*2 BROSKY, BECK, JJ. Bеfore WIEAND BROSKY, Judge: imposed of sentence appeal
This is an from simple conviction of assault. appellant’s jury after the trial court Appellant’s complaint this Court that the Commonwealth to make substan- permitting erred changing infоrmation the name tive amendment to the such prior to commencement of trial where the victim working an Pa.R.Crim.P. 229 an amendment violates right fundamentally to a irreparable prejudice appellant’s foundation, we Finding argument laсking fair trial. Although opinion affirm. look to the well-reasoned we we wish further elaborate on its analysis. Evidence adduced at trial revealed that appellant knew from the time of the preliminary hearing, at which he was present, four in addition were car (N.T. 35). the original Moreover, victim-driver the evidence original demonstrated that conceded that the vic- tim, O’Hara, Mr. at preliminary hearing testified 135). appellant pointed (N.T. Yet, car appellant urges us to create a se per prejudice, rule of asserting therefor, specific reasons because allow- ance of an amendment which no additional or offense materially altering different elements or defens- original es to the crime but merely seeks to add the names of victims is granted just trial. before This we decline to do. *3 1, Johnson,
In Pa.Super. Commonwealth 336 (1985), by relied upon this court held that surprised defendant was amendment because neither the factual scenаrio nor the nature of the thereby, had been altered thus obviating any prejudice to him. may
Neither
here
appellant
surprise.
claim
The nature of
the instant
change
amendment worked no
in the factual
Hence,
scenario nоr
the description
charges.
here
charge
did not
an additional or different
offense
implicate
which would necessarily
a last-minute
alteration
defense strategy.
v. Stanley,
194,
265 Pa.Super.
(1979),
The cаse sub
is unlike
judice
Thomas,
278 Pa.Super.
(1980),
In any surprise a genuine amendment worked wealth’s requested defense, his time remedy at prejudice and would him for a continuance to enable trial court ask the See Pa.R.Crim.P. his defense. adequately prepare *4 Soudеr, A.2d 831 Brown, supra (no compare But motion for continuance be- to refuse of discretion abuse of add name co-con- amendment of indictment cause of months before was aware several where spirator co-conspirator). name of the trial of the affirmed. of sentence Judgment J., opinion. WIEAND, dissenting filed a WIEAND, Judge, dissenting: stated, issue in The more fully whether Commonwealth, after the victim an by menace failed to physical appear has trial and cannot be produced, may allege amend information to an assault committed menace other physical and different whose attendance at compelled. victims trial can be The amendment; and, thereafter, trial cоurt an allowed such a jury found the defendant guilty charge. on appeal, direct argues On the defendant that it error to an allow the information at trial which al- a leged new and additional disagrees offense. majority and affirms the I I judgment of sentence. dissent. would reverse sentence discharge the defend- ant. 13, 1985, June
On Frank was driving DeSumma his ve- hicle Route 13 in Tullytown, Bucks when County, operated pulled vehicle Frank directly O’Hara out front him. angered by thought- DeSumma was O’Hara’s and, less conduct pulling after alongside vehicle vehicle, O’Hara shouted at him. obscenities O’Hara shout- which, ed back. then produced handgun, DeSumma de- pending upon the believed, version of the incident he either “displayed” “pointed” Sgt. at O’Harа. John who Ryn, summoned, spoke O’Hara removed from DeSumma.1 thereafter filed a Ryn criminal in which he accused DeSumma of recklessly endangering person2 by attempting “by physical menace to fear imminent serious [O’Hara] injury.”3 bodily
Following a рreliminary hearing, the district found justice that the Commonwealth had a prima established facie case There, and returned the case to court. the District Attor- ney prepared and an issued information charging DeSumma carry 1. DeSumma was licensed the firearm.
2. 18 Pa.C.S. § 2705. 2701(a)(3). § 18 Pa.C.S. *5 committing person endangering another recklessly against Frank O’Hara. simple How- found. trial, could not be of O’Hara day On the in O’Hara vehicle ever, passengers had four there offense, and the Commonwealth timе of the at the them, of Michelle of one the attendance compel was able trial, of to the commencement Immediately prior Sharper. court to amend leave of the Commonwealth in the O’Hara as victims informаtion to add allowed objection, defense The trial over vehicle. called trial, only eyewitness At amendment. Sharper, who testified Michelle Commonwealth in gun the direction had pointed DeSumma behalf, DeSumma, on his own testifying vehiclе. had had but denied that that he “shown” admitted in of put anyone had intended to fear it at or pointed anyone not guilty The found DeSumma bodily injury. jury serious guilty but endangering person recklessly denied, sen- and a assault. Post-trial motions were simple probаtion imposed. tence of an information to be amended permits Pa.R.Crim.P. provides: in limited circumstances. an information to be may
The court allow form, description there is a defect when or any property, offense, description any person the information as amended charged, provided the date offense. Upon an additional or different charge does not grant may postponement amendment the court such necessary trial or othеr relief as is the interests justice. give intended to a defend- safeguards of Rule 229 are risk of adequate prepare notice and time to
ant materially alter charge additions to the last-minute thereto. potential defenses Similаrly, Tillia, 302, 307, this Court said: 1248-1249 Stanley, Pa.Super. 194, *6 [aff'd, 326,
A.2d 1166 (1982),] Pa. following guidelines Court articulated the for assess ing the propriety permitting such an amendment:
(T)he courts of employ this Commonwealth the test specified of whether the crimes original indict- or ment informаtion involve the same basic elements and evolved out of the same factual situation as the crimes specified or amended indictment informa- so, If tion. then the is defendant deemed been have placed on notice regarding criminal conduct. If, however, provision alleges different events, set or the elements or defenses to the amend- materially ed crime are different from the elements or defenses to the crime originally charged, such that dеfendant would be prejudiced by change, then amendment is not permitted.
Stanley,
212-213,
See also: Pa.Super. 309, 316-317, (1985); 487 A.2d 983-984 Thomas, 47-48,
In the instant the charges against appellant were changed he substantially when for trial. appeared Instead of being charged with an attempt by put menace in fear bodily injury the with exchanged driver whom he had words because of latter’s thoughtless driving, he found himself charged in the other vehicle. He arrived trial he anticipating would be required to defend a charge pointed that he had loаded gun at O’Hara with the putting intent of fear of trial, however, imminent bodily injury. At he found that he was required to defend against an accusation that passen- bodily injury in fear had intended to exchanged he had not with whom in the other vehicle gers no Until quarrеl. he had had with whom words started, not either accusa- there had time when to menace had intended testimony tion quarreled. he had with whom but driver anyone under these cir- of the information last-minute It added an additional was prejudicial. cumstances compare: offense. See different named co-con- Thomas, (outright of a substitution supra a different set of in a held constitute spirator defense, amendment should and was prejudicial events permitted). have been thе defendant had *7 supra, In murder, con- charged robbery, conspiracy and been with in Philadelphia. occurred robbery with which had nection Bruce Porter. Porter was robbery Killed in the had been robbery in the information. also named as the viсtim Colefield, it name of David was discovered that the When information, robbed, had was not in also been who his name permitted to add amend- Commonwealth was robbery conspiracy. appeal as a victim of the and On ment conviсtion, following argued Johnson allowance A panel amendment had been error. this Court no Johnson had prejudice. concluded that there had been episode aware of the and knew that the Common- been present evidence showed that Colefield had been wealth’s had and been threatened searched. Because Johnson not surprised by was the amendment and neither charges factual nor the had scenario nature been concluded, thereby, Court his defense had not altered altered, prejudiced. been had been correct- allowing ness of an amendment which the defend- is not us. if robbery ant with a second now before Even we decided, it correctly assume that Johnson was is neverthe- distinguishable from the instant less case. had
defendant been aware that incident for which he tried of a second victim. In being robbery was involved had appellant charged the instant been with driver with whom he had had confrontatiоn. There no for him was reason to believe that he had commit- an charged ted assault or committing would be an car, the other with whom there had no respect confrontation and with whom had there been neither reason nor to аttempt by motive physical menace to them in fear of serious bodily injury. Clearly, the Commonwealth’s the instant sought case to add an additional and different offense. after the only had learned it that would be to prove unable the offense with which originally had been charged. The amendment suddenly was effected prior warning time trial and required appellant to defend against an alleged offense which had not been charged previously. This, in judgment, unfair, my improper, and prejudicial.
I would reverse the of sentence and discharge the defendant.