DocketNumber： 102 E.D. Appeal Docket 1984
Judges： Flaherty, Hutchinson, Larsen, McDERMOTT, Nix, Papadakos, Zappala
Filed Date： 11/22/1985
Status： Precedential
Modified Date： 10/19/2024
OPINION OF THE COURT
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,
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,
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.
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, Bro-sky, 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
We now reverse and order reinstatement of the sentences.
JUSTIFICATION DEFENSE
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
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 subjudice, 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
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
VOIR DIRE PROCEEDINGS
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. 501, 104 S.Ct. 819, 78 L.Ed.2d 629, 52 U.S.L.W. 4113 (1984). We find such reliance inappropriate.
The entire voir dire was conducted over a five day period. To place the issue in proper perspective, we must first paint a backdrop against which the events unfolded during this five day period. We know that the conduct of the defendants which culminated in their arrest and brought them before the bar of justice had evoked great public interest, pro and con. Media had kindled public debate by extensive coverage and with publicized interviews of the participants.
Protagonists and antagonists had gathered outside the courthouse necessitating the establishment of police lines through which prospective jurors had to pass to enter the courthouse in safety. An aura of intimidation was prevalent.
Because of the large number of participants the trial would entail, the trial judge moved the proceedings into a large courtroom which apparently doubled for other contemporaneously held legal activities. As the trial judge
Appellees, themselves, brought to the attention of the trial judge that a multitude of demonstrators or people had gathered on the steps outside the courthouse. Appellees feared that this scene could be extremely intimidating upon prospective jurors who had to pass through these lines to gain entrance into the courthouse.
Extremely disturbing incidents were occurring in front of the courthouse among police, demonstrators, and visitors. The police were having a difficult time controlling the people. On one occasion some fifteen (15) persons were arrested on charges of disorderly conduct. It was reported to the trial judge that a press person had been violently handled and his camera seized and thrown to the floor of a car.
And the Appellees, understandably agitated from the events that were swirling about them, were having difficulty comporting themselves in the quiet, dignified, and measured manner which is essential to the conduct of a fair and impartial trial in our courts. They often allowed themselves to become disorderly and tumultuous. They repeatedly disrupted the proceedings by walkouts, demonstrations, singing, refusal to acknowledge the court, physical acts of defiance, persistant disregard of court rulings and verbal attacks upon prospective jurors. When spectators were in the courtroom, they, too, joined in the tumultuous and anarchistic behavior of the Appellees.
Expressing the various, and sometimes conflicting, rights which emanate from the guarantee of a public trial, the trial judge exercised his discretion in a balancing test and limited access to the courtroom during voir dire. All members of the press, without limitation as to numbers, were freely admitted. In fact, more than one row had to be used to accommodate them all. Court attendants, including a court
On the first day of voir dire, a panel of forty (40) jurors was brought into the courtroom to be seated. Clearly, there was not sufficient room to accommodate spectators and they were properly excluded. However, when the selection process became burdened with the conduct of Appellees and the panel itself, the trial judge dismissed the entire panel as having become contaminated and thereafter conducted the voir dire with groups of four prospective jurors at a time.
The first day of voir dire found the courtroom crowded and unruly. Appellees were interrupting each other in questioning the panel and arguing with the court. Appellees complained “there was so much chattering among the people yesterday that we felt was extremely hostile, and they kept really talking to one another, and infecting one another.”
On the next four days of voir dire, since a clear and present danger to the peace and tranquillity of the courtroom existed, which danger could adversely affect the proceedings by intimidating prospective jurors, thus denying Appellees the selection of a fair and impartial jury, the trial judge again exercised his discretion and limited access to the proceedings to all persons except those members of the general public who would attend as mere spectators. Surely the evidence was sufficient for any reasonable person to conclude that these spectators seeking access to the proceedings would be none other than those same persons who
Under the circumstances of this case, did the trial court commit reversible error in excluding members of the general public from the voir dire proceedings? We believe not.
The right to a public trial, as guaranteed in our state
It has been established already that the First Amendment to the Federal Constitution is broad enough to encompass the right of access to criminal trials to the public and media, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed. 973 (1980), and that this right of access extends to voir dire examinations of potential jurors. Press-Enterprise Company v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629, 52 U.S.L.W. 4113 (1984).
The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known.
A trial judge may impose restrictions to maintain the integrity of the proceedings in the courtroom. The United States Supreme Court held in both Press-Enterprise, id., and Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 581, n. 18, 100 S.Ct. at 2830 that a trial judge may “in the
The Supreme Court went on to state the standard for such limitation of access:
The question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge ... the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places. (Quoting Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941)).
In the present case, it is clear that “the opportunities for the communication of thought and the discussion of public questions” were not abridged at all. A stenographic record was made which, itself, is a matter of public record. The record indicates that the eight Defendants made speeches and gave interviews to the media after each court session. In addition, a large number of the press actually attended the entire trial, including all of the voir dire. Thus, the public perception of an open trial was never threatened. The public was able to read newspaper reports and listen to radio reports of the trial and they were able to see the Defendants airing their views on television. No information was concealed from the public.
This fact alone distinguishes the present case from the Press-Enterprise case in which the trial judge lowered an impenetrable canopy of secrecy over the six week long voir dire proceedings for the sole purpose of safeguarding the privacy interests of jurors. The United States Supreme Court disapproved because:
The judge at this trial closed an incredible six weeks of voir dire without considering detriments to closure. Later the court declined to release a transcript of the voir dire even while stating that “most of the information” in the transcript was “dull and boring,” supra, at - [104 S.Ct. at 821]. Those parts of the transcript reasonably entitled to privacy could have been sealed without such a*131 sweeping order. A trial judge should explain why the material is entitled to privacy.
The trial judge should seal only such parts of the transcript as necessary to preserve the anonymity of the individuals sought to be protected. Press Enterprise, 464 U.S. 501, at, 78 L.Ed.2d 629 at 640, 104 S.Ct. 819, at 826 (1984).
Moreover, we believe that the need to keep juries free from outside influences by sequestering them, sometimes overnight in a hotel, and finally locking them behind the closed doors of the jury room is well understood and appreciated by the public in a free society such as ours.
By the same reasoning, the Defendants were not prejudiced by the court’s limited restriction on spectators.
The trial court denied access to spectators during the entire voir dire proceedings of some (5) days, but permitted media representatives to attend, and directed that the entire
That record indicates that on the first day of jury selection, the court cleared the courtroom of public spectators to permit a panel of forty (40) jurors to be seated in the courtroom for questioning. Since the courtroom was not large enough to accommodate both spectators and the jury panel, the court’s action in removing the spectators was reasonable in the interest of the fair administration of justice and must be affirmed.
On the second day of jury selection, the trial court directed that the panels be brought in four (4) persons at a time, because handling the full panel of forty (40) prospective jurors proved unworkable. The denial of access to the court proceedings for spectators continued, however, because the trial court felt that the orderly ushering, questioning, and removal of four (4) person panels would be hampered by the presence of a packed courtroom.
We glean from the record that the courtroom was limited in size, that the number of spectators exceeded the seating capacity of the courtroom, and that the spectators who wished to observe these proceedings could intimidate prospective jurors as they were brought in and out of the courtroom, because of the spectators’ number and particular bias for or against Appellees.
We note that during the entire jury selection process and trial, supporters of Appellees stationed themselves outside the courthouse, and blocked access to the building and surrounding streets while demonstrating, singing, yelling, and waving placards and banners. Supporters and news media representatives also blocked the halls of the courthouse, impeding access into and out of the courtroom. Given the physical layout of the courtroom and atmosphere surrounding the proceedings, we cannot say that the trial court erred in limiting public access during the voir dire proceedings.
Ultimately, the determination of whether to exclude spectators, as well as the determination of the scope and duration of an exclusion order, must be left to the sound discretion of the trial court because it alone is sufficiently close to the circumstances to apprehend fully the subtleties that may be present. Thus, only if a trial court abused its discretion in issuing an exclusion order or in fashioning the order will reversible error be found on appeal. Commonwealth v. Knight, 469 Pa. 57, 66, 364 A.2d 902, 906-07 (1976).
Accordingly, trial judges are vested with broad discretion in setting and enforcing the standards of proper conduct for all those who seek to attend judicial proceedings before them. We should not be hasty to reverse a trial judge’s actions in establishing order in his courtroom, unless his actions are not designed to maintain dignity, order, and decorum, and instead deny or abridge unwarrantedly the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places. Cox.
There is no question that under certain circumstances obstreperous defendants may be ejected from a courtroom during the course of the trial, even though the Sixth Amendment of the Federal Constitution guarantees the right of a defendant to be present in the courtroom at every stage of his trial and to be confronted with witnesses against him. Allen. Similarly, unmanageable, boisterous, disrespectful, or disruptive members of the public who wish to attend a criminal court proceeding can be barred to guarantee the orderly administration of justice. The public’s right to attend a trial is not absolute, and exists as a guarantee of fairness in judicial conduct during criminal court proceedings.
In the case before us, the number of potential jurors (over 100) and the manner in which they had to be ushered into and out of the courtroom required the court to impose access restrictions to maintain order in the proceedings and insure that the process would not be unnecessarily delayed. The restriction was reasonable, under the circumstances, because it was fashioned in response to the problem of handling the selection of jurors in front of a large unmanageable crowd that could intimidate by its size, chattering,
B. Individual Voir Dire
Appellant also argues that Superior Court erred in ruling that the trial court erred in not considering an individual voir dire examination of prospective jurors. We agree. Our Rules provide that in non-capital cases the trial court is vested with discretion in the method by which the voir dire examination shall be conducted.
In this case, the trial court chose, on the first day of voir dire, to examine a panel of forty prospective jurors within the hearing of each other, and permitted active questioning of the prospective jurors by all defendants. That panel was dismissed because one of the Appellees raised a challenge for cause and exposed the panel to a prejudicial discussion between the court, advisory counsel, and the Appellees.
The decision to question four prospective jurors at a time was well within the trial court’s discretion and we perceive no abuse of discretion in so deciding, based on óur review of the record. Superior Court’s conclusion that individual voir dire questioning was required because of prejudicial pre-trial publicity is simply not supported in the record. To be sure, there was extensive pre-trial publicity surrounding this case, but there is nothing in this record which demonstrates that the publicity was derogatory or prejudicial to the Appellees or their cause. In fact, Appellees never preserved for the record in their appeal to Superior Court the nature and extent of the publicity in the form of exhibits, other than some interviews in the New York Times. Rather, Appellees have improperly attempted to augment the record by including in the Brief allegations of specific incidents of publicity which were not presented to the trial court. “Alleging facts in a brief which a trial court has not passed on has been specifically condemned, In re: Legislative Route 1018, 422 Pa. 594, 222 A.2d 906 (1966); McCaffrey v. Pittsburgh Athletic Association, 448 Pa. 151, 293 A.2d 51 (1972); Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974), and we continue to view such practice as improper.” Reilly, et al v. SEPTA, 507 Pa. 204, 489 A.2d 1291 (1985).
The record before us reveals that most prospective jurors had heard or read about this case. The record also reveals that Appellees never once complained about the extent or content of the publicity they were generating. The record further reveals that most prospective jurors affirmed that they would be able to judge the Appellees fairly based on the evidence presented at trial.
Since the Appellees entered these proceedings admitting their criminal conduct but seeking only to justify same under our statutes permitting justification as a defense, we do not find that the answers given by prospective jurors tainted other prospective jurors who heard the answers. “It is sufficient if a juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Ivin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).
Our review of the record reveals no abuse of discretion in questioning four prospective jurors at a time, or in the manner the questioning was conducted. We are satisfied that a competent, fair, impartial, and unprejudiced jury was selected. Commonwealth v. Futch, 469 Pa. 422, 366 A.2d 246 (1976).
Reversed. Judgments of Sentence Reinstated.
. 18 Pa.C.S. § 3502.
. 18 Pa.C.S. § 3304.
. 18 Pa.C.S. § 903.
. 18 Pa.C.S. § 510.
. We also note that since the manufacture of shell casings for nuclear warheads is legal conduct, (see Model Penal Code comment LT.D. No. 8, pp. 1-2), it is the type of conduct to which the Legislature has spoken in excluding the justification defense. 18 Pa.C.S. § 510(2). This is in keeping with the general proposition that the justification defense is aimed at stopping perceived illegal conduct, not legal conduct. See Atomic Energy Act of 1954, 42 U.S.C. § 2011, et seq.
. N.T. 2/24/81 at p. 119, statement of Philip Berrigan.
. Article I, § 9, Pennsylvania Constitution.
. First and Sixth Amendments, Constitution of the United States.
. We note that Press-Enterprise does not apply to the Defendant’s public trial rights. In that case, the majority noted:
... the question we address — whether the voir dire process must be open — focuses on First, rather than Fifth, Amendment values and the historical backdrop against which the First Amendment was enacted. 464 U.S. 501, at 517, n. 8, 104 S.Ct. 819, at 828, 78 L.E.d.2d 629, at n. 8 (1984).
Mr. Justice Stevens, in his concurring opinion in Press-Enterprise, noted that:
If the defendant had advanced a claim that his Sixth Amendment right to a public trial was violated by the closure of the voir dire, it would be important to determine whether the selection of the jury was a part of the "trial" within the meaning of that Amendment. But the distinction between trials and other proceedings is not necessarily dispositive, or even important, in evaluating the First Amendment issues. 464 U.S. at 501, 104 S.Ct. 819, at 827-28, 78 L.Ed.2d 629, at 642 (1984).
. In his dissent, Mr. Justice Flaherty states that, "In Commonwealth v. Contakos, 499 Pa. 340, 453 A.2d 578 (1982), this Court clearly held that ... it is improper to exclude the public from a segment of a criminal trial.” (Emphasis added.) Messrs. Justice Flaherty and Larsen were then, and still now, are welded to this impractical view. Mr. Justice Nix (now Chief Justice) decried this "absolute and .inflexible rule" in his dissent in which Mr. Justice Hutchinson joined. Mr. Justice Roberts, joined by Mr. Chief Justice O’Brien, in a concurring opinion, rejected this view and determined that Contakos was denied a fair trial and not his right to a public trial "because the sudden exclusion of the public from appellant’s trial during the testimony of the Commonwealth's chief witness may well have served to prejudice the jury against appellant, justice requires that appellant be granted a new trial." Mr. Justice Roberts and Mr. Chief Justice O’Brien expressed absolutely no concern over the fact of an absent public.
Mr. Justice McDermott, in a clarifying dissent, explained the author’s work as follows: “Fortunately, the majority has confined its attention to the facts of this case and has not exalted the mandate into an all-encompassing rubric that suffers no exception. For, indeed, there are exceptions as this Court so plainly stated in Commonwealth v. Knight, 469 Pa. 57, 364 A.2d 902, 904 (1976).”
Contakos does not stand for the implacable view that "... it is improper to exclude the public from a segment of a criminal trial." It very simply applies Knight and finds that the trial court did not exercise sound discretion in excluding the spectators during the testimony of a witness and, thus, denied the defendant therein a fair trial.
Just as the Court in Contakos examined the soundness of the discretion of the trial court and found it wanting, so, too, do we examine the soundness of the discretion of Judge Salus in this case and find it appropriate.
. Pennsylvania Rule of Criminal Procedure 1106 provides in pertinent part:
Examination and Challenges of Trial Jurors
(a) Voir dire of prospective trial jurors and prospective alternate jurors shall be conducted, and the jurors shall be selected, in the presence of a judge.
(e) In non-capital cases, the trial judge shall select one of the following alternative methods of voir dire, which shall apply to the selection of both jurors and alternatives.
(1) Individual Voir Dire and Challenge System
(a) Voir dire of prospective jurors shall be conducted individually and may be conducted beyond the hearing and presence of other jurors.
(2) List System of Challenges
(a) A list of prospective jurors shall be prepared. The list shall contain a sufficient number of prospective jurors to total at least twelve, plus the number of alternates to be selected, plus the total number of peremptory challenges (including alternates).
(b) Prospective jurors may be examined collectively or individually, regarding their qualifications. If the jurors are examined individually, the examination may be conducted beyond the hearing and presence of other jurors.