No. 1224 October Term, 1979, No. 1304 October Term, 1979, Appeal from Order entered May 8, 1979 in the Court of Common Pleas, Criminal Division of Delaware County at No. 6399-78.
David E. Fritchey, Assistant District Attorney, Media, for Commonwealth, appellant at No. 1224 and appellee at No. 1304.
Louis J. Sinatra, Media, for appellant at No. 1304 and appellee at No. 1224.
Spaeth, Cavanaugh and O'Kicki, JJ.*fn*
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During the early morning of December 26, 1978, a fight broke out in a taproom known as the "Fun House" located in Linwood, Delaware County. Four participants were involved, including Terrence Nacrelli (defendant in the court below and an appellant and appellee in the cross appeals in this court) and Peter Riberio, the alleged victim in the criminal case in which Nacrelli was the defendant below. After the fighting started, the police were called and when they arrived Nacrelli and Riberio were in the men's room wrestling on the floor. Nacrelli was on top of Riberio, whose face was badly cut during the fight with a piece of glass which Nacrelli allegedly held in his hand.
As a result of the altercation, criminal complaints charging aggravated assault and related offenses were filed against all four participants. Peter Riberio testified against Nacrelli at a joint preliminary hearing before a district justice after being advised by his own attorney that as a
[ 280 Pa. Super. Page 341]
defendant he had an absolute right to remain silent. Riberio described the injuries to his face as follows: "As we were on the floor, I felt his hand with glass in it go across my face" (N.T. 40) and further, "All I know, there was a glass in his hand at the time when we were fighting and he used it" (N.T. 40).
Counsel for Nacrelli engaged in extensive cross examination of Riberio and finally Riberio's private counsel advised his client not to answer any more questions as he was a defendant. Riberio invoked his Fifth Amendment right and refused to testify further on cross examination at the preliminary hearing because he was a defendant. (N.T. 64).
Appellant, Nacrelli, was charged with aggravated assault and related offenses. On May 8, 1979, the court below entered an order directing that the Commonwealth shall not call Peter Riberio as a witness at the trial of Defendant Nacrelli as a sanction because Riberio would not allow himself to be cross examined fully at the preliminary hearing. The court based its order on Pa.R.Crim.P. 305(E) which provides as follows:
Rule 305. Pretrial Discovery and Inspection
(E) If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the ...