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decided: November 22, 1985.


No. 102 E.D. Appeal Docket, 1984. Petition for Allowance of Appeal of Order of Superior Court of Pennsylvania dated February 17, 1984, No. 1959 Philadelphia 1981 Reversing Judgments of Sentence of the Court of Common Pleas of Montgomery County, Pennsylvania, No. 2647-80, and Remanding for New Trial, 325 Pa. Super. Ct. 242, Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, Flaherty and Zappala, JJ., filed dissenting opinions.

Author: Papadakos

[ 509 Pa. Page 121]


The Commonwealth of Pennsylvania (Appellant) appeals Superior Court's reversal of the judgments of sentence of the Court of Common Pleas of Montgomery County, Criminal Division, at No. 2647-80. Appellees were convicted by a jury on charges of burglary,*fn1 criminal mischief,*fn2 and criminal conspiracy,*fn3 for their September 9, 1981, trespass into a General Electric plant in King of Prussia, Montgomery County, Pennsylvania. Appellees admitted entering the plant, destroying missile components with hammers, pouring human blood on the premises, and causing some $28,000.00 in property damage.

At a trial by jury, presided over by the Honorable Samuel W. Salus, II, Appellees sought to defend their actions as falling within Section 510 of the Crimes Code,*fn4 which provides:

Section 510. Justification in property claims

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 law defining the offense deals with the specific situation involved; or

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

[ 509 Pa. Page 122]

Appellees attempted to present evidence from claimed experts which was intended to support their contentions that their actions were necessary to prevent a nuclear holocaust. The trial court rejected this offer, ruling as a matter of law that the justification defense as defined in Section 510 was not available to Appellees because they could not establish that the operation of the General Electric facility constituted an "imminent danger" to the public, justifying Appellees' trespass thereon and concurrent criminal conduct. Appellees were permitted to testify as to their reasons for entering the plant property, but the jury was instructed that, as a matter of law, the justification defense was not available as a defense for Appellees' actions.

On March 6, 1981, guilty verdicts against Appellees were returned on the burglary, criminal mischief, and criminal conspiracy charges from which post-trial motions for a new trial and motions in arrest of judgment were filed.

The post-trial motions were argued before a court en banc (Nicholas, Scirica, Salus, JJ.) which denied same by order of June 26, 1981. Appellees were thereupon sentenced to varying terms of imprisonment. Appellees appealed their convictions and sentences to Superior Court which, by its en banc opinion and order (Cercone, P.J. Spaeth, Hester, Brosky, Wieand, Beck, and Johnson, JJ.), reversed the judgments of sentence and remanded for a new trial. Judges Wieand, Hester, and Johnson dissented in part. See, Commonwealth v. Berrigan, 325 Pa. Super. 242, 472 A.2d 1099 (1984).

We granted allocatur because of the importance of defining the extent to which the justification defense of 18 Pa.C.S. § 510 is applicable, generally and under these facts, and to consider issues of voir dire and public trial involved herein.

Appellant argues that Superior Court erred in concluding that Section 510 was an available defense for Appellees' conduct. Appellant also argues that Superior Court erred in finding that the trial court abused its discretion in conducting the voir dire proceeding 1) where it restricted

[ 509 Pa. Page 123]

    access to the proceedings from members of the public, and 2) in not conducting individual voir dire questioning of each prospective juror.

We now reverse and order reinstatement of the sentences.


Our Crimes Code embraces the concept that conduct which would otherwise constitute a crime can be excused when necessary to prevent a greater harm or crime. This justification extends to actions taken to protect oneself, others, and property. (See 18 Pa.C.S. §§ 505, 506, 507, 509). Specifically, crimes to or on the property of another can be committed for the purpose of averting a public disaster when circumstances arise which would establish the civil law defense of privilege. (18 Pa.C.S. § 510).

As codified by the Restatement of Torts Second, the law will excuse a trespass onto the land of another, "if it is, or if the actor reasonably believes it to be necessary for the purpose of averting an imminent public disaster" (Section 196). Similarly, trespass to the chattel of another or its conversion is excusable "if the act is or is reasonably believed to be necessary for the purpose of avoiding a public disaster" (Section 262).

This defense is based on emergency and can be asserted only by one who is confronted with a widespread public crisis which does not allow the actor to select from among several solutions, some of which do not involve criminal acts. The threatened disaster (manmade or act of God) must be real and immediate, not imagined or speculative, and must threaten not only the actor but others as well. The actions taken to avoid the public disaster must support a reasonable belief or inference that the actions would be effective in avoiding or alleviating the impending harm. Additionally, the defense cannot be available in situations where the conduct some perceive to engender public disaster has been specifically approved of by legislation making

[ 509 Pa. Page 124]

    it legal conduct, or where a legislative purpose appears to exclude the defense.

By reading Section 510 of our Crimes Code together with Sections 196 and 262 of the Restatement of Torts Second, it is clear to us that the defense of justification will lie only where the actor offers evidence that will demonstrate:

1) that the actor was faced with a public disaster that was clear and imminent, not debatable or speculative;

2) that the actor could reasonably expect that the actions taken would be effective in avoiding the immediate public disaster;

3) that there is no legal alternative which will be effective in abating the immediate public disaster;

4) that no legislative purpose exists to exclude the justification from the particular situation faced by the actor.

As with any offer of proof, it is essential that the offer meet a minimum standard as to each element of the defense so that if a jury finds it to be true, it would support the affirmative defense. Where the offer is insufficient to establish any one element of the defense, the trial court may deny use of the defense and prohibit evidence as to the other elements of the defense.

In the case sub judice, Appellees attempted to justify their actions by relying on the argument that their actions were permitted by Section 510 to avert a nuclear holocaust. Reviewing this offer, we conclude that the trial court acted properly in ruling, as a matter of law, that the offer was insufficient to establish that the harm Appellees perceived was a clear and imminent public disaster. In so ruling, the trial court was also correct in preventing Appellee Mass from testifying concerning the power of a nuclear weapon, the likelihood of accidental or intentional nuclear warfare, or the philosophies and principles in current vogue among various authors against the use of nuclear armaments.

Even if the hazards from the detonation of a nuclear warhead represented an imminent harm when Appellees

[ 509 Pa. Page 125]

    committed their trespass, the hazards accompanying the improper use of nuclear energy are so commonly known to the general public that the expert testimony Appellee Mass attempted to introduce into evidence would not have been admissible. Commonwealth v. O'Searo, 466 Pa. 224, 352 A.2d 30 (1976); Collins v. Zediker, 421 Pa. 52, 218 A.2d 776 (1976). Expert testimony that a nuclear weapon is capable of maiming or killing masses of people is no more necessary than expert testimony as to the manner in which people dial a telephone, chew gum, or tie their shoes.

Appellees' continual attempts to focus attention onto the destructive nature of nuclear weaponry was not the harm with which Appellees were confronted when they trespassed onto the plant because the plant Appellees entered only produced bomb shell casings. The mere manufacture of bomb shell casings cannot be viewed as the type of dangerous activity which could result in a public disaster so as to justify criminal activity aimed at abating that conduct.

Furthermore, the actions chosen by Appellees (destruction of the casings and pouring of human blood) could not under any hypothesis reasonably be expected to be effective in avoiding the perceived public disaster of a nuclear holocaust. To the contrary, the record establishes that these criminal acts were deliberate and calculated choices and not the acts that would even practically abate an immediate public disaster.

Superior Court's conclusion that the use of nuclear weapons was a sufficient public disaster for purposes of § 510, is misplaced. Use of the weapons was not the harm Appellees were confronted with, only the manufacture of shell casings. The process of manufacture is so removed from the ultimate question of use as to be pure conjecture and speculation and, hence, presents, at most, a non-imminent danger.

In the absence of evidence of imminence of public disaster, the trial court committed no error in refusing Appellees' request to charge on Section 510 or to permit Appellee

[ 509 Pa. Page 126]

Mass to testify on the destructive force accompanying use of nuclear arms.*fn5


A. Exclusion of Spectators

Appellant next argues that Superior Court erred in concluding that the trial court committed reversible error by limiting access to the courtroom during the voir dire proceedings. This conclusion was reached in reliance, primarily, upon the recent United States Supreme Court decision in Press-Enterprise Company v. Superior Court of California, Riverside County, 464 U.S. ...

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