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COMMONWEALTH PENNSYLVANIA v. BRIAN K. ANTHONY. COMMONWEALTH PENNSYLVANIA V. BRIAN ANTHONY (07/19/88)

filed: July 19, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
BRIAN K. ANTHONY. COMMONWEALTH OF PENNSYLVANIA V. BRIAN ANTHONY, APPELLANT



Appeal form the Order entered May 16, 1986 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 84-09-867. Appeal from the Order entered May 16, 1985 in the Court of Common Pleas of Philadelphia County, at No. 84-09-867-868.

COUNSEL

Frances G. Gerson, Assistant District Attorney, Philadelphia, for Com., appellant (at 1565) and appellee (at 1723).

Mary M. Zell, Philadelphia, for Anthony, appellant (at 1723) and appellee (at 1565).

Olszewski, Kelly and Hoffman, JJ.

Author: Hoffman

[ 376 Pa. Super. Page 625]

These are consolidated cross-appeals from the judgment of sentence for aggravated assault. The Commonwealth contends that the trial court erred in arresting judgment on the felonious aggravated assault conviction and entering judgment for misdemeanor aggravated assault. In his cross-appeal, appellant-Anthony (hereinafter "Anthony") contends that the trial court erred in excluding the testimony of his alibi witnesses. For the reasons set forth below, we conclude that Anthony's cross-appeal is meritless. Because we agree with the Commonwealth's contention, however, we vacate the judgment of sentence for misdemeanor aggravated assault, reinstate the conviction for felonious aggravated assault, and remand for resentencing.

Brian Anthony was arrested on August 28, 1984 and charged with aggravated assault and related charges. Following a non-jury trial, appellant was convicted of felonious aggravated assault,*fn1 possession of an instrument of crime,

[ 376 Pa. Super. Page 626]

    carrying a firearm without a license, and recklessly endangering another person. Following argument on post-verdict motions, the court arrested judgment on the felonious aggravated assault conviction and entered judgment for misdemeanor aggravated assault. Anthony was sentenced to an aggregate term of twenty-three-to-forty-six months imprisonment. The Commonwealth filed a timely notice of appeal, challenging the arrest of judgment, and Anthony filed a cross-appeal.*fn2

I. ANTHONY APPEAL

In his cross-appeal, Anthony contends that the trial court erred in excluding the testimony of his alibi witnesses. The Rules of Criminal Procedure provide that a defendant who intends to present a defense of alibi must file a notice of intention to claim the defense. Pa.R.Crim.P. 305(C)(1)(a). The notice must specify the place or places where defendant claims to have been at the time the offense was committed as well as the names and addresses of witnesses who will testify to support the defense. Id. The purpose of the Rule is to insure "both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence." Commonwealth v. Fernandez, 333 Pa. Super. 279, 289, 482 A.2d 567, 572 (1984) (quoting Williams v. Florida, 399 U.S. 78, 82, 90 S.Ct. 1893, 1896, 26 L.Ed.2d 446 (1970)). Rule 305 further provides that

[ 376 Pa. Super. Page 627]

If the defendant fails to file and serve notice of alibi defense . . . the court at trial may exclude entirely any evidence offered by the defendant for the purpose of proving the defense, except testimony by the defendant, or may grant a continuance to enable the Commonwealth to investigate such ...


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