dissenting:
I would affirm the trial court. Its order dismissing the charges was a proper discretionary remedy under Pa.R. Crim.P. 305 E. As the rule states:
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 defendant, or it may enter such other order as it deems just under the circumstances.
Here, the Commonwealth’s failure for ten weeks to comply with the court’s discovery order supports the sanction of dismissal. In all respects, it is an order “just under the circumstances.”
The record reveals that the trial court initially directed discovery on November 21, 1984. Yet, it was not until *305January 29, 1985, the day of trial, that the Commonwealth made any response to the order. The Commonwealth never noted its exception to the order until that day. It now would be anamolous to reward the Commonwealth with a continuance after its ten week disregard of a direct court order.
In Commonwealth v. Johnson, supra, now President Judge Spaeth observed that Rule 305 E “gives the trial court broad discretion in formulating remedies for a failure to comply with discovery requirements.” 310 Pa.Super. at 395, 456 A.2d at 933. On this record, it cannot be concluded that an abuse of discretion occurred. Because of the Commonwealth’s failure to provide the requested discovery materials, the court found that the defendant would have been deprived of his constitutional right to fair trial. Plainly, where such significant infringement has been occasioned, the Commonwealth has not established its entitlement to a continuance. Accord Johnson, supra, 310 Pa.Superior Ct. at 395, 456 A.2d at 993. Thus, the trial court’s dismissal was indeed a sound exercise of discretion.
In its dismissal order, the trial court noted:
After granting the Motion for Sanctions, this Court then looked to what remained of Commonwealth’s case. It was clear that by excluding the evidence covered by the Discovery Order, the Commonwealth would not be able to introduce statements by the Defendant____ In addition, the Commonwealth would not be able to introduce statements or testimony of its witnesses____
At this point, it was apparent that this case had become demurrable. In the interest of judicial economy, it would have been foolish to pick a jury and begin the trial only to have a demurrer granted. In addition, the District Attorney had repeatedly reminded everyone of the overcrowded criminal trial docket, so it was decided that the Dismissal of the charges was in the best interest of justice.
This well formulated order properly considered the circumstances surrounding the Commonwealth’s failure to comply *306with the discovery order and the absence of admissible evidence to deny a demurrer.
The majority apparently accepts the Commonwealth’s argument that the trial court should have held a hearing on the merits of defendant’s motion for sanctions. The record, however, discloses that neither a written nor oral request for a hearing was made in the trial court. This issue having been presented here for the first time is not properly preserved for appeal. See Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974).
Accordingly, I dissent.