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Commonwealth v. Ogrod12/30/2003
475 (16 th ed. 1971). Appellant told police that he had sexually assaulted Barbara Jean and killed her with a pull down bar. N.T. 10/3/96 at 62-65. It would be hard to conceive of a statement that more clearly fits the definition of confession. As Judge Stout stated when she overruled the objection of Appellant:
Well, he says he never intended to do anything bad to this little girl. Then he described in detail what he did, hitting her in the head and everything else. So, if that is not a confession, I don't know what is.
N.T. 10/3/96 at 6-7. Deciding whether to admit the chart into evidence was a decision trusted to the sound discretion of the trial court. We will not overturn its decision absent an abuse of discretion. Commonwealth v. Wharton, 607 A.2d 710 (Pa. 1992). There was no abuse of discretion with regard to this issue.
Identity Instruction
Appellant avers that the trial court failed to charge the jury with regard to the defense of mistaken identity. Brief of Appellant at 32-34. Appellant requested that the court advise the jury that:
The defendant may present evidence that someone else committed the crime for which he stands accused. Such evidence is relevant and must be considered by you in determining whether the Commonwealth has proved the defendant guilty beyond a reasonable doubt. Such evidence can itself or with other evidence from the defense and/or the prosecution raise a reasonable doubt of the defendant's guilt.
Remember, that the defendant does not have the burden of proving that some one else committed the crime for which he stands accused. Moreover, even if you believe that the defendant is wrong in his identity of the person he believes committed the crime, you may not find the defendant guilty unless the Commonwealth has convinced you beyond a reasonable doubt of his guilt. The burden always remains with the Commonwealth to prove the defendant guilty beyond a reasonable doubt. In sum, evidence presented by the defense that some one else possibly committed the crime can, by itself, or with other corroborative evidence, from either side create a reasonable doubt of the defendant's guilt.
Id. at 33. The trial court read a charge consistent with the requirements of Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954), cert. denied, 348 U.S. 875 (1954). The trial court explained that when there is reason to question the certainty of identification testimony, the jury must consider that evidence with caution. Specifically, the trial court charged the jury with regard to identity as follows:
I charge you now with the law of identity. Where the opportunity for positive identification is good, and the witness is positive in his identification, and his identification is not weakened by prior failure to identify but remains, even after cross-examination, positive and unqualified, the testimony as to identification need not be received with caution.
On the other hand, where the witness is not in a position to clearly observe the assailant or he is not positive as to identity, or his positive statements as to identity are weakened by qualifications or by failure to identify the assailant on one or more occasions, the testimony as to identity must be received by you, the jury, with caution.
Credibility of witnesses and the weight to be given them in their identification testimony is exclusively for you, the jury.
N.T. 10/7/96 at 84-85. As Appellant concedes, a trial court is not required to instruct the jury, verbatim, with all requested instructions, even if the substantive law within the proposed charge is without error. Commonwealth v. McComb, 341 A.2d 496 (P
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