Appeal from the Judgment of the Superior Court, at No. 2323, Philadelphia 1985, Affirming the Judgment of Sentence for Burglary, Robbery, Attempted Involuntary Deviate Sexual Intercourse, and Attempted Rape, at June Term, 1984, Nos. 2697, 2699, 2700 and 2701, of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section. 356 Pa. Super. 620; 512 A.2d 1292 (1986).
Samuel C. Stretton, West Chester, for appellant.
Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Laurie Magid, Philadelphia, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Larsen, J., files a dissenting opinion in which McDermott and Papadakos, JJ., join.
Appellant Robert Willis appeals from the Superior Court's per curiam affirmance of the judgment of sentence imposed by the Philadelphia County Court of Common Pleas following his conviction of burglary, robbery, attempted involuntary deviate sexual intercourse and attempted rape. 356 Pa. Super. 620, 512 A.2d 1292. The sole issue which will be addressed is whether the trial court failed to properly charge the jury on the alibi defense raised by the Appellant. We agree with the Appellant that the instructions to the jury relating to the alibi defense were inadequate and that the trial court's failure to give a proper instruction necessitates the grant of a new trial.
On May 26, 1984, Linda Gwyn was resting in the bedroom of her Philadelphia apartment when she was confronted by a young man, who had entered her room by climbing up the building's fire escape. She testified at trial that the man, who was dressed in a pair of dark pants, a white T-shirt, and a powder blue jogging jacket, demanded money. He then threatened her and attempted to rape her. She resisted and a struggle ensued. Escaping from the bedroom, she was cornered by the attacker in her kitchen. He took a kitchen knife, again threatening her. He exposed himself and attempted to force her to perform oral sex. Continuing
to resist, she was fortunate enough to elude him and escape by running out of the front door of her apartment. The incident occurred at approximately 6:30 p.m. The victim identified the Appellant as the attacker.
Joseph Canosa, a neighbor of the victim, testified that he saw a man climbing up the fire escape as he was sitting down to eat dinner with his girlfriend about 6:30 p.m. Suspicious, he began to investigate and heard unusual noises emanating from the victim's apartment. In the meantime, Mr. Canosa's girlfriend called the police. He pursued the attacker as he fled from the building, but lost sight of him. Police officers arrived at the scene during that time. The police arrested the Appellant, who was identified then and at trial by Mr. Canosa as the man he had chased.
The Appellant appeared on his own behalf and testified that earlier that day he had played basketball until 3:30 p.m., leaving with his girlfriend, Thomasine Anderson. He stated that he went to a bar which was located close to the scene of the crime. It was his testimony that he was playing in a crap game outside of the bar from approximately 4:30 p.m. until the game broke up due to a warning that police officers were arriving. He indicated that he again went into the bar and was arrested shortly thereafter by an officer who was accompanied by a man who identified him as the victim's assailant.
The Appellant offered the testimony of Thomasine Anderson and William Wolford in support of his defense that he was not at the victim's apartment building at the time the incident occurred and that the Commonwealth witnesses' identification of him as the assailant was mistaken. William Wolford, whose nickname was Pockets, testified that he saw the Appellant for the first time that day when he joined the crap game at 4:30 p.m. He indicated that he stayed there approximately an hour, estimating the time to be from 4:30 until "something to six", and that the police arrived ...