Commonwealth v. Willis

553 A.2d 959, 520 Pa. 289, 1989 Pa. LEXIS 23
CourtSupreme Court of Pennsylvania
DecidedFebruary 8, 1989
Docket125 E.D. Appeal Docket 1987
StatusPublished
Cited by23 cases

This text of 553 A.2d 959 (Commonwealth v. Willis) 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. Willis, 553 A.2d 959, 520 Pa. 289, 1989 Pa. LEXIS 23 (Pa. 1989).

Opinions

OPINION

ZAPPALA, Justice.

Appellant Robert Willis appeals from the Superior Court’s per curiam affirmance of the judgment of sentence imposed by the Philadelphia County Court of Common Pleas following his conviction of burglary, robbery, attempted involuntary deviate sexual intercourse and attempted rape. 356 Pa.Super. 620, 512 A.2d 1292. The sole issue which will be addressed is whether the trial court failed to properly charge the jury on the alibi defense raised by the Appellant. We agree with the Appellant that the instructions to the jury relating to the alibi defense were inadequate and that the trial court’s failure to give a proper instruction necessitates the grant of a new trial.

On May 26,1984, Linda Gwyn was resting in the bedroom of her Philadelphia apartment when she was confronted by a young man, who had entered her room by climbing up the building’s fire escape. She testified at trial that the man, who was dressed in a pair of dark pants, a white T-shirt, and a powder blue jogging jacket, demanded money. He then threatened her and attempted to rape her. She resisted and a struggle ensued. Escaping from the bedroom, she was cornered by the attacker in her kitchen. He took a kitchen knife, again threatening her. He exposed himself and attempted to force her to perform oral sex. Continuing [291]*291to resist, she was fortunate enough to elude him and escape by running out of the front door of her apartment. The incident occurred at approximately 6:30 p.m. The victim identified the Appellant as the attacker.

Joseph Canosa, a neighbor of the victim, testified that he saw a man climbing up the fire escape as he was sitting down to eat dinner with his girlfriend about 6:30 p.m. Suspicious, he began to investigate and heard unusual noises emanating from the victim’s apartment. In the meantime, Mr. Canosa’s girlfriend called the police. He pursued the attacker as he fled from the building, but lost sight of him. Police officers arrived at the scene during that time. The police arrested the Appellant, who was identified then and at trial by Mr. Canosa as the man he had chased.

The Appellant appeared on his own behalf and testified that earlier that day he had played basketball until 3:30 p.m., leaving with his girlfriend, Thomasine Anderson. He stated that he went to a bar which was located close to the scene of the crime. It was his testimony that he was playing in a crap game outside of the bar from approximately 4:30 p.m. until the game broke up due to a warning that police officers were arriving. He indicated that he again went into the bar and was arrested shortly thereafter by an officer who was accompanied by a man who identified him as the victim’s assailant.

The Appellant offered the testimony of Thomasine Anderson and William Wolford in support of his defense that he was not at the victim’s apartment building at the time the incident occurred and that the Commonwealth witnesses’ identification of him as the assailant was mistaken. William Wolford, whose nickname was Pockets, testified that he saw the Appellant for the first time that day when he joined the crap game at 4:30 p.m. He indicated that he stayed there approximately an hour, estimating the time to be from 4:30 until “something to six”, and that the police arrived close to 6:00 p.m. Thomasine Anderson corroborated the Appellant’s testimony that he had played basketball and later went to play in the crap game. She [292]*292stated that she accompanied him to the bar, but did not go inside. Although she could not say when she left, she indicated it was about 5:20 p.m. She returned to the bar shortly thereafter and was told that the Appellant had been arrested.

Although both witnesses testified regarding the activities in which the Appellant had been involved on that day, neither of them testified as to his whereabouts at precisely 6:30 p.m., the time that the Commonwealth witnesses testified that the incident occurred. The Appellant’s defense was predicated in large part upon his own testimony that he was present at the crap game from the time he arrived at the bar until the time of his arrest.

Defense counsel submitted a request for an instruction on the alibi defense prior to the trial court’s charge to the jury. The requested instruction, which was in conformity with the Pennsylvania Standard Jury Instructions, Criminal, § 3.11 relating to the alibi defense, was as follows:

Obviously, Mr. Willis cannot be guilty unless he was at the scene of the crime. Mr. Willis has offered evidence he was not present. You should consider this evidence along with all the other evidence in the case in determining whether the prosecution has met its burden of proving beyond a reasonable doubt that a crime was committed and that the Defendant himself committed it. Mr. Willis’ evidence that he was not present either by itself or together with other evidence, may be sufficient to raise a reasonable doubt of his guilt in your minds. If you have a reasonable doubt of Mr. Willis’ guilt, you must find him not guilty.

During a conference in his chambers, the trial judge did not deny the request, but indicated that he would cover the proposed instruction in his own language. Nevertheless, in his instructions to the jury, the only reference to the alibi defense was the fleeting one which follows:

There were no alibi witnesses here. People testified to times other than the exact time. But the defendant testified that he was not there and he was not the one who did this.

[293]*293(N.T. p. 238). Defense counsel objected to the instruction and to the trial judge’s failure to charge the jury consistently with the requested instruction at sidebar.

After the sidebar conference, the trial judge gave the following additional instruction, stating:

It has been pointed out to me, that when I said there was no alibi, I was incorrect. In any event, I believe that his girlfriend said she left at five fifteen, when she came back, he was already under arrest. And the man called Pockets, I believe it was, said that the crap game was broken up by the police around six o’clock. And this occurred, this robbery rape, attempted rape, all occurred about six thirty, six thirty-five.
Well, it may be an alibi and there may be some question about the time. But, in any event, I am explaining it to you now what my recollection was of the evidence. Of course, your recollection does govern.

(N.T. pp. 243-244). At sidebar, defense counsel renewed his objection to the charge on the basis that it was an improper expression of the trial judge’s personal opinion and improper instruction on the alibi defense.

The rule regarding this alibi defense was stated in Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959) as follows:

The Commonwealth has the burden of proving every essential element necessary for conviction. If the defendant traverses one of those essential elements by evidence of alibi, his evidence will be considered by the jury along with all the other evidence. It may, either standing alone or together with other evidence, be sufficient to leave in the minds of the jury a reasonable doubt which, without it, might not otherwise exist.

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Commonwealth v. Willis
553 A.2d 959 (Supreme Court of Pennsylvania, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
553 A.2d 959, 520 Pa. 289, 1989 Pa. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-willis-pa-1989.