¶1Concurring Opinion by
¶2I concur in the opinion of the majority except as it relates to the weight to be given to alibi evidence.
¶3The Appellate Courts of this Commonwealth should have long since stated clearly, and thereafter stood firmly on what the trial judges should charge juries concerning the weight to be given alibi evidence.
¶4To charge that an alibi must, in order to have it avail the defendant, be proved by a fair preponderance of the evidence, and then to charge that if alibi evidence, along with all other evidence, raises a reasonable doubt of the defendant’s guilt he must be acquitted, is inconsistent, confusing and fallacious. See Commonwealth v. Barnak, 357 Pa. 391, 406, 54 A. 2d 865 (1947); Commonwealth v. McQueen, 178 Pa. Superior Ct. 38, 112 A. 2d 820 (1955); Commonwealth v. Johnson, 372 Pa. 266, 93 A. 2d 691 (1953); Commonwealth v. Richardson, 392 Pa. 528, 140 A. 2d 828 (1958). Encouraging the trial judges to continue using these selfproving fallacies should be stopped.
¶5The Supreme Court said in Commonwealth v. Barnak, supra, that “It would be better if the jury was instructed, when the defense of an alibi is set up, that the burden remains on the Commonwealth to prove every essential element of the case, including the defendant’s presence at the scene of the (crime) when, as in the instant case, that is a material element in the *531case.” This charge makes sense. To say that an alibi must be established by a fair preponderance of the evidence just is not true.
¶6Suppose after deliberating in a case involving an alibi a juror, seeking further instruction, would say to the trial judge, “I am not convinced by the fair preponderance of the evidence that the defendant’s alibi was established, and ignoring the alibi evidence I am convinced beyond a reasonable doubt of his guilt, but considering the alibi evidence, along with all the other evidence I have a reasonable doubt of his guilt. What should I do?” The trial judge, I presume, should tell the juror to acquit the defendant. The juror might then reply: “You told me that an alibi to avail the accused must be established by a fair preponderance of the evidence. Now you tell me that it avails the accused even though the alibi was not established by a fair preponderance of the evidence, providing it is sufficient to raise a reasonable doubt. Since it is self-evident both of your statements cannot be correct why confuse me by giving me two conflicting tests?” How can the trial judge answer that one?
¶7I think there was no error in Judge Pinola’s charge relating to alibi.