decided: January 24, 1974.
Appeal from order of Superior Court, April T., 1970, No. 482, affirming judgment of sentence of Court of Common Pleas of Indiana County, June T., 1970, No. 141, in case of Commonwealth of Pennsylvania v. James Joseph Diana.
W. Parker Ruddock, Public Defender, for appellant.
W. Thomas Malcolm, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
Author: Per Curiam
[ 455 Pa. Page 268]
One of the assignments of error in this appeal from a conviction of burglary, larceny, pointing a deadly weapon, and robbery while armed is that the trial court committed reversible error in refusing to allow appellant's brother to testify as an alibi witness. The court's ruling was based on appellant's noncompliance with Pa. R. Crim. P. 312, which requires five days' notice to the Commonwealth of intention to raise the defense of alibi.
We have today declared Rule 312 to be unconstitutional. Commonwealth v. Contakos, 455 Pa. 136, 314 A.2d 259 (1974). See Wardius v. Oregon, 412 U.S. 470, 37 L. Ed. 2d 82 (1973). We must therefore reverse the order of the Superior Court and the judgment
[ 455 Pa. Page 269]
of sentence of the Court of Common Pleas, and direct that a new trial be had.*fn*
It is so ordered.
Order of Superior Court and judgment of sentence reversed, and new trial directed.