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COMMONWEALTH v. PIERCE (03/20/72)

decided: March 20, 1972.

COMMONWEALTH
v.
PIERCE, APPELLANT



Appeal from order of Superior Court, Oct. T., 1970, No. 1375, affirming 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 Vincent J. Ziccardi, Defender, for appellant.

Milton M. Stein, Assistant District Attorney, with him Louis A. Perez, Jr., Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, Eagen, O'Brien, Roberts and Barbieri, JJ. Opinion by Mr. Chief Justice Jones. Mr. Justice Eagen and Mr. Justice O'Brien concur in the result. The former Mr. Chief Justice Bell and Mr. Justice Pomeroy took no part in the consideration or decision of this case. The former Mr. Justice Barbieri took no part in the decision of this case. Concurring Opinion by Mr. Justice Roberts.

Author: Jones

[ 446 Pa. Page 481]

On May 22, 1970, the appellant was tried before a jury and convicted of rape. Following disposition of post-trial motions, he was sentenced to one to four years' imprisonment. On appeal to the Superior Court, the judgment of sentence was affirmed per curiam over the dissenting opinion of two judges. Commonwealth v. Pierce, 217 Pa. Superior Ct. 414, 271 A.2d 877 (1970). We granted allocatur.

The appellant was accused of raping an eighteen-year old girl in the rear room of a record shop where she had gone after hours to pick up some previously-ordered records. The testimony at trial was conflicting but basically the Commonwealth's position was that the appellant had entered the store, threatened the victim's friend, locked the victim in the back room and

[ 446 Pa. Page 482]

    raped her. The appellant testified that, on the night in question, he was at the home of his girl friend, Sandra Gordon, and that he fell asleep while watching television. This alibi testimony was corroborated by Miss Gordon.

The appellant's major contention is that the trial judge's charge to the jury -- "the defendant who asserts an alibi, may put on his alibi defense and may prove it by a preponderance of the evidence " -- (Italics supplied) violates our ruling in Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959). We do not reach this question, however, since no specific exception was taken to the complained-of portion of the charge. The law is clear that, in the absence of substantial and prejudicial error, an appellate court will not reverse on a point to which no exception or only a general exception was taken, e.g., Commonwealth v. Butler, 442 Pa. 30, 272 A.2d 916 (1971). We find no error here which was so substantial as to prejudice the appellant's right to a fair trial. Cf., Commonwealth v. Scoleri, 432 Pa. 571, 579, 248 A.2d 295 (1968). Even though we deem it improper and incorrect for the trial judge to have charged the jury on alibi as he did here, nevertheless the trial judge afforded counsel full opportunity to suggest corrections at the conclusion of the charge. At counsel's request, the trial judge read a point for charge which accurately stated the law.*fn* Even if the initial error was not completely corrected, defense counsel waived his right to complain by failing to take specific exception to the charge.

Pa. R. Crim. P. 1119(b) expressly provides for specific exception to complained-of portions of the charge,

[ 446 Pa. Page 483]

    and noncompliance with this rule is excused only where there exists substantial and prejudicial error. There is no such error in a case where counsel has ample opportunity to request correction or take ...


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