No. 751 April Term, 1978, Appeal from the Judgment of Sentence of February 27, 1978, of the Court of Common Pleas of Washington County, Pennsylvania, Criminal Division at No. 786 of 1976:
Before Van Der Voort, Spaeth And Watkins, JJ. Spaeth, J. files a Concurring Opinion.
Judgment of sentence is affirmed.
Spaeth, J. files a Concurring Opinion.
I join the majority's opinion but differ somewhat with its analysis of the issue regarding the bill of particulars.
In Commonwealth v. Russell, Pa. Superior Ct. , 395 A.2d 1365, 1366-67 (1978), we stated that "[the] function of a bill of particulars is to enable the accused to prepare for trial and to prevent surprise. Thus it has long been the law in Pennsylvania that the Commonwealth is restricted to proving what it has set forth in the bill." See Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972); Commonwealth v. Bartman, 240 Pa. Superior Ct. 495, A.2d (1976). Here, appellant requested that the Commonwealth describe the "overt act" he allegedly committed as part of the conspiracy. In response, the bill of particulars described a meeting between appellant and the police officers. At trial, however, the Commonwealth was permitted to prove a second meeting.
The majority suggests that this was permissible because "[the] Commonwealth's proof did not contradict the Bill of Particulars," adding that "[a] Bill of Particulars is not a specification of the evidence to be adduced." Slip op. at 4, 5. I believe that the proof did contradict the bill of particulars, and that as general rule, such proof should not be received. Here, however, appellant's attorney admitted that he was not surprised by the Commonwealth's additional proof. Had appellant's attorney not admitted this, I should have voted for a new trial.