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COMMONWEALTH PENNSYLVANIA v. REV. DANIEL BERRIGAN (12/03/87)

filed: December 3, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
REV. DANIEL BERRIGAN, S.J., REV. PHILIP BERRIGAN, SISTER ANNE MONTGOMERY, ELMER H. MAAS, REV. CARL KABAT, JOHN SCHUCHARDT, DEAN HAMMER, MOLLY RUSH, APPELLANTS



Appeal from the Judgment of Sentence of July 28, 1981, in the Court of Common Pleas of Montgomery County, Criminal Division, at No. 2647-80.

COUNSEL

Ramsey Clark and Peter D. Goldberger, Philadelphia, for appellants.

Mary Ann Killinger, Assistant District Attorney, Norristown, for Com., appellee.

Cavanaugh, Brosky, McEwen, Del Sole, Beck, Tamilia, Kelly, Popovich and Johnson, JJ., en banc. Brosky, J., files a dissenting opinion. Tamilia, J., files a dissenting opinion in which Cavanaugh and Kelly JJ., join. Kelly, J., files a dissenting statement.

Author: Beck

[ 369 Pa. Super. Page 150]

This appeal is on remand from the Pennsylvania Supreme Court, which reversed the Superior Court's grant of a new trial and directed the Superior Court to consider appellants' remaining allegations of error. Appellants continue to assert that the trial judge erred by improperly conducting voir dire, excluding relevant evidence, incorrectly charging the jury, communicating with the jury outside the presence of the parties, denying motions to recuse, and imposing invalid sentences.

After careful consideration of the issues, we conclude that appellants are not entitled to a new trial. However, since we find that the trial judge should have recused from sentencing and that the sentences imposed were based in part on impermissible considerations, we vacate the judgments of sentence and remand for resentencing before a different judge.

On September 9, 1980, the eight appellants entered a General Electric plant in King of Prussia, Pennsylvania, which manufactured components for the Minute Man Mark 12A, a United States Air Force nuclear missile. As a protest against the nuclear arms race, they beat missile components with hammers and poured human blood on the premises. On March 6, 1981, following a trial by jury in the Court of Common Pleas of Montgomery County, each appellant

[ 369 Pa. Super. Page 151]

    was convicted of burglary, criminal mischief, and criminal conspiracy. 18 Pa.Cons.Stat.Ann. §§ 3502, 903, 3304 (Purdon, 1983). The trial judge sentenced appellants to prison terms on July 28, 1981, and appellants filed a timely appeal to this court.

In Commonwealth v. Berrigan, 325 Pa. Super. 242, 472 A.2d 1099 (1984), an en banc panel of this court vacated the sentences and remanded for a new trial on the grounds that the trial judge had erred by conducting voir dire with groups of four jurors at a time, by excluding the public from voir dire, and by excluding evidence tending to establish a justification defense under section 510 of the Crimes Code. The Commonwealth appealed this decision to the Pennsylvania Supreme Court, which reversed on all three grounds. Commonwealth v. Berrigan, 509 Pa. 118, 501 A.2d 226 (1985).

In its original opinion, dated November 22, 1985, the Supreme Court reinstated appellants' (then appellees) judgments of sentence. Upon reconsideration, however, the Supreme Court, by per curiam order dated February 24, 1986, vacated its reinstatements of the judgments of sentence. The Court then "remanded to the Superior Court for disposition of all issues raised in that court, but not yet considered." 509 Pa. at 142-43, 501 A.2d at 239. We now consider those issues left undecided following the original appeal.

In the interests of clarity, we have divided appellants' original allegations of error into the following categories. For the reasons noted below, issues 1, 2, 8, 9, 14, and 15 are not presently before us for review.

1. The trial court's refusal to conduct individual voir dire.

We reversed on this issue. 325 Pa. Super. at 261-65, 472 A.2d at 1108-10. The Supreme Court reversed our decision and affirmed the trial court. 509 Pa. at 135-37, 501 A.2d at 235-36.

2. The exclusion of the public from voir dire.

[ 369 Pa. Super. Page 152]

We reversed on this issue. 325 Pa. Super. at 265-67, 472 A.2d at 1110-11. The Supreme Court reversed our decision and affirmed the trial court. 509 Pa. at 126-35, 501 A.2d at 230-235.

3. The trial court's unwillingness to consider challenges for cause until after all prospective jurors were examined.

4. The trial court's failure to preserve the juror strike-off sheet and the text of voir dire questions submitted by the defense.

5. The trial court's refusal to grant the defense more than a minimum number of peremptory strikes.

6. The denial of seven challenges for cause.

7. The trial court's limitations on questions probing possible bias on the part of jurors during voir dire.

8. The exclusion of evidence relating to the defense of "justification generally". 18 Pa.Cons.Stat.Ann. § 503 (Purdon, 1983).

We affirmed the trial court as to this issue. 325 Pa. Super. at 250, 472 A.2d at 1103. See infra pp. 163-165.

9. The exclusion of evidence relating to the defense of "justification in property crimes". 18 Pa.Cons.Stat.Ann. § 510 (Purdon, 1983).

We reversed on this issue. 325 Pa. Super. at 256-61, 472 A.2d at 1106-1108. The Supreme Court reversed our decision and affirmed the trial court. 509 Pa. at 123-26, 501 A.2d at 229-230.

10. The exclusion of evidence relating to the defense of justification pursuant to the "execution of a public duty". 18 Pa.Cons.Stat.Ann. § 504 (Purdon, 1983).

11. The exclusion of evidence indicating a lack of criminal intent. 18 Pa.Cons.Stat.Ann. §§ 302, 304 (Purdon 1983).

12. The trial court's failure to charge the jury correctly as to the availability of justification defenses and the legal significance of criminal intent.

13. The trial court's ex parte communications with the jury during deliberations.

[ 369 Pa. Super. Page 15314]

. The issuance of defective informations.

We affirmed the trial court as to this issue. 325 Pa. Super. 271-72, 472 A.2d at 1113-14.

15. The fact that appellants were convicted of both burglary and criminal mischief (the underlying offense).

Appellants have now abandoned this claim. Supplemental Brief of the Appellants on Remand at 4 n. 1.

16. The judge's failure to recuse at trial.

17. The judge's failure to recuse at sentencing.

18. The imposition of excessive sentences based on impermissible considerations.

We will address the remaining outstanding issues in sequential order.

I. VOIR DIRE ISSUES

Appellants' first seven claims all relate to the manner in which the trial court conducted voir dire. The Supreme Court has already found that objections 1 and 2 are without merit. We now affirm the trial court as to the five additional voir dire issues.

A.

As issue 3, appellants contend that the trial court erred by delaying consideration of challenges for cause until after the entire voir dire panel had been interviewed and by refusing to segregate jurors who were later removed for cause. In order to evaluate this argument, we must first determine what system of voir dire the trial court employed.

Pennsylvania Rule of Criminal Procedure 1106 describes two alternate systems of voir dire: individual voir dire, R. 1106(e)(1), and the list system of challenges, R. 1106(e)(2). Under the individual system, each prospective juror is examined in turn and both peremptory and for cause challenges are exercised immediately after the juror is examined, before moving on to the next juror.

Under the list system, a list of at least twelve prospective jurors is prepared and jurors may be examined either collectively or individually. Challenges for cause "shall be exercised

[ 369 Pa. Super. Page 154]

    orally as soon as the cause is determined." R. 1106(e)(2)(C). When all cause challenges have been exercised, the list is passed between prosecution and defense for peremptory strikes. R. 1106(e)(2)(F).

In the instant case, the procedure challenged by the appellants was instituted by the trial court on the second day of voir dire, February 24, 1981:

THE COURT: Contrary to what I told you yesterday, we are going to take four jurors at a time, because it was rather crowded back there with everybody in here. We are going to voir dire four jurors at a time in accordance with these questions.

When you are finished with each of these four jurors, they will be taken back, and then the next four and the next four, until you have interviewed the whole panel. Then the whole panel will be brought back in here for you to make whatever determinations you want to make.

N.T. Feb. 24, 1981 at 118.

One of the appellants objected, suggesting that "as soon as there is really good evidence that somebody is prejudiced, if he or she could be removed" on the basis that such jurors might "infect" the others. Id. at 119. The court responded that such concern was the reason for the procedure of voir dire by panels of four and stated that, after examination, each panel of four would be instructed not to talk with other jurors and would be isolated. On the next day, the court clarified the procedure in the following exchange:

[Appellant] JOHN SCHUCHARDT: Could you tell us just where we are now, and a little bit about the procedure and what's happening outside the courtroom? How many jurors have been removed for cause? Are those jurors, once they are removed for cause, sent home, or do they go back to the jury room?

THE COURT: There have been, up to this point, only two jurors removed for cause, which were previously taken care of at side bar. They are still back amongst the panel. They were instructed not to discuss it with anybody.

[ 369 Pa. Super. Page 155]

Your challenges for cause will be taken when the entire panel is assembled. After that, you will then proceed to strike your challenges which are peremptory to each.

[Appellant] DEAN HAMMER: Can you just clarify that one step further -- not to prolong it, but is that a change in the process that we had going yesterday?

THE COURT: No.

DEAN HAMMER: So, during the process, if someone has exempted themselves by admitting that they are prejudiced, then we just --

THE COURT: You just put a "C" next to their name, and when the whole thing -- when the whole panel is assembled, we will then retire -- or have the panel kept out -- and you will then be able to make your challenges for cause.

DEAN HAMMER: At the end of the complete voir dire process?

THE COURT: Right.

N.T. Feb. 25, 1981 at 519-20.

Although Rule 1106(e) provides that "the trial judge shall select one of the following alternative methods of voir dire," this court has previously accepted a hybrid system that combined elements of both the list system and the individual system. See Commonwealth v. Pittman, 320 Pa. Super. 166, 174-76, 466 A.2d 1370, 1374 (1983). We conclude that the voir dire challenge system adopted by the trial court in the instant case was a hybrid system more closely approximating the list system of Pa.R.Crim.P. 1106(e)(2).

We must therefore determine whether the trial judge abused his discretion when, using a list system of challenges, he deferred challenges for cause until after all prospective jurors were examined. Pennsylvania Rule of Criminal Procedure 1106(e)(2)(C) requires that "[c]hallenges for cause shall be exercised as soon as the cause is determined." Pennsylvania Rule of Criminal Procedure 1106(e)(2)(D) provides: "When a challenge for cause has been sustained, which brings the total number on the list

[ 369 Pa. Super. Page 156]

    below the number of twelve (12) plus alternates plus peremptory challenges (including alternates), additional prospective jurors shall be added to the list." Although a party challenging a juror must do so "as the cause arises," Pa.R.Crim.P. 1106 Comment, the rule does not say whether the court must immediately rule on the challenge or immediately dismiss excludable jurors.

In the instant case, it appears that the court's procedure provided for most of the cause challenges to be made after the entire panel was interviewed but before any peremptory challenges. It is certainly preferable if challenges for cause are permitted to be made orally as soon as counsel making the challenge discerns cause to do so, and that the trial court rule immediately on such challenges and upon sustaining any challenge, dismiss from service the challenged juror.

The method of voir dire is, however, largely within the discretion of the trial court. See Commonwealth v. Pittman, 320 Pa. Super. at 172-74, 466 A.2d at 1373. We conclude that the requirement of Rule 1106 that challenges be made "as cause arises" imposes an obligation on the parties to make prompt challenges, but imposes no obligation on the court to make immediate rulings on those challenges. We find that the trial court did not err in postponing challenges for cause until all jurors had been interviewed.

We also find that the court did not commit reversible error by refusing to segregate individual jurors pending consideration of challenges for cause. Appellants have not established that they were prejudiced as a result of contact among potential jurors. Nor do we believe that under the facts of the instant case this contact was so inherently prejudicial that a new trial should be afforded even without a specific showing of harm. Cf. Commonwealth v. Stewart, 449 Pa. 50, 295 A.2d 303 (1972) (overturning conviction where father of defendant's alleged victim remained with jury panel for over two days). Here the court's instructions cautioning potential jurors not to discuss the case upon

[ 369 Pa. Super. Page 157]

    returning to the jury room were sufficient to ensure a fair trial.

B.

As issue 4, appellants contend that the court erred by failing to preserve in the record the jury strike-off sheet and the text of voir dire questions which the defense submitted in writing to the court. On the third day of voir dire, the trial judge announced:

I am now going to conduct the voir dire. Any additional questions that will be asked can be submitted to me in writing. During the voir dire, you will have the opportunity to write down what additional questions you would like to ask. I will make rulings on those as to each of the four that are in the box, and they will become part of the record of this case.

N.T. Feb. 25, 1981 at 412. The trial transcript indicates that written questions were submitted to the court, but no memorialization of such questions exists in the record.

The Superior Court, in reversing on other grounds, directed that on remand proposed questions submitted by appellants "shall be retained to become part of the record." 325 Pa. Super. at 265, 472 A.2d at 1110. The panel also directed preservation of the strike-off sheet. Id. We must now consider whether the trial court's failure to ...


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