concurring and dissenting.
I respectfully dissent to the majority’s conclusion that a person who acts recklessly in exercising his right to self-defense may not be held criminally liable for injuries inflicted on an innocent bystander. I do not believe that a successful claim of self-defense negates the element of recklessness with respect to persons other than the attacker. Accordingly, even though I agree that appellant was justified in defending himself against his attackers, the issue of whether or not he acted recklessly towards an innocent bystander was a question of fact that should have gone to the jury.
The majority relies on Commonwealth v. Hilbert, 476 Pa. 288, 382 A.2d 724 (1978), and Commonwealth v. Heatherington, 477 Pa. 562, 385 A.2d 338 (1978), for the proposition that a person may not be found culpable for crimes involving recklessness if the alleged recklessness occurs in the course of justifiable self-defense. However, neither Hilbert nor Heatherington involved a situation where the defendant who exercised his right to self-defense also injured a bystander. The issue in Hilbert was whether the lower court erred in charging the jury that the appellant was required to prove by a preponderance of the evidence that she was acting in self-defense when she stabbed the victim. This Court held that because self-defense negated a specific element of the crime of murder, which the Commonwealth was required to prove beyond a reasonable doubt, the lower court impermissibly required the appellant to carry the burden of proof concerning the defense. In so holding, this Court stated: “A claim of self-defense, if believed, would negate any element of ill-will, *423wickedness of disposition, hardness of heart, cruelty or recklessness of consequences, and a mind regardless of social duty necessary to constitute malice.” Hilbert, 476 Pa. at 300, 382 A.2d at 730. Similarly, in Heatherington, this Court held that the trial court’s instruction was erroneous where it suggested to the jury that even if the Commonwealth proved all material elements of murder, including malice, a claim of self-defense, if believed by the jury, would result in acquittal because malice and self-defense are mutually exclusive. 477 Pa. at 569, 385 A.2d at 342.
Accordingly, these cases do not address the possibility of criminal liability for acting recklessly toward innocent third parties while simultaneously acting in lawful self-defense toward the aggressor. The majority incorrectly reasons that based upon Hilbert and Heatherington, any recklessness displayed by appellant towards the bystander was negated because he acted in self-defense with respect to his attackers. This reasoning would apply only if appellant were to be found liable under the doctrine of transferred intent. However, here the Commonwealth does not seek to transfer appellant’s intent with respect to his attackers, but rather seeks to impose criminal liability because of appellant’s intent with respect to a third party. I believe that Pennsylvania’s statutory scheme and sound policy reasons allow the Commonwealth to seek to impose criminal liability in these circumstances.
While the law of this Commonwealth recognizes the right to exercise self-defense, it does not permit unfettered discretion on the part of the actor. There are two relevant statutory provisions: 18 Pa.C.S § 5031 and 18 Pa.C.S. § 505.2 Section *424505(b)(3) allows the actor to determine whether it is necessary to use force under the circumstances as he believes them to be, how much force to use, and the manner in which to use it. It provides:
(3) Except as provided in paragraphs (1) and (2) of this subsection, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act which he has no legal duty to do or abstaining from any lawful action.
*425As the statute makes clear, the right to use force in self-defense is not absolute. See Section 505(b)(1) and (2) (providing circumstances in which the use of force is not justifiable). Implicit in the language of Section 505(a) and (b)(3) are limitations imposed upon on an actor when using force in self-defense. The list of limitations set forth in Section 505 is not exhaustive. The specific facts of a case and judicial decision ■will determine whether the force used was justifiable. The language of Section 505(b)(3) does not specifically foreclose prosecution where defensive force is employed in a reckless manner towards a third party. Rather, it leaves open such a possibility.
The law of justification as found in the Crimes Code of this Commonwealth is modeled after the Model Penal Code. Section 3.09 of the Model Penal Code specifically provides that when an actor is justified in using force but recklessly injures an innocent person, the justification does not provide a defense to the recklessness. Thus, the incident which justifies the use of force in self-defense does not necessarily justify or excuse the reckless conduct towards innocent bystanders.
Section 3.09 of the Model Penal Code was not specifically incorporated into the Pennsylvania Crimes Code. However, the concept expressed in Section 3.09 of the Model Penal Code that a person could be found culpable for acting recklessly while exercising self-defense was also incorporated into the explanatory note and comment to Section 3.04 of the Model Penal Code.3 Section 505(b)(3) of the Crimes Code is identical Section 3.04(2)(c) of the Model Penal Code. Thus, the concept found in the Model Penal Code that justification does not provide a defense to recklessness is embodied in the law of justification codified in the Pennsylvania Crimes Code. Additionally, the law of justification in this Commonwealth, while modeled after the Model Penal Code, was essentially a codification of the common law rules of self-defense. Commonwealth v. Walley, 466 Pa. 363, 367 n. 3, 353 A.2d 396, 398 n. 3 (1976). At the time that the legislature codified the law of justification, no case had dealt with the situation presented by *426the instant matter, where one acting in self-defense acts recklessly and injures an uninvolved party. Accordingly, as the Superior Court pointed out, it is not surprising that there is no Pennsylvania statutory law corresponding to Section 3.09 of the Model Penal Code.
The holding of the majority effectively allows an actor to respond in any manner and with whatever amount of force he chooses no matter who he injures, so long as he is justified in acting in self-defense. This is a dangerous precedent. As the Superior Court aptly pointed out, such blanket authority for the use of self-defense defies logic, especially in contemporary society where possession of lethal weapons and confrontations involving them have become all too commonplace. Under the majority’s reasoning, one would be justified and could not be found criminally liable for detonating a hand-grenade in a crowded shopping mall in order to defend himself against an attacker. Such a result is contrary to Pennsylvania’s statutory scheme of justification, which sets limits for the use of self-defense. The majority decision here recognizes no such limits.
Here, appellant was at a crowded nightclub, drew his gun and fired a series of eleven random shots while blinded by pepper spray. Even if appellant was justified in shooting his attackers in self-defense, the issue of whether he was criminally responsible for the reckless behavior which caused an innocent bystander to be injured should have gone to the jury. I am persuaded by other jurisdictions which reach a similar conclusion. See People v. Morris, 109 A.D.2d 413, 491 N.Y.S.2d 860, appeal dismissed, 68 N.Y.2d 799, 506 N.Y.S.2d 859, 498 N.E.2d 423 (1986) (where a defendant is justified in shooting an attacker, he is not less justified in shooting an innocent bystander accidentally; in certain circumstances however, a defendant may be convicted of a lesser included offense if the jury concluded that the injury to the bystander was caused by the defendant’s reckless or negligent conduct); People v. Jackson, 390 Mich. 621, 212 N.W.2d 918 (1973) (unintended killing of an innocent bystander is not murder if justifiably committed in proper self-defense; it may however be manslaughter if, considering all the circumstances, the *427defendant’s conduct toward the bystander was reckless); People v. Adams, 9 Ill.App.3d, 61, 291 N.E.2d 54 (1972) (one who acts in self-defense and accidentally kills another is guilty of no crime; but this rule is not absolute and may be subject to modification depending on the circumstances); People v. Robinson, 163 Ill.App.3d 754, 114 Ill.Dec. 898, 516 N.E.2d 1292, appeal denied, 119 Ill.2d 570, 119 Ill.Dec. 394, 522 N.E.2d 1253 (1988) (when one nonrecklessly uses justified self-defensive force against A that unintentionally kills B, one is relieved of liability for B’s death). I agree with these jurisdictions that if one acts recklessly in employing self-defense, he may be held criminally responsible. Imposing a recklessness standard of care on one employing lawful self-defense is appropriate. One engaged in self-defense should bear some responsibility towards uninvolved bystanders and must not act recklessly in exercising the right of self-defense. Accordingly, I dissent.
NEWMAN, J., joins this concurring and dissenting opinion.. Section 503 provides in pertinent part:
§ 503 Justification generally
(a) General rule. Conduct which the actor believes to be necessary to avoid harm or evil to himself or to another is justifiable if:
(1) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged:
(2) neither this title nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and
*424(3) a legislative purpose to exclude the justification claimed does not (otherwise plainly appear.
(b) Choice of evils. When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case my be, suffices to establish culpability.
. 18 Pa.C.S § 505 provides:
§ 505. Use of force in self protection
(a) Use of force justifiable for protection of the person. The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
(b) Limitations on justifying necessity for use of force.
(1) The use of force is not justifiable under this section:
(i) to resist an arrest ...
(ii) to resist force used by the occupier or possessor of property ...
(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:
(A) the actor is not obliged to retreat from his dwelling or place of work ...
(B) a public officer justified in using force in the performance of his duties or a person justified in using force in his assistance
or a person justified in using force in making an arrest or preventing an escape is not obliged to desist from efforts to perform such duty ...
. That section refers to the use of force in self-protection.