J-A17019-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                    v.                         :
                                               :
                                               :
    BRIAN GORDON                               :
                                               :
                             Appellant         :   No. 3038 EDA 2019

          Appeal from the Judgment of Sentence Entered April 22, 2019
       In the Court of Common Pleas of Bucks County Criminal Division at
                        No(s): CP-09-CR-0002526-2018


BEFORE: BOWES, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McCAFFERY, J.:                           FILED AUGUST 17, 2020

        Brian Gordon (Appellant) appeals from the judgment of sentence

entered in the Bucks County Court of Common Pleas, following his jury

conviction of burglary/adapted for overnight accommodations1 and related

offenses. On appeal, Appellant argues: (1) the trial court erred in granting

the Commonwealth’s motion to amend the original criminal information charge

of burglary/not adapted for overnight accommodations;2 and (2) the verdict

was against the weight of the evidence supporting his identity as the

perpetrator. For the reasons below, we affirm.




____________________________________________
1   18 Pa.C.S. § 3502(a)(1)(ii).

2   18 Pa.C.S. § 3502(a)(3).
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        The trial court summarized the evidence presented at Appellant’s jury

trial. The victim in this matter, Stephen Howard, testified to the following:

        [D]uring the early morning hours of April 3, 2018, Mr. and Mrs.
        [Tiffani] Howard, their three children and Mrs. Howard’s mother
        were inside their home located at 310 Crimson Court, Warrington
        Township, Bucks County.       At approximately 3:00 a.m., Mr.
        Howard entered the garage through the door connecting the
        kitchen to the garage. At the time, he observed [Appellant] in
        Mrs. Howard’s car. Upon being confronted by Mr. Howard,
        [Appellant] fled the garage, pursued by Mr. Howard. After a brief
        foot chase, during which Mr. Howard never lost sight of
        [Appellant], Mr. Howard tackled [Appellant] and a struggle
        ensued. When police arrived on scene, Mr. Howard was on top of
        [Appellant]. In the immediate vicinity, police found approximately
        $30 in loose change[ ] scattered on the street, a plastic bag, and
        dark-colored work gloves. After the police arrived, Mr. Howard
        returned to his home to find the center console of his wife’s car
        open and approximately $4.00 in change missing from the door
        pocket of the vehicle.

Trial Ct. Op., 1/10/20, at 4 (citations to trial transcript omitted). Pertinently,

Mr. Howard testified he did not see the perpetrator’s face while they were in

the garage.          However, Appellant’s vehicle was found nearby.   N.T. Trial,

1/7/19, at 13, 25.

        Appellant was arrested at the scene. For this incident, Appellant was

initially charged with burglary/not adapted for overnight accommodations,

criminal trespass,3 receiving stolen property (RSP), theft from a motor vehicle,

disorderly conduct, and loitering and prowling at nighttime.4



____________________________________________
3   18 Pa.C.S. § 3503(a)(1)(i).

4   18 Pa.C.S. §§ 3925(a), 3934(a), 5503(a)(4), 5506.

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      The Howards’ neighbor, Ernest Rehr, testified that on April 3, 2018,

while the chase and altercation between Appellant and Mr. Howard ensued,

he awoke to his dog barking at the sound of two men shouting near his home.

N.T., 1/4/19, at 175-76. Mr. Rehr looked out his window to investigate, saw

his vehicle’s interior dome light was on, and “realized that somebody had been

in [his] car, [so he] called the police.”   Id. at 176-77. Police arrived and

arrested Appellant. Police also learned that approximately $5 worth of coins

had been taken from Mr. Rehr’s vehicle. Id. at 181-82. For this incident,

Appellant was also charged with theft from a motor vehicle, RSP, and loitering

and prowling at night time.

      Finally, we note Mr. Howard and Mr. Rehr’s neighborhood was described

as a quiet residential area with “good sized yards,” most of which are not

fenced. N.T., 1/4/19, at 148, N.T, 1/7/19, at 7. Mr. Howard’s residence is on

a cul-de-sac, while Mr. Rehr’s home is located between two cul-de-sacs, one

being Crimson Court.

      On August 31, 2018, the Commonwealth filed a motion to amend the

criminal information, seeking leave to change the burglary charge from

burglary/not adapted for overnight accommodations to burglary/adapted for

overnight accommodations.       On January 4, 2019, the trial court heard

argument, granted the Commonwealth’s motion to amend, and immediately

proceeded to trial.




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      At trial, Mr. Howard testified Appellant was wearing a white t-shirt,

hoodie, or something similar, but Mr. Howard could not remember because

the incident happened nine months prior.         N.T., 1/4/19, at 142, 146.

However, Officer Jamie Valerieno, a responding officer, testified that Appellant

wore a blue and gray sweatshirt and sweatpants.            Id. at 190.      The

Commonwealth presented a photograph, marked C-3, taken when officers

arrived on scene and depicting Appellant on the ground in a sweatshirt and

sweatpants, with black work gloves under his left arm. Id. at 191. Meanwhile,

another responding officer, Officer Alexander Moldavisky, testified Appellant

was wearing a long sleeve black shirt, matching the description in the affidavit

of probable cause. Id. at 202-03, 215. Plastic bags and $30 in loose change

were also scattered on the ground near Appellant. Id. at 195-96, 210. Finally,

also presented at trial were Mr. Howard’s crimen falsi convictions from Ohio,

dated 2003 and 2010. Id. at 126-28.

      Appellant testified in his defense to the following. On his way home

from work in Bensalem, Appellant was paid to drop off co-workers at their

homes in Warrington and Warminster. N.T., 1/7/19, at 29, 34. Along the

way, Appellant stopped at the home of a former co-worker in Warrington. Id.

at 30, 34. Appellant later stopped at a Wawa store, which did not have a

bathroom, for coffee and “took the back . . . side road” out of the

neighborhood. Id. at 31. With a sudden urge to urinate, Appellant stopped

his car in the neighborhood. Id. at 31, 35. He took off his driving gloves to


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relieve himself in someone’s yard. Id. at 31, 36. When Appellant attempted

to go back to his vehicle, he heard someone yelling in his direction, and was

then tackled to the ground. Id. Appellant further testified that he had nothing

to do with the $30 in change that was found on the ground close to him. Id.

      On January 7, 2019, the jury returned a guilty verdict on the charges of

burglary/adapted for overnight accommodations, loitering and prowling at

night time, criminal trespass, theft from a motor vehicle, and RSP — all

relative to Mr. Howard.    The jury found Appellant not guilty of disorderly

conduct with respect to Mr. Howard, as well as all charges related to Mr. Rehr’s

motor vehicle.

      On April 22, 2019, the trial court sentenced Appellant to four to ten

years’ imprisonment on burglary/adapted for overnight accommodations, and

one year of probation for loitering and prowling at night time, to be served

consecutively. No penalty was imposed for the remaining convictions.

      On May 2, 2019, Appellant filed a timely post-sentence motion

challenging the weight of the evidence, which the trial court denied on

September 24, 2019. A timely notice of appeal was filed on October 24, 2019.

Thereafter, Appellant complied with the trial court’s November 13, 2019 order

directing him to file a concise statement of errors complained of on appeal

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

      Appellant raises two issues for our review:




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        [1] Did the Court err in granting the Commonwealth’s motion to
        amend count one of the information to 18 Pa.C.S. §
        3502(a)(1)(ii).

        [2] Was the verdict against the weight of the evidence in that the
        complainant’s testimony contained major discrepancies, and
        Appellant testified credibly that he did not commit the crimes.

Appellant’s Brief at 4.5

        First,     Appellant         argues    the   trial   court   erred   in   granting   the

Commonwealth’s motion to amend the criminal information because the new

charge, burglary/adapted for overnight accommodation, involved different

elements than the original charge — burglary/not adapted for overnight

accommodation. He emphasizes the court permitted the Commonwealth to

amend the information on the day of trial. Appellant’s Brief at 15. Appellant

concedes “many of the facts as alleged were unchanged,” but nevertheless

avers the “untimely amendment was prejudicial as it changed the elements of

the crime charged.” Appellant’s Brief at 16. We disagree.

        “The 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).                         Pennsylvania Rule of Criminal

Procedure 564 provides:

        The court may allow an information to be amended, provided that
        the information as amended does not charge offenses arising from
        a different set of events and that the amended charges are not so
        materially different from the original charge that the defendant
____________________________________________
5   For ease of review, we have reordered the issues.

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     would be unfairly prejudiced. Upon amendment, the court may
     grant such postponement of trial or other relief as is necessary in
     the interests of justice.

Pa.R.Crim.P. 564.

     [T]he 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. The test to be applied is:

                  [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.

                                 *    *    *

           In 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.

                                 *    *    *

           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[.]   Factors that we must consider in determining

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      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.

                                    *    *    *

             If there is no showing of prejudice, amendment of an
      information to add an additional charge is proper even on the day
      of trial. . . .

Commonwealth v. Sinclair, 897 A.2d 1218, 1221, 1221-24 (Pa. Super.

2006) (citations omitted).

      The Pennsylvania burglary statute states:

          (a) Offense defined.—A person commits the offense of
      burglary if, with the intent to commit a crime therein, the person:

               (1) . . .

                   (ii) 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; [or]

                                    *    *    *

              (3) enters a building or occupied structure, or separately
          secured or occupied portion thereof that is not adapted for
          overnight accommodations in which at the time of the offense
          any person is present[.]

18 Pa.C.S. § 3502(a)(1)(ii), (3).

      Here, the trial court opined:


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      The amendment of the criminal information did not alter the facts
      upon which the prosecution was based. The probable cause
      affidavit in support of the criminal complaint clearly alleges that
      [Appellant] entered the attached garage of a private, occupied
      residence. Those facts were presented at the preliminary hearing.
      [Appellant] was therefore on notice that the structure was
      adapted for overnight accommodation.

             Moreover, the Commonwealth filed its Motion to Amend
      Criminal Information on August 31, 2018 — four months before
      trial.   [Appellant], therefore, received ample notice of the
      Commonwealth’s intent to seek to amend the criminal information
      to reflect the subsection of the burglary statute applicable to the
      factual allegations.

            Finally, the amendment did not require any change in
      defense strategy. [Appellant]’s defense at trial was that, while he
      was in the neighborhood at the time the crime was committed, he
      was not the person who committed the crime. The amendment
      of the criminal information to reflect that the building burglarized
      was adapted for overnight accommodations therefore had no
      impact on defense strategy.

Trial Ct. Op. at 6-7 (citations to trial transcript omitted). We agree.

      Appellant does not address, nor refute, the trial court’s analysis that:

(1) while the amendment was granted on the day of trial, the Commonwealth

filed its motion four months earlier and thus he had notice; and (2) his defense

strategy of mistaken identity was not affected.     Both the Commonwealth’s

initial and amended information alleged Appellant entered the attached garage

of the Howard residence. The new burglary charge that the Commonwealth

wished to charge contained only one new element — that the structure was




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adapted for overnight accommodation.6                   Appellant understood he was in a

residential area because he admitted at trial that he intended to urinate in

someone’s yard. See N.T., 1/4/19, at 31. Finally, Appellant fails to establish

he was prejudiced, especially as he concedes “many of the facts as alleged

were unchanged.” See Sinclair, 897 A.2d at 1223; Appellant’s Brief at 16.

Appellant’s sole claim of prejudice is that the “untimely amendment was

prejudicial as it changed the elements of the crime charged.” Appellant’s Brief

at 16. This argument is conclusory as well as circular; it merely cites the fact

of the amendment without explaining particularly how he was prejudiced. For

the foregoing reasons, we do not disturb the order of the trial court permitting

the Commonwealth to amend the information.

        In his second issue, Appellant argues the verdict was against the weight

of the evidence. As stated above, his defense at trial was that another person

committed the crimes. Appellant maintains Mr. Howard’s testimony regarding

the perpetrator’s clothing was inconsistent with other testimony and evidence

presented at trial. Further, Appellant avers Mr. Howard’s crimen falsi record

casted doubt on Appellant’s identity as the actor because Mr. Howard was the

only person to identify Appellant, and Mr. Howard testified he did not see the

actor’s face while inside his garage.               Meanwhile, Appellant maintains he

____________________________________________
6 We note Appellant’s Rule 1925(b) statement raised an additional issue: a
challenge to the sufficiency of evidence for burglary, on the ground that Mr.
Howard’s garage was not a separately secured or occupied building or
structure. He has abandoned this claim on appeal.


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testified credibly that he “was never in the Howard[s’] garage” and did not

commit the crimes.7 Appellant’s Brief at 11. Appellant also contends another

person committed the crimes and ran away, citing his acquittal of the charges

relating to Mr. Rehr’s vehicle. Finally, Appellant avers pursuant to Mr. Rehr’s

testimony, “it would have been impossible for Appellant to have committed

the theft at Mr. Rehr’s house and then committed the theft at Mr. Howard’s

house.” Appellant’s Brief at 13.

        The Pennsylvania Supreme Court has stated:

               A motion for a new trial based on a claim that the verdict is
        against the weight of the evidence is addressed to the discretion
        of the trial court. A new trial should not be granted because of a
        mere conflict in the testimony or because the judge on the same
        facts would have arrived at a different conclusion. Rather, “the
        role of the trial judge is to determine that ‘notwithstanding all the
        facts, certain facts are so clearly of greater weight that to ignore
        them or to give them equal weight with all the facts is to deny
        justice.’” It has often been stated that “a new trial should be
        awarded when the jury’s verdict is so contrary to the evidence as
        to shock one’s sense of justice and the award of a new trial is
        imperative so that right may be given another opportunity to
        prevail.”

              An appellate court’s standard of review when presented with
        a weight of the evidence claim is distinct from the standard of
        review applied by the trial court:

                 Appellate review of a weight claim is a review of the
                 exercise of discretion, not of the underlying
                 question of whether the verdict is against the
                 weight of the evidence. Because the trial judge has
                 had the opportunity to hear and see the evidence
____________________________________________
7 Neither Appellant’s Rule 1925(b) statement nor brief specify which of his
convictions were allegedly against the weight of the evidence. Nevertheless,
we note Appellant’s contention of mistaken identity and insistence that he did
not commit any of the crimes.

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            presented, an appellate court will give the gravest
            consideration to the findings and reasons advanced by
            the trial judge when reviewing a trial court’s
            determination that the verdict is against the weight of
            the evidence. One of the least assailable reasons for
            granting or denying a new trial is the lower court’s
            conviction that the verdict was or was not against the
            weight of the evidence and that a new trial should be
            granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations

omitted).

     A motion for a new trial on the grounds that the verdict is contrary
     to the weight of the evidence concedes that there is sufficient
     evidence to sustain the verdict but claims that “notwithstanding
     all the facts, certain facts are so clearly of greater weight that to
     ignore them or to give them equal weight with all the facts is to
     deny justice.”

Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003) (citation

omitted); see also Trial Ct. Op. at 3 (quoting same).

     Our Supreme Court has explained:

     The weight of the evidence is exclusively for the finder of fact who
     is free to believe all, part, or none of the evidence to determine
     the credibility of the witnesses.      An appellate court cannot
     substitute its judgment for that of the finder of fact. Thus, we
     may only reverse the lower court’s verdict if it is so contrary to
     the evidence as to shock one’s sense of justice.

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations

omitted).

     In denying relief of Appellant’s weight of the evidence claim, the trial

court reasoned:

          In support of his weight of the evidence claim, [Appellant]
     argues that the Commonwealth’s witnesses, the homeowner,

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      lacked credibility based on an inconsistency in the description of
      the clothing worn by the individual observed in the garage and
      [Appellant’s] clothing.      However, “the determination of the
      credibility of a witness is within the exclusive province of the jury.”
      The inconsistency identified by [Appellant] is not of such a nature
      or extent as to make the jury’s verdict so contrary to the evidence
      as to shock one’s sense of justice. Moreover, the identification of
      [Appellant] as the perpetrator was established not only by the
      victim’s identification of [Appellant] but by the fact that
      [Appellant] was immediately pursued and apprehended at the
      scene. [Appellant’s] claim therefore lacks merit.

Trial Ct. Op. at 4-5.

      Although this Court’s review “is a review of the [trial court’s] exercise of

discretion, not of the underlying” weight of the evidence claim, Appellant’s

argument makes no reference to the trial court’s discussion of having already

denied relief on this issue. See Clay, 64 A.3d at 1055. We agree with the

court’s reasoning that the jury was free to believe all, part, or none of the

evidence, and to determine the credibility of the witnesses’ testimony. See

Champney, 832 A.2d at 408; Rakowski, 987 A.2d at 1219.

      Although there was conflicting testimony as to Appellant’s clothing, and

Mr. Howard admitted he did not see the actor’s face while in the garage, Mr.

Howard testified he never lost sight of Appellant while in pursuit. N.T., 1/4/19,

at 133, 135, 147. Appellant also ignores that Mr. Howard tackled Appellant

and remained “on top of” him until police arrived. See Trial Ct. Op. at 4. With

respect to Mr. Howard’s past crimen falsi convictions, the court charged the

jury that it was to decide how the convictions affected his credibility. N.T.,

1/4/19, at 126-28.      The jury was free to believe his testimony identifying


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Appellant as the person in his wife’s vehicle.       Moreover, Mr. Howard’s

immediate pursuit and apprehension of Appellant supported Mr. Howard’s

identification of Appellant as the perpetrator. Thus, the verdict does not shock

one’s sense of justice. Appellant’s claim lacks merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/20




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