Commonwealth v. Diana

455 Pa. 267 (1974)

Commonwealth v. Diana, Appellant.

Supreme Court of Pennsylvania.

Submitted March 12, 1973.

January 24, 1974.

Before JONES, C.J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

*268 W. Parker Ruddock, Public Defender, for appellant.

W. Thomas Malcolm, for Commonwealth, appellee.

OPINION PER CURIAM, January 24, 1974:

One of the assignments of error in this appeal from a conviction of burglary, larceny, pointing a deadly weapon, and robbery while armed is that the trial court committed reversible error in refusing to allow appellant's brother to testify as an alibi witness. The court's ruling was based on appellant's noncompliance with Pa. R. Crim. P. 312, which requires five days' notice to the Commonwealth of intention to raise the defense of alibi.

We have today declared Rule 312 to be unconstitutional. Commonwealth v. Contakos, 455 Pa. 136, 314 A.2d 259 (1974). See Wardius v. Oregon, 412 U.S. 470, 37 L. Ed. 2d 82 (1973). We must therefore reverse the order of the Superior Court and the judgment *269 of sentence of the Court of Common Pleas, and direct that a new trial be had.[*]

It is so ordered.

[*] In view of this disposition, we do not reach the other contentions made by appellant. We take this occasion to observe, however, that the District Attorney of Indiana County has not seen fit to file a brief on behalf of the Commonwealth either in this Court or in the Superior Court. It should not be necessary to state that counsel for the prosecution in a criminal case, no less than counsel for the defense, have an obligation to their clients and to the court to "represent a client zealously within the bounds of the law." Canon 7 of the Code of Professional Responsibility. The Code, of course, is a rule of this Court. See Pa. R.C.P. Rule 205 and Supreme Court Rule 17-3. The public prosecutor's responsibility under this Canon is delineated in ethical consideration EC 7-13 in the Code. The obligation to assist the court to a correct and just result which rests upon appellant's counsel in a criminal case [see section 3.2, Counsel on appeal, and comment f. thereto (the lawyer's duty to assist the court) of the American Bar Association's Standards Relating to Criminal Appeals (Tentative Draft, March, 1969)], lies equally upon counsel for the state.