Anonymous letters are beneath contempt. No courage.

Dear Prisoner ES6859/Favorite victim of Lynne Abraham,

Good riddance, ‘Kathy Lawrence’
PS – Your website is inspirational… it gave us all quite a good laugh.

Joel Rosen left the DA’s office in disgrace. When last heard from, his ‘handsome’ face was chasing ambulances.

He who laughs last, laughs longest.

The court is now doing all it can to prevent a key issue in my case: the illegal taking of 63 volumes of personal diaries from my apartment on March 29, 1979, from surfacing.
Material of such nature can’t be used in court as it is fifth amendment protected. A basic right against self-incrimination and one of the first ten amendments to the constitution and the basis for the unique form of freedom – when observed – that citizens of the USA enjoy.
The material was taken under the aegis of a poisonous warrant.
It was then given to a journalist, Steven Levy. Such behaviour is unprecedented in American law as evidence is sacrosanct and supposedly protected under bond of law. His use of such stolen property is plagiarism among other crimes.
All of this is described clearly in my pro-se petition.
It is a legal horror story that my two closest prosecutors, posing as lawyers, William Cannon and Mitchell S. Strutin, ‘missed’, though the series of actions would have given any first year law student apoplexy.
The diaries were used at the trial and dominated the trial. Egregious prosecutorial misconduct and legal error on the part of Mitch and bill that would bring about hara-kiri in Japan. When they were history, I immediately tried to reclaim my property.

I am public enemy no. 1, so the DA avoided the motion for a year, then tried to time bar me and added an insult as part of the process. A continuous ad hominem attack that has gone on for almost three decades and was furthered by the DA’s office illegally giving my diaries to a writer to use against me for his own purposes.
See page 32 for the DA’s insult. It has nothing to do with the law and is indicative of their bankruptcy.

The judge has refused to put anything on paper, thus avoiding the basic function of the law. To commit rulings to paper, so they can be discussed and appealed when necessary.
When a petitioner submits a motion to a court, a judge must rule on it. That is the function of the court. That ruling must then be put in writing and sent to the petitioner.
Judge Palumbo has not ruled on:
1. my asking for additional time
2. my in forma pauperis petition
3. my motion itself.
Or to be more accurate, he has ruled on all three matters, but has not taken the trouble to inform the petitioner in writing, an abrogation of his basic function and a destruction of the basic due process rights of the petitioner.
I have appealed the matter and sent a copy of the appeal to the present judge and a number of other people of note.
Yet, technically you can’t appeal unless you have a written order. Knowing this and suspecting that the judge would never issue one, or issue it too late (sorry, you are time barred is the bane of so many of those fighting an unjust system), I asked leave to appeal from his verbal order which he granted, but you can’t get a transcript without a signed in forma pauperis order which the judge never signed and without a transcript – a record of what happened – you can’t perfect an appeal.
Yet I sent the appeal in, explaining the defects, including a secondary (copy) cover sheet, asking that it be date stamped and returned to me in a SASE that I included with the appeal.
That was three weeks ago. My SASE has not come back.
The motion about my property that you will find below is mainly factual. The law I used is simple and straightforward. The principle is clear; if something is not contraband, it must be returned.
The pages were written in response to a three part submission by a SA that I can sum up very concisely: the sum total of the Commonwealth’s argument adds up to the following:
A. an argument based on fallacious facts.
B. an argument based upon conflating a return of property hearing with a forfeiture hearing, using as support a case that has little relevance in our court system.
C. an insult that is based on the total misstating of the actual factual situation.

In situation after situation, the court has acted towards me in a manner that an objective observer would describe as subterfuge.
It is the tonus of Pensylvania courts in too many instances as the article below illustrates:

International Herald Tribune, February 14-15, 2009, p. 5

While prosecutors say that Conahan, 56, secured contracts for the two centers to house juvenile offenders, Ciavarella, 58, was the one who carried out the sentencing to keep the centers filled.
“In my entire career, I’ve never heard of anything remotely approaching this,” said Senior Judge Arthur Grim, who was appointed by the state Supreme Court this week to determine what should be done with the estimated 5,000 juveniles who have been sentenced by Ciavarella since the scheme started in 2003. Many of them were first-time offenders and some remain in detention.
The case has shocked Luzerne County, an area in northeastern Pennsylvania that has been battered by a loss of industrial jobs and the closing of most of its anthracite coal mines. It raised concerns about whether juveniles should be required to have counsel either before or during their appearances in court and whether juvenile courts should be open to the public or child advocates.
If the court agrees to the plea agreement, both judges will serve 87 months in federal prison and resign from the bench and bar. They are expected to be sentenced in the next several months.
Since state law forbids retirement benefits to judges convicted of a felony while in office, the judges would also lose their pensions.
With Conahan serving as president judge in control of the budget and Ciavarella overseeing the juvenile courts, they set the kickback scheme in motion in December 2002, the authorities said. They shut down the county-run juvenile detention center, arguing that it was in poor condition, the authorities said, and maintained that the county had no choice but to send detained juveniles to the new private detention centers.
Prosecutors say the judges tried to conceal the kickbacks as payments to a company they control in Florida.
Though he pleaded guilty to the charges Thursday, Ciavarella has denied sentencing juveniles who did not deserve it or sending them to the detention centers in a quid pro quo with the centers. But Assistant U.S. Attorney Gordon Zubrod said that the government continued to allege a quid pro quo.
“We’re not negotiating that, no,” Zubrod said. “We’re not backing off.”
No charges have been filed against executives of the detention centers. Prosecutors said the investigation into the case was continuing.
For years, youth advocacy groups complained that Ciavarella was unusually harsh. He sent a quarter of his juvenile defendants lo detention centers from 2002 to 2006, compared with a state rate of 1 in 10. He also routinely ignored requests for leniency made by prosecutors and probation officers.
“The juvenile system, by design, is intended to be a less punitive system than the adult system, and yet here were scores of children with very minor infractions having their lives ruined,” said Marsha Levick, a lawyer with the Philadelphia-based Juvenile Law Center.
“There was a culture of intimidation surrounding this judge, and no one was willing to speak up about the sentences he was handing down.”

I was told Friday there will be many more arrests to follow. Given my egregious experience, I am not surprised.

February 22, 2009

There is no law in Pennsylvania for Ira the Pariah as this letter demonstrates and the failure of Senator Greenleaf to answer this letter illustrates. The judicial system is as bankrupt as Wall Street and as much in need of transformation as anyone inquiring into how I am being treated by the courts will quickly discover.

November 12, 2008

Senator Stewart J Greenleaf
711 York Rd
Willow Grove
PA 19090

Dear Senator Greenleaf,

I am writing to call your attention to the on-going legal travesty (only word that fits) that I am presently experiencing.
I know how busy you are, so I am sending only one tusk of the elephant as documentation, but if needed, I can send you as much of the elephant as you want to see.
The bias is so extreme that a good friend, who is one of Pennsylvania’s best lawyers, has told me again and again 3 things:
1. No Pennsylvania lawyer will do anything to defend me for fear of what might happen to his/her other clients;
2. No judge will do anything but avoid confronting the issues due to the climate that has been created around the case by the media and the judicial system itself;
3. The Superior Court decision was pure posturing, has nothing to do with the law and everyone in the legal community knows it.

I am experiencing exactly what he so succinctly described in every interaction with the court as demonstrated below.

During the pre-trial proceedings of a case that was the most highly publicized in recent Pennsylvania history, the prosecutor Joel Rosen made the following statement: “And what has happened in this case – and I challenge defense counsel or anybody else to cite any case ever – and I really do mean that – ever in the State of Pennsylvania – possibly the whole country – that has so personalized and so sensationalized not just the case but a defendant.” N.T., 9/10/2002, p. 37, L. 20-25.

That did not stop him from helping create an egregious incident that would produce a mistrial or an absolute dismissal in any other case. See exhibit one and Remmer v. U.S., 350 U.S. 377, 381, 76 S Ct. 435 (1956). The judge should have put Ms. Lineberger on the stand. It was an abuse of discretion not to do so. Taking the hint, my lawyers conveniently forgot the issue.

Judge Mazzola was alert to the fact that three (3) people testified to seeing a dead woman six (6) months after her death. Thus, asked by neither side for such an instruction, he told the jury that the time of death was not an essential part of the crime though both sides built their entire case around the date of death, set in stone for over twenty (20) years.
These sightings were kept from the defense by the infamous Barbara Christie who blew down the pages of a report, thus removing the page numbers. She then removed the exculpatory pages. It took many court hearings to get some of them, but not all of them. We did not get the other sightings until 2002. The sightings involved two (2) Philadelphia police detectives. One detective died before we received the information, thus creating a Brady violation.
The judge then took 29 months to file his 1925(a) statement that was 218 pages long: an emblem of what a judge should not do.

The Einhorn Law is unconstitutional; every independent Pennsylvania legal expert will tell you so. No higher Pennsylvania Court has ruled on the issue. The Supreme Court has ducked it twice; the Superior Court said it would not rule on the merits as it could not grant the remedy. A farce as you can’t deal with remedy until you rule on the merits. It is also an absolute avoidance of what a court exists to do if it has jurisdiction. Not to do so is an extreme due process violation.
In retrospect, with four (4) years of intense legal study behind me, my lawyers now feel as if they were closet prosecutors.
There are about ten other major issues, but I want to focus on recent matters as they illustrate the court’s disinclination to deal with me.

Property issues
A. My wife purchased clothes for my trial which I asked Bill Cannon to return to me for safe-keeping when my trial was over. He refused, though I kept writing to him about it. Four (4) years later, he gave a friend of mine some clothes that were not mine. They were returned.
I took him to small claims court. He admitted that the clothes that he ad returned were not mine. The case is simple and clear. Instead of ruling, the judge took the case under advisement. That was almost 5 months ago.
B. Sixty-three (63) volumes of diaries – 5th amendment protected material – were taken from my apartment in March of 1979 under the auspices of a general search that produced a poisonous second warrant. See exhibit 2.
The diaries never should have been taken. You can’t use 5th amendment protected material as Davis makes clear. All U.S. Supreme Court diary issues underline this principle in a vehement matter.
Then this material taken under warrant was given to an author – Steven Levy – to publish and use for his own gain. My private property given to another to use for his own personal gain!! There is nothing similar in over two hundred (200) years of American case law.
Then the fifth amendment tainted material was brought into court and used.
My lawyers were asleep or worse, but I forced them to ask for the unused diaries back as they contained Brady material. We were fobbed off.
Thus my own fifth amendment protected material were basically denied us.
I kept pushing my lawyers (knowing no law, but operating on intuition).
As soon as I began studying the law, I could not believe that two (2) lawyers with over sixty (60) years of experience between them could have mussed such obvious first, fourth and fifth amendment violations.
As soon as I was fee of my lawyers, I filed a motion for return of property that exhibit 3 described. I was ignored, then insulted. Then ignored again until a letter to the judge produced a brief letter.
Look at section C on exhibit 4. It is pure insult from the DA Beth Grossman. An insult that contains no facts; I also demonstrated, in the fifty-one (51) page motion that I filed in rebuttal, that her opinion about lack of interest is 100% wrong.
Exhibit 5 is the letter I received from the judge’s clerk. It is ludicrous as a prisoner can’t arrange his own video hearing.
Exhibit 6 is my response.

I do not know whether the hearing was held, without me, on November 6th, 2008.
On November 7th, 2008, I received the court’s response to my affidavit, reproducd in exhibit 3.
On that day (11/7/08), I received two letters informing me that I had a hearing on 11/6/08. The first such information from the court.

I did not kill Holly Maddux, but that now seems besides the point as I continue to be subjected to the color of the law without taste and flavor. A law without law that few any longer respect.
I have also been waiting over a year for the PCRA court to appoint a lawyer/
I may wait years for there does not seem to be any law in Pennsylvania for Ira the Pariah.

I will provide you with any additional information you require and treat all letters as confidential.

Peace,
Ira Einhorn

Related letter

January 13, 2009

Dear Professor Fried,

The inherent flaws in any justice system have been exacerbated by the ‘air’ of anything goes that 8 years of the Bush Administration has created.
Those of us who have been treated in a way that would make our founders weep can’t wait for the soothing balm of history, for I am surrounded by victims of the Miasma that W and his cohorts created by acting as if law was a convenience that the ‘guilty’ did not deserve, although a lot of those ‘guilty’ are indeed innocent as I and a lot of people serving time with me are not guilty.

There is a systematic rot throughout the judicial system that must be exposed if we are to survive as a healthy society. No witch hunt, but calm exposure of the law breaking, so that we might come to an understanding that prevents future behaviour that no decent legal system can sustain.
I am enclosing one example of what has been done to me.

In addition the Pennsylvania legislature passed the Einhorn Law overturning a final decision of a court. It is an egregious violation of the separation of powers. A violation that Pennsylvania courts have refused to rule on, though the issue is of constitutional import and the case is the most publicized in Pennsylvania history.

The PA. Superior Court, in a violation unprecedented in the case law, refused to rule on the merits of the issue by declaring they could not grant the remedy. An abrogation of the basic responsibility of the court’s function: to rule on the merits of an issue that is properly before them. It is, also, a due process violation you could drive a truck through.
Thirty years ago, approximately 12,000 page of first, fourth and fifth amendment protected diaries were seized as a result of a general search that led to a poisonous second warrant.
They then gave these diaries to a journalist who used them (quoting from them extensively) to publish a very biased book against me. Property taken under warrant, then given to an uninvolved party who used my first and fifth amendment protected work for his own profit.
Some of this published material was then introduced into evidence.

They are now refusing to give any of it back, even the 60 vols. that were never used and predate the alleged date of the crime. Their only argument, which of course has no legal support: I have applied for a PCRA. So, the implication is that they are holding 12,000 pages of intimate diaries on speculation.
The court itself is aiding this attempt to sequester my property, my life’s work, by refusing to issue any orders which makes it difficult to file a valid appeal.
A smidgeon of what has been done to me and others who are not the pariah I have become. [Google: Ira Einhorn].
That is why I and many others want the process of accountability to begin. The air must be cleared. A Rule of Law must return to all courts.

Peace,
Ira Einhorn

Enclosure: Bullshit bag testimony.

The issue of the separation of powers and its unconstitutional violation by the passing of the Einhorn Law looms largely in my case.

It is also in the news at present as a result of the FBI’s invasion of the office of a member of the House of Representatives.

Thus it is worth taking some time to explain the concept which lies at the very basis of our form of government.

The modern history of the development of our form of government emerged from the desire to restrain the power of the rule of one, or in or most immediate history: the king. This attempt to restrain the king has a long history in England and reaches a climax with the actual trial and beheading of a king during the mid 17th century.

That action is as exemplary an act as one can find in recent annals of western political thought, for it asserts the right to question authority at the deepest level and must be seen as a precursor to both the American and French Revolutions.

It also stirred up much discussion about the nature and type of government that would be adequate in a society that was slowly leaving the remnants of its feudal ways and entering the industrial revolution.

Two concepts come up again and again in this discussion as it was held among political thinkers during the 17th and 18th century in England and Europe and then those gathered in Philadelphia to turn a confederacy of states into a more perfect union: A great concern to limit the power of the executive, as the ‘tyranny’ of King George was paramount in everyone’s mind; a way to maintain the separation of powers among the executive, legislative and judicial branches of the envisioned government, as a means of providing a check on all three branches by limiting each to a particular limited realm of power.

The debate both before and after the constitutional convention, held during a hot Philadelphia summer, is unequaled in the quality of discussion about how propertied free white men can best live together in freedom and tranquility.

It was a positive movement in spite of its neglect of the majority of people (Blacks, Indians, Women) who shared the space of the discussers.

The principle of the separation of powers was basic to the political construction that our founders created. It has remained so to this day. The principle has been protected again and again by both the federal and Pennsylvania Supreme Court.

The case law is clear: A law that violates the separation of powers is unconstitutional.

The Philadelphia DA’s office knew this when they proposed the Einhorn Law and the Pennsylvania Legislature knew this when they passed the law, but mob rule prevailed as it has prevailed since 9/11 in issue after issue as a frightened polity was stampeded into an egregious war and a Patriot Act that demeans the very basis of what this country has attempted to stand for before W and his neo-con crew took over.

We don’t do torture. We don’t spy on innocent citizens. We don’t massacre civilians. We respect the Geneva Convention.

WE BELIEVE IN A RULE OF LAW

Or we used to until W took over.

The reason for maintaining the separation of powers is easy to maintain on a practical level:

1. I was tried in absentia for reasons that were never explained.

2. My court decision became final.

3. Only a court can overturn a final decision.

4. If the legislature is allowed to do so that would allow someone who has lost a civil suit to go to the legislature and have a law passed that would overturn the losing decision.

5. But then the original winner could have another law passed, and

6. There would never be any closure.

That is why the Einhorn Law is unconstitutional: It attempts to overturn a final judicial decision with a legislative act.

By doing so it tramples all over the separation of powers and grinds judicial prerogatives into the dust.

Any honest judge would react in horror, as has every lawyer who has looked at the situation.

The law is a very formal enterprise. It is based upon precedent and accepted principles. It should be blind in the application of its principles. Ira Einhorn should not be treated differently than anyone else, publicity (most of it factually inaccurate) notwithstanding.

The law not the mob should rule.

Both the law and our legal tradition must be maintained.

The Einhorn Law flaunts these principles and casts distain upon the law just as W and his minions have brought distain to our history by lying about Iraq and fostering a context in which torture, massacre and denial of any due process can take place.

Our system has been placed under great strain by people who have traded expediency for honor, and usurped power that is not theirs.

We must have the courage to rid ourselves of these traitors to our heritage, just as the founders had the courage to rid themselves of King George.

What has been done in our name has demeaned our past; we must not allow it to demean our future.

Due process in legal matters is what separates barbarity from civility. It along with the concept of Habeas Corpus form cornerstones upon which our law used to be built.

Then along came W. Nero Bush who has destroyed the American constitution, with much complicity from our elected representatives, during the last 5 years.

What has happened at the national level is echoed in Pennsylvania wherein many innocent men and women are doing hard time for crimes they did not commit and suffering egregious violations of due process as the basic foundations of our law disappear in a concerted effort to strip protection from those fighting for their freedom.

I can illustrate this process from my own case, for it is the one I know best.

My original prosecutor, Barbara Christie, withheld Brady (exculpatory) material from us under discovery, employing a subterfuge to do so.

She took a private report (paid for by the Maddux Family), generated by two ex-FBI agents, reduced the size of the pages, thus allowing her to disappear the page numbers and remove five sightings of my supposed victim, made six months to a year after the prosecution claimed Holly Maddux was killed. A claim that they maintained for 23 years thus fixing the date in stone.
It took many court hearings to uncover the exculpatory material due to us, BUT, two of the reported sightings (made by two Philadelphia police detectives) were withheld until 2002.

Ms. Christie also refused to allow forensic results to stand on their own merits as twice (the FBI and Toxicon Associates) failed to produce results that supported her contentions. The man skipped over, Dr. Tumosa, to allow the more prestigious outside labs to have their say, did the 3rd round of testing. He achieved some partial results, BUT, the results came from a procedure (a new test he invented) that no honest court of law could accept as the procedure was never published or peer reviewed, which violates both standards that rule in our courts: Frye and Daubert.

I did not kill Holly Maddux, but the continuing due process violations made me aware that I would not receive a fair trial, so I left.

While I was away, the DA handed over 60 volumes of my journals to a writer, Steven Levy, who used stolen material for his own profit while writing a damning one-sided book about me. Of course such tainted evidence should have been excluded from the trial.
The journals had been seized under warrant as evidence; the act of their being given to a journalist for publication is unique in American case law as is the unconstitutional Einhorn Law which DA Lynn Abraham caused to be passed by the Pennsylvania legislature in order to trick the French into sending me back to the USA.

My appointed closet prosecutors, Strutin and Cannon, were loathe to challenge Judge William Mazzola in any way, so they placidly allowed him to forego pre-trial testimony on the Journal Issue as he knew how explosive it was, then failed to challenge the use of the journals on two other very solid grounds: chain of custody and the DA’s allowing pre trial publication of evidence seized under warrant, thus tainting the evidence and exposing the defendant to unprecedented pre-trial publicity generated by the prosecution.

“And what has happened in this case – and I challenge defense counsel or anybody else to site any case ever – and I really do mean that – ever in the state of Pennsylvania – possibly the whole country – that has so personalized and so sensationalized not just the case but a defendant.”

NOTES OF TESTIMONY 9/10/2002, Joel Rosen, prosecutor

My closet prosecutors also failed to challenge Dr. Tumosa’s obviously bogus test.
If they had done correct legal work, most of the prosecution evidenced would have been excluded from the courtroom.

Judge Mazzola also functioned as a prosecutor: while I was testifying Asst. DA Carmen Lineberger held up a 12X4 inch bag with the letters “Bullshit Bag” inscribed on it. That is what my counsel was told. When they complained about this and asked her to be questioned under oath, the judge refused as it was obvious grounds for dismissal.

In my defense, we presented 3 of the people who saw Holly, alive, long after her supposed death. One had died. Then we presented women who had spent nights and weekends with me while the body of the deceased supposedly lay within 10 feet of us, producing a smell that the medical examiner, Halbert Fillinger, described to the jury as being impossible to sustain for 10 minutes. No one smelled anything.

It had to be obvious to the jury that Holly was not killed on the date that the prosecution insisted on, but all of their case upon and that all of our defense was predicted upon. It was also obvious to Judge Mazzola, so in his charge to the jury, changing the indictment, he told them that the date of death was not an essential element of the crime.

This destroyed my defense.

After my conviction, he broke all law and precedent by reseating the jury in its box and invited microphones and TV cameras into the courtroom. Cannon and Strutin were shocked, but I’m a pariah and thus fair game. There is no law that applied to me in Pennsylvania. Anything can be done.

By statute Judge Mazzola was supposed to file his 1925(a) statement “forthwith”. He took 29 months. He assumed the role of a second prosecutor. Strutin and Cannon were silent, so I filed 9 motions. The judge was six months is contempt of court re: 2 court orders to file, when his untimely brief was finally filed it should not have been considered by the Superior Court. In the history of the case both Judge Mazzola and my closet prosecutors lied about the 9 docketed motions I filed.

The superior court decision was politics not law, based upon a tissue of lies and fallacious reasoning. I will parse it in another article.

My case is an emblem of what American behavior has become both inside and outside of court. The following quote from the New York Review Of Books, January 11, 2007 describes rendition in action, rendering American justice oxymoronic. It is what Good Americans are allowing their government to do.

“One of them took my penis in his hand and began to make cuts. He did it once, and they stood still for maybe a minute, watching my reaction. I was in agony, crying, trying desperately to suppress myself, but I was screaming…They must have done this 20 or 30 times, in maybe two hours. There was blood all over.”

That I did not kill Holly Maddux on September 11, 1977, as alleged by the prosecution for twenty-three years and steadfastly maintained through two trials, was demonstrated so strongly by the defense at my trial that Judge Mazzola was forced by his obvious bias to tell the jury to ignore the date, though the date was integral to what both the prosecution and the defense did at the trial.

His actions at the end of my trial as demonstrated in the enclosed two pages (Section II) taken from my Superior Court Appeal, made a mockery of the trial and violated the very nature of Due Process, the foundation of American Law.

His “aside” (there are no asides in law) deprived me of a defense, for he changed what I was charged with after the trial was over, rendering the entire process a ludicrous and expensive farce.

His shameful behavior intensified by his ignorant attack on me at the end of the trial is in direct violation of the principles enunciated by Chief Justice Roberts in his confirmation hearing who made one thing clear: A judge at a trial must remain a referee no matter what his personal feelings.

Judge Mazzola was not a referee, but a second prosecutor during the entire trial bending over backwards to accommodate the prosecution by making conscious judicial error after judicial error that did away with any possibility of a fair trial.

His behavior was reprehensible.

What journalist has the courage to call his kangaroo court into question?

What Journalist has the courage to bring Mazzola’s actions into the cleansing light of the sun?

SECTION II

X. APPELLANT IS ENTITLED TO A NEW TRIAL AS A RESULT OF THE TRIAL COURT’S ERROR IN INSTRUCTING THE JURY THAT IN ASSESSING APPELLANT’S GUILT, IT WAS NOT BOUND BY THE DATE OF THE KILLING OF THE VICTIM THAT WAS ALLEGED IN THE INFORMATION, SEPTEMBER 11, 1977

The trial court erred when it instructed the jury that in assessing appellant’s guilt, it was not bound by the date of the killing of the victim that was alleged in the Information, September 11, 1977. As a result, appellant is entitled to a new trial.

The trial court instructed the jury as follows:

“As an aside, I would also advise you that you are not necessarily bound by the date alleged in the indictment in this case. The date of the death is not an essential element of the crime.

You may find the defendant guilty if you are satisfied beyond a reasonable doubt that he committed the crime charged even though you’re not satisfied that it occurred precisely on the specific date mentioned on the bill of indictment.” (NT 10/16/02 p. 184).

Appellant submits that the trial court erred when it instructed the jury that in assessing appellant’s guilt, it was not bound by the date of the killing of the victim that was alleged in the Information, September 11, 1977.

In Commonwealth v. Groff, 378 Pa/ Super. 353, 548 A.2d 1237 (1988), citing Commonwealth v. Devlin, 460 Pa 508, 333 A.2d 888 (1975), “the prosecution must fix the date when an alleged offense occurred with reasonable certainty.” The doctrine that the Commonwealth is allowed a reasonable measure of flexibility applies only in cases in which an assault on a child is involved. Id.

A variance in the date of the offense charged is fatal where it misleads the defendant at a trial, involves an element of surprise prejudicial to the defendant’s efforts to prepare his defense, precludes the defendant from anticipating the prosecution’s proof or impairs a substantial right. See Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983), quoting Commonwealth v. Pope, 455 Pa. 384, 317 A.2d 887 (1974).

Herein, during appellant’s first trial, which was held in absentia, and his second trial the Commonwealth never wavered in its claim that Ms. Maddux was killed on September 11, 1977. Appellant’s defense against the charges was premised upon the fact that the commonwealth alleged that the killing occurred on September 11, 1977. Appellant presented a number of witnesses, including people who stayed in his apartment soon after the day on which the victim was killed, and people who saw the victim months after the date of the offense charged based upon the Commonwealth’s firm allegation that the victim met her death on September 11, 1977 (N.T. 10/9/02 p. 67-76, 97-110, 122, 145-156, 161-162, 165-167, 171-186). Had appellant known that the trial court intended to instruct the jury in this manner, he either would not have presented these witnesses or would have presented additional witnesses to cover a broader period of time.

The trial court’s instruction had the impact of significantly defeating or diminishing appellant’s defense. In view of the Commonwealth’s continued claim with regard to the date of death, it was not entitled to a jury instruction that had the effect of varying the date on which the victim met her death.

Under these circumstances, the trial court erred when it instructed the jury that in assessing appellant’s guilt, it was not bound by the date of the killing of the victim that was alleged in the Information, September 11, 1977. Accordingly, appellant is entitled to a new trial.