Com. v. Williams, J., Jr. (memorandum)
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J-A03032-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. JULIUS T. WILLIAMS, JR., Appellee No. 116 MDA 2012 Appeal from the Judgment of Sentence entered December 14, 2011 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0000796-2011 BEFORE: BOWES, GANTMAN and OLSON, JJ. MEMORANDUM BY OLSON, J.: FILED MAY 07, 2013 Appellant, the Commonwealth of Pennsylvania, appeals from the judgment of sentence entered December 14, 2011, sentencing Appellee, Julius T. Williams, Jr., to, inter alia, 11 and one-half months to two years incarceration, for convictions of burglary,1 simple assault,2 and terroristic threats.3 For the following reasons, we affirm. The trial court summarized the relevant factual and procedural background of this matter as follows. The charges [in this matter] emanated from a domestic dispute when [Appellee s] wife was visiting the home of another man ____________________________________________ 1 18 Pa.C.S.A. § 3502. 2 18 Pa.C.S.A. § 2701. 3 18 Pa.C.S.A. § 2706. J-A03032-13 which was located at [] Street in the City of Lebanon. When his wife opened the door to leave the residence, [Appellee] was waiting outside, pushed past her into the residence and pointed a handgun at the man, threatening to kill him. ¦ In [a] [c]riminal [c]omplaint filed December 28, 2010, [Appellee] was originally charged with burglary, felony of the first degree. A preliminary hearing was held on June 2, 2011 and the case was bound over for [c]ourt. The Commonwealth filed the original information on June 23, 2011, charging [Appellee] with burglary of the second degree, aggravated assault, terroristic threats and two counts of reckless endangerment. On September 29, 2011, the Commonwealth filed an [a]mended [i]nformation which added a count of simple assault, and contained only one count of reckless endangerment; however the charges of burglary of the second degree, aggravated assault, [and] terroristic threats remained. On October 5, 2011, a [s]econd [a]mended [c]omplaint was filed in which [Appellee] was yet again charged with second-degree burglary, aggravated assault, terroristic threats, simple assault and two counts of reckless endangerment. When the case went to trial on October 7, 2011, the Commonwealth orally amended the [s]econd [a]mended [i]nformation immediately prior thereto with regard to other charges, but proceeded with the charge of second-degree burglary. Trial proceeded and the [trial court] gave the standard charge to the jury on the charge of burglary: ¦In order to find [Appellee] guilty of [b]urglary, you must be satisfied that the following five elements have been proved beyond a reasonable doubt. First, that [Appellee] entered [] Street in the City of Lebanon, the home of Gregory Jones. Second, that [Appellee] entered the residence with the intent that address with the intent to commit a crime inside. Third, that [] Street was not open to the public at the time of entry. Fourth, that [Appellee] did not have permission or lawful entry to enter that location. And fifth, that [] Street was an occupied structure. For purposes of this last element, an occupied structure is any structure or place adopted for overnight accommodation of persons. -2- J-A03032-13 (N.T. 10/7/11 at 198-199). [The trial court s charge] did not include a request that the jury make a finding as to whether any person was present inside the structure at the time of the offense as would be required for conviction of a first-degree felony. Once the jury s verdict was returned on October 7, 2011, the Commonwealth immediately put on the record its intention to seek the mandatory minimum sentence for crimes of violence committed with a firearm, pursuant to 42 Pa.C.S.A. § 9721(a).[] Trial Court Opinion, 6/14/2012, at 1-4 (emphasis added). The trial court scheduled Appellee s sentencing hearing for December 14, 2011. On October 10, 2011, however, the Commonwealth filed a motion to amend Appellee s criminal information, seeking to change the charge of burglary from a felony of the second degree to a felony of the first degree. Appellee opposed the Commonwealth s motion, and on December 2, 2011, the trial court issued an order denying the motion. The trial court sentenced Appellee on December 14, 2011. This appeal followed. The Commonwealth raises the following issue for appeal: Whether the trial court erred when it denied the Commonwealth s motion to amend its criminal information, and correct a typographical error on count one - burglary, prior to the date the court sentenced Appellee. Commonwealth s Brief at 4. Our Supreme Court has held that [t]he decision of whether to allow the Commonwealth to amend the [i]nformation[] is a matter within the discretion of the trial court, and only an abuse of discretion will constitute reversible error. Commonwealth v. Small, 741 A.2d 666, 681 (Pa. 1999). An abuse of discretion exists when the trial court has rendered a -3- J-A03032-13 judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, or was motivated by partiality, prejudice, bias, or ill will. Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1123 (Pa. 2000). Pennsylvania Rule of Criminal amendment of criminal informations. Procedure 564 addresses the Pursuant to Rule 564: The court may allow an information to be amended when there is a defect in form, the description of the offense(s), the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment, the court may grant such postponement of trial or other relief as necessary in the interests of justice. Pa.R.Crim.P. 564. As our Court has held, the purpose of Rule 564 is to ensure that a defendant is fully apprised of the charges, and to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of which the defendant is uninformed. Commonwealth v. Sinclair, 897 A.2d 1218, 1221 (Pa. Super. 2006). The rule is applied with an eye toward its underlying purposes and with a commitment to do justice rather than be bound by a literal or narrow reading of the procedural rule[]. Commonwealth v. Roser, 914 A.2d 447, 453 (Pa. Super. 2006), quoting Commonwealth v. Grekis, 601 A.2d 1284, 1288 (Pa. Super. 1992). To further these underlying principles, we have articulated the following test for assessing the propriety of amendments to an information: -4- J-A03032-13 whether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If, however, the amended provision alleges a different set of events, or the elements or defenses to the amended crime are materially different from the elements or defenses to the crime originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted. Grekis, 601 A.2d at 1289. Moreover, we have listed a number of factors that a court must consider in determining whether a defendant was prejudiced by an amendment. These factors include: (1) whether the amendment changes the factual scenario supporting the charges; (2) whether the amendment adds new facts previously unknown to the defendant; (3) whether the entire factual scenario was developed during a preliminary hearing; (4) whether the description of the charges changed with the amendment; (5) whether a change in defense strategy was necessitated by the amendment; and (6) whether the timing of the Commonwealth s request for amendment allowed for ample notice and preparation. Sinclair, 897 A.2d at 1223. Applying the above factors, the Commonwealth argues that the trial court abused its discretion in denying the requested amendment to Appellee s information. According to the Commonwealth, the amendment: did not alter the factual scenario supporting the charges; did not alter the description of the charged offense; did not, and would not have, changed Appellee s defense strategy at trial; and did not, and would not have, precluded Appellee from properly preparing for trial. Commonwealth s Brief -5- J-A03032-13 at 21-23. Furthermore, the Commonwealth argues that the timing of and late notice of the proposed amendment was not an issue in this matter because Appellee s original information correctly charged him with burglary as a first-degree felony. Id. at 23. Indeed, according to the Commonwealth, changing the original information and lessening the charge from burglary in the first degree to burglary in the second degree was nothing more than a clerical error, overlooked by all involved. Id. Similarly, the Commonwealth argues that Appellee would not have been prejudiced by the amendment, as he was on notice of the charge. Id. In support of its claim, the Commonwealth compares this case to Commonwealth v. Mentzler, 18 A.3d 1200 (Pa. Super. 2011). In Mentzler, a jury convicted the defendant of driving under the influence ( DUI ), as an ungraded misdemeanor. Id. at 1201. Prior to sentencing, however, the probation department learned that the defendant had a previous DUI conviction in another state. Id. Based upon that previous conviction, at the time of sentencing, the Commonwealth moved to amend the defendant s criminal information, to include the same charge, but to grade it as a misdemeanor of the first degree. Id. The trial court granted the amendment, and the defendant appealed. Id. at 1202. On appeal, our Court found no abuse of discretion in the trial court s order permitting the amended information. Id. at 1203. Applying Rule 564 and precedent such as Sinclair, our Court noted that sentencing was not too -6- J-A03032-13 late in the prosecution process to amend an information, and that the mere possibility amendment of information may result in a more severe penalty ¦ is not, of itself, prejudice. Id., quoting Commonwealth v. Picchianti, 600 A.2d 597, 599 (Pa. Super. 1991). The panel then reviewed the certified record and determined that, based upon the record, it was evident that the trial court fully considered the mandates of [Rule 564] and its accompanying case law prior to granting the Commonwealth s motion to amend the criminal information. Id. Our Court adopted the trial court s reasoning and held that the trial court did not abuse its discretion in granting the amendment. Id. Relying upon Mentzler, the Commonwealth argues that the late timing of its requested amendment and the fact that the amendment would result in a harsher sentence should not, in itself, prohibit the amendment. See Commonwealth s Brief at 23. Consequently, the Commonwealth asks that we vacate Appellee s judgment of sentence, reverse the order denying the Commonwealth s motion to amend the information, and remand the matter for amendment of the information and re-sentencing. The trial court in this matter acknowledged our Court s holding in Mentzler, particularly with regard to the fact that an information may be amended just prior to sentencing, and that an amendment may increase the potential sentence without resulting in per se prejudice. Trial Court Opinion, 6/14/2012, at 7-9. The trial court, however, distinguished this matter from -7- J-A03032-13 that holding, stressing that in Mentzler the defendant was aware of the existence of his prior DUI conviction throughout the Pennsylvania proceedings, and even went so far as to fraudulently conceal its existence. Id. at 8. Consequently, the trial court explained that in Mentzler the defendant suffered no surprise or prejudice because of the amendment. Id. at 8-9. In this matter, however, the trial court examined the record and reasoned that Appellee would suffer undue prejudice were the court to allow the Commonwealth to amend the information to elevate the burglary charge to first-degree burglary. Significant to the trial court s analysis was the fact that, unlike in Mentzler, the mistake in this case was not the result of the Appellee s deceit, but a result of the Commonwealth s carelessness. Indeed, the Commonwealth amended Appellee s information on three different occasions, but each time failed to recognize its mistake in the way in which Appellee s burglary charge was graded. The trial court then went on to consider the factors set forth in Sinclair, and determined that, in this matter, the timing of the amendment, together with the Appellee s and the court s reliance on the provisions of the information, rendered it too prejudicial to Appellee to approve the requested amendment. Id. at 14. We find no abuse of discretion in the trial court s analysis and, as the trial court has accurately and adequately addressed the issues raised by the Commonwealth on appeal, we adopt the trial court s rationale as our own. -8- J-A03032-13 See id. at 4-14. Indeed, the record supports the trial court's reasoning and its factual basis for concluding that amending the information would have prejudiced Appellee, particularly so late in the prosecution process. Because there is ample support in the record for the trial court s order, we conclude that the trial court did not abuse its discretion in denying the Commonwealth s motion to amend Appellee s criminal information. We instruct the parties to attach a copy of the trial court s June 14, 2012 opinion to all future filings regarding this appeal. Prior to attaching that opinion, however, we instruct the parties to redact any reference to the street name and number where the incident in this matter took place. Judgment of sentence affirmed. Judgment Entered. Deputy Prothonotary Date: 5/7/2013 -9-
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