For the Defense - Vol. 9, Issue 3 - 18

and gathering areas constitute patios. While the appellate
courts have not yet grappled with this issue, it would seem
that defense attorneys, where there is a colorable claim
that such outside area could constitute a patio, should
argue for the presumption found in Section 505(b)(2.1) and
that pursuant to the Rule of Lenity, any ambiguity in the
statute must be interpreted in favor of a criminal defendant.
Of course, many are shocked to learn that the entirety of
one's property, i.e., the curtilage, isn't specified as being
protected under the presumption. And of course, the failure
of the General Assembly to include curtilage results in some
interesting scenarios where one may or may not come under
the presumption on their own property. For example, if one's
garage is attached to the home, it is part of the " dwelling "
and the presumption would apply, if someone had broken in
or was attempting to break into the garage portion of the
dwelling. However, if the garage is detached, the presumption
would not apply (unless your spouse has kicked you out of
the bedroom and you're now sleeping in the garage). And
then there is the situation where the home and garage are
attached by a breezeway. Does that mean that the garage
is or is not part of the " dwelling " ? This is just one example
of many that arise by the General Assembly not including all
areas and buildings on one's property as part of the definition
of " dwelling. "
In turning to the inclusion of occupied vehicles, it is
important to once again look at the definition, which is
extremely broad. A vehicle is defined as " [a] conveyance
of any kind, whether or not motorized, that is designed
to transport people or property. " 23
Think about that for a
minute. If you're on a bicycle at the time you are attacked, the
Castle Doctrine presumption will apply. Similarly, if you are on
horseback, skateboard, tractor, or even being pushed around
in a wheelbarrow, the presumption will apply. Of course, this
is a double-edged sword, as one can never have a loaded
rifle or shotgun in any " vehicle, " per 18 Pa.C.S. § 6106.1,
and, historically, to have a loaded handgun in any vehicle,
one must have a license to carry firearms, pursuant to 18
Pa.C.S. §§ 6106 and 6109. Recently the constitutionality of 18
Pa.C.S. § 6106 has been drawn into question, with one federal
court striking down the prohibition on carrying a loaded
handgun in a vehicle as unconstitutional24
considering such.25
and another one
Furthermore, 18 Pa.C.S. § 6107 has been
ruled unconstitutional, initially, in relation to 18-to-20-yearolds,
in Lara v. Comm'r Pa. State Police26
to everyone, in Suarez, et al. v. Pa. State Police Comm'r. 27
I digress.
) and later in relation
But
Returning to the presumption applicable to occupied
vehicles, remember that the Castle Doctrine presumption
applies to force used against anyone attempting to " unlawfully
and forcefully enter or has unlawfully and forcefully entered "
an occupied vehicle. Thus, if someone attempts to break the
windows or open the door while the vehicle is occupied, the
individual in the vehicle is justified in using lethal force in
the absence of the aggressor having a weapon. Moreover,
consider the road rage incident, where the aggressor hits
your client's car with his car and as a result, your client
stops and gets out of his car. Is your client entitled to the
presumption? This author previously argued successfully to a
district attorney's office that his client was justified in using
lethal force in such a situation, because when the aggressor's
vehicle hit his client's vehicle, it was an unlawful and forceful
entry into the occupied vehicle.
18 For The Defense l Vol. 9, Issue 3
It is important to note that per 18 Pa.C.S. § 505(b)(2.1), the
lawful right to use lethal force in one's dwelling or vehicle
is a presumption that could, potentially, be rebutted. For
example, if your client has an ongoing feud with a neighbor
and one morning, around 1 a.m., he is awoken to noises
downstairs. Upon grabbing his firearm and investigating
the noise, he finds the neighbor, extremely intoxicated and
undressed in the living room, and it is clear to your client
that the neighbor does not even realize he is not in his own
home, but your client thinks this is his opportunity to rid
himself of the neighbor. Unfortunately for your client, if the
Commonwealth can prove beyond a reasonable doubt that
the neighbor posed him no threat at the time of the shooting,
the presumption can be rebutted.
Furthermore, per 18 Pa.C.S. § 505(b)(2.2), the presumption
does not apply if:
(i) the person against whom the force is used has
the right to be in or is a lawful resident of the
dwelling, residence or vehicle, such as an owner or
lessee;
(ii) the person sought to be removed is a child or
grandchild or is otherwise in the lawful custody
or under the lawful guardianship of the person
against whom the protective force is used;
(iii) the actor is engaged in a criminal activity or is
using the dwelling, residence or occupied vehicle
to further a criminal activity; or
(iv) the person against whom the force is used is
a peace officer acting in the performance of his
official duties and the actor using force knew or
reasonably should have known that the person
was a peace officer.
Stand Your Ground Doctrine
In addition to clarifying and extending certain provisions
of Pennsylvania's Castle Doctrine, H.B. 40 added a new Stand
Your Ground provision. While the preexisting statutory duty
to retreat was not disturbed, the new provisions clarified
that under certain circumstances, an actor " has no duty to
retreat and has the right to stand his ground and use force,
including deadly force. " To be entitled to this defense, the
actor: (1) must not be engaged in criminal activity or in
possession of an illegal firearm, (2) must be attacked in a
place where he previously would have had a duty to retreat,
(3) must have a right to be in the place where he is attacked,
(4) must believe the use of force is " immediately necessary "
to protect himself against " death, serious bodily injury,
kidnapping, or sexual intercourse by force or threat, " and
(5) the person against whom the force is used must have
displayed or used either " a firearm or replica of a firearm "
or " any other weapon readily or apparently capable of
lethal use. " In some circumstances, no exceptions to the duty
to retreat apply, such as, per 18 Pa.C.S. § 505(b)(1), where
the actor is resisting arrest that " the actor knows is being
made by a peace officer, although the arrest is unlawful, " or
per 18 Pa.C.S. § 505(b)(2.4), " if the person against whom the
force is used is a peace officer acting in the performance of his
official duties and the actor using force knew or reasonably
should have known that the person was a peace officer. "
For the Defense - Vol. 9, Issue 3

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