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COMMONWEALTH v. CONTAKOS (01/24/74)

decided: January 24, 1974.

COMMONWEALTH
v.
CONTAKOS, APPELLANT



Appeal from order of Superior Court, April T., 1972, No. 211, affirming judgment of Court of Common Pleas of Westmoreland County, April T., 1970, No. 60, in case of Commonwealth of Pennsylvania v. Samuel C. Contakos.

COUNSEL

Herman M. Rodgers, with him Rodgers, Marks & Perfilio, for appellant.

Morrison F. Lewis, Jr., Assistant District Attorney, with him Albert M. Nichols, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen.

Author: Eagen

[ 455 Pa. Page 137]

On March 3, 1971, Samuel C. Contakos was convicted by a jury in Westmoreland County of the crime of sodomy. Following the denial of post-trial motions and imposition of sentence, a direct appeal was filed in the Superior Court which later affirmed the judgment by a per curiam order. We then granted allocatur.

At trial Contakos denied committing the offense and testified to an alibi. When he attempted to introduce the testimony of a friend to corroborate his alibi testimony, the district attorney objected because of the failure to give timely notice in accordance with the requirements of Rule 312 of the Pennsylvania Rules of Criminal

[ 455 Pa. Page 138]

Procedure.*fn1 The objection was sustained and the testimony of the witness was rejected. In view of the ruling of the United States Supreme Court in Wardius v. Oregon, 412 U.S. 470, 93 S. Ct. 2208 (1973), we conclude Rule 312 of the Pennsylvania Rules of Criminal Procedure is unconstitutional, as violative of the Due Process Clause of the Fourteenth Amendment of the Federal Constitution. Hence, enforcement of the rule in the instant trial proceedings requires the grant of a new trial.

In Wardius, the Court reversed a criminal conviction of an accused who was denied the opportunity of introducing alibi evidence because of failure to give timely notice as required by an Oregon statute.*fn2 In

[ 455 Pa. Page 139]

    part the Court stated: "We hold that the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants. Since the Oregon statute did not provide for reciprocal discovery, it was error for the court below to enforce it against petitioner, and his conviction must be reversed." Id. at 472, 93 S. Ct. at 2211.

While there are some basic differences between the Oregon notice of alibi statute and Rule 312 of the Pennsylvania Rules of Criminal Procedure,*fn3 these differences are without legal significance. The Pennsylvania rule and the Oregon statute both suffer from the same ...


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