J-S15031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  :   IN THE SUPERIOR COURT OF
                                                  :        PENNSYLVANIA
                       Appellee                   :
                                                  :
                v.                                :
                                                  :
    KENNETH EDWARD GETSCHOW III                   :
                                                  :
                       Appellant                  :       No. 1180 WDA 2018

         Appeal from the Judgment of Sentence Entered August 7, 2018
                  In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0003168-2017


BEFORE:      GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY GANTMAN, P.J.E.:                               FILED APRIL 30, 2019

        Appellant, Kenneth Edward Getschow III, appeals from the amended

judgment of sentence entered in the Erie County Court of Common Pleas,

following his jury trial conviction of theft by failure to make the required

disposition of funds.1 We affirm.

        The relevant facts and procedural history of this case are as follows. On

December 17, 2015, Appellant and Victim met to discuss home improvement

contracting services for Victim’s home. Appellant presented an itemized list

of labor and supplies totaling $21,609.00, and Victim gave Appellant a check

for $10,000.00 as a deposit.           Victim gave Appellant a second check for

$10,000.00 on January 4, 2016.                 Appellant estimated completion of the


____________________________________________


1   18 Pa.C.S.A. 3927(a).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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project by April 13, 2016. In August 2016, Victim fired Appellant, even though

Appellant had only completed a small amount of the contracted work.

Appellant failed to purchase the supplies as promised and instead used the

funds for purposes unrelated to the renovation of Victim’s home. Appellant

did not refund Victim for the incomplete work or deliver any of the promised

building supplies.

      On November 20, 2017, the Commonwealth charged Appellant with

deceptive or fraudulent business practices, home improvement fraud,

receiving stolen property (“RSP”), and theft by unlawful taking or disposition.

The court held a jury trial from June 18, 2018 to June 20, 2018. After the

close of evidence and prior to submitting the case to the jury, the court

dismissed the charge of theft by unlawful taking or disposition. Additionally,

the court granted the Commonwealth’s motion to amend the charge of RSP to

a charge of theft by failure to make the required disposition of funds received.

Appellant’s counsel objected to the amendment of the information at the time

of amendment and again after the court charged the jury.

      On June 20, 2018, the jury convicted Appellant of theft by failure to

make the required disposition of funds received. On August 6, 2018, the court

sentenced Appellant to 9 to 23½ months’ imprisonment plus 60 months’

probation, and restitution in the amount of $20,000.00. The following day,

the court issued a resentencing order, which reinstated the same aggregate

sentence and restitution amount, and imposed additional supervision


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conditions.    On August 16, 2018, Appellant timely filed a post-sentence

motion. On August 17, 2018, Appellant filed a premature notice of appeal.

On August 21, 2018, the court denied Appellant’s post-sentence motion and

ordered Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).2 Appellant timely complied on September 10,

2018.

        Appellant raises the following issue for our review:

           WHETHER THE TRIAL COURT COMMITTED AN ERROR OF
           LAW AND/OR ABUSE OF DISCRETION WHEN IT SUA
           SPONTE AMENDED THE INFORMATION AFTER THE CLOSE
           OF   EVIDENCE    AND   SUBSEQUENTLY   INTIMATED
           APPELLANT’S GUILT OF THE AMENDED CHARGE TO THE
           FACT-FINDER DURING THE JURY CHARGE[?]

(Appellant’s Brief at 4).

        Appellant argues that the factual scenario to support a conviction for the

amended charge of theft by failure to make required disposition is entirely

different from that of RSP. Appellant contends the Commonwealth’s initial

charge of RSP required theft and fraud upon initial reception of currency, while


____________________________________________


2 Appellant’s notice of appeal relates forward to August 21, 2018, the date the
court denied Appellant’s post-sentence motion. Therefore, there are no
jurisdictional impediments to our review. See Commonwealth v. Borrero,
692 A.2d 158 (Pa.Super. 1997) (explaining general rule that if defendant files
timely post-sentence motion, judgment of sentence does not become final for
purposes of appeal until trial court disposes of motion or motion is denied by
operation of law). See also Commonwealth v. Ratushny, 17 A.3d 1269,
1271 n.4 (Pa.Super. 2011) (explaining if court denies appellant’s post-
sentence motion following filing of premature notice of appeal, Superior Court
will treat appellant’s premature notice of appeal as having been filed after
entry of order disposing of post-sentence motion).

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the amended charge required intent to use the funds for another purpose at

some time in the future.     Appellant avers the amended charge required a

change in defense strategy, and Appellant had no opportunity to change

strategy because the amendment occurred after the close of evidence.

Appellant maintains the court sua sponte amended the information, and not

at the request of the Commonwealth.         Appellant further argues the court

intimated Appellant’s guilt during the jury instructions on the charge of theft

by failure to make required disposition. Appellant submits the court informed

the jury of how Appellant’s acts met the elements of the crime, which impaired

the jury’s ability to render a fair and impartial verdict. Appellant asserts that

the court’s cautionary language used during the jury instructions was

insufficient to cure an error. Appellant concludes this Court should vacate his

judgment of sentence. We disagree.

      Allowing an amendment to the criminal information “is a matter within

the discretion of the trial court, and only an abuse of discretion will constitute

reversible error.” Commonwealth v. Small, 559 Pa. 423, 450, 741 A.2d

666, 681 (1999), cert. denied, 531 U.S. 829, 121 S.Ct. 80, 148 L.Ed.2d 42

(2000).

          [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

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             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.

In   re   D.G.,   114   A.3d   1091,   1094-95    (Pa.Super.    2015)    (quoting

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

      Pennsylvania Rule of Criminal Procedure 564 provides:

          Rule 564. Amendment of Information

          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 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 (emphasis added). See also Commonwealth v. Womack,

453 A.2d 642, 646 (Pa.Super. 1982) (stating amendment to information on

day of trial is permissible if there is no prejudice to defendant). “[T]he purpose

of Rule 564 is to ensure that a defendant is fully apprised of the charges, and


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to avoid prejudice by prohibiting the last minute addition of alleged criminal

acts of which the defendant is uninformed.” Commonwealth v. Mentzer,

18 A.3d 1200, 1203 (Pa.Super. 2011) (quoting Commonwealth v. Sinclair,

897 A.2d 1218, 1221 (Pa.Super. 2006)).

         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.

Id. at 1223 (internal citations omitted).

      The offense of RSP is defined as:

         § 3925. Receiving stolen property

         (a) Offense defined.─A person is guilty of theft if he
         intentionally receives, retains, or disposes of movable
         property of another knowing that it has been stolen, or
         believing that it has probably been stolen, unless the
         property is received, retained, or disposed with intent to
         restore it to the owner.




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         (b) Definition.─As used in this section the word
         “receiving” means acquiring possession, control or title, or
         lending on the security of property.

18 Pa.C.S.A. § 3925.

      The offense of theft by failure to make required disposition of funds

received is defined as:

         § 3927. Theft by failure to make required disposition
         of funds received

         (a) Offense defined.─A person who obtains property
         upon agreement, or subject to a known legal obligation, to
         make specified payments or other disposition, whether from
         such property or its proceeds or from his own property to
         be reserved in equivalent amount, is guilty of theft if he
         intentionally deals with the property obtained as his own
         and fails to make the required payment or disposition. The
         foregoing applies notwithstanding that it may be impossible
         to identify particular property as belonging to the victim at
         the time of the failure of the actor to make the required
         payment or disposition.

18 Pa.C.S.A § 3927(a).

      When reviewing a challenge to a jury instruction:

         [W]e must review the jury charge as a whole to determine
         if it is fair and complete. A trial court has wide discretion in
         phrasing its jury instructions, and can choose its own words
         as long as the law is clearly, adequately, and accurately
         presented to the jury for its consideration. The trial court
         commits an abuse of discretion only when there is an
         inaccurate statement of the law.

Commonwealth v. Baker, 963 A.2d 495, 507 (Pa.Super. 2008), appeal

denied, 606 Pa. 644, 992 A.2d 885 (2010) (quoting Commonwealth v.

Jones, 954 A.2d 1194, 1198 (Pa.Super. 2008), appeal denied, 599 Pa. 708,

962 A.2d 1196 (2008)).

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      Importantly, a specific and timely objection is essential to preserve a

challenge to a particular jury instruction. Commonwealth v. Forbes, 867

A.2d 1268, 1274 (Pa.Super. 2005). Failure to do so results in waiver of the

issue for appeal. Id. Pennsylvania Rule of Appellate Procedure 302 provides:

         Rule 302. Requisites for Reviewable Issue

                                   *    *    *

         (b) Charge to jury. A general exception to the charge to
         the jury will not preserve an issue for appeal. Specific
         exception shall be taken to the language or omission
         complained of.

Pa.R.A.P. 302(b).    Similarly, Pennsylvania Rule of Criminal Procedure 647

states in pertinent part:

         Rule 647. Request for Instructions, Charge to the
         Jury, and Preliminary Instructions

                                   *    *    *

         (B) No portions of the charge nor omissions from the
         charge may be assigned as error, unless specific objections
         are made thereto before the jury retires to deliberate. All
         such objections shall be made beyond the hearing of the
         jury.

Pa.R.Crim.P. 647(B). Thus, a defendant’s failure to object specifically to the

jury charge, before the jury retires to deliberate, precludes appellate review

of that jury charge. Commonwealth v. Gwynn, 555 Pa. 86, 106, 723 A.2d

143, 152 (1999), cert. denied, 528 U.S. 969, 120 S.Ct. 410, 145 L.Ed.2d 320

(1999). See also Commonwealth v. Fisher, 493 A.2d 719, 723 (Pa.Super.

1985) (stating specific objection to jury instructions assures trial court has fair


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opportunity to avoid error).

      Instantly, Appellant received $20,000.00 from Victim to cover itemized

supplies and labor specifically to renovate Victim’s home.             Appellant

subsequently used the funds for purposes unrelated to Victim’s home

renovation and did not purchase supplies as agreed or refund Victim for any

incomplete work. The Commonwealth charged Appellant with deceptive or

fraudulent business practices, home improvement fraud, RSP, and theft by

unlawful taking or disposition. After the close of evidence, the court dismissed

the charge of theft by unlawful taking or disposition, and amended the charge

of RSP to theft by failure to make the required disposition of funds received.

Counsel objected to the amendment of the information at the time and again

after the court charged the jury.     On June 20, 2018, the jury convicted

Appellant of theft by failure to make the required disposition of funds received.

      Regarding Appellant’s claim that the court improperly amended the

information sua sponte, the court addressed that claim as follows:

         First and foremost, …the [c]ourt did not, sua sponte, amend
         Count 3 of the Information. Rather, the court granted the
         motion of the Commonwealth to amend the Information
         upon the close of the evidence[.]

                                  *    *    *

         In each of these crimes, [RSP and theft by failure to make
         required disposition of funds,] the perpetrator must
         intentionally take another person’s property and [use] it as
         his own. Here, [Appellant] intentionally took [Victim’s]
         money, knowing it was not his own, and used it for his own
         purposes. The factual scenario supporting both of these
         charges does not change and the amendment does not add

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       new facts previously unknown to [Appellant].

       [The court notes] that Failure to Make the Required
       [Disposition] of Funds is not a lesser included offense of
       [RSP], Deceptive or Fraudulent Business Practices, Theft by
       Unlawful Taking or Disposition, or Home Improvement
       Fraud. Such a finding, however, does not render [Appellant]
       per se prejudiced by the amendment. Since [Appellant’s]
       amended charge involves the same basic elements and
       evolved out of the same factual situation as the crimes
       specified in the amended indictment or information, he is
       deemed to have been placed on notice regarding his alleged
       criminal conduct.    …    Here, the facts underlying the
       amended charge of Failure to Make the Required
       [Disposition] of Funds are materially similar to the facts
       supporting [Appellant’s] original charges.

       [The court notes] that Counts 1 and 2 are fraud based
       charges which require fraud or intent to defraud; whereas
       Count 3 (as amended) requires [Appellant acted] with the
       intent to use other people’s money as his own. However,
       what is important is that [the] original Count 3, [RSP], was
       a theft offense with no element of fraud just as the amended
       charge of Theft by Failure to Make the Required Disposition
       of Funds is a theft offense with no element of fraud. Theft
       only requires that the defendant act intentionally in
       receiving, retaining or disposing of the property of another.

       Finally, Appellant was not required to raise a new defense
       as a result of the amendment. At trial, [Appellant’s] defense
       was based on the following: 1. [Appellant] was doing
       [Victim] a favor by renovating her house, since he had just
       started his own commercial business; 2. [Appellant] took
       [Victim’s] $20,000.00 but did not charge her for some of the
       work he did; 3. At the beginning, [Victim] was not in a hurry
       for the job to be completed; 4. [Appellant] took…on a
       commercial job in Washington, D.C., which then ran into
       problems and took months longer than anticipated and by
       the time he was able to return to Erie to complete [Victim’s]
       house, she had “thrown him” off the job so he did not have
       the opportunity to complete the work. No different defense
       would have been available to the charge of Failure to Make
       the Required [Disposition] of Funds, which arose out of the
       same facts. Accordingly, [Appellant] was not prejudiced by

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         the [c]ourt’s amendment of the charge.

(Trial Court Opinion, filed October 11, 2018, at 3, 6-8) (internal citations

omitted). The record supports the trial court’s analysis and decision. See 18

Pa.C.S.A. §§ 3925, 3927; Pa.R.Crim.P. 564; In re D.G., supra; Mentzer,

supra; Sinclair, supra.

      Regarding Appellant’s challenge to the jury instruction, Appellant timely

objected to the jury instruction at trial but raised issues materially different

from his claim on appeal.      See Forbes, supra.        In his trial objection,

Appellant’s counsel stated:

         [Counsel]:      This somewhat piggybacks on my objection
         to the [c]ourt’s amending of the Information and the District
         Attorney’s agreeance with the [c]ourt to include the third
         and final charge.       I guess, considering the [c]ourt’s
         instruction, I do believe that it completely alters any kind of
         defense we may have had and the timeliness. It certainly
         didn’t give us enough time to prepare. I would also ask for,
         perhaps, another instruction as to that charge. I think that
         there was a heavy slant towards, that check was only for
         drywall and electric.

         [Court]:       In whole or in part, though?

         [Counsel]:     Well, Your Honor, and, again, I’ll─just for the
         record, I think that that was—instruction was heavily
         slanted only to the drywall and electric, when this clearly
         was for other labor or et cetera.

(N.T. Trial, 6/20/18, at 84-86). Appellant’s objection was primarily directed

toward the amendment of the information, the timing of the amendment, and

its impact on the defense.     The objection is not so clear with respect to

Appellant’s claim on the intimation of guilt in the jury instruction. Appellant


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failed to make a specific objection on the claim of intimation of guilt. See

Pa.R.A.P. 302(b); Gwynn, supra.           Therefore, this claim is waived for

purposes of appeal. See Forbes, supra.

      Further, any issue not raised in a Rule 1925(b) statement will be

deemed waived for appellate review. Commonwealth v. Castillo, 585 Pa.

395, 888 A.2d 775 (2005). An appellant’s concise statement must identify

the   errors   to   be   addressed   on   appeal    with   sufficient   specificity.

Commonwealth v. Dowling, 778 A.2d 683 (Pa.Super. 2001). Thus, a Rule

1925(b) statement that is too vague for the trial court to identify and address

the issue(s) Appellant wishes to raise on appeal can result in waiver.

Commonwealth v. Reeves, 907 A.2d 1 (Pa.Super. 2006), appeal denied,

591 Pa. 712, 919 A.2d 956 (2007).

      Here, Appellant’s Rule 1925(b) statement broadly states the court erred

when it intimated guilt in its instruction regarding the charge of theft by failure

to make required disposition. Appellant did not state with sufficient specificity

how the court intimated guilt. See Dowling, supra. Therefore, his claim is

waived on this ground as well. See Reeves, supra. Accordingly, we affirm

the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/2019




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