Appeal from the Judgment of Sentence of March 27, 1987, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 2301-2305 May Term, 1986.
Norris E. Gelman, Philadelphia, for appellant.
Marilyn F. Murray, Asst. Dist. Atty., Philadelphia, for Com., appellee.
Cirillo, President Judge, and Brosky, Rowley, McEwen, Olszewski, Tamilia, Popovich, Johnson and Melinson, JJ. Brosky, J., files a Dissenting Opinion. McEwen, J., files a Dissenting Statement.
[ 386 Pa. Super. Page 468]
Rodney Jones appeals from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County. We affirm.
Jones, the appellant at bar, was convicted by a jury of three counts of aggravated assault and possession of an instrument of crime. After Jones's conviction, newly retained counsel filed post-verdict motions. Post-verdict motions were denied and Jones received an aggregate sentence of five to ten years' imprisonment. Jones's timely appeal from the Judgment of Sentence was dismissed for failure to file a brief. Thereafter, present counsel filed a petition under the Post Conviction Hearing Act [PCHA] alleging ineffectiveness of all prior counsel and seeking to have Jones's appeal rights reinstated nunc pro tunc. The petition was granted, and this appeal followed.
On appeal, Jones claims that trial counsel was ineffective for failing to object to the trial court's instructions regarding Jones's alibi defense and the definition of reasonable doubt. He further alleges that post-verdict motions counsel
[ 386 Pa. Super. Page 469]
was ineffective for failing to raise these claims in Jones's post-verdict motions.
In any ineffectiveness of counsel claim, counsel is presumed competent. The burden of rebutting this presumption is on the defendant. Commonwealth v. Westcott, 362 Pa. Super. 176, 523 A.2d 1140 (1987). There are three elements to a valid claim of ineffectiveness. First, the appellant must show that his underlying claim is of arguable merit. If he succeeds, the appellant must then demonstrate that the course chosen by counsel was not reasonably designed to protect the appellant's best interests. If the appellant is able to prove these elements, he must then establish that he was actually prejudiced by counsel's improper course of conduct. Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).
Initially, we find that the trial court did not err in its charge to the jury on the defense of alibi. Accordingly, Jones's ineffectiveness claim concerning this aspect of the charge is meritless. The trial court instructed the jury regarding the defense of alibi as follows:
The defense is that he was not there, that the eyewitness was mistaken as to his identity, and he has presented an alibi defense. His alibi defense is to the effect that at the time that the crime was committed, that the shooting occurred, I was not there. I was elsewhere, and he has presented witnesses for your consideration on that issue. When you come to consider this defense, ladies and gentlemen, of alibi, you must consider, among other things, whether the testimony given covers the entire time the ...