Appeals from judgment of sentence of Court of Common Pleas of Lancaster County, March T., 1968, Nos. 104, 105, and 111, in case of Commonwealth of Pennsylvania v. Donald M. Boyer, Jr.
Theodore S. Danforth, Public Defender, for appellant.
Henry J. Rutherford, Assistant District Attorney, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J.
[ 216 Pa. Super. Page 287]
A criminal complaint was lodged against Donald M. Boyer charging him and others with the crimes of burglary and larceny at the Leola Bowling Lanes in Leola, Pennsylvania. The criminal complaint stated: "3. The date when the accused [sic] the offense was on or about December 28, 1967 and the date of the week was Thursday (insert only if day of week is essential element of offense)." The Indictment which followed also charged the crimes to have been committed "on or about December 28, 1967".
Boyer filed a formal notice of alibi, stating: "1. The above named defendant intends to claim an alibi defense for each of the dates involved in the counts listed above. 2. For the night of Thursday, December 28, 1967, he will show by his mother, Mrs. Donald Boyer, Gordonville, R. D. #1, Pennsylvania, that he was at the home of his parents at Gordonville, R. D. #1, Pennsylvania." The case then proceeded to trial on the above Indictment and two other Indictments charging defendant with burglaries and larcenies on January 7, 1968, to which crimes defendant also interposed the defense of alibi.
As to the burglary and larceny alleged to have occurred on December 28, 1967, State policeman Robert Haycock testified he arrived at the Leola Bowling
[ 216 Pa. Super. Page 288]
Lanes at 9 A.M. on the morning of December 28, a Thursday, and found the place burglarized. He could not testify as to when this burglary and larceny occurred.
However, written statements and the testimony of co-defendants who pleaded guilty and testified in defendant's behalf, revealed the crimes to have occurred on the night of December 27, 1967. Consequently, that evidence, together with the testimony of Trooper Haycock, made defendant's alibi for the night of December 28 completely ineffectual.
The Commonwealth did not explain why it had alleged, in the Criminal Complaint and in the Indictment, that December 28 was the date of the crime, when it knew, from information received in the case, that the actual date was December 27. It did not contend it had erred. It made no attempt to prove the crimes were committed on December 28, nor did it move to amend the indictment to allege December 27 as the date of the crime. The Commonwealth merely chose to ignore the variance.
Defense counsel made a motion to quash the indictment by reason of the variance between the allegata and probata which motion the court below refused. The jury returned a verdict of guilty on all three indictments. Defendant then moved for a ...