¶1concurring and dissenting.
¶2I agree with the majority that Appellant is entitled to a new sentencing hearing as a result of the Commonwealth’s failure to file a timely notice of the aggravating circumstance of torture pursuant to Pa. R.Crim.P. 352 (Rule 352). However, I disagree with the majority that on remand, the Commonwealth should be precluded from introducing evidence of torture.
¶3In my view, the Commonwealth should be permitted to attempt to prove the two aggravating circumstances that potentially apply to this case — that the killing was committed by means of torture and that the defendant committed the killing during the commission of a felony. The majority holds, *31however, that the Commonwealth will only be allowed to pursue the two aggravating circumstances listed in its original Rule 352 notice — that the defendant committed the killing during the commission of a felony and that the defendant knowingly created a grave risk of danger to another — even though one of those aggravating circumstances is not at all compatible with the facts of this case. This restriction seems not only unnecessary but also unfair given that a new sentencing hearing will cure the prejudice Appellant suffered because of the Commonwealth’s inadvertent failure to include torture in its original Rule 352 notice. Appellant would now have ample notice that the Commonwealth intends to pursue and prove the aggravating circumstance of torture at the new sentencing hearing.
¶4. The majority indicates that the exclusion of evidence sanction it imposes here is compelled by this Court's decision in Commonwealth v. Williams, 539 Pa. 61, 650 A.2d 420 (1994). I cannot agree. In Williams, the Commonwealth claimed that it had failed to file timely notice of its intent to prove that the defendant had a significant history of felony convictions involving the use or threat of violence as an aggravating circumstance because it lacked evidence of the defendant's prior felony history until after trial had started. The Court rejected the Commonwealth's argument on the basis that the Commonwealth clearly had access to the defendant’s records before the time it was required to file its Rule 352 notice. Here, unlike the situation in Williams, the Commonwealth's failure to include torture in its Rule 352 notice was due to a scrivener error.