*1
(1981);
Rawls,
Thus, the Order of the PCHA court is reversed and the of sentence is left judgment standing. Jurisdiction is relin- quished.
JOHNSON, J.,
concurring
files a
statement.
JOHNSON, Judge, concurring:
I
the result
Although agree
reached
the majority
case,
I
dispose
the instant
would
of this appeal based on
the fact that the issues raised by appellee have
finally
been
§ 1180-4(a),
litigated. 19
reenacted at 42
P.S.
Pa.C.S.A.
§ 9544(a).
Hook,
Pa.Super.
See also
v.
Commonwealth
(1982)(issue argued
Superior Pennsylvania. Court of
Argued May 1983.
Filed Feb. 1984. Appeal Petition for Allowance of Granted June *6 Clark, Ramsey New York City, for appellants. Joseph Hylan, J. Assistant District Attorney, Norristown, Commonwealth, appellee. CERCONE, SPAETH, Before Judge, President HES- TER, BROSKY, WIEAND, JOHNSON, BECK and JJ.
BROSKY, Judge: This appeal appellants’ follows convictions on jury charges of criminal mischief2 and burglary,1 criminal con- 1. 18 Pa.C.S. § 3502.
2. 18 Pa.C.S. § 3304. arrests oc- appellants’ leading The incident spiracy.3 a General entered they 1981 when September on curred Prussia, and beat Pennsylvania King plant Electric hu- poured also They hammers. components missile at the arrested They were premises. on man blood occurred. personal injuries No time later. some factory exceeded damage apparently $28,000.4 Property these having committed deny did not At trial on actions, by relying themselves sought to defend but judge the trial statute.5 While Pennsylvania’s justification he by appellants, raised that the defense could be agreed prove expert testimony permit present them refused is this It defense, testimony. them to their own limiting is, us. That issue before ruling presents primary *7 limiting appellants’ in so evidence?” “Did the trial court err error, so we the court was Because we believe and remand for new of sentence judgments reverse trial. dire concerning the voir questions
Before us also are to case, judge of the trial in this the refusal conducted informa- of the criminal himself and the issuance recuse tions.6 justification discuss the opinion I we will
In Part this case. to applicable defenses In the second section we will address appellants’ allega- tions of error in the voir process. dire agree We with them to we, too, the extent that believe that the voir dire process should have been conducted in public and should have been individual, conducted on an rather than group basis. 903. § 3. 18 Pa.C.S. high damage was too assessment argue property Appellants that the
4. damaged salvageable value of not include because it did shell. missile seq. 501 et 5. 18 Pa.C.S. in view of address we need not issues which Appellants raise other
6. questions. disposition of the above recited our we Thirdly, question will discuss the of whether the trial judge should recuse himself. We hold that judge may not participate further in this case. respond we will to
Finally, appellants’ contention with agree, which we do not criminal informations filed against them should be quashed as not been having signed by a authorized duly district attorney.
I. At to appellants sought trial defend themselves on the grounds that their actions justified being necessary were the harm of avert nuclear war. Pennsylvania law pro- §§ 501, vides a defense 18 Pa.C.S. The general justification defense is set out at Section 503 which provides.
§ 503. generally Justification
(a) General rule.—Conduct which the actor believes necessary be avoid harm or evil to himself or to is justifiable another if:
(1) the or sought harm evil to be аvoided such greater conduct is sought than that prevented by defining the law the offense charged; (2) neither defining this title nor other law the of- provides exceptions fense or dealing defenses with the involved; specific situation *8 a (3) legislative to purpose exclude the justification claimed does plainly appear. otherwise (b) Choice of evils.—When the actor was reckless or in negligent bringing about the situation requiring in choice of harms or evils or appraising the necessity for conduct, his afforded this section is prosecution unavailable in any for offense which be, recklessness or negligence, the case may suffices to culpability. establish
Section 501 defines the terms or believes belief as “rea- sonably believes” or “reasonable belief.” believe, however, that appellants required
We were prove specific to the elements of a more justification stat ute, found at Section 510 which states: in 510. Justification crimes property involving appropriation,
Conduct seizure or destruc- of, to, damage tion intrusion on or interference with under property justifiable circumstances which would privilege establish a defense of in a civil action based thereon, unless:
(1) defining this title or the law the offense deals involved; the specific situation or (2) a legislative purpose exclude the justificátion claimed plainly appears. otherwise In Capitolo, Pa.Super. Commonwealth v. (1984), we held that the who had tried to in
prove justification charges defense of on the trespass grounds of power plant, required a nuclear were to meet requirements of Section 510. We so hold in the instant to, case in appellant’s damage which conduct intru- involves sion on property. or interference with Capitolo, Pa.Superior supra, Ct. 61, 471 A.2d explained we that because “Section 503 contains a general principle apрlicable to all crimes ... it must yield more specific dealing particular formulations with the situa posed Code, tion concrete case.” any (citing Model Penal 1). Scope of Article We therefore concluded that to consistent, extent Sections 503 and 510 are the require ments of must seeking prove both be met defendants justification.
As to the rationale Section behind its Model Penal origins quite Code and the case law make it clear that a defendant is if if justified committing only a crime each of four They circumstances exist. are:
(1) The actor must believe his actions to be necessary avoid a harm or evil to himself or to another which is greater than that harm or evil which his conduct will *9 This subjective result. must belief be held honestly and § 503(a)(1). sincerely. Pa.C.S.
(2) a belief must Such also determined to be an objec- reasonable one tively to hold. Pa.C.S.
(3) “defining No law the offense provides exceptions or dealing specific defenses with the situation involved ...” § 503(a)(2). 18 Pa.C.S.
(4) legislative to exclude purpose justification “[A] plainly appear.” otherwise claimed Pa.C.S. [must] § 503(a)(3). requirements
As to three and four we note that neither nor burglary statute any other section of Title an provides exception or defense this dealing specif ic We the question situation. will discuss of whether there defense, exists a legislative purpose to exclude the later in this opinion.
In
Bailey,
United States v.
444 U.S.
100 S.Ct.
(1980),
We need not speculate the precise on contours whatever defenses duress or necessity are against [particular charges. available Under criminal] any definition of these defenses one principle remains if reasonable, constant: there was a legal alternative to law, violating “a сhance both to refuse to do the harm,” criminal act also to avoid the threatened defenses will fail. & Scott LaFave on Crimi- [.Handbook (1972) Law, ], nal at 379. 410-411,
Id. at
634-635.
S.Ct. at
The Supreme Court
stated further that the modern defense
justification
federal
in the
historically
law
based
common law defenses
however,
necessity.
Pennsylvania,
duress
defense
our
Assembly
enacted
General
§ 503,
Code,
from
Penal
taken
the Model
expanded,
is an
*10
modern variant on the common law defense of necessity.
Clark,
Pa.Super.
Commonwealth
Moreover, as to imminence is not a controlling In Pennsylvania factor. the Model following Penal Code such approach, controlling: factors are not “... ac- [T]he tor’s (as- belief sufficient necessity [reasonable] [is] suming evils)____ a valid Questions choice of of immedia- course, and of cy bearing, alternatives have of only] on [but the genuineness of a belief in necessity ...” American § Institute, 3.02, Law Model Penal Commentary Code at 10 (TentDraft 8, 1958). No. United States v. Bailey, Cf. supra, (interpreting defense), common law see also Com- Capitolo, supra, monwealth v. Pa.Super. 61, 471 A.2d 462.
The defense found at Section though, is based on the tort of principle privilege and it does proof involve of imminence. §
See Restatement Torts Second 196 which states: of privileged One is to enter land in the possession of is, another if it or if the actor reasonably believes it to be necessary for the purpose averting of an public imminent disaster.
In this respect Section 510 would seem to impose a stricter § 503, standard than since as to Section imminence is not a controlling factor. See Capitolo, Commonwealth v. supra, 462, in Pa.Superior Ct. which we note that the Section requirement that imminenсe be proved differs from somewhat the role of imminence § general justification defense found at 503. See discussion § 503, supra. Institute, 3.02, 7. See American Law Commentary Model Penal Code § (Tent.Draft 8, 1958). at 5-7 No. It seems that use of nuclear beyond weapons debate public meaning would cause a disaster within the of Re- § and, therefore, statement Torts Second within the readily terms of 510. fact trial court conceded that the horrors of nuclear are well war documented.
Having
defense,
that element
established
of the
it was
appellants
left to
they reasonably believed
show
their actions to be necessary for the
purpose
averting an
imminent disaster. Without
evidence to show
immi-
nence of
disaster or the causal relationship between the
harm,
action and the
averting
could not
of proof.
meet their burden
See
Capitolo,
Commonwealth v.
*11
(1984),
Pa.Super.
Similarly, by limiting appellants’ to their evidence own testimony, the trial court made it impossible for them to weapons that the a basis fact for belief establish Appellants an imminent threat of harm. components posed case, supra, like those in were Capitolo, in the instant of their proving from the reasonableness beliefs. precluded trial, appellants, represented At who themselves with the counsel, advisory sought prove that each of assistance In order to justification. them had acted with establish defense, Sections 503 and 510 required by were that it was reasonable for them to believe that prove harm. necessary greater Ap- their actions were to avoid a pellants expert prove tried to introduce evidence order to the elements of the defense. It is this evidence which the lower court would not allow. appellants attempted
When to introduce the first of sever- witnesses, al told planned expert they were court that the witness would not permitted testify. first Aldridge. prose-
That witness was Robert When the cutor to his and asked for an offer of objected testifying said, proof appellant Montgomery Sister Anne “We wish to case, him as a to present call witness facts relevant to our since he can to the this speak significance really what is,____” exhibit Aldridge’s qualifications weapons expert
After Mr. as a *12 explained, the court ruled that he could not testify were testimony his would be irrelevant to the facts at because say Aldridge present repu- issue. The court did that could evidence, that, course, not the appellants’ tation but was “I calling explained: him. The court think the purpose prove your you testify to intent is for to as to proper way saw, yourself did and what the you you justification what stand.” from the expert testimony
The court said that as to the horrors appellants’ argument, nuclear war would “bolster” which continued, judge could come from them. The testimony rule, anything they “And I have ruled and will continue to as to themselves.” justification, they say about can say In to response suggestion expert counsel’s that witnesses would show reasonable appellants basis what believe opined, issue,” the court “But that isn’t the The court concluded, “and- it is to me clear that the testimony prof- fered proffered or to be is not relevant to the issue at hand.” Later the trial the court its explained previous ruling “The was there saying, ruling expert would be no testimony respect to the views of experts, these be- all, cause opinion testimony, first is not relevant to those issues, for every opinion you because that have as to one view, point of an you opinion will have opposing that.” general justification Both the defense at 18 found Pa.C.S. § 503 and that at 18 the require Pa.C.S. that belief of the actor that his action is necessary be reasonable belief. § 501, See 18 Pa.C.S. How can a supra. defendant show the reasonableness of his without position reference to the Surely basis or reason for it? some explaining evidence it that appellants what was believed and why they believed it, to necessary was meet the “reasonableness” standard of the defense. how can
Similarly, appellants show that it was reasonable to believe that the harm they sought avoid was imminent without reference to evidence of imminence? to emphasize
We wish that we do not hold that should been introduce have able to witnesses any they desired, the regard proffered without testimony. Of course, testimony Furthermore, the must be relevant. case, the conclusion of the the might lower court properly determine insufficient evidence was presented sus- tain If proffer defense. indicates that believed, even if the it testimony were would not satisfy requirements justification defense, then lower might preclude case, court also testimony. this however, the record before us devoid of evidence proffered testimony was irrelevant. transcript the appellants presented indicates that
the court a brief entitled Points and in Support Authorities *13 of Evidentiary Proffer but that brief was made part
257 is contained proof No other offer of of the record. written indicated, the and, appellants as have were in the record we expert offer as to any from an oral precluded presenting fact, witness, Aldridge. other than Mr. when put on the record the permission the trial court for asked had intended to expert they of those witnesses whom names name of Mr. call, only he them to include permitted Aldridge.8 improperly court limited evi-
We believe that the lower
support
to introduce
appellants sought
dence which
defense.
justification
“An accused has a funda
It is well established that:
such
long
evidence so
right
present
mental
defensive
an
is relevant and not excluded
established
evidence
399,
Greene,
Pa.
v.
469
evidentiary rule.” Commonwealth
234,
(1976).
v.
405,
Washington
366
237
See also:
A.2d
1920,
(1967);
Texas,
14,
18 L.Ed.2d
388 U.S.
87 S.Ct.
(1977);
A.2d 661
470 Pa.
Boyle,
v.
Commonwealth
Pa.
er the defendant’s justificatory beliefs were hon- est sincere acting upon and whether such a belief was Schaller, objectively reasonable. supra. Commonwealth noted, process, this as we have the finder fact may consider, belief, gauging genuineness the of this whether legal alternatives to breaking or, reasonable the law existed if the circumstances the case such a finding, warrant that the threat was posed sufficiently imminent justify act. such an
The lower court erred it appellants when ruled that could not they introduce the evidence needed the to show Instead, reasonableness of objective their actions. the court limited their the proof showing subjective reason ableness the action.
Similarly, agree while we dissent’s conclu sion that record does not contain evidence harm imminent, was we appellants conclude that the were effec tively and improperly precluded presenting from evidence to § imminence, required show conclusion, We turn next to the dissent’s stated without explanation, that it is as a unreasonable matter law to that nuclear believe disaster could avoided by be the actions by appellants. undertaken
Unlike the dissent which to say seems that to avail appellants themselves the defense must be able to show war, that their totally actions could avert nuclear we will not hold them to such a burden. must Appellants show that their actions could reasonably thought have necessary been public Restatement, to avert a disaster. See supra. the use of Surely weapons, components of which dаmaged were by appellants public would cause a disaster flood, on the order of a “conflagration, earthquake or pestilence.” See Capitolo, supra.
Appellants explain in their brief Robert Aldridge would have the weapons compo- described nature of that the bombs plant hydrogen nents at G.E. shown being operate not were constructed could they for which Therefore, reasonably the argument might without them. could components of those avert made that destruction appreciable to an extent. nuclear disaster surely goal had as their ultimate While find of all we their weapons, the destruction nuclear will action could simply defense unreasonable because their damage weap of those only result in some immediately *15 ons, might those alone reason weapons since destruction of avert disaster. ably conclusion that agree
Nor do we with the dissent’s be justification the defense was unavailable to it. to exclude legislative purpose cause there exists a § § notes, 503 As dissent both 18 Pa.C.S.A. the “legislative the if a provide that defenses are available the does not otherwise purpose justification to exclude in purpose The dissent finds such a the plainly appear.” of Energy of the Act U.S.C. provisions Atomic § makes the seq. 2011 et and 18 U.S.C. which § a destruction of nuclear defense materials crime. and do provisions
We have reviewed the of these statutes see in them of a to exclude the purpose not evidence defense.9 justification §
True, make criminal may conceivably 18 U.S.C. in the engaged by appellants, the but how does activities have they might existence of another crime with which been charged availability justification affect the of the defense Appellants may the us? even have been crimes before other, crimes, chargeable unmentioned but we are with aware that states that the defenses available principle of are of crimes to a defendant limited numbers that, notes, cognizant of We fact as the dissent courts are of the However, jurisdictions the decisions of other have held otherwise. binding upon we them to be in those are not us and consider courts error. § might charged. citing which he Yet in 18 U.S.C. the principle espoused that is dissent. by Energy While Atomic Act does contain a declaration policy favoring “the use development, and control of atomic as to energy ... so make the maximum contribution welfare,” to the general Id. at we note that neither Act, nor Energy Act Reorganization U.S.C. §§ dissent, 5801-5891 also mentioned by the contains statement “clear and purpose” manifest to exclude the charge defense to a burglary Pennsylva nia. See Capitolo, A.2d supra, Pa.Super. 61, which this Court so finds no such purpose. regard
In this
see also Silkwood v.
Corpora-
Kerr-McGee
—tion,
—,
(1984),
U.S.
104 S.Ct.
As the Model Penal provi Code draftsmen of this sion specified, plain legislative purpose such a to exclude choice, legislative must “a deliberate be when law has specific presents dealt with the situation that explicitly Institute, the choice of evils ...” American Law Model Code, 3.02, (Tent. 8, Penal at 6 Draft No. Commentary 1958) added). A (emphasis legislative plain choice is itself explicit legislature where “the has canvassed and shall determined what the choice be.” Id. No [of evils] legislative such nor choice to exclude plain explicit appel- proffered appears lants’ in this case and it is justifications province not the of the or create such an judiciary imply exception, inappropriate however we feel may personally appellants’ conduct to have been.10
II. Appellants further contend that the trial erred in judge the conduct of respects. voir dire various Most signifi- (1) argue: cantly, they potential that each should juror have been interviewed presence outside the of the other panel members; (2) that the lower court improperly excluded the public jury from the selection process. scope
The
of voir dire
rests
the sound discre
tion of the trial judge and his decision
will
be reversed
in the absence of
error.
palpable
v. Spar
Commonwealth
row,
(1977);
471 Pa.
10. We note the dissent’s intimation that actions disobedience, appellants accepting should treated as civil punishment position, due them for the commission of the crime. This however, ignores the fact that claim not to have committed *17 crime; justified committing the or in the alternative to have been in it. claim, do, They do not as those who commit civil disobedience to have Therefore, principles broken the law. civil are disobedience applicable Capitolo, supra, thorough to this case. See for a discussion justification. of the distinction between civil disobedience and 262 goal
The the single permitting questioning of prospec- jurors provide tive the accused a “competent, fair, impartial and unprejudiced jury.” ... dire, latitude
Although permitted should be on a voir the should be confined to inquiry strictly disclosing qualifica- tions or lack of qualifications and whether or not the juror opinion had formed a fixed case the as to the guilt accused’s or innocence. Davis,
See also Commonwealth v.
282
supra,
Pa.Super. at
54,
pra, 1296, Pa. A.2d at further admonished our stating: courts
A prospective juror’s
are of no
personal views
moment
showing
absent a
so
opinions
that these
are
em-
deeply
person
bedded
to render
incapable
as
of accepting
the
law as
the
applying
given
long
court. So
to,
to,
the
is able
juror
does,
intends
and eventually
the
on
adhere to
instructions
propounded
law as
court,
the trial
he or
is capable
she
performing
juror’s
regard,
function.
In
may safely
this
it
be inferred
juror
will not violate his or her oath in the absence
expression
of any
or other indications
the contrary.
See
Sparrow,
also Commonwealth v.
supra; Common
Dukes,
180,
(1975);
wealth v.
460 Pa.
wealth v.
Pa.
In Commonwealth
publicity
much
(1970)
that
of the
Supreme
Court found
The media
prejudicial.
trial had been
preceding Johnson’s
inflammatory
by
statements
coverage
included
accounts
racially
sensitive
The case was
Attorney.
the District
circumstances, the court found that the
these
one. Under
refusing
its
to conduct
court had abused
discretion
trial
It
dire.
reasoned:
individual voir
arbitrarily refusing
If the action of the trial court
jurors
of the
of other
were
hearing
allow
dire out
voir
into
rule a
the effect of
writing
it would have
upheld,
easy precau-
need not take an
judge
that
trial
provision
being prejudiced
a trial from
might prevent
tion which
to.
if he doesn’t want
When there
publicity
pretrial
which
inflammatory pretrial publicity
in a case
present
prejudiced,
a trial could be
possibility
creates the
re-
present
circumstances
which
there are
those
exactly
hearing
of the
out
juror
questioned
each
to be
quire
situations,
in such
when
Consequently,
the other jurors.
it
requested,
is an abuse
form of voir dire is
this
request.
discretion to refuse that
351-353,
In Commonwealth v.
supra,
all of
jurors
the
who
they
indicated that
had
or
read
heard of the appellant
indicated
despite
him,
that
such
of
awareness
were
they
of
an
mind. The
open
Court,
Supreme
nevertheless,
found
that
individual voir dire outside the hearing
jurors
of other
would have been preferable because
prospective juror
each
needed to be examined
to
“as
the exact amount of publicity
concerning the appellant he had experienced,
and which
information he had retained
this manner possible
challenges
might
cause
developed.”
have
Pa.
352,
In this all of sixty but two prospective jurors responded they that had of heard the incident gave which rise to the charges for appellants which were being tried. of Most jurors the also said that they would still able be to judge appellants fairly based on the presented at evidence Nonetheless, we conclude that Commonwealth v. trial. Johnson, supra, controlling, widespread the publici ty surrounding potential this case and its to preju arouse required dices potential jurors be interviewed individua Thus, lly.12 at the trial new the individual voir dire and challenge system 1106(e)(1) outlined Rule be must fol lowed. Although Johnson,
11.
the decision
supra, pre-
in Commonwealth v.
present
dates our
it
adoption
Rule
has been
the
cited since
of
principle
that rule
prospective juror
for the
that each
should be
questioned
hearing
prospective jurors
out of the
of other
where such a
procedure
Smith,
help
will
assure
fair trial. See Commonwealth v.
480 Pa.
The court on remand must also comply 1108 and Rules Pennsylvania Rules Criminal Procedure, rеgarding peremptory challenges number and each defendant are enti to which the Commonwealth tled.
Furthermore, appellants they, contend that rath question er should have judge, permitted than been case, prospective jurors. this effect of such a question well have been to procedure may subject jurors ing many process individuals. This could have been dire, of the voir unduly lengthy unwieldy. format regard, in this must remain the sound discretion trial Commonwealth v. judge. Africa, Pa. Cf. (1976). However, remand, on A.2d 855 should the trial discretion, himself, in his decide judge question jurors must, course, he permit pro to submit posed questions for the to him. These jurors questions See, shall retained to of the part become record. Rule 1106(c). We also direct that a record of the strike off sheet *20 kept preserved appellate be review. also
Appellants
contend that the voir dire of prospective
jurors
improperly
public.
trial
was
closed to the
The trial
limited access to
judge
parties
press.13
the
and the
The
Supreme
United States
Court decided recently the
process
voir dire
must be
to the
open
public,
specific
absent
the
findings by
trial court that a
voir
public
dire would
violate the privacy interests of the
prospective jurors.
Press-Enterprise Company
Superior
Court of Califor-
—
nia,
—, —,
County,
Riverside
U.S.
104 S.Ct.
(1984),
openness may only by overriding overcome an interest findings based on that closure is essential to preserve higher narrowly values and is to tailored serve that interest. Press-Enterprise case involved
While the a First Amend- ment claim the rather than a press, claim the defend- right public violated, (as ant that his to trial had been is us), to we nonetheless find the presented opinion to helpful disposition case us. the before As Court noted Id. —, S.Ct. at present purposes,
For how we allocate “right” openness public, between accused and the or whether it a component we view as inherent the system both, not benefiting is crucial. of openness
... The value lies in the that people fact can have actually attending trials confidence that stan- dards being of fairness are observed: the sure knowledge that anyone gives free to attend assurance that estab- lished are procedures being followed and that deviations will become known. § Pennsylvania provides Constitution at Article 1 9: prosecutions
“In all criminal or [by indictment information] ____” hath a a right public accused ... ... trial 11 provides Const. Art. Article Section that “[a]ll shall be open.” courts
This court
held
recently
right
public trial,
under both the United
Constitution and the
States
Pennsyl
Constitution,
right
jury
vania
includes
have
selected
Johnson,
Commonwealth v.
public.
Pa.Super. 367,
opinion
The in guarantee of a trial a criminal case public victim, protection only for the of the accused. The in general, and the in are also particular, community, within guarantee. people courts, the care to use they the “[I]f must them. goal by allowing trust Courts achieve this observe, compare them with other study, to people (Citations omitted.) rendering disputes.” of methods at at 658. Id., Pa.Superior Ct. right trial to concluding public
After
that the
to
extends
opinion
the
acknowl-
process,
selection
Johnson
jury
the
absolute, but,
is not
right
public
the
to a
trial
edges that
rather,
relationship
impor-
in
to other
must be considered
is, the
should
examined to
tant matters. That
record
be
interest,
reason, suffi-
it discloses
or
any
determine whether
limitation
the appel-
cient
the lower court’s
of
support
Id.,
Pa.Superior
at
public
lants’
trial.
Ct.
right
Knight,
We explained Commonwealth right public of a limitation on to a trial propriety the inescapable must tested standard of “strict and Id., A.2d at Pa.Superior at necessity.” Ct. supra. Press-Enterprise Company, See also was no review of the record discloses there Our during closed appel for court to have been necessity lants’ dire. voir that he ordered the closure judge explained trial It noise and confusion. seems obvious prevent
order to can without in- decorum be maintained us that courtroom measures; has voking certainly, drastic there been such necessity closing no strict manifest for displayed Supreme As the Court observed Press-Enter- court. — —, at 104 S.Ct. Company, U.S. prise supra, by jury, process trial “[Sjince development process presumptively public has been a jurors selection good good shown.” No such exceptions only cause in the demonstrated instant case. cause was
III. have recused argue that the trial should Appellants judge failure recuse judge’s himself. need not discuss the We trial, first since we have determined himself at the *22 appellants are otherwise entitled a to new trial. agree, We however, that the new trial should not be conducted judge, same nor he should be involved in further any proceedings in this case.
The record in replete this case is with emotionally charged exchanges between the court and their advisory counsel.
For after example, appellants asked advisory counsel longer no their represent trial, interests at counsel left the courtroom while some of the defendants stood with their backs to the Court.
The court then instructed the jury called recess. recess, Following advisory counsel returned. The court informed counsel he considered their behavior leav- ing the courtroom to contempt. be a direct act of discussion thаt followed contained the following exchanges:
THE COURT: Let me say else. You something have obligation Court, an to this as does every single attorney here, appears who conduct properly yourself with demeanor. proper
MR. obligation SHIELDS: Our first is to our clients. I think carried out. we MR. I GLACKIN: think under conditions in this performed courtroom we like saints.
THE I am you performed COURT: sure like saints. performed You like press saints to the yesterday, too. MR. GLACKIN: That has nothing to do with this courtroom, Your If you Honor. any have comments that, you can about that for reserve some cocktail lounge. THE COURT: I have no personal grudge about that. MR. GLACKIN: It’s odd that it should come out now. THE It’s COURT: odd that it came out the paper. Well, bad, MR. GLACKIN: isn’t that too that the truth shall be heard? And the truth doesn’t make everybody—
MR. GLACKIN: You going are not to taint reputa- my tion with I tell impunity, will that. you threat to to make a going You are THE COURT: either. the Court blasphemy? sue for you don’t Why
MR. GLACKIN: of honor. sense, badge it is a In a *23 contemp- counsel behaved of whether question the While instance us, quoted cite the above is not we tuously before that oc- dialogue heated emotional of the example as an the trial. during points at various curred we note length at not cite other instances we did While Rush, defendants, ac- Molly one of the point at one that said to the defendants and having lied the court cused Court, personally, Honor, you the we believe Your “... entire think, along with the I displayed yourself, have arm for legalized the country this system judicial genocide.” 499, 455, 91 S.Ct. 400 U.S. Pennsylvania,
In Mayberry Court Supreme (1971), the United States L.Ed.2d 532 of the clause Due Process reason of the by that held contempt in criminal Amendment, defendant a Fourteenth a judge trial before public given should be proceedings contemnor. the than the one reviled other are be- indicated, proceedings contempt As have we from our case differs regard in this for review and fore us the defend- finding of trial court’s in the which Mayberry the of trial was before the conclusion in at contempt ants opinion Mayberry find the nonetheless Court. We Supreme instructive. time the not act at the trial court did the Mayberry end of trial. committed, until the but waited
contempt was wise “generally it is observed Supreme Court person- left conduct have unseemly the the marks of where place.” his Id. to take judge to ask a fellow stings al 464, at 504. 91 S.Ct. explained, the Court
As state, of due the concern federal or the trial be Whether At justice. fair administration the with process impersonal of “the image the has not been judge times a of law” authority States, v. United (Offutt U.S. 11, 15, 11) L.Ed. S.Ct. but has become so “personally lawyer embroiled” with a in the trial as to judge make the unfit to in judgment contempt sit on charge.
Id. at S.Ct. at similarly conclude
We trial judge instant case became so “personally embroiled” both lawyers the defendants in this to require case as him to himself further recuse from the case. participation
We note that the additionally Conduct, Code of Judicial adopted Supreme Pennsylvania, Court effective January (1973), (6) 455 Pa. at XXXIX 3 A Canon judge states: “A public should abstain from comment about court____”. pending proceeding any this Despite pro- scription, the trial judge apparently granted an interview to York during *24 New Times voir dire and period was quoted said, having “It’s a different In kind of case. any disobedience, prosecutor, case of civil the the judge the on jury are trial.” put
The trial judge should not have commented upon what perceived he appellant’s strategy. trial His comments certainly public indicated the in way which he appellants’ position viewed although the trial had barely begun.
See of Judicial 3(C). Code Conduct Canons 2 and See also Darush, (1983) Commonwealth v. 501 Pa. A.2d 727 in which Supreme our Court considered as relevant to a motion remarks trial from judge recusal which a significant minority lay of the community could reasonably question court’s impartiality. to his public addition comment the judge trial made
known his sentiments the case in a sent himby about letter to a filmmaker requested permission who had to film the courtroom, a copy of which was made an to appel- exhibit lants’ recusal motion. judge The wrote: “I feel that make a an documentary insignificant such situation will make heroes of immature intransigent people, enhanc- ing importance. gives their status and It them much wanted which motivated them to do publicity illogical in place.” act the first Supreme explained Court in Commonwealth v. 498 Pa. 490 n.
Boyle, (1982) 252 n. 4 that:
A jurist’s impartiality question called into whenever he has doubts as to his ability preside objectively and fairly the proceedings or where there exists fac- [sic] tors or circumstances that may reasonably question the jurist’s impartiality the manner. certainly recognize
We judge trial was under great pressure in defiant, this case. We do not condone the disrespectful behavior of appellants and advisory counsel. Nevertheless, the fact remains that the judge was not only personal level, attacked on a as was the judge Mayberry, supra, responded he also appellants to the in such a asway to display his partiality.
The new trial is therefore to be conducted aby judge other than the judge who presided over the first trial.
IV. Next, assert the informations filed against them were not properly signed. The informa tions signed were not but, rather, the District Attorney, by Assistant District Attorney John Armstrong. The infor mations were executed on October 1980. On March 1980, Assistant District Attorney Armstrong had been des *25 ignated by District Attorney as an assistant authorized § to sign criminal informations. 8931(d)(e)14 See Pa.C.S. which discusses the duties of prosecuting as to attorneys § indictment and 8931(i) information and 42 Pa.C.S. which provides for the designation written procedure followed this 225(b) case. See also Pa.R.Crim.P. requires which that a criminal information signed be attorney for the 9, 1976, 142; July 14. Act of P.L. No. as amended. For comprehensive
Commonwealth. discussion of the signature requirement Supreme see our Court’s recent opin- Emanuel, ion in Commonwealth v. 501 Pa. Subsequent to March when Mr. Armstrong was designated sign informations, as authorized to other lists of designated assistant district filed attorneys were Attorney District of Montgomery County. Appellants con- tend Mr. Armstrong that because was again not named as a designee, his designation had been by the Dis- withdrawn trict We Attorney. agree with lower court’s conclusion that the addition names not did itself revoke the authori- ty previously given to Armstrong. Mr. The informations were signed therefore in conformance Pá.C.S. § 8931.
Having concluded that are appellants entitled to a new trial, we judgments reverse of sentence and remand for new trial permitted prove, which shall be if they can, that their conduct justified. was J.,
SPAETH, concurring files a opinion. WIEAND, J., files a concurring dissenting opinion and JOHNSON, which JJ., join. HESTER SPAETH, Justice, concurring: I join Judge opinion, BROSKY’s the following offer hope may comments in the it approach helpful case, this has given which such from a difficulty, us some- angle. what different
The justification recognition defense arose from the interpreted, literally may merely ass,” be not “a law technicalities, caught up in its arcane A but cruel. lost and who starving man breaks into cabin and food he eats finds there is a burglar and thief. American Law Insti- Cf tute, (Tent. Model Penal Code 3.02 Comment at 9 Draft 8, 1958) No. (citing examples). “higher There are value[s] than the of literal'compliance value with the law.” G. *26 § (2d Williams, 1970). Criminal As Law ed. soon as acknowledge fact, recognize justifica- this we we that the tion defense is “essential to the and of all rationality justice Code, 3.02 penal provisions.” supra, Model Penal Com- ment at 5. whenever a
Accordingly, pleads defendant justification, ask, the court higher should “What value than the value of literal compliance with is the law defendant asserting?” The trial court failed question. to ask this Apparently its eyes higher nо value is implicated this case. And for the dissent, this case is to be decided as we would decide case involving theft and “the destruction of guns explosives or by altruistic and well-meaning citizens who sincerely believe that guns explosives or possess potential to kill at But Dissenting op. ap- sometime in the future.” at 285-288. pellants pleading danger are not their the dan- arising “guns explosives;” they pleading from or are One not under- ger arising from nuclear missiles. who does danger plea. does appellants’ stand that not understand The trial says court that appellants “failed to establish or the urgency danger’ ‘imminent public disaster sought which [they] prevent.” But, Slip op. at 29. I submit, a “public disaster” is “imminent.” “Imminent” “[threatening means hand; occur immediately; near impending; esp. of peril.” misfortune or Webster’s —said (2d New International Dictionary 1938). ed. By resort- ing only to our own Government’s official publications, we may learn United States and the Soviet Union— without (and reference Great Britain and France others? Israel?) has the capability destroying other —each within and minutes on command. See The Effects e.g., War, Nuclear Office (de- of Technology (1979) Assessment scribing effects of nuclear attacks various proportions); The Effects of Nuclear Department Weapons, of Defense Research Energy Development Administration (1977) (same). then, Why, is disaster not “imminent”? Because our allies Government and its would never initiate it,
the attack? Because the Soviet Union is afraid to initiate If this knowing response *27 what our would be? trial know, for reasoning court’s don’t the court doesn’t —we reasoning only say many state its can that find it —one are the of unpersuasive. Among many Bishops Church, “Pastoral Letter on War in their say Catholic who Peace, The Peace: God’s Promise and Challenge of Response,” Our No. Publ. U.S. Catholic Conf. (1983): therefore, drama; in today,
We live the midst of a cosmic should never used possess power we which be- but if not might which be used we do reverse our direction. cannot weapons knowing We live with nuclear we afford to make one serious mistake. Bulletin of are the authors of the among many
Also Scientists, Atomic symbol whose the imminence of January nuclear is a clock. In the 1984 edition of the war Bulletin, (in the clock stands at three minutes to midnight edition, four). it stood at December dissent, court, says
The like the trial that “it was unrea- as a appellants] sonable matter law believe that [for merely by nuclear war could be avoided one of destroying made for components being separately incorporation several (em- Dissenting op. into nuclear missiles.” at 1121. future See Slip in Trial at 29-30. But phasis original). op. Court this was in the record the conclusion that nothing warrants do not their appellants’ Appellants belief. assert ac- tion would avoid nuclear war (what a grandiose and unlike- idea!). Instead, I at least so far as can tell from the ly action, in combination record, their their belief was that with the actions of accelerate a others, might political process ultimately leading to the abandonment nuclear submit, belief, missiles. And I should not be dismissed A might as a matter of law.” jury “unreasonable —or not—find it as a matter of might unreasonable But fact. that is for a not for a court. jury say, fallacy reasoning
The in the trial court’s and the dissent’s equate is to “success”: if by “reasonableness” with break- ing the law did not you gaining succeed your objective, plead you may justification. But reasonableness is a function of the actor’s situation. If the peril to the town was it slight, may indeed have been unreasonable of me to
make a firebreak destroying my neighbor’s house. But if the peril great, was action my may be seen a very different light, my plea of justification may prevail, even in the face proof that the fire swept across the space cleared, I had See, and burned down the town. e.g., Wooten, (Cochise State v. Crim. No. 2685 Cty., Ariz. Sept. 13, 1919) (unreported) Comment, reprinted Law Necessity Case, and the Deportation Bisbee 3 Ariz.L.Rev. (1961)(“One 264 at 278 claiming right to destroy build- ings to prevent spread of a conflagration must necessar- right have that ily determined the condition existing or *28 to a appearing reasonable man to at the exist time of the destruction.”). Garland, See Arnolds & generally The De- fense in The Necessity Right Criminal Law: to Choose Evil, the Lesser (1974).1 65 J.Crim.L. & Criminology 289 peril greater No is peril approaches even peril —no —the of nuclear war: in people Pentagon the offices and their counterparts
in the Kremlin
questions
coping
where the
with war
injuries are dealt with must
having
be
a hard time of it
these days, looking
they
ahead as
must to the possibility
of thermonuclear war.
sensible
in
Any
analyst
such an
office
tempted
would be
to scratch off all
expense
the
items related
surgical
irradiated, burned,
care of the
blasted,
men, women,
and children with empty
bone marrows and vaporized skin. What conceivable
can
sinking
benefit
come from
money
hospitals subject
combustion,
to instant
only capable
salvaging,
at their
best,
intact
few hundred
the victims who will be lying
out there in the hundreds of thousands? There exists no
reasoning
I know that other courts have used the same
See,
Best,
(D.Colo.
e.g.,
F.Supp.
dissent has.
United States v.
1979);
Marley,
State v.
54 Haw.
medical technology cope that can with the certain out- small, neat, come of one just so-called tactical bomb exploded over a As problem battlefield. for the raised a single large bomb, say a twenty-megaton missle (equiv- alent to approximately Hiroshimas) two thousand dropped Moscow, on New York or City with the dead and dying in millions, what would medical technology good be for? As the saying goes, it. Think forget of something else. Get a computer running cave, somewhere in a to estimate the likely numbers of the lucky dead. L. Thomas, On Medicine and Bomb, reprinted in L. Thomas, Late Night Thoughts on Listening to Mahler’s Ninth Sympho- atny 1983).
Nor is peril confined to “irradiated, those who will be burned, and blasted.” It extends much farther, to our species. survival as a If only small fraction of the nuclear fired, missiles now able be either by us or the Soviet Union, fired, are a “dark nuclear winter” will occur: a cloud of debris will block off our sunlight; temperatures will plunge; and our death by freezing or starvation will follow. Scientists have identified a megaton explosion as the “nuclear war threshold” that once crossed will lead to such a global catastrophe. See “After Atomic War: Doom in the Dark,” Phila. Inquirer, November at 1. It is light of peril this appellants’ reasonableness of belief must judged.
Perhaps a jury will discount evidence that our situation is *29 as desperate as the authorities I have alluded to believe. Or perhaps a will jury regard appellants’ conduct as mere views, bravado. On either of these appellants’ plea of justification will fail. But we must such appraisals leave a For jury. hold, we are not entitled to a “as matter of law,” would, as the dissent that a jury could not find that our situation is as desperate as appellants offered to prove, then, and proceeding from that finding, could go not on to decide conduct, that appellants’ however unlikely of suc- cess, represented a reasonable response. I admit that for my part here least I suppose that the dissenters —and
277 I apart skeptical appellants’ and are not far am —I I Bishops’ conduct. believe there are better ways, them. But that is what trial is all among by jury about: judged by skeptical judge ensure that the defendant is not his peers. but
2
BROSKY, I
in
Judge
nothing
support
Like
find
of the
claim that
in
has
Congress,
exercising
power,
war
the defense of
and I see no need to
preempted
justification,
add to the discussion of
in
preemption
Commonwealth v.
61,
(1984),
Pa.Super.
324
The Report Cong. dissent cites Senate No. U.S.Code & Admin.News p. which discusses the Atomic Act of Energy showing Congress “fully was cognizant of dangers inherent nuclear weapons.” Dissenting op. at 289. But no one shares the Re- today port’s serene confidence “our atomic weapons stockpile.” If the Report shows it shows that anything, Congress was fully cognizant dangers of the inherent nuclear If weapons. inquiring we are into Congressional cogni- zance, we should do better to examine the debates over missile, production see, whether authorize the of the MX Cong.Rec.H. 1983), 5309-50 ed. e.g., (daily July Loftis, See, Grodzins, (1969); e.g., Betrayal Girdner & The Great Dembitz, (1949); Betrayed Americans Racial Discrimination and the Rostow, (1945); Military Judgment, Japa- 45 Colum.L.Rev. Disaster, Freeman, (1945); nese—American Cases—A Genesis, 54 Yale L.J. 489 Evacuation, Law, Geneology, Exodus and Leviticus— L.Q. Cornell *30 278
the adoption by the House of the Nuclear Freeze Resolu- see tion, 41 7, Cong.Q. 1983) 868 (May (reporting passage of 13). HJ.Res. Hirabayashi
Time has overtaken
Senate Report No.
1699. Nothing in them suggests
that Congress has preemp-
ted appellants’
right
plead
defense of
provided
them
our
Indeed,
Crimes Code.
recently just
the opposite has been made apparent
by the Supreme
—
Court’s decision in Silkwood v. Kerr-McGee Corp.,
U.S.
—,
104 S.Ct.
L.Ed.2d 443
There the Court
held that an award under state tort law of punitive damages
against a federally-licensed manufаcturer
of nuclear
fuel
pins for use in nuclear power reactors was not preempted
“either because it falls within that forbidden
[regulat-
field
ing the safety aspects of nuclear energy,
Gas &
Pacific
Electric Co. v. United States Energy Resources Conserva-
tion
Comm’n,
& Development
U.S.
103 S.Ct.
Punitive damages long have part been a of traditional state tort law. As above, we noted Congress assumed traditional principles of state tort law would apply with full force unless they were expressly supplanted. Thus, it is Kerr-McGee’s burden to show that Congress Foust, intended preclude such awards. IBEW See U.S. S.Ct. (1979) L.Ed.2d [99 698] (BLACKMUN, J., concurring). Yet, the company is un- able to point to anything the legislative history or in regulations that indicates that punitive damages were allowed____ not to be sum, it is clear enacting and amending the Act,
Price-Anderson Congress assumed that state-law remedies, in whatever form they might take, were avail- able to those injured by nuclear incidents. This was so *31 though even it was well aware of the NRC’s exclusive authority regulate safety matters. No doubt there is tension between the conclusion that safety regulation is the exclusive concern of the federal and law the conclu- that a sion state nevertheless award may damages based on its of liability. own law But as we understand what was done in years legislation over concerning nuclear energy, Congress intended to stand both con- cepts and to tolerate whatever tension there was between less, them. can do We no
at_,
tents, Sigmund pictured Freud us as in a caught struggle Love, Eros, between “Heavenly two or and Powers”— outcome, Death. on the Reflecting he said: I ... have not the courage up to rise before my fellow- men as a and I I prophet, reproach bow their can offer them no consolation: for at bottom that is what they demanding are all wildest revolutionaries no —the less passionately than the most virtuous believers. question fateful for the human species seems to me to be whether and to their what extent cultural development will succeed mastering disturbance of their communal life the human instinct of aggression may self-destruction. It be that in this respect pre- cisely present time special deserves a interest. Men gained have control over the forces of nature to such an extent that help they with their would have no difficulty one exterminating another the last man. know They this, unrest, and hence comes a large part of their current their unhappiness and their mood of And it anxiety. now is to expected that the other of the “Heavenly two
Powers,” Eros, an eternal will make effort to assert struggle himself in equally with his immortal adver- can foresee sary. But who with what success and with what result? Freud, Civilization And Its Discontents, (W.W.
S. Inc., 1962). N.Y., Norton Company, & final, haunting It is with Freud’s in mind we question For question should decide this case. it is this that provides appellants’ judged. context which conduct must be WIEAND, Judge, concurring dissenting. *32 agree granted
I appellants that must be a trial. new However, I vigorously holding dissent from the majority’s appellants-must a retrial upon permitted attempt to showing to their criminal conduct the justify by reasonable- of disagreement ness their with national defense policies Congress by established of the United States. Berrigan, Reverend Daniel the Reverend Philip Berri- gan, Maas, H. Montgomery, Sister Anne Elmer the Rever- Kabat, Schuchardt, end Carl Molly John Dean Hammer and Rush, by were of appellants, jury burglary,1 convicted criminаl mischief2 and criminal as a of conspiracy3 result entering their Electric Plant at of King General Prussia they hydrogen where missile damaged components bomb being made for the United States Government. Appellants had admitted that committed these acts. they They sought trial, however, to establish at that their conduct was justi- government’s fied policy pertaining because the to the deployment manufacture and of weapons nuclear was ille- of gal they and created a threat world disaster.4 On appeal, 1. 18 Pa.C.S. 3502. §
2. 18 Pa.C.S. 3304.
3. 18 Pa.C.S. § defense, 4. As part proffered sought of their to deployment being offer evidence that the construction and of missiles preparation by aggres- manufactured Electric General constituted sive warfare in violation international law well as treaties
281 that the trial court excluded evidence erroneously contend objective to the reasonableness the beliefs pertaining sought justifica- their defense of upon they which base specifically, they complain they tion. More were not expert testimony consequences on the permitted present their destruction of justify of nuclear warfare order manufactured Electric. components missile General addition, challenge procedure adopted the trial they dire conducting prospective court for voir examination jurors.
The trial court committed serious error when it excluded
families,
public,
appellants’
as well as
from the court
during
jury.
room
selection
Both
Sixth Amend
§I,
to the
and Article
9 of
ment
United States Constitution
Pennsylvania
guarantee
Constitution
an accused the
to a
trial.
right
public
Press-Enterprises
Superior
Co. v.
—
—,
Riverside
U.S.
104
California,
County,
Court of
819,
(1984);
which the United States was a contended that the government’s illegal necessitated their criminal acts. conduct 282 during
media
the selection of the
“does not
jury
satisfy the
requirement of openness.”
Contakos,
Commonwealth v.
supra,
The record in the instant case fails to disclose any legally *34 sufficient basis for the issuance of the trial court’s exclu- specta- courtroom of cleared the judge order. The trial sion February Monday, dire on commencing voir prior tors forty of a member presence that the grounds on the of all available necessitated the use panel veniremen was panel The entire press. occupied by not seats courtroom, dire and voir from the excused subsequently four panels of veniremen. conducted with was thereafter that 24, 1981, requested appellants February Tuesday, On longer no as the area was order be rescinded the exclusion trial court refused The for the veniremen. required a lot of noises noting “you get that public, admit the 123). of Carl (N.T. request influences.” extraneous exclusion from the exempted his mother be that Kabat stating: “... for the denied, the trial court was order is decorum, I to leave it as it with going am purpose is jury When picking process. to the respect jury trial.” completely open this will be a ultimately picked, 124). per- that her children be (N.T. requests Ms. Rush’s also denied. jury the selection of the were mitted to observe Thursday, February on request All renewed their appellants to the courtroom 26, 1981, that be admitted public dire, guar- Amendment that the Sixth during arguing voir trial. The trial court right public them the to a anteed order, that “it stating the exclusion refused to lift again in and out of people to move very distracting would be do, such time as the here, jury are until they want [sic] sworn____ is begins jury The trial of the case when (N.T. 700-701). and the taken.” testimony sworn from facts that did necessity these readily apparent It is exclusionary the trial court’s order. See: Com support 384-85, Johnson, Pa.Super. supra, monwealth trial right public to a appellants’ A.2d at 662-663. Because that violated, majority appellants I with the agree must was trial. are entitled to new however, permitted should be disagree,
I evidence introducing interminably by the retrial prolong belief appellants’ to show the reasonableness intended by Congress defense established of national policies *35 284
were wrong. Appellants’ criminal acts be cannot sanctified merely they hold a sincere that because belief national therefore, are policies wrong defense and that they, have a higher obligation keep policies being to those from put into effect. doubt, course, no
There can be
that
accused has a
“[a]n
right
present
long
fundamental
to
evidence so
as such
evidence is relevant and not excluded by an established
rule. See:
Mississippi,
Chambers v.
evidentiary
410 U.S.
284, 302,
1038,
(1973);
L.Ed.2d
Webb v.
93 S.Ct.
35
297
Texas,
95,
351,
(1972).”
409 U.S.
93
tutes a to criminal charge. defense 18 Pa.C.S. § 503(a) in 18 Pa.C.S. rule is contained general follows: actor to
“(a) rule.—Conduct which the believes General or to a harm or evil himself necessary avoid be if: justifiable another is avoided such
(1) sought the harm or evil be prevented by greater sought than that conduct offense defining charged; the law (2) defining nor other law the of- neither this title dealing or defenses with the provides exceptions fense *36 involved; and specific situation the (3) justification a to exclude legislative purpose plainly appear.” does not otherwise claimed has However, property rule crimes specific pertaining the § the in 510. This section of set forth 18 Pa.C.S. been as follows: provides Crimes Code the involving in crimes. Conduct property “Justification of, to, damage intru- seizure or destruction appropriation, under property justifiable or interference with is sion on a defense of privi- which would establish circumstances thereon, unless: in action lege a civil based the offense deals (1) defining or the law this title involved; or specific the situation (2) to exclude the legislative purpose appears.” plainly claimed otherwise Code was taken from Section Section 510 of the Crimes not to the Penal It is “addressed 3.10 of the Model Code. involving the but to conduct against person use of force The Section property.... intrusion on or interference with the must penal the this area law upon is framed view recog- upon privileges the accept on the whole build A.L.I., property____” nized in the law of torts and Model (Tent. 1958). Draft No. Code, to Article 3 Penal Comment Sections 196 and applicable appears tort rule These (Second) of Torts. sections estab- of the Restatement of another and one is to enter the land privileged lish that if act is or to his chattels trespass or commit a convert the actor it reasonably necessary believes to be an avert imminеnt If public disaster. the actor believes that impending may prevented mitigated disaster or in some other reasonable way, trespass privileged. not Re- (Second) Torts, (d). statement of comment case, In the instant record is clear appellants’ present offer did not an emergency situation in which public disaster was imminent. There no was immediate emergency requiring appellants trespass upon the prop- erty of General and destroy Electric missile components. Moreover, was it unreasonable as a matter of law to believe that nuclear war could be avoided one merely by destroying components being of several separately made incorpora- tion into Appellants’ nuclear missiles. acts simply future type were of conduct is privileged which under the existing Appellants law torts. were not privileged destroy another person’s hope that “their property might action ... accelerate a political process ultimately leading to the (Concur- abandonment nuclear missiles.” 1115). ring op. p. Their trespass upon and destruction private property under circumstances this case ren- dered them liable civilly criminally. both *37 permit appellants
To to justify their criminal and invasion private destruction of property because believed there they inherent such property was a future potential for catas- trophe would be equivalent allowing to the theft de- and privately guns struction of or ammunition by owned altruis- tic and well citizens meaning sincerely who believe guns potential and ammunition to kill possess the at some in the permit person time future. To each act according to his to own cases to belief such and anarchy achieve chaos. This was not of purpose the limited privilege granted by the Crimes Code. The cornerstone of the tort privilege is an emergency requiring immediate to action prеvent greater harm. The privilege does not exist where lack of immediacy permits the use of other means to the harm. prevent permitted Private citizens cannot be to take and their destroy neighbors’ because a property of
287
property
time the
at some unascertained future
belief
greater
to
a
used
achieve
evil.
be may
or
justify
citizen to
his
does not
a
Similarly,
law
allow
a
disagreement with
subjective
a criminal conduct
her
constituted authori-
duly
made
previously
decision
policy
of the
Code
and Section 510
Crimes
Both Section 503
ty.
if
charge
a
to a criminal
as
defense
justification
exclude
plainly ap-
justification
to exclude the
purpose
legislative
§§
510(2).
503(a)(3)
18
and
Such
Pa.C.S.
pears. See:
precludes
in the
case and
exists
instant
purpose
legislative
charged.
to the crimes
a defense
of
States Government
powers
war
the United
plenary
The
legislation necessary
all
right
the exclusive
enact
include
Const,
§1, 8,
defense. U.S.
art.
for the common
provide
9-10,
25-26,
2,
Quirin,
1,
63
1;
317 U.S.
S.Ct.
cl.
Ex Parte
govern
“The
of the national
(1942).
power
3
war
87 L.Ed.
successfully.’ See Charles
power wage
‘the
war
ment is
Constitution, 42
Hughes, War Powers Under
Evans
matter
232,
activity
every
238. It extends to
Rep
ABA
its
to affect
conduct
substantially
to war as
so related
of
winning
is not
to the
The
restricted
progress.
power
It
forces.
enemy
in the
and the repulse
victories
field
defense, including the
every
national
phase
embraces
Hirabayashi v. United
of war materials. . . .”
protection
93,
1375, L.Ed.
81,
63
87
1774
States, 320 U.S.
S.Ct.
377,
367,
U.S.
88
O’Brien,
v.
391
also: United
See
States
denied,
1673, 1679,
(1968), reh.
393
“Destruction of national-defense national-de- premises fense or national-defense utilities- (a) Whoever, injure, with, with intent interfere or States, obstruct national defense the United willfully injures, destroys, infects, contaminates or or attempts to so injure, or destroy, contaminate infect any material, national-defense premis- national-defense es, utilities, or national-defense shall be not more fined $10,000 than or imprisoned not more ten than or years, both.
(b) If
or more persons
conspire
two
to violate this
section, and one or more of
persons
such
do any act to
object
effect
the conspiracy, each of
parties
to such conspiracy shall
punished
as provided in
(a)
subsection
of this section.”
This proscription applies to missile components destroyed
in
by appellants
this action.
18 U.S.C.
national-
include,
defense materials are
defined
inter alia:
“arms, armament,
ammunition,
livestock,
forage,
forest
products
timber,
and standing
air,
stores
clothing,
water,
food, foodstuff,
fuel, supplies, munitions, and all
other
description
articles
part
whatever
and any
or
ingredient
thereof,
for,
to,
intended
adapted
or suitable
for the use of
the United States
connection with the
national defense or for
use
or
connection with the
producing, manufacturing,
repairing,
storing, mining, ex-
States;
regulate
foreign
United
and to
commerce with
nations and
among
Sеss.,
S.Rep.
Cong.,
the several States.”
No.
83rd
2nd
reprinted
Cong.
in 1954 U.S.Code
& Ad.News 3465.
*39
transporting
or
loading, unloading,
tracting, distributing,
the materials or other articles hereinbefore
of
of
any
part
any
ingredient
or
or
thereof.”
mentioned
VI,
2,
the United States Constitution
clause
of
Article
Constitution,
of the
and the Laws
provides that
“...
thereof;
in
made
Pursuance
which shall be
United States
made, under the
made,
shall be
all Treaties
or which
and
of
States,
supreme
shall be the
Law
of the United
Authority
Land;
be bound
every
and the
in
State shall
Judges
any
Laws
Thing in the Constitution or
any
thereby,
of
sup-
notwithstanding.”
(emphasis
the Contrary
State to
483, 490, 10
v.
U.S.
plied).
Lynham,
See: Hauenstein
Therefore,
(1880).
Congres-
a
Appellants existence weapons pose a threat to the health and nuclear of such catastrophic powers of human every being. However, being cog- cannot be denied. weapons Congress, has dangers weapons, of the inherent nuclear nizant component such are a weapons necessary determined that Report of national Senate No. strategy. our defense 1954, notes, inter alia: discussing the Atomic Act of Energy has in the form atomic- “[Ojur developed, Nation of our deterring weapon stockpile, degree power may of which greatest material asset well constitute free world’s to avert worldwide war. The elementa- its effort another Congressional regarding Appellants argued have not action preclude pre-empted missiles has so the field as to the states nuclear private enforcing protection criminal laws enacted for from components property property such missile when consists nuclear corporation, non-governmental and issue is manufactured Nevertheless, may Code us. it be observed that the Crimes not before involving against appellants than less enforceable it is in cases is no v. national Commonwealth ex rel. O’Brien robberies of banks. See: Burke, (1952); Pa.Super. A.2d 246 Commonwealth Illinois, Braun, (1971). See Bartkus v. Leh.L.J. 233-234 also: 79 S.Ct. L.Ed.2d 684 359 U.S. ry requirements of national security compelled have tous give military top uses of the atom priority____ itself,
“Yet we are aware that legislation, standing by prudent can never for courageous substitute adminis- tration of our enterprise by responsible atomic offi- branch, cials the executive continuing under- standing support our atomic in the program Con- *40 gress, enlightened and—most of all—for that in- and formed which public opinion is the bedrock of wise nation- policy al in our democratic society. every
“We have confidence that the problems domestic by energy created atomic can be through resolved the wisdom, application willingness of of compromise, and will. good We are no less confident that the critical international out problems arising growth of the of nucle- ar stockpiles could likewise amenable be to resolution through these same means.” No. S.Rep. Cong., Sess., 83rd 2nd reprinted U.S.Code & Cong. Ad.News made
Congress has thus deliberate choices regarding nuclear armaments has comprehensive enacted legisla- tion dealing very with the issue which contend should now be to a jury submitted order to determine whether their conduct of was reasonable choice a lesser evil. Such was not the intent or of purpose legislature in enacting Sections 503 and 510 of the Crimes Code. Congress already has balanced the “evil” asserted appel-. acts, lants motivation for their and has declared it necessary for good. the common Code,
The of Comment Section 3.02 the Model Penal § upon based, which 18 Pa.C.S. is inter provides, alia: Generally: “Justifiсation Choice Evils of accepts 1. This Section the view that a of principle conceived, necessity, properly general affords justifi- cation for conduct that otherwise would constitute an offense; and that a qualificátion, such like the require- Energy seq., Energy Reorga- 7. Atomic Act of § U.S.C. 2011 et seq. nization Act of et U.S.C. rationality to the is essential culpability, of ments prohibitions. all penal of justice limitations: to three vital subject principle The great- anof evil must be avoidance (a) necessity The by the law sought to be avoided the evil er than of evils balancing charged. defining the offense to the course, merely private cannot, of be committed for determination actor; it is an issue of the judgment an be described as may involved in the trial. isWhat offense, light law the interpretation calls an special situation submission that could legislature to the exception prohibition exclude, given the have intended reasonably weighed. to be competing values have (b) values must not competing The issue of choice, as legislative a deliberate been foreclosed with the explicitly specific dealt when the law has legisla- or a choice evils presents situation claimed other- tive to exclude purpose (footnote omitted). (emphasis supplied) appears.” wise *41 policy on the that defense of is based necessity “The by is violat higher protected times a value there are when for value; greater good the ing significant a less instances, can, accomplished by in ‘be only some society law____ The of the criminal violating language the literal of evils: When in terms of choice expressed matter is often one with a choice presents of circumstances pressure the greater the evil evils, that he avoid prefers the law ” Olsen, 99 v. Wis.2d the lesser evil.’ State bringing about Scott, 632, (1980), LaFave and 572, quoting 634 299 N.W.2d § 50, (1972). Accord: v. at 382 State War Law Criminal (1979) (Hill, J., 1000, 22, 410 A.2d 1003 show, 138 Vt. Mass.App. 13 Brugmann, v. concurring); Commonwealth 54 Haw. 457, (1982); Marley, v. 373, N.E.2d 460 State 433 Arnolds and 1095, (1973). See also: 450, P.2d 1109 509 The in Criminal Law: Garland, Necessity Defense of The Evil, & Criminolo the Lesser 65 J.Crim.L. to Choose Right of the issue 289, (1974). “Determination 291-296 gy 292 and, therefore,
competing values the availability of the defense of is necessity precluded, however, when there has a legislative been choice the deliberate as to values at Warshow, issue.” v. supra State 410 at 1003. A.2d See Kroncke, also: 697, (8th States United v. 459 F.2d Cir.1972); 844, v. 855, State 118 N.H. Dorsey, (N.H.1978); Greene, 698, State v. 5 Kan.App.2d 623 P.2d case,
In the instant purpose the of appellants’ conduct was to the prevent production future of nuclear missiles potential because of their Congress, devastation. how- ever, already had determined that a despite potential for disastrous consequences, greater good required the such produced missiles be and deployed. Individual citi- zens, the in case, such as this cannot nullify Congressional decision made interests of national seizing defense by destroying intended property for use accordance such Congressional determination. Simi- larly, the law pertaining defense to criminal does permit conduct court or jury overrule a properly Congressional made regarding determination use of power nuclear for national The peoples’ defense. elected representatives Congress adopted have Atom- § ic Act of Energy seq., U.S.C. et and the Reorganization Energy Act 42 U.S.C. 5801 et seq., and thereby have concluded that the national defense requires production deployment of nuclear weap- ons. judiciary power without review wisdom of
this determination which is within the discretion vested in
Congress
Constitution.
Hirabayashi
United
States,
The Comment to Section 3.02 of the Model Code it that the of can no justification makes clear defense have crimes to focus application public committed order Where, here, public there policy. attention on issues exception” no calls for an but “special is situation [which] policy or which the individual considers moral- simply law the defense of is available. ly unacceptable, create, to the contrary To hold otherwise would be to intent acts of complete of the defense for all civil legislature, the individual is perceived by disobedience where evil evil the offense greater sought than the be avoided of the charged, though legislature, even aware “evil” required such a for policy has determined that perceived, is not the good. the common This intent Sections and 510 the Crimes Code. changes has
Nonviolent civil disobedience effected instances, I do not humanity many suggest benefit *43 294
that nonviolent no in place civil disobedience has the public military debate over and domestic uses of nuclear power. However, even strongest proponents of civil disobedi “ long recognized ence have that who breaks an '[o]ne unjust must it law do ... and with a openly willingness ” Averill, accept the penalty.’ Commonwealth 12 Mass. App. 260, (1981), Jr., N.E.2d n. quoting King, M.L. Wait, (1964).8 Can’t Why p. We As Judge Sobeloff so in eloquently involving observed a case of one the appel appeal: lants the instant
“From the earliest times when man to guide chose his by relations with fellow men allegiance to the rule of law force, rather he than has been the problem faced with how best to deal with the individual who society moral through conviction concluded that a law with which he unjust was confronted was and therefore must with reality followed. Faced the stark of men injustice, great sensitive conscience and intellect have sometimes only found one morally justified path, and that led path them into conflict inevitably with established authority and its Among laws. philosophers religionists and throughout ages has an there been incessant stream when, all, disobedience, discussion as to if at civil whether passive refusal to or obey law its active breach, However, justified. is morally they have been in general agreement while restricted circumstances morally motivated act contrary ethically to law bemay justified, the action must be non-violent and actor words, action. it accept must for his other penalty Hermann, Preliminary See also: Justice and Order: A Examination Law, Rosen, (1970); of the Limits of 45 Wash.L.Rev. 335 Civil Disobe- Making Through Techniques: dience and Other Such Law Law Break- Smith, (1969); ing, Legitimacy 37 Geo.Wash.L.Rev. 435 of Civil (1968); Legal Concept, as a Disobediеnce 36 Fordham L.Rev. 707 Civil Treatment, Separate Wayne Disobedience: A Case for L.Rev. 1165 Griswold, (1968); (1968); 42 Tulane L.Rev. 726 Civil Dissent — Study Society, Disobedience: A of Law and Its Relation to 13 S.Dak.L. - (1968); Coffin, Jr., Law, Order, Rev. 356 C. Whittaker and W. Allen, (1967); Legal Civil Disobedience Civil Disobedience and the Order, Cohen, (1967); 36 U.Cin.L.Rev. 175 den Freeman Van Law, Haag, Rutgers Civil Disobedience and the L.Rev. 1 a moral the exercise conceded commonly does not standards individual upon based judgment immunity or it legal carry from the law. breach punishment ’ case—the in the instant motivation “The defendants *44 sincere in the protest in a they engaged that belief fact cause—can- good in a the law breaking were they that Their justification. or legal acceptable not be defense disparagement It no implies question. is sincerity beyond not tolerate society that will say of their idealism opposition----” their register means chose they (4th 1002, F.2d 1008-1009 417 v. Moylan, States United 910, 908, 25 90 S.Ct. denied, 397 U.S. Cir.1969), cert. omitted). (footnotes (1970) (emphasis supplied) L.Ed.2d 91 635; at Olsen, 299 N.W.2d United supra v. also: State See 703; v. Ave Kroncke, Commonwealth supra v. States rill, 423 N.E.2d at supra that, to the contrary majority, to show attempted
I have issue have considered this already have the courts which is not an held that erroneously, correctly, competing harms have to crime when the defense available choice has legislative been and a deliberate considered been Because, justifica- the defense of in my judgment, made. it follows that evi- appellants, is not available to the tion is not horrors of nuclear warfare to the pertaining dence therefore, and, is irrele- in this case issue probative any from a such, subsequent excluded As it should be vant. retrial. decision that it was majority’s disagree
I also to conduct voir dire the trial court error for reversible of four. It is groups prospective jurors examination examination of the voir dire single goal settled that well fair, impartial “competent, an accused with provide is to Futch, 469 Pa. v. Commonwealth unprejudiced jury.” (1976). 246, Accord: Common- 422, 426, A.2d 248 366 545, 549 131, 139, 389 Christian, Pa. A.2d 480 v. wealth 1, 6, Pa. 375 A.2d 474 v. (1978); England, Commonwealth Johnson, 130, 452 Pa. v. 1292, (1977); 1295 Commonwealth 296 Holland, Commonwealth v. (1973); 305 A.2d 7 298 289, 291, Common-
Pa.Super. (1982); 444 A.2d Davis, wealth v. 51, 54, Pa.Super. A.2d Short, Commonwealth (1980); 581, 590, 278 Pa.Super. Commonwealth v. Mayo, (1980); 420 A.2d 115, 119, Pa.Super. The provi- 1106(e)9 sions of Pa.R.Crim.P. specifically provide in non- Challenges 9. Rule 1106. Examination and of Trial Jurors (a) prospective jurors prospective Voir dire of trial alternate conducted, selected, jurors jurors be shall and the shall be in the presence judge. of a (b) individually collectively This oath shall be administered or jurors: prospective solemnly (or by Almighty "You do swear God do declare and affirm) you truthfully questions may put will all answer you concerning your qualifications juror.” for service as a dire, (c) including judge’s ruling proposed questions, Voir on all recording shall be recorded in full unless waived. record only upon request will party be transcribed written of either or order judge. of the *45 (d) judge may parties require writing the to submit in a list of questions proposed jurors regarding qualifica- be asked of the their judge may permit prosecution tions. The the defense and the jurors prospective may the conduct examination or itself conduct event, permit the examination. In the the latter Court shall the prosecution supplement by defense and the the examination such inquiry proper. further it deems cases, (e) used, capital In the individual voir dire method must be cases, non-capital unless the defendant waives that alternative. judge following trial dire, shall select one of the alternative methods of voir apply jurors which shall to the selection of both and alternates: (1) Challenge System Individual Voir Dire and (A) prospective jurors individually Voir dire of shall be conducted may beyond hearing and presence be conducted and of other jurors. cause, (B) Challenges, peremptory both for and shаll be exercised Commonwealth, alternately beginning attorney with the for the jurors Challenges all until are chosen. shall be exercised immedi- ately prospective juror accepted by after the is examined. Once all parties, juror prospective by a be peremptory shall not removed mistrial, challenge. judge may declaring a Without allow a deliberate, challenge any jury begins for cause at time before the selected, provided sufficient alternates have been or the defendant twelve, by jury pursuant consents to be tried of less than to Rule (2) System Challenges List (A) prospective jurors prepared. A list be The list shall shall jurors prospective
contain a sufficient number of to total at least
297
the trial court
of discretion
exercise
cases for the
capital
shall
dire examination
which voir
the method
selecting
Gore,
v.
See: Commonwealth
Pa.Super.
262
conducted.
be
v.
Commonwealth
1302,
(1978);
557,
1310
540,
396 A.2d
Howard,
79,
(1977);
246, 251,
A.2d
82
375
Pa.Super.
248
Herron,
330,
319,
v.
365
Pa.Super.
Commonwealth
243
dire conducted
871,
(1976).
individual voir
876
While
A.2d
“may be
jurors
of other
hearing
presence
beyond
trial
determination is a
such
practice’,
‘more desirable
discretion of the trial
matter,
to the sound
committed
Stoltzfus,
43, 54,
v.
court.” Commonwealth
462 Pa.
337
v. Martino
Commonwealth
873,
(1975)
quoting
878
A.2d
denied,
cert.
lich, 456 Pa.
(1974),
136, 146,
A.2d
686
318
also:
651, 42
661
See
95
L.Ed.2d
419 U.S.
S.Ct.
Addonizio, 451
(3rd Cir.1972),
v.
United States
F.2d
67
denied,
949,
Upon retrial, regarding determination of manner conducting again require voir dire will the exercise of discretion the trial I judge. believe there are valid court; reasons for placing and, that discretion the trial therefore, I join do not the majority’s instruction mandatory dire that voir can only be conducted individually. I would summary, agree that the trial court’s exclusion the public jury process of from the selection was error requires granting However, which of a new trial. I agree cannot that a retrial should be allowed to become a forum in public parties which the and their witnesses debate of wisdom Congressionally policies established of na- they pertain tional defense as to the production and deploy- ment of nuclear missiles. This the function of a court To permit of law. it in this case will be drown issue or guilt in a innocence sea From irrelevancy. this therefore, portion majority’s I holding, must respect- fully, but strenuously, dissent. JOHNSON, JJ.,
HESTER join this opinion.
John J. CHRZANOWSKI. Superior Pennsylvania. Court
Argued Sept. 1983.
Filed Feb.