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COMMONWEALTH v. PIERCE (11/13/70)

decided: November 13, 1970.

COMMONWEALTH
v.
PIERCE, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1968, No. 953, in case of Commonwealth of Pennsylvania v. Leon Pierce.

COUNSEL

John W. Packel, Assistant Defender, with him Donald Stern, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Milton M. Stein, Assistant District Attorney, with him James D. Crawford, Deputy District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Hoffman, J. Cercone, J., joins in this dissenting opinion.

Author: Per Curiam

[ 217 Pa. Super. Page 414]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Hoffman, J.:

Appellant was found guilty of rape after a jury trial. The defense was alibi. Before the Judge charged the jury, defense counsel submitted a number of points for charge. The court affirmed all points except number

[ 217 Pa. Super. Page 415]

    twenty, which read, "[i]t is not necessary for defendant to prove his alibi beyond a reasonable doubt nor by a preponderance of the evidence." Instead, the court charged the jury that "[a]libi is one of the best defenses known under the law. It is simply presenting evidence as a matter of truth to you, that he was somewhere else and obviously could not have been present at the time the crime was committed. The question is: Has the alibi been proved? At this point, I must tell you while the Commonwealth must prove its case beyond a reasonable doubt, there is no such burden upon the defense. The defendant who asserts an alibi, may put on his alibi defense and may prove it by a preponderance of the evidence. That is our law. Our Courts have said that in consideration of all the evidence in the case, in considering the alibi, it may cause you to have a reasonable doubt, which would result in a verdict of the defendant being found not guilty on the bills of indictment." (emphasis added). Following the jury's verdict, post-trial motions were filed and denied. This appeal followed.

Prior to Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959), this was an acceptable charge in Pennsylvania. In that case a charge similar to the present one was disapproved. The Supreme Court concluded that the proper course of action would be for the trial judge to make no mention whatsoever as to the necessity of either side to prove or disprove an alibi. The trial court was neither to instruct the jury that defendant had to prove his alibi nor enunciate a standard, be it reasonable doubt or preponderance of the evidence, by which such alibi would have to be established. Rather, the trial judge was merely to charge ...


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