No. 2466 October Term, 1978, Appeal from Judgment of Sentence in the Court of Common Pleas of Delaware County, Criminal Division, at No. 6809 A-B-Count 1 of 1976.
Leslie B. Potter, Assistant Public Defender, Media, for appellant.
Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
Cercone, President Judge, and Watkins and Hoffman, JJ.
[ 279 Pa. Super. Page 240]
Appellant takes this appeal from his conviction on August 26, 1977, for robbery*fn1 and theft by unlawful taking.*fn2 Appellant argues, inter alia,*fn3 that the court's charge to the jury was inadequate in that the court did not properly charge the jury on the Commonwealth's burden of proof. Appellant's argument has merit; therefore, we reverse and remand for a new trial.
Briefly stated, these are the facts of the instant case. It was alleged that on November 8, 1976, appellant, Thomas Michael Saunders, robbed the Alert Gas Station in Lester, Pennsylvania. At the time of the theft, James Kelz and Anthony Marucci were the only attendants on duty in the station. Kelz and Marucci testified at trial on August 22, 1977 that Saunders threatened to kill them if they did not help appellant remove the office safe, which was bolted to the floor. Kelz and Marucci testified that they were afraid of appellant, so they cooperated with him.
After all the evidence was heard, appellant submitted his points for charge to the jury. One of appellant's points read:
"Members of the jury, the burden of proof which is upon the Commonwealth and which the Commonwealth must meet in this case, if you are to find Mr. Saunders guilty of any crime, it means that the Commonwealth must prove beyond a reasonable doubt every fact and circumstance which is essential to the guilt of the accused.
[ 279 Pa. Super. Page 241]
If the Commonwealth fails to convince you of even one element essential to the proof of the respective crime, then you must find the defendant innocent."
The court did not read this point for charge to the jury; instead the court instructed the jury thusly,
"The burden is on the Commonwealth to prove that the defendant is guilty of each and every one of these charges by evidence beyond a ...