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COMMONWEALTH v. BARKSDALE (09/21/71)

decided: September 21, 1971.

COMMONWEALTH
v.
BARKSDALE, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1968, Nos. 1170 to 1173, inclusive, in case of Commonwealth of Pennsylvania v. William Barksdale.

COUNSEL

Alexander Hemphill, for appellant.

James D. Crawford, Deputy District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Spaulding, J.

Author: Spaulding

[ 219 Pa. Super. Page 445]

Appellant William Barksdale was convicted of burglary and aggravated robbery and acquitted of attempt with intent to kill by the Honorable Paul Chalfin and a jury in the Court of Common Pleas of Philadelphia. He appeals from an order of September 9, 1970, denying his motions in arrest of judgment and for a new trial.

Two issues raised by appellant require our consideration.*fn1 First, the court, in its charge to the jury, repeatedly defined "reasonable doubt" as a doubt which would cause one to " refrain from acting" in matters of highest importance in his own life. In Commonwealth v. Kluska, 333 Pa. 65, 3 A.2d 398 (1939), our Supreme Court recommended that the jury be told a reasonable doubt was one that would cause them to "hesitate to act" in any of the important affairs of their own lives. In Commonwealth v. Koss, 136 Pa. Superior Ct. 173,

[ 219 Pa. Super. Page 4467]

A.2d 20 (1939) and Commonwealth v. Tachoir, 166 Pa. Superior Ct. 239, 70 A.2d 474 (1950), this Court ruled that it was reversible error to define a reasonable doubt as one that would "prevent" coming to a clear conclusion. While the term "hesitate" certainly requires less doubt than the term "refrain" our Supreme Court has recently recommended defining a reasonable doubt as one that would "restrain" a reasonable person from acting in a matter of importance to himself. Commonwealth v. Donough, 377 Pa. 46, 51, 52, 103 A.2d 694 (1954); Commonwealth v. Burns, 409 Pa. 619, 635, 187 A.2d 552 (1963). As between "refraining from acting" and being "restrained from acting" there is no distinction that would support reversal.

Secondly, the principal evidence linking appellant with the robbery was the testimony of a witness who undisputedly had a history of suffering from mental difficulties in which fantasy and reality were at times confused in her thought processes. Appellant urges that the court below should have: (1) made on independent determination -- with the aid of a psychiatric examination -- to determine whether she was competent to testify, (2) permitted the jury to hear in its entirety a year old psychiatric report and, (3) charged the jury that her testimony was unworthy of belief. We find no merit in any of these contentions.

The witness Loretta Johnson, had originally been indicted along with appellant and a co-defendant William Smith. Her case was severed over the vigorous objection of her co-defendants, on the Commonwealth's motion just before trial. The fact that the Commonwealth had given Miss Johnson substantial inducement to testify by assuring her of a recommendation for nolle prosequi in the instant case and "consideration in other matters", and the fact that she was incarcerated for another crime, were fully revealed to the court and

[ 219 Pa. Super. Page 447]

    the jury. In addition, it was brought out on cross-examination that Miss Johnson might have a revengeful motivation against appellant arising from the fact that he ...


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