J-S69044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ROBERT LECATES

                        Appellant                    No. 915 EDA 2015


          Appeal from the Judgment of Sentence March 25, 2014
             In the Court of Common Pleas of Chester County
           Criminal Division at No(s): CP-15-CR-0003083-2013


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.:

MEMORANDUM BY OLSON, J.:                       FILED DECEMBER 29, 2015

     Appellant, Robert LeCates, appeals from the judgment of sentence

entered on March 25, 2014. We affirm.

     On August 9, 2012, Appellant “forced open the victim’s front door,

entered the home[,] and startled the female resident in the foyer.”      Trial

Court Opinion, 6/18/15, at 3. Appellant was then arrested.

     The Commonwealth filed its original Information on September 26,

2013 and charged Appellant with a variety of crimes, including burglary,

criminal mischief, and criminal trespass.     With respect to the burglary

charge, the original Information read:

        The District Attorney       of   Chester   County,   by   this
        INFORMATION charges:

        FIRST COUNT:
        BURGLARY
        That on or about August 9, 2012[, Appellant] . . . did
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             (a)

                   (1) enter a building or occupied structure, or
                   separately secured or occupied portion thereof, that
                   is adapted for overnight accommodations in which at
                   the time of the offense any person is present.

          Citation: 18 Pa.C.S.A., Section 3502(a), (1).

Commonwealth’s Original Information, 9/26/13, at 1.

        This description of the burglary charge constitutes a partial quotation

of the burglary statute that existed at the time that the Commonwealth filed

the original Information. However, the Commonwealth’s description of the

burglary charge in the original Information omitted the requisite element of

intent contained in the burglary statute.        See 18 Pa.C.S.A. § 3502(a)

(effective from September 4, 2012 until February 20, 2014) (“A person

commits the offense of burglary if, with the intent to commit a crime therein,

the person . . .”). Further, the Commonwealth’s description of the burglary

charge in the original Information failed to track the language of the

burglary statute that existed at the time Appellant committed the crime.

Specifically, at the time Appellant committed the crime, the burglary statute

read:

          (a) Offense defined.--A person is guilty of burglary if he
          enters a building or occupied structure, or separately
          secured or occupied portion thereof, with intent to commit a
          crime therein, unless the premises are at the time open to
          the public or the actor is licensed or privileged to enter.

18 Pa.C.S.A. § 3502(a) (effective from July 1, 1991 until September 3,

2012).


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      Effective September 4, 2012, the burglary statute was amended to

read, in relevant part:

        (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, or separately
             secured or occupied portion thereof that is adapted for
             overnight accommodations in which at the time of the
             offense any person is present.

                                      ...

18 Pa.C.S.A. § 3502(a)(1) (effective from September 4, 2012 until February

20, 2014).

      Prior to trial, Appellant filed a motion to proceed pro se. Following a

hearing, the trial court granted Appellant’s motion to proceed pro se and the

trial court appointed Public Defender Kelly A. Thompson (hereinafter “Public

Defender Thompson”) to act “as stand-by counsel for [Appellant] in his trial .

. . scheduled for . . . November 12, 2013.” Id.

      On the morning of trial, Appellant proffered a pre-trial “Motion to

Quash the Information.” Within this motion, Appellant claimed that the trial

court must quash the Commonwealth’s original Information because “the

offense of burglary [requires] the [C]ommonwealth [to] prove that [the]

defendant possessed an intent to commit a crime inside an occupied

structure” and “the [Commonwealth’s original I]nformation fail[ed] to

include the essential element of intent.” Appellant’s Motion to Quash, dated

11/12/13, at 1.     According to Appellant, as a result of this defect, the


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Commonwealth’s original Information did not “fully apprise [Appellant] of the

offense he is [required] to [de]fend against” and the trial court must thus

quash the Information. Id. at 2.

      On the morning of November 12, 2013, the trial court heard oral

argument on Appellant’s pre-trial motion and, during the argument, the

Commonwealth orally moved to amend the original Information so that it

could clarify the burglary charge.    N.T. Argument, 11/12/13, at 35-36.

Appellant conceded that the trial court should grant the Commonwealth’s

motion to amend the original Information. Id. at 41. However, Appellant

requested that the trial court grant him a continuance to further prepare his

defense.     Id.   Appellant did not request any specific period for the

continuance. Id. Moreover, during the argument, Appellant conceded that,

at the earlier preliminary hearing, he argued that the burglary charge must

be dismissed because there was no evidence that he possessed the requisite

intent to commit a crime in the dwelling – thus indicating that Appellant was

always aware that the crime of burglary contained the element of intent.

Id. at 28.

      The trial court granted the Commonwealth’s motion to amend the

original Information and the Information was amended to read:

        FIRST COUNT:
        BURGLARY
        That on or about August 9, 2012[, Appellant] . . . did enter
        a building or occupied structure adapted for overnight
        accommodation, or separately secured or occupied portion
        thereof, while a person was present, with intent to commit a


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        crime therein, and the premises were not open to the public
        at the time and the actor was not licensed or privileged to
        enter.

        Citation: 18 Pa.C.S.A., Section 3502(a).

Commonwealth’s Amended Information, dated 11/12/13, at 1.

      Moreover, even though the trial court concluded that Appellant

suffered no prejudice by the amendment, the trial court granted Appellant’s

motion for a continuance – the trial court ordered the case continued to the

following day.    N.T. Argument, 11/12/13, at 48-49.         Appellant did not

explicitly request that the trial court provide him with any additional time to

prepare for trial. Id.

      Notwithstanding the trial court’s order granting Appellant’s motion to

continue the case, Appellant proclaimed that he was prejudiced by the

amendment to the Information. Id. at 50. Appellant then declared “[u]nder

these circumstances, [] I am going to invoke my right to counsel.” Id. In

response, the trial court asked Public Defender Thompson whether she was

willing to represent Appellant at trial. Public Defender Thompson replied in

the affirmative and the trial court granted Appellant’s motion for the

appointment of Public Defender Thompson to be his counsel.           Id. at 52.

Further, although Public Defender Thompson declared that she was

“inclin[ed] . . . to request a continuance of the [trial c]ourt,” Public Defender

Thompson did not actually request that the trial court continue the case any

further than the next day.    Id. at 54.    Indeed, later in the argument, the




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following exchange occurred between the trial court, Appellant, and Public

Defender Thompson:

        Trial Court: Now, let me make this clear, sir. You asked me
        for a continuance. And I granted it for the moment until
        tomorrow. Just so you know, that 100 percent means that
        our deadline of today for starting the case is extended to
        tomorrow.

        Do you understand that?

        [Appellant]: Yes, your Honor.

        Trial Court: Is there any issue with that[, Public Defender
        Thompson]?

        [Public Defender Thompson]: I have no issue with that,
        your Honor.

Id. at 57-58 (emphasis added).

      Even though Appellant was no longer representing himself, Appellant

then interjected:   “I understand the Court let me to tomorrow, but I was

requesting a continuance of a period of several weeks at the minimum.” Id.

at 58. The trial court responded:

        Okay. So, sheriffs, please take [Appellant] back down.
        [Public Defender Thompson,] go have a chat with
        [Appellant] and we’ll see where we are.

        When we come back, I will meet with counsel – I guess we
        should just come up and put it all on the record. But I
        actually, before I bring all the troops in, I just want to hear
        from [Public Defender Thompson] so that I know if you
        need more time before I bring the troops up.

Id.




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       When the matter resumed, Public Defender Thompson confirmed that

she would be ready to proceed the next day, as scheduled. Id. at 59.

       Appellant’s jury trial began on November 13, 2013 and ended on

November 14, 2013. At the conclusion of the trial, the jury found Appellant

guilty of burglary, criminal mischief, and criminal trespass.1 On March 25,

2014, the trial court sentenced Appellant to serve an aggregate term of five

to ten years in prison for his convictions.

       Following the nunc pro tunc restoration of Appellant’s direct appellate

rights, Appellant filed a timely notice of appeal to this court.    Appellant

raises three claims on appeal:2

____________________________________________


1
 18 Pa.C.S.A. §§ 3502(a) (effective from July 1, 1991 until September 3,
2012), 3304(a)(5), and 3503(a)(1)(ii), respectively.
2
  On April 2, 2015, the trial court ordered Appellant to file and serve a
concise statement of errors complained of on appeal within 21 days,
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant,
who was represented by counsel, filed his Rule 1925(b) statement on Friday,
April 24, 2015 – or, one day late. Within his Rule 1925(b) statement,
Appellant listed the claims he currently raises on appeal. Appellant’s Rule
1925(b) Statement, 4/24/15, at 1-2.

We note that, although Appellant’s Rule 1925(b) statement is untimely,
Appellant’s claims are not waived; moreover, since the trial court discussed
Appellant’s claims in its opinion to this Court, we need not remand the
record for any further action. Commonwealth v. Veon, 109 A.3d 754, 762
(Pa. Super. 2015) (“[w]aiver is no longer the remedy [when a counseled
appellant files an untimely Rule 1925(b) statement]. Where the trial court
does not address the issues raised in an untimely 1925(b) statement, we
remand to allow the trial court an opportunity to do so.                See
Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012). On
the other hand, where, as here, the trial court has addressed the issues
(Footnote Continued Next Page)


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            [1.] Did [the] trial court abuse its discretion in denying pro
            se [Appellant] remedial relief in the form of a continuance
            after [the] criminal information was amended to include the
            element of mens rea on the charge of burglary on the eve
            of trial?

            [2.] Was [the] pro se [Appellant’s] right to [self-
            representation] pursuant to the Sixth Amendment to the
            United States Constitution and Article 1[,] Section 9 of the
            Constitution of the Commonwealth of Pennsylvania chilled
            by [the] denial of remedial relief?

            [3.] Did [the] trial court abuse its discretion in denying
            appointed counsel a continuance where counsel was
            appointed the day before trial and counsel indicated that
            although she was standby counsel she had not prepared the
            case as if she were going to try it?

Appellant’s Brief at 4.

          Appellant first claims that the trial court erred when it denied his

request for “a continuance after [the] criminal information was amended to

include the element of mens rea on the charge of burglary on the eve of

trial.”     Appellant’s Brief at 12.      This claim is waived, as the trial court

granted Appellant’s motion for a continuance and Appellant did not request

that the trial court provide him with any additional time to prepare for trial.

Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived and

cannot be raised for the first time on appeal”); Commonwealth v.

Kennedy, 959 A.2d 916, 924-925 (Pa. 2008) (in capital murder case, where

“mitigation counsel did not request a continuance . . . or otherwise object[]
                       _______________________
(Footnote Continued)

raised in an untimely Rule 1925(b) statement, we need not remand and may
address the issues on their merits”).



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to the trial date,” Appellant waived claim that “counsel was in need of

additional time” to prepare for the penalty phase).3

       Further, even if the claim were not waived, the claim would fail on its

merits. As we have held, “[t]he grant of a continuance is discretionary and

a refusal to grant is reversible error only if prejudice or a palpable and

manifest abuse of discretion is demonstrated.”          Commonwealth v.

Hunzer, 868 A.2d 498 (Pa. Super. 2005) (internal quotations and citations

omitted). “An abuse of discretion is not merely an error of judgment, but if

in reaching a conclusion the law is overridden or misapplied or the judgment

exercised is manifestly unreasonable, or the result of partiality, prejudice,

bias, or ill will, as shown by the evidence or the record, discretion is



____________________________________________


3
  On appeal, Appellant contends that he requested additional time to prepare
for his case when he informed the trial court: “I understand the Court
[continued the case until] tomorrow, but I was requesting a continuance of a
period of several weeks at the minimum.” N.T. Argument, 11/12/13, at 58;
Appellant’s Brief at 17. This statement did not preserve Appellant’s current
claim because – when Appellant first informed the trial court that he “was
requesting a continuance of a period of several weeks at the minimum” –
Appellant was no longer proceeding pro se. Therefore, at this time, only
Public Defender Thompson could request more time to prepare for trial.
Commonwealth v. Padilla, 80 A.3d 1238, 1259 (Pa. 2013) (“decisional law
from [the Pennsylvania Supreme Court] has clarified Commonwealth policy
regarding hybrid representation.     No defendant has a right to hybrid
representation, either at trial or on appeal”) (emphasis in original);
Commonwealth v. Colson, 490 A.2d 811, 822 (Pa. 1985) (holding that a
defendant who is represented by counsel has no constitutional right to act as
co-counsel), abrogated on other grounds by Commonwealth v. Burke, 781
A.2d 1136 (Pa. 2001).



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abused.”   Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa. Super.

2007) (en banc). Further:

        A bald allegation of an insufficient amount of time to
        prepare will not provide a basis for reversal of the denial of
        a continuance motion. Instead, an appellant must be able
        to show specifically in what manner he was unable to
        prepare his defense or how he would have prepared
        differently had he been given more time. We will not
        reverse a denial of a motion for continuance in the absence
        of prejudice.

Commonwealth v. Ross, 57 A.3d 85, 91 (Pa. Super. 2012) (internal

quotations, citations, and corrections omitted).

      With respect to the amendment of an information, we have held:

        Since the purpose of the information is to apprise the
        defendant of the charges against him so that he may have a
        fair opportunity to prepare a defense, our Supreme Court
        has stated that following an amendment, relief is warranted
        only when the variance between the original and the new
        charges prejudices an appellant by, for example, rendering
        defenses which might have been raised against the original
        charges ineffective with respect to the substituted charges.
        Factors that we must consider in determining whether a
        defendant was prejudiced by an amendment 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.

Commonwealth v. Sinclair, 897 A.2d 1218, 1223 (Pa. Super. 2006)

(internal citations omitted).


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      As the trial court explained, Appellant’s claim fails because he suffered

no prejudice by the amendment to the Information or by the trial court’s

“failure” to grant him a longer continuance.     Certainly, as the trial court

concluded, Appellant always knew that the defect in the Information

constituted a clerical error and that the offense of burglary contained the

element of intent. The trial court explained:

        It is clear from the exchange between the court and the
        parties [at oral argument that Appellant] was not prejudiced
        by the amendment and [Appellant] had always known that
        intent was an element of the offense.            [Appellant]
        acknowledged that at the preliminary hearing he argued
        that the Commonwealth had not established that he
        intended to commit [a] crime therein. . . .

        [Appellant] was fully aware of the element of intent for
        burglary; he argued it at the preliminary hearing.
        Therefore, to now argue that new defenses were [] possible
        based upon [the amended] Information is disingenuous.

Trial Court Opinion, 6/18/15, at 5-6 and 7.

      We agree with the trial court and conclude that, even if Appellant

preserved his claim that he needed additional time to prepare for trial, the

trial court did not abuse its discretion when it continued the case for only

one day – the amendment caused Appellant to suffer no prejudice.

      Next, Appellant claims that the trial court unconstitutionally “chilled”

his right to self-representation when it “denied” his request for a

continuance. Appellant’s Brief at 20. This claim fails for the reasons stated

above. In particular, Appellant’s claim fails because: 1) the trial court did

not “deny” Appellant’s continuance request – rather, the trial court granted


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Appellant’s motion for a continuance; 2) while Appellant was proceeding pro

se, Appellant did not request that the trial court afford him a longer

continuance so that he could prepare for trial; and, 3) Appellant did not

suffer any prejudice as a result of the amendment to the Information or the

one-day continuance.      Thus, the trial court’s action in this case did not

unconstitutionally   “chill[]   [Appellant’s]   right   to   self-representation.”

Appellant’s Brief at 23. Appellant’s claim to the contrary fails.

      Finally, Appellant claims that the trial court abused its discretion when,

following Public Defender Thompson’s appointment as trial counsel, the trial

court “denied” Public Defender Thompson a continuance so that she could

prepare for trial.   Appellant’s Brief at 27.   This claim is waived, as Public

Defender Thompson did not request a continuance in this case.             In fact,

Public Defender Thompson expressly stated that she would be ready to

proceed on the date scheduled. Pa.R.A.P. 302(a) (“[i]ssues not raised in the

lower court are waived and cannot be raised for the first time on appeal”);

Kennedy, 959 A.2d at 924-925.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2015


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