William R. Bernhart, Austin, Speicher, Boland, Connor & Giorgi, Reading, for appellant.
George T. Brubaker, Asst. Dist. Atty., M. H. Ranck, Asst. Dist. Atty., D. Richard Eckman, Dist. Atty., Lancaster, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., concurs in the result. Manderino, J., dissents. Roberts, J., filed a dissenting opinion in which Nix, J., joins.
On June 24, 1970, the appellant, Constance Rodgers, was convicted by a jury in Lancaster County on two criminal indictments: (1) charging the possession and sale of a dangerous drug in violation of Section 780-4 of the Drug, Device and Cosmetic Act, Act of September 26, 1961, P.L. 1664, § 4, as amended, 35 P.S. § 780-4; and (2) charging the possession with intent to sell obscene books and films in violation of the Act of June 24, 1939, P.L. 872, § 524, as amended, 18 P.S. § 4524.*fn1 A motion for a new trial or in arrest of judgment was denied, and a prison sentence of six to twelve months was imposed on each indictment the sentences to run concurrently.*fn2 On appeal, the Superior Court affirmed the judgments with a "per curiam" order. Judge Hoffman filed a dissenting opinion in which Judges Spaulding and Packel joined. See 222 Pa. Super. 490, 295 A.2d 158 (1972).*fn3 We granted allocatur.
Initially, it is urged a new trial is required, because of three alleged errors in the trial court's instructions to the jury. Only one such assignment of error requires discussion. The other two are without a semblance of merit.
At trial, the defendant introduced in evidence the testimony of several so-called character witnesses to establish her prior good reputation. In about the middle of its charge, after discussing the import of this testimony, the trial court stated, "But you must be convinced beyond a reasonable doubt, including that of good reputation, that the Defendant is innocent before you can acquit her." This, of course, was error and would require a new trial if it were the only passage in the charge on the burden of proof, which it is not.
The record discloses that in the beginning of its charge, the court instructed the jury, "The Defendant in this case comes before you presumed to be innocent and the burden rests upon the Commonwealth to prove her guilty beyond a reasonable doubt." Additionally, at the conclusion of the charge, the court, at the specific request of the defendant, instructed the jury as follows: [I]f, after consideration of all the evidence presented in this case, a reasonable doubt exists in the minds of the jury as to the innocence or guilt of the Defendant, the Defendant is entitled to the benefit of this doubt and must be acquitted."
In a multitude of decisions, this Court has ruled that in evaluating the correctness of instructions to a trial jury, the charge must be read and considered as a whole, and it is the general effect of the charge that controls. For example, see Commonwealth v. Fell, 453 Pa. 531, 309 A.2d 417 (1973); Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972); Commonwealth v. Heasley, 444 Pa. 454, 281 A.2d 848 (1971), and Commonwealth v. Franklin, 438 Pa. 411, 265 A.2d 361 (1970). After reading and considering the instant charge in its entirety, we are completely satisfied the jury was not misled as to where the burden of proof of guilt rested. We note also, that no objection or exception of any nature was entered to the charge, indicating defense counsel was satisfied the court had made it clear to the jury
that the burden of proving guilt of either or both charges was upon the Commonwealth beyond a reasonable doubt. Under the circumstances, the apparent inadvertence by the trial court, now complained of, is not sufficient grounds for a new trial. Compare Commonwealth v. Fell, supra; Commonwealth v. Zapata, supra; Commonwealth v. Heasley, supra; Commonwealth v. Franklin, supra; ...