filed: June 14, 1989.
COMMONWEALTH OF PENNSYLVANIA
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.
Marilyn J. Gelb, Philadelphia, for appellant.
Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com.
Rowley, Montemuro and Hoffman, JJ.
[ 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. § 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 (repealed) (hereinafter "PCHA"), following his conviction of first degree murder.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 reasonable doubt of his guilt in your mind.
If you have a reasonable doubt of the defendant's guilt, you must find him not guilty.
Following the jury's verdict, trial counsel filed timely post-verdict motions which included an exception to the charge on alibi testimony. Trial counsel was permitted to withdraw and a new lawyer was appointed. This lawyer filed supplemental post-trial motions. All of appellant's post-trial motions were denied by the trial court. In an opinion filed June 6, 1986, the trial court held that the instruction regarding the alibi evidence was adequate as read. A direct appeal was taken to this Court, but the issue of the court's charge on alibi evidence was not raised by appellant's second lawyer.*fn1 In a memorandum decision
[ 385 Pa. Super. Page 12]
filed April 14, 1987, this Court affirmed the judgment of sentence.
Appellant filed a pro se PCHA petition on September 29, 1987, in which he alleged numerous errors but did not include an objection to the trial court's alibi instruction. A lawyer was appointed to represent appellant as PCHA hearing counsel, this being appellant's third attorney. No amended PCHA petition was filed. After review by the trial court, appellant's petition was denied without a hearing. See tr. ct. op. May 25, 1988. PCHA hearing counsel filed this appeal and then was permitted to withdraw.
Appellant's fourth attorney, Marilyn J. Gelb, Esq., was appointed by the court on April 14, 1988. Attorney Gelb now argues that appellant's PCHA hearing counsel was ineffective for failing to raise the ineffectiveness of appellant's direct appeal counsel for not raising the following issue: Whether the trial court, in formulating its charge to the jury on appellant's alibi defense, erred in refusing to use the language "even if not wholly believed" from Commonwealth v. Pounds, supra, as requested by trial counsel? In proving ineffective assistance of counsel, a defendant must first demonstrate that the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986). Because we find no merit in appellant's argument concerning the alibi charge, counsel cannot be considered ineffective.
Our Court has addressed the precise issue now raised by appellant and has found no merit to it. We stated in Commonwealth v. Johnson, 336 Pa. Super. 1, 485 A.2d 397 (1984):
[W]e do not interpret Pounds as creating standard language for an alibi instruction. So long as the trial judge makes it clear that the defendant's failure to prove an alibi defense is not tantamount to guilt, the Pounds safeguards are preserved.
[ 385 Pa. Super. Page 13]
Instruction on alibi. Nor is there any suggestion in the Supreme Court's decision in Commonwealth v. Willis, filed just four (4) months ago, that this Court's analysis and application of its decision in Commonwealth v. Pounds, in Commonwealth v. Johnson, and Commonwealth v. Bright is inaccurate or disapproved. Therefore, we find no merit to the contention that the trial judge erred in refusing to incorporate the requested language from Pounds. Thus, appellant's claim of ineffectiveness must fail.