No. 392 January Term, 1978, Appeal from the Judgments of the Pennsylvania Superior Court, No. 2379 October Term, 1977, affirming the Judgments of Sentence of the Court of Common Pleas of Lehigh County, Pennsylvania, Criminal Division, Nos. 378-S, 379-S, 380-S, 381-S, 382-S of 1976.
Donald W. Miles, Harry A. Dower, Allentown, for appellants.
William H. Platt, Dist. Atty., Michael E. Moyer, Asst. Dist. Atty., for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Larsen, J., filed a dissenting opinion.
On March 27, 1976, appellants were arrested on the campus of Muhlenberg College and charged with the summary offense of defiant trespass, 18 Pa.C.S. § 3503(b), when they refused to discontinue the peaceful distribution of leaflets outside a college building in which Clarence Kelley, then Director of the Federal Bureau of Investigation, was speaking at a public symposium on crime prevention. Appellants were convicted at a magistrate's hearing on August 11, 1976, and fined $25.00 each plus court costs. They appealed their convictions to the Court of Common Pleas of Lehigh County. Following a trial de novo without a jury, appellants were found guilty of defiant trespass and ordered to pay fines of $50.00 each plus court costs. On appeal, the Superior Court affirmed without opinion, with Judge Hoffman noting his dissent.*fn1 We granted allowance of appeal. In light of the affirmative defense provided by the trespass statute, 18 Pa.C.S. § 3503(c)(2), and Article I, sections 7 and 20, of the Pennsylvania Constitution, we conclude that these defiant trespass convictions cannot stand. Hence we reverse.*fn2
Muhlenberg College is a private institution of higher education located in Allentown and chartered by the Commonwealth
of Pennsylvania. The event at which appellants were arrested was a symposium planned and presented by the Board of Associates of Muhlenberg College, a civic group which regularly uses the college's facilities to present a series of programs for the benefit of the community. The March 27, 1976, symposium was entitled "Citizens' Crusade Against Crime." It was held primarily in the Seegers Student Union Building of the college and featured F.B.I. Director Clarence Kelley, a public figure of national repute, as its principal speaker.
The symposium had been publicized in newspapers and advertised in handbills as being open to the public. In one newspaper account, the president of the Muhlenberg Board of Associates gave the following description of the program: "The symposium has been designed to provide the spring-board for an on-going cooperative community effort exploring, evaluating, and implementing practical ways and means for personal and group involvement in crusade against crime . . . . [W]e invite and encourage every concerned citizen to join us on March 27."*fn3 A registration fee of $4.00 was requested of those attending the symposium, with attendance limited to the first five hundred registrants.
Appellants, who were not Muhlenberg students, were all members of the Lehigh-Pocono Committee of Concern (LEPOCO), a local non-violent anti-war organization. When members of LEPOCO read of Director Kelley's scheduled appearance, they decided to distribute leaflets to members of the public attending his speech. Through the leaflets, LEPOCO wished to protest the denial by Mr. Kelley, in a personally signed letter, of their request under the federal Freedom of Information Act, 5 U.S.C. § 552, for information maintained in F.B.I. files concerning LEPOCO and its members. Further, LEPOCO wished to point out to the public the incongruity of Director Kelley's appearance at a crime prevention symposium in light of then-recent public revelations concerning criminal activities by the F.B.I. which were prominent in the news media. The symposium was the site
of Director Kelley's first public appearance in the Allentown area.
On Friday, March 26, the day before the symposium, some members of LEPOCO went to the Muhlenberg campus and attempted to distribute leaflets explaining to students why LEPOCO felt it necessary to be present on the following day to communicate its views on Director Kelley and the F.B.I. At that time they were stopped and informed that they would not be permitted to distribute leaflets on the campus grounds since they did not have a permit from the college to do so. The LEPOCO members then attempted to obtain a permit for the following day, but their request was summarily refused.
Appellants and other members of LEPOCO arrived at the Muhlenberg campus on the morning of the symposium and twice attempted to distribute their leaflets to persons entering and leaving the symposium. Both times, at the request of college officials, members of the Allentown Police Department escorted the LEPOCO leafletters to a public sidewalk located approximately forty yards from the entrance to the main symposium building. No arrests were made on either occasion.
Appellants attempted to distribute their leaflets a third time at the close of the symposium that afternoon. They stood about forty feet from the entrance to the student union building and quietly distributed their leaflets. They engaged in no disorderly conduct, carried no signs, used no loud or offensive language, and made no attempt to enter any of the college buildings. They blocked no building entrances and did not attempt to force their leaflets upon unwilling passersby. They received no complaints from any members of the public regarding their presence on campus.
Nonetheless, the Allentown Chief of Police personally instructed appellants that they would be arrested if they did not leave the campus, because they did not have permission from the college to distribute their leaflets and had not paid
the $4.00 registration fee for the symposium. Appellants replied that they wished not to attend the symposium but merely to distribute their leaflets peacefully. Upon appellants' refusal to leave the campus grounds until they had completed their leafletting, the Allentown police arrested the five appellants and removed them to police headquarters, where they were served with citations for the summary offense of defiant trespass and released on their own recognizance.
At the outset, it should be noted that not only appellants but also the District Attorney's Office of Lehigh County were of the opinion that appellants' leafletting was constitutionally protected. At the magistrate's hearing, District Attorney George Joseph, who had been present at the symposium, testified as a defense witness that appellants' conduct had been in no way disorderly.*fn4 Subsequently, when his office was called upon to prosecute appellants in the trial de novo, he directed Assistant District Attorney Richard Orloski to file a motion to nolle pros the charges against appellants. In support of the motion, the Assistant District Attorney argued that "[p]eaceful, non-violent leafletting at a university function where the public is invited and where public personalities are featured is constitutionally protected . . . ."*fn5
Despite the Commonwealth's reluctance to prosecute, the court denied the motion, and the case proceeded to trial on February 28, 1977. At the trial de novo, as at the original summary proceeding, appellants defended on the ground that their leafletting at the symposium was conduct both statutorily and constitutionally protected from prosecution.
The trial court rejected this contention and subsequently entered a ...