Gary B. Zimmerman, Rossetti & Zimmerman, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, C. J., and O'Brien, J., concur in the result.
This is an appeal from a judgment of sentence entered upon a jury verdict convicting appellant of voluntary manslaughter under the 1972 Crimes Code.*fn1 18 Pa.C.S.A. § 2503 (1973). The dispositive issue is whether the trial court erred in refusing defense counsel's request to instruct the jury that where the defense of self-defense, 18 Pa.C.S.A. § 505 (1973), is raised by the evidence at trial, the Commonwealth bears the burden of proving beyond a reasonable doubt that the killing was not committed in self-defense. In its opinion disposing of the issues raised in written post-trial motions, the lower court concluded that it did not err by refusing to so instruct the jury. We disagree and therefore reverse the judgment of sentence and order a new trial.
A review of the record discloses the following facts. Appellant was the manager of a bar owned by his father in McKeesport, Pennsylvania. Appellant lived in an apartment above the bar. On the evening of March 30, 1975, the victim and appellant were seated at the bar engaged in a discussion. At about 12:45 a. m. on March 31, 1975, appellant told the barmaid that he intended to retire soon for the night and asked her to serve everyone a complimentary drink for Easter.
By this time, the victim, who was a long-time friend of appellant, and the appellant had become embroiled in an argument. At about 1:00 a. m., appellant got up from the bar to leave and walked toward the back of the barroom in the direction of the stairs which lead to his upstairs apartment. The victim shouted, "Nobody walks away from me when I'm talking," and proceeded to follow appellant with his arms outstretched toward appellant. The victim had no weapons or objects in his hands. Although appellant testified that the victim grabbed him from behind around the neck and threatened to kill him, other eyewitnesses testified that they were unable to observe the victim's hands, either because of the witnesses' angle of observation or because the size of the victim (six feet one inch tall, weighing two hundred and ninety pounds) obscured their view of his hands. No witness other than appellant testified as to any physical contact between the victim and appellant immediately prior to the killing. Upon being accosted by the victim, appellant pulled a handgun from his right coat pocket and shot the victim twice, killing him. Appellant testified that because of robbery threats he carried the handgun at closing time.
The record shows that during the course of the evening, appellant had ingested at least four mixed drinks, and the victim had drunk at least ten bourbons on the rocks. The victim had a reputation for violence, especially when inebriated, and this reputation was known to the appellant.*fn2
In Commonwealth v. Cropper, 463 Pa. 529, 345 A.2d 645 (1975), this Court ruled that our review of the sufficiency of the evidence to support a voluntary manslaughter conviction must be conducted under the standard that when evidence at trial indicates the defense of self-defense, the burden is on the Commonwealth to prove beyond a reasonable doubt that the killing was not in self-defense. In so holding, this Court, in Cropper, concluded that this allocation of the burden of proof was compelled by the 1972 Crimes Code. Id. 463 Pa. at 536-38, 345 A.2d at 648-49; see Commonwealth v. Lesher, 473 Pa. 141, 147, 373 A.2d 1088, 1091 (1977).
In the instant case, the trial court's instructions to the jury were given prior to our decision in Cropper. Because defense counsel at trial correctly called to the court's attention the fact that Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974) (holding that where intoxication is a defense, prosecution must prove beyond a reasonable doubt that defendant did not lack requisite intent), cast some doubt on the validity of instructing the jury that the defendant bore the burden of proving self-defense,*fn3 see Commonwealth v. Winebrenner, 439 Pa. 73, 265 A.2d 108 (1970), the trial judge recognized this uncertainty and deliberately did not instruct the jury as to the burden of proof on the issue of ...