No. 1944 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Cumberland County, at No. 582 Criminal 1978.
James D. Flower, Jr., Carlisle, for appellant.
Stewart L. Kurtz, District Attorney, Huntingdon, for Commonwealth, appellee.
Cercone, President Judge, and Wickersham and Brosky, JJ. Wickersham, J., files a dissenting opinion.
[ 297 Pa. Super. Page 237]
Appellant, Russell Melvin Shoats, takes this appeal from his conviction for escape, robbery, kidnapping, and simple assault. Appellant advances several reasons why his trial counsel should be found ineffective, including the argument that counsel was ineffective for failing to object to the court's charge to the jury regarding the burden of proof. We find this latter issue to have merit and we reverse and remand for a new trial. In view of our disposition of this particular issue, we need not address appellant's remaining
[ 297 Pa. Super. Page 238]
contentions in which he points to other alleged failings of trial counsel.
On September 14, 1977, appellant and three other inmates escaped from Huntingdon State Correctional Institution. Appellant remained at large until his capture on October 10, 1977. Subsequently, charges were filed against appellant in Huntingdon County; however, a motion for a change of venue was granted and appellant's case was transferred to Cumberland County. After a three day trial, the court charged the jury. The court carefully instructed the jurors that in order to find appellant guilty they had to be satisfied that the Commonwealth established that guilt beyond a reasonable doubt. The court did not, however, instruct the jury that the Commonwealth had the burden to prove beyond a reasonable doubt each and every element of the various offenses with which appellant was charged. Defense counsel raised no objection to the charge nor did counsel attempt to raise this in post verdict motions. On appeal, appellant is now represented by new counsel who raises the issue of trial counsel's ineffectiveness for various reasons.
It is well settled that the standard used when reviewing ineffective assistance of counsel claims is whether the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interest, and not whether other alternatives were more reasonable in hindsight. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). As the Court said in Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977).
Because counsel does not forego an alternative which offers a substantially greater potential for success when he fails to assert a baseless claim, counsel cannot be found to have been ineffective for failing to make such an assertion. It is only when the claim which was foregone was of arguable merit that we must make an inquiry into
[ 297 Pa. Super. Page 239]
the basis for . . . counsel's decision not to pursue the matter.
Id., 472 Pa. at 278, 372 A.2d at 695-696.
Appellant argues that trial counsel was ineffective for neglecting to object to the court's failure to instruct the jurors that the Commonwealth has the burden of proving "each and every element" of the charged offenses beyond a reasonable doubt. The Supreme Court's decision in Commonwealth v. Bishop, 472 Pa. 485, 372 A.2d 794 (1977) was decided on April 28, 1977, six months before the start of appellant's trial on October 23, 1977. In Bishop, the defense counsel had requested that the trial court instruct the jury that the Commonwealth has the burden to prove "each and every element" beyond a reasonable doubt. The trial court declined to give this instruction, and the defense appealed. The Supreme Court reversed. The Court stated that in previous cases it has been held that the Commonwealth's burden of proving guilt beyond a reasonable doubt extends to every material element of the crime charged and that the Commonwealth fails to carry this burden as to any one element, the accused must be acquitted. Commonwealth v. Bishop, supra, 472 Pa. at ...