dissenting:
I agree with the majority that trial counsel was not ineffective for failing to request an accomplice or corrupt source instruction with respect to the testimony of Walter Sparks, a. prosecution witness. However, I find no ineffectiveness meriting a new trial in counsel’s failure to request an alibi instruction. I would affirm the order denying post-conviction relief. Therefore, I must respectfully dissent.
Initially, I would agree with the distinguished trial judge, the Honorable Robert P. Horgos, that Gainer has failed to demonstrate a reasonable probability that, but for counsel’s unprofessional errors (in failing to request an alibi charge) the result of the proceeding would have been different, that *359is to say, that our confidence in the outcome has been undermined. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984). I would have little difficulty affirming, on the analysis of the trial court, the orders of November 22, 1988 which denied PCHA relief.
The outcome of this case at first appears to be controlled by this Court’s holding in Commonwealth v. Roxberry, 381 Pa.Super. 314, 553 A.2d 986 (1988). However, as the majority acknowledges, Roxberry is subject to re-examination by our Supreme Court, Commonwealth v. Roxberry, appeal granted, 523 Pa. 649, 567 A.2d 652 (1989) (Table).
The ostensibly controlling per se rule established in Commonwealth v. Roxberry, supra, was formulated in December 1988, some three years and ten months after the trial conduct here under review. As the distinguished author of the Roxberry opinion, the Honorable Donald E. Wieand, had earlier pointed out in Commonwealth v. Johnson, 347 Pa.Super. 93, 100, 500 A.2d 173, 177 (1985):
We will not “impose upon trial counsel [or appellate counsel] the qualities of a seer ... and counsel will not be deemed ineffective for failing to predict future developments in the law.” Commonwealth v. Triplett, 476 Pa. 83, 89-90, 381 A.2d 877, 881 (1977). On the contrary, we examine counsel’s stewardship under standards as they existed at the time of his actions.
Cf., Commonwealth v. Ahearn, 357 Pa.Super. 404, 406-407, 516 A.2d 45, 46 (1986), appeal denied 514 Pa. 628, 522 A.2d 556 (1987) (Table).
The per se rule compelling a trial judge to give an alibi charge regardless of the circumstances did not appear in our jurisprudence until Commonwealth v. Brunner, 341 Pa.Super. 64, 491 A.2d 150 (1985), decided one month after the trial here under review. In Brunner, Judge Wieand relied upon Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980) and Commonwealth v. Van Wright, 249 Pa.Super. 451, 378 A.2d 382 (1977) for the principle that “a failure to give a specific alibi instruction, where warranted, *360is error requiring a new trial.” 341 Pa.Super. at 70, 491 A.2d at 153. Judge Wieand rejected trial counsel’s explana^ tion that he did not believe the witness, with this:
The witness had testified; the alibi evidence was before the jury; and appellant was entitled to a specific instruction from the court regarding its significance. When the trial court failed to deliver the required instruction, counsel had a duty to request it to do so and, if the request was denied, to preserve the court’s error by an appropriate objection. To fail in this respect was so unreasonable that it must be equated with constitutionally ineffective assistance.
341 Pa.Super. at 70, 491 A.2d at 153.
Both Pounds and Van Wright, upon which Judge Wieand relied, involved a requested alibi instruction which Had been refused. In Van Wright, the testimony of a bartender had placed the question of alibi in issue. This court reviewed Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959), in deciding how the issue of alibi evidence bears upon the presumption of innocence. In Van Wright, we held that “[t]his presumption cannot be fully honored if the trial court refuses to give an alibi instruction when a defendant’s evidence, if believed, would establish its applicability.” 249 Pa.Super. at 457, 378 A.2d at 385 (emphasis added).
Similarly, in Pounds, our Supreme Court had to consider whether a retrial was in order where the trial judge had refused a request to instruct the jury on the defense of alibi. The defendant’s testimony concerning his whereabouts was not supported by any other evidence but, nevertheless, a majority of the court found it to be sufficient to raise an alibi defense. There, the court held that the failure to instruct the jury upon request constituted trial court error which was not harmless. The court reasoned that, since the defendant bears no burden of proof on alibi, such evidence, even if not wholly believed, might have raised a reasonable doubt of the defendant’s presence at the scene of the crime at the time of its commission and thus, of his *361guilt. As in Van Wright, Pounds involved a refusal of a request for an instruction.
From my review of the cases, I conclude that it was not until Brunner in 1985 that this court suggested that an alibi instruction might be required regardless of trial counsel’s conduct or desire. I have found no case from our Supreme Court confirming this compulsory rule.
The per se rule established first in Brunner and followed in Commonwealth v. Nauman, 345 Pa.Super. 457, 498 A.2d 913 (1985) and Roxberry, supra, would compel a trial judge to give an alibi charge regardless of the circumstances and regardless of the wishes of the defendant or defense counsel. In both Brunner and Nauman, the opinion writer concluded that there could be no reasonable basis for failing to request an alibi instruction. In Brunner, defensé counsel testified at the PCHA hearing that he did not request a specific alibi instruction because he did not believe the alibi witness. Counsel may well have feared that focusing the jury’s attention on patently false alibi evidence could have diverted the jury from considering some other plausible aspect in the case more favorable to the defendant.
If I understand the thrust of Brunner, Nauman and Roxberry, those cases conclude that there can be no reasonable basis for not wanting an alibi charge, and that this decision is too important to be left to the defendant and defense counsel. I cannot agree.
Moreover, if the per se command of Roxberry is to be followed, it would appear that the “prejudice” review found in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and carried forward in this jurisdiction in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987) would no longer apply, even where defense counsel finds the alibi testimony incredible, as in Brunner. I seriously doubt that our Supreme Court would sanction this.
Recently, this court has addressed the obverse of the situation presented by Brunner and its progeny. Where a *362criminal defendant does not testify, and specifically requests the court not to charge that he has the right not to testify and that no adverse inference may be drawn from his failure to take the witness stand, we have held that it is error for the court to give the instruction concerning a defendant’s right to remain silent. Commonwealth v. Rasheed, 392 Pa.Super. 280, 572 A.2d 1232 (1990) (en banc, Opinion by Cavanaugh, J.)
Our rationale in Rasheed was that defense counsel and his or her client should be able to decide if they want the jury to focus on the fact that the defendant has not testified. We recognized that the jury will be aware of this fact, but in some cases the defendant may not want this highlighted. Id., 392 Pa.Superior Ct. at 284, 572 A.2d at 1234-35. Similarly, in those cases involving an alibi defense, I believe that the defendant and defense counsel should not be deprived of the right to control trial strategy. In my view, the majority on this appeal moves counter to the direction of our court as manifest in Rasheed and away from the autonomy of the defendant and defense counsel without any clear enhancement of the administration of justice.
My review of the charge actually delivered persuades me that it was entirely fair. We should not lose sight of our obligation, as an intermediate appellate court, to examine the entire jury charge as a whole to determine whether it was fair or prejudicial. Commonwealth v. Ohle, 503 Pa. 566, 582, 470 A.2d 61, 70 (1983); Commonwealth v. Sparks, 351 Pa.Super. 320, 328, 505 A.2d 1002, 1006 (1986). I find no fault with the charge as given.
In order to join with my colleagues in directing a new trial on this appeal, I would have to conclude that, in late February, 1985, (1) defense counsel was ineffective for not requesting an alibi instruction and (2) the learned trial judge committed reversible, prejudicial error when he did not (a) anticipate this court’s quantum leaps of March, 1985 and beyond as expressed in Brunner and its progeny and (b) deliver, sua sponte, an alibi instruction that had not *363been requested nor, in my judgment, was required. I am not inclined towards either conclusion.
The jury in this case heard Gainer’s alibi defense through his own testimony and the testimony of other defense witnesses. It could use its common sense and decide if Gainer told the truth about his whereabouts, or if the Commonwealth witnesses were more believable — in the absence of an alibi instruction. Nothing in the transcript of the P.C.H.A. hearing or in the majority opinion of my colleagues details the manner in which our confidence in the outcome of this proceeding has been undermined because the trial court did not, sua sponte, deliver an instruction on alibi.
I cannot join with my colleagues in characterizing the conduct of Judge Horgos and Attorney John D. O’Connor as “the failures of court and counsel.” Majority opinion, page 353. Nor do I believe that our Supreme Court decisions which discuss alibi testimony and the need for jury instructions have gone so far as to find trial counsel “constitutionally ineffective” where the record discloses a failure to request an alibi instruction but nothing more to demonstrate prejudice. Commonwealth v. Pierce, supra. While I recognize the cases decided in this Court which appear to establish a per se rule, I am prepared to await further direction from our Supreme Court before I would join a position expressing such a drastic change in precedent.
On November 22, 1988, after due consideration, Judge Horgos denied the prayer of the post conviction petition. This occurred following an evidentiary hearing where no evidence was presented to support a claim that either trial or successor counsel had been constitutionally ineffective. On direct appeal, we have previously reviewed and affirmed the judgments of sentence, by per curiam order (No. 1100 Pittsburgh, 1985). I would affirm all three orders denying post conviction relief. Therefore, I respectfully dissent.
KELLY, J., joins.