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COMMONWEALTH PENNSYLVANIA v. PATRICIA ANN CAPITOLO (01/13/84)

filed: January 13, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
PATRICIA ANN CAPITOLO, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. CURTIS JAY SELL, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. STEPHEN E. ANDERSON, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. EDWARD S. WAGNER, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. SUE HEILMAN, APPELLANT



No. 811 Pittsburgh 1980, No. 812 Pittsburgh 1980, No. 813 Pittsburgh 1980, No. 814 Pittsburgh 1980, No. 815 Pittsburgh 1980, Appeal from Judgments of Sentence of the Court of Common Pleas, Criminal Division, Beaver County at Nos. 559 - 563 of 1979.

COUNSEL

Jon Stuart Pushinsky, Pittsburgh, for appellants.

Craig E. Wynn, Assistant District Attorney, Beaver, for Com., appellee.

Cercone, President Judge, and Spaeth, Hester, Brosky, Wieand, Beck and Johnson, JJ. Wieand, J., files a concurring and dissenting statement. Johnson, J., files a dissenting opinion in which Hester and Wieand, JJ., join.

Author: Spaeth

[ 324 Pa. Super. Page 65]

These appeals are from judgments of sentence for criminal trespass. Appellants' convictions arise from an incident that occurred during a demonstration against nuclear power at the Shippingport Nuclear Power Plant. Appellants argue that the trial court should have permitted them to prove that their conduct was justified under Section 503 of the Crimes Code. We agree and therefore vacate the

[ 324 Pa. Super. Page 66]

    judgments of sentence and remand for a new trial at which appellants shall be permitted to prove, if they can, that their conduct was justified.

We have divided our discussion explaining this conclusion into four parts. These may be summarized as follows.

First: Appellants offered to prove that their conduct met the requirements of the defense of justification as defined in Section 503(a) of the Crimes Code, specifically, that they reasonably believed their conduct "to be necessary to avoid a harm or evil," and that "the harm or evil sought to be avoided by [their] conduct [was] greater than that sought to be prevented by the law defining [their conduct as criminal trespass]." 18 Pa.C.S.A. § 503(a). The trial court rejected appellants' offer. In doing so the court made plain its belief that even if appellants had been permitted to present their evidence, they would not have been able to prove that their trespass was justified. Perhaps so. But the jury should have been allowed to appraise appellants' evidence.

Second: In its opinion dismissing appellants' post-verdict motions the trial court read into Section 503(a) requirements that it considered were requirements of the common law defense of necessity. We do not find the common law clear. But in any event, the common law should not be read into Section 503(a), for to do so violates the principle that a criminal statute is to be narrowly construed, in favor of the accused.

Third: The trial court also rejected appellants' offer of proof on the ground that Section 503(a) has been preempted by federal and state legislation regulating nuclear power. We hold, however, that there has been no preemption.

Finally: We have discussed Section 510 of the Crimes Code. Appellants have not claimed, nor has the Commonwealth argued that they should have claimed, the defense of justification provided in Section 510. Nevertheless, we believe that appellants had to meet the requirements of Section 510, and we therefore discuss it. We conclude that

[ 324 Pa. Super. Page 67]

    appellants' offer of proof did meet the requirements of Section 510, as well as those of Section 503.

1

On July 15, 1979, appellants participated in a protest against the generation of nuclear power at the Shippingport Nuclear Power Plant. Ignoring a "No Trespass" sign, appellants crept under a fence surrounding the property and sat down, holding hands, about ten to twelve feet from the fence. N.T. 45-48, 51. When a plant security guard and a deputy sheriff warned appellants that they were trespassing on private property, they refused to leave. N.T. 48, 52. The sheriff then placed appellants under arrest and removed them from the property; they did not resist, and were not charged with resisting their arrest. N.T. 52-53. No personal injuries or property damage occurred as a result of appellants' trespass. N.T. 49. At the time of the demonstration, the nuclear power unit at the plant was shut down, although radio-active material remained in its fuel rods. N.T. 57, 58. The unit was scheduled to resume operations in two weeks. N.T. 58. A second unit was under construction. N.T. 57.

In defending themselves against charges of criminal trespass, appellants relied on Section 503 of the Crimes Code, which provides:

(a) General rule. -- Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable if:

(1) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged;

(2) neither this title nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and

(3) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

(b) Choice of evils. -- When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for

[ 324 Pa. Super. Page 68]

    his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

18 Pa.C.S.A. § 503.

This section is an almost exact copy of Section 3.02 of the Model Penal Code. In their Comment, the authors of the Code say that Section 3.02 "accepts the view that a principle of necessity, properly conceived, affords a general justification for conduct that otherwise would constitute an offense; and that such a qualification, like the requirements of culpability, is essential to the rationality and justice of all penal provisions." American Law Institute, Model Penal Code § 3.02 Comment at 5 (Tent. Draft No. 8, 1958).

The defense of justification is thus closely related to the common law defense of necessity, regarding which it has been said: "By necessity is meant the assertion that conduct promotes some higher value than the value of literal compliance with the law." G. Williams, The Criminal Law § 229 (2d ed. 1970). Thus, the concepts of "justification" and "necessity" reflect a judgment on the proper relationship between the state, with its power to declare conduct criminal, and the freedom of the individual. In an early New Jersey case the defense of necessity is described as

     a natural right, not appertaining to sovereignty but to individuals considered as individuals. It is a natural right of which government cannot deprive the citizen and founded upon necessity and not expediency. It may be exercised by a single individual for his own personal safety or security, or for the preservation of his own property, or by a community of individuals in defense of their common safety or in the protection of their common rights. It is essentially a private and not a public or official right. It is a right not susceptible of any very precise definition, for the mode and manner and the extent of its exercise must depend on the nature and degree of the necessity that calls it into action, and this

[ 324 Pa. Super. Page 69]

    cannot be determined until the necessity is made to appear.

Hale v. Lawrence, 21 N.J.L. 714 (1848), aff'd sub nom. American Print Works v. Lawrence, 23 N.J.L. 590 (1851).

Section 501 of the Crimes Code defines "believes" as meaning "reasonably believes." 18 Pa.C.S.A. § 501. Accordingly, under Section 503(a)(1) appellants were required to prove that they reasonably believed their trespass "to be necessary to avoid a harm or evil to [them] or to another," and that "the harm or evil sought to be avoided by [their trespass] [was] greater than that sought to be prevented by the law defining [their trespass as criminal trespass]."

To meet this burden, appellants filed a pre-trial statement entitled "Defendants' Memorandum of Points and Authorities in Support of Their Right to Present Evidence Relative to the Defense of Justification as Defined in 18 C.P.S.A. section 503." The memorandum contained an offer of proof, divided into two parts. The first part of the offer of proof summarized appellants' evidence "that they had a reasonable belief that their conduct was necessary to avoid the harm." Appellants offered to "present testimony and documentary evidence detailing the many and varied activities aimed at shutting down the Shippingport Nuclear Power Plant or eliminating the danger emanating from the plant." They offered to "show that these efforts have been without result," and "that even though 'official channels' may still exist which might theoretically remove the threatened danger[,] these avenues offer no real likelihood of achieving results." Finally, appellants offered to prove "a nexus between their conduct and the avoiding of the threatened harm" by showing that a decision to halt construction of a nuclear power plant in another state "came after the arrest of numerous demonstrators." The second part of the offer of proof summarized appellants' evidence "that the harm emanating from the Shippingport Nuclear Power Plant is far greater than any harm resulting from their trespass on the plant site." Appellants offered to prove

[ 324 Pa. Super. Page 70]

"the continuous risk of a serious accident . . . far greater than the official estimates would indicate and that the consequences of such an accident would be much more severe than predicted by official studies . . . . [This evidence would include] 'incident reports' and other documentary evidence specifically concerning the Shippingport Plant." (Emphasis in original.) Appellants also offered to prove through expert testimony and "documentary evidence specifically concerning the Shippingport Plant" (emphasis in original) that in normal day-to-day operations the plant continuously releases "low level radiation [that] has already resulted in increased infant mortality and birth defects as well as increased incidence of cancer in adults."*fn1

[ 324 Pa. Super. Page 71]

The trial court rejected appellants' offer of proof, and limited appellants' evidence to their own testimony of their reasons for committing the trespass. Appellant Anderson testified that he feared "a catastrophic accident at Shippingport" and was concerned about the health of the community, which he believed was jeopardized by the power plant. N.T. 84-85. Appellant Sell testified that on the basis of his own research he believed that continued operation of the plant posed a danger because the reactor is of the same design as the Three Mile Island reactor. He also stated his view that an adequate evacuation plan is not in place in Beaver County in the event of an accident like the one that occurred at Three Mile Island. N.T. 88. Appellant Capitolo testified, also on the basis of personal research, that the numerous radiation leakages documented in public records had led her to conclude that nuclear reactors do not adequately contain radiation. N.T. 92-93. Vincent J.P. Scotti, who was one of the defendants below but who has not appealed his conviction, expressed concern that persons institutionalized in hospitals, old peoples' homes, and prisons would have nowhere to go in the event of an accident at the power plant requiring an evacuation. N.T. 99. He also stated:

[ 324 Pa. Super. Page 72]

The reason why we went under the fence was not in any way to attempt to take over the nuclear power station, but it was a nonviolent counterpresence to the violent presence of the nuclear power plant. All we simply hoped to accomplish . . . was to draw attention to the issue of nuclear power. Now, of course that might seem ridiculous. What is [ sic ] six people going under a fence going to do? I put forth to you: What are a bunch of Americans throwing tea into the Boston Harbor going to do? Again, this was a nonviolent demonstration.

N.T. 98.

Appellant Heilman, a nurses' aide, cited studies she had read on the infant mortality rate in the area, noting that a relationship between infant mortality and low level radiation had been found. She stated: "I just really feel strongly that as a person in the health field I have to practice preventative medicine which means environmentally and personally helping people do things to their bodies that will keep them healthy. I personally see nuclear power as a threat to our health." N.T. 101. Appellant Wagner stated that he trespassed "first off, [] for my family, my parents, my younger brothers and sisters, for they drink the water from . . . the Ambridge Reservoir. Ambridge Reservoir is three and a half miles downwind from Shippingport, and I know from documented cases made public that Shippingport has released radiation in excess of government regulations subjecting my family to radiation." N.T. 108-09.

By limiting appellants' evidence to their own testimony of their reasons for committing the trespass, the trial court -- as it recognized it was doing -- effectively denied appellants the opportunity to prove justification. For as already discussed, it was not enough for appellants to prove that they believed that "the harm or evil sought to be avoided [by their conduct] [was] greater than that sought to be prevented by the law defining [their conduct as criminal trespass]." 18 Pa.C.S.A. § 503(a)(1). They had to prove that they reasonably so believed. And they could not prove their reasonableness without proving what in fact "the harm or

[ 324 Pa. Super. Page 73]

    evil sought to be avoided" was. A defendant may believe that a nuclear reactor is likely to melt down and cause a catastrophic accident, or that radiation leakages are causing cancer and poisoning the reservoir. But without any basis in fact these beliefs cannot be reasonable. By rejecting appellants' offer of the expert testimony and documentary evidence summarized in their offer of proof, the trial court precluded appellants from proving that their beliefs did have a basis in fact. Thus the court precluded appellants from proving that their beliefs were reasonable. The result was to force appellants into the position of maintaining to the jury that their trespass was justified by their private, unsupported judgment. This was exactly the position that appellants by their offer of proof had sought to avoid, for as their offer of proof showed, they recognized that "[t]he balancing of evils cannot . . . be committed to the private judgment of the actor . . . ." Model Penal Code, supra, § 3.02, Comments at 5.

To be sure, perhaps appellants would not have been able to prove justification anyway. The jury might have rejected their experts' testimony, and might have interpreted the documentary evidence differently than appellants do. But appellants were entitled to have the jury hear their evidence.

In determining whether or not to allow a defendant to raise the defense of necessity, a trial judge should only decide whether or not the question of values presented by the defendant is frivolous. If the values asserted by the defendant are so bizarre as to be clearly unacceptable to any significant portion of the community, the defense should not be allowed.

Arnolds & Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J.Crim.L. & Criminology, 289, 296 (1974).

The values asserted by appellants were in no sense either frivolous or bizarre. If the jury had heard, and accepted, their evidence, it might have found justification. For "[t]he balancing of evils" would have disclosed, on the one side, a

[ 324 Pa. Super. Page 74]

    brief, peaceful, physically harmless trespass, and on the other, a continuing risk of catastrophic accident and the continuing infliction by low-level radiation of grave injuries. It was therefore error for the trial court to reject appellants' offer of proof, thereby precluding them from proving justification.*fn2

In its opinion the trial court states that it "could properly have excluded [appellants'] proffered evidence on the grounds that 18 C.P.S.A. § 503(b) was not satisfied since each [appellant] was 'reckless or negligent . . . in appraising the necessity for his conduct' because non-criminal alternatives were available to avoid any impending danger." Slip op. at 5. The court then goes on to say that "[a]n alternative course of action for [appellants] herein would have been to present their evidence of danger to the Nuclear Regulatory Commission or the State Department of Health and to take appeals from adverse decisions . . . ." Id. at 6. We are not persuaded by this reasoning. In the first place,

[ 324 Pa. Super. Page 75]

    it assumes that no relief was sought from the Nuclear Regulatory Commission or the State Department of Health. Appellants' offer of proof, however, was to "present testimony and documentary evidence detailing the many and varied activities aimed at shutting down the Shippingport Nuclear Power Plant or eliminating the danger emanating from the plant," and to "show that these efforts have been without result." And in the second place, appellants also offered to "demonstrate the futility of action within the nuclear regulatory system." In short, what the trial court's statement comes down to is a statement that it could refuse to permit evidence offered to prove that certain courses of action were futile, and at the same time justify its refusal on the ground that it knew, not only despite the offered evidence but without any evidence, that those courses of action were not futile.

Neither are we persuaded by the trial court's citation to United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). There the charge was escape from prison. The Court withheld the common law defenses of duress and necessity on the ground that reasonable legal alternatives to violating the law existed. As the Court said:

Under any definition of these defenses one principle remains constant: if there was a reasonable, legal alternative to violating the law, "a chance both to refuse to do the criminal act and also to avoid the threatened harm," the defenses will fail.

Id. at 410, 100 S.Ct. at 634 (quoting LaFave & Scott, Criminal Law 379 (1972)).

However, Section 503(a)(1) of the Crimes Code does not require that a defendant pleading justification must prove exhaustion of other alternatives, for as stated in the comment to the Section: "[T]he formulation makes the actor's belief in the necessity sufficient . . . . Questions of immediacy and of alternatives have bearing, of course, on the genuineness of a belief in necessity, . . . ." Model Penal Code § 3.02 Comment at 10.

[ 324 Pa. Super. Page 76]

In any case, appellants did offer to prove that they had exhausted other reasonable alternatives. As they correctly pointed out in their memorandum, "Whether or not all other legal alternatives are ineffective, unavailable or already exhausted depends in part on how soon the threatened harm will become manifest." Appellants represented in their offer that they would offer evidence that there " is the continuous risk of a serious accident" (emphasis added), and that "low-level radiation which is released continuously in the normal day-to-day operation of the plant . . . has already resulted in increased infant mortality and birth defects as well as increased incidence of cancer in adults" (emphasis added). Appellants also represented in their offer that they would "present testimony and documentary evidence detailing the many and varied activities aimed at shutting down the Shippingport Nuclear Power Plant or eliminating the danger emanating from the plant," and that "[that] evidence will show that these efforts have been without result" and "will demonstrate the futility of action within the nuclear regulatory system and either the state or federal legislatures." Fairly read, these representations were an offer to prove that before their trespass, appellants had exhausted the legal alternatives to eliminating an existing and continuing evil.

Again, it should be noted that appellants might not have been able to prove what they offered to prove. Just as the jury might have rejected appellants' evidence that there was an existing and continuing evil, it might have found that even if there was such an evil, appellants had acted precipitously -- in other words, that there were other, legal, alternatives available to them that were not futile and should have been tried, and that, therefore, appellants had failed to prove, as required by Section 503(a)(1), that they reasonably believed their criminal conduct to be "necessary to avoid [the] harm or evil [resulting from the operation of the Shippingport Plant]." However, by its ruling rejecting appellant's offer of proof, the trial court deprived appellants

[ 324 Pa. Super. Page 77]

    of the opportunity to present their evidence, and the jury of the opportunity to appraise it.

In rejecting appellant's offer of proof, the trial court made plain its belief that even if appellants had been permitted to present their evidence, they would not have been able to prove that their trespass was justified. Thus after concluding that appellants' trespass could not have been justified since appellants failed to pursue alternatives, the court states: "To allow [appellants] to engage in criminal activity and then escape the consequences by asserting a defense of justification, although alternative courses of action existed, would be to encourage chaos and anarchy. However well-intentioned and sincere in the beliefs which motivated them [appellants] unjustifiably attempted to circumvent procedures legislated by the majority and thus acted in a manner which cannot be tolerated if our system of democracy is to survive." Slip op. at 6. The court then states: "At most [appellants'] actions could only have led to a heightened public awareness of the issues which could just as easily have been accomplished through non-criminal demonstrations and other dissemination of information." Id. at 6-7. In considering these observations, we have encountered two difficulties.

First, appellants' offer of proof, rather than suggesting that appellants circumvented "procedures legislated by the majority," contains assertions that appellants had sought relief through regulatory channels, to no avail. Second, the trial court's statements disclose that it has made the choice of values that should be made by the jury, which is to say, the court's opinion depends upon the unexpressed assumption that appellants' objections to the Shippingport Power Plant are groundless.

Suppose that instead of rejecting appellants' offer of proof, the court had permitted appellants to call the witnesses they wished to call. Suppose further that these witnesses had testified, without contradiction, and with the most unequivocal documentation, drawn from the plant's own records, that at any given moment the plant might

[ 324 Pa. Super. Page 78]

    break down and another Three Mile Island incident ensue. Suppose still further that the witnesses had demonstrated that radiation from the plant had already caused cancer in a given number of people living nearby. And finally, suppose that it appeared that complaints to those operating the plant and to the regulatory authorities had been futile. All of this testimony would have been within appellants' offer of proof.

In forming an opinion of appellants' motives, the trial court assumed a power properly exercisable only by a jury. We should not be surprised if the jury, had it had the opportunity to hear appellants' evidence, would have been as unpersuaded by appellant's defense as was the trial court, and if that had occurred, we should have no hesitancy in affirming appellants' sentences. But the jury didn't hear the evidence. And it should have. As has been well said:

Ordinarily the question here involved is one of fact to be determined by the jury. As was said in Hale v. Lawrence, 21 N.J.L. 714:

This justification, therefore, under a plea of necessity is always a question of fact to be tried by a jury and settled by their verdict, unless the sovereign authority shall have constitutionally provided some other mode.

This, of course, must be taken to mean that where there is evidence tending to establish such justification, its weight and sufficiency are for the jury, and the Court may pass upon it as a matter of law only where evidence is wholly wanting and may exclude proof of a given state of facts only when that state of facts could not in any event warrant the interposition of this plea.

State v. Wooten, Crim. No. 2685 (Cochise Cty. Ariz., Sept. 13, 1919) (unreported), reproduced in Comment, The Law of Necessity and the Bisbee Deportation Case, 3 Ariz.L.Rev. 264, at 273 (1961).

See also Mitchell v. Harmony, 54 U.S. (13 How.) 115, 133, 14 L.Ed. 75 (1851) (question whether danger existed was for jury); Commonwealth v. Blodgett, 53 Mass. (12 Met.) 56, 71

[ 324 Pa. Super. Page 79]

(1846) (approving jury instruction: "the jury and not the State of Rhode Island, was the proper judge [of necessity]"); Aldrich v. Wright, 53 N.H. 398, 402, 403 (for jury to say whether danger so imminent as to make defendant's shot reasonably necessary).

2

So far we have assumed that in defining the defense of justification, Section 503 of the Crimes Code means just what it says: that the actor must reasonably believe his conduct "to be necessary to avoid a harm or evil," and that the harm or evil sought to be avoided must be "greater than that sought to be prevented." 18 Pa.C.S.A. § 503. The trial court, however, held that appellants failed to satisfy the requirements of the common law defense of necessity. Thus, relying on State v. Marley, 54 Haw. 450, 509 P.2d 1095 (1973), the trial court states that appellants were required to, but did not, show "imminence of the harm to be avoided" and "a direct causal relationship or nexus between [their] actions and avoidance of anticipated harm." Slip op. at 6.

We acknowledge that the common law is sometimes helpful in solving problems of statutory construction. But see 18 Pa.C.S.A. § 107(b) (abolishing common law crimes). Settled principle, however, precludes us from referring to the common law in construing a criminal statute so as to give it a meaning less favorable to the accused than do the plain terms of the statute. For we must construe a criminal statute narrowly, which is to say, in favor of the accused. See 1 Pa.C.S.A. § 1928(b); Commonwealth v. Duncan, 456 Pa. 495, 321 A.2d 917 (1974); Commonwealth v. Ashford, 263 Pa. Super. 100, 397 A.2d 420 (1979); Commonwealth v. Darush, 256 Pa. Super. 344, 389 A.2d 1156 (1978). As the Supreme Court has said in Commonwealth v. Exler, 243 Pa. 155, 162-63, 89 A. 968, 971 (1914): "[W]hen a criminal statute calls for construction it is not the construction that is supported by the greater reason that is to prevail, but that one which, if reasonable, operates

[ 324 Pa. Super. Page 80]

    in favor of life and liberty." See also Commonwealth v. Teada, 235 Pa. Super. 438, 344 A.2d 682 (1975) (if two inconsistent constructions of penal statute are both reasonable, construction favorable to accused must be adopted). And see Commonwealth v. Trowbridge, 261 Pa. Super. 109, 395 A.2d 1337 (1978) (examination of common law permitted when narrow construction of penal statute results).

For our part, we find the common law unclear. Although State v. Marley, supra, does indeed describe the common law defense of necessity as the trial court says, we are not persuaded that the requirements that the harm be imminent and that "a direct causal relationship or nexus [exist] between the defendants' actions and avoidance of anticipated harm" are "prerequisites to the defense of necessity." For the defense has been described much more generally. Thus the United States Supreme Court has not insisted upon proof of "a direct causal relationship or nexus." Instead, in deciding whether necessity was shown, the Court has examined the reasonableness of the actor's conduct as that appears in light of all of the circumstances, stating in Mitchell v. Harmony, supra that:

In deciding upon this necessity, however, the state of the facts, as they appeared to the officer at the time he acted, must govern the decision; for he must necessarily act upon the information of others as well as his own observation. And if, with such information as he had a right to rely upon, there is reasonable ground for believing that the peril is immediate and menacing, or the necessity urgent, he is justified in acting upon it; and the discovery afterwards that it was false or erroneous, will not make him a trespasser. But it is not sufficient to show that he exercised an honest judgment, and took the property to promote the public service; he must show by proof the nature and character of the emergency, such as he had reasonable grounds to believe it to be, and it is then for a jury to say, whether it was so pressing as not to admit of delay; and the occasion such, according to the

[ 324 Pa. Super. Page 81]

    information upon which he acted, that private rights must for the time give way to the common and public good. 54 U.S. at 135.

Similarly, other cases manifest concern that the actor's conduct be proportionate to the emergency -- that no greater force be used than is necessary to meet the danger, and that the consequences of a course of action be considered. The case in which the defendant had destroyed buildings adjoining a burning structure was a typical one in which the necessity defense was invoked at common law. See, e.g., Hale v. Lawrence, supra. See also Model Penal Code § 3.02, Comment, collecting cases. In such a case, had the defendant destroyed buildings several blocks away from the burning structure, the sincerity of his belief that his actions were necessary to protect the neighborhood, and hence the reasonableness of his conduct in meeting the danger, might well be questioned. Aldrich v. Wright, supra, in which the New Hampshire Supreme Court held that the defendant could assert the necessity defense when he killed minks out of season in violation of a statute, to save his geese, provides another illustration:

There is a great difference between an attack made upon A by B, and an attack made upon him by B's dog. On A's side, the consequences of his being killed by B, and the consequences of being killed by B's dog, may not be materially different. But on the other side, the consequences of his defending himself by killing B and the consequences of his defending himself by killing B's dog, regarded from a human point of view which is the one adopted by human law, are very different. The difference in the common-law values of the lives destroyed exhibits the reasonableness of adjusting the quality, quantity, and time of defensive force with some reference to consequences.

Aldrich v. Wright, supra at 405.

[ 324 Pa. Super. Page 82]

Nor were the common law cases concerned exclusively with simple emergency situations, such as the case of a burning building, as some courts have suggested. See, e.g., Page 82} State v. Dorsey, 118 N.H. 844, 846, 395 A.2d 855 (1978) (common law defense dealt with "obvious and generally recognized harms"). While some common law cases were concerned with situations that may appear straightforward or simple, see, e.g., Model Penal Code § 3.02 Comment at 9 (listing examples), others were concerned with situations in which the harms seem no more "obvious and generally recognized" than do the harms in the present case. In Mitchell v. Harmony, supra, jurors considered the defense of necessity to a charge that a military commander had taken personal property for the purpose of preventing it from falling into the hands of the enemy (jury convicted). In Commonwealth v. Blodgett, supra, they considered the defense to charges of kidnapping where the defendant was charged in Massachusetts with kidnapping and returning to Rhode Island followers of Dorr, who had fled from Rhode Island to Massachusetts during the so-called Dorr rebellion (jury convicted). And in State v. Wooten, supra, the defendant had participated in a posse that rounded up members of the Industrial Workers of the World who were striking copper miners and took them to New Mexico (jury acquitted).

In any event, this case does not require us to decide just what were the requirements of the common law. For the point is, not what the common law is, but what our statutory law is. And under our statutory law -- Sections 502 and 503 of the Crimes Code -- appellants were not required to prove what the trial court held they were. They were only required to prove that they reasonably believed their conduct "to be necessary to avoid a harm or evil," and that "the harm or evil sought to be avoided . . . [was] greater than that sought to be prevented by the law defining [their conduct as criminal ...


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