Commonwealth v. Russell

*169CERCONE, Judge,

dissenting.

I dissent. Those of appellant’s claims which require discussion arise out of the Bill of Particulars filed by the Commonwealth prior to trial. The Bill of Particulars reads as follows in pertinent part:

“(c) Defendant, with the use of a knife, stabbed the victim several times in the face and also caused cuts and/or abrasions to the chest and back areas.
(d) The defendant, in a reckless manner, using a weapon, to-wit: a sharp object, namely, a knife upon the body of one Thomas Vann Gusky.
(f) As set forth in prior paragraphs, reckless endangerment of the life and safety of one Thomas Vann Gusky by use of a knife, defendant then and there cut the victim in three separate places on his body causing severe injuries; namely, stab wounds, giving rise to the charge of Aggravated Assault and Recklessly Endangering Another Person.”

According to appellant, this limited the Commonwealth to proving that appellant himself inflicted the knife wounds. I agree. In Commonwealth v. Simione, 447 Pa. 473, 476, 477, 291 A.2d 764, 766 (1972), the court stated:

“The indictment returned by the grand jury accused appellant in language nearly identical to that of Section 4(q) of The Drug, Device and Cosmetic Act. The indictment alleged that appellant ‘did possess, control, deal in, dispense, sell, deliver, distribute or traffic in a narcotic drug: to wit: Hashish.’ .
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. Since the bill alleged only that appellant had committed a ‘sale’, the Commonwealth, absent an amend*170ment to the bill expressly allowed by the trial court[s], was limited to proving that appellant was guilty of a ‘sale.’ . . . Thus by reviewing all of the evidence, and viewing the evidence in the light most favorable to the Commonwealth, we must determine whether the evidence was sufficient to establish that appellant ‘sold’ a prohibited drug.”

The intention of the Commonwealth to rely on a theory of accomplice liability is information essential to preparation for trial, and is thus information which must be included in a Bill of Particulars, particularly since a presumptively innocent defendant, untrained in the law, can be expected to give the words in the Bill their ordinary meaning and to fail to anticipate the theory in the absence of specific notice. Therefore, instantly, the Commonwealth was limited to proving that appellant himself committed the acts constituting aggravated assault.1 Appellant contends that the evidence was insufficient to prove this. I disagree. Mr. Gusky testified, as we note supra, that he heard one of the assailants say “Terry, put the knife away.” And another Commonwealth witness, Charles James, who had been in appellant’s apartment at the time of the incident, testified that appellant came down the stairs afterward with a knife in his hand. This circumstantial evidence was sufficient at law to support a conclusion that appellant did the stabbing.2

However, I agree with appellant’s characterization of Charles James’ testimony as “confused and inconsistent” and would therefore sustain another of appellant’s contentions, that the court committed reversible error in instructing the jury that they could convict appellant if they found him to be an accomplice. I am unable to conclude from the record that this charge, erroneous in light of the Bill of Particulars, *171did not affect the verdict.3 Accordingly I would reverse for a new trial at which the Commonwealth will not be permitted to rely on a theory of accomplice liability unless it amends its Bill of Particulars.4

Judgment of sentence should be reversed and case remanded for a new trial.

. It is not contended that any of the injuries other than the knife wounds were serious enough to sustain the aggravated assault charge.

. The evidence was also clearly sufficient to establish accomplice liability.

. After the verdict, in the context of a discussion as to whether appellant’s bond should be revoked, the court stated:

“I will tell you that I don’t know whether you wielded the knife, but what happened is no good. It’s bad news and you were in on it.” The lower court’s discussion of the issue as to the charge, in its opinion, consists, in its entirety, of the following:
“The court’s statement was correct event though, apparently, Defendant himself committed the assault.”
The discussion of the other issues is equally unenlightening. I refer the lower court to Pa.R.A.P. 1925, which states the minimum requirements for an opinion in support of an appealed order. See also Commonwealth v. Warlow, 246 Pa.Super. 224, 369 A.2d 1293 (1977).

. Nothing said herein should be construed to preclude alternative pleading in a Bill of Particulars.