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decided: March 25, 1974.


Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1969, Nos. 1330, 1331 and 1332, in case of Commonwealth of Pennsylvania v. James L. Young.


Jerome E. Furman, with him Anthony J. Caiazzo, for appellant.

David Richman, Assistant District Attorney, with him James J. Wilson, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones dissents.

Author: Roberts

[ 456 Pa. Page 104]

James Young appeals from his convictions of murder in the second degree, aggravated robbery, and burglary with intent to commit a felony.*fn1 We reverse and grant a new trial.

The crimes with which appellant was charged grew out of the killing of Martin Snader. On November 22, 1968, at 10:40 a.m., Snader was found lying on the floor of his jewelry store with a bullet in the left side of his head. He died a few hours later.

A Philadelphia police officer on November 30, 1968, stopped the automobile appellant was driving because he thought appellant was driving too slowly. The officer testified that when asked for his driver's license, appellant responded that he did not have one. At this time, the officer, according to his testimony, spotted a revolver on the floor of appellant's automobile. He then arrested appellant for violating The Vehicle Code. Subsequently, appellant was arraigned for violating both The Vehicle Code and the Uniform Firearms Act. Appellant could not raise his $300 bail, so he was imprisoned pending trial.

The revolver seized from appellant was turned over to a firearms examiner for the Philadelphia police. His

[ 456 Pa. Page 105]

    conclusion that the bullet found in Snader's head matched bullets which he fired from the seized revolver prompted the police to interrogate appellant.

On December 2, 1968, the police obtained a "bring-up" order, signed "as best as [the district attorney's office] can decipher," by Edward J. Blake, who at the time was serving as Court Administrator of the Court of Common Pleas of Philadelphia. At 5:15 p.m. that day, three officers, acting under the authority of the "bring-up" order, transferred appellant from the detention center to the Police Administration Building.

Appellant arrived there at 6:00 p.m. Five minutes later police read appellant his Miranda*fn2 rights, which the Commonwealth claims appellant waived. The first questioning session lasted from 6:25 to 7:10 p.m. Appellant was then left alone. At 7:30 a polygraph examination was administered which ended at 8:48 p.m. From then until 10:30 that evening, appellant was questioned continuously by three officers. After appellant briefly used the restroom, his interrogation again commenced at 11:05. An officer present at this questioning testified that appellant made his first inculpatory statement at 12:30 a.m. Not until 1:30 a.m. were the police satisfied and appellant allowed to return to the detention center. Appellant made no written statement at this time and signed nothing.

About an hour later at 2:40 in the morning of December 3, appellant arrived at the detention center. One of the interrogating officers directed that appellant be separated from all inmates. Accordingly, appellant was placed in an "isolation cell," which had no windows, lights, blankets, or pillows. The isolation cell contained a steel block hanging from the wall which served as a bed. Appellant remained there for over thirty-two hours until 11:30 in the morning of December

[ 456 Pa. Page 1064]

. He testified that during this time he was fed a single meal.

At 11:30, appellant was retrieved from the detention center by two officers, pursuant to a second "bring-up" order. The officers informed appellant for the first time that he was under arrest for the murder of Martin Snader. Appellant was not arraigned. He was taken to be interrogated at the Police Administration Building and arrived there at approximately noon. From noon until 3:55 p.m., a formal statement was taken. All questioning terminated at 4:25 p.m. Appellant read and signed his statement.

The first official record of appellant's arrest for murder was made at 5:30 p.m., December 4, when he was "slated." Appellant was later arraigned.

Young came to trial on June 26, 1970. The jury was unable to agree on a verdict, and on July 13, a mistrial was declared. His second trial began November 3, 1971. The Commonwealth's case was built largely around appellant's December 4, 1968 statement. On November 16, 1971, the jury returned a verdict of guilty.

Appellant presents several assignments of error.*fn3 We hold that appellant was denied a fair trial, guaranteed

[ 456 Pa. Page 107]

    by the due process clause of the Fourteenth Amendment to the United States Constitution and article I,

[ 456 Pa. Page 108]

    section 9 of the Pennsylvania Constitution, because the trial court failed to instruct the jury with a full and adequate charge on reasonable doubt.

The defense submitted a point for charge which clearly tracked the language in the "standard and approved" charge given in Commonwealth v. Kluska, 333 Pa. 65, 3 A.2d 398 (1939).*fn4 The defense objected to the charge on reasonable doubt and directed the trial court's attention to the defense's points for charge covering reasonable doubt.*fn5 After rejecting the properly-submitted point for charge, the court charged the jury on reasonable doubt in the following language.

"The burden, as I say, is on the Commonwealth to prove defendants [sic] guilt, and that burden rests on the Commonwealth from the start to the finish of the case.

"Furthermore, the Commonwealth must prove the defendant's guilt and all of the factors upon which guilt may depend beyond a reasonable doubt, before you can find defendant guilty.

"Now, what is a reasonable doubt. It must arise out of the evidence and not out of any extraneous matter. It must be more than a merely possible doubt, because you can have a possible doubt about almost anything in life. And if it was the burden on the Commonwealth to remove every possible doubt which you might have about whether or not these crimes occurred, and whether or not the defendant committed those crimes, if that were the Commonwealth's burden, why, it would be an impossible burden for it to sustain.

[ 456 Pa. Page 109]

"If you feel a reasonable doubt, as I have defined it, as to the guilt of the defendant, or as to any of the factors upon which his guilt may depend, it will be your duty to acquit him.

"If two conclusions can be reasonably drawn from the evidence, one of innocence and one of guilt, the jury must adopt the one of innocence and find the defendant not guilty."

This charge is plainly inadequate.*fn6 The trial judge only told the jury that reasonable doubt was not "a merely possible doubt," and that the Commonwealth did not have "to remove every possible doubt." He also told the jury that if a conclusion of both guilt and of innocence could be reached, the jury must acquit appellant. Aside from this stark narrative, the trial court gave the jury no guidance on the meaning of "beyond a reasonable doubt."*fn7

It is true that this Court has never required a single standard charge on reasonable doubt. Commonwealth v. Williams, 432 Pa. 557, 561, 248 A.2d 301, 303 (1968). However, we also have never stated that a jury may be given a reasonable doubt charge that fails to define reasonable doubt.

Moreover, we have repeatedly placed our imprimatur on the charge expressed in Commonwealth v. Donough, 377 Pa. 46, 51-52, 103 A.2d 694, 697 (1954).*fn8

[ 456 Pa. Page 110]

"A standard and approved form of charge on this point would be: 'The defendant comes before you presumed to be innocent and the burden is upon the Commonwealth to prove his guilt beyond a reasonable doubt. A reasonable doubt cannot be a doubt fancied or conjured up in the minds of the jury to escape an unpleasant verdict; it must be an honest doubt arising out of the evidence itself, the kind of doubt that would restrain a reasonable man (or woman) from acting in a matter of importance to himself (or herself).'"

We have many times approved of the charge recommended in Commonwealth v. Kluska, 333 Pa. 65, 74, 3 A.2d 398, 403 (1939).*fn9

"As a standard and approved form of charge, however, we are of opinion that the jury should be told either . . . that they should not condemn unless so convinced by the evidence that they would venture to act upon that conviction in matters of the highest importance to their own interests, or . . . that a reasonable doubt was one that would cause them to hesitate to act in any of the important affairs of their own lives." The ideas contained in these "standard and approved" charges are essential to a complete, accurate, and proper charge on reasonable doubt.

The Commonwealth argues that "[t]he court's instruction concerning reasonable doubt sufficiently defined that concept." Its argument jumps from the premise that no "magic words" need be used to the conclusion

[ 456 Pa. Page 111]

    that the lack of any words giving meaning to the standard of reasonable doubt is satisfactory. But the reasonable doubt standard is too fundamental to our jurisprudence to permit such a miserly reading.*fn10 Indeed, the United States Supreme Court has unequivocally held that the reasonable doubt standard is constitutionally compelled. In re Winship, 397 U.S. 358, 361-65, 90 S. Ct. 1068, 1071-73 (1970). After a lengthy discussion of the reasons in history, policy, and justice for the reasonable doubt test, the Court stated: "Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Id. at 364, 90 S. Ct. at 1073. Because "adherence [to the reasonable doubt standard] does 'reflect a profound judgment about the way in which law should be enforced and justice administered,'" id. at 361-62, 90 S. Ct. at 1071 (quoting Duncan v. Louisiana, 391 U.S. 145, 155, 88 S. Ct. 1444, 1451 (1968)), a judgment with which this Court is in complete agreement,*fn11 we cannot sanction a contentless charge on reasonable doubt.

Our cases require that the jury be given a positive instruction fully and accurately defining reasonable doubt. Only in this way, can a jury fulfill its responsibility to decide the guilt or innocence of an accused. In the absence of a proper reasonable doubt charge, an accused is denied his right to a fair trial.

It is also clear that the trial judge, quite properly, recognized that his charge, as it appears in the record,

[ 456 Pa. Page 112]

    was inadequate. In his opinion written in response to appellant's post-trial motions and filed December 18, 1972, the judge stated: "The trial judge is fully aware of the importance of properly defining 'reasonable doubt' to the jury. In Commonwealth v. Williams, 432 Pa. 557, 561 (1968) our Supreme Court said: 'We have never adopted and required a standard charge or definition of reasonable doubt', but ever since Commonwealth v. Donough, 377 Pa. 46 (1954) was decided, this trial judge has kept a Xerox copy of the Donough syllabus in the forefront of his memorandum book of jury instructions. It has been the court's invariable practice to read that portion of the syllabus [pertaining to reasonable doubt]."*fn12

The trial judge's opinion demonstrates that he understood that the idea of a reasonable doubt as "the kind of doubt that would restrain a reasonable man (or woman) from acting in a matter of importance to himself (or herself)," is essential to a correct charge on reasonable doubt. He knew the prejudicial significance of omitting a version of the Donough or Kluska charges and sought by the following statement from his opinion to avoid the effect of its omission:

"Unfortunately, the transcript does not show that the court so instructed the jury [in accordance with Donough ] on this occasion. However, the trial judge

[ 456 Pa. Page 113]

    is certain that he did so instruct and so certifies to our Supreme Court."

However, this Court is statutorily bound to regard the transcribed record as "prima facie accurate." Act of May 11, 1911, P.L. 279, § 4, 12 P.S. § 1199 (1953);*fn13 Commonwealth v. Kulik, 420 Pa. 111, 216 A.2d 73 (1966). Section 1199 establishes the sole procedure for correcting errors in the transcribed record of trial. Objections must be made within fifteen days of notice that the record is transcribed and will be filed, a hearing held, and "such order made regarding the [objections to the record] as shall be necessary in order to comport with the occurrences at the trial."

Here, no objections were made to the record by either party, no hearing held, and no order made. In short, no attempt was made to comply with section 1199. Rather, the trial judge in answering in his written opinion a point raised by the defense in its posttrial motions, asserted that he recalled giving a version of the Donough charge. In view of the explicit statutory procedure, this Court may not accept as correctly

[ 456 Pa. Page 114]

    reflecting what occurred at trial anything other than the original record or a record corrected in accordance with section 1199.

This interpretation of section 1199 does not break new ground. In Commonwealth v. Kulik, supra, we granted a new trial because "the trial judge in his own handwriting inserted the word 'not' between the words 'do' and 'have' in [one] portion of his charge [dealing with reasonable doubt]." Id. at 112, 216 A.2d at 74. This Court was of the opinion in Kulik "that for the proper administration of the judicial system in the Commonwealth a trial judge must strictly adhere to the procedural requirements of the Act [12 P.S. § 1199] . . . ." Id. at 113, 216 A.2d at 74.

The instant facts present an even more compelling case for reversal. Here, the trial judge did not merely insert a single word, but rather sought in his opinion to add an entirely new dimension to his charge on reasonable doubt. In Kulik this Court saw no reason to find prejudice resulting from a non-statutorily authorized change in the transcript before granting the defendant a new trial. Young's case presents manifold prejudice: the omission of a highly significant element of the reasonable doubt charge resulted in a jury deciding appellant's guilt without any guidance on its responsibility to convict only if it found appellant guilty, as the Constitution requires, beyond a reasonable doubt.

"Appellate review has become such an integral part of our criminal procedure that it may properly be viewed as an extension of the trial itself." Commonwealth ex rel. Neal v. Myers, 424 Pa. 576, 579 n.3, 227 A.2d 845, 846 n.3 (1967).*fn14 The fundamental tool for appellate review is the official record of what occurred

[ 456 Pa. Page 115]

    at trial. Only the facts that appear in this record may be considered by a court.*fn15 As recently as McCaffrey v. Pittsburgh Athletic Association, 448 Pa. 151, 293 A.2d 51 (1972), this Court held that "it is black letter law that an appellate court cannot consider anything which is not a part of the record in the case." Id. at 162, 293 A.2d at 57.*fn16 Consistent with our responsibility

[ 456 Pa. Page 116]

    to view only the record facts, we cannot accept the assertions in the trial court's written opinion that any reasonable doubt instruction was given other than that which appears in the record.

Because of the impact that the reasonable doubt standard has on the ultimate resolution of a defendant's guilt or innocence, the omission of an essential portion of a charge on reasonable doubt deprived appellant of a fair trial. Accordingly, appellant is entitled to a new trial.

The judgment of sentence of the Court of Common Pleas of Philadelphia is reversed, and appellant is granted a new trial.


Judgment of sentence reversed and new trial granted.

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