Appeal from the Judgment of Sentence of October 6, 1983, Court of Common Pleas, Philadelphia County, Criminal Division at Nos. 741-749 April Term 1982.
Mitchell S. Strutin, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
Tamilia, Johnson and Hester, JJ. Tamilia, J., files a concurring opinion.
[ 361 Pa. Super. Page 264]
This is an appeal from the judgment of sentence for robbery, burglary, criminal conspiracy and possessing instruments of a crime. A previous appeal, filed on October 29, 1983, was never briefed and as a result, this Court dismissed the appeal without prejudice to appellant's rights under the Post Conviction Hearing Act. Following the filing of a PCHA petition, Bright's right to appeal was reinstated nunc pro tunc.
Appellant's first contention is that his trial counsel was ineffective in 1) failing to object to irrelevant testimony, 2) failing to object to an erroneous jury instruction concerning his alibi defense, and 3) failing to object to a missing witness instruction. We must engage in a three part analysis to determine the adequacy of counsel's performance. The threshold inquiry "is whether the issue[s] . . . which form the basis for an assertion of ineffectiveness, [are] of arguable merit, for counsel cannot be considered to be ineffective for failure to assert a meritless claim." Commonwealth v. Silo, 509 Pa. 406, 409-10, 502 A.2d 173, 175 (1985) (citations omitted). See also Commonwealth v. McNeil, 506 Pa. 607, 615, 487 A.2d 802, 806 (1985). If we determine there is arguable merit, we must then decide whether counsel's actions had some "reasonable basis designed to effectuate the interests of his client." Commonwealth v. Kerpan, 508 Pa. 418, 420, 498 A.2d 829, 830 (1985). Finally, appellant must establish that he was actually prejudiced through the deficient performance of his counsel. See Commonwealth v. Clemmons, 505 Pa. 356, 361-62, 479 A.2d 955, 958 (1984); Commonwealth v. Dougherty, 351 Pa. Super. 603, 608-609, 506 A.2d 936, 939 (1986). "[T]he burden of establishing counsel's ineffectiveness
[ 361 Pa. Super. Page 265]
rests upon the defendant." Commonwealth v. McNeil, supra, 506 Pa. at 615, 487 A.2d at 806.
Appellant has failed to meet his burden at the threshold inquiry of the foregoing analysis. Pointing to the fact that no evidence was presented as to the caliber of the handgun used during the robbery, Bright argues that testimony regarding the seizure of .22 caliber bullets from his bedroom was totally irrelevant and that counsel was ineffective for failing to so object. While the record discloses that trial counsel did object to the admission of the bullets at the close of the Commonwealth's case and during post-trial motions, no objection was made when Detective Frank Russell testified that the bullets were found next to appellant's bed. Because this failure to object to the testimony was considered by the court in denying counsel's subsequent objection and motion, we will view trial counsel as having failed to timely object to the relevance of the .22 caliber bullets. See Commonwealth v. Myer, 340 Pa. Super. 176, 188, 489 A.2d 900, 906 (1985). We do not, however, find merit in appellant's contention that the testimony regarding the bullets was irrelevant.
Relevant evidence is evidence which "tends to make a fact at issue more or less probable." Commonwealth v. Soblotney, 502 Pa. 418, 422, 466 A.2d 1022, 1024 (1983); Commonwealth v. Brown, 489 Pa. 285, 303, 414 A.2d 70, 79 (1980). 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. Any weakness in this evidence affected its weight and not its admissibility. See Commonwealth v. Clark, 280 Pa. Super. 1, 421 A.2d 374, aff'd 501 Pa. 393, 461 A.2d 794 (1980) (defendant's possession of a pocket knife five weeks after crime was relevant, despite victim's inability to testify that weapon used was a knife). Trial counsel cannot be faulted for failing to object to relevant evidence.
[ 361 Pa. Super. Page 266]
We also find meritless appellant's contention that the jury was improperly charged as to alibi. The trial court instructed the jury as follows:
Here, the defendant has alleged an alibi. An alibi is a defense wherein the defendant alleges or contends that at the time of the crime he was at a different place from the scene and so removed from it as to make it impossible for him to be the guilty party.
Now, the defendant has no burden of proving alibi but alibi may either standing alone or with other evidence create a reasonable doubt in your minds as to his guilt and, therefore, you should scrutinize all of the evidence very closely. You should also realize that while the Commonwealth has the burden of proving beyond a reasonable doubt that the defendant was present at the scene of the crime, it is not necessary for the Commonwealth to prove that each piece or bit of evidence places the defendant at the scene beyond a reasonable doubt. These are all matters, Ladies and Gentlemen, for you to decide in the application of your common sense and experience as mature adults.
In Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), our Supreme Court held that when a defendant presents evidence of an alibi, a specific alibi instruction must be given which guards against the danger of the jury considering the defendant's failure to prove alibi as evidence of guilt. Relying on language enunciated in Pounds, supra, appellant argues that a jury must be instructed to acquit the defendant if the alibi evidence, even if not wholly believed, raises a reasonable doubt as to the defendant's presence at the scene of the crime. Bright contends that the foregoing underscored language must be incorporated verbatim into an alibi charge, and that trial counsel was ineffective for failing to object to the change as given or failing to request a modification thereof.
The very issue raised by appellant was considered by this Court in Commonwealth v. Johnson, 336 Pa. Super. 1, 485 A.2d 397 (1984). ...