Com. v. Hawkins

Page 716

894 A.2d 716

COMMONWEALTH of Pennsylvania, Appellant v. Brian W. HAWKINS, Appellee.

Supreme Court of Pennsylvania.

Submitted February 24, 2004.

Decided March 29, 2006.

Nicholas J. Casenta, Joseph W. Carroll, III, for the Com. of PA, appellant.

Christian J. Hoey, for Brian Hawkins, appellee.

Before: CAPPY, C.J., CASTILLE, NEWMAN, SAYLOR, EAKIN, BAER and BALDWIN, JJ.

OPINION

Justice BAER.

The Commonwealth appeals the Superior Court's order affirming the PCRA¹ court's grant of a new trial to Brian Hawkins (Appellee). The courts below ruled that trial counsel's decision not to seek a jury charge regarding Appellee's alibi evidence constituted ineffective assistance of counsel. See Commonwealth v. Hawkins, 848 A.2d 954 (Pa.Super.2004). Both courts construed our decision in Commonwealth v. Roxberry, 529 Pa. 160, 602 A.2d 826 (1992) (Roxberry II),² to compel such a ruling where an alibi instruction is not included in a jury charge. Rather than contest this interpretation of Roxberry II, the Commonwealth argues that our own cases on ineffectiveness and the alibi instruction are inconsistent and that we should conclude that a finding of prejudice per se is not necessary where an alibi instruction has not been given. We find that the courts below generally have misconstrued the intended breadth of Roxberry II. In this case, where trial counsel articulated a reasonable and sound basis for deliberately declining to seek an alibi instruction, we conclude that trial counsel was not constitutionally ineffective. Thus, we hold that competent counsel may waive an alibi instruction where counsel has a reasonable basis for doing so. Accordingly, we reverse.

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, 602 A.2d at 827 (quoting Commonwealth v. Jones, 529 Pa. 149, 602 A.2d 820, 822 (1992)). In Commonwealth v. Pounds, we held that a trial court, faced with alibi evidence,³ should instruct a jury generally that "it should acquit if [defendant's] alibi evidence, even if not wholly believed, raise[s] a reasonable doubt of his presence at the scene of the crime at the time of its commission and, thus, of his guilt." 490 Pa. 621, 417 A.2d 597, 603 (1980) (footnote omitted). The instruction,⁴ we held, is critically important to offset "the danger that the failure to prove the defense will be taken by the jury as a sign of the defendant's guilt." Id. We explained that the defendant bears no burden of proof in a criminal case, and that to infer guilt based upon a failure to establish an alibi "contravenes the presumption of innocence and the Commonwealth's burden of proving the offense beyond a reasonable doubt." Id. at 603 n. 17. Given 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)). Further, we held in Pounds that "[g]eneral instructions on the Commonwealth's burden of proving each element of the offense beyond a reasonable doubt, the absence of a burden of proof on the defendant, and assessing the credibility of witnesses do not adequately protect against" the danger posed by the misapprehensions a jury might indulge regarding the relevance and effect of alibi evidence. Id. at 603.

The material facts underlying Appellee's prosecution are undisputed. On July 23, 1999, at approximately 1:30 a.m., three men, one armed with a shotgun, entered a residence in West Chester, Pennsylvania, in which Devon Mayer was hosting a number of friends. One intruder wore a hooded sweatshirt with the hood cinched to obscure his face; another intruder wore a mask; Appellee, however, did not conceal his face. Appellee seized Mayer and asked her where he could find Bill Fahey. Mayer indicated that Fahey was not present. Another intruder then identified Mayer as Fahey's girlfriend, placed a gun to her head, and demanded drugs and money. Mayer complied.

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 Pa.R.Crim.P. 573, which requires a defendant to file a pre-trial notice "specifying the intention to claim [an alibi] defense," containing "specific information as to the place or places where the defendant claims to have been at the time of the alleged offense and the names and addresses of witnesses whom the defendant intends to call in support of such claim." Pa.R.Crim.P. 573(C)(1)(a).⁵ The defense maintained that the Commonwealth had opened the door to alibi evidence when, during cross-examination, it elicited testimony regarding the telephone call between Miller and Appellee. The trial court agreed and indicated that it would not strike the testimony.⁶ Defense counsel then stated that he did not intend to seek an alibi instruction, in any event.

Following the evidence, 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.⁷ On Appellee's direct appeal of his judgment of sentence, the Superior Court affirmed. See Commonwealth v. Hawkins, 769 A.2d 1204 (Pa.Super.2000). Appellee did not seek our review of the Superior Court's ruling at that time.

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 of — a specific jury charge concerning his alibi evidence. At the PCRA hearing, trial counsel explained, in great detail, why he opted not to seek an alibi instruction.

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.

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 not 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...