Commonwealth v. Johnson

BROSKY, Judge,

dissenting:

I respectfully dissent. I believe that a fair reading of Commonwealth v. Pounds, 490 Pa. 621 , 417 A.2d 597 (1980), compels the conclusion that the trial court’s alibi instruction was deficient and, thus, that counsel’s failure to object to the instruction mandates a new trial.

First, I believe it is necessary to clarify appellant’s contention. He does not contend that the instruction failed to inform the jury that it must acquit if his alibi defense raised a reasonable doubt as to his guilt. Clearly, the instruction apprised the jury of that fact. What he does argue is that the jury was not told that the alibi evidence could raise a reasonable doubt of appellant’s guilt even if that evidence were not wholly believed by the jury.

The majority notes that, unlike here, the trial court in Pounds included no instruction on the defendant’s alibi. The majority does not explain what difference this distinction makes and I find it to be a distinction without a difference. An inadequate instruction is no less error. Certainly, it would have been simple enough for Pounds to *20 have held simply that the trial court erred in failing to charge that alibi evidence could raise a reasonable doubt of the defendant’s guilt. Instead, Pounds 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.” 1 Id., 490 Pa. at 633 , 417 A.2d at 603 (footnote omitted) (citations omitted) (emphasis added).

Furthermore, I find that the majority’s conclusion that while such an instruction would be the better practice, general references to an alibi raising a reasonable doubt and to the mandatory not guilty verdict should reasonable doubt exist are adequate, flies in the face of express language to the contrary in Pounds .

Where an alibi defense is presented, such an instruction is necessary due to the danger that the failure to prove the defense will be taken by the jury as a sign of the defendant’s guilt. 17 See United States v. Ragghianti, 560 F.2d 1376 (9th Cir.1977); United States v. Burse, 531 F.2d 1151 (2d Cir.1976). See also, Commonwealth v. Bonomo, supra, [ 396 Pa. 222 , 151 A.2d 441 (1959)], Commonwealth v. Van Wright, supra, [ 249 Pa.Super. 451 , 378 A.2d 382 (1977)]; United States v. Booz, 451 F.2d 719 (3rd Cir.1971).

General instructions on the Commonwealth’s burden of proving each element of the offense beyond a reasonable doubt, the absence of a burden of proof on the defendant, and assessing the credibility of witnesses do not adequately protect against this danger. Commonwealth v. Van Wright, supra; United States v. Burse, supra; Cf. *21 Commonwealth v. Bonomo, supra; United States v. Booz, supra; United States v. Alston, 551 F.2d 315 (D.C.Cir.1976).

Id. (emphasis added).

Instructing a jury only that an alibi defense can raise a reasonable doubt and that it must find a defendant not guilty should it find such reasonable doubt, still leaves open the possibility that the jury will not have that reasonable doubt because it did not wholly believe the alibi testimony and drew an improper inference of guilt from its partial disbelief. Thus, I must conclude that, as in Pounds , the jury in the instant case, in the absence of an instruction that it did not have to wholly believe appellant to acquit, may have inferred guilt from appellant’s failure to establish his alibi.

I find, therefore, that an objection to the trial court’s alibi instruction would have been of arguable merit. Moreover, I believe that counsel’s failure to object could have had no reasonable basis. Thus, trial counsel was ineffective and I would vacate the judgment of sentence and remand for a new trial. 2

. I do not believe such an instruction is the equivalent of charging the jury that appellant had no burden to prove his alibi, although it is a consequence thereof. See Pounds, 490 Pa. at 633 n. 16, 417 A.2d at 603 n. 16. I believe it is necessary to charge the jury of this specific consequence rather than the general principle that a defendant bears no burden of proof on alibi. In any event, neither instruction was given to the jury.

Such an inference contravenes the presumption of innocence and the Commonwealth’s burden of proving the offense beyond a reasonable doubt. See Commonwealth v. Bonomo, supra; United States v. Ragghianti, 560 F.2d 1376 (9th Cir.1977).

. Even if appellant were not entitled to a new trial, I would find that he is entitled to an evidentiary hearing on the issue of the testimony of the Commonwealth’s expert artist. I find that the claim that counsel should have objected to the expert’s testimony that the sketch "bore an excellent likeness" to appellant is of arguable merit. Expert testimony is admissible "when it involves explanations and inferences not within the range of ordinary training, knowledge, intelligence and experience.” Commonwealth v. Nasuti, 385 Pa. 436, 443 , 123 A.2d 435, 438 (1956). However, expert testimony is not admissible if the issue involves a matter of common knowledge. Commonwealth v. O’Searo, 466 Pa. 224 , 352 A.2d 30 (1976). Instantly, once the expert had explained to the jury the effect that emotions can have on facial expressions, I believe that it was well within the jury's capability to determine whether the sketch resembled appellant. Therefore, I would remand this case for an evidentiary hearing to determine whether counsel had a reasonable basis for failing to object to this testimony.