Com. v. Fowlin

• Decision Date: 12 April 1996
• Citation: 676 A.2d 665,450 Pa.Super. 489
• Parties: COMMONWEALTH of Pennsylvania v. Anthony Michael FOWLIN, Appellant.
• Court: Pennsylvania Superior Court

Page 665

676 A.2d 665

450 Pa.Super. 489

COMMONWEALTH of Pennsylvania v. Anthony Michael FOWLIN, Appellant.

Superior Court of Pennsylvania.

Argued Nov. 2, 1995.

Filed April 12, 1996.

Gary N. Asteak, Easton, for appellant.

Mark Refowich, Assistant District Attorney, Easton, for Commonwealth, appellee.

Before ROWLEY, President Judge ^*, CAVANAUGH, WIEAND, ^** McEWEN, CIRILLO, DEL SOLE, BECK, JOHNSON and CERCONE, JJ.

OPINION IN SUPPORT OF AFFIRMANCE

CAVANAUGH, Judge.

This appeal presents us with the question of whether a criminal defendant, who uses justifiable force in defending himself against an assailant(s), may nonetheless be held criminally culpable for unintentionally injuring an innocent bystander. Having concluded that a criminal defendant may be held criminally culpable in these circumstances, we affirm the trial court's order which denied appellant's petition for habeas corpus relief, and remand the case for trial. ¹

In the early morning hours of December 12, 1993, appellant was at a crowded nightclub in Easton, Pennsylvania. He was approached by three men. One of the men sprayed pepper gas in appellant's face and eyes. Another, Daniel Clary, displayed a handgun. Because of these circumstances, and a prior incident involving appellant and his attackers, appellant believed his life was in danger. Appellant drew his own gun and fired it repeatedly, killing Clary, wounding another of his attackers, and wounding a bystander, Valerie Lewis, who was at least fifteen feet away. Appellant then immediately left the club and turned himself in to the Easton police.

Appellant was subsequently charged with various offenses stemming from the shootings at the nightclub. The district attorney later concluded that appellant had acted in justifiable self-defense as to his attackers and withdrew all charges pertaining to his acts towards them. With respect to the injured bystander, the district attorney elected to pursue charges of aggravated assault and recklessly endangering another person. Appellant filed a petition for habeas corpus, seeking dismissal of these charges. The trial court denied the petition. This appeal followed.

Appellant contends that because he was lawfully defending himself against his attackers, he had no criminal intent which could be transferred to his unintended victim. In other words, because he did not act in a criminally culpable manner with regard to his attackers, he maintains that he cannot be held accountable for the unintended consequences of his lawful and justified actions.

Whether a defendant may be held criminally culpable under these circumstances appears to present a question of first impression in this Commonwealth. ² Other jurisdictions have, however, addressed this issue.

The general rule in criminal law that one who does an unlawful act is liable for the consequences even though they may not have been intended may have a more specific counterpart in the rule in homicide and assault cases that a homicide or assault partakes of the quality of the original act, so that the guilt of the perpetrator of the crime is exactly what it would have been had the blow fallen upon the intended victim instead of the bystander. Under this rule the fact that the bystander was killed or injured instead of the intended victim becomes immaterial, and the only question at issue is what would have been the degree of guilt if the issue intended had been accomplished; the intent is transferred to the person whose death or injury has been caused.

If then, the perpetrator of the homicide or of the assault had no criminal intent in attempting to injure or kill another person, as where the perpetrator was lawfully defending himself from the harm sought to be inflicted upon him by such other person, the fact that, on that occasion, a third person was unintentionally injured or killed by the perpetrator would not make him liable unless the perpetrator acted carelessly or without regard to the safety of innocent bystanders. This view has been applied in a variety of circumstances in which the perpetrator of the homicide or assault has been prosecuted for murder, manslaughter, or assault, based upon injury to, or death of, a third person.

Annotation, Unintentional Killing of or Injury to Third Person During Attempted Self-Defense, 55 A.L.R.3d 620, 622-23 (1974). ³

The doctrine of transferred intent is recognized in Pennsylvania:

§ 303. Causal relationship between conduct and result

(b) Divergence between result designed or contemplated and actual result.--When intentionally or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the intent or the contemplation of the actor unless:

(1) the actual result differs from that designed or contemplated as the case may be, only in the respect that a different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than that caused; or

(2) the actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have a bearing on the actor's liability or on the gravity of his offense.

18 Pa.C.S.A. § 303(b). See also, Commonwealth v. Gaynor, 538 Pa. 258, 648 A.2d 295 (1994) (Intent to kill could be attributed to defendant, where defendant and intended victim were firing weapons at each other with intent to kill, and bystander was killed by shot fired by intended victim).

In view of the language of § 303(b), and caselaw applying this section, we too must conclude, as have other jurisdictions, that where an actor injures or kills a third person, but does not possess the mental state to injure or kill that third person, as where he was acting in self-defense, he cannot be held criminally culpable under the transferred intent doctrine. When a person acts in lawful self-defense, he does not possess an intent to injure or kill, but rather, he possesses an intent to protect himself from his attacker(s). See Harris, supra at 139, 665 A.2d at 1175. Because there is no criminal intent on the part of the actor, there is no mental state to be transferred to a third party who has been injured. § 303(b) will not apply in such circumstances because neither the death nor injury of one's attackers, or of an innocent party, is either intended or contemplated.

The question then becomes whether an actor will nonetheless be found culpable, where he is acting in justifiable self-defense, but either recklessly or negligently inflicts injury upon an innocent and uninvolved bystander. With respect to this question, the Model penal Code provides:

Section 3.09 Reckless or Negligent Injury or Risk of Injury to Innocent Persons.

(3) When the actor is justified ... in using force upon or toward the person of another but he recklessly or negligently injures or creates a risk of injury to innocent persons, the justification afforded ... is unavailable in a prosecution for such recklessness or negligence towards innocent persons.

* * * * * *

Comment

3. Risk of Innocent Persons. Subsection (3) deals with the case where the actor is justified in using force against the person of another but recklessly or negligently creates the risk of injury of innocent persons at the same time. Such recklessness or negligence in some cases preclude any justification under the Model Code. But even when the force is deemed justifiable with respect to its target, the claim may be advanced that the actor was reckless or negligent with respect to others.

The object of Subsection (3) is to preserve the possibility of lodging such a charge. Thus, an actor who believed that deadly force was necessary in order to preserve his own life could be prosecuted for his reckless or negligent endangering of other lives during the course of saving his own. Similarly, an actor might be justified under Section 3.06(3)(d)(ii) in using deadly force to prevent the consummation of a robbery in which the offender threatened the actor with deadly force, but could be prosecuted for recklessness or negligence if in the course of his conduct he exposed innocent persons to danger or actually inflicted injury upon them. The justifying incident, in other words, does not provide the occasion for reckless or negligent conduct towards innocent persons.

It should be added that in assessing such a charge of recklessness or negligence, the actor's justifying purpose must, of course, be given weight in determining whether the risk to innocent persons was sufficient to establish a gross deviation from proper standards of conduct. The definitions of recklessness and negligence are explicit on this point, each involving a substantial and "unjustifiable" risk that a danger to innocent persons will result. Thus, if the only way to save one's life is to use deadly force that creates some risk of harm to others, that force might be justified. A similar use of force might not, however, be justified to stop a fleeing armed robber if there were danger to others. Although the risk to the life of the robber does not outweigh the benefits of preventing his escape, the risk to others might well do so.

Model Penal Code § 3.09 (1985). Thus, a person who acts in justifiable self-defense, but recklessly or negligently injures or creates a risk of injury to innocent persons, may be found culpable under the theory that the incident which justified the use of force in self-defense, does not justify or excuse reckless or negligent conduct towards innocent bystanders.

Appellant contends that 18 Pa.C.S.A. § 505(b)(3), regarding the use of force in self-defense, already incorporates a standard of care which does not include the Model Penal Code's reckless/negligent standard. That section provides:

§ 505. Use of Force in Self-Protection

(b) Limitations on justifying necessity for use of force.--

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