J-S76022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    AMINI MAZZAGATTI

                             Appellant                No. 721 EDA 2017


        Appeal from the Judgment of Sentence Entered January 30, 2017
             In the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0002552-2016


BEFORE: PANELLA, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                           FILED MARCH 01, 2018

        Appellant Amini Mazzagatti appeals from the January 30, 2017

judgment of sentence entered in the Court of Common Pleas of Montgomery

County (“trial court”), following her bench convictions for harassment and

disorderly conduct (third-degree misdemeanor).1 Upon review, we vacate and

remand for a new trial.

        On February 29, 2016, Officer John Gibson, East Norriton Police

Department, charged Appellant with disorderly conduct and harassment under

Sections 5503(a)(4) and 2709(a)(5) of the Crimes Code, respectively. The

affidavit of probable cause accompanying the complaint provided in relevant

part:

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S.A. §§ 2709(a)(4) and 5503(a)(4).
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           On Monday, February 22, 2016, at 1310 hours [East
     Norriton Police Officers] responded to 110 Stony Way regarding a
     reported disturbance. Caller, Nikki Hines, reported her upstairs
     neighbor, [Appellant], was throwing items from her balcony onto
     Hines’ porch. [Appellant] resides at 124 Stony Way, East Norriton
     Township, Montgomery County, Pennsylvania.

            On arrival, [Officer Gibson] met Hines on her porch. The
     porch area of 110 Stony Way is situated under the upstairs
     balcony of 124 Stony Way, [Appellant’s] residence. [Appellant]
     reportedly had gone back inside her residence prior to [Officer
     Gibson’s] arrival. Hines related she was simply standing on her
     porch, smoking, when suddenly a[n] unknown liquid was poured
     onto her glass table. Hines stepped out from her porch and looked
     up. Hines said she saw [Appellant] standing on her balcony.
     [Appellant] reportedly then threw several items over her balcony
     onto Hines’ porch. These items included; dirt from a potted plant,
     liquid from a glass, a glass container, raspberries, and various
     pieces of trash which all hit the ground/porch area very close to
     where Hines was standing. Hines yelled at [Appellant] to stop.
     Upon seeing Hines, [Appellant] reportedly began screaming at
     Hines, caller her “ugly” and “a drug addict.” [Appellant] then
     reached over the balcony and sprayed a[n] unknown liquid from
     an aerosol can, pointing it directly at Hines. [Appellant] then went
     back into her residence. Hines related this is an ongoing course
     of conduct perpetrated by [Appellant]. A course of conduct that
     has placed Hines in a constant state of alarm and fear [over] what
     [Appellant] is going to do next.

           Hines completed a written statement regarding the incident.
     Looking around the porch area, [Officer Gibson] observed damage
     consistent with Hines’ statements. A round glass table on the
     porch was covered in what appeared to be iced tea and fresh
     potted plant dirt. There were several smashed raspberries on the
     porch and on a child’s toy bike. [Officer Gibson] took photographs
     of the area[.] . . . Looking up at the balcony to [Appellant’s]
     residence, [Officer Gibson] observed multiple potted plants, glass
     jars, and other decorative items similar to the debris on Hines’
     porch.

            At 1525 hours this date, [the officers] returned to 110 Stony
     Way regarding another disturbance. On arrival, [Officer Gibson]
     again spoke with Hines on her front porch. Hines related having
     just finished cleaning up her porch when [Appellant] threw a full
     potted plant down onto her glass table. The table and surrounding
     area was covered in potted plant dirt and shards of red clay from
     a broken planter. Hines advised she was at a next door neighbor’s
     residence when she heard something smash outside.                She
     returned to her residence to find the damage. Hines advised
     another neighbor, Dominic Milito, saw [Appellant] stand on her
     balcony and throw the potted plant onto her table. Milito did
     speak with [another officer] while [Officer Gibson] was speaking
     with Hines. Milito advised [the other officer] he was seated in his
     truck, parked in front of 112 Stony Way when he saw [Appellant]

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     pick up a potted plant from her balcony and throw it onto the
     porch of 110 Stony Way, Hines’ residence. Milito provided a
     written statement regarding his observations.

     [The officers] were able to make contact with [Appellant, who]
     denied throwing anything from her balcony. [Appellant] did admit
     to spraying something from an aerosol can over her balcony,
     advising it was only because Hines was smoking.

           [Officer Gibson] conducted a search of Police reports
     involving [Appellant] and Nikki Hines over the past calendar year.
     [He] discovered thirteen reports not including this one.

Affidavit of Probable Cause, 3/1/16 (emphasis added) (sic). In addition, on

the day of the incident, Hines provided the police with a written statement,

accusing Appellant of calling her “ugly,” and “trash,” and stating that Hines

had “no life” and “smoke[d] weed.” Statement Form, 2/22/16, attached to

Appellant’s Brief (emphasis added). Eventually, Appellant was held for court

on all charges. On January 30, 2017, the Commonwealth filed an information,

charging Appellant with harassment and disorderly conduct, the same crimes

as those charged in the criminal complaint.

     On the same day, the trial court conducted a bench trial, at the

beginning of which the Commonwealth moved to amend the criminal

information as to both crimes.    The Commonwealth orally moved, under

Pa.R.Crim.P. 564, to amend the charge of harassment from subsection (a)(5)

to (a)(4) and the grading of the charge of disorderly conduct from a summary

offense to a misdemeanor in the third degree consistent with Section 5503(b).

Section 2709(a) provides in pertinent part:

     A person commits the crime of harassment when, with the intent
     to harass, annoy or alarm another, the person:
       ....


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       (4) communicates to or about such other person any lewd,
       lascivious, threatening or obscene words, language, drawings
       or caricatures;

       (5) communicates repeatedly in any anonymous manner[.]

18 Pa.C.S.A. § 2709(a)(4), and (5) (emphasis added).              Under 5503(b),

disorderly conduct “is a misdemeanor of the third degree if the intent of the

actor is to cause substantial harm or serious inconvenience, or if he persists

in disorderly conduct after reasonable warning or request to desist.

Otherwise, disorderly conduct is a summary offense.” 18 Pa.C.S.A. § 5503(b)

(emphasis added).         In support of the amendments, the Commonwealth

argued that “[t]he offenses charged here arise from the exact same set of

facts and circumstances, and [Appellant] has been put on notice as to the

facts that will attempted to be proven by the Commonwealth today.” N.T.

Trial, 1/30/17, at 4 (sic). Over Appellant’s objection,2 the trial court granted

the Commonwealth’s motion to amend the information. Id. at 5-6. At trial,

among others, Hines testified about the February 22, 2016 incident:

             On that day I went outside to smoke a cigarette. I smoke
       outside. And I was on my patio, and [Appellant’s] balcony is
       above mine. And when I was out there, there was snow, it just
       snowed recently, and there was a big thing of like water or ice or
       something that like fell down on the table.

              At first, like, I mean, it scared me, and I thought it was, you
       know, a gutter that fell or something like that. So then I was like,
       okay. And then a couple seconds later, there was trash being
       thrown down, trash, paper. There was bread, batteries, being
       spattered over, and then other debris of things just being thrown
       over. So now I know it wasn’t that. There was also spray being
       sprayed down. I don’t know if it was Lysol, Febreze or something
       like that being sprayed down over [Appellant’s] balcony onto me.
____________________________________________


2Appellant argued that subsection (a)(4) represents a “different” charge from
subsection (a)(5). N.T. Trial, 1/30/17, at 5.

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            And then there was a glass bottle thrown over that, actually,
      went over the balcony, over to common ground on the sidewalk.
      So, I mean, I looked out up at first, just kind of looked up, and I
      did see her throwing this stuff, and then I had went back under
      and I called the police, and then the police came. And then they
      had, you know, collected glass, talked to me. I believe they talked
      to [Appellant.] And then we went back – I went back inside.

            And then I was actually going over to clean my neighbor’s
      house who lives at 112 Stony Way, and there was things, you
      know, constant things being said, you know: I’m done. I’m a
      loser. I’m a skank. I’m a drug addict.

       ....

            Well, [Appellant] was saying it as things were being thrown
      down, you know, I’m a bitch and this and that. And then again
      after the police had come, you know, I went over to clean, and
      things were being said again. There was a mailman that was
      actually walking up as well . . . .

       ....

      The mail man was just walking by and [Appellant] started saying
      things to the mailman about me saying I’m a dog and to watch
      me, and I’m a dog, you know, I’m a dog and this and that, which
      I do have on video.

Id. at 12-14 (emphasis added). At the conclusion of trial, the trial court found

Appellant guilty of harassment under subsection (a)(4) of the Crimes Code

and disorderly conduct, graded as a third-degree misdemeanor.          The trial

court sentenced Appellant to, inter alia, one year of probation on each count,

to run consecutively.   Thus, Appellant received an aggregate term of two

years’ probation.   On February 7, 2017, Appellant filed a post-sentence

motion, which the trial court denied on February 13, 2017. Appellant timely

appealed to this Court. Appellant filed of a Pa.R.A.P. 1925(b) statement of

errors complained of on appeal. In response, the trial court issued a Pa.R.A.P.

1925(a) opinion, concluding, among other things, that it did not abuse its

discretion in permitting the Commonwealth to amend the information by


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replacing subsection (a)(5) with (a)(4). Specifically, the trial court found that

“[t]he amended charges arise from the same factual scenario, so no surprise

could have resulted.”       Trial Court Opinion, 6/1/17, at 14.   The trial court

further found that “[t]he facts alleged by the Commonwealth were unchanged,

they had never alleged that the communications in this case were

anonymous,3 and [Appellant] was on notice that she was alleged to have

called the victim inappropriate names like bitch, skank, drug addict, and a

dog.” Id. at 15. With respect to Appellant’s sufficiency claim, the trial court

concluded that she was guilty of harassment under subsection (a)(4) because

Appellant “called Ms. Hines a “skank” multiple times, including while a

mailman was walking by. By calling Ms. Hines a “skank” repeatedly, both to

her face and in front of the mailman, [Appellant] communicated to and about

the victim lewd words.”4 Id. at 8. (emphasis added).

       On appeal, Appellant presents three issues for our review:



____________________________________________


3 For purposes of this appeal, it is immaterial whether the Commonwealth
would have established harassment under subsection (a)(5). Any suggestion
that the Commonwealth never intended to charge Appellant under subsection
(a)(5) must be rejected, because the Commonwealth failed to raise it before
the trial court.
4 The trial court cited the Oxford English Dictionary to find that the term skank
is defined “as a woman who has many casual or sexual encounters or
relationships.” Trial Court Opinion, 6/1/17, at 8 (internal citation omitted).
Moreover, citing the Cambridge English Dictionary, the trial court further
found that skank refers to “an unpleasant person, especially a woman who
has sex with a lot of different people.” Id. Based primarily on these sources,
the trial court concluded that “calling someone a skank is lewd as it says the
victim is sexually unchaste.” Id.

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       [I.] Whether the evidence was insufficient as a matter of law to
       support conviction on count 1 charging harassment.

       [II.] Whether the trial court erred in allowing an amendment to
       the bills of information.

       [III.] Whether the trial court erred in denying Appellant’s
       challenge to the weight of the evidence as the charges of
       disorderly conduct and harassment.

Appellant’s Brief at 7 (unnecessary capitalization omitted).

       We first address Appellant’s second argument that the trial court abused

its discretion in permitting the last-minute amendment by the Commonwealth

of the charge of harassment. See Appellant’s Brief at 27.

       It is settled that the “[t]he decision of whether to allow the

Commonwealth to amend the Informations [sic] 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),

cert. denied, 531 U.S. 829, 121 S. Ct. 80 (2000).

       At the relevant time, Pennsylvania Rule of Criminal Procedure 564

provided:

       The court may allow an information to be amended when there is
       defect in form, the description of the offense(s), the description of
       any person or any property, or the date charged, provided the
       information as amended does not charge an additional or
       different offense. 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 (emphasis added).5

____________________________________________


5  Effective December 21, 2017, Rule 564 has been amended “to more
accurately reflect the interpretation of this rule that has developed since it
first was adopted in 1974.” Pa.R.Crim.P. 564, cmt. However, the amended
version is not applicable sub judice.

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      As we explained in Commonwealth v. Page, 965 A.2d 1212 (Pa.

Super. 2009), appeal denied, 74 A.3d 125 (Pa. 2013):

      The purpose of this rule 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 when
      evaluating a challenge to an amended information was set forth
      in Commonwealth v. Bricker, 882 A.2d 1008, 1019 (Pa. Super.
      2005) (citation omitted), as follows:

            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.
            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 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.

      Relief is warranted only when the amendment to the information
      prejudices a defendant.      Factors to be considered when
      determining whether Appellant was prejudiced by the
      Commonwealth’s amendment include whether the amendment
      changes the factual scenario; whether new facts, previously
      unknown to appellant, were added; whether the description of the
      charges changed; whether the amendment necessitated a change
      in defense strategy; and whether the timing of the request for the
      amendment allowed for ample notice and preparation by
      appellant.


Page, 965 A.2d at 1223-24 (internal citation and quotation marks omitted)

(emphasis added). We recently held that the trial court abused its discretion

in permitting the Commonwealth to amend the information to add a new

charge where “[t]he Commonwealth injected [the] new charge into this case

at the eleventh hour in clear disregard for rules whose purpose is to give the




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defendant a fair opportunity to        prepare and present her defense.”

Commonwealth v. Williams, 166 A.3d 460, 464 (Pa. Super. 2017).

      Here,   Appellant   argues   that,   at   the   beginning   of   trial,   the

Commonwealth moved to amend the information, which, as the docket

indicates, was filed a few hours earlier, because it sought to change subsection

(a)(5) to (a)(4).    According to Appellant, the trial court’s grant of the

Commonwealth’s motion was an abuse of discretion. Appellant argues that

permitting the Commonwealth to change subsection (a)(5) to (a)(4) of Section

2709 (harassment) not only added different elements, but also added different

facts previously unknown to her. Appellant argues that she was unaware and

uninformed that the Commonwealth was going to establish that she used lewd

language toward Hines by introducing evidence at trial that Appellant referred

to Hines as a “skank.” See Appellant’s Brief at 32. Specifically, Appellant

claims:

      The discovery indicated that the words used were “ugly”, “trash”,
      “no life”, “smoke weed” in referring to [Hines]. In the affidavit of
      probable cause, the words “ugly” and “drug addict” were reported.
      At trial, however, the evidence was changed to the words bitch,
      dog, drug addict and skank and the trial court focused on the word
      skank to support the harassment conviction.

Id.

      Based on our review of the record, we are constrained to agree with

Appellant.    Here, the record reveals that the Commonwealth charged

Appellant with harassment under subsection (a)(5), which contains the

element “communicates repeatedly in an anonymous manner.” In support



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of this charge, the Commonwealth alleged that Appellant referred to Hines as

“ugly,” and a “drug addict.” In addition, during discovery, the Commonwealth

provided Appellant with Hines’ written statement wherein she accused

Appellant of calling her “ugly,” and “trash,” and remarking that Hines had “no

life” and “smoke[d] weed.”

      On the day of trial, the Commonwealth not only filed the information,

but orally moved to amend it at the beginning of trial.        In so doing, the

Commonwealth asked the trial court for permission to change subsection

(a)(5) to (a)(4), which contains the element of “communicates to or about

such other person any lewd, lascivious, threatening or obscene words,

language, drawings or caricatures.”           In support of its motion, the

Commonwealth represented to the trial court that “the offenses charged here

arise from the exact same set of facts and circumstances, and [Appellant]

has been put on notice as to the facts that will attempted to be proven by the

Commonwealth today.” N.T. Trial, 1/30/17, at 4 (emphasis added). At trial,

however, instead of relying on facts previously disclosed to Appellant via the

criminal complaint and discovery, the Commonwealth presented new facts

previously unknown to Appellant. Specifically, the Commonwealth presented

the testimony of Hines, who, for the first time, stated that Appellant had called

her bitch, dog, and a skank. Focusing and relying on the term “skank,” the

trial court concluded that Appellant harassed Hines by using lewd language

toward her in violation of subsection of (a)(4). Because harassment under

subsection (a)(4) and (a)(5) contains different elements and because the

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Commonwealth disclosed new facts to Appellant for the first time during trial,

the trial court abused its discretion in granting Commonwealth’s motion to

amend the information.         Appellant was not afforded a fair opportunity to

prepare and present her defense to harassment under subsection (a)(4).6

Accordingly, we vacate Appellant judgment of sentence and remand this case

to the trial court for a new trial.7

       Judgment of sentence vacated.               Case remanded.   Jurisdiction

relinquished.

       Judge Panella joins this memorandum.

       Judge Platt concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/18




____________________________________________


6 To the extent the trial court found that Appellant was “on notice that she
was alleged to have called the victim inappropriate names like bitch, [and]
skank,” such finding is not supported by the record as detailed above. At no
point prior to trial did the Commonwealth disclose to Appellant that she was
accused of referring to Hines by those words.
7 Based on the outcome of this case, we need not address Appellant’s
remaining issues.

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