition against retroactive legislation that affects substantive

rights was never construed at common law to apply to laws that benefit the

accused, see Duane, supra; see also Landgraf, supra at 270-271, but

applied to laws that impaired or infringed a substantive right. The legislative

enactment of 1 Pa.C.S. § 1926, and its predecessor, 46 P.S. § 556, was

intended as a codification of the common law rule, not a rejection of that

rule. As Appellant recognizes, even after the legislature adopted a statutory

prohibition against retroactive legislation, that prohibition has not been

applied to ameliorative sentencing laws. See Swavely, supra; Milk,

supra; see also Robinson, supra.

- 26 -
J-A21012-14

Although the evidentiary presumption for defendants acting in their

own residences is not a sentencing law, nor does it completely remove

criminal liability, neither does it create or define the right of self-defense in

one’s home. Instead, it addresses a method of enforcing that right of self-

defense.6 Moreover, evidentiary presumptions are procedural mechanisms.

DiFrancesco, supra. Accordingly, the evidentiary presumption for

defendants acting in their residence is not retroactive merely because it

would be used in a trial after the law’s effective date, where the person on

trial committed the acts prior to the statute’s enactment. Since the trial

court erroneously concluded that providing the jury instruction would have

been a retroactive application of the pertinent law, we find that Appellant is

entitled to a new trial.

Judgment of sentence reversed. Case remanded. Jurisdiction

relinquished.

Judge Ott joins the Memorandum.

Judge Strassburger files a Dissenting Memorandum.

____________________________________________
6
We note that we are not faced with the question as to how the evidentiary
presumption applies to a person in a vehicle self-defense case or other
aspects of the statute as it pertains to one’s right to stand his or her ground
outside the home.

- 27 -
J-A21012-14

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/10/2014

- 28 -