*1 501A.2d226 Pennsylvania, Appellant, COMMONWEALTH of BERRIGAN, S.J., Philip Berrigan, Rev. Daniel Rev. Sister Anne R.S.C.J., Montgomery, Maas, Kabat, Elmer H. Rev. Carl O.M.I., Schuchardt, Rush, Molly John Dean Hammer and Appellees.
Supreme Pennsylvania. Court of
Argued Oct. 1984. DecidedNov. 1985. *3 Div.), Joseph Hylan, T. (Chief/Appeals Ronald Williamson Norristown, appellant. for Clark, (Pro Vice), York Hac Thomas
Ramsey City, New Glackin, Jenkintown, Carroll, A. Philadelphia, Colas Charles Shields, Angeles, Los Michael C. Norris- Goldberger, Peter Falk, town, counsel, appellees. Richard Princeton NIX, C.J., LARSEN, FLAHERTY, Before McDER- HUTCHINSON, PAPADAKOS, MOTT, ZAPPALA and JJ. THE OF COURT
OPINION PAPADAKOS, Justice. appeals of Pennsylvania (Appellant)
The Commonwealth reversal of the of sentence judgments Court’s Montgomery County, the Court of Common Pleas of Crimi- Division, Appellees nal at No. 2647-80. were convicted mischief,2 crimi- charges burglary,1 9, 1981, into a September trespass for their conspiracy,3 nal Prussia, King Montgomery plant Electric General entering admitted Appellees County, Pennsylvania. hammers, pour- components missile with plant, destroying $28,- causing some premises, human on the ing blood damage. property 000.00.in the Honorable Samuel by jury, presided
At a trial over Salus, II, to defend their actions as Appellees sought W. Code,4 pro- 510 of the Crimes falling within Section vides: property claims
Section 510. Justification seizure, or de- involving appropriation, Conduct with of, to, intrusion on or interference damage struction circumstances which would under property justifiable in a civil action based privilege establish defense *4 thereon, unless: the the offense deals with
(1) defining or law this title involved; or situation specific
(2) purpose justification to exclude legislative plainly appears. claimed otherwise 1. 18 Pa.C.S. 3502. § Pa.C.S. 3304. §
2. 18
3. 18 Pa.C.S. 903. §
4. 18 Pa.C.S. 510. §
122 claimed from present to evidence
Appellees attempted contentions their support intended to experts which was a nuclear prevent to necessary that their actions were offer, ruling as a this rejected trial court holocaust. The in as defined defense justification matter of law that they Appellees because not available to 510 was Section Elec- General operation not establish that could danger” public, constituted an “imminent facility tric concurrent crimi- thereon and Appellees’ trespass justifying as to their testify permitted Appellees nal conduct. were was but entering plant property, for reasons law, defense that, justification as a matter instructed actions. Appellees’ as a defense not available Appellees were 6, 1981, against guilty March verdicts On mischief, and criminal burglary, returned on for a new motions post-trial charges from which conspiracy filed. in were judgment motions arrest trial and a court en banc argued motions were before post-trial same order Scirica, Salus, JJ.) denied (Nicholas, thereupon sentenced Appellees 1981. June their Appellees appealed imprisonment. terms varying which, its en Superior Court and sentences convictions Hester, Bro- (Cercone, Spaeth, P.J. order opinion and banc JJ.), Johnson, judg- reversed Wieand, Beck, and sky, Judges for a new trial. and remanded of sentence ments See, Com- part. Hester, and dissented Wieand, Johnson 472 A.2d Pa.Super. Berrigan, monwealth of defin- importance allocatur because granted We defense justification the extent to which ing facts, these and under applicable, generally Pa.C.S. § trial involved dire and issues of voir to consider herein. concluding erred Superior Court argues that
Appellant Appellees’ defense for 510 was an available that Section erred argues also Appellant conduct. discretion its court abused the trial finding 1) it restricted where proceeding dire the voir conducting *5 public, of from members to the access each dire conducting questioning individual voir 2) in not prospective juror. sen- and order reinstatement now reverse
We tences. DEFENSE
JUSTIFICATION con concept Code embraces Our Crimes can be constitute a crime otherwise duct which would harm or prevent greater necessary excused when protect to actions taken to extends justification crime. This 505, 506, (See others, 18 Pa.C.S. oneself, property. §§ property on the 509). crimes or Specifically, averting a purpose for the committed another can be es arise would circumstances which disaster when public 510). (18 Pa.C.S. privilege. defense of the civillaw § tablish Second, the law of Torts the Restatement As codified is, another, “if or if it onto the land of trespass excuse a will for the necessary it to be reasonably believes the actor (Section imminent disaster” averting an purpose or its of another to the chattel 196). Similarly, trespass reasonably “if the act is or is is excusable conversion avoiding for the necessary purpose to be believed (Section 262). public disaster” can asserted emergency be defense is based
This widespread public with a one who is confronted only by among from the actor to select not allow crisis which does solutions, do not involve some several God) (manmade act of or threatened disaster acts. The immediate, speculative, or imagined not real and must be as well. the actor others only but and must threaten support must disaster taken to avoid The actions that the actions would or inference a reasonable belief harm. alleviating impending avoiding or effective in situations available cannot be the defense Additionally, public disas- engender perceive some the conduct where legislation making byof approved specifically ter has been conduct, appears legislative purpose or where a legal it *6 the defense. exclude together reading Section 510 of our Crimes Code
By Torts 196 and 262 of the Restatement with Sections will Second, justification it is clear to us that the defense demon that will the actor offers evidence only lie where strate: that public a disaster
1) the actor was faced with that imminent, speculative; or clear and not debatable actions that the 2) reasonably expect actor could that the public the immediate avoiding effective taken would be disaster; effective which will be
3) legal there is no alternative that disaster; the immediate abating justifi- exists to exclude 4) legislative purpose no that the actor. faced particular situation cation from that the it is essential proof, offer of any As with as to each element minimum standard meet a offer true, support to it would if finds it so that defense the offer is insufficient defense. Where the affirmative defense, trial court one element any establish to the as prohibit evidence use of the defense deny may the defense. elements of other attempted justify Appellees In case subjudice, their actions argument on the relying their actions holocaust. to avert a nuclear by Section permitted were court acted offer, that the trial this we Reviewing conclude law, offer was that the a matter ruling, properly perceived Appellees the harm establish insufficient ruling, In so disaster. imminent clear and awas Mass Appellee in preventing correct also trial court was weapon, of a nuclear concerning power testifying from warfare, nuclear or intentional of accidental likelihood among vogue in current principles philosophies or armaments. use of nuclear against authors various nuclear of a from the detonation if the hazards Even Appellees imminent harm when an represented warhead accompanying trespass, the hazards their committed commonly so known energy nuclear are use of improper Mass testimony Appellee expert that the general public not have been into evidence would to introduce attempted O’Searo, 466 Pa. admissible. Commonwealth Zediker, 421 Pa. 218 A.2d (1976); Collins v. A.2d 30 weapon capable is that a nuclear (1976). Expert testimony necessary no more people masses of killing or maiming people dial to the manner which testimony as expert than shoes. gum, or tie their chew telephone, onto the to focus attention attempts continual Appellees’ the harm was not weaponry of nuclear nature destructive tres- they confronted when Appellees with *7 entered plant Appellees plant onto the because passed manufacture The mere casings. shell bomb only produced type cannot casings be viewed shell bomb so in a disaster public could result activity which dangerous that conduct. abating aimed at activity justify as to (destruc- Appellees Furthermore, by actions chosen blood) could of human casings pouring tion of the to be effective expected reasonably any hypothesis under holo- a nuclear disaster of public avoiding perceived that these establishes the record contrary, To the caust. and not choices and calculated were deliberate criminal acts an immediate abate practically even the acts that would disaster. public weap- of nuclear conclusion that the use Court’s
Superior 510, is purposes public disaster a sufficient § ons was Appellees the harm weapons was not misplaced. Use cas- of shell with, manufacture only the confronted from the removed is so of manufacture process ings. pure conjecture of use as to be question ultimate most, a non-imminent and, hence, presents, speculation danger. disas public imminence of of evidence
In the absence refusing Appel no error committed ter, court the trial Appellee permit or to on 510 charge Section request lees’ accompanying force use testify the destructive Mass arms.5 of nuclear
VOIR DIRE PROCEEDINGS Spectators A. Exclusion of in con- Superior next Court erred argues Appellant committed error cluding that trial court reversible pro- dire during courtroom the voir limiting access reliance, primari- This conclusion was reached ceedings. Supreme decision in the recent States Court upon United ly, Press-Enterprise Company of Califor- 464 U.S. 104 S.Ct. nia, County, Riverside find such re- We L.Ed.2d U.S.L.W. inappropriate. liance period. day dire conducted a five
The entire voir over paint must first perspective, the issue in we place proper To during this against the events unfolded backdrop defend- the conduct of the know that day period. five We brought them in their arrest and culminated ants which interest, great had evoked justice bar before extensive kindled debate and con. Media had pro participants. interviews of the and with coverage publicized had outside the gathered Protagonists antagonists lines police establishment of necessitating the courthouse enter had to prospective jurors pass through which *8 preva- An of intimidation was in aura safety. courthouse lent. trial the participants number large
Because of into a entail, proceedings moved the judge the trial would other con- apparently courtroom doubled large which judge As the trial legal activities. held temporaneously casings for nuclear of shell also note that since the manufacture 5. We conduct, (see legal LT.D. No. Model Penal Code comment is warheads Legislature 1-2), has type conduct to which the pp. it is the 510(2). Pa.C.S. excluding justification § defense. spoken in justification general proposition keeping is in with the This conduct, legal illegal perceived stopping is aimed at defense seq. et Energy U.S.C. § See Act Atomic conduct. Mon- proceedings at the commencement explained N.T.) 23, 1981, a.m. “In this (p. at 10:55 February day, courtroom, is a constant stream of traffic there particular of the courtroom which will interfere with on the left side to hear at times.” ability some themselves, brought to the attention of the Appellees, had people that a multitude of demonstrators or judge trial Appellees the courthouse. steps on the outside gathered extremely intimidating upon this scene could feared that through lines to pass who had to these prospective jurors into courthouse. gain entrance occurring incidents were front Extremely disturbing demonstrators, and visitors. among police, the courthouse controlling difficult time police having were (15) fifteen were persons On one occasion some people. reported conduct. It was charges disorderly arrested on press person violently trial that a had been judge to the and thrown to the floor of a handled and his camera seized car. from the understandably agitated the Appellees,
And them, having were difficul- swirling events that were about dignified, and mea- quiet, themselves ty comporting a fair and to the conduct of sured manner which essential often allowed them- They trial in our courts. impartial re- They and tumultuous. disorderly selves to become walkouts, demonstra- peatedly disrupted court, tions, acknowledge physical singing, refusal defiance, disregard rulings of court persistant acts of spectators When upon prospective jurors. attacks verbal too, courtroom, joined the tumultuous they, in the were Appellees. and anarchistic behavior various, conflicting, rights and sometimes Expressing the trial, of a guarantee emanate from the and limited balancing his test exercised discretion judge All during voir dire. members access to the courtroom numbers, freely as to without limitation press, used to fact, one row had to be In more than admitted. attendants, a court including them all. Court accommodate *9 counsel, Appellees advisory as and their reporter, as well on the left side of the having and all others business courtroom, freely the court- prospective jurors and were general public of the who had no Only room. members ex- legal proceedings involvement with the were personal, during days proceedings. of the voir dire cluded five (40) dire, panel forty jurors day On the first voir Clearly, courtroom to be seated. brought into the was spectators room to accommodate there not sufficient was However, excluded. when the they properly were and with the conduct became burdened process selection itself, judge the trial dismissed panel and the Appellees contaminated and thereafter having become panel entire groups prospective of four conducted the voir dire with time. jurors at a dire found the courtroom crowded day
The first of voir each other interrupting unruly. Appellees Appel- the court. panel arguing with questioning among the chattering so much complained lees “there was hostile, and extremely felt that we people yesterday another, infecting one one really talking to they kept of the entire presence in the Appellee One another.”6 (9) of the cause nine members challenge for panel, moved upon This oral attack partiality. indicated who had panel panel the entire a contamination of caused veniremen panel. the entire dismissed judge and the dire, since a clear and of voir days the next four On court- peace tranquillity to the danger present pro- existed, danger adversely could affect room denying thus intimidating prospective jurors, ceedings by the trial impartial jury, fair and the selection of a Appellees and limited access his discretion again exercised judge except those members persons to all mere Sure- spectators. attend as who would general public person to any reasonable was sufficient ly the evidence to the seeking pro- access spectators these conclude that persons those same who none other than ceedings would Berrigan. Philip p. statement 6. N.T. 2/24/81
129 steps. in courthouse were involved demonstrations general public these elements of the out By keeping courtroom, prospective jurors the trial insured that judge with, to, come in or be extrane- subjected would not contact in being brought ous or influences while intimidating out the courtroom. case, of this did the trial
Under circumstances excluding in court commit reversible error members proceedings? from the voir dire We believe general public not. trial, guaranteed
The to a our state7 and right constitutions, An purposes. federal8 two accused serves proceeding to a chamber and the subject cannot be star being of fairness are ob- public is assured that standards is en- system jurisprudence served. Confidence our such openness. hanced First
It
that the
Amendment
already
has been established
enough
encompass
to the Federal Constitution is broad
media,
right
trials to the
of access to criminal
Virginia,
555,
Richmond
Inc. v.
Newspapers,
448 U.S.
100
2814,
(1980),
this
of access
right
A to maintain the judge impose restrictions may The United the courtroom. integrity Press-Enterprise, id., Supreme held in both States Newspapers, Virginia, Inc. Richmond 448 U.S. at “in 581, judge may that a trial n. S.Ct. I, 9, Pennsylvania § 7. Article Constitution. Amendments, Constitution of United States.
8. First and Sixth interest of the fair administration justice, impose reason- able limitations on access to a trial.”
The Supreme Court went on to state the standard for such limitation of access: question in particular case is whether that control
is exerted so as not to deny or unwarrantedly abridge ...
opportunities
for the
thought
communication of
the discussion of public questions immemorially associat-
ed with resort
public places.
(Quoting Cox v. New
Hampshire,
U.S.
61 S.Ct.
In the present it is clear that “the opportunities for the communication of thought and the discussion of public questions” were abridged at all. A stenographic record which, itself, was made is a public matter of record. The record indicates eight that the Defendants made speeches and gave to interviews the media after each court session. addition, In a large number of the press actually attended trial, the entire all of including Thus, the voir dire. the public perception of an open trial was never threatened. The public was able to read newspaper reports and listen to reports radio of the trial and they were able to see the Defendants airing their views television. No informa- tion was concealed from the public.
This fact distinguishes alone present the case from the case in Press-Enterprise which the trial judge lowered an impenetrable canopy of secrecy over the six week long voir dire for the purpose sole of safeguarding the privacy interests jurors. The United States Supreme Court disapproved because:
The judge at this trial closed an incredible six weeks of
voir dire without considering detriments to closure. La
ter the court declined to release a transcript of the voir
dire even while stating that “most of the
information”
transcript
the
boring,”
was “dull and
supra, at - [104
S.Ct. at
parts
Those
of the transcript reasonably
821].
entitled to privacy could have been sealed without such a
explain why
A trial
should
sweeping
judge
order.
to privacy.
is entitled
material
parts
such
only
should seal
judge
The trial
anonymity necessary
preserve
transcript as
Enterprise,
Press
sought
protected.
individuals
501, at,
at
at
The trial court denied access *12 (5) permitted of some but proceedings days, entire voir dire attend, entire representatives to and directed the media apply Press-Enterprise note does not to the Defendant’s We 9. case, majority rights. In that noted: question process be we the voir dire must ... address —whether First, Fifth, and open than Amendment values rather —focuses backdrop was against which the First Amendment the historical 501, 517, 8, 819, 828, enacted. 464 U.S. at n. 104 S.Ct. at 78 L.E.d.2d 629, (1984). n. at Stevens, concurring opinion Press-Enterprise, in in Mr. Justice his noted that: Sixth had a claim that his Amendment If the advanced defendant dire, right of the it to a trial was violated closure voir jury important selection of the would be to determine whether the meaning part of that Amendment. was a of the "trial" within proceedings and is not the distinction between trials other But important, necessarily dispositive, evaluating the First even in or 827-28, at 104 S.Ct. Amendment issues. U.S. L.Ed.2d at 642 dire proceedings voir be stenographically part recorded as record. of the record
That indicates that on the day jury first selec- tion, the court cleared public spectators the courtroom of (40) permit panel forty jurors to be seated courtroom for questioning. Since the courtroom was not large enough spectators to accommodate both and the jury the court’s action in panel, removing spectators reasonable the interest of the fair administration of justice and must be affirmed. day jury selection,
On the second the trial court direct- (4) panels brought time, ed that the in four persons at a handling panel (40) because the full of forty prospective jurors proved unworkable. denial of access to the continued, however, proceedings spectators court be- cause the trial court felt that the orderly ushering, ques- (4) tioning, person and of four panels removal would be hampered of a presence packed courtroom. glean
We from the record that the courtroom was limited size, spectators that the seating number exceeded the courtroom, capacity spectators and that who pro- wished to observe these could intimidate spective jurors they brought and out of the courtroom, of the spectators’ particu- because number and against lar for or Appellees. bias during We note that the entire selection and process trial, supporters Appellees stationed themselves outside courthouse, building blocked access to the surrounding demonstrating, singing, yelling, streets while waving placards Supporters banners. and news representatives media also blocked the halls of the court- house, access into and out impeding of the courtroom. physical layout atmosphere Given courtroom and surrounding proceedings, say we cannot that the trial *13 in limiting public during court erred access the voir dire proceedings. order, and decorum are the hallmarks of all court
Dignity,
(See,
Allen, 397 U.S.
country,
in our
Illinois v.
(1970)),
judges
Accordingly, judges enforcing proper the standards setting cretion judicial proceedings to attend for all those who seek conduct a trial hasty be to reverse them. should not before We courtroom, un order in his establishing actions in judge’s order, dignity, maintain designed not his actions are less abridge unwarrantedly decorum, deny or and instead and the thought for the communication opportunities with immemorially associated public questions discussion of public places. Cox. resort circumstances under certain question is no
There from a courtroom may ejected defendants obstreperous trial, though even the Sixth during the course of the guarantees of the Federal Constitution Amendment every in the courtroom at present a defendant to be right of with witnesses to be confronted of his trial and stage boisterous, unmanageable, Similarly, him. Allen. against who wish members disruptive or disrespectful, can be barred proceeding a criminal court to attend pub- justice. The orderly administration guarantee the absolute, and exists as trial is to attend a right lic’s during conduct guarantee judicial of fairness proceedings. court
134
Where trial perceive courts a threat to the orderly admin- justice istration of in their courtrooms an unmanageable public, they may always place reasonable restrictions courtroom, access to the so as long guarantees the basic of fairness are preserved such as by presence the of press the and of making the a record for later review.10 us,
In the case before the of potential jurors number 100) (over and the manner in they had to be ushered into and out of required the courtroom the court to impose access restrictions to maintain order in the and insure that the process would not be unnecessarily delayed. reasonable, restriction was circumstances, under the it response because was fashioned in problem to the the selection handling jurors large front a unman- ageable crowd that could size, intimidate its chattering, dissent, that, Flaherty 10. In his Mr. Justice states "In Commonwealth Contakos, (1982), v. Pa. A.2d clearly 578 this held Court improper public segment that it is ... to exclude the from a of a (Emphasis added.) trial.” Flaherty Messrs. Justice then, now, impractical Larsen were and still are welded to this view. (now Justice) Mr. Justice Nix Chief decried this "absolute and .inflexi- joined. ble rule" in his dissent in which Mr. Justice Hutchinson Mr. Roberts, O’Brien, joined by concurring Justice Mr. Chief Justice ain opinion, rejected this view and determined that was Contakos denied a right public trial and not his to a trial the "because sudden fair appellant’s testimony during exclusion of the from may prejudice the Commonwealth's chief witness well have served to against justice appellant, requires appellant granted new trial." Mr. Justice Roberts and Mr. Chief Justice O’Brien ex- pressed absolutely public. no concern over an absent fact McDermott, dissent, clarifying explained Mr. Justice in a au- “Fortunately, majority thor’s work as follows: its has confined to the case has attention facts this not exalted into the mandate indeed, For, all-encompassing exception. an rubric that suffers no exceptions plainly there are Court this so stated in Commonwealth (1976).” Knight, 469 Pa. 364 A.2d implacable Contakos does not stand for the it view that "... improper segment exclude from a of a It criminal trial." very simply applies Knight and finds that the trial court did not excluding spectators during exercise sound discretion in mony the testi- and, thus, aof witness denied the defendant therein fair trial. Just as the Court in Contakos examined soundness of the so, too, wanting, discretion of the trial court and it found do we Judge examine soundness of the discretion of case Salus this appropriate. it find When movement, questions answers. and reaction to insulate completed, the need process the selection reactions of the crowd from uncontrollable jurors ceased, access restrictions. as did the
B. Individual Voir Dire ruling erred in argues also Appellant considering in not an individual erred that the trial court *15 agree. jurors. We prospective of dire examination voir is in cases the trial court provide non-capital Our Rules in method the voir dire by the which vested discretion with Absent an abuse of such conducted.11 examination shall be trial court’s discretion, reviewing court cannot disturb the actions. chose, day on the first of voir case, trial court
In this the within dire, forty prospective jurors panel to examine a other, questioning permitted and active hearing the of each panel was by all defendants. That prospective jurors challenge Appellees raised a one dismissed because to a discussion panel prejudicial for the exposed cause and counsel, court, Appellees. and the advisory between provides perti- Procedure 1106 in Pennsylvania of Criminal 11. Rule part: nent Challenges of Trial Jurors Examination and (a) jurors prospective prospective and alternate Voir dire selected, conducted, jurors jurors shall be and shall be presence judge. of a cases, judge (e) non-capital one the trial shall select In dire, apply shall to the following methods of voir which alternative jurors and alternatives. of both selection Challenge (1) System Dire and Individual Voir individually (a) jurors prospective shall be conducted dire of Voir hearing presence beyond of other may be conducted jurors. (2) Challenges System of List jurors prepared. (a) The list shall prospective shall list of A jurors prospective at least to total number of a sufficient contain selected, plus twelve, the total to be plus of alternates the number alternates). (including challenges peremptory number of collectively individually, (b) jurors may or Prospective be examined jurors qualifications. are examined individual- regarding If the their hearing pres- may beyond the ly, be conducted the examination jurors. of other ence prevent To other full dismissing panels, trial court question decided to in panels veniremen for four process. remainder of the selection questioning When eight Appellees all became unruly, too the court conduct- ed questioning permitted Pa.R.Crim.P. permitted questions by Appellees as it deemed proper.
The decision to
four
question
prospective jurors at a
time was well within the trial court’s discretion and we
perceive no
abuse
discretion
so deciding, based on óur
review of the
record.
Court’s conclusion that
questioning
individual
dire
required
voir
was
because
prejudicial
pre-trial
publicity is simply
supported
in the
sure,
record. To be
there was extensive pre-trial publicity
case,
this record
surrounding this
there
but
nothing
publicity
demonstrates
or
derogatory
prejudicial
Appellees
fact,
to the
or their
In
cause.
Appel
record
preserved
lees never
in their
appeal
Superior Court the nature and extent of the publicity in the
exhibits,
the New
form of
other than some
interviews
*16
York Times.
Rather, Appellees
improperly attempted
have
record
augment
by including
allegations
in the Brief
of specific incidents of publicity which were
presented
not
to the trial court.
“Alleging facts in a
a
brief which
In
has
on
passed
condemned,
court
has been specifically
1018,
Legislative
re:
Route
594,
422
222
Pa.
A.2d 906
Association,
v.
McCaffrey
Pittsburgh Athletic
(1966);
448
Commonwealth v.
Young,
151,
(1972);
Pa.
The record before reveals that most prospective jurors had heard or read about this case. record also reveals that Appellees complained never once about extent or they content of the publicity generating. The record further prospective jurors reveals that most affirmed that they would be judge Appellees fairly able based presented the evidence at trial. observe the demeanor
Having
opportunity
had the
of their
to assess
the tenor
jurors
and
prospective
examination of the
having
participated
answers
determined that
those
judge
the trial
jurors,
prospective
impartial
considera-
give
selected would
fair
who were
being
pre-
“locked-in” to any
evidence
tion to the
without
The trial
gained
coverage.
media
notions
from
conceived
an
great weight by
is entitled to
determination
court’s
Backert,
v.
398,
Commonwealth
court,
499 Pa.
appellate
(1982),
resulting
error
an
only palpable
A.2d 931
reversal on this issue. Com-
justifies
of discretion
abuse
Sparrow,
490,
(1977).
monwealth
Our review of time, at a or prospective questioning jurors four are satisfied questioning manner conducted. We was fair, competent, impartial, unprejudiced that a Futch, selected. Commonwealth v. 366 A.2d 469 Pa. Sentence Reinstated. Judgments of Reversed. ZAPPALA, JJ.,
LARSEN, filed dissent- FLAHERTY and ing opinions.
LARSEN, Justice, dissenting. explicitly pro- Pennsylvania
I The Constitution dissent. I, Pa.Const. Article open.” “All courts shall be vides: Furthermore, prosecutions “all section 11. trial____” public right speedy hath a to ... accused 138 I, Thus,
Pa.Const. Article
section 9.
the Pennsylvania Con-
stitution specifically
public
mandates
“the
shall
be
trials,
the courts shall not be closed.” Com-
excluded from
Contakos,
monwealth
v.
345,
340,
578,
499 Pa.
453 A.2d
(1982) (per
J.,
Larsen,
Flaherty,
J.).
joined by
First
The
and
Fourteenth
Amendments
Constitution of the United
States,
though not as explicit,
guarantee
also
that criminal
proceedings,
including
process,
selection
should
Press-Enterprise Co. v.
presumptively
open.
and
Superior
Court
California,
501,
819,
U.S.
104 S.Ct.
of
(1984).
While these
open
constitutional mandates of
absolute,1
trials are not
strong presumption
openness
may only be overcome
an
“by
overriding interest based on
findings that closure is essential to preserve higher values
is narrowly
tailored to serve that
interest. The
interest
along
specific
be articulated
with findings
enough that a reviewing court can determine whether
closure order was properly entered.” Press-Enterprise Co.
v.
California,
510,
at
104 S.Ct.
U.S.
824,
added).
78 L.Ed.2d
(emphasis
at 638.
only
Not
must
court articulate specific findings as to the inter-
ests to be
furthered
restricting
public access to the
courtroom,
it must also indicate on
it
the record that
con-
sidered alternatives
to closure and its reasons for rejecting
Id. 464 U.S. at
the alternatives.
512, 513,
In the instant
the record is wholly inadequate
support
the court’s
exclusion
general
members
public, including appellees’
members,
family
from the voir
dire
proceedings.
recitation of
facts
as set forth in
opinion
the majority
makes
inadequacy
apparent.
is certainly
There
record evidence of contumacious
defendants, as
obstreperous
well
evidence
boisterous
spectators outside
the courthouse
and demonstrative
is, however,
—there
precious little on the record to indicate
(1980)
Hayes,
1. See
Commonwealth
489 Pa.
[T]he
present
the
only representatives
fied
media are
if
public would strike at
the
Exclusion of the
courtroom.
open
our
for an
meaning
mandate
essence and
might
what
other-
court, for the
counterbalances
public
media,
public
and
a
tyranny
wise become
possible
emer-
counterbalance
together
the media
corrupt
judiciary.
or biased
gence of
345,
FLAHERTY,
dissenting.
public
I
were excluded
general
dissent. Members
appellees’
during
phase
the voir dire
from the courtroom
trial,
per-
were
though representatives
news media
Contakos,
Commonwealth v.
In
499 Pa.
mitted access.
that,
(1982),
clearly
this
held
under
ZAPPALA, Justice, dissenting.
I dissent.
In 57, 65, 469 Pa. Knight, Commonwealth 364 A.2d (1976) 904 we held: right absolute; rather, ... to a trial public is it in relationship must be considered important other interests, In considering interests. such other a court must assess all of the circumstances to determine if they present a in situation which an exclusion order is neces- If
sary. exists, the court necessity determines a it may order; then issue an exclusion but exclusion order must be protection the impor- fashioned effectuate tant interest without unduly infringing upon the ac- right public cused’s to a through scope trial either its duration,1 added) or (emphasis appeal, On we reverse if may only the trial court has abused its discretion balancing competing interests. supra. Knight,
Chief Justice Burger Supreme United States Court aptly importance sets forth the openness of our trial system in Press-Enterprise Cal., Co. v. Court of 819, 823, U.S. S.Ct. L.Ed.2d 629
This openness has what is sometimes described as a “community acts, therapeutic value”. Criminal especially crimes, provoke concern, violent public often even out- 1. Citations and footnotes omitted. generates community turn hostility; this
rage Wheth- justice to have done. desire urge to retaliate and is or irrelevant. as retribution otherwise er this is viewed being the law enforced aware that is public is When an is system functioning, outlet justice and the and emo- reactions for these understandable provided this Proceedings deny held secret would outlet tions. contrast, interest; public the broad and frustrate of the victims vindicate the concerns offenders are knowing that the community and the conduct for their criminal being brought account selected, (citations omitted) fairly openly jurors Furthermore, held in Press-Enter- Supreme U.S. demonstrated to Co., evidence must be that sufficient prise of closure the extreme sanction warrant than other alternatives.2 rather evi- present conspicuously any record is devoid *20 to reason- any attempt to closure or structure support dence day the first alternatives to that extreme sanction. On able court, notice, the courtroom dire, the without cleared of voir jurors room to seat all the all because of insufficient (N.T. p. the On the of news media. members 2/23/81, 98). dire, to change court chose second of voir the trial day the question only prospective jurors four procedure the (N.T. Yet, open for an upon request p. time. 118). 2/24/81, the jurors, it did not the court ruled that want proceeding, influences any extraneous while “to come contact with forth from the other courtroom.” being brought back and indicated fire (N.T. p. Although the court 2/24/81, 123). involved, seating capac- it the expanded considerations concern expressed The court then for the news media. ity eating general would “start spectators from the (N.T. things like that.” up Lifesavers and opening jury of selec- day on the fourth p. Finally, 2/24/81, 124). dire, the request for an voir tion, upon open the defendants’ concurring opinion, correctly the stated in his As Justice Stevens 2. the Press-Enterprise Amendment rather than Co. case involved First However, majority’s protection. I believe the Sixth Amendment Knight, supra. analysis in accord with our decision in trial court refused the indicating news media would protect openness the of the proceedings. The court also interruptions indicated that and distractions mandated a proceeding. (N.T. 2/26/81, closed p. 700).
While of all these concerns may required have additional security protect measures to the fairness of selec- jury process, tion orderly of justice, administration none reasons singularly these either or group required as a the extreme sanction of expulsion general public. mistaken, Never it should be or misinterpret- misunderstood ed, media, electronic, that the news otherwise, or newsprint supplement will the sanctity general ever public’s right Furthermore, to access. it is clear from this record that the circumstances did not warrant closure of fact, process. selection In appellant’s brief we are not directed to any portions of the record substanti- ate any necessity barring general public for the voir dire. If sufficient room space existed increase media, news surely sufficient room to permit existed an orderly rotation of a few general public members the jury proceedings. view The fact that the trial itself open support lends to the proposition that trial court acted improperly closing the voir dire.
Since the trial court set no forth compelling reasons deny to the their defendants Sixth Amendment right I trial, hold, record, would that on this the trial court abused its discretion and would affirm the order granting the defendants a new trial.
ORDER PER CURIAM. NOW,
AND
day
this 24th
of February,
upon consid-
Appellees’
eration of
Application
or,
for Reargument
in the
Alternative,
Court,
Remand to the
the Order of
22, 1985,
this Court dated November
is vacated to the
extent it reinstates Appellees’ judgments of sentence. The
matter is remanded to the Superior
disposition
Court for
court,
considered. In all
but not yet
all issues raised
is denied.
respects,
Application
other
Argued May 1985.
Decided Nov. 1985.