Appeal from judgment of Court of Quarter Sessions of Washington County, July T., 1965, No. 153, in case of Commonwealth of Pennsylvania v. Willard Shider.
George B. Stegenga, for appellant.
William D. Phillips, Assistant District Attorney, with him Harold V. Fergus, District Attorney, for Commonwealth, appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Wright, J. Montgomery, J., would affirm on the opinion of the court below.
[ 209 Pa. Super. Page 134]
On September 10, 1965, Willard Shider was indicted by the Grand Jury in the Court of Quarter Sessions of Washington County on a charge of indecent assault. Timely notice was filed under Pa. R. Crim. P. No. 312 of the intention to offer the defense of alibi. This notice set forth the names and addresses of two witnesses. The trial judge refused to permit Shider's wife to testify in support of the alibi on the ground that her name had not been listed as a witness in the notice. The jury returned a verdict of guilty. Motions in arrest of judgment and for a new trial were dismissed, and sentence was imposed. This appeal followed.
Appellant's first and principal contention is that the refusal of the trial judge to permit his wife to testify as to the alibi defense constituted reversible error. The issue thus raised requires an interpretation of Pa. R. Crim. P. No. 312 which is set forth in the footnote.*fn1
[ 209 Pa. Super. Page 135]
It will first be necessary to briefly summarize the trial record.
Mrs. Elizabeth M. Bitzer, a widow 80 years of age, testified that she lived alone in a third floor apartment in Charleroi. Access to this apartment was by means of two flights of stairs. On the evening of June 6, 1965, Mrs. Bitzer was returning from a visit to the office of her physician. She stopped on the sidewalk near her apartment and talked with a neighbor, Mrs. Angeline Ferrarri. This conversation terminated "between quarter after ten to twenty after". Mrs. Bitzer then started up the stairs. On the second flight she was accosted by a man who "grabbed me and held me up under my dress". When she entered her apartment after the incident, Mrs. Bitzer looked at her clock and the exact time was 10:35 P.M. Mrs. Ferrarri testified that she noticed a man follow Mrs. Bitzer into the apartment building, heard Mrs. Bitzer scream, and
[ 209 Pa. Super. Page 136]
then saw the man drive away in a station wagon. Mrs. Mary Pazinski, who resided on the second floor of the apartment building, heard Mrs. Bitzer scream and saw a man get in the station wagon. All three ladies identified the man as Willard Shider.
Mrs. Gloria Jean Shider was permitted to testify only that she lived with her husband and young daughter in Belle Vernon, three and one-half miles distant from Charleroi, and that her husband was employed at the Allenport Mill, a distance of five miles in a somewhat different direction. Mrs. Katherine Allessio testified that the Shiders lived "right in back of me"; that at 10:30 on the evening of June 6, 1965, after watching the Candid Camera program on television, she went outside and saw Mr. and Mrs. Shider come out on their porch; that Mr. Shider was dressed in his work clothes and was carrying a lunch bucket; that she had a conversation with him; and that Mrs. Shider stood on the porch and watched her husband ...