J-A18039-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 TIM A. OGDEN                             :   No. 138 WDA 2020

               Appeal from the Order Dated January 16, 2020
   In the Court of Common Pleas of Clearfield County Criminal Division at
                     No(s): CP-17-CR-0000494-2018


BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                         FILED AUGUST 18, 2020

      The Commonwealth appeals from the order denying its motion to amend

the bill of information filed against Appellee Tim A. Ogden.              The

Commonwealth argues that the trial court erred in concluding that Appellee

would suffer prejudice if it granted the Commonwealth’s motion to add two

additional charges, which it filed two days before trial. We affirm.

      The trial court summarized the facts and procedural history of this case

as follows:

      On December 3, 2017, the state police received a report that an
      automobile accident had occurred on Rockton Mountain Highway,
      State Route 322, Pine Township, Clearfield County. Trooper Kerry
      Jodon responded to the scene at approximately 4:08 p.m. Two
      vehicles had been involved in the accident, [one] being a Ford
      Ranger and [the other] a Buick Rendezvous. Major damage to
      both vehicles was observed by Trooper Jodon. The operator of
      the Ford Ranger, [Appellee], was being transported to Penn
      Highlands DuBois Hospital. An EMT at the scene advised Trooper
      Jodon that an open Budweiser can was seen in [Appellee’s]
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      console, [Appellee] stumbled as he exited his vehicle and smelled
      of alcohol.

      The operator of the Buick Rendezvous was William Bloom. Mr.
      Bloom advised police that he was traveling west on SR-322 at
      approximately 35 mph. He saw [Appellee’s] vehicle start to slide
      broadside, then slide completely broadside into Mr. Bloom’s lane.
      The Bloom vehicle then hit the passenger side of [Appellee’s]
      vehicle head on. Mr. Bloom’s wife and passenger, Donna Bloom,
      age 78, suffered a serious wrist injury which required use of an
      affixation stabilizer. This necessitated Mrs. Bloom to have the
      device attached to her wrist with pins for a period of six (6) weeks.
      Trooper Jodon interviewed [Appellee] at the hospital at 5:45 p.m.
      It was observed that [Appellee]’s speech was slurred and his eyes
      were glassy; [Appellee] also had the smell of alcohol. Ultimately,
      [Appellee] refused a request for a chemical blood test. Trooper
      Jodon obtained a search warrant, and hospital testing showed
      [Appellee]’s blood alcohol content was 0.135%.              From his
      investigation, Trooper Jodon believed that [Appellee] was
      responsible for the accident and [Mrs.] Bloom’s injuries.

      On April 16, 2018, Trooper Jodon filed criminal charges against
      [Appellee] at the office of Magisterial District Judge Patrick Ford.
      [The charges included aggravated assault by vehicle while driving
      under the influence (DUI)—75 Pa.C.S. § 3735.1(a); DUI—general
      impairment, 75 Pa.C.S. § 3802(a)(1); DUI—high rate of alcohol,
      75 Pa.C.S. § 3802(b), and summary offenses including driving at
      an unsafe speed—75 Pa.C.S. § 3361, careless driving—75 Pa.C.S.
      § 3714, and reckless driving—75 Pa.C.S. § 3736.]

      The preliminary hearing was set for May 18, 2018, which was
      waived by [Appellee, who was pro se]. The case proceeded
      through the criminal court system with various continuances being
      requested by [Appellee] and [Appellee’s] counsel. Ultimately,
      [Appellee] waived his right to a jury trial and [a bench trial was
      scheduled for] January 16 and 17, 2020.

Trial Ct. Op., 4/11/20, at 1-2 (footnote omitted).

      Two days before trial was scheduled to begin, the Commonwealth filed

a motion to amend the criminal information to include two additional charges:

aggravated assault by vehicle and recklessly endangering another person



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(REAP).1 The trial court agreed to hear the motion before Appellee’s trial on

January 16, 2020.

        At the motions hearing, the Commonwealth argued:

        As far as the law states, in order to amend the information, so
        long as it does not change the offense and is arising from the same
        set of facts and circumstances, then normally that would be
        permitted by the court.

        As far as the aggravated assault [by vehicle], there’s already an
        aggravated assault by vehicle while DUI charge, so this [new
        charge] would essentially be the same offense without the DUI.

        As far as [REAP] . . . the original information charged reckless
        driving, and the serious bodily injury offense is contained within
        the aggravated assault by vehicle while DUI. So, essentially, the
        elements are the same and the factual circumstances are the
        same.

N.T. Mot. Hr’g, 1/16/20, at 3.

        Appellee then responded:

        Respectfully, the defense would oppose the amendment to the
        information.    I received this proposition and motion for
        amendment on January 14th, two days prior to trial.

        Your Honor, these two charges that are being added are not
        lesser-included offenses but, in fact, different offenses. As [the
        Commonwealth] has stated, they require a gross negligent aspect
        and a recklessness that my client and I have not had an
        opportunity to, obviously, prepare for.

        The [original] aggravated assault [charge] requires the DUI. Your
        Honor, I would cite Commonwealth v. Quinones[, 200 A.3d
        1004 (Pa. Super. 2018)] . . . in that case, the court recognized
        that a last-minute change to the information can, in fact, put the
        defendant in a position of prejudice due to the fact that there’s
        not adequate time to prepare for these new charges. Had this
        amendment been made anytime during the past two years, I
____________________________________________
1   75 Pa. C.S. § 3732.1(a) and 18 Pa.C.S. § 2705, respectively.


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       supposed that we would have been able to argue it and have the
       [trial c]ourt make a decision and, at that point, had an opportunity
       to prepare our defense.

       But at this point, Your Honor, we would request that the [trial
       c]ourt leave the information as filed by the [Commonwealth].

Id. at 3-4.

       The trial court explained that the Commonwealth “had a very extensive

period of time to . . . file such a motion to amend” and “that doing it a couple

days before the actual trial does cause prejudice to the defense.” Id. at 4.

After the trial court stated that it would deny the Commonwealth’s motion and

proceed to trial, the Commonwealth requested to certify the matter for an

interlocutory appeal pursuant to Pa.R.A.P. 311(d). Id. at 5.

       After the trial court sought to clarify the purpose of the Commonwealth’s

amendment, the Commonwealth explained:

       Your Honor, the concern, with candor – in the interest of candor
       towards the tribunal, and I have provided this information to
       [Appellee’s counsel] once I found out about it, there’s an issue
       with the blood testing at the hospital [that performed Appellee’s
       blood draw] . . .

       I received an email a couple of days ago, this week sometime,
       when I was asking for information about [the hospital’s testing]
       equipment . . . [the hospital representative stated that] the
       calibration documents had been purged. The other issue was this
       was an alcohol DUI; and because it was a medical draw, I didn’t
       have . . . confirmation as to whether the draw was done with
       alcohol or Betadine.[2] Therefore, that was an issue as far as the
       alcohol DUI goes.
____________________________________________
2 When conducting a blood draw for a DUI case, providers must use special
Betadine swabs for preparation, not alcohol swabs, so that the alcohol level in
the person’s blood is not altered. See 10A West’s Pennsylvania Practice,
Driving Under the Influence § 26:5 (2019 ed.).



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       I do have an issue of a refusal for the DUI, but there was a DL-26
       that was filed – that was read to Appellee . . . which for some
       reason, hasn’t been located.

       So we do possibly have a refusal – we have a refusal; but as far
       as [Appellee’s counsel], I know he’s a good defense attorney and
       is going to raise the issue that we don’t have the DL-26 that was
       read to Appellee. I do have the testimony from the trooper.

       So the DUI may not – I may not have evidence sufficient . . . to
       prove the DUI. If I don’t have the DUI, I don’t have the
       agg[ravated] assault by vehicle while DUI.

Id. at 6-7.

       The trial court responded:

       With all due respect to what you’re saying, all of this information
       that you’re relaying should have been determined by the
       Commonwealth a considerable period of time ago.[3] And basically
       from what you’re saying, you’re making a case for the defense as
       to the high level of prejudice that is to the defense under the
       circumstances, by wanting to come in here and amend the
       information immediately before trial starts.

Id. at 7.

       After denying the Commonwealth’s motion to amend the information,

the trial court took a brief recess for the Commonwealth to provide legal

authority under which it could take an interlocutory appeal. Id. Ultimately,

____________________________________________
3 The trial court acknowledged that a new district attorney had recently been
sworn in and that many of the assistant district attorneys were new. See N.T.
Mot. Hr’g at 7. However, the trial court explained that “the change of the DA
regime from one to the other in no way affects the duties and responsibilities
that the Commonwealth, as its own entity, has in its dealings with this case
or any other case.” Id. at 8. Further, the trial court indicated that it would
not “use that as an excuse in regard to the procedural rights of [Appellee] and
defense counsel.” Id.




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the trial court relied on Commonwealth v. Brister, 16 A.3d 530, 533-34 (Pa.

Super. 2011) for the proposition that the Commonwealth may appeal an

interlocutory order as of right where it certifies that the order will terminate

or substantially handicap the prosecution. Id. at 13.

       The Commonwealth filed a timely notice of appeal4 on January 27, 2020

and subsequently filed a court-ordered Pa.R.A.P. 1925(b) statement. The trial

court filed a Rule 1925(a) opinion asserting that it properly denied the

Commonwealth’s motion.

       On appeal, the Commonwealth raises one issue:

       Did the trial court err when it denied the Commonwealth’s motion
       to amend information?

Commonwealth’s Brief at 6.

       Initially, we must address our jurisdiction over the Commonwealth’s

appeal. See Commonwealth v. Gaines, 127 A.3d 15, 17 (Pa. Super. 2015)

(en banc) (stating that “[w]e may raise issues concerning our appellate

jurisdiction sua sponte.” (citation omitted)).     Generally, Rule 311(d) is

“invoked in appeals addressing the admission or exclusion of evidence.”

Commonwealth v. Woodard, 136 A.3d 1003, 1005 (Pa. Super. 2016)


____________________________________________
4 The Commonwealth certified that the trial court’s order denying its motion
to amend the information would substantially handicap the prosecution. See
Pa.R.A.P. 311(d) (stating that “[i]n a criminal case, under the circumstances
provided by law, the Commonwealth may take an appeal as of right from an
order that does not end the entire case where the Commonwealth certifies in
the notice of appeal that the order will terminate or substantially handicap the
prosecution.”).



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(citation omitted). However, “[i]n addition to evidentiary rulings, appellate

courts have recognized the right of the Commonwealth to appeal several types

of non-evidentiary pretrial orders.” Id. (citations omitted). Nonetheless, we

“will not accept blindly the Commonwealth’s certification of substantial

hardship when appeal is sought for non-evidentiary interlocutory orders.” Id.

(citations and quotation marks omitted).

      Here, the Commonwealth certified that the trial court’s order would

substantially handicap its prosecution pursuant to Pa.R.A.P. 311(d). Further,

prior decisions by this Court confirm that the Commonwealth has the right to

appeal from an order denying its motion to amend a criminal information. See

Commonwealth v. Medrano, 788 A.2d 422, 426 (Pa. Super. 2001) (stating

that “where an order denying the Commonwealth’s motion to amend charges

effectively precludes later review of that order on double jeopardy grounds,

the Commonwealth may appeal that order as of right.” (citation omitted));

see also Commonwealth v. Jones, 826 A.2d 900, 906 (Pa. Super. 2003)

(explaining that “[i]f the Commonwealth has no opportunity to obtain

appellate review of an adverse pre-trial interlocutory order implicating double

jeopardy concerns, such review will never occur because the Commonwealth

cannot try a defendant for a second time if the first prosecution results in an

acquittal.”).   Therefore, we conclude that the Commonwealth’s appeal is

properly before us.




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      We review a trial court’s decision to grant or deny a motion to amend

an information for an abuse of discretion. See Commonwealth v. Small,

741 A.2d 666, 681 (Pa. 1999). As we have explained,

      [a]n abuse of discretion is not merely an error of judgment, but is
      rather the overriding or misapplication of the law, or the exercise
      of judgment that is manifestly unreasonable, or the result of bias,
      prejudice, ill -will or partiality, as shown by the evidence of record.
      If in reaching a conclusion the trial court overrides or misapplies
      the law, discretion is then abused and it is the duty of the appellate
      court to correct the error.

Commonwealth v. Belknap, 105 A.3d 7, 10 (Pa. Super. 2014) (citations

omitted and some formatting altered).

      Rule 564 of the Pennsylvania Rules of Criminal Procedure provides as

follows:

      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. “[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




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

v. Grekis, 601 A.2d 1284, 1289 (Pa. 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
      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 amend[ment] is not permitted.

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

(citations omitted).

      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 [a
      defendant] by, for example, rendering defenses which might have
      been raised against the original charges ineffective with respect
      to the substituted charges.

Sinclair, 897 A.2d at 1223 (citation omitted).

      In determining whether a defendant would suffer prejudice, we consider

the following 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
      amendment; (5) whether a change in defense strategy was


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      necessitated by the amendment; and (6) whether the timing of
      the Commonwealth’s request for amendment allowed for ample
      notice and preparation.

Mentzer, 18 A.3d at 1203 (citation omitted).

      Here, Appellee was originally charged with three summary traffic

offenses and three DUI offenses, included aggravated assault by vehicle—DUI,

which is defined as follows:

      § 3735.1. Aggravated assault by vehicle while driving
      under the influence

      Offense defined.—Any person who negligently causes serious
      bodily injury to another person as the result of a violation of
      section 3802 (relating to driving under influence of alcohol or
      controlled substance) and who is convicted of violating section
      3802 commits a felony of the second degree when the violation is
      the cause of the injury.

75 Pa.C.S. § 3735.1(a).

      The Commonwealth’s proposed amendment included two new charges,

aggravated assault by vehicle and REAP, which are defined as follows:

      § 3732.1. Aggravated assault by vehicle

      (a)   Offense.—Any person who recklessly or with gross
            negligence causes serious bodily injury to another person
            while engaged in the violation of any law of this
            Commonwealth or municipal ordinance applying to the
            operation or use of a vehicle or to the regulation of traffic,
            except section 3802 (relating to driving under influence of
            alcohol or controlled substance), is guilty of aggravated
            assault by vehicle, a felony of the third degree when the
            violation is the cause of the injury.

75 Pa.C.S. § 3732.1(a).

      § 2705. Recklessly endangering another person




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     A person commits a misdemeanor of the second degree if he
     recklessly engages in conduct which places or may place another
     person in danger of death or serious bodily injury.

18 Pa.C.S. § 2705.

     The Commonwealth argues that Appellee would not have been

prejudiced by the proposed amendment, as “[t]he amended charges involve

the same basic elements and evolved out of the same factual situation.”

Commonwealth’s Brief at 15-16.     Further, the Commonwealth asserts that

although Appellee waived his right to a preliminary hearing, the facts

underlying the offenses have been the same throughout the proceedings. Id.

The Commonwealth concedes that the description of the charges would have

changed based on the proposed amendment, but argues that aggravated

assault by vehicle and aggravated assault—DUI have “the same elements

except the added charge has one less element (that he be convicted of DUI).

Further, the aggravated assault by vehicle offense [requires recklessness,

which is] a higher intent element.” Id. at 16. (emphases in original, some

formatting altered). Nonetheless, the Commonwealth asserts that “[t]here is

no conceivable way that the defense strategy would have changed . . . [i]f

[Appellee] intended to argue that he did not negligently cause bodily injury

then it would logically follow that he did not act recklessly or grossly

negligently.” Id. at 18. Further, with respect to the timing of the motion to

amend, the Commonwealth faults Appellee for failing to “request a

continuance in order to have time to prepare or modify his defense to the new

charges.” Id.



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      Appellee responds that the Commonwealth did not act in “good faith”

when it requested to certify this matter for appeal. Appellee’s Brief at 10.

Appellee argues that “the Commonwealth was ill-prepared to proceed to trial”

and that “[b]y asking for an amendment to the information at the last minute

and filing a subsequent appeal, the Commonwealth now has many months to

prepare for trial.”   Id.   Relying on the trial court’s Rule 1925(a) opinion,

Appellee asserts he would have suffered prejudice if the trial court had granted

the Commonwealth’s motion to amend the information. Id. at 7.

      In its Rule 1925(a) opinion, the trial court addressed its decision to deny

the Commonwealth’s proposed amendment as follows:

      In the case at bar, [Appellee] was pro se during the preliminary
      hearing phase and did not have a full hearing, but rather waived
      the charges into court. While factors 1, 2 and 4 could be
      vigorously argued on both sides, factors 5 and 6 are clear. If the
      amendment to the information would have been permitted,
      [Appellee] would certainly have to change the defense strategy.
      The charges set forth in the original information all involved
      driving under the influence as an element of the offense. The
      proposed amended charges have different elements. Given the
      fact that the Commonwealth admitted that there were “issues”
      with the DUI charges, an amendment to the charges would force
      a change in defense strategy.

      Additionally, the timing of the motion to amend [the] information
      did not allow for ample notice and preparation for the defense.
      Had th[e trial c]ourt granted the Commonwealth’s motion, it
      would have been in direct violation of Rule 564, and [Appellee]
      would have had no choice but to request a continuance to
      adequately prepare for trial. Therefore, it is clear that [Appellee]
      would have been unfairly prejudiced had the Commonwealth’s
      motion been granted. Th[e trial c]ourt acted in fairness and with
      justice in denying the motion. The argument made by the
      Commonwealth that the new charges have less elements and
      should be easier to defend is misplaced.


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Trial Ct. Op. at 4 (footnote omitted).

      Based on our review of the record, we conclude that the trial court did

not abuse its discretion in denying the Commonwealth’s motion to amend the

information. See Small, 741 A.2d at 681; see also Belknap, 105 A.3d at

10. As discussed above, the original information charged Appellee with three

DUI-related offenses, including aggravated assault by vehicle—DUI, which

required a DUI conviction as an element of the offense. See 75 Pa.C.S. §

3735.1(a).   Although the new charges of REAP and aggravated assault by

vehicle were based on the same underlying incident, neither offense required

proof of a DUI. See 75 Pa.C.S. § 3732.1(a); see also 18 Pa.C.S. § 2705. As

such, the elements were materially different, and Appellee would have been

required to change his defense strategy to address the new charges. See

Mentzer, 18 A.3d at 1203. Further, given that the Commonwealth filed its

motion to amend two days before trial, Appellee did not have ample notice to

prepare. See Sinclair, 897 A.2d at 1221. Therefore, the trial court acted

within its discretion by concluding that the proposed amendment would cause

prejudice to Appellee. See id; see also Small, 741 A.2d at 681. Accordingly,

we affirm.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/18/2020




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