Com. v. Hilbert

• Decision Date: 26 January 1978
• Citation: 382 A.2d 724,476 Pa. 288
• Parties: COMMONWEALTH of Pennsylvania v. Clara Marie HILBERT, Appellant.
• Court: Pennsylvania Supreme Court

Page 724

382 A.2d 724

476 Pa. 288

COMMONWEALTH of Pennsylvania v. Clara Marie HILBERT, Appellant.

Supreme Court of Pennsylvania.

Argued March 8, 1977.

Decided Jan. 26, 1978.

[476 Pa. 290] Charles M. Schwartz, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Asst. Dist. Attys., Pittsburgh, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

O'BRIEN, Justice.

In 1972, appellant, Clara Marie Hilbert, was convicted of murder of the second degree in the Court of Common Pleas of Allegheny County. The evidence establishes that during the evening of December 20, 1971, Hilbert appeared at a police station in Pittsburgh and reported that a man was badly hurt nearby. Officers accompanied her to the scene and found one Lawrence Burr in a car. Burr was badly injured as a result of several stab wounds. He was taken to a hospital and pronounced dead on arrival. An autopsy confirmed that the stab wounds were the cause of death. Police investigation further revealed that there were jimmy marks on Burr's car when the police first came upon it. The marks tended to show a break-in attempt. A screw driver was found nearby and determined to have caused the marks. A brick was thrown through the car's rear window. Burr's watch and wallet were missing when Burr was discovered by the police but were later found in the vicinity.

The officers on the scene arrested Hilbert. After being given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), she admitted having stabbed Burr. Hilbert made the same admission at trial but claimed to have acted in self-defense. She testified that Burr picked her up in her professional capacity as a prostitute and then attacked her. She described a struggle during which Burr choked her and prevented her from leaving the scene. She stated that the attack caused her to stab Burr with a knife she carried for protection. The trial court instructed the jury that Hilbert was required to prove by a preponderance of evidence that she was acting in self-defense.

Appellant argues that the court below erred in charging the jury that she was required to prove by a preponderance of the evidence that she was acting in self-defense when she stabbed Lawrence Burr. We agree.

I WAIVER

Initially, we must decide whether the above issue was preserved for appellate review. The Commonwealth contends that appellant's failure to orally argue the burden of proof issue at post-verdict motions precludes her from raising it on appeal. We do not agree.

The record in the instant case reveals that defense counsel specifically objected to the burden-of-proof charge at trial and continued this objection in his written post-verdict motions. While the record also shows that counsel did not orally argue the issue during the argument on the post-verdict motions, the trial court decided the merits of this issue adversely to appellant. The Commonwealth contends that this failure to orally argue bars appellant from raising this issue on appeal. We do not agree.

Pa.R.Crim.P. 1123, in effect at the time that appellant filed her post-verdict motions, provided:

"(a) A motion for a new trial shall be filed within seven days after verdict, or within such additional time allowed by the court during the seven-day period.

"(b) A motion for a new trial shall be in writing, and the grounds shall be specified. All allegations of fact not of record shall be supported by affidavit. Leave to state additional specific grounds after the transcript is lodged must be sought within the period allowed pursuant to section (a) of this Rule or within such further time as the court may allow. Only the grounds so raised may be argued before the court.

"(c) A motion for a new trial on the ground of after-discovered evidence shall be filed promptly after such discovery, and not later than two years after final judgment, unless justice otherwise requires. If an appeal is pending, the court may grant the motion only upon remand of the case." Adopted Jan. 24, 1968. Eff. Aug. 1, 1968. ¹

Subsection (b) of the Rule provides that only those grounds included in the written motions may be argued to the court. There is nothing in Rule 1123, either the 1972 version or the 1977 version, which requires the oral argument in addition to written enumeration of a ground advanced in post-verdict motions in order to preserve an issue for appellate review. Moreover, in Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), this court required that the post-verdict court only consider those allegations of error that were included in the written motions. See also Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976). The issue concerning the burden of proof was included in the written post-verdict motions and decided by the trial court on the merits. Therefore, this issue is properly preserved for appellate review.

II MERITS

Appellant argues that the court below erred in charging the jury that she was required to prove by a preponderance of the evidence that she was acting in self-defense when she stabbed Lawrence Burr. We agree. ²

In the instant case, the trial court instructed the jury as follows: ³

" . . . Under the law such a defense of self-defense need not be proved beyond a reasonable doubt, but the burden is on the defendant to prove such a defense by the fair weight or preponderance of the evidence . . .

" . . . Even though you should come to the conclusion that under all the circumstances, considering everything that has been presented to you, that the defendant has failed to prove self-defense by the criterion (sic) I have outlined for you, you will nevertheless turn your attention to the question of whether or not she acted under an uncontrollable fear of great physical injury or death." (Emphasis added.)

The United States Supreme Court, in In Re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970), stated:

"Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. (Emphasis added.)

In Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Supreme Court, following the dictates of Winship, supra, reversed a criminal defendant's conviction of a homicide committed in Maine because the trial court instructed the jury that the defendant carries the burden of proof by a preponderance of the evidence that he acted in the heat of passion or sudden provocation to reduce the crime charge from murder to manslaughter. ⁴

In interpreting the Maine homicide statutes, the Supreme Court determined that the concept of "heat of passion or sudden provocation" negated "malice aforethought," an element of the definition of murder and, therefore, the Due Process Clause of the United States Constitution prohibits placing a burden of proof upon a criminal defendant to negate an element of the crime with which he or she is charged. Mullaney, supra, continued the Winship mandate that the prosecution must prove all the elements of the crime charged as defined by the crimes statutes of a state or at common law.

In Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), the United States Supreme Court reversed a conviction for murder where the trial court instructed the jury that the defendant carries the burden of proof "to your satisfaction" that he acted in self-defense. The defendant in Hankerson was tried prior to the Supreme Court's decision in Mullaney, supra. The court, however, determined the burden of proof standard articulated in Winship, supra, and Mullaney, supra, was applicable to all persons on direct appeal regardless of the date of trial.

The Hankerson court determined that the North Carolina Supreme Court erred in failing to apply Mullaney to persons tried before the date of that decision. The court held that Mullaney did not announce new law but rather was an application of Winship. Having determined that Winship was, in fact, the controlling precedent, the court further held:

"The Supreme Court of North Carolina erred in declining to hold retroactive the rule in Mullaney v. Wilbur, supra. In Ivan V. v. City of New York, 407 U.S. 203, 204-205, 92 S.Ct. 1951, 32 L.Ed.2d 659 (1972), this Court addressed the question whether our decision in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) holding the reasonable doubt standard applicable to state juvenile proceedings was to be applied retroactively. The Court there said:

' "Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances." Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971). See Adams v. Illinois, 405 U.S. 278, 280, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972); Roberts v. Russell, 392 U.S. 293, 295, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968).

'Winship expressly held that the reasonable-doubt standard "is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence that bedrock 'axiomatic and elementary' principle whose 'enforcement lies at the foundation of the administration of our criminal law' . . . . 'Due process commands that no man shall lose his liberty unless the...