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COMMONWEALTH v. ROSE (11/30/72)

decided: November 30, 1972.

COMMONWEALTH
v.
ROSE, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Northampton County, Feb. T., 1970, No. 124, in case of Commonwealth of Pennsylvania v. Margaret Louise Rose.

COUNSEL

Morris Mindlin and Daniel E. Cohen, for appellant.

Charles H. Spaziani, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino. Mr. Justice Roberts and Mr. Justice Pomeroy concur in result.

Author: Manderino

[ 449 Pa. Page 610]

The appellant, Margaret Rose, was convicted in Northampton County of second degree murder and received a sentence not to exceed 12 years. This appeal followed. According to the testimony, the defendant, Margaret Rose, admitted stabbing Dorothy Green, who later died. The incident occurred in the defendant's apartment at 43 South Sixth Street, Easton, Pennsylvania, on December 13, 1969.

The defendant contends that the trial court erred in refusing to give some requested charges to the jury and in admitting testimony by a telephone operator about a telephone call the operator received the night of the stabbing.

The first error raised is the trial court's failure to charge the jury that the defendant had the burden of proof on the defense of self-defense and that the defendant's burden was to establish self-defense by a preponderance of the evidence. According to the defendant such a charge is required and the failure to so charge is reversible error. The defendant relies on Commonwealth v. Winebrenner, 439 Pa. 73, 265 A.2d 108 (1970), which held that a charge similar to that which the defendant requested in this case was not error so long as the Commonwealth is not relieved of its burden of proving defendant's guilt beyond a reasonable doubt.

[ 449 Pa. Page 611]

The Winebrenner case, however, did not hold that the trial court's failure to give such a charge would be error. If the charge actually given in this case had imposed upon the defendant some burden in addition to that approved in Winebrenner, the defendant's complaint would have merit. In this case, however, the trial court imposed a lesser burden upon the defendant in his charge to the jury.

The trial court, after charging the jury that the defendant was presumed innocent throughout the trial and until the jury said otherwise, told the jury: "There is no burden of proof and there is no burden of disproof on the part of this defendant. There is only one burden of proof, and that is the burden on the Commonwealth, and the measure of that burden is to convince you of the guilt of the defendant beyond a reasonable doubt."

The defendant argues that even though the trial judge told the jury that there was no burden of proof on the defendant, prejudice may have occurred because the jury could have concluded that the defendant had the same burden of proof on self-defense as the Commonwealth had on guilt.

We fail to see, however, without engaging in highly unreasonable speculation, just how the jury could conclude that the qualitative standard applied to the Commonwealth's burden and repeatedly asserted by the trial judge can be transferred in the jury's mind as applying to a burden of the defendant, when the jury has been specifically told that there is only ...


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