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decided: July 1, 1974.


Appeal from judgment of sentence of Court of Common Pleas of Bucks County, No. 2044 of 1970, in case of Commonwealth of Pennsylvania v. Amos Paul Rose.


J. C. Marston, with him James M. McNamara, Assistant Public Defenders, for appellant.

Stephen B. Harris, First Assistant District Attorney, with him Kenneth G. Biehn, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Pomeroy. Concurring Opinion by Mr. Chief Justice Jones. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Manderino joins in this concurring opinion. Concurring Opinion by Mr. Justice Nix.

Author: Pomeroy

[ 457 Pa. Page 382]

The appellant, Amos Paul Rose, was convicted by a jury in Bucks County of murder in the first degree of one Gary Moore on November 26, 1970. On this direct appeal from the judgment of sentence of life imprisonment, appellant's sole contention is that the trial court erred in that portion of its charge which placed on the defendant the burden of proving intoxication by a preponderance of the evidence. We agree with this position, and therefore will reverse the judgment of sentence and remand for a new trial.

[ 457 Pa. Page 383]

At trial, the Commonwealth sought a first degree murder conviction, contending that the element of specific intent was supplied by the inference to be drawn from the intentional use of a deadly weapon on a vital part of another human being. Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972); Commonwealth v. Hornberger, 441 Pa. 57, 61, 270 A.2d 195, 197 (1970). Appellant did not deny having shot the deceased following an altercation, but sought to avoid a first degree conviction by showing that he was so intoxicated at the time of the shooting as to prevent his forming the specific intent to take life. Commonwealth v. Duncan, 437 Pa. 319, 263 A.2d 345 (1970); Commonwealth v. Barnosky, 436 Pa. 59, 258 A.2d 512 (1969); Commonwealth v. Page 383} Walters, 431 Pa. 74, 244 A.2d 757 (1968); Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317 (1947); Commonwealth v. Kline, 341 Pa. 238, 19 A.2d 59 (1941). To that end evidence was introduced that on the day in question (Thanksgiving Day, 1970), appellant began drinking early in the morning and by the time of the fatal incident was indeed intoxicated. The Commonwealth called its own witnesses who testified that in their opinion appellant was not in an inebriated condition. In addition, the prosecution introduced the chemical analysis of a blood sample taken from appellant indicating that at the time of the shooting his blood alcohol content by weight was .24%. The toxicologist who performed the test, however, stated that this percentage was inconclusive as to whether or not appellant could have formed the necessary intent for first degree murder.*fn1

In its charge to the jury, the trial court gave a full and careful instruction on the subject of intoxication as a defense to murder. With respect to the burden of proof to establish that defense the court said: "Where, however, the charge is felonious homicide, intoxication which would be so great as to make the accused incapable of forming a willful and premeditated design to kill, or incapable of judging his acts and their consequences, might serve to reduce the crime of murder from

[ 457 Pa. Page 384]

    the first to the second degree; however, where a defendant claims there is intoxication at the time of the killing, preventing that killing from being murder in the first degree, he must prove by a fair preponderance of the evidence that his degree of intoxication was such as to prevent his forming the requisite intent. * * * The defendant is not required to prove the defense of intoxication beyond a reasonable doubt. He is required to prove it only by the preponderance, or greater weight of the evidence, more convincing power of the evidence, and let me hasten to add, although the burden of proof of this one particular defense is on the defendant, please keep in mind that the overall burden of proof in any criminal case is on the Commonwealth, and the Commonwealth must prove its case beyond a reasonable doubt." (Emphasis added.)

Appellant concedes, as he must, that the above instruction comports with past pronouncements of this Court,*fn2 as well as those in a number of other jurisdictions.*fn3 He contends, however, that the decision of the Supreme Court of the United States in Re Winship, 397 U.S. 358, 25 L.Ed.2d 368 (1970) dictates that placing any burden on the defendant to prove intoxication offends

[ 457 Pa. Page 385]

    the Due Process clause of the Fourteenth Amendment. Faced with the issue of the quantity of proof required in juvenile adjudicatory proceedings, the Supreme Court in Winship held that "[l]est 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, 25 L.Ed.2d at 375. Despite the seemingly unequivocal nature of this holding, some uncertainty remains as to how the Supreme Court would regard the so-called affirmative defenses (e.g., self-defense, insanity, intoxication), where traditionally, as in Pennsylvania, the defense has had the burden of proof by a preponderance of the evidence.*fn4 The present uncertainty arises, at least in part, from the holding in Leland v. Oregon, 343 U.S. 790, 96 L.Ed. 1302 (1952) that an Oregon statute requiring the defendant in a criminal proceeding to prove his insanity beyond a reasonable doubt was not violative of due process.*fn5

[ 457 Pa. Page 386]

While the continuing validity of Leland in light of Winship is questionable,*fn6 our decision need not rest on federal constitutional grounds. It is not necessary for us to speculate that the Winship requirement of proof beyond a reasonable doubt of all essential facts encompasses the disproof of other facts (such as intoxication) which, if found, would establish the non-existence of an essential fact (such as intent). Our determination which follows of the issue presented is in terms of state evidentiary law.

As noted above, Pennsylvania defendants have traditionally had the burden of proving by a preponderance of the evidence the facts relating to an affirmative defense which they wish to assert. Commonwealth v. Johnston, 438 Pa. 485, 263 A.2d 376 (1970); Commonwealth v. Iacobino, 319 Pa. 65, 178 Atl. 823 (1935); Commonwealth v. Stein, 305 Pa. 567, 158 Atl. 563 (1932); Commonwealth v. Troy, 274 Pa. 265, 270, 271, 118 Atl. 252 (1922); Commonwealth v. Morrison, 266 Pa. 223, 109 Atl. 878 (1920). A major exception to this general rule was created in Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959). In that case, we held that where the defense was alibi, which traditionally had been classified as an affirmative defense in Pennsylvania, the Commonwealth must yet prove beyond a reasonable doubt the defendant's presence at the scene of the crime at the time it was committed. The Court reasoned as follows: "It is because of [the] never-shifting burden ...

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