Commonwealth v. Berrigan

WIEAND, Judge,

concurring and dissenting.

I agree that appellants must be granted a new trial. However, I dissent vigorously from the majority’s holding that upon a retrial appellants-must be permitted to attempt to justify their criminal conduct by showing the reasonableness of their disagreement with national defense policies established by the Congress of the United States.

The Reverend Daniel Berrigan, the Reverend Philip Berrigan, Sister Anne Montgomery, Elmer H. Maas, the Reverend Carl Kabat, John Schuchardt, Dean Hammer and Molly Rush, the appellants, were convicted by a jury of burglary,1 criminal mischief2 and criminal conspiracy3 as a result of their entering the General Electric Plant at King of Prussia where they damaged hydrogen bomb missile components being made for the United States Government. Appellants admitted that they had committed these acts. They sought to establish at trial, however, that their conduct was justified because the government’s policy pertaining to the manufacture and deployment of nuclear weapons was illegal and created a threat of world disaster.4 On appeal, they *281contend that the trial court erroneously excluded evidence pertaining to the objective reasonableness of the beliefs upon which they sought to base their defense of justification. More specifically, they complain that they were not permitted to present expert testimony on the consequences of nuclear warfare in order to justify their destruction of missile components manufactured by General Electric. In addition, they challenge the procedure adopted by the trial court for conducting voir dire examination of prospective jurors.

The trial court committed serious error when it excluded the public, as well as appellants’ families, from the courtroom during selection of a jury. Both the Sixth Amendment to the United States Constitution and Article I, § 9 of the Pennsylvania Constitution guarantee an accused the right to a public trial. Press-Enterprises Co. v. Superior Court of California, Riverside County, — U.S. —, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984); United States v. Sorrentino, 175 F.2d 721, 722 (3rd Cir.), cert. denied, 338 U.S. 868, 70 S.Ct. 143, 94 L.Ed. 532 (1949); United States v. Kobli, 172 F.2d 919, 921 (3rd Cir.1949); Commonwealth v. Contakos, 499 Pa. 340, 344, 453 A.2d 578, 580 (1982); Commonwealth v. Johnson, 309 Pa.Super. 367, 377, 455 A.2d 654, 659 (1982); Commonwealth v. Wright, 255 Pa.Super. 512, 515, 388 A.2d 1084, 1086 (1978); Commonwealth v. Stevens, 237 Pa.Super. 457, 467, 352 A.2d 509, 514 (1975); Commonwealth ex rel. Paylor v. Cavell, 185 Pa.Super. 176, 180-181, 138 A.2d 246, 248 (1958), cert. denied, 358 U.S. 854, 79 S.Ct. 84, 3 L.Ed.2d 88 (1958). See also: Commonwealth v. Knight, 469 Pa. 57, 65, 364 A.2d 902, 906 (1976). The selection of a jury is included and is part of a “trial” for purposes of applying the right to a public trial. Press-Enterprises Co. v. Superior Court of California, Riverside County, supra; United States v. Sorrentino, supra at 722; Commonwealth v. Johnson, supra, 309 Pa.Super. at 381, 455 A.2d at 661. The presence of members of the *282media during the selection of the jury “does not satisfy the requirement of openness.” Commonwealth v. Contakos, supra, 499 Pa. at 345, 453 A.2d at 580. Where a violation of an accused’s right to a public trial is established, no further showing of prejudice is required. United States ex rel. Bennett v. Rundle, 419 F.2d 599, 608 (3rd Cir.1969); United States v. Kobli, supra at 921; Commonwealth v. Knight, supra, 469 Pa. at 65, 364 A.2d at 906; Commonwealth v. Johnson, supra, 309 Pa.Super. at 376, 455 A.2d at 658.

It is true, of course, that “the right to a public trial is not absolute ... [but] must be considered in relationship to other important interests.” Commonwealth v. Knight, supra, 469 Pa. at 65, 364 A.2d at 906 (footnote omitted). Accord: United States ex rel. Smallwood v. LaValle, 377 F.Supp. 1148, 1151 (E.D.N.Y.1974), aff'd, 508 F.2d 837 (2nd Cir.1974), cert. denied, 421 U.S. 920, 95 S.Ct. 1586, 43 L.Ed.2d 788 (1975); United States v. Kobli, supra at 922; Commonwealth v. Johnson, supra, 309 Pa.Super. at 382-83, 455 A.2d at 661-662; Commonwealth v. Wright, supra, 255 Pa.Super. at 515, 388 A.2d at 1086; Commonwealth v. Stevens, supra, 237 Pa.Super. at 467, 352 A.2d at 514. The Pennsylvania Supreme Court, in Commonwealth v. Knight, supra, observed that “a court must assess all of the circumstances to determine if they present a situation in which an exclusion order is necessary. If the court determines a necessity exists, it may then issue an exclusion order; but the exclusion order must be fashioned to effectuate protection of the important interest without unduly infringing upon the accused’s right to a public trial either through its scope or duration.” Id. 469 Pa. at 66, 364 A.2d at 906 (footnote omitted). The Court observed further that an exclusion order “should generally not exclude the family and friends of an accused. . . .” Id., 469 Pa. at 69 n. 11, 364 A.2d at 908 n. 11. See also: Commonwealth v. Burton, 459 Pa. 550, 558, 330 A.2d 833, 837 (1974).

The record in the instant case fails to disclose any legally sufficient basis for the issuance of the trial court’s exclu*283sion order. The trial judge cleared the courtroom of spectators prior to commencing voir dire on Monday, February 23, 1981, on the grounds that the presence of a forty member panel of veniremen necessitated the use of all available seats not occupied by the press. The entire panel was subsequently excused from the courtroom, and voir dire was thereafter conducted with panels of four veniremen. On Tuesday, February 24, 1981, appellants requested that the exclusion order be rescinded as the area was no longer required for the veniremen. The trial court refused to admit the public, noting that “you get a lot of noises and extraneous influences.” (N.T. 123). The request of Carl Kabat that his mother be exempted from the exclusion order was denied, the trial court stating: “... for the purpose of decorum, I am going to leave it as it is with respect to the jury picking process. When the jury is ultimately picked, this will be a completely open trial.” (N.T. 124). Ms. Rush’s requests that her children be permitted to observe the selection of the jury were also denied. All appellants renewed their request on Thursday, February 26, 1981, that the public be admitted to the courtroom during voir dire, arguing that the Sixth Amendment guaranteed them the right to a public trial. The trial court again refused to lift the exclusion order, stating that “it would be very distracting for people to move in and out of here, as they are want [sic] to do, until such time as the jury is sworn____ The trial of the case begins when the jury is sworn and the testimony taken.” (N.T. 700-701).

It is readily apparent from these facts that necessity did not support the trial court’s exclusionary order. See: Commonwealth v. Johnson, supra, 309 Pa.Super. at 384-85, 455 A.2d at 662-663. Because appellants’ right to a public trial was violated, I must agree with the majority that appellants are entitled to a new trial.

I disagree, however, that appellants should be permitted to prolong the retrial interminably by introducing evidence intended to show the reasonableness of appellants’ belief that policies of national defense established by Congress *284were wrong. Appellants’ criminal acts cannot be sanctified merely because they hold a sincere belief that national defense policies are wrong and that they, therefore, have a higher obligation to keep those policies from being put into effect.

There can be no doubt, of course, that “[a]n accused has a fundamental right to present evidence so long as such evidence is relevant and not excluded by an established evidentiary rule. See: Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972).” Commonwealth v. Greene, 469 Pa. 399, 404, 366 A.2d 234, 237 (1976). Accord: Commonwealth v. Boone, 287 Pa.Super. 1, 10, 429 A.2d 689, 693 (1981); Commonwealth v. Britton, 251 Pa.Super. 335, 344, 380 A.2d 807, 811 (1977). A defendant has no right, however, to present evidence that is irrelevant to the issues being tried. In order for evidence to be legally relevant, it must first be logically relevant. The only test of logical relevance is probative value. Brown, Pennsylvania Evidence, p. 55. Relevancy means “ ‘the logical relationship between the proposed evidence and a fact to be established.’ ” Commonwealth v. Vukovich, 301 Pa.Super. 111, 118, 447 A.2d 267, 270 (1982), quoting 29 Am.Jur.2d 302, 303, Evidence § 252; Reichman v. Wallach, 306 Pa.Super. 177, 189-191, 452 A.2d 501, 508 (1982). Therefore, in order for evidence pertaining to the objective reasonableness of appellants’ beliefs to be relevant and admissible, it must first be determined that appellants were entitled to raise justification as a defense to the crimes with which they were charged. After much thought and research, I have concluded that as a matter of law.the defense of justification was not available to appellants in this case. The evidence which appellants sought to introduce at trial, therefore, was irrelevant to the issues being tried and was inadmissible.

In general, it can be said that legal justification constitutes a defense to a criminal charge. 18 Pa.C.S. § 502. *285The general rule is contained in 18 Pa.C.S. § 503(a) as follows:

“(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.”

However, the specific rule pertaining to property crimes has been set forth in 18 Pa.C.S. § 510. This section of the Crimes Code provides as follows:

“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 justification claimed otherwise plainly appears.”

Section 510 of the Crimes Code was taken from Section 3.10 of the Model Penal Code. It is “addressed not to the use of force against the person but to conduct involving intrusion on or interference with property.... The Section is framed upon the view that in this area the penal law must on the whole accept and build upon the privileges recognized in the law of torts and property____” A.L.I., Model Penal Code, Comment to Article 3 (Tent. Draft No. 8, 1958).

The applicable tort rule appears in Sections 196 and 261 of the Restatement (Second) of Torts. These sections establish that one is privileged to enter the land of another and convert or commit a trespass to his chattels if the act is or *286the actor reasonably believes it to be necessary to avert an imminent public disaster. If the actor believes that the impending disaster may be prevented or mitigated in some other reasonable way, the trespass is not privileged. Restatement (Second) of Torts, § 196, comment (d).

In the instant case, the record is clear that appellants’ offer did not present an emergency situation in which a public disaster was imminent. There was no immediate emergency requiring appellants to trespass upon the property of General Electric and destroy missile components. Moreover, it was unreasonable as a matter of law to believe that nuclear war could be avoided merely by destroying one of several components being separately made for incorporation into future nuclear missiles. Appellants’ acts simply were not the type of conduct which is privileged under the existing law of torts. Appellants were not privileged to destroy another person’s property in the hope that “their action ... might accelerate a political process ultimately leading to the abandonment of nuclear missiles.” (Concurring op. at p. 1115). Their trespass upon and destruction of private property under the circumstances of this case rendered them liable both civilly and criminally.

To permit appellants to justify their criminal invasion and destruction of private property because they believed there was inherent in such property a potential for future catastrophe would be equivalent to allowing the theft and destruction of privately owned guns or ammunition by altruistic and well meaning citizens who sincerely believe that guns and ammunition possess the potential to kill at some time in the future. To permit each person to act according to his own belief in such cases is to achieve anarchy and chaos. This was not the purpose of the limited privilege granted by the Crimes Code. The cornerstone of the tort privilege is an emergency requiring immediate action to prevent greater harm. The privilege does not exist where the lack of immediacy permits the use of other means to prevent the harm. Private citizens cannot be permitted to take and destroy their neighbors’ property because of a *287belief that at some unascertained future time the property may be used to achieve a greater evil.

Similarly, the law does not allow a citizen to justify his or her criminal conduct by a subjective disagreement with a policy decision previously made by duly constituted authority. Both Section 503 and Section 510 of the Crimes Code exclude justification as a defense to a criminal charge if a legislative purpose to exclude the justification plainly appears. See: 18 Pa.C.S. §§ 503(a)(3) and 510(2). Such a legislative purpose exists in the instant case and precludes justification as a defense to the crimes charged.

The plenary war powers of the United States Government include the exclusive right to enact all legislation necessary to provide for the common defense. U.S. Const, art. 1, § 8, cl. 1; Ex Parte Quirin, 317 U.S. 1, 25-26, 63 S.Ct. 2, 9-10, 87 L.Ed. 3 (1942). “The war power of the national government is ‘the power to wage war successfully.’ See Charles Evans Hughes, War Powers Under the Constitution, 42 ABA Rep 232, 238. It extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials. . . .” Hirabayashi v. United States, 320 U.S. 81, 93, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943). See also: United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968), reh. denied, 393 U.S. 900, 89 S.Ct. 63, 21 L.Ed.2d 188 (1968); McKinley v. United States, 249 U.S. 397, 39 S.Ct. 324, 63 L.Ed. 668 (1919); Pauling v. McElroy, 107 U.S.App.D.C. 372, 374, 278 F.2d 252, 254 (1960), cert. denied, 364 U.S. 835, 81 S.Ct. 61, 5 L.Ed.2d 60 (1960); 78 Am.Jur.2d, War, § 18. Pursuant to these powers Congress enacted the Atomic Energy Act of 1954,5 42 U.S.C. § 2011 et seq., with the aim of assuring *288“that atomic energy makes the maximum contribution to the general welfare of the Nation, subject to the paramount objective of having it make the maximum contribution to the common defense and security____” S.Rep. No. 1699, 83rd Cong., 2nd Sess., reprinted in 1954 U.S.Code Cong. & Ad.News 3456, 3465. (emphasis supplied). See also: 42 U.S.C. § 2011(a). Congress has also specifically prohibited the destruction of national defense materials. Thus, 18 U.S.C. § 2155 provides:

“Destruction of national-defense materials, national-defense premises or national-defense utilities-
(a) Whoever, with intent to injure, interfere with, or obstruct the national defense of the United States, willfully injures, destroys, contaminates or infects, or attempts to so injure, destroy, contaminate or infect any national-defense material, national-defense premises, or national-defense utilities, shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
(b) If two or more persons conspire to violate this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be punished as provided in subsection (a) of this section.”

This proscription applies to missile components destroyed by appellants in this action. In 18 U.S.C. § 2151, national-defense materials are defined to include, inter alia:

“arms, armament, ammunition, livestock, forage, forest products and standing timber, stores of clothing, air, water, food, foodstuff, fuel, supplies, munitions, and all other articles of whatever description and any part or ingredient thereof, intended for, adapted to, or suitable for the use of the United States in connection with the national defense or for use in or in connection with the producing, manufacturing, repairing, storing, mining, ex*289tracting, distributing, loading, unloading, or transporting of any of the materials or other articles hereinbefore mentioned or any part or ingredient thereof.”

Article VI, clause 2, of the United States Constitution provides that the “... Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” (emphasis supplied). See: Hauenstein v. Lynham, 100 U.S. 483, 490, 10 Otto. 483, 25 L.Ed. 628 (1880). Therefore, when a Congressional “purpose to exclude the justification claimed” appears, the courts of this Commonwealth are bound thereby in their interpretation of Sections 503 and 510 of the Crimes Code.6

Appellants argue that their conduct was justified because nuclear weapons pose a threat to the health and existence of every human being. The catastrophic powers of such weapons cannot be denied. However, Congress, being cognizant of the dangers inherent in nuclear weapons, has determined that such weapons are a necessary component of our national defense strategy. Senate Report No. 1699, discussing the Atomic Energy Act of 1954, notes, inter alia:

“[Ojur Nation has developed, in the form of our atomic-weapon stockpile, a degree of deterring power which may well constitute the free world’s greatest material asset in its effort to avert another worldwide war. The elementa*290ry requirements of national security have compelled us to give military uses of the atom top priority____
“Yet we are aware that legislation, standing by itself, can never substitute for prudent and courageous administration of our atomic enterprise by the responsible officials of the executive branch, for continuing understanding and support of our atomic program in the Congress, and — most of all — for that enlightened and informed public opinion which is the bedrock of wise national policy in our democratic society.
“We have every confidence that the domestic problems created by atomic energy can be resolved through the application of wisdom, willingness of compromise, and good will. We are no less confident that the critical international problems arising out of the growth of nuclear stockpiles could likewise be amenable to resolution through these same means.”

S.Rep. No. 1699, 83rd Cong., 2nd Sess., reprinted in 1954 U.S.Code Cong. & Ad.News 3457, 3465.

Congress has thus made deliberate choices regarding nuclear armaments and has enacted comprehensive legislation 7 dealing with the very issue which appellants contend should now be submitted to a jury in order to determine whether their conduct was a reasonable choice of a lesser evil. Such was not the intent or purpose of the legislature in enacting Sections 503 and 510 of the Crimes Code. Congress has already balanced the “evil” asserted by appel-. lants to be motivation for their acts, and has declared it necessary for the common good.

The Comment to Section 3.02 of the Model Penal Code, upon which 18 Pa.C.S. § 503 is based, provides, inter alia:

“Justification Generally: Choice of Evils
1. This Section accepts the view that a principle of necessity, properly conceived, affords a general justification for conduct that otherwise would constitute an offense; and that such a qualificátion, like the require*291ments of culpability, is essential to the rationality and justice of all penal prohibitions.
The principle is subject to three vital limitations:
(a) The necessity must be avoidance of an evil greater than the evil sought to be avoided by the law defining the offense charged. The balancing of evils cannot, of course, be committed merely to the private judgment of the actor; it is an issue for determination in the trial. What is involved may be described as an interpretation of the law of the offense, in light of the submission that the special situation calls for an exception to the prohibition that the legislature could not reasonably have intended to exclude, given the competing values to be weighed.
(b) The issue of competing values must not have been foreclosed by a deliberate legislative choice, as when the law has dealt explicitly with the specific situation that presents the choice of evils or a legislative purpose to exclude the justification claimed otherwise appears.” (emphasis supplied) (footnote omitted).

“The defense of necessity is based on the policy that there are times when a higher value is protected by violating a less significant value; that the greater good for society can, in some instances, only ‘be accomplished by violating the literal language of the criminal law____ The matter 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 and Scott, Criminal Law § 50, at 382 (1972). Accord: State v. Warshow, 138 Vt. 22, 410 A.2d 1000, 1003 (1979) (Hill, J., concurring); Commonwealth v. Brugmann, 13 Mass.App. 373, 433 N.E.2d 457, 460 (1982); State v. Marley, 54 Haw. 450, 509 P.2d 1095, 1109 (1973). See also: Arnolds and Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J.Crim.L. & Criminology 289, 291-296 (1974). “Determination of the issue of *292competing 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, supra 410 A.2d at 1003. See also: United States v. Kroncke, 459 F.2d 697, 701 (8th Cir.1972); State v. Dorsey, 118 N.H. 844, 395 A.2d 855, 857 (N.H.1978); State v. Greene, 5 Kan.App.2d 698, 623 P.2d 933, 936 (1981).

In the instant case, the purpose of appellants’ conduct was to prevent the future production of nuclear missiles because of their potential for devastation. Congress, however, had already determined that despite a potential for disastrous consequences, the greater good required that such missiles be produced and deployed. Individual citizens, such as the appellants in this case, cannot nullify the Congressional decision made in the interests of national defense by seizing and destroying property intended for use in accordance with such Congressional determination. Similarly, the law pertaining to justification as a defense to criminal conduct does not permit a court or jury to overrule a properly made Congressional determination regarding the use of nuclear power for national defense. The peoples’ elected representatives in Congress have adopted the Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq., and the Energy Reorganization Act of 1974, 42 U.S.C. § 5801 et seq., and have thereby concluded that the national defense requires the production and deployment of nuclear weapons.

The judiciary is without power to review the wisdom of this determination which is within the discretion vested in Congress by the Constitution. Hirabayashi v. United States, supra, 320 U.S. 81 at 93, 63 S.Ct. 1375, at 1382, 87 L.Ed. 1774 (1943); Pauling v. McNamara, 331 F.2d 796, 798 (U.S.App.D.C.1963), cert. denied, 377 U.S. 933, 84 S.Ct. 1336, 12 L.Ed.2d 297 (1964); Pauling v. McElroy, supra 107 U.S.App.D.C. at 374, 278 F.2d at 254. See also: United States v. May, 622 F.2d 1000, 1009 (9th Cir.1980), cert. denied, 449 U.S. 984, 101 S.Ct. 402, 66 L.Ed.2d 247 (1980). *293Our democratic form of government is based upon separation of powers. The power and duty to provide for a national defense is vested in the Congress. The wisdom or folly of its decisions is an issue for public debate, to be resolved through the electoral process. To hold that those who sincerely believe that nuclear weapons pose a threat to society may destroy components thereof and then defend the destruction of private property by a defense which requires a jury to consider complex issues of foreign policy, already resolved by authorities vested with responsibility for such decisions, is to miscomprehend the purpose and rationale of the justification defense. It may be noted that appellants have not at any time argued that they were justified in destroying the missile components because the General Electric factory was producing missiles which were uniquely dangerous by virtue of improper construction or violations of federal safety regulations. Rather, they have argued that their sincerely held, allegedly reasonable beliefs concerning the dangers inherent in the government’s policy of producing and storing nuclear armaments justified their criminal conduct.

The Comment to Section 3.02 of the Model Penal Code makes it clear that the defense of justification can have no application to crimes committed in order to focus public attention on issues of public policy. Where, as here, there is no “special situation [which] calls for an exception” but simply a law or policy which the individual considers morally unacceptable, the defense of justification is not available. To hold otherwise would be to create, contrary to the intent of the legislature, a complete defense for all acts of civil disobedience where the evil perceived by the individual is greater than the evil sought to be avoided by the offense charged, even though the legislature, aware of the “evil” perceived, has determined that such a policy is required for the common good. This is not the intent of Sections 503 and 510 of the Crimes Code.

Nonviolent civil disobedience has effected changes for the benefit of humanity in many instances, and I do not suggest *294that nonviolent civil disobedience has no place in the public debate over military and domestic uses of nuclear power. However, even the strongest proponents of civil disobedience have long recognized that “ '[o]ne who breaks an unjust law must do it openly ... and with a willingness to accept the penalty.’ ” Commonwealth v. Averill, 12 Mass.App. 260, 423 N.E.2d 6, 7 n. 2 (1981), quoting M.L. King, Jr., Why We Can’t Wait, p. 86 (1964).8 As Judge Sobeloff so eloquently observed in a case involving one of the appellants in the instant appeal:

“From the earliest times when man chose to guide his relations with fellow men by allegiance to the rule of law rather than force, he has been faced with the problem how best to deal with the individual in society who through moral conviction concluded that a law with which he was confronted was unjust and therefore must not be followed. Faced with the stark reality of injustice, men of sensitive conscience and great intellect have sometimes found only one morally justified path, and that path led them inevitably into conflict with established authority and its laws. Among philosophers and religionists throughout the ages there has been an incessant stream of discussion as to when, if at all, civil disobedience, whether by passive refusal to obey a law or by its active breach, is morally justified. However, they have been in general agreement that while in restricted circumstances a morally motivated act contrary to law may be ethically justified, the action must be non-violent and the actor must accept the penalty for his action. In other words, it *295is commonly conceded that the exercise of a moral judgment based upon individual standards does not carry with it legal justification or immunity from punishment for breach of the law.
“The defendants ’ motivation in the instant case — the fact that they engaged in a protest in the sincere belief that they were breaking the law in a good cause — cannot be acceptable legal defense or justification. Their sincerity is beyond question. It implies no disparagement of their idealism to say that society will not tolerate the means they chose to register their opposition----”

United States v. Moylan, 417 F.2d 1002, 1008-1009 (4th Cir.1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970) (emphasis supplied) (footnotes omitted). See also: State v. Olsen, supra 299 N.W.2d at 635; United States v. Kroncke, supra at 703; Commonwealth v. Averill, supra 423 N.E.2d at 7.

I have attempted to show that, contrary to the majority, the courts which have already considered this issue have correctly, not erroneously, held that justification is not an available defense to crime when the competing harms have been considered and a deliberate legislative choice has been made. Because, in my judgment, the defense of justification is not available to the appellants, it follows that evidence pertaining to the horrors of nuclear warfare is not probative of any issue in this case and, therefore, is irrelevant. As such, it should be excluded from a subsequent retrial.

I also disagree with the majority’s decision that it was reversible error for the trial court to conduct voir dire examination of prospective jurors in groups of four. It is well settled that the single goal of the voir dire examination is to provide an accused with a “competent, fair, impartial and unprejudiced jury.” Commonwealth v. Futch, 469 Pa. 422, 426, 366 A.2d 246, 248 (1976). Accord: Commonwealth v. Christian, 480 Pa. 131, 139, 389 A.2d 545, 549 (1978); Commonwealth v. England, 474 Pa. 1, 6, 375 A.2d 1292, 1295 (1977); Commonwealth v. Johnson, 452 Pa. 130, *296134, 305 A.2d 5, 7 (1973); Commonwealth v. Holland, 298 Pa.Super. 289, 291, 444 A.2d 1179, 1180 (1982); Commonwealth v. Davis, 282 Pa.Super. 51, 54, 422 A.2d 671, 672 (1980); Commonwealth v. Short, 278 Pa.Super. 581, 590, 420 A.2d 694, 698 (1980); Commonwealth v. Mayo, 272 Pa.Super. 115, 119, 414 A.2d 696, 698 (1979). The provisions of Pa.R.Crim.P. 1106(e)9 specifically provide in non-*297capital cases for the exercise of discretion by the trial court in selecting the method by which voir dire examination shall be conducted. See: Commonwealth v. Gore, 262 Pa.Super. 540, 557, 396 A.2d 1302, 1310 (1978); Commonwealth v. Howard, 248 Pa.Super. 246, 251, 375 A.2d 79, 82 (1977); Commonwealth v. Herron, 243 Pa.Super. 319, 330, 365 A.2d 871, 876 (1976). While individual voir dire conducted beyond the hearing and presence of other jurors “may be the ‘more desirable practice’, such determination is a trial matter, committed to the sound discretion of the trial court.” Commonwealth v. Stoltzfus, 462 Pa. 43, 54, 337 A.2d 873, 878 (1975) quoting Commonwealth v. Martinolich, 456 Pa. 136, 146, 318 A.2d 680, 686 (1974), cert. denied, 419 U.S. 1065, 95 S.Ct. 651, 42 L.Ed.2d 661 (1974). See also: United States v. Addonizio, 451 F.2d 49, 67 (3rd Cir.1972), cert. denied, 405 U.S. 936, 92 S.Ct. 949, 30 L.Ed.2d 812 (1972); Commonwealth v. Smith, 290 Pa.Super. 33, 41-42, 434 A.2d 115, 119 (1981); Commonwealth v. Herron, supra 243 Pa.Super. at 331, 365 A.2d at 876. Cf. Commonwealth v. Kampo, 480 Pa. 516, 530-531, 391 A.2d 1005, 1012 (1978); Commonwealth v. Johnson, 440 Pa. 342, 351-352, 269 A.2d *298752, 756 (1970). Based upon the record in the instant case, I find no abuse of discretion on the part of the trial court as a result of its decision to conduct voir dire with groups of four veniremen. See: Commonwealth v. Dolhancryk, 273 Pa.Super. 217, 223, 417 A.2d 246, 249 (1979).

Upon a retrial, a determination regarding the manner of conducting voir dire will again require the exercise of discretion by the trial judge. I believe there are valid reasons for placing that discretion in the trial court; and, therefore, I do not join the majority’s mandatory instruction that voir dire can only be conducted individually.

In summary, I would agree that the trial court’s exclusion of the public from the jury selection process was error which requires the granting of a new trial. However, I cannot agree that a retrial should be allowed to become a public forum in which the parties and their witnesses debate the wisdom of Congressionally established policies of national defense as they pertain to the production and deployment of nuclear missiles. This is not the function of a court of law. To permit it in this case will be to drown the issue of guilt or innocence in a sea of irrelevancy. From this portion of the majority’s holding, therefore, I must respectfully, but strenuously, dissent.

HESTER and JOHNSON, JJ., join in this opinion.

. 18 Pa.C.S. § 3502.

. 18 Pa.C.S. § 3304.

. 18 Pa.C.S. § 903.

. As part of their proffered justification defense, appellants sought to offer evidence that the construction and deployment of missiles being manufactured by General Electric constituted preparation for aggressive warfare in violation of international law as well as treaties to *281which the United States was a party. Appellants contended that the government’s illegal conduct necessitated their criminal acts.

. The Atomic Energy Act of 1954 was enacted pursuant to “the constitutional powers of the United States, including, among others, to provide for the common defense; to raise and support armies; to provide and maintain a navy; to make all needful rules and regulations respecting the territory or other property belonging to the *288United States; and to regulate commerce with foreign nations and among the several States.” S.Rep. No. 1699, 83rd Cong., 2nd Sess., reprinted in 1954 U.S.Code Cong. & Ad.News 3465.

. Appellants have not argued that Congressional action regarding nuclear missiles has so pre-empted the field as to preclude the states from enforcing criminal laws enacted for the protection of private property when such property consists of nuclear missile components manufactured by a non-governmental corporation, and that issue is not before us. Nevertheless, it may be observed that the Crimes Code is no less enforceable against appellants than it is in cases involving robberies of national banks. See: Commonwealth ex rel. O’Brien v. Burke, 171 Pa.Super. 273, 90 A.2d 246 (1952); Commonwealth v. Braun, 34 Leh.L.J. 231, 233-234 (1971). See also: Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959).

. Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq., Energy Reorganization Act of 1974, 42 U.S.C. § 5801 et seq.

. See also: Hermann, Justice and Order: A Preliminary Examination of the Limits of Law, 45 Wash.L.Rev. 335 (1970); Rosen, Civil Disobedience and Other Such Techniques: Law Making Through Law Breaking, 37 Geo.Wash.L.Rev. 435 (1969); Smith, The Legitimacy of Civil Disobedience as a Legal Concept, 36 Fordham L.Rev. 707 (1968); Civil Disobedience: A Case for Separate Treatment, 14 Wayne L.Rev. 1165 (1968); Griswold, Dissent — 1968, 42 Tulane L.Rev. 726 (1968); Civil Disobedience: A Study of Law and Its Relation to Society, 13 S.Dak.L. - Rev. 356 (1968); C. Whittaker and W. Coffin, Jr., Law, Order, and Civil Disobedience (1967); Allen, Civil Disobedience and the Legal Order, 36 U.Cin.L.Rev. 175 (1967); Cohen, Freeman and Van den Haag, Civil Disobedience and the Law, 21 Rutgers L.Rev. 1 (1966).

. Rule 1106. Examination and Challenges of Trial Jurors

(a) Voir dire of prospective trial jurors and prospective alternate jurors shall be conducted, and the jurors shall be selected, in the presence of a judge.

(b) This oath shall be administered individually or collectively to the prospective jurors:

"You do solemnly swear by Almighty God (or do declare and affirm) that you will answer truthfully all questions that may be put to you concerning your qualifications for service as a juror.”

(c) Voir dire, including the judge’s ruling on all proposed questions, shall be recorded in full unless the recording is waived. The record will be transcribed only upon written request of either party or order of the judge.

(d) The judge may require the parties to submit in writing a list of proposed questions to be asked of the jurors regarding their qualifications. The judge may permit the defense and the prosecution to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event, the Court shall permit the defense and the prosecution to supplement the examination by such further inquiry as it deems proper.

(e) In capital cases, the individual voir dire method must be used, unless the defendant waives that alternative. In non-capital cases, the trial judge shall select one of the following alternative methods of voir dire, which shall apply to the selection of both jurors and alternates:

(1) Individual Voir Dire and Challenge System
(A) Voir dire of prospective jurors shall be conducted individually and may be conducted beyond the hearing and presence of other jurors.
(B) Challenges, both peremptory and for cause, shall be exercised alternately beginning with the attorney for the Commonwealth, until all jurors are chosen. Challenges shall be exercised immediately after the prospective juror is examined. Once accepted by all parties, a prospective juror shall not be removed by peremptory challenge. Without declaring a mistrial, a judge may allow a challenge for cause at any time before the jury begins to deliberate, provided sufficient alternates have been selected, or the defendant consents to be tried by a jury of less than twelve, pursuant to Rule 1103.
(2) List System of Challenges
(A) A list of prospective jurors shall be prepared. The list shall contain a sufficient number of prospective jurors to total at least *297twelve, plus the number of alternates to be selected, plus the total number of peremptory challenges (including alternates).
(B) Prospective jurors may be examined collectively or individually, regarding their qualifications. If the jurors are examined individually, the examination may be conducted beyond the hearing and presence of other jurors.
(C) Challenges for cause shall be exercised orally as soon as the cause is determined.
(D) When a challenge for cause on the list below the number has been sustained, which brings the total number of twelve (12) plus alternates plus peremptory challenges (including alternates), additional prospective jurors shall be added to the list.
(E) Each prospective juror subsequently added to the list may be examined as set forth in paragraph (e)(2)(B).
(F) When the examination has been completed and all challenges for cause have been exercised, peremptory challenges shall then be exercised by passing the list between prosecution and defense, with the prosecution first striking the name of a prospective juror, followed by the defense, and alternating thereafter until all peremptory challenges have been exhausted. If either party fails to exhaust all peremptory challenges, the jurors last listed shall be stricken. The remaining jurors and alternates shall be seated; but no one shall disclose which party peremptorily struck any juror.