Commonwealth v. Berrigan

535 A.2d 91, 369 Pa. Super. 145, 1987 Pa. Super. LEXIS 9613
CourtSupreme Court of Pennsylvania
DecidedDecember 3, 1987
Docket1959
StatusPublished
Cited by34 cases

This text of 535 A.2d 91 (Commonwealth v. Berrigan) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Berrigan, 535 A.2d 91, 369 Pa. Super. 145, 1987 Pa. Super. LEXIS 9613 (Pa. 1987).

Opinions

BECK, Judge:

This appeal is on remand from the Pennsylvania Supreme Court, which reversed the Superior Court’s grant of a new trial and directed the Superior Court to consider appellants’ remaining allegations of error. Appellants continue to assert that the trial judge erred by improperly conducting voir dire, excluding relevant evidence, incorrectly charging the jury, communicating with the jury outside the presence of the parties, denying motions to recuse, and imposing invalid sentences.

After careful consideration of the issues, we conclude that appellants are not entitled to a new trial. However, since we find that the trial judge should have recused from sentencing and that the sentences imposed were based in part on impermissible considerations, we vacate the judgments of sentence and remand for resentencing before a different judge.

On September 9, 1980, the eight appellants entered a General Electric plant in King of Prussia, Pennsylvania, which manufactured components for the Minute Man Mark 12A, a United States Air Force nuclear missile. As a protest against the nuclear arms race, they beat missile components with hammers and poured human blood on the premises. On March 6, 1981, following a trial by jury in the Court of Common Pleas of Montgomery County, each appel[151]*151lant was convicted of burglary, criminal mischief, and criminal conspiracy. 18 Pa.Cons.Stat.Ann. §§ 3502, 903, 3304 (Purdon, 1983). The trial judge sentenced appellants to prison terms on July 28, 1981, and appellants filed a timely appeal to this court.

In Commonwealth v. Berrigan, 325 Pa.Super. 242, 472 A.2d 1099 (1984), an en banc panel of this court vacated the sentences and remanded for a new trial on the grounds that the trial judge had erred by conducting voir dire with groups of four jurors at a time, by excluding the public from voir dire, and by excluding evidence tending to establish a justification defense under section 510 of the Crimes Code. The Commonwealth appealed this decision to the Pennsylvania Supreme Court, which reversed on all three grounds. Commonwealth v. Berrigan, 509 Pa. 118, 501 A.2d 226 (1985).

In its original opinion, dated November 22, 1985, the Supreme Court reinstated appellants’ (then appellees) judgments of sentence. Upon reconsideration, however, the Supreme Court, by per curiam order dated February 24, 1986, vacated its reinstatements of the judgments of sentence. The Court then “remanded to the Superior Court for disposition of all issues raised in that court, but not yet considered.” 509 Pa. at 142-43, 501 A.2d at 239. We now consider those issues left undecided following the original appeal.

In the interests of clarity, we have divided appellants’ original allegations of error into the following categories. For the reasons noted below, issues 1, 2, 8, 9, 14, and 15 are not presently before us for review.

1. The trial court’s refusal to conduct individual voir dire.
We reversed on this issue. 325 Pa.Super. at 261-65, 472 A.2d at 1108-10. The Supreme Court reversed our decision and affirmed the trial court. 509 Pa. at 135-37, 501 A.2d at 235-36.
2. The exclusion of the public from voir dire.
[152]*152We reversed on this issue. 325 Pa.Super. at 265-67, 472 A.2d at 1110-11. The Supreme Court reversed our decision and affirmed the trial court. 509 Pa. at 126-35, 501 A.2d at 230-235.
3. The trial court’s unwillingness to consider challenges for cause until after all prospective jurors were examined.
4. The trial court’s failure to preserve the juror strike-off sheet and the text of voir dire questions submitted by the defense.
5. The trial court’s refusal to grant the defense more than a minimum number of peremptory strikes.
6. The denial of seven challenges for cause.
7. The trial court’s limitations on questions probing possible bias on the part of jurors during voir dire.
8. The exclusion of evidence relating to the defense of “justification generally”. 18 Pa.Cons.Stat.Ann. § 503 (Purdon, 1983).
We affirmed the trial court as to this issue. 325 Pa.Super. at 250, 472 A.2d at 1103. See infra pp. 163-165.
9. The exclusion of evidence relating to the defense of “justification in property crimes”. 18 Pa.Cons.Stat.Ann. § 510 (Purdon, 1983).
We reversed on this issue. 325 Pa.Super. at 256-61, 472 A.2d at 1106-1108. The Supreme Court reversed our decision and affirmed the trial court. 509 Pa. at 123-26, 501 A.2d at 229-230.
10. The exclusion of evidence relating to the defense of justification pursuant to the “execution of a public duty”. 18 Pa.Cons.Stat.Ann. § 504 (Purdon, 1983).
11. The exclusion of evidence indicating a lack of criminal intent. 18 Pa.Cons.Stat.Ann. §§ 302, 304 (Purdon 1983).
12. The trial court’s failure to charge the jury correctly as to the availability of justification defenses and the legal significance of criminal intent.
13. The trial court’s ex parte communications with the jury during deliberations.
[153]*15314. The issuance of defective informations.
We affirmed the trial court as to this issue. 325 Pa.Super. 271-72, 472 A.2d at 1113-14.
15. The fact that appellants were convicted of both burglary and criminal mischief (the underlying offense).
Appellants have now abandoned this claim. Supplemental Brief of the Appellants on Remand at 4 n. 1.
16. The judge’s failure to recuse at trial.
17. The judge’s failure to recuse at sentencing.
18. The imposition of excessive sentences based on impermissible considerations.

We will address the remaining outstanding issues in sequential order.

I. VOIR DIRE ISSUES

Appellants’ first seven claims all relate to the manner in which the trial court conducted voir dire. The Supreme Court has already found that objections 1 and 2 are without merit. We now affirm the trial court as to the five additional voir dire issues.

A.

As issue 3, appellants contend that the trial court erred by delaying consideration of challenges for cause until after the entire voir dire panel had been interviewed and by refusing to segregate jurors who were later removed for cause.

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Cite This Page — Counsel Stack

Bluebook (online)
535 A.2d 91, 369 Pa. Super. 145, 1987 Pa. Super. LEXIS 9613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-berrigan-pa-1987.