Com. v. Capitolo

• Decision Date: 13 January 1984
• Citation: 324 Pa.Super. 61,471 A.2d 462
• Parties: , 41 A.L.R.4th 733 COMMONWEALTH of Pennsylvania v. Patricia Ann CAPITOLO, Appellant. COMMONWEALTH of Pennsylvania v. Curtis Jay SELL, Appellant. COMMONWEALTH of Pennsylvania v. Stephen E. ANDERSON, Appellant. COMMONWEALTH of Pennsylvania v. Edward S. WAGNER, Appellant. COMMONWEALTH of Pennsylvania v. Sue HEILMAN, Appellant.
• Court: Pennsylvania Superior Court

Page 462

471 A.2d 462

324 Pa.Super. 61, 41 A.L.R.4th 733

COMMONWEALTH of Pennsylvania v. Patricia Ann CAPITOLO, Appellant.

COMMONWEALTH of Pennsylvania v. Curtis Jay SELL, Appellant.

COMMONWEALTH of Pennsylvania v. Stephen E. ANDERSON, Appellant.

COMMONWEALTH of Pennsylvania v. Edward S. WAGNER, Appellant.

COMMONWEALTH of Pennsylvania v. Sue HEILMAN, Appellant.

Superior Court of Pennsylvania.

Argued May 10, 1983.

Filed Jan. 13, 1984.

[324 Pa.Super. 65] Jon Stuart Pushinsky, Pittsburgh, for appellants.

Craig E. Wynn, Asst. Dist. Atty., Beaver, for Com., appellee.

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

SPAETH, Judge:

These appeals are from judgments of sentence for criminal trespass. Appellants' convictions arise from an incident that occurred during a demonstration against nuclear power at the Shippingport Nuclear Power Plant. Appellants argue that the trial court should have permitted them to prove that their conduct was justified under Section 503 of the Crimes Code. We agree and therefore vacate the judgments of sentence and remand for a new trial at which appellants shall be permitted to prove, if they can, that their conduct was justified.

We have divided our discussion explaining this conclusion into four parts. These may be summarized as follows.

First: Appellants offered to prove that their conduct met the requirements of the defense of justification as defined in Section 503(a) of the Crimes Code, specifically, that they reasonably believed their conduct "to be necessary to avoid a harm or evil," and 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). The trial court rejected appellants' offer. In doing so the court made plain its belief that even if appellants had been permitted to present their evidence, they would not have been able to prove that their trespass was justified. Perhaps so. But the jury should have been allowed to appraise appellants' evidence.

Second: In its opinion dismissing appellants' post-verdict motions the trial court read into Section 503(a) requirements that it considered were requirements of the common law defense of necessity. We do not find the common law clear. But in any event, the common law should not be read into Section 503(a), for to do so violates the principle that a criminal statute is to be narrowly construed, in favor of the accused.

Third: The trial court also rejected appellants' offer of proof on the ground that Section 503(a) has been preempted by federal and state legislation regulating nuclear power. We hold, however, that there has been no preemption.

Finally: We have discussed Section 510 of the Crimes Code. Appellants have not claimed, nor has the Commonwealth argued that they should have claimed, the defense of justification provided in Section 510. Nevertheless, we believe that appellants had to meet the requirements of Section 510, and we therefore discuss it. We conclude that appellants' offer of proof did meet the requirements of Section 510, as well as those of Section 503.

On July 15, 1979, appellants participated in a protest against the generation of nuclear power at the Shippingport Nuclear Power Plant. Ignoring a "No Trespass" sign, appellants crept under a fence surrounding the property and sat down, holding hands, about ten to twelve feet from the fence. N.T. 45-48, 51. When a plant security guard and a deputy sheriff warned appellants that they were trespassing on private In defending themselves against charges of criminal trespass, appellants relied on Section 503 of the Crimes Code, which provides:

property, they refused to leave. N.T. 48, 52. The sheriff then placed appellants under arrest and removed them from the property; they did not resist, and were not charged with resisting their arrest. N.T. 52-53. No personal injuries or property damage occurred as a result of appellants' trespass. N.T. 49. At the time of the demonstration, the nuclear power unit at the plant was shut down, although radio-active material remained in its fuel rods. N.T. 57, 58. The unit was scheduled to resume operations in two weeks. N.T. 58. A second unit was under construction. N.T. 57.

(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.

18 Pa.C.S.A. § 503.

This section is an almost exact copy of Section 3.02 of the Model Penal Code. In their Comment, the authors of the Code say that Section 3.02 "accepts the view that a principle of necessity, properly conceived, affords a general justification for conduct that otherwise would constitute an offense; and that such a qualification, like the requirements of culpability, is essential to the rationality and justice of all penal provisions." American Law Institute, Model Penal Code § 3.02 Comment at 5 (Tent. Draft No. 8, 1958).

The defense of justification is thus closely related to the common law defense of necessity, regarding which it has been said: "By necessity is meant the assertion that conduct promotes some higher value than the value of literal compliance with the law." G. Williams, The Criminal Law § 229 (2d ed. 1970). Thus, the concepts of "justification" and "necessity" reflect a judgment on the proper relationship between the state, with its power to declare conduct criminal, and the freedom of the individual. In an early New Jersey case the defense of necessity is described as

a natural right, not appertaining to sovereignty but to individuals considered as individuals. It is a natural right of which government cannot deprive the citizen and founded upon necessity and not expediency. It may be exercised by a single individual for his own personal safety or security, or for the preservation of his own property, or by a community of individuals in defense of their common safety or in the protection of their common rights. It is essentially a private and not a public or official right. It is a right not susceptible of any very precise definition, for the mode and manner and the extent of its exercise must depend on the nature and degree of the necessity that calls it into action, and this cannot be determined until the necessity is made to appear.

Hale v. Lawrence, 21 N.J.L. 714 (1848), aff'd sub nom. American Print Works v. Lawrence, 23 N.J.L. 590 (1851).

Section 501 of the Crimes Code defines "believes" as meaning "reasonably believes." 18 Pa.C.S.A. § 501. Accordingly, under Section 503(a)(1) appellants were required to prove that they reasonably believed their trespass "to be necessary to To meet this burden, appellants filed a pre-trial statement entitled "Defendants' Memorandum of Points and Authorities in Support of Their Right to Present Evidence Relative to the Defense of Justification as Defined in 18 C.P.S.A. section 503." The memorandum contained an offer of proof, divided into two parts. The first part of the offer of proof summarized appellants' evidence "that they had a reasonable belief that their conduct was necessary to avoid the harm." Appellants offered to "present testimony and documentary evidence detailing the many and varied activities aimed at shutting down the Shippingport Nuclear Power Plant or eliminating the danger emanating from the plant." They offered to "show that these efforts have been without result," and "that even though 'official channels' may still exist which might theoretically remove the threatened danger[,] these avenues offer no real likelihood of achieving results." Finally, appellants offered to prove "a nexus between their conduct and the avoiding of the threatened harm" by showing that a decision to halt construction of a nuclear power plant in another state "came after the arrest of numerous demonstrators." The second part of the offer of proof summarized appellants' evidence "that the harm emanating from the Shippingport Nuclear Power Plant is far greater than any harm resulting from their trespass on the plant site." Appellants offered to prove "the continuous risk of a serious accident ... far greater than the official estimates would indicate and that the consequences of such an accident would be much more severe than predicted by official studies .... [This evidence would include] 'incident reports' and other documentary evidence specifically concerning the Shippingport Plant." (Emphasis in original.) Appellants also offered to prove through expert testimony and "documentary evidence specifically concerning the Shippingport Plant" (emphasis in original) that in normal day-to-day operations the plant continuously releases "low level radiation [that] has already resulted in increased infant mortality and birth defects as well as increased incidence of cancer in adults." ¹ The trial court rejected appellants' offer of proof, and limited appellants' evidence to their own testimony of their reasons for committing the trespass. Appellant Anderson testified that he feared "a catastrophic accident at Shippingport" and was concerned about the health of the community, which he believed was jeopardized by the power plant....