Petition for Writ of Certiorari — Markum v. Pennsylvania

Supreme Court, U.S.

0 FILED

88-1218 JAN 18 1989

JOSEPH F. SPANIOL, JR.

IN THE

Supreme Court of the Uniter States

No.

ROLAND MARKUM. et al..

Petitioners.

-against-

COMMONWEALTH OF PENNSYLVANIA.

Respondent.

PETITION FOR WRIT OF CERTIORARI

On Petition for Writ of Certiorari

to the Supreme Court of Pennsylvania.

Eastern District

SAMUEL C. STRETTON

Co-counsel for Petitioners

301 S. High Street

P.O. Box 3231

West Chester. PA 19381

(215) 696-4243

A. LAWRENCE WASHBURN, JR.

Co-counsel for Petitioners

41 State Street (S. 611)

Albany. N.Y. 12207

Dated: Albany. N.Y. (318) 434-0756

January 18. 1989

vem ess “ . ne Ce a er ett or ae eer tw Det uted

QUESTIONS PRESENTED

1. Isa Defendant in a criminal action deprived of due process

of law and of a fair trial when the trial court denies his right to

submit evidence to the jury in support of his affirmative defense

of justification?

2. Does Roe v. Wade. 410 U.S. 113 (1973) continue to command

a majority of this Court?

ii

TABLE OF CONTENTS

Questions Presented

Table of Contents

Table of Cases

Jurisdiction

Opinions Below

Statutes Involved

Statement of the Case

Reasons for Granting the Writ

Conclusion

APPENDIX

Certificate Denying Leave

Judgment. Superior Court of

Pennsylvania

Opinions in the Superior Court

of Pennsylvania

Opinion of the Trial Judge in

the Court of Common Pleas of

Philadelphia

iil

a Al

2a

3a

4a

24a

ill

TABLE OF CASES

Akron v. Akron Center for Reproductive Health,

SRE tL SOR time: i icteinx ters Re: eee ena ba ork ds

ee, ee OE waned ene

Sandstrom v. Montana, 442 U.S. 510 (1979) .............

Thornburgh v. American College of Obstetricians

and Gynecologists. 106 S.Ct. 2169 (1986). ...............

Webster v. Reproductive Health Services,

Doc. No. 88-605. cert granted 1/9/89 ..................

TABLE OF AUTHORITIES

Wharton's Criminal Evidence (13th ed.. 1972) ............

1

IN THE

Supreme Court of the United States

October Term, 1988

No.

ROLAND MARKUM. et al..

Petitioners.

-against-

COMMONWEALTH OF PENNSYLVANIA.

Respondent.

PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME

COURT OF PENNSYLVANIA

Petitioners. Roland Markum. John O'Brien, Howard Walton.

Susan Silcox. Kathy Long. Ellen Jones. Anne Marie Breen.

Henry Tenagolio. Joseph Wall and Walter Gies. respectfully

pray that a Writ of Certiorari issue to review the judgment of the

Supreme Court of Pennsylvania. entered on October 20, 1988.

ernie

2

JURISDICTION

The Order endorsed on the petitioners’ Petition for Allowance

of Appeal in the Supreme Court of Pennsylvania was entered

October 20, 1988 (2a). The jurisdiction of this Court rests on 28

U.S.C. 1257(3). The time in which to file this petition has been

extended to and including January 18, 1989. (Application No.

A-488)

OPINIONS BELOW

There was no opinion in the Supreme Court of Pennsylvania.

The majority and two minority opinions in the Superior Court of

Pennsylvania are reproduced in the Appendix and have been

published at 54] A2d 347. The opinion of the Trial Judge in the

Court of Common Pleas of Philadelphia has been reproduced in

the Appendix.

STATUTE INVOLVED

The Pennsylvania statute governing the criminal defense of

justification, 18 Pa.C.S., Sections 501 to 510, reads in pertinent

part as follows:

Sectien 503 * * *

(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.

3

STATEMENT OF THE CASE

Petitioners are peaceful’ demonstrators who sought to confront

the federal constitutional vacuum in the legal protection of

human life. They did so at an abortion clinic, Northeast Women’s

Center. Philadelphia. PA. the type of facility where most abortions

are performed nationally. The demonstration occurred on August

10, 1985.

The demonstrators refused to leave the abortion clinic when

ordered to do so and were arrested by the Philadelphia police.

Each of the petitioners was charged. inter alia, with the crime of

Defiant Trespass.

At their trial before a jury. petitioners’ interposed a common

defense of justification. In accordance with Pennsylvania criminal

procedure, the testimony in support of the defense was heard in

the first instance by the trial court outside the presence of the

jury. After hearing testimony on the record (Tr. 9/25/86, pp.

143-178). the trial court excluded petitioners evidence in support

of their defense of justification under the Pennsylvania statute,

18 Pa.C.S.. Section 503 (see STATUTE INVOLVED).

The justification testimony sought to be introduced at their

jury trial by petitioners consisted of medical expert evidence

concerning the advances in medical technology described

generally in Justice O'Connor's dissenting opinion in Akron vs.

Akron Center for Reproductive Health. 462 U.S. 416, 456-458

(1983). Outside the presence of the jury. George Isajiw, M.D..

petitioners medical expert. testified that viability outside the

womb has moved backward so that premature children now

survive when born in the 19th week after conception. (Tr.,

9/25/86, pp. 166-167). Justice O'Connor's dissenting opinion,

supra. was cited in the dissenting opinion of Judge Tamilia in the

Superior Court of Pennsylvania.

Each petitioner was convicted of the crime of Defiant Trespass

but was acquitted of ali other charges.

' Although petitioners were charged with other crimes. they were convicted

by the jury only of the crime of “Defiant Trespass”. consisting of a refusal to

leave the clinic when ordered to do so.

? Petitioners Henry Tenaglio and Joseph Wall were tried at a bench trial

before the same Trial Judge in which the jury trial testimony was stipulated into

evidence.

4

REASONS FOR GRANTING THE WRIT

After fifteen years of seeking, by all lawful means, to bring this

Court's decision in Roe v. Wade, 410 U.S. 113 (1973) before

Congress for a vote, or before this Court for reconsideration,

thousands of law abiding citizens are now engaging in heightened

demonstrations or “rescues” at abortion clinics throughout the

United States. The demonstration conducted by petitioners on

August 10, 1985, was typical of the demonstrations now occurring

nationwide in that the “rescuers” sought to prevent scheduled

abortions from being performed at a single abortion clinic on a

single day by engaging in conduct for which they knew they

would be arrested. Each demonstrator knew that his or her

conduct would otherwise be criminal except for the defense of

justification sought to be interposed in this case. By interposing

that defense, petitioners hoped to provide a case in which this

Court will have an opportunity to reconsider Roe v. Wade. (See

Terry v. New York, Doc. No. 87-110. cert den. }

As noted in Jerr v. New York, it has been publicly known

since 1986 that at least four of the Justices of this Court have

voted in favor of reconsidering Roe v. Wade. See Thornburgh \.

American College of Obstetricians and Gynecologists, 106 S.Ct.

2169. 2190-2192 (1986). More recently, Webster v. Reproductive

Health Services. No. 88-605, this Court granted cert. in a case in

which the Solicitor General of the United States again suggested

such reconsideration. The case at bar also presents an opportunity

for this Court to reconsider Roe v. Wade, an event which has

been anticipated by the American public for some time.

A further reason for granting the writ involves an important

question of criminal procedure implicating the right to a fair trial

under the Due Process Clause of the Fourteenth Amendment in

the context of public interest protest activity.

Evidence negativing criminal intent. when intent is an essential

element of the crime charged, is always admissible and therefore

available as a defense. See Wharton's Criminal Evidence (13th

ed.. 1972). Section 168, p. 313, text at note 70.

Criminal due process requires that the trial court instruct the

jury that intent, when it is an essential element, must be proved

Cr

beyond a reasonable doubt and to adequately make clear in the

charge to the jury that defenses relating to an essential element

of intent must be disproved beyond a reasonable doubt by the

prosecution. Sandstrom v. Montana, 442 U.S. 510 (1979). A fortiori.

a defense of justification, which negatives the essential element

of intent in the crime of trespass. is constitutionally required to

be presented to the jury.

CONCLUSION

For all of the foregoing reasons. a Writ of Certiorari

should issue to review the judgment of the Supreme Court of

Pennsylvania.

Dated: Albany. N.Y.

January 18. 19&9

Respectfully submitted.

BA JILL

SAMUEL C. STRETTON

Co-counsel for Petitioners

301 S. High Street

P.O. Box 3231

West Chester. PA 19381

(215) 696-4243

fo doanrer Makbef

A. LAWRENCE WASHBURN, JR.

Co-counsel for Petitioners

41 State Street (S. 611)

Albany. N.Y. 12207

(518) 434-0756

CERTIFICATE OF SERVICE

A. LAWRENCE WASHBURN, JR., a member of the bar of

this Court, hereby certifies that three (3) true copies of the

within Petition for Certiorari has been served by regular U.S.

mail upon opposing counsel:

RONALD EISENBERG, ESQ.

Assistant District Attorney

1421 Arch Street

Philadelphia, PA 19102

(215) MU6-5730

and that all parties required by the Rules of this Court to be

served have been served.

Dated: Albany, N.Y.

January 18, 1989

A. LAWRENCE WASHBURN, JR.

Attorney at Law. State of New York

Co-counsel for Petitioners

41 State Street (S. 611)

Albany, N.Y. 12207

(518) 434-0756

la

)

APPENDIX

2a

Supreme Court of Pennsylvania

Eastern District

October 21, 1988

Samuel C. Stretton, Esquire

301 South High Street

P.O. Box 3231

West Chester, Pennsylvania 19381

RE: Commonwealth of Pennsylvania v. Roland Markum, etal

No. 511 E.D. Allocatur Docket 1988

Dear Mr. Stretton:

This is to advise you that the following order has been endorsed

on your Petition for Allowance of Appeal. filed in the above-

captioned matter:

“October 20, 1988.

Petition denied.

Per Curiam:

Very truly yours,

/s/

PATRICK TASSOS

Deputy Prothonotary

/aw

cc: Ronald Eisenberg. Esquire

3a

Exhibit “B™

COMMONWEALTH OF IN THE SUPERIOR COURT

PENNSYLVANIA OF PENNSYLVANIA

¥.

ROLAND MARKUM.

JOHN O'BRIEN,

HOWARD WALTON.

SUSAN SILCOX.

KATHY LONG, ELLEN

JONES. AND ANNE

MARIE BREEN.

Appellants No. 03154 Philadelphia 1986

COMMONWEALTH OF IN THE SUPERIOR COURT

PENNSYLVANIA OF PENNSYLVANIA

V.

HENRY TENAGLIO and

JOSEPH WALL

Appellants No. 03155 Philadelphia 1986

COMMONWEALTH OF IN THE SUPERIOR COURT

PENNSYLVANIA OF PENNSYLVANIA

ee

WALTER GIES.

Appellant No. 03387 Philadelphia 1986

JUDGMENT

ON CONSIDERATION WHEREOF. it is now here ordered

and adjudged by this Court that the judgment of the Court of

Common Pleas of PHILADELPHIA County be, and the same

is hereby AFFIRMED.

BY THE COURT:

PROTHONOTARY

Dated: MAY 2. 1988

COMMONWEALTH OF

PENNSYLVANIA

Vv.

ROLAND MARKUM,

JOHN O'BRIEN,

HOWARD WALTON,

SUSAN SILCOX.

KATHY LONG, ELLEN

JONES, AND ANNE

MARIE BREEN,

Appellants

COMMONWEALTH OF

PENNSYLVANIA

Ys

HENRY TENAGLIO and

JOSEPH WALL

Appellants

COMMONWEALTH OF

PENNSYLVANIA

Vv.

WALTER GIES.

Appellant

4a

IN THE SUPERIOR COURT

OF PENNSYLVANIA

No. 03154 Philadelphia 1986

IN THE SUPERIOR COURT

OF PENNSYLVANIA

No. 03155 Philadelphia 1986

IN THE SUPERIOR COURT

OF PENNSYLVANIA

No. 03387 Philadelphia 1986

Appeal from the Judgment of Sentence November 6, 1986

in the Court of Common Pleas of Philadelphia County.

Criminal No. 477-482 and 645 January Term, 1986, 647 Jan.

86 & 3160 Feb. 86.

Before: CIRILLO. P.J.. McCEWEN and TAMILIA, JJ.

OPINION BY CIRILLO, P.J.:

Filed May 2, 1988

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

=

Ja

County following their conviction for defiant trespass.’ 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 appeilants to present the defense of

justification to the jury.

In Pennsylvania, the defense of justification is grounded in

' These appeals were consolidated by orders dated December 29. 1986. and

January 27. 1987.

6a

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 évits-— 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 negli-

gence, 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:

|

7a

(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 vy.

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

requirementsof§503andthattheyshouldhave beenabletopresent

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.

8a

Capitolo 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.” /d.

In Berrigan, the Berrigan brothers and six others entered the

General Electric 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 pubic disaster.

Berrigan 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.

9a

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 . . * Jd.

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 (1973). The Berrigan mandate that a justification

defense may not be raised if the asserted “harm” is legal is not

dependant upon whether such conduct has been made legal

through legislative choice or judicial fiat. We live in a society of

laws and no individual is entitled to raise himself above the law.

We are each bound by the law no matter its source. Were we free

to pick and choose which laws we wished to obey, the result

would be a society of strife and chaos. Therefore, even if the

legislature had not made a clear choice regarding abortion, the

justification defense would be unavailable because abortion is

lawful by virtue of the United States Constitution. Certainly.

justification may not be asserted as a grounds for interference

with a person's right to free speech even though that right has not

been legislatively approved. Free speech has been constitutionally

approved. as has a woman's right to abortion. Democracy allows

the citizenry to protest laws of which they disapprove. But they

must nonetheless obey such laws or face the legal consequences.

To allow the defense of justification to those who willingly and

intentionally break the law would encourage criminality cloaked

in the guise of consciense.

As the Capitolo-Berrigan test makes clear. there must be a

threat of an imminent and public disaster. Appellants’ offer of

proof was insufficient as a matter of law to satisfy this four-part

test. The use of justification as a defense could be precluded on

this ground alone, regardless of the fact that abortion is legally

sanctioned.

Appellants wish to produce testimony to establish that life

begins at conception. They wish to show scientifically that a

10a

fetus as young as eight weeks of age as measurable brain-wave

activity. Because Pennsylvania’s Declaration of Death Act, 35

Pa. C.S. §§10201-10203, provides that death occurs when all

brain activity ceases, appellants assert that their evidence would

demonstrate that abortion is the taking of a human life, and

hence, a “public disaster’” They also claim that the disaster was

imminent, not speculative, and that their actions were effective

in averting the disaster. Finally, they assert that there was no

legal alternative for their actions.

Appellants first argument, that abortion constitutes a public

disaster, fails. As we have noted, pre-viability abortion is lawful

by virtue of state statute and federal constitutional law. The

United States Supreme Court, from Roe through its progeny.

has consistently held that the state's interest in protecting fetal

life does not become compelling, and cannot infringe on a

woman's right to choose abortion, until the fetus is viable. Roe at

163-164. Appellants do not suggest that viability and conception

are simultaneous occurrences. We find that a legally sanctioned

activity cannot be termed a public disaster.

Appellants second argument, that the disaster was imminent

and that their actions were effective in averting it, similarly must

fail. It is unreasonable for appellants to believe that their brief

occupation of one center would effectively put an end to the

practice of abortion. Appellants’ occupation of the Women's

Center did not stop its operation. Legal abortions continued to

be performed in the Center and were available in other medical

facilities throughout Pennsylvania.

Appellants third contention, that there was no legal alternative

to their actions, is misguided. As Judge Poserina noted. “|t}here

are obviously numerous means in a democratic society to express

a point of view or to attempt to prevent a perceived harm without

resorting to criminal behavior: Appellants were free to peacefully

demonstrate outside of the center in an effort to prevent the

harm that they perceived from occurring.

Finally, appellants’ offer of proof was insufficient to show that

no legislative purpose exists to exclude the justification defense.

nor could they, because Pennsylvania law is to the contrary. The

Abortion Control Act specifically provides that “|i]n every relevant

civil and criminal proceeding in which it is possible to do so

-

ge ed Leis CN NP

lla

without violating the Federal Constitution. the common and

statutory law of Pennsylvania shall be construed to extend to the

unborn the equal protection of the laws . . ” 18 Pa. C.S. §3202(c)

(emphasis ours). Clearly, to permit private citizens the right to

prevent women from exercising their right to abortion would be

a violation of both state statute and federal constitutional law.

As in Berrigan. appellants in the instant case were trying to

halt legal conduct. It has been suggested that the justification

defense might lie where appellants can show that the conduct

which they attempted to halt was illegal. However, even if illegal

conduct could be proven. and appellants’ offer of proof contained

no allegations that the Northeast Women’s Center was engaging

in other than legal abortions. the Capitolo-Berrigan test would

prohibit the use of the defense if there were other legal alternatives

for abating the harm. Because the Pennsylvania Abortion Control

Act specifically prescribes post-viability abortion (with narrow

exceptions), any public disaster that such abortions present can

be adequately controlled by law enforcement personnel. See 13

Pa. C.S. §3201(a). Therefore. any claim of justification under

$510 will fail according to the supreme court mandate in Berrigan.

Appellants cannot use unlawful means in an effort to stop lawful

behavior, no matter how morally reprehensible they feel that

behavior to be. “|T|respassing on private property ... is not

legally justified by philosophical disagreement. (The justification

defense) does not condone . . . ad hoc self help which forebodes

legal chaos.” Capito/lo at 381. 498 A.2d at 810.

The appellants are actually requesting that this court

countenance civil disobedience. which is defined as:

A form of lawbreaking employed to demonstrate the injustice

or unfairness of a particular law and indulged in deliberately

to focus attention on the allegedly undesirable law.

Black’s Law Dictionary 223 (1st ed. 1979).

Though. our nation has a long and proud history of civil

disobedience, appellants are not in that tradition. From the

Boston Tea Party to the abolitionists to conscientious objectors

to the sit-ins of Martin Luther King. civil disobedience has often

stirred our nation’s collective conscience and spurred us to

change or repeal unjust laws. Often. juries refused to convict

good men of conscience whose love of justice had motivated

12a

them to violate the law. On some occasions, a jury would convict

but the judge in recognition of the righteousness of the underlying

cause would suspend sentence or issue a nominal find. Abortion

demonstrators argue that they are in this tradition and should be

treated accordingly. They overlook the key distinction between

their actions and the behavior of those cited above.

The true conscientious objector refuses to obey the very law

which he claims is unjust. Rosa Parks refused to sit in the back of

the bus and “draft dodgers” refused to register for the draft.

When prosecuted, they challenged the wisdom, morality and

constitutionality of the law in question.” They did not employ

their objections to that law as an excuse to engage in general or

targeted violence. But that is what the demonstrators in this case

have done. On this appeal, the demonstrators challenge the

applicability of our criminal trespass laws to their activities. But

they do not assert that those laws are unconstitutional or unjust.

Rather they believe that because they disagree with the practice

of abortion they are entitled to deface and occupy property

belonging to other persons. How sad that their sense of justice

and outrage is so narrowly focused.

Judge Poserina correctly determined that the justification

defense would not lie. The action sought to be prevented by

appellants was lawful, and as such, could not be prevented by

unlawful conduct. Furthermore, appellants offer of proof was

insufficient to satisfy the four-part Capitolo-Berrigan test for

determining when the defense of justification will lie. For these

reasons. we affirm the judgment of sentence.

CONCURRING AND DISSENTING OPINION BY MC EWEN. J.

DISSENTING OPINION BY TAMILIA. J.

> Of course. some civil disobedience such as the Boston Tea Party or the

work of the abolitionists calls into question the very moral authority of the

government. Obviously. this is not what the appellants intended as on this

appeal they seek the protection of a statutory defense promulgated by our

government.

COMMONWEALTH OF

PENNSYLVAINIA

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

Vv.

WALTER GIES.

Appellant

13a

IN THE SUPERIOR COURT

OF PENNSYLVANIA

No. 03154 Philadelphia 1986

IN THE SUPERIOR COURT

OF PENNSYLVANIA

No. 03155 Philadelphia 1986

IN THE SUPERIOR COURT

OF PENNSYLVANIA

No. 03387 Philadelphia 1986

Appeal from the Judgment of Sentence of November 6, 1986

in the Court of Common Pleas of Philadelphia County, Criminal

No. 477-482 and 645 January Term, 1986, 647 Jan. 86 & 3160

Feb. 8&6.

l4a

BEFORE: CIRILLO, P.J. McCEWEN and TAMILIA, JJ.

CONCURRING AND DISSENTING OPINION BY McEWEN, J.:

Filed May 2, 1988

Since the rulings of both the United States Supreme Court, in

Roe v. Wade, 410 U.S. 113 (1973), and the Pennsylvania Supreme

Court, in Commonwealth vy. Berrigan, 509 Pa. 118, 501 A.2d 226

(1985), preclude the presentation by appellants of the defense of

justification, I am compelled to join in the ruling of my

distinguished colleague, President Judge Vincent A. Cirillo, the

author of the lead opinion affirming the judgment of sentence. |

write, nonetheless, so as to express the view that appellants have

surmounted three of the four obstacles to presentation of the

defense — a view which is, of course, measurably different from

the conclusion of the lead opinion that appellants failed to meet

any of the four requirements.

While the defense of justification has a number of synonyms. '

it is “often expressed in terms of choice of evils: When the

pressure of circumstances presents one with a choice of evils, the

law prefers that he avoid the greater evil by bringing about the

lesser evil?” State v. Olsen. 99 Wis.2d 572. . 299 N.W.2d

632.634 (1980) quoting LaFave & Scott, Criminal Law §50., at 382

(1972). “Determination of the issues of competing values and.

therefore. the availability of the defense of necessity is precluded.

however. when there has been a deliberate legislative choice as

to the values at issue?” State v. Warshow. 138 Vt. 22. 410

A.2d 1000. 1003 (1979) (Hill, J. Concurring).

' The general defense of justification is usually thought of as the statutory

designation of what had traditionally been termed in the common law as the

defense of necessity. It might be said that the term “justification” is somewhat

more apt than “necessity”: the latter is somewhat misleading since the term

“necessity” reflects the notion that the act of the accused was inevitable and

unavoidable rather than the voluntary choice of the actor. The defense of

justification is also frequently described by the process of its application. such

as “choice of evils”. “competing harms”. “compulsion”. “balancing of harms”.

“balancing of evils”. “balancing of competing values”. and “confession and

avoidance”.

LN es ee

15a

The U.S. Supreme Court, in Roe v. Wade, 410 U.S. 113 (1973),

held that the constitutional right of privacy of a mother is

paramount to the right to life of her unborn child during the first

trimester of pregnancy. Thus, this nation’s highest court balanced

the competing interest of the mother in terminating her pregnancy

against the right to life of the infant, and held that the right of the

mother to terminate her pregnancy during the first trimester is

paramount to the right to life of the infant. Our state legislature,

in response to Roe v. Wade, supra, enacted the Pennsylvania

Abortion Control Act. 18 Pa.C.S. §§3201-3220. which authorizes

first trimester abortions such as those scheduled for August 10,

1985, at the Northeast Women’s Center. The appellants have not

asserted that any of the pregnancies scheduled for abortion were

beyond the first trimester. See: 18 Pa.C.S. §3209.

The Pennsylvania Supreme Court directly addressed the

protestors reliance upon the defense of justification and decreed

in Berrigan 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.”

Id. at . 501 A.2d at 229.

Thus. an accused who wishes to present evidence in support

of the defense of justification must make an offer of proof as to

each one of the four specific elements of the defense. namely.

efficacy. imminency. lack of legal alternative. and absence of a

legislative purpose to exclude the defense. It follows, of course.

that the trial court is obliged to preclude any effort to rely upon

the defense even if but one of the four elements cannot be

demonstrated.

16a

The disaster which appellants sought to prevent was the

abortions that would be completed in a very brief time after the

women entered the building. While it is to be conceded that a

certain number of the women entering the building sought but

information, a significant number of women were entering the

clinic to effect an abortion. The danger perceived by appellants

was, therefore, clear and imminent. Further, were appellants

able to prevent the women from entering into the building, their

action would have been quite effective in thwarting the immediate

disaster appellants perceived as awaiting the women and their

unborn children in the clinic. And, of course, appellants had no

legal alternative available. Therefore, I conclude that appellants

complied with three of the conditions precedent to presentation

of the defense of justification.

It is the fourth and final element that impedes the presentation

of the defense of justification by the appellants. The fourth

condition prescribed by the Pennsylvania Supreme Court in

Commonwealth y. Berrigan, supra at ___, 501 A.2d at 229.

required appellants to establish that “no legislative purpose

exists to exclude the justification from the particular situation

faced by the actor.’ The Pennsylvania Abortion Control Act. 18

Pa.C.S. §§3201 et sec.. enacted as a consequence of the Roe v.

Wade decision of the United States Supreme Court, evinced the

intention of the Pennsylvania Legislature to exclude the defense

of justification in the situation confronting appellants. Thus. the

appellants here did not — in fact, could not — establish the

absence of a legislative purpose to exclude the defense of

justification.

My eminent colleague, Judge Patrick R. Tamilia, provides an

insightful rationale based upon his view that “the Supreme Court.

in fixing viability at a point supported by medical knowledge as it

existed at that time (1973), . . .has left open the question of when

the state may intervene, to be dependent upon medical evidence

as to viability . . ” 1 differ with that interpretation and, in support

of my view, note that those who abhor the ruling do so because.

contrary to the dissent, the United States Supreme Court held in

firm and certain fashion that the right of the mother to terminate

her pregnancy during the first trimester is paramount to the right

to life of that infant. On the other hand, the rationale of Judge

ee a ee ee er ee , ee ee

17a

Tamilia is no less a plea and one in which I fervently join,

namely, that the United States Supreme Court, in response to

accepted medical knowledge, enhanced by the technological

improvements occurring during the fifteen years since the

evidence was assembled for presentation to the Court in Roe v.

Wade. proceed in urgent fashion to reject as outmoded the

evidence of viability relied upon in Roe v. Wade.

Nonetheless. I am constrained to concur in the affirmance of

the judgment of sentence.

18a

COMMONWEALTH OF IN THE SUPERIOR COURT

PENNSYLVANIA OF PENNSYLVANIA

Vv.

ROLAND MARKUM,

JOHN O'BRIEN,

HOWARD WALTON,

SUSAN SILCOX,

KATHY LONG, ELLEN

JONES, AND ANNE

MARIE BREEN,

Appellants No. 03154 Philadelphia 1986

Appeal from the Judgment of Sentence in the Court of

Common Pleas of Philadelphia County, Criminal Division.

No. 477-482 and 645 January Term 1986

COMMONWEALTH OF

PENNSYLVANIA

Vi

HENRY TENAGLIO and

JOSEPH WALL

Appellants No. 03155 Philadelphia 1986

Appeal from the Judgment of Sentence in the Court of

Common Pleas of Philadelphia County, Criminal Division.

No. 647 January 1986. 3160 February 1986

COMMONWEALTH OF

PENNSYLVANIA

Vv.

WALTER GIES.

Appellant No. 03387 Philadelphia 1986

Appeal from the Judgment of Sentence in the Court of

Common Pleas of Philadelphia County, Criminal Division.

No. 483 January 1986

BEFORE: CIRILLO, P.J.. MC EWEN and TAMILIA. JJ.

DISSENTING OPINION BY TAMILIA. J.:

Filed May 2. 1988

19a

I follow and support the reasoning of the majority in its

analysis of the justification defense to the point where it holds

that justification defense in abortion is precluded by legislative

and constitutional protection. Abortion Control Act, 18 Pa.C.S.

§§3201-3220. Roe v. Wade, 410 U.S. 113, 35 L.Ed.2d 147,93 S.Ct.

705 (1973). Abortion is constitutionally protected but it is a

qualified protection. Roe. supra. The significant distinction

between this case and Commonwealth y. Capitolo, 508 Pa. 372,

472 A.2d 806 (1985) and Commonwealth v. Berrigan, 509 Pa. 118,

501 A.2d 226 (1985) is that there was no imminent danger in

constructing atomic warheads. Abortion stands on an entirely

different footing. I believe the defense is available in two respects

despite statutory and constitutional limitations. First, if the clinic

was processing abortions beyond the time of viability, as

established by Roe. the right to protect the life of a fetus in those

circumstances would exist within the present legislative and

constitutional parameters. While the appellants would base their

defense on proof that life begins at conception and that there are

measurable brain waves in a fetus as young as eight weeks of age,

the Supreme Court in Roe. having established the right to intervene

by the state on/y at the point of viability, their argument as to life

beginning as determined by brain wave activity is irrelevant.

However. the Supreme Court, in fixing viability at a point

supported by medical knowledge as it existed at that time, in my

opinion has left open the question of when the state may intervene,

to be dependent on medical evidence as to viability at the time

at issue. Roe v. Wade was promulgated in 1973. In the intervening

years, enormous strides have been made in sustaining life of

fetuses outside the womb. who. at the time of Roe, were considered

nonviable. In Akron v. Akron Ctr. for Reproductive Health, 462

U.S. 416, 76 L.Ed2d 687, 103 S.Ct. 2481 (1983), the majority

summarized the holding in Roe and subsequent abortion decisions

as follows:

First. a State has an “important and legitimate interest in

protecting the potentiality of human life* | Roe} at 162,35 L

ED 2d 147, 93 S Ct 705. Although the interest exists

“throughout the course of the woman's pregnancy, Beal v.

Doe. 432 US 438. 446. 53 L Ed 2d 464.97 S Ct 2366 (1977). it

becomes compelling only at viability, the point at which the

fetus “has the capability of meaningful life outside the

20a

mother’s womb,’ Roe, supra, at 163, 35 L Ed 2d 147,93 S Ct

705. See Planned Parenthood of Central Missouri v.

Danforth, 428 US 52, 63-65, 49 L Ed 2d 788, 96 S Ct 2831

(1976). At viability this interest in protecting the potential

life of the unborn child is so important that the State may

proscribe abortions altogether, “except when it is necessary

to preserve the life or health of the mother” Roe, 410 US, at

164, 35 L Ed 2d 147,93 S Ct 705.

Id. at 428, 76 L.Ed. 2d 702, 103 S. Ct. at ___.

The dissent, authored by Justice O’Connor, joined by Justices

White and Rehnquist, carried the concept of flexibility as to

viability beyond that discussed in the majority. The dissent

stated:

Just as improvements in medical technology inevitably

will move forward the point at which the State may regulate

for reasons of maternal health, different technological

improvements will move backward the point of viability at

which the State may proscribe abortions except when

necessary to preserve the life and health of the mother.

In 1973. viability before 28 weeks was considered unusual.

The 14th edition of L. Hellman & J. Pritchard. Williams

Obstetrics (1971), on which the Court relied in Roe for its

understanding of viability, stated, at 493, that “|a|ttainment

of a | fetal] weight of 1,000g |or a fetal age of approximately

28 weeks gestation] is ... widely used as the criterion of

viability’’ However. recent studies have demonstrated

increasingly earlier fetal viability. It is certainly reasonable

to believe that fetal viability in the first trimester of pregnancy

may be possible in the not too distant future. Indeed, the

Court has explicitly acknowledged that Roe left the point of

viability “flexible for anticipated advancements in medical

skill” Colautti v. Franklin, 439 US 379, 387, 58 L Ed 2d 596.

99 S Ct 675 (1979). “|W Je recognized in Roe that viability

was a matter of medical judgment, skill, and technical

ability, and we preserved the flexibility of the term” Danforth.

supra, at 64, 49 L Ed 2d 788, 96 S Ct 2831.

The Roe framework, then, is clearly on a collision course

with itself. As the medical risks of various abortion

2la

procedures decrease, the point at which the State may

regulate for reasons of maternal health is moved further

forward to actual childbirth. As medical science becomes

better able to provide for the separate existence of the

fetus, the point of viability is moved further back toward

conception. Moreover. it is clear that the trimester approach

violates the fundamental aspiration of judicial decision

making |sic] through the application of neutral principles

“sufficiently absolute to give them roots throughout the

community and continuity over significant periods of time

... A. Cox, The Role of the Supreme Court in American

Government 114 (1976). The Roe framework is inherently

tied to the state of medical technology that exists whenever

particular litigation ensues. Although legislatures are better

suited to make the necessary factual judgments in this area.

the Court's framework forces legislatures. as a matter of

constitutional law. to speculate about what constitutes

“accepted medical practice” at any given time. Without the

necessary expertise or ability. courts must then pretend to

act as science review boards and examine those legislative

judgments.

Id. at 456-58. 76 L.Ed.2d at 720-21, 103 S.Ct. at ___

The significance of these holdings is that Roe was considered

in 1973, Akron was argued in 1982. and we now have the case sub

judice under consideration in 1988. In the 15 intervening years it

is acknowledged that viability has been reduced to below 24

weeks. as opposed to 28 weeks under Roe. While there is no

break in the underlying position that viability of the fetus

determines when the state interest may be invoked on its behalf.

as opposed to conception, the standards applied in Roe are no

longer applicable for that determination.

This is the point at which | depart from the majority. Even

assuming that a defense of justification based upon conception

as put forth by appellant is fruitless because of holdings of Roe

and legislative enactments such as the Abortion Control Act,

that defense may still be available to late-term abortions as to

viability. Since the majority wisely ignored waiver for failure to

specify the justification defense under either sections 503 or 510.

we may consider that defense as it applies to the entire spectrum

22a

of fetal life where viability is implicated. As Justice O'Connor

stated in her Akron dissent, “It is certainly reasonable to believe

that fetal viability in the first trimester of pregnancy may be

possible in the not too distant future. Indeed the Court has

explicitly acknowledged that Roe left the point of viability ‘flexible

for anticipated advancements in medical skills’ Citations omitted.

Id. at 457, 76 L.Ed.2d at 720-21, 103 S.Ct. at ___..

If viability has significantly been advanced and abortion services

continue to apply the 1973 Roe standards, then a state interest in

protecting fetal life is likely implicated in some cases. Fetal life

is. therefore, protected in those instances and the defense of

justification would be available to persons attempting to protect

or save a fetus capable of surviving under the advanced medical

standards. Unquestionably, clinics and hospitals can and do

establish standards and controls to assure that no abortions are

performed except in cases in which the fetus could not be viable

under advanced medical technology. This may not, however, be

presumed in the face of an offer of proof on the defense of

justification.

This case. therefore, cannot be decided on the law promulgated

under Capitolo and Berrigan, supra. There, the danger to life was

not imminent and there were no specific individuals who could

be identified as being in danger nor could the actions of the

protesters be effective in avoiding the greater harm.

In this case, the appellants conceivably could have produced

evidence that viability had significantly advanced from the 28

weeks criterion of Roe, that a viable fetus, who would survive

under the advanced medical technology available. would be

terminated and that the actions of the appellants would be

effective in avoiding the greater harm as the fetus in that class

would have been aborted before legal action would be taken. It

is also clear that no legal alternative would have been effective in

abating the harm. Thus the denial of the right to pursue the

justification defense precluded the appellants from attempting

to establish the proof of viability and the inherent right to protect

life under the circumstances of this case.

It is acknowledged that this will be a difficult task and the

proof may not be forthcoming, despite the offer. However, by

rejecting the offer out of hand as to proof of conception. appellants

were also precluded from pursuing proof of earlier viability than

ss

23a

recognized by the clinic under Roe.

It must be left for another day and to a higher court to pass on

the right to intervene under the justification defense as it relates

to conception. As of now, this Court, as an intermediate appellate

court, is powerless to do so.

I would vacate the judgment of sentence and grant a new trial

to permit the appellants the opportunity to invoke the justification

defense in respect to the viability standard utilized by the clinic

and the likelihood that viable fetuses might be aborted.

24a

Exihibit “C”

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

TRIAL DIVISION — CRIMINAL BRANCH

COMMONWEALTH OF PENNSYLVANIA : JANUARY TERM.

1986

VS.

ROLAND MARKUN : No. 477

JOHN O'BRIEN : No. 478

HOWARD WALTON : No. 479

SUSAN SILCOX : No. 480

KATHY LONG : No. 481

ELLEN JONES : No. 482

WALTER GIES : No. 483

ANNEMARIE BREEN : No. 645

HENRY TENAGLIO : No. 647

: FEBRUARY TERM. 1986

JOSEPH WALL : No. 3160

DEFIANT TRESPASS

TRIAL JUDGE

HON. JOHN J. POSERINA JR.

OPINION

On August 10, 1985 at approximately 8:00 a.m. each of the

above named defendants (originally 12 of the defendants, however

2 of them withdrew their appeal from convictions in Municipal

Court of Philadelphia), members of a “Pro Life” organization.

entered and remained without permission. on the premises

occupied by the Northeast Womens’ Center on Roosevelt

Boulevard in Philadelphia.

25a

Northeast Womens Center, is a privately owned facility which

provides among other things. numerous reproductive health

services, such as education, gynecological services, pregnancy

testing, and Abortions.

The defendants. are not employees, staff, patients, or invited

guests. The admitted purpose of the defendants was for the

purpose of interrupting. and/or persuading any patients from

undergoing an Abortion.

The Nurse in charge, communicated to each defendant a

request for them to leave the premises. The defendants thereupon

went into several differencit rooms. including an examination

room and/or operating room and refused to leave. The police

were called to the scene, and the police also requested each of

the defendants to leave peaceably. The response by the defendants,

was a uniform refusal to leave. The police arrested each “Pro

Life” protestor and caused each defendant to be carried out of

the building into a police vehicle.

Each of the defendants were charged with Criminal Trespass

Defiant Trespass and Conspiracy. Some had charges of Criminal

Mischief placed upon them for allegedly destroying some of the

medical equipment during the protest. The Jury Verdict under

consideration in this Appeal. however is Guilty of Defiant

Trespasser. Each Defendant was sentenced to one day to three

months in County Prison, plus 50 hours of community service

and $25.00 payable to the Victim/Abuse funds.

At the pre-trial conference in this matter. defense counsel

asked the court permission for leave to submit a Motion in

Limine. During the pre-trial conference. it was agreed between

the Commonwealth and defense that the appropriate motion

would be to submit an Offer of Proof together with Points for

Charge. which would encompass all of the legal issues raised by

the arrest.

At the argument of the motion. defense counsel stated that

the clear purpose of the defendants action was “a rescue mission

to protect the mother and pre-born child from the act which

would destroy the life of the pre-born child”.

Defense counsel further asserted that they were aware of the

precedence setting cases of Commonwealth vy. Berrigan. 501 A

2c. 226 (Pa. 1985) and Commonwealth vy. Capitolo A 2d. (Pa.

26a

1985). In those cases, the Supreme Court of Pennsylvania indicated

that the defense of “Justification” can only be used, if the four (4)

pronged test has been met:

1. That the actor was faced with a public disaster, which was

clear and imminent, not debatable and speculative.

2. That the actor could reasonably expect that the actions

taken would be effective in avoiding the immediate public

disaster.

Ww

. That there is no legal alternative. which would be effective

in abating the imminent public disaster.

4. That no legislative purpose exists to exclude the justification

from the particular situation faced by the actor.

Defendants argue that. the Pennsylvania Legislature has adopted

a Declaration of Death Act (35 PS 10 201), which indicates that

there is life, when there is brain activity. Defendants, offered to

demonstrate that medical testimony should be presented to a

Jury to allow that Jury to conclude that a pre-born child has brain

activity and therefore, by legislation is a human life.

Under defendants theory of the case. a justification defense

may be presented. because the death of the child was in fact a

public disaster clear and imminent. Further, that the only way to

prevent the death of the pre-born child was to take immediate

effective action. In addition it is argued: There was no alternative.

because even the injunction process would not be available in

time to prevent the abortions, which were scheduled for the

particular day in question.

Finally, defendants contend that no legislative purpose exists

to exclude thie justification defense in this type case.

The Supreme Court of the United States decision in Roe vs.

Wade. 410 U.S. 113 (1973) was also considered by the Common-

wealth and the defense. The exact status of medical knowledge

concerning, when a life comes into being was not before the

Supreme Court at that time. It was also argued that the state of

medical knowledge as of 1975 is substantially different then it is

in 1986.

To bolster the argument that Pennsylvania has indeed recog-

nized a pre-born child as a separate person, the case of Amadio

27a

vs. Levin, 501 A 2d 1085 (Pa. 1985) was examined by the court

and the litigants. In that case, the Supreme Court of Pennsylvania

has

{Page 5 of Slip Opinion missing]

The Court asserted that:

“where the proffered evidence supporting one element of

the defense is insufficient to sustain the defense, even if

believed, the trial court has the right to deny the use of the

defense and not burden the jury with testimony supporting

other elements of the defense”

In this case, according to the Commonwealth, the Defendants

Offer the Proof and Memorandum in Support of that offer, fail to

establish anv of the four elements prescribed by Capitolo.

The defendants suggest that voluntary termination of a

pregnancy by a human life and is the “harm” to be avoided.

Without citing authority for the assertion the defendants claim

that “for Centuries, American courts and legislatures have almost

universally held that abortion is a crime . . * and that abortion is

and always has been condemned by a large segment of Americans.”

(Defendants Memorandum in Support of Offer of Proof)

The Commonwealth claims that the defense position is not

only unsupported but somewhat inaccurate. Lawrence Lader, a

leading writer in the area, comments on this narrow view of the

subject matter:

Since abortion laws are often treated as if they were as

permanent a part of the social fabric as the Ten Command-

ments it seems startling to realize that both are civil laws

and the common law of the Roman Catholic Church in its

present form are a comparatively recent innovation. Abortion

was hardly an issue in Britain until 1803 and in most of the

United States. not until shortly before the Civil War. In fact,

under common law before that time, abortion was not even

punishable as a crime when performed in early pregnancy

or before ‘quickening as it was called. Since terminations

generally occurred before quickening the problem was

virtually academic and largely ignored. L. Lader Abortion

(1966)

ii.

28a

James C. Mohn, in his treatise Abortion in America:

The Origins and Evolution of National Policy (1978) confirms

that in

“absence of any legislation whatsoever on the subject of

abortion in the United States in 1800, the legal status of the

practice was governed by the traditional British common

law as interpreted by the local courts of the new American

States.”

He notes that the common law did not formally recognize the

existence of the fetus until near the midpoint of gestation. Only

after this point in gestation was the

“expulsion and destruction of a fetus without due cause...

considered a crime ..*

The first time that an American Legislature addressed the

question of abortion in terms of written Legislation was in 1821.

In May of that year the General Assembly of Connecticut “passed

a revised ‘Crimes and Punishment’ law? Section 14 of that law

prohibited the administration of any deadly poison for the purpose

of causing or procuring “the miscarriage of any woman, then

being quick with child ... Commenting upon the fact that

Connecticut chose to criminalize only those abortions effected

after quickening Mohn notes (i)n this respect the law testified

eloquently to how deeply committed Americans of the early

nineteenth century were to the quickening doctrine . . *

The United States as a whole remained “committed to the

basic tenets of common law” through 1841. It took sixty years

before the United States became a nation where abortion was

“legally and officially prescribed*

Today the pendulum has swung back to a position similar to

that of early American statutory and common law. Nearly all

Americans today believe that the question of abortion should be

addressed by the woman who is pregnant. (P. Rothstein & M.

Williams Choice! Legal Abortions Arguments. Pro & Con. (1983)

The Commonwealth further argued as follows: “polls show

overwhelming-and growing-support for legal abortion. Typically.

a 1982 Associated Press — NBC poll showed that 77% agreed

that abortion should be left to the woman and her doctor’, and

that support for abortion rights cuts across political, age. religious.

income, education, race and sex differences. In other words

29a

most Americans do not feel that legalized abortion is a “harm”

Indeed, most Americans feel that abortion is a medical procedure

that should be employed if the pregnant woman so wishes.

Most important of all the termination of pregnancy is legal.

The Federal Constitution, as construed by Roe v. Wade Provides

that “|t}he right of privacy ... is broad enough to encompass a

woman's decision whether or not to terminate her pregnancy.”

That right is in no way abrogated by Pennsylvania’s Abortion

Control Act of 1982 which adheres, albeit strictly, to the

Constitutional interpretation and permits women to terminate

pregnancy. The “harm” the defendants assert is a legally and

socially accepted procedure in American life today. Taking the

defendants arguments in their best light one could only conclude

that the “harm” espoused. if it isin fact a“harm’”, is nothing more

than a “speculative” or debatable harm: the existence of which

fails to satisfy the test set down in Capitolo.

Furthermore the defendants assertion of “justification” under

Section 503 must fail because there has been no indication as to

how they could reasonably believe that their actions of August

10. 1985 would be effective in avoiding the greater “harm” they

claim exists. In Capitolo, the Court held that the mass sit-in at the

Shippingport nuclear power plant

“Neither terminated nor reduced the danger which they

claimed was posed by the presence of the radio-active fuel

in the plant, nor could their conduct have done so...

Appellees could reasonably foresee that their trespass would

fail to halt the operations of the power plant. . . Since we do

not see how any reasonable person could perceive that a

shut-down plant posed an immediate evil or harm. or how a

sit-in could permanently shut down the plant it was not

error to deny Appellee the protection of the defense . ..

Nevertheless. the defendants have petitioned the Court to

conclude, that their “intervention” and “rescue mission” on

August 10th “prevent(ed) the operation of the abortion clinic”

and that “by counseling individuals who were seeking abortions

and convincing them not to have abortions human life was

saved.

The Commonwealth further asserted that the actions of the

defendants neither reduced the danger they claim is posed by

30a

the presence of the Women's center nor could they reasonably

foresee that their trespass would succeed in halting operations of

the clinic and prevent the “immediate public disaster” which

they claim results from such operations.

The defendants cannot establish the crucial nexus between

the harm and its prevention: therefore, their reliance upon

Section 503 remains unfounded.

Even if the Court were to decide that the Defendants’ Offer of

Proof adequately satisfied the first two elements of the Capitolo

test the defendants have, nonetheless, failed to demonstrate

“that there is no legal alternative which will be effective in

abating the harm”

There are obviously numerous means in a democratic society

to express a point of view or to attempt to prevent a preceived

harm without resorting to criminal behavior. In Capitolo the

defendants averred in their offer of proof that “efforts before

public boards and agencies are ineffective and have been

exhausted with regard to operating nuclear power plants. . . (471

A 2d 462. 466-1984) No such claims have been made by the

defendants.

Finally. the defendants have not demonstrated that “the

Legislature has not acted to preclude the defense by a clear and

deliberate choice regarding the values at issue.” As noted above.

early termination of pregnancy has been judicially and legislatively

found to be legal. In January of 1983 the Pennsylvania Abortion

Control Act became effective law. (18 Pa. Const. Stat. Ann &

3201 et seq. Purdon). Although the Act expresses the under-

standable concern for the protection of human life, it. nevertheless.

concedes that women have the right to choose abortion over

childbirth.

The defendants argue that no language in the Abortion Control

Act or in any other Pennsylvania Act expressly precludes the

justification defense. The commonwealth agrees that nowhere

in the Abortion Control Act does the Legislature directly address

the term “justification.” That fact, however, does not absolve the

defendants from demonstrating “that the Legislature has not

acted to preclude the defense by a clear and deliberate choice

regarding the values at issues.” Indeed the Act has addressed the

applicability of the justification defense in factual contexts similar

to the one before the Court in this case. Section 3202 (c) the

3la

“Constitution” section of the Act provides:

In every relevant civil and criminal proceeding in which

it is possible to do so without violating the Federal

Constitution, the common and statutory law of Pennsylvania

shall be construed to extend to the unborn the equal

protection of the laws... ,

The language of the Section obviously favors childbirth over

abortion as a matter of public policy; nevertheless it reminds the

courts that despite this policy. the Constitutional right to terminate

pregnancy must be upheld. Were the court to find the defendants’

justification defense argument valid under this factual context,

the Federal Constitution, as it related to a woman's right to

terminate a pregnancy, as construed by Roe v. Wade, would be

violated. Such an application of the justification defense would

trigger a violation of the “Construction” section of the Abortion

Control Act. There can be no disagreement that application of

the justification defense to the facts of this case would sanction

behavior aimed at preventing women from exercising their

Constitutionally granted right to pregnancy termination. Allowing

individuals to blockade medical operating rooms or to dismantle

or destroy medical equipment under the protection of justification

would constitute a direct violation of the Federal Constitution

and the Abortion Control Act. The Pennsylvania Legislature,

therefore, has precluded the application of the justification defense

in the factual context presently before the court. “Section 503

does not condone this tvpe of ad hoc self-help which forbodes

legal chaos.”

In its most recent discussion of the “Justification” defense the

Supreme Court of Pennsylvania was presented with a set of facts

similar to those of Capitolo in the case of Commonwealth v.

Berrigan. (501 A 2d 226-1985) In reaffirming that the “Justification”

defense is indeed unavailable to anti-nuclear trespassers the

Court went even further than it had previously in Capitolo. First,

the Court concluded that the defendants acts of destroying

nuclear bomb shell casings and the pouring of human blood

inside a nuclear facility could not, “under any hypothesis

reasonably be expected to be effective in avoiding the preceived

public disaster of a nuclear holocaust” (p.230) Moreover, the

Court noted. the actions of the defendants failed to satisfy the

32a

requirements of the Justification defense because they were

“deliberate and calculated choices.” (p.229) The Court held that

in order for the Justification defense to be available, proponents

must demonstrate that their actions were spontaneous reactions

to an immediate harm.

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.

In this case, as in Berrigan, the acts of the defendants represent

the end product of a deliberate and calculated plan developed

by an organized group pursuant to well-established religious and

political point of view. There was nothing spontaneous about the

defendants’ actions on August 10, 1985.

The overriding significance of the Court's decision in Berrigan.

however, is manifested in the Court's holding that a “Justification”

defense cannot be asserted where the alleged “danger” constitutes

legal conduct.

Furthermore, the defense attempted to persuade the Trial

Court to permit “Justification Defense under Section 510 of the

Pennsylvania Crimes Code which provides that: (18 Pa. Const.

Stat. 510-Purdon)

Conduct involving the appropriation. seizure or destruction

of damage to, intrusion or interference with property is

justifiable under circumstances which would establish a

defense or privilege in a civil action thereon unless:

(1) this title or law defining the offense deals with the

specific situation involved: or

(2) alegislative purpose to exclude the justification claimed

otherwise appears.

The Superior Court in Capitolo suggested that where conduct

involves intrusion on property and where justification is offered

as an affirmative defense, Section 510 is necessarily implicated.

The defendants in the case at bar are, therefore, required

under Capitolo to meet the requirements of Section 510 as well

as those of Section 503 in order to successfully argue justification.

33a

The Superior Court indicates that the “standard of justification”

under Section 510 is stated somewhat differently from the standard

stated in Section 503. The Court apparently arrived at that

conclusion by incorporating Section 196 of the Restatement

(Second) of Torts into Section 510. Section 196 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.

Comment (a) to section 196 explains that for the privilege to

attach the trespass must be committed “to protect against or

repel a public enemy. or to prevent or mitigate the effects of an

impending public disaster such as a conflagration, flood,

earthquake, or pestilence.’ As noted above the “harm” sought to

be prevented by the defendants is in actuality a socially. legislatively

and judicially accepted medical procedure. Most Americans

favor the right of a woman to obtain a safe abortion. The

defendants have attempted to transform a value judgment into

an objective “public disaster: The Restatement speaks of objective

disasters in terms of earthquakes and floods not in terms of

disasters that may exist for those holding certain philosophical.

religious or moral beliefs.

The remaining requirement under Section 510 that the actor

“reasonably believes” in the necessity of this conduct does not

differ in substance from the standard stated in 503.

CONCLUSION

The Supreme Court has refused to condone the invasion of

private property where the basis for such is. in reality. philosophical

disagreement. The Court has likewise rejected the defendants

attempts to justify their “ad hoc self-help” actions of August 10,

1985 for such activity, whether asserted under Section 503 or

Section 510. because of the Courts belief that to do otherwise

would result in Chaos and civil anarchy which must not be

judicially permitted or encouraged.

For the foregoing reasons. the Court has ruled to prohibit the

defendants from eliciting or presenting any evidence or testimony

directed toward the affirmative justification defense.

BY THE COURT: