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Commonwealth v. Markum

Citation. Commonwealth v. Markum, 541 A. 2d 347 (Pa. Superior Ct. 1988)
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Brief Fact Summary.

Markum tried to use the justification defense when he was charged for breaking medical equipment in an abortion clinic a part of an anti-abortion demonstration.

Synopsis of Rule of Law.

A justification defense is appropriate where the harm avoided by the commission of the crime is greater than the harm that is prevented by the law.


Markum and other entered an abortion clinic as part of an anti-abortion demonstration and broke the many of the medical equipment within the facility. Markum tried to use the defense of justification in the Court of Common Pleas and the judge refused to hear the justification. Markum appealed stating that the judge should hear the justification defense.


Whether a defendant can use a justification defense where the defendant was not placed in harm’s way.


No. The justification defense is disallowed and the conviction of the trial court is affirmed.


(Tamilia, J.) The defendants should not be precluded from applying the justification defense because there was no evidence as to whether the abortion clinics were performing legal abortions as prescribed by Roe v. Wade, 410 U.S. 113 (1973).


(McEwen, J.) The defendants should be precluded from using the justification defense because they did not seek a legal alternative to preventing abortions. However, the defendants do satisfy the imminent harm required of a justification defense because they believed they had no alternative means to prevent the commission of abortion.


The justification defense can only be used when the defendant is in imminent danger. Because abortion is a legal practice in the United States, the justification defense could not be used to deface and destroy property.

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