# Commonwealth v. Berrigan > Supreme Court of Pennsylvania · December 3, 1987 · 369 Pa. Super. 145 URL: https://www.frixlaw.com/law-library/cases/9734053 ## Case - **Full name:** COMMONWEALTH of Pennsylvania v. Rev. Daniel BERRIGAN, S.J., Rev. Philip Berrigan, Sister Anne Montgomery, Elmer H. Maas, Rev. Carl Rabat, John Schuchardt, Dean Hammer, Molly Rush, Appellants - **Court:** Supreme Court of Pennsylvania - **Decided:** December 3, 1987 - **Citations:** 369 Pa. Super. 145; 535 A.2d 91; 1987 Pa. Super. LEXIS 9613 - **Precedential status:** Published - **Opinion:** Dissent by Brosky - **Judges:** Cavanaugh, Brosky, McEwen, Sole, Beck, Tamilia, Kelly, Popovich, Johnson, Consequently - **Cited by:** 25 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9734053 ## How later opinions describe it (automated extraction) - holding that while a judge need not have declared a mistrial where his bias never infected the jury, necessity required his recusal during sentencing to allow "one without hint of animosity toward appellant" to exercise such "largely unfettered ... discretion." ## Opinion text BROSKY, Judge, dissenting: I must respectfully dissent from the excellent majority opinion authored by my colleague, Judge Beck. While I feel that the majority thoroughly and correctly resolves most of the issues remaining for our determination, I can *177 not concur in the resolution of Issue (I) (D), pertaining to the trial court’s denial of certain challenges for cause. Appellants assert that the trial court erred in failing to excuse seven prospective jurors. Upon review of the record I find merit in appellants’ argument as to one prospective juror. It is well-settled law that a challenge for cause should be sustained in two types of situations: (1) where the juror indicates by his answers that he will not be an impartial juror; (2) where the juror has such a close relationship, familial, financial, or situational, with the parties, counsel, victims, or witnesses that the court will presume a likelihood of prejudice, irrespective of the answers given on voir dire. See Commonwealth v. Maxwell, 355 Pa.Super. 575, 585 , 513 A.2d 1382, 1387 (1986); see also Commonwealth v. Colson, 507 Pa. 440, 454 , 490 A.2d 811, 818 (1985). Appellants have contended that three panel members possessed such close ties to the “victim”, General Electric, that the trial court should have presumed them to be incapable of impartiality, under the second category. One of these three panel members was a stockholder in General Electric. It has been held in the civil context that a stockholder is incompetent to serve as a juror in a case in which the corporation has an interest. See Pennsylvania Power and Light Co. v. Gulf Oil Corp., 270 Pa.Super. 514 , 535 n. 23, 411 A.2d 1203 , 1214 n. 23 (1979), citing Seeherman v. Wilkes-Barre Co., 255 Pa. 11, 14 , 99 A. 174 (1916). Presumedly, it is the potential for an award in favor of, or against, the corporation in question, and the effect of that award on later shareholder dividends, that provides the “cause” for dismissal of a potential stockholder juror. However, I cannot find that the interest of the stockholder in the matter sub judice was too shadowy, remote, or contingent to provide a basis for presuming bias simply because the factual scenario has shifted to the criminal arena. Clearly, appellants have admitted that it was their intent to damage the bomb components in question, to bring *178 missile production at the King of Prussia plant to a grinding halt, and to impede the profit making activity of General Electric. I perceive no meaningful distinction between a potential juror threatened with diminished dividends in the event of an unfavorable civil verdict, and a potential juror who conceivably has already received diminished dividends as a result of the allegedly criminal behavior of the defendants before him. As such, despite the protests of the stockholder in question that any verdict in the matter sub judice would have a “minute” impact on her economic fortunes, I believe that the trial court should have presumed a likelihood of prejudice, irrespective of her assertions to the contrary. Appellants’ challenge for cause was improperly denied. As a result of the denial, appellants were forced to exhaust their peremptory challenges to eliminate a prospective juror who should have been excused for cause. This is reversible error, and a new trial should be granted for this reason. Commonwealth v. Stamm, 286 Pa.Super. 409 , 429 A.2d 4, 7 (1981), citing Commonwealth v. Jones, 477 Pa. 164, 168 , 383 A.2d 874, 876 (1978). TAMILIA, Judge, dissenting: I respectfully dissent. I fail to see how the majority can view the conduct of the trial court improper for sentencing purposes while not viewing the same conduct, which existed at the outset, of trial, and during trial, to be prejudicial in arriving at a verdict, when the court’s mental set and predilection, as outwardly manifested, were crucial to a fair trial. The majority would have it both ways in attempting to preserve the substance of the proceeding while disapproving of the disposition. There is no safe course of conduct for a trial judge, particularly in a widely publicized trial, other than avoiding contact with the media and refraining from expressing, publicly or privately, his personal belief concerning the character of the appellants or their strategy in defending their case. The appearance of impartiality is as important *179 as actual adherence to the cardinal rule of impartiality by which every judge must abide. The inconsistent and untenable approach by the majority is clearly evident in the majority Opinion at p. 171, which follows verbatim: After carefully considering the record as a whole, we conclude that one might reasonably question the impartiality of the trial judge in this case and that resentencing is in order. The judge’s comments both during and after trial indicate that he became emotionally involved in an acrimonious series of confrontations with the appellants. During the voir dire process, the judge was quoted in the New York times as having told a reporter that “[i]n any case of civil disobedience, the prosecutor, the judge, and the jury are put on trial.” N.T. Feb. 27, 1981 at 937. Throughout the trial, the judge and the appellants repeatedly accused one another of subverting justice, pandering to the press, and intentionally prejudicing jurors. See Commonwealth v. Berrigan, 325 Pa.Super. at 267-71, 472 A.2d at 1112-13. Moreover, between the time of the guilty verdict and the sentencing hearing, the judge revealed the intensity of his feelings in letters which he wrote to supporters of the appellants. In one letter, responding to a request by a documentary film maker for an interview, the judge said: ... I feel that to make a documentary of such an insignificant situation will make heroes of immature and intransigent people, enhancing their status and importance. Beck, J., p. 171 (footnotes omitted). While the majority clearly spells out the deficiencies of the trial judge before and during trial, it would limit its correction only to sentencing. In effect, the majority holds it is proper for a judge to become emotionally involved, intemperate and to exhibit bias during a trial, but the only remedy for a possibly tainted result is to assure an impartial sentencing. This glaring contradiction is impermissible and we would be shirking our duty to permit the conduct at *180 a trial to stand when that same conduct requires us to vacate sentence and require a resentence by a new and impartial judge. The irony of this case is that on all of the substantive issues, I believe the Commonwealth has prevailed. Yet, it was for an impartial jury to determine under the direction of at least an outwardly unbiased judge. I do not believe the appellants have established a defense that will stand scrutiny under the law. It is unfortunate the conduct of the trial judge is such that appellants can rightfully question their having received a fair trial. Unquestionably, this type of trial is excruciatingly difficult for all concerned and the key to its successful completion is a temperate judge who is able to remain above the affray and aloof from media and other considerations which might draw him into it. Unquestionably, the trial judge is an extremely competent and capable person; but in this instance, his involvement, as summarized by the majority above, requires a new trial. I would vacate the sentence and remand for a new trial before a different judge. CAVANAUGH and KELLY, JJ., join. KELLY, Judge, dissenting statement: I join Judge Tamilia’s dissent. I would add to his analysis, briefly, as follows. In Uram v. American Steel and Wire Co., 379 Pa. 375 , 108 A.2d 912 (1954), Justice Musmanno eloquently explained: Every judge, being human, can become angry, but every judge, being educated and conscientious, must know how to control his temper so that his wrath may not become the smoke of reason evaporating in the fires of personal controversy. Judicial equanimity is not so rare an article that it must be used parsimoniously during a trial. Particularly must a judge know how to bridle indignation and resentment in the presence of the jury because a jury is *181 only too ready to ride any steed of emotion which the judge startles, urges, or spurs into action. The jury regards the judge as the epitome of wisdom, the apogee of forbearance, the ultimate in propriety and the zenith of impartiality. Any fulmination, therefore, from the bench which strikes at a party litigant, witness, or lawyer may easily be interpreted by the jury as the thunderbolt of aroused justice, and, from that moment, the target of the judge’s Olympian rage can not expect an uninfluenced appraisement from the jury. Most often the display of ire from the bench has no bearing at all on the issue up for adjudication but the jury is not informed that they must ignore the high temper as they would ignore a high wind touching the roof of the courthouse. The spectacles through which the Judge sees a case are usually taken over by the jury when they come to view the entire litigation in the privacy of the jury deliberating room. It may be that the plaintiff was not in justice and law entitled to a verdict, but it is not apparent in the record that he was allowed a fair and full opportunity to demonstrate whether he was or not. What was said in Commonwealth v. Myma, 278 Pa. 505, 508 , 123 A. 486, 487 , may well be repeated here: The practice of a judge entering into the trial of a case as an advocate is emphatically disapproved. The judge occupies an exalted and dignified position; he is the one person to whom the jury, with rare exceptions, looks for guidance, and from whom the litigants expect absolute impartiality. An expression indicative of favor or condemnation is quickly reflected in the jury box and at the counsel table. To depart from the clear line of duty through questions, expressions, or conduct, contravenes the orderly administration of justice. It has a tendency to take from one of the parties the right to a fair and impartial trial, as guaranteed under our system of jurisprudence. *182 108 A.2d at 915, 220 (Musmanno, J., dissenting). I find these sentiments applicable to the instant case. I agree with Judge Tamilia’s analysis and his conclusion that appellants were denied a fair trial and that this case should be remanded for a new trial before a different judge. I especially note my agreement with Judge Tamilia’s observation that: The irony of this case is that on all of the substantive issues, I believe the Commonwealth has prevailed. Yet it was for an impartial jury to determine under the direction of at least an outwardly unbiased judge. Dissent, supra, 369 Pa.Super. at 180, 535 A.2d at 109 (per Tamilia, J.). A more cogent expression of my precise sentiments I could not have hoped for. Consequently, I respectfully dissent, and join the dissent by Judge TAMILIA. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9734053. Public record. Not legal advice.