Appeal from the judgment of sentence of the Court of Common Pleas of Luzerne County to No. 2158 of 1973. No. 2175 October Term, 1976.
Patrick J. Flannery, Assistant Public Defender, Wilkes-Barre, for appellant.
William J. Perrone, Assistant District Attorney, Norristown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., concurs in the result.
[ 247 Pa. Super. Page 89]
Appellant contends that the lower court erroneously instructed the jury that a defendant in a criminal trial bears the burden of proving an alibi defense by a preponderance of the evidence. We agree, and, therefore, grant a new trial.*fn1
On August 25, 1973, Mrs. Ann Farrell and her 6 year-old daughter entered a W. T. Grant's department store in Pittston Township, Luzerne County. As Mrs. Farrell was standing
[ 247 Pa. Super. Page 90]
in the toy department she saw a man standing in an aisle near two young children. The zipper on his pants was down, and he was fondling his penis. Mrs. Farrell reported what she saw to Mrs. Annabel Pradel, a store employee. Mrs. Pradel investigated and observed appellant's conduct. She became very upset and immediately sought the assistance of the store manager, Mr. James McNeil. The manager called the Pittston Township Police. As Mrs. Pradel and Mr. McNeil walked toward the toy department, appellant ran from the store. Mrs. Pradel and Mr. McNeil sought the assistance of Officer Paul Cosgrove who tried unsuccessfully to find the two children seen by Mrs. Farrell and Mrs. Pradel.
On August 27, 1973, Officer Cosgrove executed a warrant for appellant's arrest. A Luzerne County Grand Jury indicted appellant on a charge of indecent exposure.*fn2 At trial on February 13, 1974, the Commonwealth presented the testimony of Mrs. Farrell, Mrs. Pradel, Mr. McNeil, and Officer Cosgrove. Mrs. Farrell, Mr. McNeil and Mrs. Pradel identified appellant. After appellant demurred to the evidence and the court overruled the demurrer, appellant testified that he believed that Mrs. Farrell had a personal vendetta against him and that Mrs. Pradel and Mr. McNeil were mistaken in their identification of him. Appellant testified that at the time of the incident he was with one of his employees at a garage located approximately 15 minutes from the department store while his truck was being serviced. Appellant entered a bill for repairs dated August 25, 1975, into evidence. Roland Delawder, an employee of appellant, corroborated his testimony as to his whereabouts.
After a brief recess, the court delivered its instructions to the jury. With respect to appellant's testimony that he was not at the scene of the crime at the time it was committed, the court instructed the jury as follows:
"During the course of the testimony, the Defendant, you will recall, asserted the defense ...