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386 Pa. Super. 467

563 A.2d 161

Commonwealth v. Jones

Supreme Court of Pennsylvania

Decided August 25, 1989

Supreme Court of Pennsylvania · decided 1989-08-25

Cited by 16 later decisions — most recently January 1992

16 state decisions

Relies on Commonwealth v. Pounds

Good law ✅— No negative treatment on recordhow we know

Decided 1989-08-25

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McEWEN, Judge,

¶1dissenting.

¶2The author of the majority opinion has, in his usual insightful fashion, expressed his position in such compelling fashion that I more wisely proceed to rapidly recite and retreat. If we agree that the instructions provided the jury by the trial judge may not simply give a general impression of the law but must provide precise statements of legal principle, I am troubled by the following portion of the instruction upon alibi:

... you must consider, among other things, whether the testimony given covers the entire time the offense is shown to have been committed and whether it precludes the possibility of defendant’s presence at the scene of the crime, (emphasis supplied).

¶3The majority acknowledges, as direction of the Pennsylvania Supreme Court in Commonwealth v. Pounds, 490 Pa. 621, 633, 417 A.2d 597, 603 (1980), the need for the trial judge “to instruct the jury that it should acquit if [the] alibi evidence, even if not wholly believed, raised a reasonable doubt of his presence at the scene of the crime____”. (emphasis supplied). I am of a mind that the “airtight” standard of the challenged instruction imposed a heavier burden upon appellant than that dictated by the Supreme Court when it declared that alibi evidence even if not “wholly believed” can be sufficient to create reasonable doubt. Thus, the instruction to the jury that the alibi evidence of appellant was required to preclude the possibil*476ity of his presence at the scene of the crime, prescribed a more demanding and, therefore, improper standard for the jury to apply to the alibi evidence as it weighed the existence of reasonable doubt. Therefore, I would grant the motion of appellant for a new trial.

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