Charles M. Schwartz, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Asst. Dist. Attys., Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, C. J., files a concurring opinion. Roberts, Nix and Manderino, JJ., concur in the result.
In 1972, appellant, Clara Marie Hilbert, was convicted of murder of the second degree in the Court of Common Pleas of Allegheny County. The evidence establishes that during the evening of December 20, 1971, Hilbert appeared at a police station in Pittsburgh and reported that a man was badly hurt nearby. Officers accompanied her to the scene and found one Lawrence Burr in a car. Burr was badly injured as a result of several stab wounds. He was taken to a hospital and pronounced dead on arrival. An autopsy confirmed that the stab wounds were the cause of death. Police investigation further revealed that there were jimmy marks on Burr's car when the police first came upon it. The marks tended to show a break-in attempt. A screwdriver was found nearby and determined to have caused the marks. A brick was thrown through the car's rear window. Burr's watch and wallet were missing when Burr was discovered by the police but were later found in the vicinity.
The officers on the scene arrested Hilbert. After being given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), she admitted having stabbed Burr. Hilbert made the same admission at trial but claimed to have acted in self-defense. She testified that Burr picked her up in her professional capacity as a prostitute and then attacked her. She described a struggle during which Burr choked her and prevented her from leaving the scene. She stated that the attack caused her to
stab Burr with a knife she carried for protection. The trial court instructed the jury that Hilbert was required to prove by a preponderance of evidence that she was acting in self-defense.
Appellant argues that the court below erred in charging the jury that she was required to prove by a preponderance of the evidence that she was acting in self-defense when she stabbed Lawrence Burr. We agree.
Initially, we must decide whether the above issue was preserved for appellate review. The Commonwealth contends that appellant's failure to orally argue the burden of proof issue at post-verdict motions precludes her from raising it on appeal. We do not agree.
The record in the instant case reveals that defense counsel specifically objected to the burden-of-proof charge at trial and continued this objection in his written post-verdict motions. While the record also shows that counsel did not orally argue the issue during the argument on the post-verdict motions, the trial court decided the merits of this issue adversely to appellant. The Commonwealth contends that this failure to orally argue bars appellant from raising this issue on appeal. We do not agree.
Pa.R.Crim.P. 1123, in effect at the time that appellant filed her post-verdict motions, provided:
"(a) A motion for a new trial shall be filed within seven days after verdict, or within such additional time allowed by the court during the seven-day period.
"(b) A motion for a new trial shall be in writing, and the grounds shall be specified. All allegations of fact not of record shall be supported by affidavit. Leave to state additional specific grounds after the transcript is lodged must be sought within the period allowed pursuant to section (a) of this Rule or within such further time as the
court may allow. Only the grounds so raised may be argued before the court.
"(c) A motion for a new trial on the ground of after-discovered evidence shall be filed promptly after such discovery, and not later than two years after final judgment, unless justice otherwise requires. If an appeal is pending, the court may grant the motion only upon remand of the case." Adopted Jan. 24, 1968. Eff. Aug. 1, 1968.*fn1
Subsection (b) of the Rule provides that only those grounds included in the written motions may be argued to the court. There is nothing in Rule 1123, either the 1972 version or the 1977 version, which requires the oral argument in addition to written enumeration of a ground advanced in post-verdict motions in order to preserve an issue for appellate review. Moreover, in Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), this court required that the post-verdict court only consider those allegations of error that were included in the written motions. See also Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976). The issue concerning the burden of proof was included in the written post-verdict motions and decided by the trial court on the merits. Therefore, this issue is properly preserved for appellate review.
Appellant argues that the court below erred in charging the jury that she was required to prove by a preponderance of the evidence that she was acting in self-defense when she stabbed Lawrence Burr. We agree.*fn2
In the instant case, the trial court instructed the jury ...