Com. v. Berrigan

• Decision Date: 17 February 1984
• Citation: 325 Pa.Super. 242,472 A.2d 1099
• Parties: 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.
• Court: Pennsylvania Superior Court

Page 1099

472 A.2d 1099

325 Pa.Super. 242

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.

Superior Court of Pennsylvania.

Argued May 10, 1983.

Filed Feb. 17, 1984.

Ramsey Clark, New York City, for appellants.

Joseph J. Hylan, Asst. Dist. Atty., Norristown, for Commonwealth, appellee.

Before CERCONE, President Judge, and SPAETH, HESTER, BROSKY, WIEAND, BECK and JOHNSON, JJ.

BROSKY, Judge.

This appeal follows appellants' convictions by a jury on charges of burglary, ¹ criminal mischief ² and criminal conspiracy. ^{3 3} 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. ⁴

At trial appellants did not deny having committed these actions, but sought to defend themselves by relying on Pennsylvania's justification statute. ⁵ 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. ⁶

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.

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.

I.

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."

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, --- Pa.Super. ---, 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, at ---, 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 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, modern variant on the common law defense of necessity. ⁷ 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, --- Pa.Super. at ---, 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, at ---, 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.

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...