J-S28003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                              :        PENNSYLVANIA
                                              :
                 v.                           :
                                              :
                                              :
 PATRICIA LYNN CHASE                          :
                                              :
                        Appellant             :   No. 1996 MDA 2018

     Appeal from the Judgment of Sentence Entered November 7, 2018
    In the Court of Common Pleas of Franklin County Criminal Division at
                      No(s): CP-28-CR-0001039-2016


BEFORE:     BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                               FILED AUGUST 28, 2019

      Patricia Lynn Chase appeals the November 7, 2018 judgment of

sentence imposing nine to twenty-four months of imprisonment after a jury

convicted her of theft by deception and criminal conspiracy. We affirm.

      During March 2015, Corrine Townsend, a resident of New Jersey,

purchased    a        2005   Toyota   Camry   from   Appellant   after   seeing   an

announcement on Craigslist. While the advertisement listed Appellant’s co-

defendant, Christopher McGowan, as the designated contact, McGowan

explained that he was unavailable and that Ms. Townsend could come to

Pennsylvania and purchase the car from a family friend who was later

identified as Appellant. There was no discussion about the title or ownership

of the car; McGowan informed Ms. Townsend that she would have to get a

duplicate title because he lost the original. The purchase price was $2,500.00.



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      On March 1, 2015, Ms. Townsend and her son drove from New Jersey

to a UPS Store in Franklin County in order to purchase the vehicle. When Ms.

Townsend arrived, she met with Appellant.      Ms. Townsend paid Appellant

$2,500.00, and Appellant completed a bill of sale authorized by the Arkansas

Department of Finance and Administration, which they both signed.        See

Commonwealth Exhibit 1.      Appellant also provided Ms. Townsend with a

photocopy of the certificate of title issued by Arkansas on May 14, 2014. See

Commonwealth Exhibit 2.       Significantly, the photocopy, which identified

“McGowan, Chris[topher] or Chase, Patricia ” as the owner, did not indicate

that the vehicle was subject to a lien.   Id. As Appellant needed a tool to

remove the existing license plate from the Toyota prior to transferring the

vehicle to Ms. Townsend, Appellant guided Ms. Townsend to Appellant’s home.

N.T., 9/28/18, at 7-8.

      Upon returning to New Jersey, Ms. Townsend attempted to register the

vehicle but required the original certificate of title issued by Arkansas or a

duplicate certificate issued by that state.   Thereafter, Ms. Townsend sent

McGowan documents for him to execute and a money order, which she was

informed were needed to obtain the duplicate title.    Neither McGowan nor

Appellant responded.     Eventually, McGowan informed her that he did not

receive the documents.     Ms. Townsend transmitted another money order

along with the proper documentation for Appellant or McGowan to execute.

      After McGowan completed the documents and returned them to the

correct Arkansas authority, Ms. Townsend learned that LoanMax, a financial

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services company, held a lien on the vehicle’s title due to an unpaid car loan

in Appellant’s name.    Id. at 13; Commonwealth Exhibit 4.         Appellant had

obtained the loan from LoanMax in September 2014, and pursuant to the

concomitant security agreement, LoanMax held a lien against the vehicle until

the debt was paid.      Specifically, the security agreement stated that the

borrower would “not attempt to transfer any interest in the Motor Vehicle,

permanently move the Motor Vehicle from [the] current state of residence, or

obtain a duplicate certificate of title to the Motor Vehicle until all obligations

[of the loan] have been paid in full.” Commonwealth Exhibit 5, at 2; N.T.,

9/28/18, at 35-37.

      Thus, Appellant could not effectively transfer ownership of the vehicle

until she first satisfied the encumbrance. However, the record reveals that

Appellant did not make any payments on the loan after November 2014,

approximately four months before she purported to sell the car to Ms.

Townsend for $2,500.00. N.T., 9/28/18, at 16, 34. Indeed, on February 2,

2015, one month prior to the transaction that is the genesis of the underlying

offenses, Arkansas issued to LoanMax a new certificate of title identifying

Appellant as the sole owner of the vehicle and LoanMax as the lienholder.

      Unable to register the $2,500.00 vehicle or obtain a license plate issued

by any state, Ms. Townsend sought the assistance of the Franklin County

Police Department. The Commonwealth initially charged Appellant with one

count of theft by deception in connection with the sale of a motor vehicle

without clear title in 2015, but approximately six weeks prior to the trial, it

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amended the information to include one count of conspiracy to commit theft

by deception. A jury convicted Appellant of both charges, and the trial court

imposed concurrent sentences of nine to twenty-four months of incarceration

for each offense.

      On December 7, 2018, Appellant filed a notice of appeal and filed a

timely concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. § 1925(b). Appellant raises two questions for our consideration,

which we reordered for ease of disposition:

      1.    Whether the jury’s verdict of guilty for theft by deception
      was against the sufficiency of the evidence because there was [no]
      evidence of an intent to defraud the buyer where the [Appellant]
      provided the buyer with her real name, provided verification of
      her identity, and allowed the buyer to come to her home disclosing
      her residence?

      2.    Whether the trial court’s decision to grant the
      Commonwealth’s motion to amend the criminal information over
      Defendant’s objection was error where the motion was made the
      day before a scheduled jury trial and the amendment violated
      [Pa.R.Crim.P. Rule 564] which states that the amendment “does
      not charge an additional or different offense”?

Appellant’s   brief   at   2-3   (unnecessary   capitalization   omitted).   The

Commonwealth failed to file a brief in this appeal.

      We evaluate sufficiency of the evidence under well-established

principles: “our standard of review is de novo, however, our scope of review

is limited to considering the evidence of record, and all reasonable inferences

arising therefrom, viewed in the light most favorable to the Commonwealth




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as the verdict winner.” Commonwealth v. Rushing, 99 A.3d 416, 420–21

(Pa. 2014).

      A person commits theft by deception if she intentionally obtains or

withholds property of another by deception. Hence, to convict Appellant of

the offense, the Commonwealth was required to demonstrate that she “(1)

create[d] or reinforce[d] a false impression, including false impressions as to

law, value, intention or other state of mind[.]” 18 Pa.C.S. § 3922(a).

      Appellant argues that the Commonwealth failed to adduce sufficient

evidence of her intent to defraud. She highlights the facts that she met Ms.

Townsend and her son in a public place during daylight and invited Ms.

Townsend to her home in order to remove the license plate. Relying upon

these acts of openness, Appellant argues that her actions belie any finding of

deception. For the following reasons, we disagree.

      The trial court reasoned that there was sufficient circumstantial evidence

presented at trial to establish Appellant’s criminal intent. While Appellant’s

co-defendant previously communicated to Ms. Townsend that the title was

“lost,” Appellant failed to inform her that the title was subject to a lien that

precluded her from transferring ownership of the vehicle.            The court

determined that the jury could reasonably infer that Appellant had the

requisite intent to deprive Ms. Townsend of $2,500.00 because she took out

a loan on the vehicle, failed to pay it, and then sold the vehicle to Ms.

Townsend. Accordingly, the trial court held that the circumstantial evidence


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surrounding Appellant’s failure to inform Ms. Townsend at any point during

the transaction that the vehicle’s title was, in fact, encumbered by a lien that

precluded that sale, was sufficient to support the conviction of theft by

deception. We agree.

      Instantly, the intent to defraud is manifest in the evidence regarding

Appellant’s failure to disclose to Ms. Townson the existence of the lien held by

LoanMax. Thus, notwithstanding Appellant’s honesty regarding her identity

and the location of her residence, the fact remains that Appellant knew that

she could not legally transfer title of the vehicle until she satisfied the debt

owed to LoanMax, and she failed to advise Ms. Townsend of that vital fact.

Moreover, Appellant did not satisfy the loan with the proceeds of the sale.

Accordingly, viewing the evidence in the light most favorable to the

Commonwealth, the certified record sustains the trial court’s finding that

Appellant intentionally deprived Ms. Townsend of $2,500.00 by creating the

false impression that she could transfer to Ms. Townsend valid and

unencumbered title to the vehicle in exchange for the $2,500.00 that she

accepted during the transaction. Appellant’s claim fails.

      Next, we address Appellant’s contention that the trial court erred in

permitting the Commonwealth to amend the information immediately prior to

trial. The decision of whether to allow the Commonwealth to amend

information is a matter within the discretion of the trial court. Only an abuse

of discretion will constitute reversible error. Commonwealth v. Small, 741


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A.2d 666, 681 (1999). “An abuse of discretion requires proof of more than a

mere error in judgment, but rather evidence that the law was misapplied or

overridden, or that the judgment was manifestly unreasonable or based on

bias, ill will, prejudice, or partiality.” Simmons v. Simmons, 723 A.2d 221,

222-223 (Pa.Super. 1998).

      Pursuant to Pa.R.Crim.P. 564:

      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.

      Presently, the question is whether the Commonwealth’s addition of one

count of conspiracy to commit theft by deception the day before the trial

violates Rule 564. To constitute a violation, the new count would have to arise

from a different set of events and be materially different from the original

charge so as to unfairly prejudice Appellant.      Conversely, if there is no

prejudice, the amendment of the information is allowed up to and including

the day of trial. See Commonwealth v. Sinclair, 897 A.2d 1218, 1224 (Pa.

2006).

   To determine if a defendant is prejudiced, this Court considers six factors:

      (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

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      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. Witmayer, 144 A.3d 939, 947 (Pa. 2016).                  Stated

another way, the test is “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.” Sinclair, supra at 1221.

      Appellant argues that the amendment was prejudicial because it

heightened the level of involvement each co-defendant had in the sale of the

vehicle, which alters the factual scenario.    Appellant also claims that the

amendment adds new facts to the case because it changes the relationship

and involvement of the co-defendants, warranting a change in strategy.

Finally, Appellant argues that the timing of the amendment left little time for

notice and preparation.

      In denying relief, the trial court concluded that the amendment did not

add new facts previously unknown to the defendants, and that the charge of

conspiracy logically and factually arose from a fair reading of the affidavit of

probable cause. Further, the only reasons that additional facts relevant to the

conspiracy were not fully developed at the preliminary hearing was because

McGowan failed to appear and Appellant chose to waive her preliminary

hearing. Finally, the court noted that Appellant did not seek to continue the




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trial when the Commonwealth notified her of its intent to add the charge of

conspiracy.

      We discern no abuse of discretion.          Notwithstanding Appellant’s

protestations, the amendment did not alter the Commonwealth’s case. The

addition of one count of criminal conspiracy logically flowed from the identical

factual scenario that the Commonwealth presented at the outset.             The

amended information did not require either party to produce any additional

witnesses, adduce any previously unknown facts, or alter trial strategy. To

the contrary, the Commonwealth was required to prove its case as to both

counts based upon familiar allegations that Appellant and Mr. McGowan acted

jointly in the fraudulent transaction. As the offenses outlined in the original

and amended information involved the same basic elements and evolved from

the identical factual scenario, the record supports the trial court’s conclusion

that the amendment was not materially different from the original so as to

unfairly prejudice Appellant. Sinclair, supra at 1221. No relief is due.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/28/2019




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