
    Commonwealth v. McCleary, Appellant.
    Argued March 11, 1974.
    Before Watkins, P. J., Jacobs, Hoppman, Cercone, Price, Van der Voort, and Spaeth, JJ.
    
      
      Lawrence C. Zeger, for appellant.
    
      John R. Walker, District Attorney, for Commonwealth, appellee.
    June 21, 1974:
   Opinion

Per Curiam,

This is an appeal from the judgment of sentence of the Court of Common Pleas of Franklin County after conviction by a jury of assault and battery and indecent exposure; and from the refusal of post-trial motions.

The court refused to permit alibi witnesses to testify because of the failure of the defendant to comply with Rule 312, Pennsylvania Rules of Criminal Procedure, requiring five days notice of the defense of alibi. Commonwealth v. Contakos, 455 Pa. 136, 314 A. 2d 259 (1974), was decided by the Supreme Court subsequent to the trial of this case but prior to its finalization on appeal, on January 24, 1974, holding the rule in question to be unconstitutional.

The judgment of sentence is reversed and a new trial ordered.

Hoffman, J., took no part in the decision of this case.  