No. 1753 Philadelphia 1982, APPEAL FROM THE JUDGMENT OF SENTENCE OF MAY 27, 1982 IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, CRIMINAL NO. 1907-81
Salvatore J. Cucinotta, Philadelphia, for appellant.
Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Cavanaugh, McEwen and Cirillo, JJ.
[ 326 Pa. Super. Page 105]
On June 13, 1981 the appellant, Scott Sherlock, and his girlfriend, Susan Hogue, switched motor vehicles for the evening as they had often done in the past. It was their practice to leave the ignition keys in each vehicle and to replace any gas they had used. Early the next morning, the appellant returned Susan's vehicle to her residence on Highland Road in Lansdale, where she lived with her parents. The appellant then tapped on Susan's bedroom window and requested that she come outside. Susan refused, but the appellant persisted. Susan testified that she was afraid the appellant knew she had gone out with someone else that night. The appellant testified that all he wanted was the keys to his house and car. Susan's father told the appellant to leave or he would call the police. So the appellant went to his car, started it with a spare ignition key and pulled out of the driveway. However, as he reached the street, he noticed his gas gauge was on "empty" and he was not sure that he could make it home. The appellant testified that he had no money and he wanted to let Susan know that he did not have any gas in the car. Therefore, the appellant parked his car on the street and walked to the front of the house where he saw Susan in the picture window. Just as he began to tap on the window, police cars arrived, so the appellant hid behind some bushes.
[ 326 Pa. Super. Page 106]
After a short time he went to leave but was halted by police and a scuffle ensued. The appellant was arrested and charged with simple and aggravated assault, defiant trespass, resisting arrest, loitering and prowling.
He was brought to trial on February 11 and 12, 1982 before the Honorable William T. Nicholas and a jury. The jurors found the appellant guilty of defiant trespass*fn1 and not guilty as to all other charges. Post-trial motions for a new trial and in arrest of judgment were filed and denied after argument. On May 27, 1982 the appellant was placed on probation for one year and fined $200.00. An appeal was filed with this Court on June 4, 1982. Thereafter, the appellant filed a motion to modify sentence and arrest judgment, which was dismissed by the trial court.
The sole question preserved for our review is whether the trial judge erred in failing to charge the jury regarding the appellant's reasonable belief that he had permission to remain on the property.
In charging a jury, it is the duty of the trial judge to clarify issues so that the jurors may comprehend the questions they are to resolve, to elucidate correct principles of law applicable to the pending case, and to endeavor to make such principles understandable in plain language. Commonwealth v. Funke, 306 Pa. Super. 542, 452 A.2d 857 (1982). The failure to fulfill this duty deprives the defendant of a fair trial. Commonwealth v. Bishop, 472 Pa. 485, 372 A.2d 794 (1977); Commonwealth v. Litman, 276 Pa. Super. 114, 419 A.2d 121 (1980).
The relevant portion of the jury charge is as follows:
A person commits this offense of defiant trespass if knowing he is not licensed or privileged to do so he enters or remains in any place as to which notice against trespass is given by actual communication to the actor, and ...