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 ...