Benjamin Lerner, Defender, John W. Packel, Asst. Public Defender, Chief, Appeals Div., Reggie B. Walton, Asst. Public Defender, for appellant in No. 208.
Wolov, Rosenberg & Alexy, Charles S. Lieberman, Philadelphia, for appellant in No. 419.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Eric B. Henson, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Nix and Manderino, JJ. Pomeroy, J., took no part in the consideration or decision of these cases. Jones, C. J., and Eagan, J., concur in the result.
In February of 1974, appellants, who are husband and wife, were tried together and convicted of four counts of aggravated robbery and one count of burglary in conjunction with an incident in a Philadelphia bar on October 17, 1972. Appellant, Johnny Wortham, was also found guilty of one account of assault and battery occurring in the same criminal episode. Post-trial motions were argued and denied and appellant Johnny Wortham was sentenced to five concurrent terms of imprisonment of not less than three nor more than seven years on the robbery and burglary charges. He also received a two-year term of probation on the assault charge to commence following his imprisonment. Appellant Dorothe Wortham was sentenced to one to five years imprisonment. Appeals from these judgments of sentence were taken to the Superior Court and denied.*fn1 This Court granted allocatur and we now reverse both judgments of sentence.*fn2
The issue necessitating the reversal of the judgments of sentence and the award of a new trial is the trial court's instruction that the defendants were required to prove their defense of alibi by a fair preponderance of the evidence.*fn3 This statement of the law was clearly erroneous and in direct contravention of this Court's holding in Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959). There we ruled that an accused in a criminal trial has no burden to prove an alibi defense, reasoning that a contrary view would be incompatible with the fundamental principles of the presumption of innocence and the burden of proof.
"It is the law that in a criminal case, unlike a civil case, no binding instruction may be given in favor of the prosecution. This is true whether the evidence upon which the prosecution rests is oral or documentary and is equally true no matter how strong the proof proffered by the prosecution may be. It is because of this never-shifting burden upon the Commonwealth to prove every essential element of the charge it makes against the defendant that it cannot logically be said that the Commonwealth has the burden to prove the presence of such element while the defendant, at the same time, has the burden of proving its absence. Hence, whenever the prosecution relies upon proof that the defendant is present at the commission of the crime, it cannot be said with any show of reason that
the defendant, who asserts he was absent, has any burden of proving it."
Commonwealth v. Bonomo, supra at 230, 151 A.2d at 445-46. Cf. Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974); Commonwealth v. ...