alibi instruction in Pennsylvania

2023To be sure, the very nature of an alibi defense almost requires external investigation and this investigation could not have been accomplished during the 20 minutes that the trial court afforded counsel at the beginning of the hearing. - 11 - J-S08006-23 See Commonwealth v. Pounds, 417 A.2d 597, 602 (Pa. 1980) (noting that “an alibi defense is generally presented with accompanying alibi witnesses or other evidence placing the defendant at a place other than the scene of the crime at the time of its commission”); see also Commonwealth v. Whiting, 187 A.2d 563, 566 (Pa. 1963) (“[a]libi is a defe

2020(B) Failure to File Notice. 28 1,/�! • .J'l 1,;..,.' 1:: q j• .._:, 1· ... ) 1-._:, (1) If the defendant fails to file and serve the notice of alibi as required by this rule, the court may exclude I,.() entirely any evidence offered by the defendant for the purpose of proving the defense, except testimony by the defendant, may grant a 1· . . ) continuance to enable the Commonwealth to investigate such evidence, or may make such other order as the interests of justice require. f,.J) PA.R.CRIM.P. 567. " ... [T]he testimony of the accused may, by itself, be sufficient to raise 1--� an alibi defen

2024Moreover, at the PCRA hearing, Trial Counsel testified that in his many conversations with McMurren prior to trial, “at no time did she ever mention anything about being there with [Thomas] at the time the incident occurred, and that’s the reason there’s no alibi.” 7 An alibi defense “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.” Commonwealth v. Roxberry, 602 A.2d 826, 827 (Pa. 1992). 8 Portions of Thomas’ argument suggest that he identified other potential alibi witnes

2019An alibi defense"pJates the defendant at the. relevant time in a different plate than the scene involved and so removed therefrom as to render it impossible for him to be the guilty partv," Commonwealth v. Dennis, 17 A.3d 297, 302 (Pa. 2011) quoting Commonwealth v. Roxberry, 602 A.2d 826, 827 (Pa. 1992).

2023To be sure, the very nature of an alibi defense almost requires external investigation and this investigation could not have been accomplished during the 20 minutes that the trial court afforded counsel at the beginning of the hearing. - 11 - J-S08006-23 See Commonwealth v. Pounds, 417 A.2d 597, 602 (Pa. 1980) (noting that “an alibi defense is generally presented with accompanying alibi witnesses or other evidence placing the defendant at a place other than the scene of the crime at the time of its commission”); see also Commonwealth v. Whiting, 187 A.2d 563, 566 (Pa. 1963) (“[a]libi is a defe

1993Moreover, defense counsel made no attempt to argue the defense of alibi and did not request an instruction thereon. 1 *491 In Commonwealth v. Roxberry, 529 Pa. 160 , 602 A.2d 826 (1992), the Pennsylvania Supreme Court, while considering the effectiveness of counsel in handling an alibi defense, observed as follows: “The long-accepted definition of 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.” Commonwealth v. Jones, 529 Pa. 149 , 602 A.2d 820 (de

2025In Hawkins, our Supreme Court found that a petitioner’s claim that trial counsel was ineffective for failing to request an alibi instruction had arguable merit, satisfying the first prong of the ineffectiveness test. 894 A.2d at 729 .

2025Id. at 721, 729 ; see also Sileo, 32 A.3d at 758 (stating “all three aspects of the ineffectiveness test [must] be satisfied before a new trial can be awarded on the ground that trial counsel was ineffective for failing to request an alibi instruction”).

2024As our Supreme Court has explained, “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.” Commonwealth v. Ali, … 10 A.3d 282, 316 ([Pa.] 2010).

2022With respect to the alibi instruction, our Supreme Court has explained that “[a]n 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.” Commonwealth v. Jones, 210 A.3d 1014, 1017 (Pa. 2019) (quoting Ali, 10 A.3d at 316 ).

2021Nevertheless, an alibi instruction “is required only in cases where a defendant’s explanation places him at the relevant time at a different place than the scene involved and so far removed therefrom as to render it impossible for him to be the guilty party.” Commonwealth v. Collins, 702 A.2d 540, 545 (Pa. 1997).

2015Similarly, this Court has stated: - 12 - J-S14003-15 When the defendant generally denies his guilt, he is simply saying “I didn't do it.” An alibi defense, on the other hand, not only declares “I didn't do it” but also says: “and it couldn't possibly have been me since I was someplace else when the crime occurred.” … Alibi [evidence,] “if believed, isolate[s the defendant] from all possible interaction with the victim and the crime scene.” Commonwealth v. Collins, 549 Pa. 593 , 702 A.2d 540, 545 (1997).

2025The rule “clearly enables the trial court to take whatever action is within the interests of justice, when no notice is properly provided as to the alibi defense.” Id. at 1221 (affirming denial of an alibi jury instruction following the defendant’s failure to provide the required notice).

2017As Servich also illustrates, a Rule 567(B)(1) “order” does not have to be in the form of a court order but rather can be in the form of an action taken by the trial court in the interests of justice in the event of a defendant’s failure to give timely notice of an alibi defense.5 See also Commonwealth v. Poindexter, 646 A.2d 1211, 1219 (Pa. Super. 1994) (trial court may exclude alibi evidence or refuse an alibi instruction for failure to comply with alibi notice requirements); Commonwealth v. Feflie, 581 ____________________________________________ 5 Servich and the other cases cited herein ad

2023An alibi defense "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." Commonwealth v. Dennis, 17 A.3d 297, 302 (Pa. 2011).

2021Trial counsel failed to timely give notice of an alibi defense and to interview/call Kareem Webb and Lauren Crawford as alibi witnesses In order to establish that trial counsel was ineffective for failing to call awitness, the petitioner must demonstrate that (1) the witness existed; (2) the witness was available; (3) counsel knew of, or should have known of the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony was so prejudicial to petitioner to have denied him or her afair trial. 32 With regard to an alibi witness, our cour

2016Where an alibi defense is raised and counsel requests the relevant jury instruction, “The strength of the Commonwealth’s case does not render the absence of an instruction harmless error.” Commonwealth v. Kolenda, 544 Pa. 426, 432 , 676 A.2d 1187, 1190 (1996).

2016Where an alibi defense is raised and counsel requests the relevant jury instruction, “The strength of the Commonwealth’s case does not render the absence of an instruction harmless error.” Commonwealth v. Kolenda, 544 Pa. 426, 432 , 676 A.2d 1187, 1190 (1996).

2015See Roxberry, 529 Pa. at 165 , 602 A.2d at 828 ; Commonwealth v. Saunders, 529 Pa. 140 , 602 A.2d 816 (1991); Commonwealth v. Willis, 520 Pa. 289 , 553 A.2d 959 (1989) (all requiring an alibi instruction when the alibi defense had been presented solely by the unsupported testimony of the defendant).

2015See Roxberry, 529 Pa. at 165 , 602 A.2d at 828 ; Commonwealth v. Saunders, 529 Pa. 140 , 602 A.2d 816 (1991); Commonwealth v. Willis, 520 Pa. 289 , 553 A.2d 959 (1989) (all requiring an alibi instruction when the alibi defense had been presented solely by the unsupported testimony of the defendant).

2025“Although an alibi may be stronger if accompanied by corroborative evidence, even absent such proofs a defendant’s testimony that he was elsewhere when the crime occurred, standing alone, amounts to an alibi defense, and it is for the jury to decide how much weight to give such testimony.” Jones, 210 A.3d at 1017 .

2022With respect to the alibi instruction, our Supreme Court has explained that “[a]n 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.” Commonwealth v. Jones, 210 A.3d 1014, 1017 (Pa. 2019) (quoting Ali, 10 A.3d at 316 ).

2018Given these concerns, we have held unequivocally that “a defendant is entitled to an alibi instruction when evidence of alibi ... has been introduced.” Id. at 602 (citing Commonwealth v. Bonomo, 396 Pa. 222 , 151 A.2d 441 (1959)).

2018Given these concerns, we have held unequivocally that “a defendant is entitled to an alibi instruction when evidence of alibi ... has been introduced.” Id. at 602 (citing Commonwealth v. Bonomo, 396 Pa. 222 , 151 A.2d 441 (1959)).

2021Bonomo, . . . unless there is some testimony in the record, introduced by either the defense or the Commonwealth, raising the possibility of an alibi defense.” Id. at 385 (emphasis added). - 13 - J-S34043-21 However, Appellant fails to acknowledge that this Court subsequently held this statement in Van Wright — that the trial court should still provide an alibi instruction when the only evidence of an alibi comes from the Commonwealth — was “merely dictum.” Commonwealth v. Fromal, 572 A.2d 711, 722 (Pa. Super. 1990).

2021Bonomo, . . . unless there is some testimony in the record, introduced by either the defense or the Commonwealth, raising the possibility of an alibi defense.” Id. at 385 (emphasis added). - 13 - J-S34043-21 However, Appellant fails to acknowledge that this Court subsequently held this statement in Van Wright — that the trial court should still provide an alibi instruction when the only evidence of an alibi comes from the Commonwealth — was “merely dictum.” Commonwealth v. Fromal, 572 A.2d 711, 722 (Pa. Super. 1990).

2011That panel ruled that the PCRA court was permitted to address the issue of *757 prejudice but concluded that trial counsel’s failure to request an alibi instruction was inherently prejudicial, relying upon Commonwealth v. Weinder, 395 Pa.Super. 608 , 577 A.2d 1364 (1990). 2 En banc review of that panel decision was granted.

2011That panel ruled that the PCRA court was permitted to address the issue of *757 prejudice but concluded that trial counsel’s failure to request an alibi instruction was inherently prejudicial, relying upon Commonwealth v. Weinder, 395 Pa.Super. 608 , 577 A.2d 1364 (1990). 2 En banc review of that panel decision was granted.

1993Moreover, defense counsel made no attempt to argue the defense of alibi and did not request an instruction thereon. 1 *491 In Commonwealth v. Roxberry, 529 Pa. 160 , 602 A.2d 826 (1992), the Pennsylvania Supreme Court, while considering the effectiveness of counsel in handling an alibi defense, observed as follows: “The long-accepted definition of 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.” Commonwealth v. Jones, 529 Pa. 149 , 602 A.2d 820 (de

1993Moreover, defense counsel made no attempt to argue the defense of alibi and did not request an instruction thereon. 1 *491 In Commonwealth v. Roxberry, 529 Pa. 160 , 602 A.2d 826 (1992), the Pennsylvania Supreme Court, while considering the effectiveness of counsel in handling an alibi defense, observed as follows: “The long-accepted definition of 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.” Commonwealth v. Jones, 529 Pa. 149 , 602 A.2d 820 (de

2018Appellant relies on three cases that speak to the general proposition that “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,” and that “the burden is solely on the Commonwealth to prove that the defendant was present during the commission of the crime.” Id. at 8.4 ____________________________________________ 4 Appellant cites the following cases: Commonwealth v. Rainey, 928 A.2d 215, 234 (Pa. 2007); Commonwealth v. Gainer, 580 A.2d 333, 336 (Footn

2006Gainer, 580 A.2d at 340 (Johnson, J., dissenting). [15] 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.

2025“Where [alibi] evidence has been introduced, a defendant is entitled to an alibi instruction to alleviate the danger that the jurors might impermissibly view a failure to prove the defense as a sign of the defendant’s guilt.” Commonwealth v. Bryant, 855 A.2d 726, 741 (Pa. 2004) (citation omitted).

2021“Where such evidence has been introduced, a defendant is entitled to an alibi instruction to alleviate the danger that the jurors might impermissibly view a failure to prove the defense as a sign of the defendant’s guilt.” Id.

2025We agree that remand is necessary. -3- J-A08023-25 “An alibi is a defense that places a defendant at the relevant time at a different place than the crime scene and sufficiently removed from that location such that it was impossible for him to be the perpetrator.” Commonwealth v. Sileo, 32 A.3d 753, 767 (Pa.Super. 2011) (en banc).

2025Id. at 721, 729 ; see also Sileo, 32 A.3d at 758 (stating “all three aspects of the ineffectiveness test [must] be satisfied before a new trial can be awarded on the ground that trial counsel was ineffective for failing to request an alibi instruction”).

2015See Roxberry, 529 Pa. at 165 , 602 A.2d at 828 ; Commonwealth v. Saunders, 529 Pa. 140 , 602 A.2d 816 (1991); Commonwealth v. Willis, 520 Pa. 289 , 553 A.2d 959 (1989) (all requiring an alibi instruction when the alibi defense had been presented solely by the unsupported testimony of the defendant).

2015See Roxberry, 529 Pa. at 165 , 602 A.2d at 828 ; Commonwealth v. Saunders, 529 Pa. 140 , 602 A.2d 816 (1991); Commonwealth v. Willis, 520 Pa. 289 , 553 A.2d 959 (1989) (all requiring an alibi instruction when the alibi defense had been presented solely by the unsupported testimony of the defendant).

2022Appellant relies on Commonwealth v. Devlin, 333 A.2d 888 (Pa. 1975), and asserts that, as in Devlin, “[t]he Commonwealth’s failure to fix the dates of the alleged commission of the offenses, with any reasonable certainty, deprive[d] [Appellant] of the ability to establish an alibi defense, and otherwise deprive[d Appellant] of any reasonable ability to defend himself from the charges.” Appellant’s Brief at 29. -8- J-E02006-21 Appellant further argues that the dates in the information do not conform with the dates alleged in the bill of particulars.

2022Appellant relies on Commonwealth v. Devlin, 333 A.2d 888 (Pa. 1975), and asserts that, as in Devlin, “[t]he Commonwealth’s failure to fix the dates of the alleged commission of the offenses, with any reasonable certainty, deprive[d] [Appellant] of the ability to establish an alibi defense, and otherwise deprive[d Appellant] of any reasonable ability to defend himself from the charges.” Appellant’s Brief at 29. -8- J-E02006-21 Appellant further argues that the dates in the information do not conform with the dates alleged in the bill of particulars.

2009Our Supreme Court has instructed that where there is sufficient evidence in the record to establish an alibi defense, the defendant is clearly entitled to an alibi instruction for at least two reasons: (1) "an alibi defense, either standing alone or together with other evidence, may be sufficient to leave in the minds of the jury a reasonable doubt that might not otherwise exist," and (2) to "alleviate the danger that the jurors might impermissibly view a failure to prove the defense as a sign of defendant's guilt." Commonwealth v. Mikell, 556 Pa. 509, 517 , 729 A.2d 566, 570 (1999).

2009Our Supreme Court has instructed that where there is sufficient evidence in the record to establish an alibi defense, the defendant is clearly entitled to an alibi instruction for at least two reasons: (1) "an alibi defense, either standing alone or together with other evidence, may be sufficient to leave in the minds of the jury a reasonable doubt that might not otherwise exist," and (2) to "alleviate the danger that the jurors might impermissibly view a failure to prove the defense as a sign of defendant's guilt." Commonwealth v. Mikell, 556 Pa. 509, 517 , 729 A.2d 566, 570 (1999).

1990In Brunner , Judge Wieand relied upon Commonwealth v. Pounds, 490 Pa. 621 , 417 A.2d 597 (1980) and Commonwealth v. Van Wright, 249 Pa.Super. 451 , 378 A.2d 382 (1977) for the principle that “a failure to give a specific alibi instruction, where warranted, is error requiring a new trial.” 341 Pa.Super. at 70 , 491 A.2d at 153 .

1990In Brunner , Judge Wieand relied upon Commonwealth v. Pounds, 490 Pa. 621 , 417 A.2d 597 (1980) and Commonwealth v. Van Wright, 249 Pa.Super. 451 , 378 A.2d 382 (1977) for the principle that “a failure to give a specific alibi instruction, where warranted, is error requiring a new trial.” 341 Pa.Super. at 70 , 491 A.2d at 153 .

2006Accordingly, hereinafter we shall refer to the Superior Court's disposition underlying that appeal, see 381 Pa.Super. 314 , 553 A.2d 986 (1988), aff'd, 529 Pa. 160 , 602 A.2d 826 (1992), as Roxberry I. [3] 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, 417 A.2d at 602 . [4] A model alibi instruction follows: In this case, the defendant has presented evidence of an alibi, that is, that [he][she] was

2006Accordingly, hereinafter we shall refer to the Superior Court's disposition underlying that appeal, see 381 Pa.Super. 314 , 553 A.2d 986 (1988), aff'd, 529 Pa. 160 , 602 A.2d 826 (1992), as Roxberry I. [3] 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, 417 A.2d at 602 . [4] A model alibi instruction follows: In this case, the defendant has presented evidence of an alibi, that is, that [he][she] was

2026Id. at 176 .

2015The Court also concluded that “the existence of an alibi defense does make the time alleged material to the defendant’s case.” Id. at 176 (emphasis added).

2026When the petitioner establishes by a preponderance of the evidence that the new facts are “of such a nature and character that a different verdict will likely result if a new trial is granted,” then the petitioner is entitled to relief. [Commonwealth v. Valderrama, 479 Pa. 500 , 388 A.2d 1042, 1045 (1978) (holding that the after-discovered evidence provided substantial support for the defendant’s alibi defense and that a different verdict would likely result)].

2026When the petitioner establishes by a preponderance of the evidence that the new facts are “of such a nature and character that a different verdict will likely result if a new trial is granted,” then the petitioner is entitled to relief. [Commonwealth v. Valderrama, 479 Pa. 500 , 388 A.2d 1042, 1045 (1978) (holding that the after-discovered evidence provided substantial support for the defendant’s alibi defense and that a different verdict would likely result)].

2022Commonwealth v. Jones, 210 A.3d 1014, 1017 (Pa. 2019); Commonwealth v. Johnson, 966 A.2d 523 , 537 n.5 (Pa. 2009); Commonwealth v. Mikell, 729 A.2d 566, 570 (Pa. 1999).

2021“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.” Commonwealth v. Johnson, 966 A.2d 523 , 537 n.5 (Pa. 2009) (citation and quotation marks omitted).

1991In Commonwealth v. Bright, 361 Pa.Super. 261 , 522 A.2d 573 (1987), a panel of this court again considered an appellant’s argument that the “even if not wholly believed” language of Pounds must be used in an alibi instruction.

1991In Commonwealth v. Bright, 361 Pa.Super. 261 , 522 A.2d 573 (1987), a panel of this court again considered an appellant’s argument that the “even if not wholly believed” language of Pounds must be used in an alibi instruction.