dissenting in part, concurring in part.
The. majority today concludes that the state court’s failure to instruct the jury on the presumption of innocence, viewed “in light of the totality of the circumstances.” did not deprive the appellant of a constitutionally fair trial. Ante at 545-546.
Although I agree with the majority that an instruction on the presumption of innocence is not constitutionally required in every criminal case, under Taylor, supra and Whorton, supra, I respectfully dissent from their conclusion that [in light of the totality of the circumstances of this case] the trial court’s failure to instruct on the presumption of innocence did not deprive petitioner Payne of a constitutionally fair trial.
In reviewing the record, I cannot agree with the majority that “[T]he evidence against Payne was overwhelming.” Ante, at 546. The evidence against the petitioner’s co-defendant Douglas was certainly overwhelming, but I do not believe that the evidence against Douglas has been sufficiently distinguished from the evidence against Payne.
The record reveals that although Payne and Douglas were found in Payne’s automobile, which matched the description of the getaway car, Douglas admitted on cross examination that: the weapons found in the automobile belonged to him; he alone put them there and he used Payne’s car that evening without Payne being in it. Also, the victims’ wallets were found by the police where Douglas, not Payne, had indicated. I am further troubled by the prejudicial effect on Payne of the police officer’s testimony that Douglas remarked that his nocturnal occupation was stealing. App. 85-86.
The show up nature of Payne’s identification, while handcuffed, either in a squad car or led from a squad car by a uniformed police officer was highly suggestive and prejudicial. The record reveals that victims Gnau and Burkett identified Douglas as the offender with the shotgun. It is evident from the record that both Gnau and Burkett had a better and longer opportunity to observe Douglas than they had to observe Payne. The parading of Payne with the more readily identifiable Douglas before the victims was also overly suggestive and prejudicial to the petitioner. Gnau’s and Burkett’s affirmative in court identification of Payne does not entirely resolve this issue. In Taylor, supra, the Supreme Court reversed the petitioner’s conviction where inter alia, the victim “testified that he had known the petitioner for several years and had entertained petitioner at his home on several occasions.” 436 U.S. at 480, 98 S.Ct. at 1932. The Court concluded that the “risk [of the jury inferring guilt from the fact of arrest and, indictment without an instruction on the presumption of innocence] was heightened because the trial essentially was a swearing contest between victim and accused.” 436 U.S. at 488, 98 S.Ct. at 1936.
Lastly, the petitioner’s joint trial with an allegedly admitted bedtime bandit further blurred the the necessary distinction of evidence against Payne and overwhelming evidence against Douglas.
Other factors which convince me that the trial court’s failure to instruct on the presumption of innocence deprived petitioner of a constitutionally fair trial are the view *549of the defendants in custody by the jury, the trial court’s remarks when the jury entered that the defendants should consider themselves in custody,1 and finally, the trial court’s instructions and charge to the jury on the burden of proof.
At the outset of the trial the Court instructed the jury that:
“. .. The defendant in a criminal trial does not have to testify if he doesn’t want to, and you must draw no inference from the fact that a defendant may not testify. The burden is on the Commonwealth to prove that the defendant is guilty beyond a reasonable doubt. A defendant is entirely justified in sitting without saying anything if he feels that the Commonwealth has not supported the burden which it has ...”
App. A-17 (emphasis added).
By instructing the jury that a defendant’s silence was justified if he felt the Commonwealth has not supported its burden, the Court inferred that if the defendant did not remain silent, the Commonwealth has supported its burden. This clearly shifted the burden of proof to defendant and vitiated the defendant’s presumption of innocence.
Lastly, the trial court charged the jury that reasonable doubt was substantial doubt. Although this equation of reasonable doubt with substantial doubt is not reversible error, as the majority points out, ante 546-547, this charge considered in light of the circumstances outlined above, deprived the petitioner of a constitutionally fair trial.
I join the majority in their opinion that the prohibition against double jeopardy was not violated.
. As the majority points out, the record does no,t reflect whether the jury actually heard the trial court’s comments.