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COMMONWEALTH PENNSYLVANIA v. BERNARD O'BRIEN (02/24/82)

submitted: February 24, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
BERNARD O'BRIEN, APPELLANT



No. 2475 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Section, of Luzerne County at No. 747 of 1980.

COUNSEL

John J. Thomas, Assistant Public Defender, Wilkes-Barre, for appellant.

Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Spaeth, Brosky and Beck, JJ.

Author: Spaeth

[ 303 Pa. Super. Page 191]

Appellant was found guilty by a jury of the offenses of aggravated assault, possession of an instrument of crime, and disorderly conduct. He was also found guilty by the court of the summary offense of public drunkenness. He argues, first, that the lower court erred in reading to the jury an incorrect point for charge submitted by the Commonwealth, and second, that he was improperly convicted of disorderly conduct as a misdemeanor of the third degree because the information only charged him with disorderly conduct as a summary offense. We find that the opinion of the lower court adequately disposes of appellant's first argument. However, we agree with appellant's second argument and therefore we vacate the judgment of sentence for disorderly conduct and discharge appellant as to that offense.

A purported variance between the indictment and the offense proved will not be fatal to the Commonwealth's case unless it could mislead the defendant at trial, involves an element of surprise prejudicial to the defendant's efforts to prepare his defense, precludes the defendant from anticipating the prosecution's proof, or otherwise impairs a substantial right of the defendant. Commonwealth of Pope, 455 Pa. 384, 317 A.2d 887 (1974). Generally stated, the requirement is that a defendant be given clear notice of the charges against him so that he can properly prepare a defense. Commonwealth v. Wolfe, 220 Pa. Superior Ct. 415, 289 A.2d 153 (1972).

Count 4 of the information charged appellant as follows:

And the District Attorney of the County of Luzerne further charges that Bernard O'Brien on the day and the year aforesaid, in said County, with intent to cause public

[ 303 Pa. Super. Page 192]

    inconvenience, annoyance or alarm, or recklessly creating a risk thereof, did make unreasonable noise on Searle Street, Pittstown, and used obscene language.

This was a charge of disorderly conduct as a summary offense, defined by 18 Pa.C.S.A. ยง 5503(a) as follows:

A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or ...


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