submitted: March 31, 1983.
COMMONWEALTH OF PENNSYLVANIA
JAMES BUTLER, APPELLANT
No. 946 Pittsburgh, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County at No. 8008101A.
Shelley Stark, Assistant Public Defender, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Cavanaugh, Brosky and Montgomery, JJ. Brosky, J., concurs in result.
[ 317 Pa. Super. Page 376]
Appellant, James Butler, was found guilty of burglary following a jury trial before Finkelhor, J. He was sentenced to imprisonment for six months to five years and ordered to make restitution in the amount of $500. An appeal has been taken to this court from the judgment of sentence.
Appellant contends on appeal that the trial court erred in its charge to the jury concerning the Commonwealth's burden of proof. In its charge the court stated, inter alia:
The defendant is presumed innocent throughout the trial and unless and until you conclude, based on careful and impartial consideration of the evidence, that the Commonwealth has proven him to be guilty beyond a reasonable doubt. It is not the defendant's burden to prove that he is not guilty. In other words, he does not have the burden to prove that he is not guilty. It is the Commonwealth that always has the burden of proving each and every element of the crime with which the defendant is charged.
The problem that we must deal with*fn1 is that while the court instructed the jury that the Commonwealth had the
[ 317 Pa. Super. Page 377]
burden of proving the defendant guilty beyond a reasonable doubt, it did not instruct the jury that the Commonwealth had the burden of proving every element of the crime beyond a reasonable doubt. In Commonwealth v. Bishop, 472 Pa. 485, 372 A.2d 794 (1977), our Supreme Court remanded for a new trial because the trial court denied a defense request that the Commonwealth had the burden of proving each and every element of the crime charged beyond a reasonable doubt. The court stated at 472 Pa. 490, 372 A.2d 796:
Nowhere, however, in the entire charge did the court explain that the presence of each of the elements of the conduct charged must be proven by the Commonwealth beyond a reasonable doubt. In fact, no direction at all was given as to the proper application of the burden to the component parts of the crime in question. The defense had an absolute right to have the jury instructed not only as to the quantum of proof required to establish guilt but also that the requirement extended to each of the material elements of the offense. The function of elucidating the relevant legal principles belongs to the judge, and the failure to fulfill this function deprives the defendant of a fair trial.
The court further stated at 472 Pa. 490, 491, 372 A.2d 796-7:
It is entirely possible that, as a result of the charge as it was given, the jury concluded that the Commonwealth might meet its burden if the cumulative evidence of guilt was such that they were convinced beyond a reasonable doubt although they were not convinced beyond a reasonable doubt as to one or more of the elements of the offense. This is not the correct standard and differs significantly from the requirement that each and every element of the crime meet this same measure of substantiation.
[ 317 Pa. Super. Page 378]
The case of Commonwealth v. Shoats,*fn2 297 Pa. Super. 236, 443 A.2d 814 (1982) Opinion by Cercone, P.J., dissenting opinion by Wickersham, J. is controlling in the instant case. In Shoats this court stated at 297 Pa. Super. 238, 443 A.2d 815:
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.
The court relying on Commonwealth v. Bishop, supra, remanded for a new trial as the charge was erroneous and there was no acceptable excuse for defense counsel's not objecting to the court's failure to instruct the jury that the Commonwealth has the burden of proving each and every element of the crime charged beyond a reasonable doubt. In the instant case trial counsel did not object to the court's failure to so instruct the jury. On appeal, the appellant is represented by different counsel and he has raised the issue of trial counsel's ineffectiveness.
It is settled beyond peradventure that the standard used in determining ineffectiveness of counsel is whether the course chosen by counsel had a reasonable basis designed
[ 317 Pa. Super. Page 379]
to effectuate his client's interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Counsel need not assert a baseless claim, and it is only when the foregone claim has arguable merit that we must inquire into basis for counsel's decision not to pursue the claim. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Consistent with our court's panel decision in Shoats, supra, we must find no reasonable basis for the failure of trial counsel to object to the charge.*fn3
The grant of a new trial in this case is required by our panel decision in Commonwealth v. Shoats, supra, applying the doctrine of Commonwealth v. Bishop, supra. While under Bishop it is clear that the charge stating the burden of proof as to each element of the charge must be separately given if requested, we do not agree that every charge where the rigid formula of separate repetition is not followed is ipso facto in error. We believe that a fair reading of the present charge, which stated only one burden of proof and did so correctly, was sufficient and that a new trial is not warranted simply because the burden was not restated. However, we see no distinction between this case and Shoats and, accordingly, the judgment of sentence is reversed and case remanded for new trial.
This court does not retain jurisdiction.