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392 Pa. Super. 371

572 A.2d 1279

Commonwealth v. Lott

Supreme Court of Pennsylvania

Decided April 10, 1990

Supreme Court of Pennsylvania · decided 1990-04-10

Cited by 6 later decisions — most recently October 1991

6 state decisions

Relies on Commonwealth v. Pounds · Commonwealth v. Willis · 336 Pa. Super. 1 - Commonwealth v. Johnson

Good law ✅— No negative treatment on recordhow we know

Decided 1990-04-10

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BROSKY, Judge.

¶1This appeal is from the Order of the PCHA court dismissing appellant’s post-conviction petition.

¶2Appellant charges his trial counsel with ineffectiveness because the latter failed to object to a purportedly erroneous jury instruction on alibi. Appellant claims that the trial court’s alibi charge was improper because it did not incant the “even if not wholly believed” language of Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), and Commonwealth v. Willis, 520 Pa. 289, 553 A.2d 959 (1989). We disagree that the charge was improper and therefore affirm the Order of the post-conviction court.

The complained-of charge reads as follows: *373[Ojbviously, of course, the Defendant cannot be guilty unless he was at the scene of the alleged crime. The Defendant has offered evidence to show that he was not present at the crime, but rather at Robert Alderman’s house at an Amway demonstration and birthday get together. You should consider this evidence and alibi along with all the other evidence in the case in determining whether the Commonwealth has met its burden of proving beyond a reasonable doubt that a crime was committed and that the Defendant himself committed it. The evidence presented by the defense that he was not present, if you believe it, either by itself or together with other evidence may be sufficient to raise a reasonable doubt of the Defendant’s guilt in your minds. If you have a reasonable doubt of the Defendant’s guilt, you must find him not guilty.
On the other hand, you may choose to disbelieve and disregard the testimony concerning alibi and accept as true the testimony of the Commonwealth witnesses that the Defendant was present at the scene of the crime.

¶3N.T., 12/6/82, 735-36.

¶4A trial court need not use the precise “even if not wholly believed” language of the above authorities if the instruction makes it clear that the defendant’s failure to prove alibi is not tantamount to guilt. Commonwealth v. Johnson, 336 Pa.Super. 1, 485 A.2d 397 (1984). It is therefore not necessary to incant the Pounds/Willis language in an alibi charge if the Standard Jury Instruction or its equivalent is given. Commonwealth v. Payne, 385 Pa.Super. 9, 559 A.2d 951 (1989). In this case, the court’s instruction essentially parallels that of Pa.S.S.J.1. 3.11. This instruction was not disapproved or otherwise rendered inaccurate by the Supreme Court’s decision in Willis.

¶5In Willis, the trial court erroneously instructed the jury that no alibi evidence had been presented other than Willis’ own testimony. After defense counsel objected to this misinformation, the trial court, in effect, merely summarized the alibi testimony of the witnesses and then stated, *374“Well, it may be an alibi and there may be some question about the time. But, in any event, I am explaining it [sic] to you now what my recollection was of the evidence. Of course, your recollection does govern.” 520 Pa. at 293, 553 A.2d at 961.

¶6The Willisinstruction does not at all follow the Suggested Jury Instruction, supra, nor is it even remotely comparable to the instruction given by the trial court instantly. Therefore, Willisis distinguishable on that basis. Moreover, and contrary to appellant’s assertions, Willisdoes not stand for the proposition that a jury instruction on alibi which fails to recite the phrase “even if not wholly believed” warrants a new trial because of an unfavorable inference that a defendant is guilty because he failed to prove the defense. Willisonly holds that an alibi instruction must be given to assure the jury that the failure to prove the defense is not an inference of guilt.

¶7In Commonwealth v. Jones, 386 Pa.Super. 467, 563 A.2d 161 (1989), an en banc panel of this court, relying on Commonwealth v. Johnson, supra,and Commonwealth v. Bright, 361 Pa.Super. 261, 522 A.2d 573 (1987), rejected the identical position raised by appellant here. Johnsonheld that the Supreme Court in Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), did not intend to create a standard alibi instruction requiring recitation of the phrase “even if not wholly believed.” Instead, the Johnsoncourt held, the Poundssafeguards are preserved if the trial court clearly states that the accused’s failure to prove alibi is not tantamount to guilt. See also Commonwealth v. Payne, supra.Moreover, this court in Commonwealth v. Bright, supra,advised that the argument typified here merely contests the form of the charge rather than its substance. We agree with Jonesand its forerunners. The Jonescourt approved the type of charge given here. Therefore, we perceive no error in the alibi charge as given. For this reason, we reject appellant’s claim of ineffectiveness of counsel in this regard. Commonwealth v. Jones, supra.

¶8*375Because appellant’s claim has failed to cross the threshold of arguable merit, we affirm the Order of the PCHA court.

¶9Order affirmed.

WIEAND, J., files a dissenting opinion.
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