J-S62013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 TONY RUFUS RATCLIFF, III                 :
                                          :
                    Appellant             :   No. 181 WDA 2019

    Appeal from the Judgment of Sentence Entered December 20, 2018
               In the Court of Common Pleas of Erie County
           Criminal Division at No(s): CP-25-CR-0001043-2018


BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:                      FILED FEBRUARY 3, 2020

      Tony Rufus Ratcliff, III appeals from the judgment of sentence entered

in the Erie County Court of Common Pleas following his conviction for

possession with intent to deliver (“PWID”) heroin, and possession of a

controlled substance. Ratcliff argues the trial court erred when it permitted an

amendment to the criminal information, and challenges the sufficiency of the

evidence supporting his conviction for PWID. We affirm.

      In August of 2017, Ratcliff was charged with Count 1 – Delivery of a

controlled substance to inmate (heroin), Count 2 – Possession of Controlled

Substance by inmate (heroin), Count 3 – Unlawful Delivery of Controlled

Substance to inmate (heroin), Count 4 – PWID (Suboxone), and Count 5 –

Possession (Suboxone). The trial court summarized the facts giving rise to

those charges as follows.
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     In the early morning hours of August 5, 2017, [Ratcliff] was
     arrested and taken to the Erie County Prison (ECP) on unrelated
     charges at a different docket. Upon arrival at the ECP, [Ratcliff]’s
     person and property were searched and three suboxone strips
     were recovered from his wallet. [Ratcliff] was not prescribed
     suboxone, and when questioned by the intake nurse why he was
     in possession of the strips [Ratcliff] told her he sold them.

     Later in the day on August 5, 2017, inmate Ian Welden was in the
     day room of Bravo Pod (B Pod) in the ECP when he was
     approached by [Ratcliff] and asked if he was looking for anything.
     Welden responded "yeah, maybe" and [Ratcliff] said he had some
     "H". Welden, an active heroin user, understood this to mean
     [Ratcliff] had heroin. Welden and [Ratcliff] arranged for the
     transaction to occur later in the evening before lockdown at 10:00
     p.m. At the designated time, [Ratcliff] arrived at Welden's cell and
     gave him "a match head's worth of powder in plastic." In
     exchange, Welden gave [Ratcliff] a bag of coffee and planned to
     repay the rest in commissary items the next day. Welden then
     snorted the "offwhite or brownish" powder in his cell after
     lockdown.

     On the morning of August 6, 2017, Officer Christopher Fraser
     discovered Welden in his jail cell breathing but unresponsive.
     Officer Fraser radioed the code for medical emergency. Officer
     Adam Merchant, one of the responding officers and a trained EMT,
     assisted in transporting Welden to UPMC Hamot Hospital (Hamot).
     At Hamot, Officer Merchant observed the medical staff trying to
     figure out what was going on with Welden for approximately two
     hours before Narcan was administered. Officer Merchant
     confirmed that within minutes of receiving the Narcan, Welden
     began to "mumble things and speak to us and come to it a little
     bit." Officer Merchant asked Welden what happened and Welden
     admitted to snorting something. Officer Merchant asked for a
     description of the individual who had provided the substance to
     him and Welden stated he "got something from a short, husky,
     black man in 21 cell." Upon receiving this information, Officer
     Merchant called the jail to advise it was a drug-related incident
     and later documented the description provided by Welden in a
     written report.

     After receiving the information that Welden had suffered a drug
     overdose, Captain Mitchell Carman initiated an investigation of B
     Pod. He directed officers at the ECP to conduct a search of B Pod

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     and the rest of the facility and to begin interviewing inmates. In
     the meantime, Captain Carman equipped himself with a body
     camera and went to Hamot to interview Welden. According to the
     description Welden provided in the recorded interview regarding
     the person who provided the substance that caused his overdose,
     the individual was a "large, bald, black man who came in a few
     days prior – a day or two prior and had been in a traffic stop who
     was in the back of the pod somewhere." Welden also provided a
     written statement, admitted as Commonwealth Exhibit 6, stating
     Friday night before lockdown a large black guy with a bald head
     asked him if he wanted any H. With this information, Captain
     Carman returned the ECP and cross-referenced the housing
     sheets for B Pod to determine which inmates matched the
     description. Captain Carman determined [Ratcliff], being housed
     in cell B-22, was the only possible match.

     Captain Carman directed interviews be conducted with several
     inmates from the back of B Pod and that [Ratcliff] and his cellmate
     be removed from cell B-22. Captain Carman and Officer Scott
     Gorring conducted a "shakedown" of cell B-22 to search for
     contraband. Wedged into a bracket welded to the concrete wall on
     the upper right-hand side of the top bunk, [Ratcliff]’s bunk,
     Captain Carman recovered a wad of toilet paper wrapped around
     three separate pieces of plastic each containing a "brown
     substance". At trial, Commonwealth Exhibit 7, a video recording
     from Captain Carman's body-cam depicting him opening the toilet
     paper and finding the plastic bag corners and substance, was
     admitted. Forensic analysis revealed the substances contained
     heroin, fentanyl, and carfentanil.

     After the discovery of the drugs [Ratcliff] was placed in a dry cell.
     At approximately 6:30 p.m. on August 6, 2017, Captain Carman
     conducted a recorded interview with [Ratcliff]. During this
     interview, [Ratcliff] denied possessing any contraband. On August
     7, 2017, [Ratcliff] requested to speak with Captain Carman again.
     Another recorded interview took place and this time [Ratcliff]
     advised Captain Carman another inmate had given him a
     controlled substance to hold. [Ratcliff] does not dispute he hid the
     wad of toilet paper between his bed frame and the wall in his cell,
     B-22. [Ratcliff] completed a witness statement after the recorded
     interview but tore it up shortly after filling it out.

     Detective Todd Manges of the Erie County District Attorney's
     Office conducted a follow-up interview with Welden on November

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       21, 2017. During that interview, Welden again described the
       individual who gave him the substance that caused his overdose
       as a "black, husky, male with a bald head" and stated he believed
       his name was Ratcliff. After Welden's statements, Detective
       Manges showed Welden a booking photograph of [Ratcliff] and
       Welden positively identified him as the perpetrator.

Trial Court Opinion, at 1-4 (internal record citations omitted).

       Prior to trial, the Commonwealth filed a motion in limine requesting to

amend the information. The charges were amended at Count 4 to PWID

(heroin) and at Count 5 to Possession (heroin).

       Following a three-day trial, a jury convicted Ratcliff of Count 4 – PWID

(heroin) and Count 5 – Possession (heroin).1 Ratcliff was thereafter sentenced

to a period of twenty-four to eighty-four months’ incarceration. He filed a nunc

pro tunc post-sentence motion to reconsider or modify sentence, which the

court denied. This timely appeal followed.

       First,   Ratcliff   contends    the     trial   court   erred   in   granting   the

Commonwealth’s motion in limine to amend the criminal information as to

Count 4 to reflect the controlled substance at issue for the PWID charge was

heroin and not suboxone as originally charged. The decision whether to allow

the Commonwealth to amend an information is a matter within the discretion

of the trial court. Only an abuse of discretion will constitute reversible error.

See Commonwealth v. Small, 741 A.2d 666, 681 (Pa. 1999). “An abuse of


____________________________________________


1The jury was hung and a mistrial was declared as to Counts 1, 2, and 3.
Ratcliff filed a motion for judgment of acquittal as to those counts. The court
denied the motion.

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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).

      Pennsylvania Rule of Criminal Procedure 564 permits the trial court to

amend an information “when there is a 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.” Pa.R.Crim.P. 564.    Moreover, “[u]pon amendment, the

court may grant such postponement of trial or other relief as is necessary in

the interests of justice.” Id. “[T]he purpose of Rule 564 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.” Commonwealth v. Sinclair, 897 A.2d 1218, 1221

(Pa. Super. 2006) (citation omitted). “[O]ur courts apply the rule with an eye

toward its underlying purposes and with a commitment to do justice rather

than be bound by a literal or narrow reading of the procedural rules.”

Commonwealth v. Grekis, 601 A.2d 1284, 1289 (Pa. Super. 1992).

      When 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 is deemed to

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      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.

Sinclair, 897 A.2d at 1221 (citation omitted).

      The factors 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 1223 (citation omitted).

      Ratcliff argues the amendment prejudiced him because the factual

scenario supporting the charges changed and he did not have time to prepare

a defense to the amended charge. However, Ratcliff was aware from the time

of the original information that he was being charged with multiple counts

related to heroin; specifically, that he was alleged to have sold heroin to a

fellow inmate and that heroin was found in his cell after a search. Further,

although Pa.R.Crim.P. 564 allows for a continuance in order to prepare for the

new information, no such request was made by Ratcliff. See Commonwealth

v. Fowler, 393 A.2d 844, 847 (Pa. Super. 1978) (finding failure to request




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continuance    after   information   amended    supports   a   conclusion   that

amendment caused no prejudice).

      Under these circumstances, we conclude Ratcliff has not established

prejudice. Ratcliff was clearly aware of the facts underlying the charges in the

amended complaint from the time charges were brought against him. See

Appellant’s Brief, at 12 (“It is true that the drugs subsequently discovered in

the Appellant’s cell were included as part of the defense to count 3”).

      Although there are enhanced penalties for a conviction involving heroin

over suboxone, the mere possibility that amendment of an information may

result in a more severe penalty due to the additional charge is not, of itself,

prejudice. Commonwealth v. Picchianti, 600 A.2d 597, 599 (Pa. Super.

1991). Therefore, as we find Ratcliff had notice of the facts surrounding the

amended information and was not prejudiced by the amendment, we find the

trial court did not err in allowing the amendment. Accordingly, Ratcliff is due

no relief on his first issue.

      Next, Ratcliff challenges the sufficiency of the evidence in support of his

conviction for Count 4 – PWID (Heroin). Our standard of review is as follows:

      The standard we apply in reviewing the sufficiency of evidence is
      whether, viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact[-]finder to find every element of the crime
      beyond a reasonable doubt. In applying the above test, we may
      not weigh the evidence and substitute our judgment for that of
      the fact-finder. In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant's guilt may be resolved by the fact-finder unless the

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      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt by
      means of wholly circumstantial evidence. Moreover, in applying
      the above test, the entire record must be evaluated and all
      evidence actually received must be considered. Finally, the trier
      of fact while passing upon the credibility of witnesses and the
      weight of the evidence produced, is free to believe all, part or none
      of the evidence.

Commonwealth v. Helsel, 53 A.3d 906, 917-918 (Pa. Super. 2012) (citation

omitted).

      In relevant part, the Controlled Substance, Drug, Device and Cosmetic

Act prohibits the following acts:

      [T]he manufacture, delivery, or possession with intent to
      manufacture or deliver, a controlled substance by a person not
      registered under this act, or a practitioner not registered or
      licensed by the appropriate State board, or knowingly creating,
      delivering or possessing with intent to deliver, a counterfeit
      controlled substance.

35 P.S. § 780.113(a)(30). To sustain a conviction for PWID “all of the facts

and circumstances surrounding the possession are relevant and the elements

of   the    crime   may    be   established    by   circumstantial    evidence.”

Commonwealth v. Little, 879 A.2d 293, 297 (Pa. Super. 2005) (citation

omitted).

      Ratcliff argues that the evidence        was insufficient because the

Commonwealth failed to prove he knew the illegal drugs were in his cell or

that he planned to deliver them. “In order to convict a defendant of PWID,

the Commonwealth must prove that the defendant possessed a controlled


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substance and did so with the intent to deliver it.” Commonwealth v.

Sarvey, 199 A.3d 436, 450 (Pa. Super. 2018) (citation and internal quotation

marks omitted). Here, Ratcliff admitted on the record that he had a controlled

substance in his cell. See N.T., Jury Trial Day 3, 11/19/2018, at 31-32.2

Further, the record includes testimony from another inmate that Ratcliff sold

heroin to him in prison, which caused him to overdose. See N.T., Jury Trial

Day 2, 11/16/2018, at 30-36, 39-41. Finally, the record includes testimony

from an intake nurse indicating Ratcliff had other drugs in his possession

(suboxone) upon entry into the prison, and that he specifically indicated he

possessed the drugs in order to sell them. See id., at 124-125. Therefore, the

finder of fact had sufficient evidence to conclude by circumstantial evidence

that Ratcliff possessed heroin and intended to sell it. Based on the totality of



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2

       [Commonwealth]: So when he says contraband, you say what
       contraband?

       [Ratcliff]: Hm-hmm.

       [Commonwealth]: You know exactly what contraband he’s talking
       about?

       [Ratcliff]: I know that I had contraband, yes.

       [Commonwealth]: And so when you say what contraband, you
       would be misleading Captain Carman?

       [Ratcliff]: Yes.

N.T., Jury Trial Day 3, 11/19/2018, at 31-32.

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the evidence established at trial, we find Ratcliff’s challenge to the sufficiency

of the evidence to support his conviction of PWID to be without merit.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2020




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