Commonwealth v. Roxberry

MELINSON, Judge,

concurring:

It is with reluctance that I concur. This conclusion is necessitated by the case of Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), cited by my distinguished colleague, Judge Wieand. Our Supreme Court in Pounds stated that “the testimony of the accused may, by itself, be sufficient to raise an alibi defense and entitle him to an appropriate jury instruction.” Pounds, 490 Pa. at 632, 417 A.2d 597 (emphasis added). I would be less hesitant in concurring with the result in the case at bar had the Supreme Court used the mandatory language “shall” or “must” in lieu of the discretionary term “may” in its pronouncement in Pounds.

I further note that in the cases Commonwealth v. Brunner, 341 Pa.Super. 64, 491 A.2d 150 (1985), and Commonwealth v. Van Wright, 249 Pa.Super. 451, 378 A.2d 382 (1977), also cited by Judge Wieand, there was alibi testimony other than that of the defendants. At bar, the alibi witness failed to appear, leaving the defendant's alibi testimony standing alone.

Nevertheless, I am constrained to follow Pounds because the Supreme Court of this Commonwealth required an alibi instruction in that case, where there was substantial evidence of guilt, and where the defendant was the lone alibi witness. I believe, however, that the disposition of Pounds may be construed as being inconsistent with another Supreme Court directive, namely, that “an appellate evaluation of the charge must be based on an examination of it as a whole to determine whether it was fair or prejudicial.” Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983); see also Commonwealth v. Klinger, 369 Pa.Super. 526, 535 A.2d 1060 (1987). In considering this directive, this court has stated that “we may not predicate a finding of error upon isolated excerpts of the charge as it is the general effect of the charge that controls.” Klinger, 369 Pa.Super. at 540, 535 A.2d 1060. Thus, this court has found that a jury charge was proper where the trial court failed to include in its charge a reference to the defendant’s presumption of innocence, because the court told the jury that the burden was on the Commonwealth to prove every element of the crime beyond a reasonable doubt. Klinger, 369 Pa.Super. at 540-541, 535 A.2d 1060.

I believe that the alibi charge necessitated by the Pounds Court is one that should be highly recommended for utilization by the trial courts of this Commonwealth when faced with an alibi defense; however, the failure to give the alibi instruction set forth in Pounds should not be reversible error if, read in its entirety, the charge was proper. Furthermore, I would prefer to permit the trial judge to exercise his or her discretion regarding the alibi charge, especially in cases in which the defendant is the only alibi witness; nevertheless, it appears that Pounds prohibits that alternative. Applying the law as set forth in Pounds to the charge in the case at bar, I am compelled to concur with Judge Wieand.