Commonwealth v. Markum
541 A.2d 347, 1988 Pa. Super. LEXIS 1277, 373 Pa. Super. 341 (1988)
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Rule of Law:
The common law defense of justification, or necessity, is not available as a defense to a criminal charge, such as trespass, when the alleged 'harm' the defendant sought to prevent is a legally protected and constitutionally sanctioned activity.
Facts:
- On August 10, 1985, as part of an anti-abortion demonstration, several individuals, the appellants, pushed their way into the Northeast Women’s Center in Philadelphia.
- Once inside, they occupied multiple rooms, damaged medical instruments including two aspirator machines, and threw equipment from a third-floor window.
- The appellants placed 'pro-life' stickers on the doors, walls, and ceilings of the facility.
- Staff at the Center repeatedly requested that the appellants leave the premises, but they refused.
- Police were called to the scene and had to physically carry the appellants out of the building to remove them.
Procedural Posture:
- Appellants were tried and found guilty of defiant trespass in the Philadelphia Municipal Court.
- Most appellants appealed for a trial de novo in the Court of Common Pleas of Philadelphia County, the trial court of general jurisdiction.
- Before trial, appellants filed a motion in limine seeking permission to present a defense of justification to the jury.
- The trial court judge denied the motion, ruling that the defense of justification was not applicable to the case.
- Following the trial, a jury returned guilty verdicts against the appellants.
- Two other appellants stipulated to the testimony from the jury trial and were also found guilty by the judge.
- Appellants' post-trial motions were denied, and they subsequently appealed the judgment of sentence to the Superior Court of Pennsylvania, an intermediate appellate court.
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Issue:
Does the defense of justification excuse a criminal trespass committed to prevent legally sanctioned abortions?
Opinions:
Majority - Cirillo, P.J.
No, the defense of justification does not excuse a criminal trespass committed to prevent legally sanctioned abortions. The court reasoned that the defense is unavailable because the conduct the appellants sought to prevent—abortion—is a legal activity protected by both Pennsylvania's Abortion Control Act and the U.S. Constitution as established in Roe v. Wade. Applying the four-part test from Commonwealth v. Capitolo and Commonwealth v. Berrigan, the court found the appellants' claim failed on all prongs: 1) a legally sanctioned activity cannot constitute a 'clear and imminent harm' or 'public disaster'; 2) the appellants' actions were not reasonably expected to be effective in ending the practice of abortion; 3) legal alternatives, such as peaceful protest, were available; and 4) the legislature, by passing the Abortion Control Act, clearly intended to permit the activity, thus precluding the justification defense. The court distinguished the appellants' actions from legitimate civil disobedience, stating that they were not protesting the trespass law itself but using it as a pretext to interfere with the lawful activities of others.
Dissenting - Tamilia, J.
Yes, the justification defense could potentially apply, and the appellants should have been permitted to present it to the jury. The dissent argued that while abortion is generally legal, the constitutional protection established in Roe v. Wade is qualified and hinges on the concept of fetal viability. The dissent contended that medical science had advanced significantly since 1973, potentially moving the point of viability to an earlier stage of pregnancy than recognized by the clinic. Therefore, the appellants should have been allowed to offer proof that the clinic was performing abortions on viable fetuses, which would be an illegal act and a 'harm' that could be prevented under the justification defense. By precluding the defense entirely, the trial court denied the appellants the opportunity to establish facts that might have supported their claim.
Concurring - McEwen, J.
No, the defense of justification is ultimately precluded, but for a narrower reason than the majority stated. The concurrence agreed that the judgment should be affirmed but disagreed with the majority's application of the four-part Capitolo-Berrigan test. This opinion reasoned that the appellants successfully met the first three prongs: 1) the abortions were a 'clear and imminent' harm from their perspective; 2) their actions were 'effective' in preventing the specific abortions scheduled for that day; and 3) there was 'no legal alternative' to stop those immediate procedures. However, the defense failed on the fourth prong alone: 'that no legislative purpose exists to exclude the justification.' The Pennsylvania Abortion Control Act, enacted in response to Roe v. Wade, demonstrates a clear legislative purpose to permit first-trimester abortions, thereby excluding the justification defense in this specific situation.
Analysis:
This case solidifies the legal principle that the justification defense is unavailable when a defendant's actions target a legally protected activity. It establishes a strong precedent in Pennsylvania, specifically barring abortion protestors from using the 'choice of evils' argument to excuse crimes like trespass and property damage. The decision reinforces that personal, moral, or philosophical opposition to a lawful activity does not create a legal justification for criminal interference. This ruling channels protest activities toward lawful means and significantly limits the available defenses for those who engage in civil disobedience aimed at third parties conducting legal business.
