dissenting:
I submit that the lower court’s charge misled the jury into believing that appellant’s alibi evidence was not to be given the same consideration as the Commonwealth’s identification evidence.
The lower court’s charge on the alibi and identification evidence was as follows:
The defendant has also submitted what we generally call in the law alibi testimony. An alibi is merely a name of the nature of the defense that the accused person was not at the place that the crime was committed, but was elsewhere when that crime was committed. Obviously a person cannot be found guilty of a crime charged unless he was present at the scene of the crime. The defendant has offered evidence that he was not present at the scene of the crime, but rather that he was at Gino’s at work.
When you come to consider this evidence or this defense, you must consider, among other things, whether the testimony given by the alibi witnesses covered the entire time the offense is shown to have been committed, and whether it precludes the possibility of the defendant’s presence at the scene of the crime. You should consider this evidence along with other evidence in the case in determining whether the Commonwealth has met its burden of proving the defendant guilty beyond a reasonable doubt.
The defendant’s alibi evidence that he was not present at the scene of the crime may in and of itself work an acquittal, or it, together with other evidence, may be sufficient to raise a reasonable doubt in the mind of the jury. When you come to consider the alibi testimony, you *589will not only consider it, the single testimony of each witness given, but you must also consider it in the context of the other evidence in this case and in context with the evidence given by the eyewitness or the victim of the crime, and in conjunction with what he says is the person he says is his assailant.
The law is clear that if the jury finds the testimony of Mr. Gomez is believable and also believes that his testimony as to the identification of his assailant was positive and unqualified, and based on opportunity to observe, identification testimony may be sufficient for conviction, although there were three or even four other witnesses who gave testimony that tended to show that the defendant was at another place at the time the crime was committed. You must consider the alibi defense and reputation testimony in conjunction with all of the evidence in this case.
One of the issues is the identity of the person who committed the crime; and, like any other element in a case, it must be proven by the Commonwealth beyond a reasonable doubt. The Commonwealth has presented as its only eyewitness in this case the alleged victim of the robbery, Mr. Gomito Gomez.
In assessing the value of his testimony, identifying his assailant, two things are to be considered by you: one, the general credibility of him as a witness, by applying to him the standards of which I have instructed you on, and upon which credibility depends; and, two, the prior identifications, then you may receive the witness’s positive in-court identification as you would any other statement of fact in this case.
On the other hand, if you find that the witness was not positive as to the identification of his assailant, or his positive statements were qualified or weakened by cross-examination or by any other qualifications, or by his failure to identify the defendant on other occasions, then the accuracy of the identification is doubtful, and you should take it with caution and circumspection.
Remember that even though the defendant has presented alibi defense, if you find that Mr. Gomez positively *590identified his assailant, and it was unqualified, then he’s not merely to go off scot free merely because he has presented an alibi defense.
The first part of this charge (the first three paragraphs) told the jury how it should appraise appellant’s alibi evidence. The second part of the charge (the next four paragraphs) told the jury how it should appraise the Commonwealth’s identification evidence. So far, so good. Each of these parts was a correct statement of the law, and each was properly related to the other, for they were given equal emphasis, or importance. Thus, up to this point, the court properly confronted the jury with the tension at the heart of the case: on the one hand, a victim who was sure that while he was in his store, he had been robbed by appellant; on the other hand, disinterested, and documentary, evidence that at 4:59 p. m., appellant had been at Gino’s. It was this tension that the jury somehow had to resolve. Perhaps they would resolve it by deciding that the victim, albeit certain in his mind, was mistaken; or by deciding that the victim was correct in identifying appellant but mistaken about the time of the robbery (if the jury found that the robbery occurred sufficiently before 5:00 p. m., it could accept the time card evidence that by 5:00 p. m. appellant was in Gino’s); or in some other way.
Then, however, came the third part of the charge (the last paragraph). By giving the instructions contained in this part the court dissolved the tension at the heart of the case, and made the jury’s problem easy. “Remember,” said the court, “even though the defendant has presented alibi defense, if you find that Mr. Gomez positively identified his assailant . . . then he’s not merely to go off scot free merely because he has presented an alibi defense.” In other words: First look at the Commonwealth’s identification evidence. If you believe it, you may put aside such doubts as you may have had because of the alibi evidence. For if a victim positively identifies his assailant, the defendant is not to go scot free “merely” because the defendant has offered an alibi.
*591This was error; and given the critical importance of the alibi evidence, it was not harmless error. The probative value of Mr. Gomez’s testimony was not inherently superior to appellant’s evidence. Whether it was superior or inferior depended on findings of credibility to be made by the jury upon consideration of all of the evidence — whether offered by the Commonwealth or appellant. Furthermore, upon such consideration, it was well within the jury’s prerogative to find that although Mr. Gomez’s testimony was believable, appellant’s alibi evidence was also sufficiently believable to raise a reasonable doubt of his guilt. See Commonwealth v. Van Wright, 249 Pa.Super. 451, 378 A.2d 382 (1977). In such a situation, the jury would have been required to find appellant not guilty. Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959); Commonwealth v. Walley, 262 Pa.Super. 496, 396 A.2d 1280 (1978); Commonwealth v. Van Wright, supra; Commonwealth v. Mawson, 247 Pa.Super. 88, 371 A.2d 1340 (1977). The jury could not escape this requirement by saying, “Even so, we had better find appellant guilty, because the judge told us that ‘he’s not merely to go off scot free merely because he has presented an alibi defense.’ ”
The judgment of sentence should be vacated and the case remanded for a new trial.