reaffirming the reasoning used in Wright when the defendant raises an alibi defense and testifies as to witnesses which he claims can support it
How later courts described this case
- reaffirming the reasoning used in Wright when the defendant raises an alibi defense and testifies as to witnesses which he claims can support it
Written by the judges who cited it.
The opinion
TAMILIA, Judge,
concurring:
I would agree with the majority in all respects except in its findings on discovery of .22 caliber bullets in appellant’s home. Contrary to the majority’s holding that admission of the .22 caliber shells was relevant, I would hold that they were not relevant to establishing that the appellant committed the crime, which was a robbery with a handgun, as the caliber of the gun had not been established. The majority would hold that the objection to the admission of the .22 caliber bullets as evidence, was not made contemporaneously therewith and, therefore, is waived. Appellant’s counsel alleges ineffectiveness of counsel of trial counsel in failing to make timely objections. I would agree. Since this is the first opportunity to allege ineffectiveness of counsel, and with the complete record before us, we can review that *271 issue on its merit. Commonwealth v. McBee, 513 Pa. 255 , 520 A.2d 10 (1986).
The holding by the majority that “[although the caliber of the handgun was not established at trial, appellant’s possession of the bullets connected him with firearms, thereby bolstering his identification as the perpetrator of the crime” (At 265), is carrying the inference beyond reasonableness. Possession of three .22 caliber bullets alone, in one’s home, does not warrant the presumption that that person also has a gun, particularly in a society and state where guns are so widespread and people have contact with firearms in arcades, hunting and other recreational pursuits and millions of armed forces servicemen have the opportunity to bring them home as souvenirs. It is not unlikely that a person, never possessing a gun, could have had access to shells. The majority’s reliance on Commonwealth v. Clark, 280 Pa.Super. 1 , 421 A.2d 374 (1980) is unpersuasive. There, the robbery appeared to have been committed by the use of an unspecified sharp instrument held to the victim’s throat. The defendant was found with a knife in his right rear pocket five weeks after the crime. Admittedly, this evidence would have greater probative value and relevance than the shells in the present case. In a strong dissent by Spaeth, J., he correctly pointed to the prejudicial manner in which the evidence was admitted. There, the knife was displayed to the jurors on closing, despite the fact that it was never admitted into evidence over the objection of defense counsel. I would, therefore, find the testimony as to the .22 caliber bullets was not relevant and failure to object was ineffective assistance of counsel.
My reasons for concurring in the result are based, however, on the fact that in this case, despite my belief that counsel was ineffective for failure to object to the admission of evidence of the bullets, it was not so prejudicial to appellant’s case as to warrant a reversal or a new trial. Since the other evidence was overwhelming as to defendant’s guilt, I would find that while error was committed in the admission into evidence of three .22 caliber shells, it was *272 not so prejudicial that it would change the result. Counsel’s ineffectiveness, therefore, does not warrant a new trial.