Commonwealth v. Berrigan

BROSKY, Judge:

This appeal follows appellants’ convictions by a jury on charges of burglary,1 criminal mischief2 and criminal con*249spiracy.3 The incident leading to appellants’ arrests occurred on September 9, 1981 when they entered a General Electric plant in King of Prussia, Pennsylvania and beat missile components with hammers. They also poured human blood on the premises. They were arrested at the factory some time later. No personal injuries occurred. Property damage apparently exceeded $28,000.4

At trial appellants did not deny having committed these actions, but sought to defend themselves by relying on Pennsylvania’s justification statute.5 While the trial judge agreed that the defense could be raised by appellants, he refused to permit them to present expert testimony to prove the defense, limiting them to their own testimony. It is this ruling that presents the primary issue before us. That is, “Did the trial court err in so limiting appellants’ evidence?” Because we believe that the court was so in error, we reverse the judgments of sentence and remand for new trial.

Before us also are questions concerning the voir dire conducted in this case, the refusal of the trial judge to recuse himself and the issuance of the criminal informations.6

In Part I of the opinion we will discuss the justification defenses applicable to this case.

In the second section we will address appellants’ allegations of error in the voir dire process. We agree with them to the extent that we, too, believe that the voir dire process should have been conducted in public and should have been conducted on an individual, rather than a group basis.

*250Thirdly, we will discuss the question of whether the trial judge should recuse himself. We hold that the judge may not participate further in this case.

Finally, we will respond to appellants’ contention with which we do not agree, that the criminal informations filed against them should be quashed as not having been signed by a duly authorized district attorney.

I.

At trial appellants sought to defend themselves on the grounds that their actions were justified as being necessary to avert the harm of nuclear war. Pennsylvania law provides a justification defense at 18 Pa.C.S. §§ 501, 503, 510.

The general justification defense is set out at Section 503 which provides.

§ 503. Justification generally
(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 evils. — 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 negligence, as the case may be, suffices to establish culpability.

Section 501 defines the terms believes or belief as “reasonably believes” or “reasonable belief.”

*251We believe, however, that appellants were required to prove the elements of a more specific justification statute, found at Section 510 which states:

§ 510. Justification in property crimes
Conduct involving the appropriation, seizure or destruction of, damage to, intrusion on or interference with property is justifiable under circumstances which would establish a defense of privilege in a civil action based thereon, unless:
(1) this title or the law defining the offense deals with the specific situation involved; or
(2) a legislative purpose to exclude the justificátion claimed otherwise plainly appears.

In Commonwealth v. Capitolo, 324 Pa.Super. 61, 471 A.2d 462 (1984), we held that the appellants who had tried to prove justification in defense of charges of trespass on the grounds of a nuclear power plant, were required to meet the requirements of Section 510. We so hold in the instant case in which appellant’s conduct involves damage to, intrusion on or interference with property.

In Capitolo, supra, 324 Pa.Superior Ct. 61, 471 A.2d 462, we explained that because “Section 503 contains a general principle applicable to all crimes ... it must yield to more specific formulations dealing with the particular situation posed in any concrete case.” (citing Model Penal Code, Scope of Article 3, at 1). We therefore concluded that to the extent Sections 503 and 510 are consistent, the requirements of both must be met by defendants seeking to prove justification.

As to Section 503, the rationale behind its Model Penal Code origins and the case law make it quite clear that a defendant is justified in committing a crime if and only if each of four circumstances exist. They are:

(1) The actor must believe his actions to be necessary to avoid a harm or evil to himself or to another which is greater than that harm or evil in which his conduct will *252result. This subjective belief must be held honestly and sincerely. 18 Pa.C.S. § 503(a)(1).
(2) Such a belief must also be determined to be an objectively reasonable one to hold. 18 Pa.C.S. § 501.
(3) No law “defining the offense provides exceptions or defenses dealing with the specific situation involved ...” 18 Pa.C.S. § 503(a)(2).
(4) “[A] legislative purpose to exclude the justification claimed [must] not otherwise plainly appear.” 18 Pa.C.S. § 503(a)(3).

As to requirements three and four we note that neither the burglary statute nor any other section of Title 18 provides an exception or defense dealing with this specific situation. We will discuss the question of whether there exists a legislative purpose to exclude the defense, later in this opinion.

In United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980), Justice Rehnquist, speaking for a majority of the United States Supreme Court, discussed limitations upon the scope of the common law defenses of duress and necessity. Justice Rehnquist said:

We need not speculate now, however, on the precise contours of whatever defenses of duress or necessity are available against [particular criminal] charges. Under any definition of these defenses one principle remains constant: if there was a reasonable, legal alternative to violating the law, “a chance both to refuse to do the criminal act and also to avoid the threatened harm,” the defenses will fail. LaFave & Scott [.Handbook on Criminal Law, (1972) ], at 379.

Id. at 410-411, 100 S.Ct. at 634-635. The Supreme Court stated further that the modern defense of justification in federal law is historically based in the common law defenses of duress and necessity. In Pennsylvania, however, the justification defense enacted by our General Assembly in § 503, taken from the Model Penal Code, is an expanded, *253modern variant on the common law defense of necessity.7 Commonwealth v. Clark, 287 Pa.Super. 13, 429 A.2d 695 (1981). Thus, the limitations on the common law defense as stated in United States v. Bailey, supra, while instructive, are certainly not binding on our understanding of Pennsylvania’s statutory defense of justification.

Moreover, as to § 503, imminence is not a controlling factor. In Pennsylvania following the Model Penal Code approach, such factors are not controlling: “... [T]he actor’s [reasonable] belief in the necessity [is] sufficient (assuming a valid choice of evils)____ Questions of immediacy and of alternatives have bearing, of course, [but only] on the genuineness of a belief in necessity ...” American Law Institute, Model Penal Code § 3.02, Commentary at 10 (TentDraft No. 8, 1958). Cf. United States v. Bailey, supra, (interpreting common law defense), see also Commonwealth v. Capitolo, supra, 324 Pa.Super. 61, 471 A.2d 462.

The defense found at Section 510, though, is based on the tort principle of privilege and it does involve proof of imminence.

See Restatement of Torts Second § 196 which 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.

In this respect Section 510 would seem to impose a stricter standard than § 503, since as to Section 503, imminence is not a controlling factor. See Commonwealth v. Capitolo, supra, 324 Pa.Superior Ct. 61, 471 A.2d 462, in which we note that the Section 510 requirement that imminence be proved differs somewhat from the role of imminence in the general justification defense found at § 503. See discussion of § 503, supra.

*254It seems beyond debate that use of nuclear weapons would cause a public disaster within the meaning of Restatement of Torts Second § 196 and, therefore, within the terms of § 510. In fact the trial court readily conceded that the horrors of nuclear war are well documented.

Having established that element of the defense, it was left to appellants to show that they reasonably believed their actions to be necessary for the purpose of averting an imminent disaster. Without evidence to show the imminence of the disaster or the causal relationship between the action and the averting of the harm, appellants could not meet their burden of proof. See Commonwealth v. Capitolo, 324 Pa.Super. 61, 471 A2d 462 (1984), in which we explained:

By limiting appellants’ evidence to their own testimony of their reasons for committing the trespass, the trial court — as it recognized it was doing — effectively denied appellants the opportunity to prove justification. For as already discussed, it was not enough for appellants to prove that they believed that “the harm or evil sought to be avoided [by their conduct] [was] greater than that sought to be prevented by the law defining [their conduct as criminal trespass].” 18 Pa.C.S.A. § 503(a)(1). They had to prove that they reasonably so believed. And they could not prove their reasonableness without proving what in fact “the harm or evil sought to be avoided” was. A defendant may believe that a nuclear reactor is likely to melt down and cause a catastrophic accident, or that radiation leakages are causing cancer and poisoning the reservoir. But without any basis in fact these beliefs cannot be reasonable. By rejecting appellants’ offer of the expert testimony and documentary evidence summarized in their offer of proof, the trial court precluded appellants from proving that their beliefs did have a basis in fact. Thus the court precluded appellants from proving that their beliefs were reasonable.

Similarly, by limiting appellants’ evidence to their own testimony, the trial court made it impossible for them to *255establish a basis in fact for the belief that the weapons components posed an imminent threat of harm. Appellants in the instant case, like those in Capitolo, supra, were precluded from proving the reasonableness of their beliefs.

At trial, appellants, who represented themselves with the assistance of advisory counsel, sought to prove that each of them had acted with justification. In order to establish the defense, appellants were required by Sections 503 and 510 to prove that it was reasonable for them to believe that their actions were necessary to avoid a greater harm. Appellants tried to introduce expert evidence in order to prove the elements of the defense. It is this evidence which the lower court would not allow.

When appellants attempted to introduce the first of several planned expert witnesses, they were told by the court that the witness would not be permitted to testify.

That first witness was Robert Aldridge. When the prosecutor objected to his testifying and asked for an offer of proof appellant Sister Anne Montgomery said, “We wish to call him as a witness to present facts relevant to our case, since he can speak to the significance and really what this exhibit is,____”

After Mr. Aldridge’s qualifications as a weapons expert were explained, the court ruled that he could not testify because his testimony would be irrelevant to the facts at issue. The court did say that Aldridge could present reputation evidence, but that, of course, was not the appellants’ purpose in calling him. The court explained: “I think the proper way to prove your intent is for you to testify as to what you did and what you saw, the justification yourself from the stand.”

The court said that expert testimony as to the horrors of nuclear war would “bolster” appellants’ argument, which testimony could come from them. The judge continued, “And I have ruled and will continue to rule, anything they say about justification, they can say as to themselves.”

*256In response to counsel’s suggestion that expert witnesses would show a reasonable basis for what appellants believe the court opined, “But that isn’t the issue,” The court concluded, “and- it is clear to me that the testimony proffered or to be proffered is not relevant to the issue at hand.” Later in the trial the court explained its previous ruling saying, “The ruling was there would be no expert testimony with respect to the views of these experts, because opinion testimony, first of all, is not relevant to those issues, because for every opinion that you have as to one point of view, you will have an opinion opposing that.”

Both the general justification defense found at 18 Pa.C.S. § 503 and that at 18 Pa.C.S. § 510 require that the belief of the actor that his action is necessary be a reasonable belief. See 18 Pa.C.S. § 501, supra. How can a defendant show the reasonableness of his position without reference to the basis or reason for it? Surely some evidence explaining what it was that appellants believed and why they believed it, was necessary to meet the “reasonableness” standard of the defense.

Similarly, how can appellants show that it was reasonable to believe that the harm they sought to avoid was imminent without reference to evidence of imminence?

We wish to emphasize that we do not hold that appellants should have been able to introduce any witnesses they desired, without regard to the proffered testimony. Of course, the testimony must be relevant. Furthermore, at the conclusion of the case, the lower court might properly determine that insufficient evidence was presented to sustain the justification defense. If the proffer indicates that even if the testimony were believed, it would not satisfy the requirements of the justification defense, then the lower court might also preclude the testimony. In this case, however, the record before us is devoid of evidence that the proffered testimony was irrelevant.

The transcript indicates that the appellants presented to the court a brief entitled Points and Authorities in Support of Evidentiary Proffer but that brief was not made a part *257of the record. No other written offer of proof is contained in the record and, as we have indicated, the appellants were precluded from presenting an oral offer as to any expert witness, other than Mr. Aldridge. In fact, when appellants asked the trial court for permission to put on the record the names of those expert witnesses whom they had intended to call, he permitted them to include only the name of Mr. Aldridge.8

We believe that the lower court improperly limited evidence which appellants sought to introduce in support of the justification defense.

It is well established that: “An accused has a fundamental right to present defensive evidence so long as such evidence is relevant and not excluded by an established evidentiary rule.” Commonwealth v. Greene, 469 Pa. 399, 405, 366 A.2d 234, 237 (1976). See also: Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); Commonwealth v. Boyle, 470 Pa. 343, 368 A.2d 661 (1977); Commonwealth v. Cropper, 463 Pa. 529, 345 A.2d 645 (1975); Commonwealth v. Bailey, 450 Pa. 201, 299 A.2d 298 (1973); Commonwealth v. Collins, 447 Pa. 300, 290 A.2d 121 (1972); Commonwealth v. Boone, 287 Pa.Super. 1, 429 A.2d 689 (1981). Thus, if a defendant poses a defense of justification under § 503, in a setting where it is lawfully available, he must be accorded, to the extent that our evidentiary rules allow, the right to present all relevant evidence which he chooses concerning that defense. Commonwealth v. Walley, 466 Pa. 363, 353 A.2d 396 (1976).

Clearly, the issue of justification in this Commonwealth, when properly raised, is a factual one which must be resolved by the fact finder. Cf: Commonwealth v. Schaller, 493 Pa. 426, 426 A.2d 1090 (1981); Commonwealth v. Brown, 491 Pa. 507, 421 A.2d 660 (1980); Commonwealth v. McGuire, 487 Pa. 208, 209, 409 A.2d 313 *258(1979); Commonwealth v. Colbert, 476 Pa. 531, 383 A.2d 490 (1978). Accordingly, the fact finder decides both whether the defendant’s subjective justificatory beliefs were honest and sincere and whether acting upon such a belief was objectively reasonable. Commonwealth v. Schaller, supra. In this process, as we have noted, the fact finder may consider, in gauging the genuineness of this belief, whether reasonable legal alternatives to breaking the law existed or, if the circumstances of the case warrant such a finding, that the threat posed was sufficiently imminent to justify such an act.

The lower court erred when it ruled that appellants could not introduce the evidence they needed to show the objective reasonableness of their actions. Instead, the court limited their proof to showing the subjective reasonableness of the action.

Similarly, while we agree with the dissent’s conclusion that the record does not contain evidence that the harm was imminent, we conclude that the appellants were effectively and improperly precluded from presenting evidence to show imminence, as required by § 510.

We turn next to the dissent’s conclusion, stated without explanation, that it is unreasonable as a matter of law to believe that nuclear disaster could be avoided by the actions undertaken by appellants.

Unlike the dissent which seems to say that to avail themselves of the defense appellants must be able to show that their actions could totally avert nuclear war, we will not hold them to such a burden. Appellants must show that their actions could reasonably have been thought necessary to avert a public disaster. See Restatement, § 196, supra. Surely the use of the weapons, the components of which were damaged by appellants would cause a public disaster on the order of a “conflagration, flood, earthquake or pestilence.” See Capitolo, supra.

Appellants explain in their brief that Robert Aldridge would have described the nature of the weapons compo*259nents at the G.E. plant and shown that the hydrogen bombs for which they were being constructed could not operate without them. Therefore, the argument might reasonably be made that destruction of those components could avert nuclear disaster to an appreciable extent.

While appellants surely had as their ultimate goal the destruction of all nuclear weapons, we will not find their defense unreasonable simply because their action could immediately result in damage to only some of those weapons, since destruction of those weapons alone might reasonably avert disaster.

Nor do we agree with the dissent’s conclusion that the justification defense was unavailable to appellants because there exists a legislative purpose to exclude it.

As the dissent notes, both 18 Pa.C.S.A. § 503 and § 510 provide that the defenses are available if a “legislative purpose to exclude the justification does not otherwise plainly appear.” The dissent finds such a purpose in the provisions of the Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq. and 18 U.S.C. § 2155, which makes the destruction of nuclear defense materials a crime.

We have reviewed the provisions of these statutes and do not see in them evidence of a purpose to exclude the justification defense.9

True, 18 U.S.C. § 2155 may conceivably make criminal the activities engaged in by appellants, but how does the existence of another crime with which they might have been charged affect the availability of the justification defense to the crimes before us? Appellants may even have been chargeable with other, unmentioned crimes, but we are not aware of a principle that states that the defenses available to a defendant are limited by the numbers of crimes with *260which he might be charged. Yet in citing 18 U.S.C. § 2155, that is the principle espoused by the dissent.

While the Atomic Energy Act does contain a declaration of policy favoring “the development, use and control of atomic energy ... so as to make the maximum contribution to the general welfare,” Id. at § 2011, we note that neither that Act nor the Energy Reorganization Act, 42 U.S.C. §§ 5801-5891 also mentioned by the dissent, contains a statement of “clear and manifest purpose” to exclude the justification defense to a charge of burglary in Pennsylvania. See Capitolo, supra, 324 Pa.Super. 61, 471 A.2d 462, in which this Court so finds no such purpose.

In this regard see also Silkwood v. Kerr-McGee Corporation, — U.S. —, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984), in which the United States Supreme Court has recently held that a state-authorized award of punitive damages arising from a federally licensed nuclear facility is not preempted by the Atomic Energy Act, nor by the proscription against states regulating the safety aspects of nuclear energy.

While we as a nation, through our Congress, have enacted legislation indicating that we favor the use of nuclear power for the general welfare, we as residents of the Commonwealth of Pennsylvania have enacted a Crimes Code containing a justification defense that relieves from criminal liability those persons who act with a reasonable belief that their actions are necessary to avert imminent disaster. It is the criminal liability of appellants that is at issue, not the merits of our nuclear policy. The jury need not agree with appellants’ views in order to acquit them. They need to find only that they acted reasonably.

As the Model Penal Code draftsmen of this provision specified, such a plain legislative purpose to exclude must be “a deliberate legislative choice, as when the law has dealt explicitly with the specific situation that presents the choice of evils ...” American Law Institute, Model Penal Code, § 3.02, Commentary at 6 (Tent. Draft No. 8, *2611958) (emphasis added). A legislative choice is plain and explicit where “the legislature has itself canvassed and determined what the choice [of evils] shall be.” Id. No such plain nor explicit legislative choice to exclude appellants’ proffered justifications appears in this case and it is not the province of the judiciary to imply or create such an exception, however inappropriate we may personally feel appellants’ conduct to have been.10

II.

Appellants further contend that the trial judge erred in the conduct of voir dire in various respects. Most significantly, they argue: (1) that each potential juror should have been interviewed outside the presence of the other panel members; (2) that the lower court improperly excluded the public from the jury selection process.

The scope of voir dire rests in the sound discretion of the trial judge and his decision will not be reversed in the absence of palpable error. Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977); Commonwealth v. Fulton, 271 Pa.Super. 430, 413 A.2d 742 (1979); Commonwealth v. Stanton, 269 Pa.Super. 305, 409 A.2d 901 (1979). The exercise of this discretion is, however, subject to the basic demands of fairness. Bentivoglio v. Ralston, 447 Pa. 24, 288 A.2d 745 (1972). Commonwealth v. Davis, 282 Pa.Super. 51, 422 A.2d 671 (1981).

The Pennsylvania Supreme Court said in Commonwealth v. England, 474 Pa. 1, 6-7, 375 A.2d 1292, 1295 (1977):

*262The single goal in permitting the questioning of prospective jurors is to provide the accused with a “competent, fair, impartial and unprejudiced jury.” ...
Although latitude should be permitted on a voir dire, the inquiry should be strictly confined to disclosing qualifications or lack of qualifications and whether or not the juror had formed a fixed opinion in the case as to the accused’s guilt or innocence.

See also Commonwealth v. Davis, supra, 282 Pa.Super. at 54, 422 A.2d at 672.

The Supreme Court in Commonwealth v. England, supra, 474 Pa. at 8, 375 A.2d at 1296, further admonished our courts stating:

A prospective juror’s personal views are of no moment absent a showing that these opinions are so deeply embedded as to render that person incapable of accepting and applying the law as given by the court. So long as the juror is able to, intends to, and eventually does, adhere to the instructions on the law as propounded by the trial court, he or she is capable of performing the juror’s function. In this regard, it may safely be inferred that a juror will not violate his or her oath in the absence of any expression or other indications to the contrary.

See also Commonwealth v. Sparrow, supra; Commonwealth v. Dukes, 460 Pa. 180, 331 A.2d 478 (1975); Commonwealth v. Dolhancryk, 273 Pa.Super. 217, 417 A.2d 246 (1979).

In essence, as our Supreme Court explained in Commonwealth v. Crowder, 444 Pa. 489, 282 A.2d 361 (1971): “The voir dire examination is merely a means to the end of achieving an impartial jury.”

Voir dire began on February 23, 1981 and concluded on March 2, 1981. On February 23, the jury panel of 40 persons was interviewed as a group. Each of the appellants questioned the prospective jurors.- When approximately 15 of the panel members indicated that they were biased against the defendants due to pretrial publicity, the entire panel was excused. On February 24, prospective *263jurors were interviewed in panels of four. Again, each of the appellants was permitted to question panel members.

On February 25, the prospective jurors were interviewed in panels of four, but on this date the questions were posed by the court. The appellants were only permitted to supplement those questions asked by the court by submitting to the judge proposed written questions. The questions were not preserved for our review. See Rule 1106(d), Pennsylvania Rules of Criminal Procedure.

Pennsylvania Rule 1106 provides that in non-capital cases, the trial judge is to conduct voir dire by either individual voir dire or a list system of challenges. Appellants argue that because of the extensive pre-trial publicity about their case, the trial judge ought to have conducted individual voir dire.

In Commonwealth v. Johnson, 440 Pa. 342, 269 A.2d 752 (1970) the Supreme Court found that much of the publicity preceding Johnson’s trial had been prejudicial. The media accounts included coverage of inflammatory statements by the District Attorney. The case was a racially sensitive one. Under these circumstances, the court found that the trial court had abused its discretion in refusing to conduct individual voir dire. It reasoned:

If the action of the trial court in arbitrarily refusing to allow voir dire out of the hearing of other jurors were upheld, it would have the effect of writing into the rule a provision that a trial judge need not take an easy precaution which might prevent a trial from being prejudiced by pretrial publicity if he doesn’t want to. When there is present in a case inflammatory pretrial publicity which creates the possibility that a trial could be prejudiced, there are exactly those circumstances present which require each juror to be questioned out of the hearing of the other jurors. Consequently, in such situations, when this form of voir dire is requested, it is an abuse of discretion to refuse that request.

*264440 Pa. at 351-353, 269 A.2d at 757.11

It is undisputed that the present case has been accompanied by an extraordinary amount of publicity. The trial judge himself noted during voir dire that “everybody around here [has formed an opinion] because they read about [the case] in the newspapers.”

In Commonwealth v. Johnson, supra, all of the jurors who indicated that they had read or heard of the appellant indicated that despite such awareness of him, they were of an open mind. The Supreme Court, nevertheless, found that individual voir dire outside the hearing of other jurors would have been preferable because each prospective juror needed to be examined “as to the exact amount of publicity concerning the appellant he had experienced, and which information he had retained and in this manner possible challenges for cause might have developed.” 440 Pa. at 352, 269 A.2d at 757. Compare, Commonwealth v. Dolhancryk, supra.

In this case, all but two of sixty prospective jurors responded that they had heard of the incident which gave rise to the charges for which appellants were being tried. Most of the jurors also said that they would still be able to judge appellants fairly based on the evidence presented at trial. Nonetheless, we conclude that Commonwealth v. Johnson, supra, is controlling, that the widespread publicity surrounding this case and its potential to arouse prejudices required that potential jurors be interviewed individually.12 Thus, at the new trial the individual voir dire and challenge system outlined in Rule 1106(e)(1) must be followed.

*265The court on remand must also strictly comply with Rules 1108 and 1126, Pennsylvania Rules of Criminal Procedure, regarding the number of peremptory challenges to which the Commonwealth and each defendant are entitled.

Furthermore, the appellants contend that they, rather than the judge, should have been permitted to question prospective jurors. In this case, the effect of such a procedure may well have been to subject jurors to questioning by many individuals. This process could have been unduly lengthy and unwieldy. The format of the voir dire, in this regard, must remain in the sound discretion of the trial judge. Cf. Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 (1976). However, on remand, should the trial judge in his discretion, decide to question the jurors himself, he must, of course, permit the appellants to submit proposed questions for the jurors to him. These questions shall be retained to become part of the record. See, Rule 1106(c). We also direct that a record of the strike off sheet be kept and preserved for appellate review.

Appellants also contend that the voir dire of prospective trial jurors was improperly closed to the public. The trial judge limited access to the parties and the press.13

The United States Supreme Court decided recently the voir dire process must be open to the public, absent specific findings by the trial court that a public voir dire would violate the privacy interests of the prospective jurors. In Press-Enterprise Company v. Superior Court of California, Riverside County, — U.S. —, —, 104 S.Ct. 819, 826, 78 L.Ed.2d 629 (1984), the Court instructed:

Where ... the state attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest____ The presumption of *266openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.

While the Press-Enterprise case involved a First Amendment claim by the press, rather than a claim by the defendant that his right to public trial had been violated, (as is presented to us), we nonetheless find the opinion helpful to the disposition of the case before us. As the Court noted Id. at —, 104 S.Ct. at 825

For present purposes, how we allocate the “right” to openness as between the accused and the public, or whether we view it as a component inherent in the system benefiting both, is not crucial.
... The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed: the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known.

The Pennsylvania Constitution provides at Article 1 § 9: “In all criminal prosecutions [by indictment or information] the accused hath a right to ... a ... public trial ____” Const. Art. 1 § 9. Article 1, Section 11 provides that “[a]ll courts shall be open.”

This court recently held that the right to a public trial, under both the United States Constitution and the Pennsylvania Constitution, includes the right to have a jury selected in public. Commonwealth v. Johnson, 309 Pa.Super. 367, 455 A.2d 654 (1982). In a comprehensive opinion in that case Judge Spaeth said,

The guarantee of a public trial in a criminal case is not for the protection of only the accused. The victim, in particular, and the community, in general, are also within the guarantee. “[I]f people care to use the courts, they must trust them. Courts achieve this goal by allowing *267people to observe, study, and compare them with other methods of rendering disputes.” (Citations omitted.)

Id., 309 Pa.Superior Ct. at 376, 455 A.2d at 658.

After concluding that the right to public trial extends to the jury selection process, the Johnson opinion acknowledges that the right to a public trial is not absolute, but, rather, must be considered in relationship to other important matters. That is, the record should be examined to determine whether it discloses any interest, or reason, sufficient to support the lower court’s limitation of the appellants’ right to a public trial. Id., 309 Pa.Superior Ct. at 383, 455 A.2d at 662. See also Commonwealth v. Knight, 469 Pa. 57, 364 A.2d 902 (1976).

We explained in Commonwealth v. Johnson, supra that the propriety of a limitation on the right to a public trial must be tested by the standard of “strict and inescapable necessity.” Id., 309 Pa.Superior Ct. at 383, 455 A.2d at 662. See also Press-Enterprise Company, supra.

Our review of the record discloses there was no necessity for the court to have been closed during appellants’ voir dire.

The trial judge explained that he ordered the closure in order to prevent noise and confusion. It seems obvious to us that courtroom decorum can be maintained without invoking such drastic measures; certainly, there has been displayed no strict and manifest necessity for the closing of the court. As the Supreme Court observed in Press-Enterprise Company, supra, — U.S. at —, 104 S.Ct. at 823, “[Sjince the development of trial by jury, the process of selection of jurors has presumptively been a public process with exceptions only for good cause shown.” No such good cause was demonstrated in the instant case.

III.

Appellants argue that the trial judge should have recused himself. We need not discuss the judge’s failure to recuse himself at the first trial, since we have determined that *268appellants are otherwise entitled to a new trial. We agree, however, that the new trial should not be conducted by the same judge, nor should he be involved in any further proceedings in this case.

The record in this case is replete with emotionally charged exchanges between the court and appellants and their advisory counsel.

For example, after appellants asked advisory counsel to no longer represent their interests at trial, counsel left the courtroom while some of the defendants stood with their backs to the Court.

The court then instructed the jury and called a recess. Following the recess, advisory counsel returned. The court informed counsel that he considered their behavior in leaving the courtroom to be a direct act of contempt. The discussion that followed contained the following exchanges:

THE COURT: Let me say something else. You have an obligation to this Court, as does every single attorney who appears here, to properly conduct yourself with proper demeanor.
MR. SHIELDS: Our first obligation is to our clients. I think we carried that out.
MR. GLACKIN: I think under the conditions in this courtroom we performed like saints.
THE COURT: I am sure you performed like saints. You performed like saints to the press yesterday, too.
MR. GLACKIN: That has nothing to do with this courtroom, Your Honor. If you have any comments about that, you can reserve that for some cocktail lounge.
THE COURT: I have no personal grudge about that.
MR. GLACKIN: It’s odd that it should come out now.
THE COURT: It’s odd that it came out in the paper.
MR. GLACKIN: Well, isn’t that too bad, that the truth shall be heard? And the truth doesn’t make everybody—
MR. GLACKIN: You are not going to taint my reputation with impunity, I will tell you that.
*269THE COURT: You are not going to make a threat to the Court either.
MR. GLACKIN: Why don’t you sue for blasphemy? In a sense, it is a badge of honor.

While the question of whether counsel behaved contemptuously is not before us, we cite the above quoted instance as an example of the heated emotional dialogue that occurred at various points during the trial.

While we did not cite other instances at length we note that at one point one of the defendants, Molly Rush, accused the court of having lied to the defendants and said “... Your Honor, we believe the Court, and you personally, have displayed yourself, I think, along with the entire judicial system of this country as the legalized arm for genocide.”

In Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971), the United States Supreme Court held that by reason of the Due Process clause of the Fourteenth Amendment, a defendant in criminal contempt proceedings should be given a public trial before a judge other than the one reviled by the contemnor.

As we have indicated, contempt proceedings are not before us for review and in this regard our case differs from Mayberry in which the trial court’s finding of the defendants in contempt at the conclusion of trial was before the Supreme Court. We nonetheless find the Mayberry opinion instructive.

In Mayberry the trial court did not act at the time the contempt was committed, but waited until the end of trial. The Supreme Court observed that it is “generally wise where the marks of the unseemly conduct have left personal stings to ask a fellow judge to take his place.” Id. at 464, 91 S.Ct. at 504.

As the Court explained,

Whether the trial be federal or state, the concern of due process is with the fair administration of justice. At times a judge has not been the image of “the impersonal *270authority of law” (Offutt v. United States, 348 U.S. 11, 17, 75 S.Ct. 11, 15, 99 L.Ed. 11) but has become so “personally embroiled” with a lawyer in the trial as to make the judge unfit to sit in judgment on the contempt charge.

Id. at 465, 91 S.Ct. at 504, 505.

We conclude similarly that the trial judge in the instant case became so “personally embroiled” with both the lawyers and the defendants in this case as to require him to recuse himself from further participation in the case.

We note additionally that the Code of Judicial Conduct, adopted by the Supreme Court of Pennsylvania, effective January 1, 1974, 455 Pa. at XXXIX (1973), Canon 3 A (6) states: “A judge should abstain from public comment about a pending proceeding in any court____”. Despite this proscription, the trial judge apparently granted an interview to the New York Times during the voir dire period and was quoted as having said, “It’s a different kind of case. In any case of civil disobedience, the prosecutor, the judge and the jury are put on trial.”

The trial judge should not have commented upon what he perceived to be appellant’s trial strategy. His comments certainly indicated to the public the way in which he viewed appellants’ position although the trial had barely begun.

See Code of Judicial Conduct Canons 2 and 3(C). See also Commonwealth v. Darush, 501 Pa. 15, 459 A.2d 727 (1983) in which our Supreme Court considered as relevant to a recusal motion remarks by the trial judge from which a significant minority of the lay community could reasonably question the court’s impartiality.

In addition to his public comment the trial judge made known his sentiments about the case in a letter sent by him to a filmmaker who had requested permission to film the courtroom, a copy of which was made an exhibit to appellants’ recusal motion. The judge wrote: “I feel that to make a documentary of such an insignificant situation will *271make heroes of immature and intransigent people, enhancing their status and importance. It gives them the much wanted publicity which motivated them to do the illogical act in the first place.”

The Supreme Court explained in Commonwealth v. Boyle, 498 Pa. 486, 490 n. 4, 447 A.2d 250, 252 n. 4 (1982) that:

A jurist’s impartiality is called into question whenever he has doubts as to his ability to preside objectively and fairly in the proceedings or where there exists [sic] factors or circumstances that may reasonably question the jurist’s impartiality in the manner.

We certainly recognize that the trial judge was under great pressure in this case. We do not condone the defiant, disrespectful behavior of appellants and advisory counsel. Nevertheless, the fact remains that the judge was not only attacked on a personal level, as was the judge in Mayberry, supra, he also responded to the appellants in such a way as to display his partiality.

The new trial is therefore to be conducted by a judge other than the judge who presided over the first trial.

IV.

Next, the appellants assert that the informations filed against them were not properly signed. The informations were not signed by the District Attorney, but, rather, by Assistant District Attorney John Armstrong. The informations were executed on October 23, 1980. On March 10, 1980, Assistant District Attorney Armstrong had been designated by the District Attorney as an assistant authorized to sign criminal informations. See 42 Pa.C.S. § 8931(d)(e)14 which discusses the duties of prosecuting attorneys as to indictment and information and 42 Pa.C.S. § 8931(i) which provides for the written designation procedure followed in this case. See also Pa.R.Crim.P. 225(b) which requires that a criminal information be signed by the attorney for the *272Commonwealth. For a comprehensive discussion of the signature requirement see our Supreme Court’s recent opinion in Commonwealth v. Emanuel, 501 Pa. 581, 462 A.2d 653 (1983).

Subsequent to March 10, 1980, when Mr. Armstrong was designated as authorized to sign informations, other lists of designated assistant district attorneys were filed by the District Attorney of Montgomery County. Appellants contend that because Mr. Armstrong was not again named as a designee, his designation had been withdrawn by the District Attorney. We agree with the lower court’s conclusion that the addition of names did not itself revoke the authority previously given to Mr. Armstrong. The informations were therefore signed in conformance with 42 Pá.C.S. § 8931.

Having concluded that appellants are entitled to a new trial, we reverse judgments of sentence and remand for new trial at which appellants shall be permitted to prove, if they can, that their conduct was justified.

SPAETH, J., files a concurring opinion. WIEAND, J., files a concurring and dissenting opinion in which HESTER and JOHNSON, JJ., join.

. 18 Pa.C.S. § 3502.

. 18 Pa.C.S. § 3304.

. 18 Pa.C.S. § 903.

. Appellants argue that the property damage assessment was too high because it did not include the salvageable value of the damaged missile shell.

. 18 Pa.C.S. § 501 et seq.

. Appellants raise other issues which we need not address in view of our disposition of the above recited questions.

. See American Law Institute, Model Penal Code § 3.02, Commentary at 5-7 (Tent.Draft No. 8, 1958).

. In her opening address Molly Rush said they would present expert witnesses who would testify regarding the kind of harm or evil sought to be avoided and "who will give you information about the immediacy of the threat of nuclear war and the effect of nuclear war.”

. We are cognizant of the fact that, as the dissent notes, the courts of other jurisdictions have held otherwise. However, the decisions of those courts are not binding upon us and we consider them to be in error.

. We note finally the dissent’s intimation that appellants’ actions should be treated as civil disobedience, with appellants accepting the punishment due them for the commission of the crime. This position, however, ignores the fact that appellants claim not to have committed the crime; or in the alternative to have been justified in committing it. They do not claim, as those who commit civil disobedience do, to have broken the law. Therefore, civil disobedience principles are not applicable to this case. See Capitolo, supra, for a thorough discussion of the distinction between civil disobedience and justification.

. Although the decision in Commonwealth v. Johnson, supra, predates our present Rule 1106, it has been cited since the adoption of that rule for the principle that each 0 prospective juror should be questioned out of the hearing of other prospective jurors where such a procedure will help to assure a fair trial. See Commonwealth v. Smith, 480 Pa. 524, 391 A.2d 1009 (1978).

. It is of course advisable that any juror dismissed for cause also be segregated entirely from other selected or prospective jurors.

. This issue was preserved for review in accordance with our Supreme Court’s holding in Commonwealth v. Mimms, 477 Pa. 553, 556-557 n. 5, 385 A.2d 334, 335 n. 5 (1978).

. Act of July 9, 1976, P.L. 586, No. 142; as amended.