concurring and dissenting.
I join the majority’s affirmance of the guilty verdict. However, I disagree with the majority’s analysis of Pennsylvania Rule of Criminal Procedure 352; therefore, I respectfully dissent.
The majority awards appellant a new sentencing hearing because the Commonwealth did not advise him at or before his arraignment pursuant to Pa.R.A.P. 352 that it intended to use his criminal record as a third aggravating circumstance notwithstanding that this information was obviously and clearly within appellant’s own personal knowledge. The purpose of Rule 352 is clear. “It is intended to give the defendant sufficient time to prepare for the sentencing hearing.” Comment, Pa.R.Crim.P. 352 (1992) (emphasis added). Here, jury selection began on November 26, 1990. The Commonwealth specifically became aware of appellant’s prior criminal convic*82tions on November 28,1990 and advised appellant’s counsel on that same date of its intention to use his prior convictions as an additional aggravating circumstance. Trial testimony did not begin until January 9,1991, five and a half weeks after the Commonwealth notified appellant’s counsel of its intention to use the additional aggravating circumstance at sentencing. On January 23, 1991 trial testimony concluded and the jury convicted appellant of first degree murder. The sentencing phase of trial itself did not begin until January 24,1991, nearly two months after the Commonwealth notified appellant’s counsel of its intention to use appellant’s criminal record as a third aggravating circumstance. Finally, on January 25, 1991, the jury sentenced appellant to death. Certainly, two months is more than sufficient time to prepare for sentencing. Accordingly, the Commonwealth clearly satisfied the purpose of Rule 352.
Moreover, the Commonwealth’s post-arraignment notification fell within the exception to Rule 352. Pennsylvania Rule of Criminal Procedure 352 provides:
The Commonwealth shall notify the defendant in writing of any aggravating circumstances which the Commonwealth intends to submit at the sentencing hearing. Notice shall be given at or before the time of arraignment, unless the attorney for the Commonwealth becomes aware of the existence of an aggravating circumstance after arraignment or the time for notice is extended by the court for cause shown. (emphasis added).
Pa.R.Crim.P. 352. Here, the Commonwealth immediately notified the defense of the third aggravating' circumstance when they became aware of it. Therefore, the Commonwealth clearly satisfied the exception to Rule 352.
The majority, however, holds that where information concerning a defendant’s prior felonious criminal history could have been discovered by the Commonwealth had it exercised reasonable diligence pre-arraignment, the prosecutor is barred from using such information if it is not disclosed at or before arraignment. Nothing in the plain meaning of Rule 352, however, imposes an affirmative duty upon the Commonwealth *83to conclude its investigative conduct, such as the ascertainment of a defendant’s criminal record, at or before arraignment. Rather, Rule 352 imposes upon the Commonwealth only the duty to disclose what they know at or before arraignment so as not to prejudice the defendant by inadequate time to prepare a defense to the aggravating circumstances. Here, the information was not known to the Commonwealth until after arraignment although appellant, as the convicted felon, had possessed this information for at least ten years prior to his trial. It is difficult to comprehend the majority’s harsh penalty upon the prosecution for a supposed lack of due diligence in learning the defendant’s prior record. It is even more difficult to comprehend the majority ascribing to the convicted individual a tabula rasa of ten years duration, which was only a decade later inscribed with a surprising reminder of his felonious misdeeds. There is no allegation of record that defense counsel was unaware of these convictions especially since the individual most aware of the convictions sat at counsel table with counsel.
Furthermore, the majority asserts that the Commonwealth’s notice of the third aggravating circumstance during jury selection prejudiced appellant because it possibly shifted the focus from jury selection to the sentencing phase. I would find that such a conclusion calls for sheer speculation given the facts of this matter. Notwithstanding that two months is sufficient time to prepare for the introduction of appellant’s criminal record at the penalty phase of trial, had the defense felt so burdened by the additional aggravating circumstance, it could have requested a continuance. Indeed, I submit that the defense’s failure to request a continuance in and of itself demonstrates that the defense felt unprejudiced by the post arraignment disclosure of the information. Moreover, this assertion of prejudicial distraction during jury selection is equally unpersuasive, especially where the Commonwealth notified the defense that they were seeking the death penalty on November 17, 1989, approximately one year and nine months before jury selection began. Surely, the defense was selecting a jury with that in mind.
*84This Court should not reward the defendant a new death penalty hearing where the third aggravating circumstance comes as no surprise to counsel or to the defendant. To the extent there may have been any surprise on behalf of the defense in learning of appellant’s prior history, such surprise was by virtue of defense counsel’s own failure to search the police files for these convictions, or simply to inquire of appellant this same information. The majority’s holding effectively elevates form over substance and raises technicality to a high art form. Accordingly, I dissent from the majority and would affirm the sentence of death.
MONTEMURO, J., joins in this concurring and dissenting opinion.