J-S64008-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BRIAN KEITH GREENE

                            Appellant                No. 109 WDA 2014


         Appeal from the Judgment of Sentence September 25, 2012
                In the Court of Common Pleas of Blair County
            Criminal Division at No(s): CP-07-CR-0001064-2011


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

MEMORANDUM BY LAZARUS, J.:                       FILED NOVEMBER 12, 2014

       Brian Keith Greene appeals nunc pro tunc from his judgment of

sentence, entered in the Court of Common Pleas of Blair County, after a jury

found him guilty of the crime of intimidation of witness or victim (F-3).1

Greene was sentenced to 12 (less one day) to 24 months’ (less two days)

imprisonment. After careful review, we affirm.

       Greene’s girlfriend, Brenda Lafferty, was involved in two controlled

drug buys with a confidential informant, William T. Weyant.     On May 24,

2011, Lafferty was arrested for the drug deliveries. Weyant gave police a

statement indicating that on that same date, Greene threatened him over
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1
  18 Pa.C.S. § 4952(a)(1). Greene had also been originally charged with
retaliation against a witness or victim, 18 Pa.C.S. § 4953(a), however, the
court granted defense counsel’s motion for a directed verdict on that charge.
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the telephone, “About a [sic], you know, me getting [Greene’s girlfriend] in

trouble and that I was a snitch and that I was going to get beat for it.” N.T.

Jury Trial, 4/12/12, at 51.    Although Weyant stated that Greene did not

indicate he would do anything to him if he testified against Lafferty, N.T.

Jury Trial, 4/12/12, at 28, Weyant immediately changed his telephone

number following Greene’s threatening call, id. at 55, gave the above-

quoted statement to police, and filed charges against Greene.         Id. at 57.

Weyant also testified that Greene’s threat did not scare him, id. at 82, but

that he believed that Greene was going to try to assault him, id., and that

he changed residence as a result of the threat. Id.   At     trial,      Greene

testified on his own behalf, consistently claiming that he never made the

alleged threatening phone call to Weyant.

      A jury ultimately convicted Greene of intimidation of a witness and the

court sentenced him to 12 months’ (less one day) to 24 months’ (less two

days) imprisonment. Greene filed post-sentence motions that were denied

by the trial court. This timely appeal follows.

      On appeal, Greene presents the following issues for our consideration:

      (1)   Whether the trial court erred in permitting amendment of
            the information, charging a violation of 18 Pa.C.S. §
            4952(a)(1) by adding elements indicative of violation of 18
            Pa.C.S. § 4952(a)(2) and of 18 Pa.C.S. § 4952(a)(3) which
            prejudiced the appellant.

      (2)   Whether the trial court abused its discretion or committed
            error in failing to grant the motion for new trial when the
            putative object of intimidation testified that he had moved
            following a purported telephone threat from the appellant,
            even though the appellant presented evidence at the post-

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              sentence motions hearing that such move antedated the
              purported telephone threat, thereby negating the
              Commonwealth’s evidence.

       (3)    Whether the trial court erred by denying the motion for
              judgment of acquittal inasmuch as the evidence did not
              suffice to convict of the offense of intimidation of witness,
              18 Pa.C.S. § 4952(a)(1), by failing to prove the requisite
              intent and the elements required by 18 Pa.C.S. §
              4952(b)(1) and 18 Pa.C.S. § 4952(b)(4), which increase
              the offense’s grading to a felony of the third degree and
              the maximum term from two years to seven years.

       Greene argues that the Commonwealth improperly amended the bill of

information which originally charged Greene with the offense of witness

intimidation under subsection 4952(a)(1). At trial, the court permitted the

Commonwealth to orally amend Count 1 from the bill of information to

include the conduct proscribed in subsections (a)(2) and (a)(3) of section

4952.2    Greene asserts that he was prejudiced by the amendment, which

caused him to change his defense.

       When presented with a question concerning the propriety of an

amendment, a court considers 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. Commonwealth v. Mentzer, 18 A.3d 1200 (Pa.

Super. 2011). If so, then the defendant is deemed to have been placed on

notice regarding his alleged criminal conduct. Id. If, however, the amended
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2
  Interestingly, however, Greene was convicted of the original charge under
section 4952(a)(1).



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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. Id.

      Moreover, when our Court reviews a trial court’s decision to grant the

amendment of an information, we will look to:

      whether the defendant was fully apprised of the factual scenario
      which supports the charges against him. Additionally, where the
      crimes specified in the original information involved the same
      basi[c] elements and arose out of the same factual situation as
      the crime added by the amendment, the defendant is deemed to
      have been placed on notice regarding his alleged criminal
      conduct and no prejudice to the 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 of
      the Commonwealth's request for amendment allowed for ample
      notice and preparation.

Id. at 1202-1203 (citations omitted).

      Instantly, the crime charged in Greene’s original information, 18

Pa.C.S. § 4952(a)(1), arose out of the same factual situation and involved

the   same   basic elements as the      crimes specified in the      amended

information, 18 Pa.C.S. §§ 4952(a)(2) and (a)(3). The factual situation is

the same in all cases; i.e., the alleged telephonic threat made by Greene to

Weyant.   Moreover, the elements in the amended charges (subsections of


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section 4952(a)) were not materially different from those found in the

original charge (subsection (a)(1)). As the Commonwealth notes, the only

difference among the subsections is that under (a)(1) the defendant is

attempting to prevent a witness or victim from reporting a crime, whereas

under subsections (a)(2) and (a)(3), the defendant is attempting to prevent

a witness or victim from testifying or truthfully following up with a

prior report.

      In all of the crimes alleged, Greene was charged with attempting to

prevent a witness from offering information concerning the drug activity with

which Lafferty was allegedly involved.     Because the elements were not

materially different regarding the different subsections charged, we find that

Greene was placed on notice regarding his alleged criminal conduct.

Commonwealth v. Mosley, 585 A.2d 1057 (Pa. Super. 1991).

      Additionally, we find that the amendment did not prejudice Greene or

affect his defense. At trial, Greene’s defense consisted of denying that he

ever made the alleged threatening phone call to Weyant.       N.T. Jury Trial,

4/12/12, at 218; 224; 226. Based on the circumstances, the amendment

would not have altered Greene’s defense. Therefore, he is afforded no relief

on this issue. Mentzer, supra.

      Greene next asserts that the court erred in failing to grant him a new

trial when he presented evidence at his post-sentence motion hearing that

Weyant never actually changed his residence after the allegedly threatening

phone call.

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       At trial, Weyant testified that he had relocated to a new residence

after the threatening incident. N.T. Jury Trial, 4/12/12, at 35. However, at

the post-sentence motion hearing, Greene had the record keeper for

Weyant’s employer, Altoona Pipe and Steel, testify that Weyant actually

noted a change of address in his personnel file on April 8, 2011 – 46 days

prior to the alleged incident. However, Weyant explained at the hearing that

he did not actually move on that date, but remained in his current home and

actually moved immediately following the alleged incident. Accepting this as

true, this evidence, if believed by the jury, would not have affected the

outcome of trial.      Commonwealth v. Bonaccurso, 625 A.2d 1197 (Pa.

Super. 1993) (when appellate court examines decision of trial court to grant

new trial on basis of after-discovered evidence, it asks only if trial court

committed abuse of discretion or error of law which controlled the outcome

of the case).

       Greene’s final claim on appeal concerns the sufficiency of the evidence

offered by the Commonwealth to prove his guilt under section 4952(a)(1).

Specifically, Greene asserts that the Commonwealth failed to prove the

requisite intent element that increased the offense’s grading to a third-

degree felony under section 4952(b).3 He also alleges that the evidence was


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3
  Pursuant to section 4952, if the offense is not graded as a first, second, or
third-degree felony, “the offense is a misdemeanor of the second degree.”
18 Pa.C.S. § 4952(b)(5).



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insufficient to prove that the purpose of Greene’s phone call was to prevent

Weyant from reporting or informing the authorities about Lafferty’s criminal

acts or that the call was made in order to interfere with the administration of

criminal justice.

      Under section 4952(b)(4), “the offense [of intimidation of a witness is

a] felony of the third degree in any other case in which the actor sought to

influence or intimidate a witness or victim as specified in this subsection.”

18 Pa.C.S. § 4952(b)(4) (emphasis added).         The predicates for grading

under this section are set forth in section 4952(b)(1), which states “[t]he

actor employs force, violence or deception or threatens to employ force or

violence, upon the witness or victim or, with the requisite intent or

knowledge upon any other person.” 18 Pa.C.S. § 4952(b)(1)(i) (emphasis

added).

      Here, the Commonwealth offered evidence that Greene verbally

threatened to assault Weyant for his involvement in the prosecution of

Lafferty for drug charges.     This testimony was sufficient to prove the

requisite “knowledge” element under section 4952(b) that would suffice for a

third-degree felony conviction under section 4952(a)(1).        The fact that

Greene never actually physically assaulted his victim is not determinative of

a guilty verdict under section 4952; all that is required is an attempt to




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intimidate.4 See Commonwealth v. Brachbill, 527 A.2d 113 (Pa. Super.

1987) (intimidation of witness or victim under section 4952 does not require

proof of threatening conduct).

       Moreover, based on the proximity in time between the alleged

threatening phone call and Lafferty’s arrest on the drug charges, the jury

could reasonably infer from the evidence that the call was made with the

intent to intimidate Weyant so that he would not report any information to

authorities about Lafferty’s involvement in the two controlled drug buys.

See Commonwealth v. Johnson, 910 A.2d 60 (Pa. Super. 2006) (in

reviewing sufficiency claim, court is required to view evidence in light most

favorable to verdict winner, giving prosecution benefit of all reasonable

inferences to be drawn from evidence); see also 18 Pa.C.S. § 4952(a)(1)

(person commits intimidation of witness where he has intent to interfere

with administration of justice by intimidating witness to refrain from

informing authorities concerning information related to commission of

crime).



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4
  In addition, in Commonwealth v. Felder, 75 A.3d 513 (Pa. Super. 2013),
our Court explained that the grading of the crime of intimidation of a witness
is based upon the highest degree of the offense charged in the case. Id. at
517. Here, Greene was charged in the case with two third-degree felonies,
intimidation of witnesses (section 4952(a)(1)) and retaliation against witness
(section 4953(a)). Instantly, the court convicted Greene under section
4952, graded as a third-degree felony. Thus, the grading of his offense also
complied with the rule announced in Felder.



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      Finally, to the extent that Greene argues that the Commonwealth did

not prove that Greene actually made the threatening phone call to Weyant,

we reiterate that a sufficiency of the evidence argument that is founded

upon a mere disagreement with the credibility determinations made by the

fact finder, or discrepancies in the accounts of the witnesses, does not

warrant appellate relief. Johnson, supra. It is within the province of the

fact finder to determine the weight to be accorded each witness's testimony

and to believe all, part, or none of the evidence introduced at trial. Id.

      Here, the trial judge noted in his closing statement to the jury that this

case came down to a credibility determination regarding Greene’s defense

and Weyant’s allegation of a threatening telephone call. We will not disturb

the fact finder’s credibility determinations where they are supported by the

evidence. Id.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2014




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