Commonwealth v. HawkinsCommonwealth v. Hawkins
Lead Opinion
OPINION
The Commonwealth appeals the Superior Court’s order affirming the PCRA
Before taking up the specific circumstances of the case sub judice, a brief discussion of the nature and purpose of an alibi instruction is in order. An alibi is “a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party.” Roxberry II,
Eventually, three people, including Mayer, positively identified Appellee as the unmasked intruder. At least two of the identifying witnesses had made Appellee’s acquaintance prior to the intrusion, and expressed particular confidence that they recognized his face. A third witness expressed similar certainty in identifying Appellee from a photo array.
Appellee testified on direct examination that, on the night of the alleged crime, he was babysitting his girlfriend’s, Johnette Miller’s, three young children. Miller also testified that Appellee was caring for the children when she left for worked at approximately 10:30 p.m., and that this was consistent with their normal routine. On cross-examination of Miller, the Commonwealth asked: “So after 10:30 p.m. and until after 7:00 in the morning, you have absolutely no idea where [Appellee] was; is that correct?” Notes of Trial Testimony Vol. II, 2/16/2000, at 243-44. She replied that she called home during her break and Appellee answered the phone.
In response to this testimony, the Commonwealth immediately sought a sidebar conference. It contended that the defense previously had indicated that Miller’s testimony would not amount to an alibi, and that her testimony therefore had violated
Following the evidеnce, the trial court charged the jury generally but did not provide a specific instruction addressing Appellee’s alibi evidence. The jury convicted Appellee of two counts of robbery; five counts of reckless endangerment; and one count each of terroristic threats, burglary, and criminal conspiracy.
Thereafter, Appellee sought timely post-conviction relief under the PCRA. In his petition, Appellee asserted five bases for relief, each alleging ineffective assistance of counsel (IAC). Among these bases, Appellee argued that counsel had been ineffective for failing to seek — or object to the court’s omission
It’s been my practice generally having tried, many, many cases involving alibis, that in speaking to jurors after trials, jurors have an impression that an alibi means that you are bringing in independent witnesses, that’s what their connotation, what they understand it to be. And even in cases where I have other witnesses coming in as alibi [witnesses], jurors generally look for something a little better than [a] family member or whatever.
I don’t like to give jurors the impression that they [should] be looking for that type of thing when [they] hear the word alibi. They are either going to believe the defendant or not. There are instructions on credibility. They are either going to believe he was there or not there. In my opinion, at least, you don’t need that extra, what could be a confusing factor of [an] instruction on alibi when only the defendant is testifying.
Now, it’s just my personal preference in how I like to try a case.... [W]hen you mention alibi, [jurors] are looking for that independent alibi witness, or time sheets from work, or something that really shows someone was definitely somewhere else at the time of the incident. I’d rather not confuse them and let them think if you are mentioning alibi why isn’t there this other corroboration at the time. They are looking for corroboration of where you were, as opposed to you saying I wasn’t there. That’s my impression talking to juries for some 20 years of practice.
Notes of PCRA Testimony (N.P.T.), 12/18/02, at 17-18. On cross-examination, moreover, the following exchange between PCRA counsel and trial counsel occurred:
[Q] Is it not true in your experience in trying criminal cases that one presumes that jurors follow instructions from the judge?
A We presume that. But in my discussions with them, that’s not always true.
*374 Q Not even hypothetically, but in this particular case an alibi instruction is a strong instruction; is it not?
A I guess it depends how you look at it, it can be.
Q In that a defendant would benefit from an instruction which said even if the defense has failed to fully prove an alibi, an alibi can create a reasonable doubt, an imperfect alibi can create a reasonable doubt?
A From a practical standpoint, I will tell you most courts right now are not giving that part of the instruction they are not required to. [The part] that says if nоt wholly believed.[8] I will tell you I have asked for that instruction repeatedly [from] a number of courts in the past four, five years and they are not giving that part of it, nor are they required to.
So, again, I don’t look at it [just in] terms of the legal principle. [An] [a]libi defense certainly can be strong. I look at it from what evidence am I presenting that’s going to support that defense. And, again, if I only have my defendant testifying, the jury is either going to believe him or not believe him. I don’t like to confuse them with the alibi instruction. It may be right or wrong. I don’t know. It’s a judgment call.
N.P.T., 12/18/02, at 20-21. Notwithstanding trial counsel’s lengthy and persuasive explanation for his decision not to seek the instruction, the PCRA court agreed with Appellee, and ruled that he was entitled to a new trial due to trial counsel’s ineffectiveness in failing to request, or to object to the absence of, an alibi instruction. Citing our decision in Roxberry 11 for the proposition that any time alibi evidence of any sort is introduced a corresponding instruction is required, the trial court concluded that there was “no intellectually defensible wаy of distinguishing Roxberry [II] from this situation.” Trial Court Slip. Opinion, 1/8/03, at 4.
In reviewing the Superior Court’s decision to affirm a trial court’s order granting post-conviction relief due to trial counsel’s ineffectiveness, we must determine whether the PCRA court’s ruling is supported by the record and free from legal error. Allen,
The Commonwealth notes that the Superior Court in this case observed that the evidence of Appellee’s guilt was “overwhelming,” and that Appellee would have been unable to satisfy the prejudice prong of the Pierce test. Hawkins,
The Commonwealth argues that this ruling is in error, and, in support of this assertion, relies upon our rulings in the related context of the “no-adverse-inference” jury instruction,
The Commonwealth does not contest the lower court’s ruling that the first IAC prong under Pierce, requiring a demonstration that the underlying claim has arguable merit, is met in this case. Further, the Commonwealth admits, as it must, that Pennsylvania has no shortage of caselaw finding IAC where counsel fails to seek such an instruction, see, e.g., Commonwealth v. Mikell,
In support of its ruling, the Superior Court cited our decisions in Roxberry II and Mikell. In Roxberry II, this-Court held trial counsel ineffective for failing to object to the trial court’s omission of an alibi instruction. In that case, defendant testified that at the relevant time he was a half-mile from the scene of the crimes of which he stood accused.
Before this Court, the Commonwealth argued that defendant’s uncorroborated testimony did not constitute an alibi properly understood, and therefore did not require an alibi instruction. Id. at 828. We rejected, under Pounds, any suggestion that, in order to constitute an alibi for legal purposes, alibi testimony requires corroboration. Id. at 828 (“It is not, and never has been, necessary for an alibi defense to be corroborated in order to constitute an alibi.”); see Pounds,
Because credibility is indisputably the exclusive province of the jury, we cannot properly permit a judge, under the guise of exercising discretion, to remove the alibi issue from the jury merely because the judge finds the evidence incredible. We do not ordinarily doubt a jury’s capability of resolving difficult factual questions. Many, if not most, trials require the jury to make extremely meticulous and discriminating assessments of credibility. This jury function is fundamental to our jurisprudence. There is no reason, in the realm of alibis, to abandon our trust in jury verdicts and to grant discretion to a trial judge to deliver or withhold an alibi charge depending on his personal assessment of credibility.
Roxberry II,
Notably, in Roxberry II we did not explicitly address trial counsel’s PCHA hearing testimony concerning his basis for not objecting to the absence of an alibi instruction in the jury charge at trial. According to the underlying Superior Court opinion, however, trial counsel testified “that he probably had failed to make a request for the required instruction because the disinterested alibi witness had failed to appear.” Roxberry I,
In Mikell we addressed a similar issue. There, a capital defendant submitted an alibi defense at trial through the testimony of his mother and sister, both of whom asserted that defendant was sleeping at his mother’s home at the time of the crime in question.
On direct appeal, we considered whether trial counsel’s failure affirmatively to request, or object to the absence of, such an instruction constituted IAC. Id. at 570. Notably, we began our analysis by invoking without reservation the three-prong IAC test articulated by this Court in Pierce. Id. Noting the testimony of two alibi witnesses as well as the Commonwealth’s failure to suggest that these did not furnish an alibi defense, we quickly determined that defendant’s claim had arguable merit. Id.
Next, we considered the Commonwealth’s argument that defense counsel had a reasonable basis for declining to seek the instruction. The Commonwealth claimed that trial counsel reasonably could have declined such an instruction because “his witnesses were not ‘particularly compelling’ ” and because the instruction might have distracted the jury from the critical issue of the credibility of the principal witness for the prosecution. Id. We rejected this assertion not because we found it unavailing as a matter of law, but because we found that the contention was “not supported by the record.” Id. In a footnote we observed that,
[although the trial court mentioned during the argument on post-verdict motions that it recalled trial counsel stating that he did not seek an alibi instruction “because it would be totally unbelievable,” as the trial court later noted, the record does not reflect any such statement, and it was not relied upon in the denial of post-verdict relief. It is also noteworthy that post-verdict counsel requested the. opportunity to present testimony from trial counsel on this issue, which request the trial court denied.
Id. at 570 n. 4. “Consequently,” we continued, “we can discern no reasonable basis for counsel’s dereliction.” Id. at 571. This statement, our most recent on-point, hardly lends credence to the Superior Court’s conclusion that declining to seek an alibi instruction can have no reasonable basis as a matter of law. Observing no reasonable basis under the facts of a
In keeping with our thorough application of the Pierce test, we then considered the Commonwealth’s claim that defendant had failed to demonstrate prejudice arising from counsel’s failure to request the alibi instruction. We rejected this argument, however, because it “fail[ed] to acknowledge that one of the purposes of an alibi instruction is to ensure that a jury does not interpret the failure to prove the defense as evidence of a defendant’s guilt,” and because the court’s failure to instruct the jury on how to assess the alibi evidence in question “effectively deprived [him] of a substantive defense.” Id. “Under the circumstances,” we concluded, “counsel’s inexplicable failure to request an alibi instruction constituted constitutionally ineffective assistance of counsel.” Id. (emphasis added). Further, we declined to remand the case for the taking of further evidence, as the Commonwealth requested in the alternative, because we considered it so “clear from the record that counsel was ineffective” that no remand was warranted. Id. at 571 n. 5.
We pause as well to consider our decision in Commonwealth v. Pounds, which has been relied upon to some extent in each of the cases subject to the foregoing discussion. In Pounds, we held that “[w]here an alibi defense is presented, [an alibi] instruction is necessary due to the danger that the failure to prove the defense will be taken by the jury as a sign of the defendant’s guilt.”
We conclude that the “necessity” referred to in Pounds is tantamount to the “entitlement” discussed in our more apposite cases; a defendant’s entitlement to such an instruction indeed imposes a necessary burden on the trial-judge to the extent the entitlement is duly invoked. Nowhere in Pounds, however, did we suggest that it is necessary for counsel to request such an instruction.
This understanding of Pounds and Mikell, inter alia, was reflected in the Honorable Justin M. Johnsоn’s prescient dissenting opinion in Commonwealth v. Gainer,
If I understand the thrust of Brunner, [Commonwealth v. Nauman,345 Pa.Super. 457 ,498 A.2d 913 (1985)], and Roxberry [I], those cases conclude that there can be no reasonable basis for not wanting an alibi charge, and that this decision is too important to be left to the defendant and defense counsel. I cannot agree.
Moreover, if the per se command of [Roxberry 7] is to be followed, it would appear that the “prejudice” review found in Strickland v. Washington[,466 U.S. 668 ,104 S.Ct. 2052 ,80 L.Ed.2d 674 (1984),] and carried forth in this jurisdiction in [Pierce] would no longer apply, even where defense counsel finds the alibi testimony incredible, as in Brunner. I seriously doubt that our Supreme Court would sanction this.
Gainer,
Judge Johnson then, in a move tracked by the Commonwealth in its argument to this Court in the instant case, considered the similarities between the alibi instruction and the no-adverse-inference instruction, and contrasted his reading of the Superior Court’s alibi instruction cases with then recent developments in the context of the no-adverse-inference instruction. Noting the Superior Court’s decision in Commonwealth v. Rasheed,
Where a criminal defendant does not testify, and specifically requests the court not to charge that he has the right not to testify and that no adverse inference may be drawn from his failure to take the witness stand, we have held that it is error for the court to give the instruction concerning a defendant’s right to remain silent.
Our rationale in Rasheed was that defense counsel and his or her client should be able to decide [whether] they want the jury to focus on the fact that the defendant has not testified. We recognized that the jury will be aware of this fact, but in some cases the defendant may not want this highlighted. Similarly, in those cases involving an alibi defense, I believe that the defendant and defense counsel should not be deprived of the right to control trial strategy.
The Commonwealth, in particular, draws our attention to our ruling in Commonwealth v. Howard, which warrants discussion in precisely the connection suggested by Judge Johnson. In Howard, a defendant convicted of capital murder asserted IAC predicated on counsel’s failure to request a no-adverse-inference jury charge.
We began our analysis by confirming that the court’s failure to charge the jury as requested constituted a denial of defendant’s constitutional rights under Article I, § 9, of the Pennsylvania Constitution,
Next, we held that counsel had no reasonable basis for his omission, admittedly the product of oversight rather than any affirmative tactic intended to serve defendant’s interests. Id. at 1307. We noted, however, that “not requesting the no-adverse-inference charge may in certain circumstances be a reasonable course of conduct.” Id. (citing Commonwealth v. Edwards,
Finally, we addressed our attention to Pierce’s prejudice prong. We emphasized that Pierce’s demands in this regard are far more stringent than the demands of a harmless error analysis, id., and observed that defendant bore the burden of proof of prejudice.
*387 Lewis ... in and of itself does not answer the question whether a defendant is prejudiced by his or her attorney’s failure to request the no-adverse-inference charge. Lewis stands for the proposition that it can never be harmless error for the trial court to fail to give the charge if it is timely requested by counsel. However, ... it is not axiomatic that what can never be harmless error by the trial court equates to ineffective assistance of counsel.
Id. (boldface added; italics in original); see also Schmitt v. State,
The majority below, in questioning the gravamen of its reading of Roxberry II, implicitly endorsed the reasoning this Court has employed in the context of no-adverse-inference jury charges applying Pierce and declining to find per se prejudice in counsel’s failure to request such an instruction. Citing with approbation Judge Johnson’s Gainer dissent, and noting that “[i]n the weightier framework of a constitutional right, the right to remain silent, the courts [do] not apply a prejudice per se standard,” Hawkins,
The Honorable Peter Paul Olszewski, concurring in the result, differed from the majority regarding the putative similarity of the no-adverse-inference instruction to the alibi instruction here at issue, and declined to subscribe to the majority’s reservations. Hawkins,
A no-adverse-inference instruction is given to protect the rights of a criminal defendant when that defendant does not testify. Accordingly, there is no testimony from the defendant for the jury to inappropriately use during deliberations. Further, our Supreme Court has recognized that the instruction may not be required in all cases.
* * * *
Contrary to the “no-adverse-inference” instruction, the alibi instruction was designed to guide the jury in analyzing evidence actually presented.
Id. at 963-64 (Olszewski, J., concurring) (emphasis in original).
While there is some appeal to the distinction, we are not persuaded. A defendant’s decision not to testify in his own defense is the proverbial 800-pound gorilla looming in the corner, and while this decision does not constitute affirmative evidence, neither does it escape the notice of many juries. See Garcia,
Next, we must consider whether counsel had a reasonable basis for neither seeking such an instruction nor objecting when one was not forthcoming. In a collateral attack on the effectiveness of trial counsel, we presume “that counsel is effective, and that not every error by counsel can or will result in a constitutional violation of the defendant’s Sixth Amendment right to counsel.” Commonwealth v. Gribble,
Our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that the trial counsel’s decision had any reasonable basis.
Distinguishing this case from those cases interpreted by the lower court is the detailed record in the instant case of trial counsel’s rationale for consciously declining to seek the instruction. As noted early in this opinion, counsel explained that in his twenty years of experience he had come to the conclusion that where alibi testimony is weak, or is predicated on the defendant’s testimony alone, calling attention to that testimony explicitly as alibi evidence disserves the defendant’s interests. Notably, he did not suggest that such testimony itself serves no purpose, nor did he suggest that counsel should not highlight alibi evidence for the jury in closing. He simply expressed his discomfort, under the circumstances at bar, with the expectations a specific alibi instruction might raise in the minds of the venire, and explained that it was his practice to avoid disappointing such expectations where possible. We would be hard-pressed to find a better exemplum of counsel expressing a reasonable basis for declining, as a
The Superior Court’s opinion, moreover, offers no refutation. In its focus on what it took to be the per se prejudice import of our prior rulings in this area, it offered little comment on counsel’s reasonable basis, noting simply that precedent “states it is not a reasonable trial strategy to forego an alibi instructiоn to focus on another defense.” Hawkins,
This case illustrates why we eschew such in inflexible standard. In our preceding alibi instruction cases, we have been faced either with a trial court’s refusal to provide the instruction even when asked to do so by defense counsel, аs in Pounds, or with trial counsel’s failure to seek the instruction without a reasonable basis for doing so, as in Roxberry II and Mikell. In this case, contrarily, counsel made an informed, carefully considered decision not to seek the instruction due to his belief that such a jury charge would disserve his client’s interests. We cannot sanction any ruling that would deny him this exercise of his autonomy in defending his client as effectively as circumstances permit, and the law does not require otherwise.
Notes
. See generally Post Conviction Relief Act (PCRA), Act of May 13, 1982, P.L. 417 No. 122, § 2, as amended,
. In the discussion that follows, substantial reference to the Superior Court deсision preceding our decision in Roxberry II is required. Accordingly, hereinafter we shall refer to the Superior Court's disposition underlying that appeal, see
. Although an alibi defense typically is presented with accompanying testimonial or other evidence, "the testimony of the accused may, by itself, be sufficient to raise an alibi defense and entitle him to an appropriate jury instruction.” Pounds,
. A model alibi instruction follows:
In this case, the defendant has presented evidence of an alibi, that is, that [he] [she] was not present at the scene or was rather at another location at the precise time that the crime took place. 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 reasonable doubt that a crime was committed and that the defendant [himself] [herself] committed [or took part in committing] it. The defendant's evidence that [he][she] was not present, either by itself or together with other evidence, may be sufficient to raise a reasonable doubt of [his][her] guilt. If you have a reasonable doubt of the defendant's guilt, you must find [him][her] not guilty.
Pa. Suggested Std. Crim. Jury Instr. § 3.11. Although courts are not bound to utilize this precise instruction, see Commonwealth v. Ragan,
. In the event that Rule 573(C)(1)(a) is violated,
the court at trial may exclude the testimony of any omitted witness, or may exclude entirely any evidence offered by the defendant for the purpose of proving the defense, except testimony by the defendant, or may grant a continuance to enable the Commonwealth to investigate such evidence, or may make such other order as the interests of justice require.
. We find this ruling perplexing. Although on direct examination defense counsel asked only whether Appellee had been home when Miller left for work, around 10:30 p.m., the relevance of this evidence inheres, if at all, in its indirect corroboration of Appellee's own testimony regarding his whereabouts at the time of the crime. Thus, it would seem, either this evidence simply was irrelevant and inadmissible, see
.
8. See Commonwealth v. Ragan,
. Appellee's four other assertions of IAC relied upon counsel's alleged failures: 1) to seek severance of Appellee's trial from his codefendant's trial; 2) to seek suppression of certain evidence; 3) to object to testimony infringing on Appellee's right to remain silent; and 4) to
. The Pierce standard is coextensive with the two-prong “performance and prejudice” approach promulgated by the United States Supreme Court in Strickland v. Washington,
A convicted defendant's claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requirеs showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
. A model no-adverse-inf'erence instruction provides:
It is entirely up to the defendant in every criminal trial whether or not to testify. [Hc][She] has an absolute right founded on the Constitution to remain silent. You must not draw any inference of guilt, or any other inference adverse to the defendant, from the fact that [he] [she] did not testify.
Pa. Suggested Std. Crim Jury Instr § 3.10A.
. The Post Conviction Hearing Act, Act of January 25, 1966, P.L. 15 80, § 1, as amended,
. In Commonwealth v. Kolenda, as well, this Court set forth the Pierce test without reservation in analyzing an assertion of IAC predicated on counsel's putative failure to seek an alibi instruction.
. Pounds, too, relied on the word "entitlement” as we use it in this opinion. See Pounds,
. Judge Johnson noted that his references to Roxberry I occurred in part because, at that time, the Superior Court’s ruling in that case had been granted allowance of appeal by this Court and was pending our disposition.
. In Rasheed, the Superior Court acknowledged the defense's prerogative to decline a no-adverse-inference instruction,
In Commonwealth v. Edwards,
Most recently, in Commonwealth v. Garcia,
. Article I, § 9 (Rights of accused in criminal prosecutions), provides, in relevant part:
In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to*386 give evidence against himself, nor can he be deprivеd of his life, liberty or property, unless by the judgment of his peers or the law of the land.
. The Commonwealth also maintains that the Superior Court erroneously employed a harmless error analysis in lieu of the IAC standard this Court adopted in Pierce. In Pierce, with regard to assessing counsel's basis for acting as he did, we noted that a court "may not utilize a harmless error analysis” in examining those alternative courses counsel did not pursue, but rather may examine the alternatives "only as a means of determining whether the course chosen had some reasonable basis.”
. Our reading of Judge Olszewski's opinion also is tempered by its substantial reliance on its understanding, shared with the majority below, that our opinions in Pounds and Roxberry II determined that prejudice attaches per se to counsel's failure to request an alibi instruc
. Formally, our ruling that counsel had a reasonable basis for declining to seek such a jury charge ends the inquiry, since Pierce's three-prong IAC standard is satisfied only when all three elements are established. See Commonwealth v. Bomar,
Appellee did not have any covering on his face during the robbery. Four victims identified him. One eyewitness had known Appellee her whole life and saw Appellee in the company of his accomplice ... fifteen minutes before the robbery. The evidence in this case simply was overwhelming, and if the law permitted us to properly apply the test for establishing the ineffective assistance of counsel, we would easily conclude that counsel’s action did not prejudice Appellee.
Hawkins,
. Our research discloses only one case that approaches a rule of per se prejudice under these circumstances. In Roseboro v. State,
On the other hand, many of our sister states have held that whether to request an alibi instruction is a matter of trial strategy properly vested in the professional judgment of defense counsel, and thus, while the defense is entitled to such an instruction, it also may waive this entitlement. See, e.g., Brantley v. Georgia,
Still other courts have held that a standard reasonable doubt instruction provides sufficient protection in itself, and that even where alibi evidence has been adduced a specific alibi instruction is not required— even upon request. See State v. Kim,
We believe the best solution is that adopted by those states that vest the prerogative to request an alibi instruction in the sound discretion of trial counsel and analyze counsel’s decision not to seek an alibi instruction under the full performance and prejudice test promulgated by the United States Supreme Court in Strickland, which is co-extensive with our three-prong approach in Pierce.
Concurrence Opinion
CONCURRING OPINION
I join the Majority Opinion in all respects save for its characterization of the Superior Court opinion in this matter and the analysis which proceeds from this view.
The Majority reads the opinion below to suggest that the Superior Court found it unreasonable per se for trial counsel to fail to make the request for the alibi instruction. See, e.g., Maj. Op.