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COMMONWEALTH PENNSYLVANIA v. JOHN PAYNE (06/14/89)

filed: June 14, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN PAYNE, APPELLANT



Appeal from the Post Conviction Hearing Act, March 8, 1988, in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 8505-2754/2756.

COUNSEL

Marilyn J. Gelb, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com.

Rowley, Montemuro and Hoffman, JJ.

Author: Rowley

[ 385 Pa. Super. Page 10]

Appellant, now represented by his fourth lawyer, appeals the denial of relief under the Post Conviction Hearing Act, 42 Pa.C.S. ยง 9541 et seq. (repealed) (hereinafter "PCHA"), following his conviction of first degree murder. Appellant argues only that his previous counsel on direct appeal was ineffective for failing to raise, brief and argue his exception to the trial court's charge concerning appellant's alibi evidence. The question presented by appellant's exception to the charge is whether Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980) requires that the jury instruction on alibi testimony must include the language "even if not wholly believed." For the reasons which follow, we hold that prior counsel were not ineffective because the trial court's refusal to include the phrase in the instruction given in this case was not error.

At trial, defendant raised the defense of alibi, claiming to have been at his residence with his girlfriend at the time the

[ 385 Pa. Super. Page 11]

    murder occurred. In light of the testimony by appellant and his girlfriend, defense counsel requested that the trial court instruct the jury that "the alibi, even though not wholly believed, may be sufficient to raise a reasonable doubt," citing Commonwealth v. Pounds, supra. The trial court denied the request and instead used the language of the proposed Pennsylvania Standard Jury Instruction 3.11 (Crim) ALIBI, as follows:

Members of the jury, obviously, the defendant cannot be guilty unless he was at the scene of the alleged crime. The defendant has offered evidence to show that he was not present at the crime but rather, he was with his girlfriend . . . .

You should consider this evidence, along with all the other evidence in the case, in determining whether the Commonwealth has met its burden of proving beyond a reasonable doubt that a crime was committed, and that the defendant himself committed it.

The defendant's evidence that he was not present, either by itself or together with other evidence, may be sufficient to raise a ...


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