concurring:
¶ 1 While I concur in the result reached by my colleagues, I cannot join in the discussion questioning the per se prejudice rule.
¶2 First, it is now a well-established precedent (both by our Supreme Court and the Superior Court) that when counsel fails to request an alibi instruction, and appellant is entitled to such an instruction, appellant has been per se prejudiced by this omission. Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980); Commonwealth v. Gainer, 397 Pa.Super. 348, 580 A.2d 333 (1990) (en banc), appeal denied, 529 Pa. 645, 602 A.2d 856 (1992); Commonwealth v. Roxberry, 381 Pa.Super. 314, 553 A.2d 986 (1989), aff'd, 529 Pa. 160, 602 A.2d 826 (1992).
¶ 3 As the majority concedes, we are required to follow such binding precedent. See Aivazoglou v. Drever Furnaces, 418 Pa.Super. 111, 613 A.2d 595, 600 (1992); Commonwealth v. Crowley, 413 Pa.Super. 554, 605 A.2d 1256, 1257 (1992).
¶4 The majority, however, proceeds to question the wisdom of such a per se rule. The majority argues that a per se rule is inappropriate in a case such as this where there exists overwhelming evidence of appellant’s guilt. I cannot agree.
We customarily repose great faith in the wisdom and judgment of juries. Because credibility is indisputably the exclusive province of the jury, we cannot properly permit a judge, under the guise of exercising discretion, to remove the alibi issue from the jury merely because the judge finds the evidence incredible. We do not ordinarily doubt a jury’s capability of resolving difficult factual questions. Many, if not most, trials require the jury to make extremely meticulous and discriminating assessments of credibility. This jury function is fundamental to our jurisprudence. There is no reason, in the realm of alibis, to abandon our trust in jury verdicts and to grant discretion to a trial judge to deliver or withhold an alibi charge depending on his personal assessment of credibility.
Commonwealth v. Roxberry, 529 Pa. 160, 602 A.2d 826, 828-29 (1992).
Where an alibi defense is presented, such an instruction is necessary due to the danger that the failure to prove the defense will be taken by the jury as a sign of the defendant’s guilt.
Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597, 603 (1980) (citations and footnote omitted).
For the jury to be given evidence of alibi and not to be told of its significance, i.e., *963how to use it, is to impair the jury’s ability to return a reliable verdict.
Commonwealth v. Gainer, 397 Pa.Super. 348, 580 A.2d 333, 337 (1990) (en banc), appeal denied, 529 Pa. 645, 602 A.2d 856 (1992).
The [alibi] instruction is necessary so that a failure of the jury to believe the alibi testimony will not be translated into a finding of guilt.... His omission, as all the decided cases recognize, was a fundamental error which may have influenced the jury’s verdict to appellant’s prejudice.
Commonwealth v. Roxberry, 381 Pa.Super. 314, 553 A.2d 986, 990 (1989), aff'd, 529 Pa. 160, 602 A.2d 826 (1992).
¶ 5 These cases reason that the alibi instruction is necessary when evidence of an alibi is presented because there is a danger that, without the instruction, the jury could misuse the alibi testimony. This danger exists regardless of the amount of evidence implicating the defendant. Accordingly, failure to request an alibi instruction is per se prejudicial to a criminal defendant.
¶ 6 The majority analogizes the per se prejudice rule with the rule for a “no-adverse-inference” instruction regarding the right to remain silent. Criminal defendants who do not testify at trial are entitled to a “no-adverse-inference” jury instruction. Commonwealth v. Lewis, 528 Pa. 440, 598 A.2d 975, 979 (1991). A criminal defendant entitled to such an instruction may waive his right to the instruction provided that a colloquy is conducted on the record. Commonwealth v. Thompson, 543 Pa. 634, 674 A.2d 217 (1996). When trial counsel fails to request the instruction (or fails to request the colloquy), an appellant must still show prejudice in order to prevail on a claim of ineffective assistance of trial counsel. In essence, failure to request the instruction or the colloquy is not per se prejudicial to the criminal defendant. Thompson, 674 A.2d at 221-22; Commonwealth v. Stanley, 830 A.2d 1021, 1027 (Pa.Super.2003). See also Commonwealth v. Fanase, 446 Pa.Super. 654, 667 A.2d 1166 (1995).
¶ 7 The majority believes that because a defendant is required to show prejudice when asserting trial counsel ineffectiveness for failing to request the “constitutionally mandated” “no-adverse-inference” instruction, a defendant should also be required to show prejudice when trial counsel fails to request an alibi instruction. This argument is unsound.
¶ 8 A no-adverse-inference instruction is given to protect the rights of a criminal defendant when that defendant does not testify. Accordingly, there is no testimony from the defendant for the jury to inappropriately use during deliberations. Further, our Supreme Court has recognized that the instruction may not be required in all cases.
We are mindful that, for strategical reasons, a defendant and his or her counsel may determine that defendant’s right to remain silent under Article I, Section 9 is best served by requesting that a “no-adverse-inference” charge not be given to the jury, in order to avoid drawing attention to defendant’s failure to testify. The “fundamental” right at stake here is the right not to be “compelled to give evidence against [oneself]” from which the “no-adverse-inference” rule derives. Thus, if defendant and his or her counsel determine that the fundamental right to remain silent is best served by not drawing attention to defendant’s silence, the derivative right (i.e., the “no-adverse-inference” instruction), may be validly waived. In such cases, an explicit waiver by defendant is required.
*964Thompson, 674 A.2d at 220 (quoting Lewis, 598 A.2d at 983 n. 14) (emphasis in Lems).
¶ 9 Contrary to the “no-adverse-inference” instruction, the alibi instruction-was designed to guide the jury in analyzing evidence actually presented. Further, prior cases indicate that there is no logical reason for counsel not to seek an alibi instruction when such an instruction is proper. See e.g. Commonwealth v. Mikell, 556 Pa. 509, 729 A.2d 566 (1999); and Commonwealth v. Brunner, 341 Pa.Super. 64, 491 A.2d 150 (1985). Accordingly, the alibi instruction is distinguishable in purpose and function from the “no-adverse-inference” instruction stemming from a defendant’s right not to testify.
¶ 10 For all of the above-stated reasons, I do not agree with the majority’s discussion questioning the per se prejudice rule.