Commonwealth v. Saunders

602 A.2d 816, 529 Pa. 140, 1992 Pa. LEXIS 19
CourtSupreme Court of Pennsylvania
DecidedJanuary 13, 1992
Docket71 E.D. Appeal Docket 1990
StatusPublished
Cited by44 cases

This text of 602 A.2d 816 (Commonwealth v. Saunders) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Saunders, 602 A.2d 816, 529 Pa. 140, 1992 Pa. LEXIS 19 (Pa. 1992).

Opinions

OPINION OF THE COURT

FLAHERTY, Justice.

This is an appeal, by allowance, from a memorandum opinion and order of the Superior Court, 397 Pa.Super. 646, 571 A.2d 505, which affirmed a judgment of sentence imposed by the Court of Common Pleas of Philadelphia County. In October of 1988, the appellant, Charles Saunders, was convicted by a jury of aggravated assault, possessing an instrument of crime, and carrying a firearm without a license. Appellant was sentenced to two consecutive terms [142]*142of eleven and one-half to twenty-three months imprisonment, followed by a consecutive term of twenty-four months probation. The factual background of the case is as follows.

At approximately 2:00 p.m. on March 5, 1988, appellant brandished a gun and approached an individual, William Davis, along a street in Philadelphia and stated that he was going to kill him. Appellant fired three shots, one of which was aimed towards Davis, and then fled from the scene. Testimony regarding this incident came from both Davis and an eleven year old stepgrandaughter of Davis who was across the street at the time of the incident.

Appellant testified on his own behalf and asserted an alibi, claiming that he was visiting at the residence of his niece from approximately 8:00 a.m. to 3:00 p.m. on the day of the alleged assault.1 He testified that his niece drove him to the residence of his sister around 3:00 p.m. that day. Appellant’s sister testified that he arrived to see her at 3:00 p.m., or shortly thereafter, and stayed for several hours.

After the close of the evidence, the trial court instructed the jury as follows regarding the alibi evidence:

Now, in this case there was also evidence of alibi. Obviously, the defendant cannot be guilty unless he was at the scene of the alleged crime. The defendant in this case has offered evidence to show that he was not present at the scene of the crime but was at another location during the time the crime was allegedly committed. You should consider this evidence 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 the crime.
The defendant’s evidence that he was not present either by itself or together with the other evidence may be [143]*143sufficient to raise a reasonable doubt of his guilt in your minds. If you have a reasonable doubt of the defendant’s guilt, then you must find him not guilty.

Appellant contends that trial counsel was ineffective for failing to object to this instruction, on the basis that the instruction failed to include language that “the jury should acquit if the defendant’s alibi evidence, even if not wholly believed, raised a reasonable doubt of his guilt.” (Emphasis added). In support of his argument that the phrase “even if not wholly believed” should have been included in the alibi instruction, appellant relies upon this Court’s decision in Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980). In Pounds, where the trial court failed to give any instruction on alibi, and alibi evidence had been introduced only through the defendant’s own testimony, we stated, “the trial court failed to instruct the jury that it should acquit if Pounds’ alibi evidence, even if not wholly believed, raised a reasonable doubt of his presence at the scene of the crime at the time of its commission and, thus, of his guilt.” 490 Pa. at 633, 417 A.2d at 603 (footnote omitted). Appellant also relies upon our recent decision in Commonwealth v. Willis, 520 Pa. 289, 553 A.2d 959 (1989). In Willis, where the trial court gave only a cursory instruction on alibi, we cited Pounds as the controlling precedent and stated, “[t]he trial court’s failure to charge the jury that it should acquit if [Willis’] alibi evidence, even if not wholly believed, raised a reasonable doubt of his presence at the scene of the crime when it was committed was error.” 520 Pa. at 294, 553 A.2d at 962.

The Superior Court has consistently construed our decision in Pounds as not requiring that the phrase, “even if not wholly believed,” be included in instructions to the jury regarding alibi. Commonwealth v. Jones, 386 Pa.Super. 467, 563 A.2d 161 (1989) (en banc), allocatur granted, 525 Pa. 632, 578 A.2d 926 (1990); Commonwealth v. Payne, 385 Pa.Super. 9, 559 A.2d 951 (1989); Commonwealth v. Bright, 361 Pa.Super. 261, 522 A.2d 573 (1987), allocatur denied, 517 Pa. 597, 535 A.2d 1056 (1987); Commonwealth [144]*144v. Johnson, 336 Pa.Super. 1, 485 A.2d 397 (1984). In the present case, the Superior Court held that the instruction given was in conformity with these precedents, and, further, that it was virtually identical to the instruction on alibi evidence set forth in the Pennsylvania Standard Jury Instructions.

Indeed, in the Pennsylvania Standard Jury Instructions, Criminal, § 3.11, there is a suggested instruction which is nearly identical to the one given by the trial court in this case. The suggested instruction does not contain the phrase, “even if not wholly believed.”2 We have previously cited this instruction in contexts that indicate our general approval thereof, but have never been called upon to decide whether it should have incorporated the phrase, “even if not wholly believed.” Commonwealth v. Willis, 520 Pa. at 292, 553 A.2d at 961; Commonwealth v. Pounds, 490 Pa. at 633, 417 A.2d at 603. See also Commonwealth v. Yost, 478 Pa. 327, 333, 386 A.2d 956, 959 (1978) (alibi instruction, which contained language virtually identical to the standard instruction, was approved).

It is established that appellate review of a trial court charge must involve a consideration of the charge as a whole to determine whether it was fair and complete. Commonwealth v. Ohle, 503 Pa. 566, 582, 470 A.2d 61, 70 (1983). The review does not focus upon whether certain “magic words” were included in the charge. Rather, it is the effect of the charge as a whole that is controlling. Id.

[145]*145The charge given by the trial court, when viewed as a whole, fully conveyed to the jury that a failure by the defense to prove alibi was not to be construed as evidence of guilt. This is the essential point that the Pounds decision sought to insure. As we stated in Willis, 520 Pa. at 294, 553 A.2d at 962 (quoting Pounds, 490 Pa.

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Bluebook (online)
602 A.2d 816, 529 Pa. 140, 1992 Pa. LEXIS 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-saunders-pa-1992.