Com. v. Markum

• Decision Date: 02 May 1988
• Citation: 541 A.2d 347,373 Pa.Super. 341
• Parties: COMMONWEALTH of Pennsylvania v. Roland MARKUM, John O'Brien, Howard Walton, Susan Silcox Kathy Long, Ellen Jones, and Anne Marie Breen, Appellants. COMMONWEALTH of Pennsylvania v. Henry TENAGLIO and Joseph Wall, Appellants. COMMONWEALTH of Pennsylvania v. Walter GIES, Appellant.
• Court: Pennsylvania Superior Court

Page 347

541 A.2d 347

373 Pa.Super. 341

COMMONWEALTH of Pennsylvania v. Roland MARKUM, John O'Brien, Howard Walton, Susan Silcox

Kathy Long, Ellen Jones, and Anne Marie Breen, Appellants.

COMMONWEALTH of Pennsylvania v. Henry TENAGLIO and Joseph Wall, Appellants.

COMMONWEALTH of Pennsylvania v. Walter GIES, Appellant.

Superior Court of Pennsylvania.

Argued June 25, 1987.

Filed May 2, 1988.

Samuel C. Stretton, West Chester, for appellants.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CIRILLO, President Judge, and McEWEN and TAMILIA, JJ.

CIRILLO, President Judge:

Appellants take this appeal from a judgment of sentence of one day to three months imprisonment imposed by the Honorable John J. Poserina of the Court of Common Pleas of Philadelphia County following their conviction for defiant trespass. ¹ We affirm.

On August 10, 1985, as part of an anti-abortion demonstration, appellants pushed their way into the Northeast Women's Center on Roosevelt Boulevard in Philadelphia, and occupied several rooms there. Once inside, they damaged two aspirator machines and other medical instruments, threw equipment out of a third floor window, and placed "pro-life" stickers on the doors, walls, and ceilings. Appellants refused to leave, even after several requests by the Center's staff, and were ultimately removed when police arrived and carried them from the scene.

Appellants appeared for trial before the Honorable Mitchell S. Lipschutz of the Philadelphia Municipal Court, and were found guilty. All appellants except Tenaglio and Wall proceeded to a de novo trial before Judge Poserina.

During a hearing on a motion in limine, appellants made an offer of proof in support of their claim that they be allowed to present a defense of justification. Following the submission of briefs and argument on March 24, 1986, Judge Poserina ruled that justification did not lie. Judge Poserina certified the question of justification for interlocutory appeal, but this court denied appellants' petition and remanded the case for trial.

On September 30, 1986, the jury returned guilty verdicts as to all appellants. On October 20, 1986, Judge Poserina found the remaining appellants, Tenaglio and Wall, guilty after they stipulated to the testimony presented at the jury trial of their co-defendants.

Following sentencing, the appellants were immediately paroled on the condition that they each perform fifty hours of community service, not to be served in any pro-life agencies, and refrain from trespassing on medical facilities that perform abortions. Post-trial motions were filed and denied and this timely appeal followed.

Appellants raise one issue on appeal: whether the trial judge erred in not allowing appellants to present the defense of justification to the jury.

In Pennsylvania, the defense of justification is grounded in statute. 18 Pa.C.S. §§ 501-10. This legislation has several provisions. However, it must be noted that appellants failed to specify which justification provision they deemed applicable to their case. In Commonwealth v. Capitolo, 508 Pa. 372, 381-382, 498 A.2d 806, 810-811 (1985), our supreme court held that a litigant must specify which section of the justification statute their claim is based upon. In Capitolo, the appellants proceeded under § 503; therefore, the court held that any claim under § 510 was waived. Here, where appellants only nebulously claimed justification, without specifically invoking either §§ 503 or 510, their claim may have been waived altogether. However, inasmuch as appellants asserted the defense at trial, in post trial motions, and again on appeal, we will consider the issue to be properly preserved and presented.

Section 503 states:

(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 510 states:

Conduct involving the appropriation, seizure or destruction of, damage to, intrusion 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.

The Pennsylvania Supreme Court, in Commonwealth v. Capitolo, 508 Pa. 372, 498 A.2d 806 (1985), and Commonwealth v. Berrigan, 509 Pa. 118, 501 A.2d 226 (1985), addressed the applicability of the justification provisions of §§ 503 and 510, respectively.

In Capitolo, Patricia Capitolo and four others crept under a fence enclosing the Shippingsport Nuclear Power Plant. Once through, they sat down about ten to twelve feet inside of the fence and held hands. They were placed under arrest after refusing requests of plant representatives that they leave the premises. The five sought to present a justification defense under § 503, the general justification provision of the statute, but were refused by the trial judge because they would not have been able to prove that their trespass was justified. They were subsequently convicted of trespass in the Court of Common Pleas of Beaver County.

On appeal, a majority of this court reversed the decision of the trial court, concluding that appellants' offer of proof met the requirements of § 503 and that they should have been able to present to the jury evidence in support of the defense.

Our supreme court reversed and reinstated the convictions, holding that the defense of justification is available only when the appellee is able to make an offer of proof which establishes:

(1) that the actor was faced with a clear and imminent harm, not one which is debatable or speculative;

(2) that the actor could reasonably expect that the actor's actions would be effective in avoiding this greater harm;

(3) there was no legal alternative which will be effective in abating the harm; and

(4) the Legislature had not acted to preclude the defense by a clear and deliberate choice regarding the matter at issue.

Capitolo, 508 Pa. at 378, 498 A.2d at 809 (emphasis ours). The court went even further in stating that

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--here that of necessity.... Where the proferred evidence supporting one element of the defense is insufficient to sustain the defense, even if believed, the trial court has the right to deny use of the defense and not burden the jury with testimony supporting other elements of the defense.

Id.

After applying these basic principles to the facts of the trespass action, the court concluded that the danger at the nuclear plant was not imminent and that the appellees "could not establish that their criminal conduct was necessary to avoid harm or evil to themselves or others." Id.

In Berrigan, the Berrigan brothers and six others entered the General Electric plant in King of Prussia, Pennsylvania, where they damaged hydrogen bomb missile components and poured human blood on the premises. Property damage exceeded $28,000. The eight involved were charged and convicted of burglary, criminal mischief, and criminal conspiracy. An offer of proof was made under § 510, (the property crimes provision of the justification statute) to present the defense of justification. The trial judge permitted them to offer their own testimony in support of the defense, but refused to permit them to present expert testimony.

On appeal, this court held that appellants should have been able to present the defense, and present expert testimony in support of the defense.

Once again, our supreme court reversed. By applying §§ 196 and 262 of the Restatement of Torts Second to 18 Pa.C.S. § 510, the court concluded that the Restatement imposes upon § 510 the requirements that the actor reasonably believe that the act in question was necessary to avoid an imminent and public disaster. Berrigan, 509 Pa. at 123-124, 501 A.2d at 229. The court then reiterated the four-part test used in Capitolo and determined that the trial court had properly ruled that the offer of proof was insufficient to establish that the nuclear holocaust that appellees sought to avert was a clear and imminent public disaster.

The court in Berrigan went even further, however, and held additionally that the defense of justification was not available "in situations where the conduct some perceive to engender public disaster has been specifically approved of by legislation making it legal conduct ..." Id.

Abortion has been specifically approved by the Pennsylvania Legislature in the Abortion Control Act, which was adopted in January of 1983. 18 Pa.C.S. §§ 3201-3220. Were it not protected by such legislation, the justification defense would continue to remain unavailable because a woman's right to abortion is protected by the Constitution of the United States. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). The Berrigan mandate that a justification defense may not be raised if the asserted "harm" is legal is not dependent upon whether such conduct has been made legal...