dissenting, in support of reversal.
The defendant, Anthony Michael Fowlin (Fowlin), appeals from the trial court’s denial of his petition for habeas corpus relief. Because I find the majority’s decision is in direct contravention of both the statutory and the settled common law of this Commonwealth, I must respectfully dissent.
The record reveals that in the early morning hours of December 12, 1993, appellant Fowlin was in a local nightclub when three men accosted him. One of the men sprayed pepper gas in Fowlin’s eyes, while another of the assailants displayed a handgun. Because of a previous incident during which one of the assailants had shot him, Fowlin believed that the assailants intended to kill him. As a result, he removed his own gun, which he was licensed to carry on his person, and although blinded from the pepper gas, Fowlin allegedly aimed at the floor and fired eleven shots in the direction of his attackers. Fowlin killed one of his attackers, wounded another, and also wounded a bystander.
There were approximately two hundred people in the club at the time of the incident. Immediately following the shooting, Fowlin left the club and turned himself in to the Easton police. He gave a statement to the officers and relinquished his gun and the clip containing the unused rounds.
Fowlin was charged with various crimes stemming from the shootings. After the investigation, however, the district attorney withdrew all the charges relating to Fowlin’s acts towards his attackers. The district attorney accepted Fowlin’s version of the events and was satisfied that, under the circumstances, Fowlin’s actions constituted justifiable self-defense, thereby relieving him of any criminal culpability for the shooting of his attackers. The Commonwealth, however, decided to pursue charges of reckless endangerment and aggravated assault for the injury to the bystander.
Fowlin filed a petition for habeas corpus relief, which the trial court denied. The trial court, although finding no authority under the law of Pennsylvania, concluded that Fowlin could be criminally liable for recklessly inflicting injury upon a *510bystander in the course of employing lawful self-defense. Fowlin appeals and challenges the trial court’s decision as an error of law.
This court’s function in reviewing habeas corpus proceedings is to determine whether the Commonwealth has established a prima facie case, that is, the presence of each and every element necessary to constitute the offense charged. Commonwealth v. Owen, 397 Pa.Super. 507, 580 A.2d 412 (1990). We must review the facts proven by the Commonwealth and
determine whether the sum of those facts fits within the statutory definition of the types of conduct declared by the Pennsylvania legislature in the Crimes Code to be illegal conduct. If the proven facts fit the definition of the offenses with which the appellees are charged, then a prima facie case was made out as to such offense or offenses. If the facts do not fit the statutory definition of the offenses charged against the [defendant], then the [defendant is] entitled to be discharged.
Id. at 510, 580 A.2d at 414 (emphasis added). Furthermore, the Commonwealth must show the existence of each material element of the charge in order to establish a prima facie case; “the absence of evidence as to the existence of a material element is fatal.” Id. at 511, 580 A.2d at 414.
The law of this Commonwealth is well-settled that to defeat a claim of self-defense, the Commonwealth must establish one of the following elements beyond a reasonable doubt:
(1) that the defendant did not reasonably believe it was necessary to act in order to protect himself against death or serious bodily harm; or
(2) that the defendant used more force than was reasonably necessary, considering all of the surrounding circumstances, to save himself from death, serious bodily injury, or the commission of a felony; or
(3) that the defendant provoked the use of force; or,
(4) that the defendant had a duty to retreat and that retreat was possible with complete safety.
*51118 Pa.C.S.A. § 505; Commonwealth v. Miller, 430 Pa.Super. 297, 307, 634 A.2d 614, 619 (1993); see also Commonwealth v. McClain, 402 Pa.Super, 636, 587 A.2d 798 (1991), alloc. denied, 528 Pa. 636, 598 A.2d 993; Commonwealth v. Helm, 485 Pa. 315, 402 A.2d 500 (1979). Self-defense issues of whether a defendant acted out of a bona fide and reasonable belief that he was in imminent danger and whether the force employed under the circumstances was excessive are questions to be resolved by the fact-finder. Commonwealth v. Hill, 427 Pa.Super. 440, 629 A.2d 949 (1993), appeal denied, 538 Pa. 609, 645 A.2d 1313; Commonwealth v. Carbone, 375 Pa.Super. 261, 544 A.2d 462 (1988), rev’d on other grounds, 524 Pa. 551, 574 A.2d 584. The trier of fact must also determine whether or not the person making a claim of self-defense was the initial aggressor. McClain, supra.
In light of the previous attack upon Fowlin by one of his assailants, the Commonwealth does not question the reasonableness of Fowlin’s belief that he was about to suffer either death or serious bodily injury. The evidence also establishes that Fowlin was sitting in the club when the three men approached and assaulted him and that Fowlin did not provoke the incident. The sole issue that the trier of fact must determine, therefore, is whether, while blinded by pepper gas, the firing of eleven shots in a semi-circle was excessive considering that the defendant was in close proximity to approximately two hundred other people.
The Crimes Code specifically provides that when a person is caught in the dilemma of either defending his person or injuring another, and is
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 may be, suffices to establish culpability.
18 Pa.C.S.A. § 503(d) (emphasis added). It is clear, therefore, that the person’s actions are not justified if he “consciously disregards” or “fails to perceive” a “substantial and unjustifia*512ble risk” of injury to innocent bystanders. 18 Pa.C.S.A. § 302(b)(3) (relating to recklessness); 18 Pa.C.S.A. § 302(b)(4) (relating to negligence). Implicit in the definition of each level of culpability, however, is the requirement that the risk be “unjustifiable.” 18 Pa.C.S.A. § 302(b)(3), (4). Once the person’s action are found to be justified, recklessness and negligence are no longer applicable.
One of the principal precepts of criminal law is that a defendant must act with “malice” in order to be criminally culpable for his conduct. When recklessness is the standard by which culpability is established, the attributes of the state of mind which evidence recklessness, and its relation to a claim of self-defense, are explained in our case law. In Commonwealth v. Malone, 354 Pa. 180, 47 A.2d 445 (1946), the Pennsylvania Supreme Court explained:
When an individual commits an act of gross recklessness for which he must reasonably anticipate that death [or serious injury] to another is likely to result, he exhibits that “wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty ’ which proved that there was at the time ‘the state or frame of mind termed malice.’
Id. at 183, 47 A.2d at 447 (quoting Commonwealth v. Drum, 58 Pa. 9 (1868)).
One hundred years after Drum, supra, and six years following the enactment of the Crimes Code, our supreme court held that “[a] claim of self-defense, if believed, would negate any element of ‘ill-will, wickedness of disposition, hardness of heart, cruelty or recklessness of consequences, and a mind regardless of social duty ’ necessary to constitute malice.” Commonwealth v. Hilbert, 476 Pa. 288, 301, 382 A.2d 724, 731 (1978) (emphasis added). This remains the law of the Commonwealth. Cf. Commonwealth v. Heatherington, 477 Pa. 562, 385 A.2d 338 (1978) (in order to meet burden of proof on the element of malice, the Commonwealth must exclude self-defense beyond a reasonable doubt).
*513It is clear that both the reasonableness of the defendant’s belief and the excessiveness of the force employed are questions of fact which would either establish or disprove the existence of the justification. Similarly, by going to the tavern with a loaded weapon, in light of the previous attack by his assailant and the rumors he had heard regarding another potential attack, Fowlin may not have been free from fault in bringing about the situation that required the act of self-defense. That question of fact, however, again concerns the existence of the justification.
Instantly, the Commonwealth conducted an investigation, and, after discussions with the district attorney’s office, believed Fowlin’s self-defense to be valid, Hilbert, supra, and concluded on the record that Fowlin acted in justifiable self-defense. Although my review of the limited facts of record indicates that it might have been possible for a trier of fact to conclude that Fowlin’s actions in firing that many shots while in close proximity to hundreds of other people were reckless or negligent, and therefore excessive, the Commonwealth’s concession that Fowlin’s conduct was justified, however, conclusively establishes, on the record, the following facts: that Fowlin (1) did not provoke the use of force, (2) either had no duty to retreat or that retreat with complete safety was not possible, (3) that his belief concerning his immediate safety was reasonable, and (4) that the firing of eleven shots in a crowded room was not excessive. Miller, supra. Fowlin’s actions under the circumstances are either reasonable or excessive. As the two positions are mutually exclusive of one another, there is nothing for the trier of fact to resolve. The Commonwealth has removed the questions from the province of the trier of fact and the issue concerning the existence of the justification, therefore, is moot.
Furthermore, the defendant’s conduct does not occur in a vacuum and one must necessarily consider the totality of the circumstances under which it occurred. Either the firing of eleven shots in a crowded room in defense of his person was reckless or it was justified and the finding of one precludes finding the other when the conduct and the circumstances *514surrounding it are identical.1 Accordingly, the Commonwealth’s admission on the record that Fowlin’s actions were in justifiable self-defense eliminates the possibility of finding his actions were reckless.
The conclusion that one must draw, from both the Crimes Code and our case law, is that once the existence of justifiable self-defense is established, it negates any element of recklessness, Hilbert, supra, for any charge2 relating to the defendant’s actions which could be brought by the prosecution. As a result, the Commonwealth cannot show evidence of the existence of a material element of the charge. Owen, supra. I find, therefore, that the Commonwealth has failed to establish a prima facie case and the charges against Fowlin should be dismissed.3 Owen, supra.
*515The inquiry cannot end here, however, since the majority has concluded that, despite the fact that Fowlin’s action were deemed justified, 18 Pa.C.S.A. § 505(b) “does not specifically foreclose prosecution where defensive force is employed in a reckless or negligent manner, but rather leaves open such a possibility” to pursue the charges of aggravated assault and reckless endangerment for the injury sustained by the bystander. I find this conclusion misinterprets the Crimes Code.4
The Crimes Code specifically directs that a “legislative purpose to exclude the justification” must “plainly appear.” 18 Pa.C.S.A. § 503(a)(1). The Code cannot, therefore, “leave open ... a possibility” to exclude the justification in an action for injury to the bystander where the justification is proved against the defendant’s assailants; the legislative intent must be readily and clearly apparent. In analyzing the legislative purpose, it is important to note that the Crimes Code was modeled after the Model Penal Code, and the chapter concerning the law of justification adopted nine of the corresponding sections in the Model Penal Code. The one related section of the Model Penal Code that the legislature did not adopt, but upon which the majority relies, is section 3.09, which permits culpability when a person recklessly or negligently injures or *516risks injury to innocent persons during otherwise justified actions.
A long recognized maxim of statutory interpretation, ex-pressio unius est exclusio alterius, meaning the expression of one thing is the exclusion of another, lends credence to my conclusion that in specifically including nine sections, the legislature intended to specifically exclude the tenth. In the absence of legislative history to the contrary, we are compelled to reach this conclusion.
The majority also notes that the Crimes Code was essentially a codification of the common law as it existed up to the time of the legislature’s enactment of the statute. It then rationalizes that since no case law could be found regarding a situation where one acting in self-defense is reckless or negligent, it was not surprising that there is no statutory law corresponding to § 3.09 of the Model Penal Code. As discussed earlier, the reason for this lies in the fact that the question of the defendant’s recklessness under the circumstances deals directly with the existence of the justification, and therefore, one cannot find a case of record in Pennsylvania where a defendant was found to have acted recklessly under the circumstances in which the courts or trier of fact then went on to find that his actions of self-defense were justified.
Assuming, arguendo, that a defendant should be held criminally liable for injury to a bystander after it has been determined that he was acting in justifiable self-defense, the decision to create such liability remains the function of the legislature. Moreover, this decision should not be made in response to what even the trial court concludes is a “close case.”5
*517Nonetheless, even if the legislature were to adopt a section similar to § 3.09 of the Model Penal Code establishing such liability, the statute could not be retroactively applied to attach culpability to conduct that occurred before the law was effective. A defendant’s criminal culpability can only be governed by the law of Pennsylvania as it existed at the time he committed his actions. See Commonwealth v. Myers, 438 Pa. 218, 261 A.2d 550 (1970).
The decision of this court, however, accomplishes what the legislature could not, and the result, in effect, is an ex post facto judicial rule of law. An ex post facto law, which is constitutionally prohibited under both the United States Constitution and Article I, § 17 of the Pennsylvania Constitution, is any law which:
(1) makes an act done before the passing of the law, and which was innocent when done, criminal; or
(2) aggravates a crime or makes it greater than it was when committed; or
(3) changes the punishment or inflicts greater punishment than the law annexed to the crime when it was committed; or
(4) changes the legal rules of evidence, requiring less or different testimony than law required at the time the offense was committed in order to convict.
*518Commonwealth v. Kalck, 239 Pa. 533, 87 A. 61 (1913) (citing Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648 (1798)). “A law is unconstitutionally ‘ex post facto ’ if it deprives the defendant of a defense to criminal liability that he had prior to enactment of the law.” Black’s Law Dictionary, 580 (6th edition, 1990) (citation omitted). The decision to limit the scope of the justification, which would exculpate the defendant from criminal liability on the day of incident, undisputedly makes the crime “greater [today] than it was when committed.” Kalck, supra.
The courts of this Commonwealth are the sentinels charged with the responsibility of protecting our citizens from such violations of their constitutional rights; we should not be the originator of the violation.
. To hold otherwise raises concerns of double jeopardy, whereby the defendant, for the very same actions under the very same circumstances, simply by substituting another victim, can be tried in another action, after his conduct was previously found justified and excused. See Commonwealth v. Caufman, 541 Pa. 299, 662 A.2d 1050 (1995); see also Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (the test is whether each requires proof of a fact which the other does not).
. With regard to Judge Del Sole’s response to this premise, I do not dispute that the district attorney has the authority to decide which charges to pursue, and which charges to withdraw, in any prosecution. I also agree that a jury could well have acquitted Fowlin for the charges related to his attackers, and still found him guilty of reckless endangerment and aggravated assault to the bystander. If the issue were properly before the jury, I would have no trouble upholding such a result.
The problem here, however, is not simply the Commonwealth’s withdrawal of the charges relating to the attackers, but rather, its determination that Fowlin acted in lawful self-defense. I reiterate that, due to this admission, there is nothing for the jury to decide. I fail to see how the Commonwealth can disprove something beyond a reasonable doubt which it has conceded.
I note this to reinforce the necessity for the legislature’s involvement and for further analysis prior to implementation of this rule of law.
. The remainder of my esteemed colleagues who would dismiss the charges against Fowlin can find no basis for concluding that the appellant's conduct was reckless or criminally negligent due to the emergency circumstances of this case. It is, however, the emergency or exigent circumstances in any case which would dictate the reasonableness of the defendant’s belief and actions, thereby establishing whether those actions were either reckless or criminally negligent or in *515justifiable and lawful self-defense. I am unable to segregate the emergency circumstances so that they would apply to the assailants but not to a bystander who happens to be in the vicinity.
I also believe that the opinion that a defendant who uses justifiable force against his assailants should nonetheless be criminally liable for injuries inflicted on an innocent bystander sets a dangerous precedent. A person who retaliates in justified defense of his person is entirely at the whim of his attackers regarding the time, place and other surrounding circumstances during which they choose to assault him. Criminal liability would thus be predicate upon conditions outside the defender's control, a result inapposite to the purpose of the law to set guidelines according to which a person can comport his conduct. The ends of justice would be better served by assessing liability upon those who set the events in motion, rather than the person who must respond, and quickly, or risk serious bodily injury or death himself.
. The majority has correctly concluded that a defendant cannot be found criminally culpable under the doctrine of transferred intent for injury to an innocent bystander when he acts in lawful self-defense. See 18 Pa.C.S.A. § 303.
. Self-defense essentially invokes the natural instinct of self-preservation, and a legislative hearing in the General Assembly, with testimony on both sides of the issue from social scientists, behaviorists, and other interested participants, along with a more thorough analysis of the results and application of the law as enacted by those of our sister states who adopted section 3.09, is the more appropriate mechanism.
It is also important to note the inherent problems with such a rule. In assigning multiple levels of culpability under the same set of circumstances, one must inevitably draw a series of concentric circles emanat*517ing outward from the defendant at the center. One must then determine the distance within which the defendant’s actions are justified. The defendant would then be excused for injuring anyone within a circle of that diameter, and liable for injury to anyone outside that circle. How and where does one draw the line?
Instantly, it appears that the assailants were six to ten feet from Fowlin and the injured bystander was approximately fifteen feet away. Should the jury split the difference and set the limit at twelve feet? Should the line end at the distance where the last assailant was located or at the distance where the first bystander would be?
One can anticipate the absurd and unfair consequences that could arise when placing this type of dimensional analysis into a decision, which would establish culpability for the defendant’s actions against one person, but justify his actions against the next person. It seems that determining the existence of the justification after considering all the surrounding circumstances ultimately leads to a more uniform and predictable result.