Bernard V. O'Hare, George A. Heitczman, Bethlehem, for appellant.
Charles H. Spaziani, Dist. Atty., John E. Gallagher, First Asst. Dist. Atty., Robert A. Freedberg, Asst. Dist. Atty., for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the consideration or decision of this case. Roberts and Nix, JJ., concur in the result.
On February 27, 1975, the appellant, Barry Lesher, was convicted by a jury of voluntary manslaughter for the killing of one Wayne Eisenhart. Post-verdict motions were denied and a sentence of four to eight years imprisonment was imposed. This direct appeal followed. Lesher advances several assignments of error in support of reversal of the judgment and the grant of a new trial. A new trial is required because the trial court's charge to the jury failed to clearly assign to the Commonwealth the burden of proving beyond a reasonable doubt Lesher did not act in self-defense.*fn1
The record establishes that Eisenhart's death was the result of a gunshot wound inflicted during an incident at Lesher's residence, 637-B Ramblewood Lane, Freemansburg, Pennsylvania, in the early morning hours of October 14, 1974. There is, however, a sharp conflict between the testimony presented by the Commonwealth and that presented by the defense as to the circumstances surrounding Eisenhart's death.
The Commonwealth's evidence tended to prove the following. On the night of October 13, 1974, Eisenhart was in the company of William Hillegas and Michael Wasser at a Freemansburg tavern, where they were shooting pool and drinking beer for several hours. At approximately 1:30 a. m. on October 14, 1974, the trio left the tavern and, at Eisenhart's suggestion, drove to Lesher's apartment. Upon their arrival, Eisenhart and Hillegas,
each with several bottles of beer, went up to Lesher's door, followed by Wasser. Eisenhart knocked on the door; when Lesher's wife answered, he told her they had come to "party" with Lesher and he handed her "a beer or two." Mrs. Lesher informed them Lesher was asleep, but she would awaken him. She told them to wait and closed the door, leaving them outside. A few minutes later she returned and again instructed them to wait and closed the door. When the door opened a third time, Lesher was coming down the stairs with a pistol in his hand. Pointing the weapon, Lesher told the three to "Get the f - - - out of here." Hillegas then tugged on Eisenhart's arm and said something to the effect of "let's get out of here." A shot was then heard. Hillegas testified that he heard the shot as he turned to leave and that he threw a beer bottle at the doorway before running for cover. Wasser testified he heard the shot and saw Eisenhart "blown off the porch." He then ran for his truck. Hillegas and Wasser attempted to retrieve Eisenhart's body, but abandoned their efforts after they saw Lesher standing at the apartment window with the pistol. They drove to a friend's house and had him notify the police that a shooting had occurred at Ramblewood Lane.
Lesher was arrested on October 23, 1974, in Norristown, Pennsylvania by a team of state and local police officers. At approximately 1:30 p. m. a group of three or four officers knocked at the front door of 118 Hamilton Street and announced they had a search warrant and an arrest warrant for Lesher. At that same time, Lesher was apprehended by another group of three officers stationed at the rear of the Hamilton Street address. Lesher was running from the back of the house in his stocking feet.
Eisenhart's body was not recovered until November 5, 1974, when Lesher directed the police to a shallow grave in a remote and ...