Appeal, No. 578, Jan. T., 1970, from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1967, No. 235, in case of Commonwealth of Pennsylvania v. George B. Goins. Judgment of sentence reversed and new trial ordered.
Louis Lipschitz, with him Julian F. King, for appellant.
Benjamin H. Levintow, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Before Jones, C.j., Eagen, O'brien, Roberts, Pomeroy, Nix and Manderino, JJ.
OPINION BY MR. JUSTICE NIX.
This appeal again raises the ever-troublesome problem of the extent to which a court is permitted to comment on the evidence in its charge to the jury. We are satisfied that in this case, the trial court exceeded the permissible limits and that a new trial must be awarded.
On the evening of October 6, 1967, at approximately 9:30 P.M. the deceased, Ceretta Bryson, then twenty
years of age, left her home to make certain purchases at a neighborhood store. After making her purchases, while en route home, she was set upon by a man, identified as appellant, and stabbed three times resulting in her death shortly thereafter. After appellant's arrest he was tried before a jury and convicted of murder in the first degree and sentenced to life imprisonment. Post-trial motions were filed, argued and subsequently denied by the Court en banc. This is a direct appeal from the judgment of sentence pursuant to the Act of July 31, 1970, P.L. 673, No. 223, art. II, § 202, 17 P.S. 211.202 (1974-1975 Supp.).
During the charge to the jury the court stated: "Under the evidence in this case it is my opinion and only my opinion, which is in no wise binding upon you, that if this defendant is guilty at all, he is guilty of murder in the first degree." This statement came at the very end of the formal charge and was the last instruction given prior to a recess for the jury, to permit counsel to set forth their objections to the charge out of the jury's hearing. Pa. R. Crim. P. 1119. During the conference with counsel a specific exception was taken to this statement and thus the issue was properly preserved for appellate review. Pa. R. Crim. P. 1119(b). At this point the court expressed an intention of emphasizing that the opinion was intended to be directed to the degree of guilt and not to the question of guilt or innocence. This suggestion was vigorously opposed by defense counsel who argued that such a course of action would further compound what in his judgment was an error incapable of being cured by additional instructions. When the jury returned for final instructions before retiring to begin their deliberations no further mention was made to the opinion that had previously been given but the court did again remind the
jury of all of the possible verdicts that could be returned under the indictment ...