Appeal from judgment of Court of Common Pleas, Criminal Division, of Allegheny County, March T., 1969, No. 123, in case of Commonwealth of Pennsylvania v. Harvey Heasley.
J. Graham Sale, Jr., and John J. Dean, Assistant Public Defenders, and George H. Ross, Public Defender, for appellant.
Carol Mary Los and Robert L. Campbell, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Barbieri.
On October 17, 1969, appellant was tried before a judge and jury in the Court of Common Pleas of Allegheny County. He was found guilty of second degree murder. His post-trial motions for a new trial and in arrest of judgment were denied and he was sentenced to serve a term of from four to eight years in prison.
On direct appeal from the judgment of sentence, appellant alleges two errors: (1) that the trial court committed reversible error when it failed to properly charge the jury on the necessity of proving guilt beyond a reasonable doubt; and (2) that the court should have granted his motions for a new trial and in arrest of judgment because the verdict was not supported by the evidence.
Appellant urges that one portion of the charge is violative of one of the basic precepts of criminal justice -- that the defendant is presumed to be innocent unless and until the prosecution has proved beyond a reasonable doubt that he was guilty. The allegedly offensive portion of the charge reads: "And now, members of the jury, you are shortly going to retire to the jury room to give this case your careful consideration. You may return a verdict of not guilty if the guilt of the accused has not been shown beyond a reasonable doubt. You may, if the evidence warrants, return a verdict of guilty of Murder in the First Degree. You may return a verdict of guilty of Murder in the Second Degree. You may return a verdict of Voluntary Manslaughter." (Emphasis added)
If this passage were the only mention in the charge of the Commonwealth's burden of proof, appellant's argument
might have been well taken. See, e.g., In re Winship, 397 U.S. 358 (1970); Commonwealth v. Williams, 432 Pa. 557, 248 A.2d 301 (1968). It is well established, however, that in reviewing a charge to determine whether or not there has been reversible error, we must consider the charge as a whole. Commonwealth v. Butler, 443 Pa. 545, 278 A.2d 911 (1971); Commonwealth v. Lance, 381 Pa. 293, 113 A.2d 290 (1955). An examination of the charge as a whole clearly indicates that the lower court properly and fully charged as to the necessity of proving a defendant's guilt beyond a reasonable doubt. The following five passages from the charge demonstrate that, in the charge as a whole, the requisite language was used. "Our forefathers in their great wisdom in establishing the tribunal of justice made an inflexible rule that the accused must be presumed innocent throughout the entire course of the trial of the case and until such time as the jury by a consideration of all the evidence, the arguments of counsel and the charge of the court conclude that the defendant is guilty of the offense charged beyond a reasonable doubt.
"If you have such a doubt as to any material part of the Commonwealth's case, it is your duty to resolve it in favor of the defendant and promptly acquit him.
"If, after the entire comparison and consideration of all of the evidence in the case your minds are in a condition that you cannot say that you feel an abiding conviction the ...