Commonwealth v. McQueen

• Decision Date: 29 March 1955
• Citation: Commonwealth v. McQueen, 178 Pa. Super. 38, 112 A.2d 820 (Pa. Super. Ct. 1955)
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania v. Chester McQUEEN, Appellant.

Page 820

112 A.2d 820178 Pa.Super. 38COMMONWEALTH of Pennsylvania
v.
Chester McQUEEN, Appellant.Superior Court of Pennsylvania.March 29, 1955.

[178 Pa.Super. 39]

Page 821

William E. Parke, West Chester, for appellant.

John E. Stively, Jr., Asst. Dist. Atty., Coatesville, Joseph G. McKeone, Dist. Atty, West Chester, for appellee.

Before RHODES, P. J., and HIRT, ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, JJ.

[178 Pa.Super. 40] WOODSIDE, Judge.

The defendant was convicted after trial by jury of burglary and larceny. The only question before us is whether there was error in the charge of the court, particularly relating to alibi, which entitles him to a new trial. The Commonwealth contended that five boys, including the defendant, committed the offenses on the night of March 28, 1953. Two of the five boys said they did, and testified that the defendant participated in the crimes.

The defendant, who was not taken into custody, until nearly four months after the offenses were committed, denied his guilt and said he was not at the scene of the crime at the time it was committed.

He testified on direct examination as follows:

'Q. On the night of March 28 or early in the morning of March 29, do you remember where you were? A. I know just about where I was. Q. Where were you? A. Oh, as I remember the 28th, that was on a Saturday night, and I usually go to the movies Saturday night, and that is where I probably was. I couldn't say definitely. The Court: No. Where were

Page 822

you that night, not what you probably did or usually do? The Witness: I was probably home in bed.'

The trial court conclued that this testimony was an attempt to establish an alibi, and, over objection of defense counsel, charged the jury on the basis that defendant had attempted to establish an alibi.

An 'alibi' is defined as '* * * the defense that the accused was elsewhere at the time the crime was committed.' Com. v. Larue, 1945, 158 Pa.Super. 219, 221, 44 A.2d 535, 536; 22 C.J.S., Criminal Law, § 40.

If a person says 'I was not at the scene of the crime but I do not remember where I was,' he is not attempting to prove an alibi, even though he naturally had to [178 Pa.Super. 41] be elsewhere if he was not at the scene of the crime. What is known in law as an alibi is an attempt by the defendant to prove that he could not have been at the scene of the crime because he was some other definite place. There is a marked difference between saying, 'I was not at the scene of the crime, and therefore I must have been some other place,' and saying, 'I could not have been at the scene of the crime because I was some other specified place.'

The first is a negative contention. It is not an alibi. The second is an effort to establish his presence at a particular time and place, which would make it impossible for him to have committed the crime. It is an affirmative contention. It is an alibi.

Here the trial court was of the opinion that the defendant was attempting to establish that he was home in bed. But a reading of the defendant's testimony leaves no doubt that he was trying to tell the court and jury that he did not know where he was that night.

He said first that he 'probably' was at the movies, only because 'as he remembered' the date, it was a Saturday night, and he 'usually' went to the movies on Saturday. With all the doubt already expressed he added, 'I couldn't say definitely.' And then after the court asked, 'Where were you that night, not what you probably did or usually do,' he replied, 'I was probably home in bed.' (Emphasis ours.) He did not attempt to establish that he was home in bed, or that he was in the movies.

It was not necessary to charge on alibi because defendant was not attempting to establish an affirmative defense of alibi. Neither the court nor the jury could interpret his testimony to mean other than 'I was not there, i do not know where I was, but at that time I usually am in the movies or home in bed and that is where I 'probably' was.'

[178 Pa.Super. 42] As recently as 1952 our Supreme Court in Com. v. Noble, 1952, 371 Pa. 138, 143, 88 A.2d 760, 762, has reiterated that 'alibi' is an affirmative defense and that "the burden of proving such defense, by a fair preponderance of the evidence, is placed upon the defendant", and that "it is the duty of the court to fully advise the jury as to the difference between the burden of proof resting upon the Commonwealth to establish guilt and that resting on the defendant with respect to the alibi set up;" and to further instruct them that "'the evidence in...