J-A07017-15


                                   2015 PA Super 91

IN THE INTEREST OF: D.G., A MINOR                     IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA

APPEAL OF: D.G.

                                                          No. 1198 WDA 2014


                    Appeal from the Order Entered July 3, 2014
                   In the Court of Common Pleas of Erie County
               Criminal Division at No(s): CP-25-JV-0000059-2014,
                             CP-25-JV-0000343-2013


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

OPINION BY LAZARUS, J.:                                       FILED APRIL 21, 2015

        D.G.   appeals    from    the   disposition   order    entered   following   his

adjudication of delinquency by the Court of Common Pleas of Erie County

based on the following offenses: (1) conspiracy to commit criminal

trespass,1 and (2) criminal trespass.2 Upon review, we affirm.

        The facts of this case are as follows.           On August 24, 2013, at

approximately midnight, Karar Al-Dafaai received a phone call from ADT

Security Services, Inc., notifying him that the security alarm had gone off at

his property located at 928 East Avenue in Erie. Al-Dafaai is the owner of a

Stop N Go convenience store at this location. The building also contains a

vacant upstairs apartment that is connected to the Stop N Go.

____________________________________________


1
    18 Pa.C.S. § 903(a).
2
    18 Pa.C.S. § 3503(a)(1)(ii).
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       After receiving the call from ADT, Al-Dafaai drove directly to the

property, located two blocks from his home. When he arrived, he saw two

juveniles standing outside the property, whom he identified as D.G. and S.J.

Upon arrival, he also observed that the building was shaking, consistent with

an attempt to kick in the secure door to gain access to the Stop N Go.

       After he got out of his car, Al-Dafaai engaged in a brief confrontation

with the two juveniles, during which time he flagged down an approaching

police car.    At that time, the two juveniles fled.       As they fled, Al-Dafaai

noticed a third individual, Q.M., jump off the building’s roof and into the

adjacent alley, where D.G. and S.J. had also fled.3

       At   that   time,   Lieutenant      Steven   Goozdich   of   the   Erie   Police

Department, having been waived down by Al-Dafaai and informed of the

suspected robbery, approached the scene.             Lieutenant Goozdich drew his

weapon and entered the alley, where he saw three to four individuals coming

off the roof and gathering at a fence near the end of the alley. He yelled,

“police, stop,” and one person went over the fence and at least one other

individual ran off in the opposite direction.       Q.M. stood directly in front of

Lieutenant Goozdich and hesitated, deciding which way to run. Lieutenant

Goozdich, with gun drawn, commanded the juveniles to stop, but was only

able to apprehend Q.M.

____________________________________________


3
  While S.J., Q.M., and D.G. were subjects of the same adjudication proceeding,
S.J. and Q.M. are not parties to this appeal.



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      Al-Dafaai later testified that he was preparing the apartment to be

rented; the barbed wire on the window to the apartment had been pulled

back; and the ADT security sensors on the window had been tripped.

Additionally, the door that leads into the upstairs apartment from the first

floor had been kicked in. The downstairs landing had a second door that led

into the Stop N Go and was secured by ADT sensors. That door had been

kicked in and the sensors were jarred loose.

      Subsequently, Lieutenant Goozdich put out a radio call regarding the

incident.   Sergeant Edward Noble received that call and within minutes,

observed two individuals matching the juveniles’ descriptions in a parking lot

approximately one block north of the Stop N Go. Sergeant Noble detained

these individuals, and Al-Dafaai identified one of them as S.J.    The other

individual was released.

      A second nearby officer, Patrolman Jason Russell, also received the

radio call in an unmarked police car, and saw a juvenile matching the

description of one of the perpetrators approximately one block south of the

Stop N Go. Patrolman Russell apprehended the juvenile, later determined to

be D.G., observing that he was breathing heavily and sweating profusely.

Al-Dafaai later positively identified D.G. as one of the individuals he had

seen at the Stop N Go.




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        On August 28, 2013, D.G., S.J., and Q.M., were charged with criminal

conspiracy to commit burglary,4 and burglary.5 An arraignment was held on

August 30, 2013, at which time each of the juveniles denied the allegations.

        On September 19, 2013, Al-Dafaai completed a restitution claim form

for $1,466.00. Attached to that form were copies from his accounts book

which set forth the following expenses: a $300.00 payment in cash to Kraus

Hardware on August 27, 2013 for the costs of the door and frame; a

$500.00 payment in cash to ADT on August 27, 2013, for the costs of the

ADT alarm repair; and a $186.00 payment in cash to Kraus on August 27,

2013, for the costs of window repair.

        A combined denial hearing6 was held before the court on February 26,

2014, at which all three juveniles were represented by counsel. Following

testimony and argument of counsel, the court concluded that the juveniles

engaged in a conspiracy.           However, the court concluded that the facts

supported criminal trespass, rather than burglary. Consequently, the court

made findings that the juveniles had committed acts constituting conspiracy

to commit criminal trespass and criminal trespass.



____________________________________________


4
    18 Pa.C.S. § 903(a).
5
    18 Pa.C.S. § 3502(a)(1).
6
 The Court of Common Pleas of Erie County refers to a delinquency hearing
as a denial hearing throughout its opinion.



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     Counsel for D.G. objected to the court’s findings, which the court

construed as an oral motion to reconsider. The court took the motion under

advisement and, following the receipt of briefs and oral argument, the court

denied the motion on April 4, 2014.

     At a separate adjudication hearing on June 5, 2014, D.G. admitted to

attempting to commit robbery by removing a wallet from a student’s pants

pocket at East High School.

     Following a consolidated dispositional hearing on July 3, 2014, the

court adjudicated D.G. delinquent and placed him at the Glen Mills School.

Further, the court ordered that D.G. pay restitution based on the accounting

submitted by Al-Dafaai.   The Court apportioned the total damages equally

among the juveniles, ordering each to pay $488.67.        Also, the Court’s

finding of restitution against D.G. was made without prejudice to allow him

the opportunity to request a restitution hearing. D.G. never requested such

a hearing.

      D.G. then filed a timely notice of appeal on July 24, 2014. On August

12, 2014, D.G. filed a court-ordered statement of errors complained of on

appeal, pursuant to Pa.R.A.P. 1925(b).

     On appeal, D.G. raises the following issues:

     (1) Whether the trial court erred when it amended the
     allegations of delinquency to include different allegations, and
     such amendment was made sua sponte, at the conclusion of the
     denial hearing, with no notice to the juvenile.

     (2) Whether the trial court erred in ordering restitution to be
     paid without credible evidence substantiating the amount

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      ordered, and without taking into account the juvenile’s ability to
      pay, or his role in the underlying offense.

Appellant’s Brief, at 2.

      D.G. first challenges the court’s sua sponte amendment of the charges

brought at the delinquency adjudication.          D.G.’s claim stems from

Pennsylvania Rule of Juvenile Court Procedure 236, which provides in

relevant part:

      Rule 232. Contents of Written Allegation

      Every written allegation shall contain:

                                    *****

      (6)(a) a summary of the facts sufficient to advise the juvenile of
      the nature of the offense alleged; and
      (b) the official or customary citation of the statute and section,
      or other provision of the law which the juvenile is alleged to have
      violated.

Pa.R.J.C.P. 232(6).

Further, D.G. cites to Pa.R.J.C.P. 334, which states in relevant part:

      Rule 334. Amendment of Petition

                                    *****

      (2) The court shall not allow a petition to be amended if the
      petition alleges a different set of events or offenses, where the
      elements or defenses are materially different from the elements
      or defenses to the offense originally petitioned.

Pa.R.J.C.P. 334(2).

      Based on those rules, D.G. argues that the lower court violated his due

process rights by amending the charges brought against him and failing to

provide adequate notice, thus depriving him of an opportunity to present a

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defense for the separate charge of trespass. In evaluating challenges to the

amendment of criminal informations, this Court has set forth the following

standard of review:

     In Commonwealth v. Mentzer, 18 A.3d 1200 (Pa. Super.
     2011), we set forth our considerations in determining whether
     the trial court erred in permitting the amendment of the
     information.

     [W]hen presented with a question concerning the propriety of an
     amendment, we consider:

     [w]hether 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. Additionally, [i]n reviewing a grant to amend an
     information, the Court will look to whether the appellant was
     fully apprised of the factual scenario which supports the charges
     against him.      Where the crimes specified in the original
     information involved the same basic elements and arose out of
     the same factual situation as the crime added by the
     amendment, the appellant is deemed to have been placed on
     notice regarding his alleged criminal conduct and no prejudice to
     defendant results.

     Further, the factors which the trial court must consider in
     determining whether an amendment is prejudicial are:

     (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


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      of the Commonwealth’s request for amendment allowed for
      ample notice and preparation.

Commonwealth v. Beck, 78 A.3d 656, 660 (Pa. Super. 2013) (citations

omitted).

      The central inquiry, therefore, is whether D.G. was prejudiced by the

lower court’s amendment of the charges brought against him. Initially, we

agree that criminal trespass is not a lesser included offense of burglary, as

trespass     contains      the    separate       element        of    knowledge.          See

Commonwealth v. Carter, 393 A.2d 660 (Pa. Super. 1978).                              Such a

finding,    however,    does     not    render     D.G.   per    se    prejudiced    by   the

amendment. “The law does not disallow all proposed changes which involve

offenses with different elements, but only those which constitute such

material     differences     that      the    defendant     is       prejudiced     thereby.”

Commonwealth v. Grekis, 601 A.2d 1284, 1288, n.6 (Pa. Super. 1992).

      Our decision must turn, therefore, on whether, in this matter, criminal

trespass and burglary are materially different. Section 3502 of the Crimes

Code defines burglary, in relevant part, as follows:

      §3502. Burglary

       (a) Offense Defined – A person commits the offense of
      burglary if, with the intent to commit a crime therein, the person

            (1) enters a building or occupied structure . . . in which at
      the time of the offense no person is present.

                                             *****

      (b) Defense – It is a defense to prosecution for burglary if any
      of the following exists at the time of the offense:


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            (1) The building or structure was abandoned.

            (2) The premises are open to the public.

            (3) The actor is licensed or privileged to enter.

      18 Pa.C.S. § 3502(a)(1); (b)(1)-(3).

      Section 3503 of the Crimes Code defines criminal trespass, in relevant

part, as follows:

      §3503. Criminal Trespass

      (a) Buildings and occupied structures.—

            (1) A person commits an offense if, knowing that he is not
      licensed or privileged to do so, he:

            (i) enters, gains entry by subterfuge or surreptitiously
      remains in any building or occupied structure or separately
      secured or occupied portion thereof; or

           (ii) breaks into any building or occupied structure or
      separately secured or occupied portion thereof.

                                    *****

      (c) Defenses –It is a defense to prosecution under this section
      that:

           (1) a building or occupied structure involved in an offense
      under subsection (a) of this section was abandoned;

            (2) the premises were at the time open to members of the
      public and the actor complied with all lawful conditions imposed
      on access to or remaining in the premises; or

           (3) the actor reasonably believed that the owner of the
      premises, or other person empowered to license access thereto,
      would have licensed him to enter or remain.

18 Pa.C.S. § 3503(a)-(c).

      The court concluded:

      Under the facts of this case, the elements of burglary and
      criminal trespass are not materially different, no new facts were

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      added by the Court, no change in defense strategy was
      precipitated by the amendment, and no prejudice was advanced
      at any time by the Juveniles other than the Court made the
      amendment sua sponte and ‘too late’.

Trial Court Opinion, 4/11/14, at 20.

      Our Supreme Court considered this question specifically in Carter,

supra, where defendants were charged with burglary but after a bench trial,

were convicted of criminal trespass, although they were never actually

charged with that crime. Id. at 660. The Court reversed that conviction,

holding, “[s]cienter is not an element of [burglary] and thus, one defending

against a burglary charge would have no reason to establish that (albeit

falsely) he believed his presence in a building or occupied structure was

privileged or licensed. Yet evidence of such a belief could provide a basis for

an acquittal of a charge of criminal trespass.” Id. at 661.

      The Commonwealth attempts to distinguish Carter, arguing that, even

if the two crimes are materially different, additional due process safeguards

were provided in the instant matter. Specifically, the Commonwealth argues

that the extensive oral argument at the hearing, and subsequent motion to

reconsider, granted D.G. the opportunity to demonstrate prejudice.

      We recognize that the Supreme Court’s decision in Carter resulted

from a concern for the due process rights of a defendant. In fact, Carter

held that although there may have been evidence presented in a burglary

case to support a trespass conviction, due process must be observed, and a

defendant must be put on notice of the trespass charge.


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     In the matter sub judice, D.G. was never given notice that he might be

adjudicated for trespass until after his case was presented. Despite this lack

of notice, we do not perceive the same due process violations that influenced

the Court’s decision in Carter. Although the lower court may have erred in

amending the information sua sponte, it remedied that error by granting

D.G. the opportunity to demonstrate prejudice with his motion to reconsider

and supporting brief. The court liberally construed D.G.’s oral objection as a

motion to reconsider, and permitted him to brief the issue.         Despite that

opportunity, D.G. could not demonstrate any significant prejudice or

precluded defense or evidence, other than the fact that he “could not have

introduced   any   additional   evidence,     or   cross-examined   any   of   the

Commonwealth’s witness on the issue, nor could he have asked for a

continuance at that time.” Appellant’s Brief, at 17. Further, per the factors

laid out in Mentzer, supra, the charge of trespass did not entail the

introduction of new facts or any further development of the facts presented.

The facts relied upon by the lower court were the same presented with

regard to the burglary charge.     As such, D.G. was “fully apprised of the

factual scenario which supports the charges against him.” Mentzer, supra.

      In Carter, our Supreme Court noted that the crimes of criminal

trespass and burglary are materially different. Despite this difference, D.G.

was not prejudiced by the lower court’s amendment because he was fully

apprised of the facts supporting that charge, see Mentzer, supra, and he


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was given the added due process safeguard of the motion to reconsider.

D.G. simply failed to demonstrate that the amendment prejudiced his

defense.   Furthermore, the statutorily-defined defenses for burglary and

trespass are virtually the same. If D.G. had a good faith basis to assert one

of these defenses, it is logical to assume he would have done so with regard

to the burglary charge. His failure to assert a statutory defense to burglary,

therefore, is indicative that he is likewise unable to assert the same defense

as to trespass.       He has not shown, therefore, that the amendment

prejudiced his ability to assert a defense.         D.G.’s assertion that the

amendment was procedurally improper is correct; however, a mere

procedural mistake on the part of the trial court is not, on its face, enough to

support the overturning of the adjudication, especially where that court

granted the defendant a chance to demonstrate prejudice and he failed to do

so. Accordingly, D.G. is not entitled to relief on this claim.

      Next, D.G. challenges the trial court’s order that he pay restitution,

arguing that there was no evidence to support the amount of restitution

required. Appellant’s Brief, at 18. D.G. asserts that “the [c]ourt accepted

the uncorroborated, conclusory receipts as accurate.”       Appellant’s Brief, at

19. In evaluating restitution orders, this Court has articulated the following

standard of review:

      [O]ne of the purposes of the Juvenile Act is to hold children
      accountable for their behavior. Accordingly, the Juvenile Act
      authorizes the court to “order[ ] payment by the child of
      reasonable amounts of money as fines, costs or restitution as

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        deemed appropriate as part of the plan of rehabilitation
        concerning the nature of the acts committed and the earning
        capacity of the child.” 42 Pa.C.S.A. § 6352, Disposition of
        delinquent child, (a) General rule.-(5). Consistent with the
        protection of the public interest and the community, the
        rehabilitative purpose of the Juvenile Act is attained through
        accountability and the development of personal qualities that will
        enable the juvenile offender to become a responsible and
        productive member of the community. Thus, the policies
        underlying the Juvenile Act and its restitution provision, as well
        as the plain language of Section 6352, serve to invest the
        juvenile court with a broad measure of discretion to apportion
        responsibility for damages based upon the nature of the
        delinquent act and the earning capacity of the juvenile.

In re M.W., 725 A.2d 729, 732-33 (Pa. 1999). Further, “[i]n reviewing an

order of restitution, discretion is abused where the order is speculative or

excessive or lacks support in the record.” Commonwealth v. B.D.G., 959

A.2d 362, 367 (Pa. Super. 2008).

        We do not find that the order of restitution constitutes an abuse of

discretion.    Al-Dafaai filled out a restitution claim form, provided his

accounting, and testified at length as to the various damages he suffered,

including the repair of:          the doors and frame, the ADT alarm, the

doorknobs, and the broken window.           We do not agree, therefore, that the

lower    court’s   calculations   were    based   upon   speculative   information.

Additionally, the lower court specified that its order was made without

prejudice, permitting D.G. the opportunity to raise this issue at a restitution

hearing. D.G. failed to request such a hearing. Our precedent is clear that

the lower court has broad discretion in awarding restitution. Presently, the

amount of restitution ordered is supported by evidence and consistent with



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the testimony of the victim as well as the purposes of the Juvenile Act. As

such, we do not find an abuse of discretion.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/21/2015




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