¶1(dissenting). The defendant asserts that a certain portion of the jury instructions (in fact, uttered twice) improperly focused on the Commonwealth’s theory that the defendant entered the victim’s residence through an open bedroom window and, thus, conveyed to the jury the judge’s opinion of the sufficiency of the evidence on this element of the Commonwealth’s case. I agree.
¶2I am of opinion that the instruction given reasonably could have been construed as having endorsed the Commonwealth’s theory of entrance through an open window.
¶3I believe that the language reasonably would have been construed as a favorable comment on the strength of the Commonwealth’s evidence, thereby impermissibly reinforcing the Commonwealth’s evidence of the defendant’s guilt.
¶4The instruction and the limited examples used in the context of “breaking the plane” would have been more than sufficient.