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filed: February 17, 1984.


No. 1959 Philadelphia, 1981, Appeal from the Judgment


Ramsey Clark, New York City, for appellants.

Joseph J. Hylan, Assistant District Attorney, Norristown, for Commonwealth, appellee.

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

Author: Brosky

[ 325 Pa. Super. Page 248]

This appeal follows appellants' convictions by a jury on charges of burglary,*fn1 criminal mischief*fn2 and criminal conspiracy.*fn3

[ 325 Pa. Super. Page 249]

The incident leading to appellants' arrests occurred on September 9, 1981 when they entered a General Electric plant in King of Prussia, Pennsylvania and beat missile components with hammers. They also poured human blood on the premises. They were arrested at the factory some time later. No personal injuries occurred. Property damage apparently exceeded $28,000.*fn4

At trial appellants did not deny having committed these actions, but sought to defend themselves by relying on Pennsylvania's justification statute.*fn5 While the trial judge agreed that the defense could be raised by appellants, he refused to permit them to present expert testimony to prove the defense, limiting them to their own testimony. It is this ruling that presents the primary issue before us. That is, "Did the trial court err in so limiting appellants' evidence?" Because we believe that the court was so in error, we reverse the judgments of sentence and remand for new trial.

Before us also are questions concerning the voir dire conducted in this case, the refusal of the trial judge to recuse himself and the issuance of the criminal informations.*fn6

In Part I of the opinion we will discuss the justification defenses applicable to this case.

In the second section we will address appellants' allegations of error in the voir dire process. We agree with them to the extent that we, too, believe that the voir dire process should have been conducted in public and should have been conducted on an individual, rather than a group basis.

[ 325 Pa. Super. Page 250]

Thirdly, we will discuss the question of whether the trial judge should recuse himself. We hold that the judge may not participate further in this case.

Finally, we will respond to appellants' contention with which we do not agree, that the criminal informations filed against them should be quashed as not having been signed by a duly authorized district attorney.


At trial appellants sought to defend themselves on the grounds that their actions were justified as being necessary to avert the harm of nuclear war. Pennsylvania law provides a justification defense at 18 Pa.C.S. §§ 501, 503, 510.

The general justification defense is set out at Section 503 which provides.

§ 503. Justification generally

(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 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.

Section 501 defines the terms believes or belief as "reasonably believes" or "reasonable belief."

[ 325 Pa. Super. Page 251]

We believe, however, that appellants were required to prove the elements of a more specific justification statute, found at Section 510 which states:

§ 510. Justification in property crimes

Conduct involving the appropriation, seizure or destruction of, damage to, intrusion on or interference with property is justifiable under circumstances which would establish a defense of privilege in a civil action based thereon, unless:

(1) this title or the law defining the offense deals with the specific situation involved; or

(2) a legislative purpose to exclude the justification claimed otherwise plainly appears.

In Commonwealth v. Capitolo, 324 Pa. Super. 61, 471 A.2d 462 (1984), we held that the appellants who had tried to prove justification in defense of charges of trespass on the grounds of a nuclear power plant, were required to meet the requirements of Section 510. We so hold in the instant case in which appellant's conduct involves damage to, intrusion on or interference with property.

In Capitolo, supra, 324 Pa. Superior Ct. 61, 471 A.2d 462, we explained that because "Section 503 contains a general principle applicable to all crimes . . . it must yield to more specific formulations dealing with the particular situation posed in any concrete case." (citing Model Penal Code, Scope of Article 3, at 1). We therefore concluded that to the extent Sections 503 and 510 are consistent, the requirements of both must be met by defendants seeking to prove justification.

As to Section 503, the rationale behind its Model Penal Code origins and the case law make it quite clear that a defendant is justified in committing a crime if and only if each of four circumstances exist. They are:

(1) The actor must believe his actions to be necessary to avoid a harm or evil to himself or to another which is greater than that harm or evil in which his conduct will

[ 325 Pa. Super. Page 252]

    result. This subjective belief must be held honestly and sincerely. 18 Pa.C.S. § 503(a)(1).

(2) Such a belief must also be determined to be an objectively reasonable one to hold. 18 Pa.C.S. § 501.

(3) No law "defining the offense provides exceptions or defenses dealing with the specific situation involved . . ." 18 Pa.C.S. § 503(a)(2).

(4) "[A] legislative purpose to exclude the justification claimed [must] not otherwise plainly appear." 18 Pa.C.S. § 503(a)(3).

As to requirements three and four we note that neither the burglary statute nor any other section of Title 18 provides an exception or defense dealing with this specific situation. We will discuss the question of whether there exists a legislative purpose to exclude the defense, later in this opinion.

In United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980), Justice Rehnquist, speaking for a majority of the United States Supreme Court, discussed limitations upon the scope of the common law defenses of duress and necessity. Justice Rehnquist said:

We need not speculate now, however, on the precise contours of whatever defenses of duress or necessity are available against [particular criminal] charges. 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. LaFave & Scott [ Handbook on Criminal Law, (1972)], at 379.

Id. at 410-411, 100 S.Ct. at 634-635. The Supreme Court stated further that the modern defense of justification in federal law is historically based in the common law defenses of duress and necessity. In Pennsylvania, however, the justification defense enacted by our General Assembly in § 503, taken from the Model Penal Code, is an expanded,

[ 325 Pa. Super. Page 253]

    modern variant on the common law defense of necessity.*fn7 Commonwealth v. Clark, 287 Pa. Super. 13, 429 A.2d 695 (1981). Thus, the limitations on the common law defense as stated in United States v. Bailey, supra, while instructive, are certainly not binding on our understanding of Pennsylvania's statutory defense of justification.

Moreover, as to § 503, imminence is not a controlling factor. In Pennsylvania following the Model Penal Code approach, such factors are not controlling: ". . . [T]he actor's [reasonable] belief in the necessity [is] sufficient (assuming a valid choice of evils) . . . . Questions of immediacy and of alternatives have bearing, of course, [but only] on the genuineness of a belief in necessity . . ." American Law Institute, Model Penal Code § 3.02, Commentary at 10 (Tent.Draft No. 8, 1958). Cf. United States v. Bailey, supra, (interpreting common law defense), see also Commonwealth v. Capitolo, supra, 324 Pa. Super. 61, 471 A.2d 462.

The defense found at Section 510, though, is based on the tort principle of privilege and it does involve proof of imminence.

See Restatement of Torts Second § 196 which states:

One is privileged to enter land in the possession of another if it is, or if the actor reasonably believes it to be necessary for the purpose of averting an imminent public disaster.

In this respect Section 510 would seem to impose a stricter standard than § 503, since as to Section 503, imminence is not a controlling factor. See Commonwealth v. Capitolo, supra, 324 Pa. Superior Ct. 61, 471 A.2d 462, in which we note that the Section 510 requirement that imminence be proved differs somewhat from the role of imminence in the general justification defense found at § 503. See discussion of § 503, supra.

[ 325 Pa. Super. Page 254]

It seems beyond debate that use of nuclear weapons would cause a public disaster within the meaning of Restatement of Torts Second § 196 and, therefore, within the terms of § 510. In fact the trial court readily conceded that the horrors of nuclear war are well documented.

Having established that element of the defense, it was left to appellants to show that they reasonably believed their actions to be necessary for the purpose of averting an imminent disaster. Without evidence to show the imminence of the disaster or the causal relationship between the action and the averting of the harm, appellants could not meet their burden of proof. See Commonwealth v. Capitolo, 324 Pa. Super. 61, 471 A.2d 462(1984), in which we explained:

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 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.

Similarly, by limiting appellants' evidence to their own testimony, the trial court made it impossible for them to

[ 325 Pa. Super. Page 255]

    establish a basis in fact for the belief that the weapons components posed an imminent threat of harm. Appellants in the instant case, like those in Capitolo, supra, were precluded from proving the reasonableness of their beliefs.

At trial, appellants, who represented themselves with the assistance of advisory counsel, sought to prove that each of them had acted with justification. In order to establish the defense, appellants were required by Sections 503 and 510 to prove that it was reasonable for them to believe that their actions were necessary to avoid a greater harm. Appellants tried to introduce expert evidence in order to prove the elements of the defense. It is this evidence which the lower court would not allow.

When appellants attempted to introduce the first of several planned expert witnesses, they were told by the court that the witness would not be permitted to testify.

That first witness was Robert Aldridge. When the prosecutor objected to his testifying and asked for an offer of proof appellant Sister Anne Montgomery said, "We wish to call him as a witness to present facts relevant to our case, since he can speak to the significance and really what this exhibit is, . . . ."

After Mr. Aldridge's qualifications as a weapons expert were explained, the court ruled that he could not testify because his testimony would be irrelevant to the facts at issue. The court did say that Aldridge could present reputation evidence, but that, of course, was not the appellants' purpose in calling him. The court explained: "I think the proper way to prove your intent is for you to testify as to what you did and what you saw, the justification yourself from the stand."

The court said that expert testimony as to the horrors of nuclear war would "bolster" appellants' argument, which testimony could come from them. The judge continued, "And I have ruled and will continue to rule, anything they say about justification, they can say as to themselves."

[ 325 Pa. Super. Page 256]

In response to counsel's suggestion that expert witnesses would show a reasonable basis for what appellants believe the court opined, "But that isn't the issue," The court concluded, "and it is clear to me that the testimony proffered or to be proffered is not relevant to the issue at hand." Later in the trial the court explained its previous ruling saying, "The ruling was there would be no expert testimony with respect to the views of these experts, because opinion testimony, first of all, is not relevant to those issues, because for every opinion that you have as to one point of view, you will have an opinion opposing that."

Both the general justification defense found at 18 Pa.C.S. § 503 and that at 18 Pa.C.S. § 510 require that the belief of the actor that his action is necessary be a reasonable belief. See 18 Pa.C.S. § 501, supra. How can a defendant show the reasonableness of his position without reference to the basis or reason for it? Surely some evidence explaining what it was that appellants believed and why they believed it, was necessary to meet the "reasonableness" standard of the defense.

Similarly, how can appellants show that it was reasonable to believe that the harm they sought to avoid was imminent without reference to evidence of imminence?

We wish to emphasize that we do not hold that appellants should have been able to introduce any witnesses they desired, without regard to the proffered testimony. Of course, the testimony must be relevant. Furthermore, at the conclusion of the case, the lower court might properly determine that insufficient evidence was presented to sustain the justification defense. If the proffer indicates that even if the testimony were believed, it would not satisfy the requirements of the justification defense, then the lower court might also preclude the testimony. In this case, however, the record before us is devoid of evidence that the proffered testimony was irrelevant.

The transcript indicates that the appellants presented to the court a brief entitled Points and Authorities in Support of Evidentiary Proffer but that brief was not made a part

[ 325 Pa. Super. Page 257]

    of the record. No other written offer of proof is contained in the record and, as we have indicated, the appellants were precluded from presenting an oral offer as to any expert witness, other than Mr. Aldridge. In fact, when appellants asked the trial court for permission to put on the record the names of those expert witnesses whom they had intended to call, he permitted them to include only the name of Mr. Aldridge.*fn8

We believe that the lower court improperly limited evidence which appellants sought to introduce in support of the justification defense.

It is well established that: "An accused has a fundamental right to present defensive evidence so long as such evidence is relevant and not excluded by an established evidentiary rule." Commonwealth v. Greene, 469 Pa. 399, 405, 366 A.2d 234, 237 (1976). See also: Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); Commonwealth v. Boyle, 470 Pa. 343, 368 A.2d 661 (1977); Commonwealth v. Cropper, 463 Pa. 529, 345 A.2d 645 (1975); Commonwealth v. Bailey, 450 Pa. 201, 299 A.2d 298 (1973); Commonwealth v. Collins, 447 Pa. 300, 290 A.2d 121 (1972); Commonwealth v. Boone, 287 Pa. Super. 1, 429 A.2d 689 (1981). Thus, if a defendant poses a defense of justification under § 503, in a setting where it is lawfully available, he must be accorded, to the extent that our evidentiary rules allow, the right to present all relevant evidence which he chooses concerning that defense. Commonwealth v. Walley, 466 Pa. 363, 353 A.2d 396 (1976).

Clearly, the issue of justification in this Commonwealth, when properly raised, is a factual one which must be resolved by the fact finder. Cf: Commonwealth v. Schaller, 493 Pa. 426, 426 A.2d 1090 (1981); Commonwealth v. Brown, 491 Pa. 507, 421 A.2d 660 (1980); Commonwealth v. McGuire, 487 Pa. 208, 209, 409 A.2d 313

[ 325 Pa. Super. Page 258]

(1979); Commonwealth v. Colbert, 476 Pa. 531, 383 A.2d 490 (1978). Accordingly, the fact finder decides both whether the defendant's subjective justificatory beliefs were honest and sincere and whether acting upon such a belief was objectively reasonable. Commonwealth v. Schaller, supra. In this process, as we have noted, the fact finder may consider, in gauging the genuineness of this belief, whether reasonable legal alternatives to breaking the law existed or, if the circumstances of the case warrant such a finding, that the threat posed was sufficiently imminent to justify such an act.

The lower court erred when it ruled that appellants could not introduce the evidence they needed to show the objective reasonableness of their actions. Instead, the court limited their proof to showing the subjective reasonableness of the action.

Similarly, while we agree with the dissent's conclusion that the record does not contain evidence that the harm was imminent, we conclude that the appellants were effectively and improperly precluded from presenting evidence to show imminence, as required by § 510.

We turn next to the dissent's conclusion, stated without explanation, that it is unreasonable as a matter of law to believe that nuclear disaster could be avoided by the actions undertaken by appellants.

Unlike the dissent which seems to say that to avail themselves of the defense appellants must be able to show that their actions could totally avert nuclear war, we will not hold them to such a burden. Appellants must show that their actions could reasonably have been thought necessary to avert a public disaster. See Restatement, § 196, supra. Surely the use of the weapons, the components of which were damaged by appellants would cause a public disaster on the order of a "conflagration, flood, earthquake or pestilence." See Capitolo, supra.

Appellants explain in their brief that Robert Aldridge would have described the nature of the weapons components

[ 325 Pa. Super. Page 259]

    at the G.E. plant and shown that the hydrogen bombs for which they were being constructed could not operate without them. Therefore, the argument might reasonably be made that destruction of those components could avert nuclear disaster to an appreciable extent.

While appellants surely had as their ultimate goal the destruction of all nuclear weapons, we will not find their defense unreasonable simply because their action could immediately result in damage to only some of those weapons, since destruction of those weapons alone might reasonably avert disaster.

Nor do we agree with the dissent's conclusion that the justification defense was unavailable to appellants because there exists a legislative purpose to exclude it.

As the dissent notes, both 18 Pa.C.S.A. § 503 and § 510 provide that the defenses are available if a "legislative purpose to exclude the justification does not otherwise plainly appear." The dissent finds such a purpose in the provisions of the Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq. and 18 U.S.C. § 2155, which makes the destruction of nuclear defense materials a crime.

We have reviewed the provisions of these statutes and do not see in them evidence of a purpose to exclude the justification defense.*fn9

True, 18 U.S.C. § 2155 may conceivably make criminal the activities engaged in by appellants, but how does the existence of another crime with which they might have been charged affect the availability of the justification defense to the crimes before us? Appellants may even have been chargeable with other, unmentioned crimes, but we are not aware of a principle that states that the defenses available to a defendant are limited by the numbers of crimes with

[ 325 Pa. Super. Page 260]

    which he might be charged. Yet in citing 18 U.S.C. § 2155, that is the principle espoused by the dissent.

While the Atomic Energy Act does contain a declaration of policy favoring "the development, use and control of atomic energy . . . so as to make the maximum contribution to the general welfare," Id. at § 2011, we note that neither that Act nor the Energy Reorganization Act, 42 U.S.C. §§ 5801-5891 also mentioned by the dissent, contains a statement of "clear and manifest purpose" to exclude the justification defense to a charge of burglary in Pennsylvania. See Capitolo, supra, 324 Pa. Super. 61, 471 A.2d 462, in which this Court so finds no such purpose.

In this regard see also Silkwood v. Kerr-McGee Corporation, U.S. , 104 S.Ct. 615, 78 L.Ed.2d 443 (1984), in which the United States Supreme Court has recently held that a state-authorized award of punitive damages arising from a federally licensed nuclear facility is not preempted by the Atomic Energy Act, nor by the proscription against states regulating the safety aspects of nuclear energy.

While we as a nation, through our Congress, have enacted legislation indicating that we favor the use of nuclear power for the general welfare, we as residents of the Commonwealth of Pennsylvania have enacted a Crimes Code containing a justification defense that relieves from criminal liability those persons who act with a reasonable belief that their actions are necessary to avert imminent disaster. It is the criminal liability of appellants that is at issue, not the merits of our nuclear policy. The jury need not agree with appellants' views in order to acquit them. They need to find only that they acted reasonably.

As the Model Penal Code draftsmen of this provision specified, such a plain legislative purpose to exclude must be "a deliberate legislative choice, as when the law has dealt explicitly with the specific situation that presents the choice of evils . . ." American Law ...

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