Commonwealth v. Richardson, Appellant.
Supreme Court of Pennsylvania
May 2, 1958
392 Pa. 528 | 140 A.2d 828
Ernest L. Green, Assistant District Attorney, with him J. Harold Hughes, First Assistant District Attorney, and Raymond S. Start, District Attorney, for appellee.
OPINION BY MR. JUSTICE BELL, May 2, 1958:
The defendant, Jerold Richardson, was convicted by a jury of first degree murder and sentenced to life imprisonment. In this appeal he seeks a new trial because of alleged trial errors.
Defendant, together with James Ryder and James Graham, was indicted for the murder of Roy Wunder, who was found dead at about 12:50 a.m. on Monday, September 20, 1954, in a taproom operated by him known as “Stony Creek Tavern” which is located on the Baltimore Pike, Springfield, Delaware County, Pa. Defendant was 17 years of age at the time of the crime. All three of the individuals involved applied for and were granted separate trials.
Defendant, through his court-appointed attorney, applied prior to trial, and during the trial for a change of venue; these applications were refused. Defendant, prior to trial and during the course of the examination of jurors on voir dire, applied for a continuance; these applications were refused.
Roy Wunder, the deceased, went to the Stony Creek Tavern sometime on Sunday evening, September 19, 1954. At approximately 12:50 a.m., on Monday morning, September 20th, Maurice Gouse was operating his automobile in an eastwardly direction towards Philadelphia and as he passed the Stony Creek Tavern his attention was directed to the breaking of glass. He looked at the Tavern building and saw two men, whom
Wunder’s body was lying in the back of the barroom; there were bar stools overturned, a vase on the floor, and part of a top of a stool and broken water glasses on the floor. Gouse found a bullet on the cocktail lounge seat near the front of the barroom. This was proved to be the fatal bullet and was identified as a .38 S. & W. caliber. The gun used in the killing has never been found. Gouse gave the police a description of the automobile he pursued although he was not certain of some of its characteristics. The automobile as described by Gouse has never been located. It was later discovered that entrance to the taproom was gained through a skylight that led into the men’s washroom.
Defendant was in the custody of the Philadelphia Police Department from December 14, 1954 until December 28, 1954, at which time he escaped from custody. He was rearrested on January 3, 1955. Sergeant McCrory and other officers questioned Richardson the same morning about some 60 or more burglaries in Philadelphia. At that time McCrory had no knowledge of the Stony Creek Tavern killing.
McCrory testified that defendant told him on January third that he and James Ryder and James Gra-
Defendant‘s confession was read to him by the District Attorney of Delaware County, Raymond R. Start, in the presence of six other persons who signed defendant‘s confession as witnesses. In addition three other police officers and the official court stenographer were present, although they did not sign as witnesses. Seven of those who were present when the defendant‘s confession was read to him and when he executed it testified at the trial; five of the seven, including the District Attorney, Mr. Start, testified unequivocally that defendant voluntarily made and signed the confession and was not coerced, threatened or given any promises. The other two witnesses were not asked this question.
The relevant and material portions of defendant‘s confession (in question and answer form) are as follows: “Q. Do you know why you have been arrested? A. Yes. Q. Why? A. Homicide. Q. Do you want to make a voluntary statement? A. Yes. Q. It is my duty to warn you that anything you say or sign can be used against you at the time of your trial in court. Do you understand that? A. Yes. Q. In making this statement, do you make it of your own free will, without fear, force, threats or promises? A. Yes. Q. Jerold;
“. . . Q. Did Ryder and Graham have a gun? A. They both had guns. Q. Did you know what kind of guns they were? A. Two revolvers. Q. Do you know what caliber? A. I believe one was a .38, might have both been .38‘s, I am not sure. Q. Where did you first see these revolvers? A. Outside Tony‘s. Q. Did they have them in the car? A. Yes. Q. Did you see them? A. Yes. Q. And they took these guns to the tavern? A. I assumed they did. Q. What else did they take, if anything? A. Some talk of mentioning about a bar to get into the place . . . Q. What were your duties on this job besides driving the car? A. I was to be the lookout. Q. Now after Ryder and Graham went into this taproom, what was the next thing that occurred? A. I heard some noise I couldn‘t identify, not too loud, but a noise. Several minutes later I heard a glass break. Q. When was the first time you saw either of these boys after you heard the glass break? A. About thirty seconds later I seen them come around the corner. Q. What, if anything, did they say when they arrived at the car? A. Graham said, ‘You‘re crazy.’ Q. Graham said, ‘You‘re crazy’ to whom? A. To Ryder. Q. Anything else? A. I asked what happenеd and Graham said, ‘Ask him.’ Q. Meaning Ryder? A. Yes. Q. Did you ask Ryder what happened? A. Ryder told me to ‘Get the hell out of here.’ Q. What did you do when Ryder told you to ‘get the hell out‘? A. Made a right on Baltimore Pike going west. . . . Q. And returning from the taproom by the way of the route you described to Tony‘s place, was there anything said about the guns? A. They said they had better get rid of them, Jim said that, he will take care of them. Q. What Jim do you mean? A. Graham. Q. Let me understand
On January 5, 1955, defendant, Ryder, and Graham were taken to the Stony Creek Tavern where Ryder pointed out to the police the place where the automobile was parked and defendant confirmed Ryder‘s statement.
Defendant testified in his defense. He denied having participated in the robbery and repudiated his oral and his written confession. He testified that he did not sign the confession until after he had read a statement signed by Ryder in which the latter allegedly stated that Richardson had also gone into the taproom. Defendant stated that he did not intend to sign аny statement until after he was shown Ryder‘s statement,
Moreover, with respect to the conversation with Sergeant McCrory, defendant testified on direct examination—in an attempt to explain his oral confession: “Q. All right, now, will you go ahead with your conversation with Sergeant McCrory. A. I don‘t remember the exact conversation. Mr. McCrory did ask me about the Springfield job, which I told him yes, I done. Then—Q. At that time did you know what he was talking about? A. No sir, I didn‘t know anything about it. I thought it was just another burglary, and I realized they had me for about 60 or 70* by that time, and I did not want to argue with the man about it. Q. So what was the next thing that was said about it? A. Well, he related to me about where the place was on Baltimore Pike, I can‘t get the exact conversation, the exact words that were used. Q. Was there anything said by him at that time regarding any person being shot? A. Well, sir, he continued to tell me about this burglary; and I continued to admit it up to the time that he said that the man was shot and I denied it then. I told him that I was talking about something else, another job completely out on the Baltimore Pike, it was a gun store, I said I didn‘t know anything about that. He smiled at me, patted me on the shoulder and walked away, saying I understand.”
On cross-examination the defendant testified: “Q. Now on the 4th when you originally told Sergeant McCrory about being out, being on that Springfield job, you likewise told him Graham and Ryder were with you? A. That‘s right. Q. And that was before either of them signed the statement concerning you?
A. I did not realize what it was at the time. Q. Later you said today that you put them in because they were trying to put you in the middle, is that right? A. That
In repudiating the written confession the defendant testified as follows: “Q. When was the next time you were questioned? A. I believe at nine o‘clock that night. Q. And who was present at that time? A. Leon Pitz, Sergeant McCrory, a man from the Juvenile Aid, Earl Allen, and I believe there were two or three more. Q. And what was the general conversation at that time? A. Well first they brought me in and asked me the same thing, am I going to tell the same thing that Sergeant McCrory told them? And I said no, I didn‘t have nothing to do with it. I denied it for 15 or 20 minutes. And there was another man came in, I don‘t
Richardson‘s testimony was often so evasive, conflicting, inconsistent and false as to be obviously unworthy of belief. In addition to the testimony above quoted, defendant on cross-examination testified that Graham, whom he had always implicated in the robbery and murder, should not have been involved even in his “false stories and confession“; rather, another
Defendant also presented an alibi to the effect that he attended a dance on the Sunday night in question with a “friend” known to him as Martin Davis. He was corroborated in this respect by the testimony of Ernest M. Greaves, Jr., a member of the U. S. Air Force, who testified that he was the individual known to the defendant as Martin Davis. Greaves stated that he used the name Martin Davis because that was his name prior to the remarriage of his mother early in his life. However, Greaves failed to satisfactorily explain the use of the first name “Ernest” instead of “Martin“, along with the surname of “Greaves“. Greaves recalled having attended a dance with defendant and fixed the particular night in question because it was the night following a wedding attended by him and the defendant. There was proof that there was a dance on the night in question. Defendant‘s father also recalled having seеn Greaves and the defendant in the Richardson home on Sunday evening, September 19, 1954, although he was unable to fix the exact time.
Defendant bases his motion for a new trial on three alleged trial errors. The first and second alleged errors are closely inter-related and will be disposed of together. Defendant contends that the lower Court erred in refusing his repeated applications for (a) a change of venue, and (b) a continuance. In support of these contentions he states that the Stony Creek
In dismissing defendant‘s initial petition for a change in venue, the lower Court said: “We have read all of the exhibits furnished by Counsel and cannot find any undue sensationalism in the articles. It might, of course, be better if articles covering crime could be withheld from print until the case is over, but this is not the accepted manner of procedure in America. However, we are not satisfied that the defendants’ rights have been prejudiced and believe that they will have a fair trial by jurors, who do not know abоut the occurrence despite the publicity.”
In regard to this issue, a review of the record discloses that many jurors who did read of the case in the newspapers, did so only at the time of the murder—13 months before—and not recently. Some of these individuals testified, moreover, that they only read the headlines. Even more important, Richardson concedes that no prospective juror who admitted
It is clearly established that the grant or refusal of a change of venue or of a continuance is within the sound discretion of the trial Court: Commonwealth v. Capps, 382 Pa. 72, 114 A. 2d 338; Commonwealth v. Simmons, 361 Pa. 391, 65 A. 2d 353; Commonwealth v. Flood, 302 Pa. 190, 195, 196, 153 A. 152, 153; Commonwealth v. Deni, 317 Pa. 289, 292, 293, 176 A. 919, 920, 921; Commonwealth v. Lockard, 325 Pa. 56, 62, 63, 188 A. 755, 758; Commonwealth v. Schurtz, 337 Pa. 405, 408, 409, 10 A. 2d 378, 380; Commonwealth v. Chavis, 357 Pa. 158, 166, 167, 53 A. 2d 96, 100.
In Commonwealth v. Capps, 382 Pa., supra, the Court said (page 77): “The first alleged trial error is the refusal of the court below to grant defendant‘s requests for continuance and change of venue. At the request оf defendant‘s counsel the trial fixed during the week of March 22, 1954, was continued until April 26, a period of three months after date of the killing. The learned trial Judge ruled that the newspaper stories were not so inflammatory and biased in factual presentation as to cause, or be evidence of, public prejudice or hysteria. The granting, or refusing, of a change of venue or continuance, is within the sound discretion of the trial court: Commonwealth v. Simmons, 361 Pa. 391, 65 A. 2d 353, and the many cases cited therein. We have reviewed all the evidence and do not regard that the trial Judge abused his discretion.”
Furthermore, what this Court said in Commonwealth v. Fletcher, 387 Pa. 602, 128 A. 2d 897 (page 611) is appropriate and controlling on the question of prejudice by the jury: “The language of the Court in Commonwealth v. McGrew, 375 Pa. 518, 525, 100 A. 2d 467, is likewise applicable in the instant case: ‘The fact that a juror has read or heard about a case and has an impression or an opinion, or a prejudice is not ground for rejection for cause if he testifies and the Court believes that his opinion is nоt fixed and that he can and will make up his mind solely from the evidence which will be presented at the trial of the case: Com. v. Crossmire, 156 Pa. 304, 308, 27 A. 40; Com. v. Nye, 240 Pa. 359, 370, 87 A. 585; Com. v. Eagan, 190 Pa. 10, 42 A. 374; Com. v. DePalma, 268 Pa. 25, 100 A. 756.‘”
We find no abuse of discretion by the trial Court, and there is no merit in any of defendant‘s aforesaid contentions.
The third and most important contention made by defendant is that the trial Judge in his charge to the jury committed reversible error by (a) inadequately charging the jury on alibi; and (b) failing to charge the jury that the evidence of alibi may, with the other facts in the case, raise a reasonable doubt as to the appellant‘s guilt. The jury was charged by the trial Judge, inter alia, as follows:
“The burden is on the Commonwealth to convince you beyond a reasonable doubt that the defendant, Jerold Richardson, is guilty of the crime charged against him before you can convict him. That burden never shifts. That burden remains with the Commonwealth from the beginning of the case down to the very end, and the defendant is not required to take the stand nor is he required to interpоse to the jury a defense. And even though he might not take the stand or might not interpose a defense, the burden would still remain with the Commonwealth to convince you jurors beyond a reasonable doubt, which the court will in a little while define, of his guilt before you could find him guilty.
“So that the Commonwealth‘s burden, in order to convince you of the defendant‘s guilt is beyond a reasonable doubt that they must convince you; the defendant, on the other hand, in interposing an affirmative defense such as alibi, need only raise the issue by a fair preponderance of evidence.”
The trial Judge further charged the jury: “Now, members of the jury, this defendant is innocent until he has been proven guilty beyond a reasonable doubt. If an endeavor to determine from the evidence any point essential to the Commonwealth‘s case, you hesitate as between two conclusions and find yourselves mentally reluctant to reach a conclusion and, after considering the evidence from all angles you still hesitate, that is what the law terms a reasonable doubt* and the defendant is entitled to its benefit. . . . The reluctance must not come out of your heart, but it must be one which arises in your minds after consideration of all the evidence.”
The trial Judge in his charge, covering 56 pages, clearly and with absolute fairness, discussed the testimony of both the Commonwealth and the defеndant, including the evidence pertaining to alibi. The Court correctly charged the jury on the subject of “reasonable doubt” and “the burden and measure of proof required for the defense of alibi. On many occasions throughout the charge, the trial Judge stated that the burden was on the Commonwealth to prove the defendant guilty of the crime charged beyond a reasonable doubt and that burden never shifted.* A reading of the entire charge shows clearly that the jury was fairly and adequately instructed and was not misguided with respect to the fundamental proposition that defendant was entitled to the benefit of any reasonable doubt which arose from the evidence.
Defendant contends that the trial Judge committed fundamental error in failing to charge the jury “that the evidence of alibi, may with the other facts in the case, raise a reasonable doubt as to defendant‘s guilt.”
In Commonwealth v. Jordan, 328 Pa. 439, 196 A. 10, the Court correctly said (pages 446, 447, 448): “The law is firmly established that the measure of proof required for the defense of alibi is merely a preponderance of the evidence, or, as it is sometimes stated, proof ‘to the satisfaction of the jury.’ Even if not thus proved, however, the evidence in support of the alibi may, with the other facts in the case, [or may be sufficient of itself to] raise the reasonable doubt of guilt which entitles a defendant to acquittal: Rudy v. Commonwealth 128 Pa. 500, 507, 508; Commonwealth v. Andrews, 234 Pa. 597, 604; Commonwealth v. Delfino, 259 Pa. 272, 279; Commonwealth v. Barrish, 297 Pa. 160, 169, 170, 171; Commonwealth v. Stein, 305 Pa. 567, 570, 571; Commonwealth v. Duca, 312 Pa. 101, 110, 111, 112, 113. . . . ‘The law of our State requires specific instructions to be given relative to the burden of proof in an alibi, and the degree of pеrsuasion necessary [by a preponderance of the evidence] to support a conclusion that the accused was not at the place where the crime was committed. . . .’ . . . ‘The jury should have been informed that the defendant need only prove an alibi by a preponderance of the evidence. This failure was a fatal oversight‘: Commonwealth v. Trygar, 121 Pa. Super. Ct. 525, 528. See also Commonwealth v. Yancer, 125 Pa. Super. Ct. 352, 354, 356.”
Notwithstanding isolated excerpts from several decisions which state the law differently or more broadly,* that is a correct statement of the law.*
Defendant cites two prior decisions of this Court to support his contention that the charge constituted reversible error: Commonwealth v. Mills, 350 Pa. 478, 39 A. 2d 572, and Commonwealth v. New,* 354 Pa. 188, 47 A. 2d 450. These are distinguishable from the instant case.
In Commonwealth v. New, 354 Pa., supra, (a) because the charge of the trial Court was so inaccurate and misleading, and (b) also because the Commonwealth‘s evidenсe was so weak and the evidence of alibi was so strong, this Court said (page 214): “The jury must also be instructed* that ‘the evidence in support of the alibi may, with other facts in the case, raise the reasonable doubt of guilt which entitled a defendant to acquittal.‘“* The opinion of this Court was predicated upon the failure of the trial Judge to “make it clear to the jury that the evidence as to an alibi may generate in the minds of the jury a reasonable doubt of the defendant‘s guilt.” The trial Judge‘s charge in that case was filled with statements which, because of inaccuracy or ambiguity, were highly prejudicial, and the language of this Court‘s opinion must be considered in connection with the facts of that case.
If it is impossible to reconcile all the prior decisions in Pennsylvania, on this narrow but important point, we reiterate that the accurate statement of the law is that which is laid down in Commonwealth v. Blanchard, 345 Pa., supra.
Judgment and sentence affirmed.
DISSENTING OPINION BY MR. JUSTICE MUSMANNO:
The defendant in this case denied he was guilty of the crime of murder with which he was charged and introduced evidence that he was elsewhere at the time the murder was being committed, that is to say, he advanced an alibi. In criminal cases there is no defense superior to an alibi. Despite the lightning-challenging speed of jet planes, missiles, and moon-bound rockets, it is still unhinged fantasy to assume that a human being may occupy two different points of geography at one and the same time. Although colloquially the word alibi is sometimes used flippantly to suggest something less than utter factuality, it has never, in the law, lost any of its grave and solemn significance, and it behooves judges and prosecuting attorneys to so treat it, regardless of their own pеrsonal feelings in the matter.
Jerold Richardson, the defendant here, testified that at the time, according to the Commonwealth‘s testimony, the murder of Roy Wunder was being committed in a taproom on the Baltimore Pike, Springfield, Delaware County, he, Richardson, was miles away in Philadelphia attending a dance, later visiting at a restaurant, and then finally resting at his home. A soldier in the United States Air Corps, Ernest M.
Richardson was convicted of murder in the first degree and sentenced to life imprisonment. He asks for a new trial, complaining that the Trial Judge incorrectly instructed the jury on the law of alibi. This Court has refused a new trial and, for the reasons hereinafter to be set forth, I dissent.
The Majority Opinion of this Court devotes considerable space to the evidence presented by the Commonwealth to prove Richardson‘s guilt. Richardson could be as guilty as Jesse James and yet be entitled to a correct exposition of the law. The legal rope which hangs a guilty person should be strong enough to save an innocent person from drowning in the rapids of an unjust accusation. To approve the fallacy-laden charge of the Trial Judge in this case is to jeopardize the life and liberty, regardless of guilt or innocence, of every defendant of the future who pleads not guilty on the basis of an alibi.
The charge of the Trial Court completely missed the mark on the most important item in the case, on the side of the defendant. It adjusted its sights and aimed conscientiously but took its eye off the target when discharging the shot. Here is what the Trial Judge said on the law of alibi: “Now on the other hand there has been not only a denial in this case from the witness stand that this defendant participated, but there has been something else brought up in the defendant‘s case as an affirmative defense, and that is
“I say to you that an alibi, if believed, is a very strong piece of evidence in favor of a defendant to show his innocence. However, I will charge you more fully on alibi a little later in the charge, reаding the law to you.*
“So that the Commonwealth‘s burden, in order to convince you of the defendant‘s guilt is beyond a reasonable doubt that they must convince you; the defendant, on the other hand, in interposing an affirmative defense such as alibi, need only raise the issue by a fair preponderance of evidence.”
It will be noted that the Judge said that he would charge “more fully on alibi a little later in the charge,” but the remainder of the charge, so far as law on alibi is concerned, reveals only the background of an empty sky. The target has disappeared completely. The jury is left to assume, either that the alibi was not worth considering or that what had already been said by the Court on the subject was enough.
I must confess to sheer amazement that the Majority Opinion, in quoting from the Trial Judge‘s charge, omitted (as I have already indicated in a footnote), the
Since the omitted paragraph is practically the alpha and omega of the appeal, I will repeat it. This is what the Trial Judge said: “I say to you that an alibi, if believed, is a very strong piece of evidence in favor of a defendant to show his innocence. However, I will charge you more fully on alibi a little later in the charge, reading the law to you.”
In making such a statement the Trial Judge misled the jury in two ways. He not only failed to say what it was indispensable to say, but what he did say, was wrong. Thus: “I say to you that an alibi, if believed, is a very strong piece of evidence in favor of a defendant to show his innocence.“*
What is a piece? It is a part, it is a fragment of the whole, it is one of numberless little stones which go to make up a mosaic, it is a single leaf on a tree, it is a selected paragraph in a book, it is a solitary pebble on the beach, it is an individual note in a symphony. But an alibi is more that that. It is the whole tree, the whole symphony, the whole beach. So far as charges brought against a defendant are concerned, an alibi accepted as true presents a suit of mail against accusing arrows, it is a brick and iron fort against an incriminating blunderbuss, it is a steel umbrella warding off the rain and the storm of accusation. An alibi is not a “strong piece of evidence.” It is a complete defense. An alibi, if believed, is unassail-
The Majority attempts to repair the big hоle in the Judge‘s charge by speaking of other things. It relates how perfectly the Judge charged on reasonable doubt, how excellently he reviewed the evidence, how impeccably he instructed the jury on the burden of proof, but, after all its explanation, the gaping failure of the Judge‘s charge on alibi stands out like a jagged wound in the hull of a ship which extends from the main deck to the keel, a wound which no patchwork can heal and which, if sustained far enough away from land, can only take the ship to the bottom of the sea.
The loose thread in the Judge‘s instructions cannot be rewoven into the fabric of a perfect charge and it is no answer to say that the lawyer failed to call the imperfection to the Judge‘s attention at the end of the charge. If the lawyer overlooked or forgot to remind the Judge, what did the Judge do when he said: “I will charge you more fully on alibi a little later,” and then forgot about it? Is the lawyer, with all the worries of an accused man‘s life on his hands to be held to a higher standard of awareness than the judge who is accepted as the repository of wisdom and the apogee of intellectual alertness? Why did not the Judge do what he said he would do? Unless the Majority can explain the Judge‘s omission in this regard, it cannot in fairness convict the lawyer of omission in performance of duty. Moreover, the Judge‘s mistake was so basic and fundamental that the general exception taken by defendant‘s counsel at the end of the charge fully protected the rights of the defendant. What this Court stated in the case of
The Majority Opinion says: “Defendant contends that the trial Judge committed fundamental error in failing to charge the jury ‘that the evidence of alibi, may with the other facts in the case, raise a reasonable doubt as to defendant‘s guilt.‘” The Majority then submits that the failure of the Judge to so charge does not entitle the defendant to a new trial because, aside from the fact that he made no objection to the omission, it was not required that he have that particular instruction. In support of this contention the Majority cites and quotes from Commonwealth v. Jordon, 328 Pa. 439, and Commonwealth v. Blanchard, 345 Pa. 289, but neither of these cases supports the Majority‘s position. On the contrary, they are devastating authority to the contrary. In the Jordan case this Court said: “Even if not thus proved, [that is, the alibi], however, the evidence in support of the alibi may, with the other facts in the case raise the reason-
In the Blanchard case this Court said: “In regard to defendant‘s attempt to prove an alibi, the trial judge not only charged that such a defense could be established by the mere preponderance of the evidence, but he added that an alibi ‘is the most perfect defense in the world‘; he did not need specifically to state, although it is true, that the evidence offered in support of an alibi may be sufficient of itself to raise a reasonable doubt.” Commenting on this statement, the Majority says that “this is a correct statement of the law.” But it is particularly to be noted that in the Blanchard case the Trial Judge said that an alibi “is the most perfect defense in the world.” But the Trial Judge in the case at bar did not approach the remotest suburbs of saying that an alibi is the most perfect defense in the world. Contrarily, his discussion on the subject produced the impelling inference that if there was anything in the world which lacked perfection, it was precisely Richardson‘s alibi.
The question of how to charge where alibi evidence is involved is not a new one. This Court has spoken on the subject many times. One of the landmarks in this respect is the case of Commonwealth v. Mills, 350 Pa. 478, which the Majority Opinion dismisses at the door. In that case the defendant was charged with murder and his defense was an alibi. The Trial Judge charged: “While the Commonwealth is required to establish the guilt of the defendant beyond a reasonable doubt, all that the defendant is required to do is to establish his alibi by the fair weight or preponderance of the evidence. In other words, the evidence offered by him and his witnesses, in support of his
This Court held, unanimously, that such a charge was inadequate and ordered a new trial. Chief Justice MAXEY, speaking for the Court, said: “If the testimony the defendant offered in support of his alibi raised a reasonable doubt in the jurors’ minds as to the defendant‘s presence at the scene of the homicide he was entitled to an acquittal.”
Nowhere in the case at bar did the Trial Judge say that the alibi of itself could raise a reasonable doubt which could entitle the defendant to an acquittal. All he said was that an alibi is a piece of strong evidence. But strong is a relative exрression. A cat is strong as against a mouse, but in the jaws of a mastiff a cat is no stronger than the mouse was strong.
Reviewing the authorities in the Mills case, Chief Justice MAXEY, said: “In Rudy v. Commonwealth, 128 Pa. 500, 18 A. 344, Justice STERRETT speaking for this court, said of the charge of the lower court in that case that ‘it constitutes a full, clear and accurate statement of the law on that subject. The burden of proving it was clearly on the prisoner. If he failed to do so to the satisfaction of the jury, the alleged alibi, as a substantive defense, was valueless; but that did not deprive him of the benefit of his evidence on that subject, so far as it, in connection with other testimony in the case, may have had a tendency to create a reasonable doubt as to his guilt.‘”
It could happen in a criminal case that two sets of witnesses, apparently equally credible, could testify to conflicting accounts as to the defendant‘s presence at or absence from the place of the crime at the time
The Majority offers no more hospitality to the case of Commonwealth v. New, 354 Pa. 188, 214, than it did to Commonwealth v. Mills. But the New case is one not to be driven from the doorstep like a vagrant. It announces a principle, which, so far as I have been able to determine, this Court has never in the past deviated from, namely, “The jury must also be instructed that ‘the evidence in support of the alibi may, with other facts in the case, raise the reasonable doubt of guilt which entitles a defendant to acquittal.‘”
It must be particularly noted here that the Court says, not that the Trial Judge may charge that the alibi evidence could with other evidence in the case raise a reasonable doubt; it says that the jury must be
If this Court intends to repudiate and overrule the established law on the subject of alibi, it has the authority and the power to do so. I do not see the necessity for such a change; I do not see the wisdom of such a change; I do not see how it can justify such a change in the case at bar without committing the sin of ex post factoism, and I do see here a definite harm to the guarantees of liberty; I see here a deprivation of rights under trial by jury as it has come down through the centuries; and I accordingly energetically Dissent.