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decided: January 24, 1974.


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.


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 constitutional infirmity; hence, the result in Wardius is compelled here.

The Oregon statute and the Pennsylvania rule of criminal procedure are significantly similar in that neither provides for reciprocal exchange of alibi evidence.

[ 455 Pa. Page 140]

As noted before, this was the key factor in the United States Supreme Court's determination of Wardius. To further demonstrate this point the Court stated:

"But we do hold that in the absence of a strong showing of state interests to the contrary, discovery must be a two-way street. The State may not insist that trials be run as a 'search for truth' so far as defense witnesses are concerned, while maintaining 'poker game' secrecy for its own witnesses. It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State.

". . . Nor does the State suggest any significant governmental interests which might support the lack of reciprocity." [Emphasis supplied.] [Footnotes omitted.] Id. at 475-76, 93 S. Ct. at 2212-13.

It is clear from the face of Pennsylvania's notice of alibi rule and from the case law, that there is no reciprocity of alibi discovery in Pennsylvania. In Commonwealth v. Jackson, 224 Pa. Superior Ct. 280, 303 A.2d 519 (1973), the Superior Court faced this issue almost head on. There the defendant after submitting a timely notice of his alibi witnesses, requested the Commonwealth to present him with a complete list of prosecution witnesses. The trial court refused the request and the Superior Court affirmed the ruling stating: "Presently, the Pennsylvania Rules of Criminal Procedure do not require that the Commonwealth disclose the names of its witnesses to the defense. Until the Pennsylvania Rules of Criminal Procedure are amended, the defense has no right to the names of prosecution witnesses prior to trial." Id. at 285, 303 A.2d at 522.

The Commonwealth contends Wardius is distinguishable and not controlling here, because in Pennsylvania a criminal defendant is permitted limited pretrial

[ 455 Pa. Page 141]

    discovery, whereas in Oregon he is not.*fn4 While it is true that Pennsylvania, unlike Oregon, permits a criminal defendant limited discovery, this limited discovery is far too narrow to be considered as reciprocity for the defendant's forced disclosure of his alibi evidence. The Court clearly indicated in Wardius that the reciprocal right, the State must in turn grant to the defendant, is the privilege to discover the State's rebuttal witnesses pertaining to his alibi. The Pennsylvania rules are patently deficient in this respect.

The Commonwealth also places great reliance on the fact that Section 312(b) of the Pennsylvania Rules of Criminal Procedure does provide for an exception to the alibi notice rule if "the interests of justice require it." It asserts "it is obvious that if it would be a violation of due process to deny testimony of an alibi witness due to lack of notice, the interest of justice would demand that such a witness be allowed to testify." Section (b) of Rule 312 is substantially similar to the provision in the Oregon statute permitting the trial court to allow alibi evidence "for good cause" shown, even in the absence of timely notice. The United States Supreme Court in Wardius pertinently states at 478-79, 93 S. Ct. at 2214: "But the State cannot constitutionally force compliance with its scheme on the basis of a totally unsubstantiated possibility that the statute might be read in a manner contrary to its plain language."

The Commonwealth also argues Wardius is not controlling, because in Westmoreland County, the practice is to provide every criminal defendant with the names

[ 455 Pa. Page 142]

    of the Commonwealth's witnesses when notice is given of an alibi defense. The answer to this is, the constitutionality of a statute or rule of criminal procedure may not be allowed to depend on the good faith or largess of the Commonwealth.

The order of the Superior Court, and the judgment of the trial court are reversed; a new trial is ordered.


Order of Superior Court and judgment reversed, and a new trial ordered.

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