Commonwealth v. Jones

563 A.2d 161, 386 Pa. Super. 467, 1989 Pa. Super. LEXIS 2642
Supreme Court of Pennsylvania·Decided August 25, 1989·No. 190·Published·Cited by 15 cases

Opinions

MELINSON, Judge:

Rodney Jones appeals from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County. We affirm.

Jones, the appellant at bar, was convicted by a jury of three counts of aggravated assault and possession of an instrument of crime. After Jones’s conviction, newly retained counsel filed post-verdict motions. Post-verdict motions were denied and Jones received an aggregate sentence of five to ten years’ imprisonment. Jones’s timely appeal from the Judgment of Sentence was dismissed for failure to file a brief. Thereafter, present counsel filed a petition under the Post Conviction Hearing Act [PCHA] alleging ineffectiveness of all prior counsel and seeking to have Jones’s appeal rights reinstated nunc pro tunc. The petition was granted, and this appeal followed.

On appeal, Jones claims that trial counsel was ineffective for failing to object to the trial court’s instructions regarding Jones’s alibi defense and the definition of reasonable doubt. He further alleges that post-verdict motions counsel [469]*469was ineffective for failing to raise these claims in Jones’s post-verdict motions.

In any ineffectiveness of counsel claim, counsel is presumed competent. The burden of rebutting this presumption is on the defendant. Commonwealth v. Westeott, 362 Pa.Super. 176, 523 A.2d 1140 (1987). There are three elements to a valid claim of ineffectiveness. First, the appellant must show that his underlying claim is of arguable merit. If he succeeds, the appellant must then demonstrate that the course chosen by counsel was not reasonably designed to protect the appellant’s best interests. If the appellant is able to prove these elements, he must then establish that he was actually prejudiced by counsel’s improper course of conduct. Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Initially, we find that the trial court did not err in its charge to the jury on the defense of alibi. Accordingly, Jones’s ineffectiveness claim concerning this aspect of the charge is meritless. The trial court instructed the jury regarding the defense of alibi as follows:

The defense is that he was not there, that the eyewitness was mistaken as to his identity, and he has presented an alibi defense. His alibi defense is to the effect that at the time that the crime was committed, that the shooting occurred, I was not there. I was elsewhere, and he has presented witnesses for your consideration on that issue. When you come to consider this defense, ladies and gentlemen, of 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.
You should consider this evidence along with other evidence in the case in determining whether the Commonwealth has met its burden of proving beyond a reasonable doubt that the crime was then committed [470]*470 and that the defendant committed it or took part therein.
The defendant’s alibi evidence that he was not present may, in itself, work for acquittal, or it, together with other evidence, may be sufficient to raise a reasonable doubt in your mind as jurors. Of course, the alibi witnesses ought to be evaluated by you like you do that of any other witness. You apply to them all the standards that I’ve indicated you should apply in arriving at the truths____

N.T. October 9, 1986 at 2.130-2.131 (emphasis added).

An appellate evaluation of a trial court charge must be based on an examination of the charge as a whole to determine whether it was fair or prejudicial. Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983), cert. denied, 474 U.S. 1083, 106 S.Ct. 854, 88 L.Ed.2d 894 (1986); Commonwealth v. Riggins, 374 Pa.Super. 243, 542 A.2d 1004 (1988). In considering this directive, this court has repeatedly 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.” Riggins, 374 Pa.Super. at 253, 542 A.2d 1004, quoting Commonwealth v. Klinger, 369 Pa.Super. 526, 540, 535 A.2d 1060, 1066 (1987); see also Commonwealth v. Alvin, 357 Pa.Super. 509, 516 A.2d 376 (1986).

The Supreme Court of Pennsylvania has recognized the need for an alibi instruction. In Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), although alibi evidence was presented by the defendant, no alibi charge was given to the jury by the trial court. The Supreme Court held that when a defendant presents evidence of an alibi, a specific alibi instruction must be given to the jury which guards against the possibility that the defendant’s failure to prove alibi would be construed by the jury as evidence of guilt. Thus, the Court wrote, “the trial court failed to instruct the jury that it should acquit if Pounds’ alibi evidence, even if not wholly believed, raised a reason[471]*471able doubt of his presence at the scene of the crime ...” Pounds, 490 Pa. at 633, 417 A.2d 597.

Jones argues here that the “even if not wholly believed” language articulated in Pounds must be incorporated into an alibi charge, and that trial counsel was ineffective for failing to object to the court’s charge at bar. Jones’s argument directly contravenes established case law of this court. In Commonwealth v. Johnson, 336 Pa.Super. 1, 485 A.2d 397 (1984), this court specifically stated that “we do not interpret Pounds as creating standard language for an alibi instruction. So long as the trial judge makes it clear that the defendant’s failure to prove an alibi is not tantamount to guilt, the Pounds safeguards are preserved.” Johnson, 336 Pa.Super. at 18, 485 A.2d 397. In Commonwealth v. Bright, 361 Pa.Super. 261, 522 A.2d 573 (1987), a panel of this court again considered an appellant’s argument that the “even if not wholly believed” language of Pounds must be used in an alibi instruction. Like the Johnson court before it, the Bright court rejected this argument, stating, “appellant is merely contesting the form of the instruction rather than its substance.” Bright, 361 Pa.Super. at 267, 522 A.2d 573. Most recently, in Commonwealth v. Quarles, 361 Pa.Super.

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Commonwealth v. Jones, 563 A.2d 161, 386 Pa. Super. 467, 1989 Pa. Super. LEXIS 2642 (Pa. 1989).

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