J-S59010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DAVID CASSELL,

                            Appellant                 No. 1300 EDA 2015


          Appeal from the Judgment of Sentence Entered April 2, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0007673-2014


BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED OCTOBER 21, 2016

        Appellant, David Cassell, appeals from the judgment of sentence of a

one year term of probation, imposed after he was convicted, following a

non-jury trial, of aggravated assault and simple assault.           On appeal,

Appellant argues, inter alia, that the trial court erred by convicting him of

aggravated assault as a felony of the second degree, where the criminal

information charged that offense as a felony of the first degree.          After

careful review, we affirm.

        The trial court set forth the facts and procedural history of this case,

as follows:

              On June 7, 2014, at approximately 4:30[]p.m.,
        Philadelphia Police Officer Andrew Monroe and his unidentified
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     partner were in full uniform, assisting Inspector Murphy (first
     name not given) of the Department of Licensing & Inspections
     (L&I) in shutting down illegal businesses along Woodland
     Avenue. As they were traveling up Woodland Avenue from 58th
     Street, Inspector Murphy approached [Appellant] as he was
     walking eastbound down Woodland Avenue with a “Fred’s Water
     Ice” cart. [Appellant] became irate by his conversation with
     Inspector Murphy and began pointing his finger in the
     Inspector’s face. [Appellant’s] finger was approximately two (2)
     inches from her face and he was saying[,] “You’re not taking my
     f***ing cart.” Officer Monroe then approached [Appellant] to
     explain the procedure to get his cart back and to ask him to stop
     yelling and to calm down. Instead of calming down, [Appellant]
     began pointing his finger in Officer Monroe’s face. After asking
     [Appellant] several times to move his hand away, Officer Monroe
     took his own hand to move [Appellant’s] hand away from his
     face. [Appellant] then smacked the officer’s hand and with a
     closed fist, bladed his body, and threw a punch at Officer
     Monroe. Officer Monroe was able to stop the punch from hitting
     him by blocking [Appellant’s] fist with his own hand. Officer
     Monroe immediately grabbed [Appellant] and placed him on the
     ground.    [Appellant] struggled and it took both officers to
     handcuff [Appellant].

           A stipulation by and between counsel was entered
     indicating that if Pastor Moses Dennis was called to testify[,] he
     would state that he has known [Appellant] for seven (7) years
     and that he knows other people in the community that know
     [Appellant]. He has talked to other people in the community
     about [Appellant] and [Appellant] has a reputation for being a
     lawful, peaceful citizen.

           [Appellant] did not testify or present additional evidence.

           [Appellant] was convicted of aggravated assault and
     simple assault and was sentenced to twelve (12) months of
     probation on the aggravated assault charge. The simple assault
     conviction merged for purposes of sentencing.

                                    ***

          [Appellant] filed a Notice of Appeal to the Superior Court.
     On August 5, 2015, this court filed an Order requesting
     [Appellant] to file a Statement of [Errors] Complained of on
     Appeal pursuant to Pa. R.A.P. … 1925(b). On September 8,


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      2015, a Statement        of   Errors   …   was   filed   on   behalf   of
      [Appellant].4
         4
           Due to a clerical error, the August 5, 2015 order from
         this court was misplaced. On September 8, 2015, defense
         counsel filed a Petition to Accept Statement of Errors Nunc
         Pro Tunc which was granted the next day.

Trial Court Opinion (TCO), 11/16/15, at 1-3

      Herein, Appellant presents one question for our review:

             Did not the lower court err in finding [Appellant] guilty of
      aggravated assault as a felony of the second degree when the
      Commonwealth specified on the bill of information that it was
      pursuing the charge of aggravated assault only as a felony of the
      first degree, and did not the lower court err in permitting
      amendment of the bill to aggravated assault as a felony of the
      second degree after the court had already found [Appellant]
      guilty of that charge?

Appellant’s Brief at 3.

      Appellant’s issue contains two sub-claims. First, he avers that it was

impermissible for the trial court to convict him of aggravated assault as a

felony of the second degree (hereinafter, “F2”) where the criminal

information charged that offense only as a felony of the first degree

(hereinafter, “F1”).   Second, he argues that the court erred by permitting

the Commonwealth to amend the criminal information, after a verdict was

reached, to reflect that the aggravated assault charge was an F2 offense.

For the reasons stated infra, both of these claims are meritless.

      Our Supreme Court has explained that “[a] criminal information[, also

called an indictment,] is not constitutionally infirm if it notified the defendant

of the crime with which he is charged.”          Commonwealth v. Jones, 912

A.2d 268, 289 (Pa. 2006). Moreover,


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      [i]ndictments must be read in a common-sense manner, and are
      not to be construed in an overly technical sense. At an earlier
      stage of legal development, indictments were strictly and
      technically construed, and the slightest imprecision in wording
      was often considered incurable error. Today, however, such
      arguments are unpersuasive. This Court has upheld criminal
      indictments possessing a flaw and found them to be
      constitutional because they put the defendant on sufficient
      notice of the charge against him or her.

Id.

      In this case, Appellant maintains that the criminal information charged

him only with F1 aggravated assault and, thus, he was not properly notified

that he had to defend against a charge of F2 aggravated assault.        After

careful review of the record, we disagree.

      The crime of aggravated assault is defined, and graded, in 18 Pa.C.S.

§ 2702. That statute states, in pertinent part:

      (a) Offense defined.--A person is guilty of aggravated assault
      if he:

                                     ***

         (2) attempts to cause or intentionally, knowingly or
         recklessly causes serious bodily injury to any of the
         officers, agents, employees or other persons enumerated
         in subsection (c) [(including a police officer)] or to an
         employee of an agency, company or other entity engaged
         in public transportation, while in the performance of duty;

         (3) attempts to cause or intentionally or knowingly causes
         bodily injury to any of the officers, agents, employees or
         other persons enumerated in subsection (c) [(including a
         police officer)], in the performance of duty;

         (4) attempts to cause or intentionally or knowingly causes
         bodily injury to another with a deadly weapon;

                                     ***



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          (6) attempts by physical menace to put any of the officers,
          agents, employees or other persons enumerated in
          subsection (c), while in the performance of duty, in fear of
          imminent serious bodily injury;

                                           ***

       (b) Grading.--Aggravated assault under subsection (a)(1), (2)
       and (9) is a felony of the first degree. Aggravated assault under
       subsection (a)(3), (4), (5), (6), (7) and (8) is a felony of the
       second degree.

18 Pa.C.S. § 2702.

       Here, the criminal information charged Appellant with aggravated

assault and stated “(F1)” after that offense.     See TCO at 4 (quoting the

criminal information) (emphasis added).1 However, the criminal information

only generally cited to 18 Pa.C.S. § 2702(a) - without identifying the

specific, applicable subpart of that provision - and described Appellant’s

alleged conduct, as follows:

       Attempted to cause or intentionally, knowingly or recklessly did
       cause, serious bodily injury to an officer, agent, employee or
       other person enumerated in 18 Pa.C.S. 2702(c), or to an
       employee of an agency, company or other entity engaged in
       public transportation, while in the performance of duty; and/or
       attempted to cause, or intentionally or knowingly did
       cause bodily injury to an officer, agent, employee or other
       person enumerated in 18 Pa.C.S. 2702(c), in the
       performance of a duty; and/or attempted to cause, or
       intentionally or knowingly did cause, bodily injury to another
       with a deadly weapon; and/or attempted by physical menace to
       put an officer, agent, employee or other person enumerated in
       18 [P]a.[C].[S]. 2702(c), while in the performance of a duty, in
____________________________________________


1
 The criminal information is not contained in the certified record. Appellant
does not take issue with the accuracy of the court’s quotation from that
document in its opinion.



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J-S59010-16


     fear of imminent serious bodily injury; Victim: Officer Andrew
     Monroe[.]

Id. (emphasis added).

     We conclude that the above-emphasized language of the criminal

information was adequate to notify Appellant that he could potentially be

convicted of an F2 aggravated assault. That language specifically directed

Appellant’s attention to the F2 aggravated assault offense defined in section

2702(a)(3), which is proven when there is an attempt to cause bodily injury.

Furthermore, the record demonstrates that Appellant understood that he

faced the F2 charge, as his counsel explicitly acknowledged in closing

arguments that the F2 aggravated assault charge was applicable, and then

explained why the evidence failed to demonstrate that Appellant had

attempted to cause bodily injury to Officer Monroe. See N.T. Trial, 4/2/13,

at 25-30.     Therefore, we ascertain no reversible error in the court’s

convicting Appellant of F2 aggravated assault.

     We also discern no merit to Appellant’s claim that the court erred by

permitting the Commonwealth to amend the criminal information after the

verdict was read. That amendment simply corrected the information to read

“(F2)” where it had originally stated “(F1)” after the listed “aggravated

assault” offense.   See id. at 33. For the reasons stated supra, no

amendment of the criminal information was necessary to validate the verdict

of F2 aggravated assault. Again, the totality of the language contained in

the criminal information placed Appellant on notice that he faced that

charge, and the record confirms that he specifically defended against the

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crime of F2 aggravated assault.   Consequently, even if allowing the post-

verdict amendment was error (which we need not decide herein), Appellant

cannot demonstrate any resulting prejudice.     See Commonwealth v.

Veon,   109 A.3d 754, 768 (Pa. Super. 2015) (stating that relief for an

erroneous amendment to a criminal information “is only proper where the

amendment prejudices the defendant”).

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/2016




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