Pennsylvania Suggested Standard Jury Instructions

9.502A JUSTIFICATION: USE OF DEADLY FORCE IN DEFENSE OF OTHERS (CASTLE DOCTRINE)

(Effective for cases arising subsequent to August 27, 2011)

1. The evidence in this case presents the question of whether the defendant acted in the lawful defense of others when [he] [she] [description of defendant’s conduct]. The lawful defense of others is called “justification” in the law of Pennsylvania. If the defendant’s actions were “justified,” you cannot find [him] [her] guilty beyond a reasonable doubt. Since the Commonwealth has the burden of proof in this case, the Commonwealth must prove to you that the defendant did not act in justifiable defense of others beyond a reasonable doubt.

2. To carry its burden of proving that the defendant’s use of deadly force was not justifiable in this case, the Commonwealth must prove [the following element] [one of the following elements] beyond a reasonable doubt. [The court should give only those supported by facts of record]:

a. That at the time the defendant used the deadly force, either:

(i) the defendant did not actually believe that another was in danger of death or serious bodily injury [or kidnapping or sexual intercourse compelled by force or threat] from [name of alleged victim] such that the defendant needed to use deadly force to defend another at that moment; or,

(ii) that while the defendant actually believed [he] [she] needed to use such force, [his] [her] belief was unreasonable in light of all the circumstances known to [him] [her].

In making this determination, you must understand that the law presumes a defendant to have a reasonable belief that deadly force is immediately necessary to protect another against death, [or] serious bodily injury, [kidnapping, or sexual intercourse compelled by force or threat] if both of the following conditions exist:

(i) The person against whom the force is used is in the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered and is present within, a dwelling, residence, or occupied vehicle; or the person against whom the force is used is or is attempting to unlawfully and forcefully remove another against that other’s will from the dwelling, residence, or occupied vehicle; and

(ii) The defendant knows or has reason to believe that the unlawful and forceful entry or act is occurring or has occurred.

[A “dwelling” means any portion of building or structure, including any attached porch, deck, or patio, [even though it is movable,] which is for the time being the home or place of lodging of the defendant.]

[A “vehicle” means a conveyance of any kind, whether motorized or not, that is designed to move people or property.]

In fact, the law further presumes that someone who unlawfully and by force enters or attempts to enter a defendant’s dwelling, residence, or occupied vehicle or removes or attempts to remove someone against their will from the defendant’s dwelling, residence, or occupied vehicle, is acting with the intent to commit an act resulting in death or serious bodily injury [or kidnapping or sexual intercourse by force or threat]. If the defendant knows or has reason to believe that this unlawful and forceful entry or act is occurring or has occurred, the law then presumes that the defendant’s belief in the necessity of using deadly force is reasonable and justified.

However, a defendant is not presumed to have a reasonable belief that deadly force is immediately necessary to protect another when:

[(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 when they are an owner or lessee of the premises;

(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 person the defendant seeks to protect is engaged in a criminal activity or is using the dwelling, residence, or occupied vehicle to further a criminal activity. “Criminal activity” means conduct that is a misdemeanor or felony, is not justifiable under the Crimes Code, and is related to the confrontation between an actor and the person against whom force is used; or

(iv) the person against whom the force is used is a peace officer acting in the performance of his or her official duties and the actor using force knew or reasonably should have known that the person was a peace officer.]

3. Keep this in mind: a person is justified in using deadly force against another not only when a person they seek to protect is in actual danger of unlawful attack but also when the defendant mistakenly, but reasonably, believes that they are. A person is entitled to estimate the necessity for the force he or she employs under the circumstances as he or she reasonably believes them to be at the time. In the heat of conflict, a person who witnesses an attack ordinarily has neither time nor composure to evaluate carefully the danger and make nice judgments about exactly how much force is needed to protect the other person. Consider the realities of the situation faced by the defendant here when you assess whether the Commonwealth has proved beyond a reasonable doubt either that [he] [she] did not believe that another was actually in danger of death or serious bodily injury to the extent that the defendant needed to use such force in self-defense, or that, while [he] [she] did believe that, [his] [her] belief was unreasonable.

[To be used only where applicable: Also, keep in mind that persons who are public officers performing their duty, persons justified in using force to assist public officers in the execution of their duty, and persons making an arrest or preventing an escape are not obliged to desist from performing their duty, making arrests, or preventing escape because the person against whom such action is directed resists or threatens resistance.]

[To be used only where applicable: The Commonwealth may seek to prove that the defendant’s use of confinement was not a justified use of force in this case. To accomplish this, the Commonwealth must prove beyond a reasonable doubt that the defendant failed to take all reasonable measures to end the alleged victim’s confinement as soon as the defendant knew [he] [she] could do so in complete safety. Of course, if the alleged victim had been arrested for some offense and confined according to law, the defendant would not be responsible for such period of confinement.]

[or]

b. That, in the same encounter with [name of alleged victim], the defendant provoked the use of force against the person the defendant claims [he] [she] sought to protect by engaging in conduct that demonstrated that [he] [she] intended to cause death or serious bodily injury to others.

To make this determination, you must find the following:

(i) That the defendant engaged in conduct that showed it was [his] [her] conscious object to cause death or serious bodily injury to the alleged victim, [name of alleged victim] [or someone else in the immediate proximity of the alleged victim]. Only conduct of this most serious nature constitutes the kind of provocation upon which the Commonwealth may rely to prove its case.

(ii) But even if you find beyond a reasonable doubt that the defendant’s acts were of such a nature, you must then ask whether it provoked the similar use of force against another. In this assessment, the conduct by the defendant may be the initial provocation of the fight, or it may be an act that continues or escalates it. However, even if the defendant was the initial aggressor, or was the person who escalated the incident to one involving the use of deadly force, if [he] [she] thereafter withdraws in good faith, making it clear that [his] [her] further intentions are peaceable, and the alleged victim pursues another person and renews the fight, the defendant does not forfeit [his] [her] right to claim justifiable defense of others.

However, if you find beyond a reasonable doubt that the defendant provoked the use of force against another by engaging in conduct that showed that [he] [she] intended to cause death or serious bodily injury to the alleged victim [or someone else in the immediate proximity of the alleged victim], you may find that the defendant’s conduct was not justified.

c. That the defendant had a duty to retreat [or to assist the person he or she sought to protect in retreating] instead of using deadly force and did not fulfill that duty. A duty to retreat arises where the defendant knows that [he] [she] could avoid the necessity of using deadly force with complete safety by retreating.
However, there are certain exceptions to this duty to retreat.

(i) A defendant is not obliged to retreat from his or her dwelling [or assist another in doing so] unless he or she was the initial aggressor.

(ii) A defendant is not obliged to retreat from his or her place of work [or assist another in doing so], unless either he or she was the initial aggressor or is attacked in his or her place of work by another person whose place of work the actor knows it to be.

(iii) A defendant is not obligated to retreat from the place where he or she is attacked [or assist another in doing so] if:

A. The defendant has a right to be in that place;

B. The defendant is not at that time engaged in criminal activity. “Criminal activity” means conduct that is a misdemeanor or felony, is not justifiable under the Crimes Code, and is related to the confrontation between an actor and the person against whom force is used;

C. The defendant is not at that time illegally in possession of a firearm;

D. The defendant reasonably believes it is immediately necessary for him or her to protect another against death, [or] serious bodily injury [or kidnapping or sexual intercourse compelled by force or threat]; and

E. The person against whom the defendant uses force displays or otherwise uses a firearm or any weapon readily or apparently capable of lethal use.

However, this exception does not apply where the person against whom the defendant uses force is a peace officer acting in performance of his or her official duties and the defendant knew or reasonably should have known that the person was a police officer. [See additional instructions in Instruction 9.501C where the defendant asserts a self-defense claim against police officers.]

[There is one final rule in this area that pertains only to persons who are public officers performing their duty, persons justified in using force to assist public officers in the execution of their duty, and persons making an arrest or preventing an escape. Such persons are not obliged to desist from performing their duty, making arrests, or preventing escape because the person against whom such action is directed resists or threatens resistance.]

2. If the Commonwealth proves one of these elements beyond a reasonable doubt, the actions of the defendant in using deadly force are not justified. If the Commonwealth fails to prove these elements, the defendant’s action was justified and you must find [him] [her] not guilty of the crime of [type of crime].