Appeal from order of Superior Court, Oct. T., 1971, No. 1567, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1970, Nos. 1888, 1889 and 1890, in case of Commonwealth of Pennsylvania v. George G. Searles, Jr.
Barry J. Goldstein, with him Malcolm H. Waldron, Jr., for appellant.
Bonnie B. Leadbetter, Assistant District Attorney, with her Milton M. Stein, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien.
Appellant was sentenced on September 14, 1971, upon a conviction of a charge of assault with intent to rob, to a two to ten year term. The judgment of sentence was affirmed by the Superior Court on February 10, 1972. We granted appellant's petition for the allowance of an appeal to our Court because of our concern with the effects which Pennsylvania Rule of Criminal Procedure 312, the alibi-notice rule, had on his trial. His defense to the charge was one of alibi, the contention being that he was in a bar, Richard's Lounge, during the time the robbery was committed. Defense counsel gave the notice required under Rule 312 of his intention to assert the defense, but named as witnesses only appellant and one Dorothy McMillan. The witness, McMillan, was asked on cross-examination whether any others were present in the bar at the same time. She named a Mr. Lawton and a Mr. Monroe. When appellant was on the stand, he was asked: "Thinking back, can you think of anyone who can come into court and say they remember you being in the bar until quarter of 12:00?"
The defense objected and the following discussion took place at the side bar conference: "The Court: What is the basis of your objection? Mr. McNeal (defense attorney): I had planned to bring in several alibi witnesses. The Court: Had you notified the District
Attorney? Mr. McNeal: No, and Mr. Klein called my attention to the fact that I had not given him five days notice, according to the rules. Now he is proceeding to question the defendant regarding alibi witnesses, when he knows it's because of his request that I am not presenting them. The Court: Didn't your alibi witness testify to some other names, and she was asked the question, Did the defendant know these people, and she said yes? Now I don't know how -- Mr. McNeal: He has objected to the alibi witnesses because I didn't meet the five day rule. The Court: That's different, that's perfectly proper. He objects to your bringing in alibi witnesses because you haven't given him proper notice. That has nothing to do with the procedure of the trial of this case. I'm sure you would have objected, if the Commonwealth hadn't presented witnesses and they didn't give you the names, you would have an inference to charge to the jury that so and so is a witness and the Commonwealth didn't bring him in. I'm not saying that is the case, but I'm saying he is correct. Your objection is overruled."
When cross-examination of the defendant was resumed, the following took place: "Q. Did you discuss your whereabouts on June 27, 1970, with possibly a dozen other persons before you spoke to Miss McMillan or after you spoke with Miss McMillan? A. After I spoke with Miss McMillan. Q. Were any of these other dozen persons, to your knowledge, in the bar with you until about 11:45 on June 27, 1970? Mr. McNeal: Objection, Your Honor. The Court: Overruled. A. Yes, some were at the bar. Q. Some of them were? A. Yes. Q. What are their names? A. Thomas Monroe, Russell Peterson, Gene Thompson. That's all the names I can think of, offhand. Q. Do you know where to locate these people? A. Yes, I know. Q. Prior to this case
going on trial had you ever told Mr. McNeal the names of these people?"
Appellant argues that this cross-examination undertaken by the district attorney violates Rule 312(d), which states: "No adverse inference may be drawn against a defendant, nor may any comment be made concerning his failure to call available alibi witnesses, where such witnesses have been prevented from testifying by reason of this rule, unless the defendant or his ...