For the Defense - Vol. 9, Issue 3 - 17

was understood around the time of Founding and repeatedly
reminded them in that decision, that the Second Amendment
was the codification of " a pre-existing right. " 12
Like Lazarus, it
appears that the argument that the People have an inalienable
right to stand one's ground, as understood at Founding, has
been reinvigorated. Regardless, such is beyond the scope of
this Article,13
Your Ground Doctrines, as statutorily enacted. Nevertheless, it
is important for practitioners to be aware of the constitutional
argument, especially in a situation where a client's conduct
may not meet the necessary criteria for Pennsylvania's Castle
or Stand Your Ground laws.
History of Self-Defense in Pennsylvania
Historically, most jurisdictions, Pennsylvania included, have
if they may safely do so, and
recognized a so-called common-law duty for an individual to
retreat from a confrontation14
they may resort to the use of force only where necessary
to protect themselves against death or serious harm. The
Commonwealth still incorporates a general duty to retreat in
its self-defense statute, specifying that " [t]he use of deadly
force is not justifiable . . . if the actor knows that he can
safely avoid the necessity of using such force with complete
safety by retreating, " 15
with limited exceptions to this basic
rule. However, before considering the duty to retreat and the
changes that followed the enactment of Pennsylvania's Stand
Your Ground Doctrine, it is important to note what types of
defensive force are allowed and in what context.
The self-defense statute, enacted by the General Assembly
as 18 Pa.C.S. § 505 in 1972, was substantially a codification of
Progressive Era case law relating to the preexisting right of selfdefense,
when our previous Penal Code was replaced by our
current Crimes Code. In general, it established that the use of
force against another person was justifiable self-defense only
where the person using it " 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. "
The defense was not generally available to a person who was
resisting arrest or resisting force used by a property owner to
protect their property. Furthermore, deadly force under this
section was only justifiable to protect against death, serious
bodily injury, kidnapping, or involuntary sexual intercourse.
Deadly force could not be justifiably used by someone who
provoked the use of force against them or by a person who
could avoid the necessity to use force with complete safety by
retreating, complying with a demand to surrender property, or
abstaining from any action. The Pennsylvania Supreme Court
articulated the factors as " (a) the actor was free from fault in
provoking or continuing the difficulty which resulted in the use
of deadly force; (b) the actor reasonably believed that he was
in imminent danger of death or serious bodily injury and that
there was a necessity to use such force in order to save himself
or others; and (c) the actor did not violate any duty to retreat or
to avoid the danger. " 16
From 1972 to 2011, a person was only excused from the
duty to retreat while in their dwelling or place of work-the
so-called " Castle Doctrine. " Anywhere else, a defensive use
of deadly force would be subjected to scrutiny at trial as to
whether the defendant could have, with complete safety,
escaped the need to use deadly force by retreating from
the aggressor. What " complete safety " meant is, of course,
anyone's guess.17
Many would argue that turning one's back on
an assailant, even for a moment, is a manifestly unsafe action.
as the focus is on Pennsylvania's Castle and Stand
The actor may not know whether the assailant is faster or
stronger than he, or she, or what the assailant may do in
response to the actor's attempt to retreat. If the assailant
was armed with a weapon, especially a firearm, trying to flee
could easily be the immediate catalyst for death or serious
injury. It's not difficult to see how this standard could create
a dangerous amount ambiguity in a potential life-or-death
situation. Furthermore, the lack of a clear standard permitted
prosecutors and juries to consider what a defender should
have done in the moment based on hypotheses about their
own (likely unconfirmed and self-aggrandized) ability to do
so safely; rather than, restricting the analysis to what actions
the actor was legally entitled to take given the underlying
facts. This paradigm unnecessarily tilted the balance in favor
of aggressors by causing defenders to fear that they would be
punished for using deadly force to defend themselves.
Consequently, Pennsylvania passed its own Stand Your
Ground law via House Bill 40 in 2011,18
representing a major
change to how the Commonwealth approaches the use
of defensive force outside the home or workplace. In so
doing, the Legislature specifically found that " [i]t 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... 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. " 19
H.B. 40 and Pennsylvania's Castle and Stand Your Ground
Doctrines
In enacting H.B. 40, the General Assembly not only
enhanced certain provisions of Pennsylvania's already existing
Castle Doctrine, but also instituted a new Stand Your Ground
provision; each of which applies in different situations and
contexts. And of course, with both Castle and Stand Your
Ground Doctrines falling within the category of justification,
self-defense is a complete defense to criminal liability;
whereby, when raised by a defendant at trial and supported
by at least some evidence supporting a claim of self-defense,
the Commonwealth then bears the burden of proving beyond
a reasonable doubt that the conditions for lawful self-defense
did not exist.20
Castle Doctrine
The Castle Doctrine derives
its name from the legal
precept that a man's home is his castle and that within the
confines of one's home, lethal force can be utilized against
anyone who has broken into that home.21
Historically, here in
With
Pennsylvania, the Castle Doctrine only applied to one's home
and did not address attached porches, decks, or patios. 22
the passage of H.B. 40, the definition of a " dwelling " found
in 18 Pa.C.S. § 501 was amended to include " any attached
porch, deck or patio, " as well as, extending the presumption
applicable to one's dwelling, to one's occupied vehicle. Taking
these amendments in turn, while one can clearly understand
how one attaches a porch or deck, many have been left to
scratch their heads as to how one attaches a patio. Worse
yet, the word patio is not defined, and Black's Law Dictionary
does not define it; leaving practitioners and perhaps more
importantly, individuals wanting to ensure their compliance
with the law, to question whether certain outdoor walkways
Vol. 9, Issue 3 l For The Defense 17
For the Defense - Vol. 9, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 9, Issue 3
