J-S54021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

 PARIS NEVELS

                             Appellant                  No. 98 WDA 2017


            Appeal from the Judgment of Sentence December 15, 2016
                   In the Court of Common Pleas of Erie County
               Criminal Division at No(s): CP-25-CR-0001993-2015


BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                     FILED NOVEMBER 17, 2017

       Paris Nevels appeals from the December 15, 2016 judgment of sentence

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

indecent assault, 18 Pa.C.S. § 3126. We affirm.

       The trial court set forth the factual and procedural history in its

Pennsylvania Rule of Appellate Procedure 1925(a) opinion, which we adopt

and incorporate herein. 1925(a) Opinion, 2/2/17, at 1-3 (“1925(a) Op.”).

       Nevels raises the following issue on appeal:

            Did the Magisterial District Judge overstep his authority or
            commit an error of law when he amended a charge of
            aggravated indecent assault on the police complaint sua
            sponte (which had been withdrawn by the Commonwealth
            during the preliminary hearing) to indecent assault and held
            that sole charge for court?
____________________________________________


       *   Former Justice specially assigned to the Superior Court.
J-S54021-17



Nevels’ Br. at 6 (full capitalization omitted).

      The trial court noted that judges of the court of common pleas and

magisterial district justices have the authority to convict a defendant of

uncharged lesser-included offenses. 1925(a) Op. at 3. It also noted that the

“important inquiry” in determining whether an amendment is proper is

whether the “defendant has been put on notice of the charges against him

and can adequately prepare a defense.” Id. at 4. The trial court found that,

although indecent assault was not a lesser-included offense of aggravated

indecent assault, “the same basic elements are necessary in order to prove”

both crimes and the “underlying factual situation is no different for either

charge.” Id. at 5. It further found that Nevels was not prejudiced by the

amended charge because the new charge did “not change the factual

scenario”; the charge did not “substantially change the requirements of

[Nevels’] defense preparation”; and Nevels had “ample time to prepare a

defense” because the new charge was added at the preliminary hearing and

his trial did not occur until over a year later. Id. at 8. The trial court further

noted that the Commonwealth did not object to the new charge. Id. at 8-9.

After review of the record, the parties’ briefs, and the relevant law, we affirm

on the basis of the well-reasoned opinion of the Honorable John Garhart, which

we adopt and incorporate herein. See 1925(a) Op. at 3-9.

      Judgment of sentence affirmed.




                                       -2-
J-S54021-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2017




                          -3-
                                                                              Circulated 10/31/201710:10            AM




COMMONWEALTH             O.F PENNSYLVANIA,              IN THE COURT OF COMMON PLEAS
                         Appellee,                      OF ERlE COUNTY, PENNSYLVANIA
                                                        CRIMINAL DIVISION
                         V.

PARIS L. NEVELS,
                         Appellant                     : No. 1993-2015

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           Appellant, Paris L. Nevels, appeals from the judgement of sentence dat~d(Dece~r             @
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2016, following his conviction       of Indecent Assault,   18 Pa. C.S.A. §3126. Based on the

following, this Court respectfully requests his sentence be affirmed.


      I.      BACKGROUND         OF THE CASE

      On May 15, 2015, AppelJant was accused of accosting a woman who was asleep in his

apartment and attempting to have sex with her against her will. The police originally charged

Appellant with one count of Rape, 18 Pa. C.S.A. §3121, Involuntary Deviate Sexual Intercourse,

18 Pa. C.S.A. §3123, Sexual Assault, 18 Pa.C.S.A. §3124.1, and Aggravated Indecent Assault,

18 Pa. C.S.A. §3125. At the preliminary hearing, the Commonwealth had difficulty in proving

penal penetration, an element of the crimes charged.

      At the hearing, argument was held regarding which charges, if any, should be bound over to

the trial court. Defense counsel asked that all the charges against the Appellant be dismissed.1

During oral argument, the Commonwealth agreed to withdraw a charge, but there seems to have




1
    Preliminary Hearing Transcript, 7/17/15, p. 10.
                                               1
                                                                                      2
        been   some   confusion   regarding   which       charge   was   withdrawn.       It appears that the

        Commonwealth meant to dismiss a Charge of Involuntary Deviate Intercourse, but mistakenly

        referred to "3125," the Aggravated Indecent Assault Charge.' Nonetheless, for whatever reason,

        the Aggravated Indecent Assault Charge at 18 Pa. C.S.A. §3125 was not bound over to the trial

        court. Instead, the Magisterial District Judge, Arthur Weindorf, sua sponte amended the charge

        of Aggravated Indecent Assault, 18 Pa. C.S.A. §3125, to Indecent Assault, 18 Pa. C.S.A. §3126,

        and bound the charge over.

               THE COURT: ... It's very clear to me even by the witness's account that there
                         was not penetration. Penetration in these particular cases .isjust as
                         Ms. Mikielski explained. rm going to dismiss the 3121, 3123, and
                         3124.
                                   But I'm going to take the initiative here. There's clearly an
                         indecent assault here, not aggravated but indecent. And I'm
                         holding '-- I believe it's 31 -- if you could look at the Crimes Code
                         there, indecent assault.

               MS. CONNELLY: 3126.


           Appellant filed a Petition for Writ of Habeas Corpus on December 31, 2015, which was

    denied on January 8, 2016. Appellant filed an application for Amendment of Interlocutory

    Appeal With respect to the Petition for Habeas Corpus, which was denied on February 9, 2016.

    Appellant then filed a Motion to Dismiss/Quash on February 10, 2016, which was denied on

    February 11,2016.

          Appellant was tried by jury on September 19, 2016, through September 21, 2016, and was

    found guilty on the sole count of Indecent Assault. Appellant was sentenced on December 15,

    2016, to 12 to 24 months incarceration at a State Correctional Institution, with credit given for

    time served. Appellant was recommended to enter into a sex offender program and ordered to

    2
        Preliminary Hearing Transcript; 7/17/15, p. 10-13.
    3
        Preliminary Hearing Transcript, 7/17/15, p. 13.
                                                      2




·------------------·--·-···"
register as a sex offender. Appellant filed a timely Notice of Appeal on January 13, 2017, and, in

response to this Court's rule. 1925(b) Order, filed a Concise Statement ofMatters Complained of

on Appeal on January 31, 201 7.

   Appellant raises the following issue on appeal:

          It is submitted by Defense Counsel that Magisterial District Judge Weindorf
          abused his powers and overstepped the boundaries of the magisterial district
          judge's office by arbitrarily amending a charge [sic] Aggravated Indecent Assault
          (that actually had already been withdrawn by the Commonwealth) on the police
          complaint in favor and on behalf of the Commonwealth to Indecent Assault and
          subsequently binding that sole charge to the next stage of court

Appellant's Rule 1925(b) Statement, 1/31/17; afpp.1-2.



    II.      DISCUSSION

    The law is well settled that trial judges in the court of common pleas have the authority to,

sua sponte, find a defendant guilty of a lesser included offense even if that offense is not charged

by the Commonwealth. See Commonwealth v. Sims, 591 Pa. 506,. 919 A2d 931, 933

(2007)(holding that an attempt crime is a lesser included offense of the substantive crime, and

thus a defendant may be convicted of ah attempted crime even if the Commonwealth charged

only the substantive offense and not attempt.) The Pennsylvania Supreme Court, in

Commonwealth v, Ball, 146 A.3d 755, 769 (Pa. 2016), similarly held that a magisterial district

justice has the authority, sua sponte, to convict a defendant, in a summary case, of uncharged

lesser included offenses. This rule is predicated on Pennsylvania Rule of Criminal Procedure 454

(B) which provides that, "theissuing authority shall try the 'case inthe same manner as trials in

criminal cases. are conducted in the courts of common pleas when jury 'trial bas been waived."

Pa. R.Crim. P; 454(B).




                                               3
    The important inquiry is whether a defendant has been put on notice of the charges against

him and can adequately prepare a defense. See Commonwealth v. Reese. 725 A. 2d 190, 191

(Pa. Super. 1999), appeal denied, 559 Pa 716, 740 A.2d 1146 (1999); Commonwealth v.

Cunningham, 551 A.2d 288, 289, 380 Pa. Super, 177(1988); citing Commonwealth v. Slots, 227

Pa. Super .. 279, 281 n.3, 324 A.2d 480, 481 (1974). This notice may either be explicit, as found

in the Commonwealth's charges, or implied, where the uncharged offense is a lesser included

offense and all of the elements of the lesser offense are included in the greater. Commonwealth v.

Ball, 146 A.3d at 769, citing Commonwealth v. Pemberth, 339 Pa. Super. 428, 489 A.2d 235,

237 (1985).

    The matter at hand involved an amendment from a charge of Aggravated Indecent Assault,

which was charged against Appellant by the Commonwealth, to Indecent Assault, which was not

charged by the Commonwealth, but substituted by the District Magistrate Judge and not objected

to by the Commonwealth at the preliminary hearing," The first question, then, is Whether the

elements of Indecent Assault are included in the greater offense of Aggravated Indecent Assault

A review of the case law reveals that, for certain purposes, Indecent Assault. is not an "included

lesser offense." In Commonwealth v. Allen, 856 A.2d 1251 (Pa. super. 2004), the Pennsylvania

Superior Court held that aggravated,   Indecent Assault and Indecent Assault are not greater and

lesser included offenses for the purpose of determining double jeopardy. The court notes that:

       Aggravated indecent assault is defined as penetration, however slight, of the
       genitals or anus of the victim with a part of the offender's body for any purpose
       other than good faith medical, hygienic, or law enforcement
       procedures .. .Indecent assault is defined as indecent contact with the victim ... 18
       Pa. C.S.A. §3101 defines indecent contact as any touching of the sexual or other
       intimate parts of the victim for the purpose of arousing or gratifying sexual desire

4
 This Court. notes counsel for the Appellant's timely objection at the preliminary hearing
(Preliminary Hearing Transcript, 7/17/15, p. 15) and continued objections in varying
form throughout the course of the trial court proceedings.                               ·
                                             4
                                   ·~




         in either person ... Indecent assault includes an element that is not required to
         commit aggravated indecent assault That element is proof of arousing or
         gratifying sexual desire.

Allen, at 1243-1254 ..

         However, the ruling in Allen is not dispositive in this matter, as further analysis is

required in the matter       of determining   whether charges may be amended pursuant to Rule 454(8).

Pursuant to the Pennsylvania Superior Court's ruling in Commonwealth v. Sinclair, 897 A.2d

1218 (Pa. Super, 2006), charges may be amended when the appellant was folly apprised of the

factual scenario which supported the charges against him and the defendant is not prejudiced by

the amendment. Specifically, the Sinclair Court held:

         Where the crimes specified in the original information involved the S:ame 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 tothe defendant results.

Sinclair, 897 A.2d at 1222.

         In   this case,   the same basic elements are necessary in order to prove Aggravated Indecent

Assault and Indecent Assault Both involve a hon-consensual touching of a sexual nature. Both

charges arose out of the allegations that Appellant physically restrained the victim and tried to

have sexual relations with her, despite her statement that she did not consent.5 The underlying

factual situation is no different for either the charge of Aggravated Indecent Assault or Indecent

Assault. Defendant was not prejudiced by the, substitution of charges.

         Rule 564 of the Pennsylvania Rules ofCriminalProcedure provide that:

         The court may allow an information to be amended 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.



5
    Preliminary HearingTranscript, 7/17115, pp. 4-9.
                                                    5
                                                                      . ...........



Pa. R. Crim.P. 564. "The 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 defendantis uninformed." Sinclair, atp. 1221, citing Commonwealth v. Duda, 83J

A.2d 728, 732 (Pa. Super. 2003). Sinclair provides that that, when presented with a challenge to

the propriety ofan amendment; we must consider:

         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. If so, then the defendant is
         deemed to have been placed on notice regarding his alleged criminal conduct. If,
         however, the amended provision alleges different set of events or the elements or
         defense to the amended crime are materially different from the elements or
         defenses to the amended crime are materially different from the elements or
         defense to the crime originally charged, such that the defendant would be
         prejudiced by the charge, then the amendment is not permitted; 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.

Id.(emphasis provided) citing, Commonwealth v. Davalos, 779 A.2d 1190, 1194 (Pa. Super

2001).

         Relief is only proper where the amendment. prejudices the. defendant         Id. To determine

the existence of prejudice, the court must.consider:

         (l)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.

Sinclair, at 1223. Sinclair allowed the defendant to be newly charged with the offense of driving

while the defendant's blood alcohol content was between 0.1 % and 0.159%, even though he was

originally charged with incapable of safe driving and blood alcohol content greater than 0.16%.



                                              6
The court allowed the amendment because the driving under the influence statute proscribes a

single harm to the Commonwealth - the operation of a vehicle under the influence to a degree

that renders an.individual of safe driving. Sinclair, at 1222.

       In Commonwealth v. Womack, 307 Pa. Super. 396, 453 A.2d 642 (Pa. Super. 1982), the

Superior Court allowed the addition of a criminal conspiracy charge to the existing charges that

included rape, kidnapping, and indecent assault. The. new conspiracy charge was allowed even

though it requires proof of an additional element (unlawful agreement), because the defendant

had notice of the charge (as it was originally charged, but then not included in the bills of

information) and because defendant was not prejudiced by the amendment. No prejudice was

found because Defendant claimed all along that the sexual contact was consensual. The court

found that the new charge of conspiracy would not have changed defendant's defense.

        In Commonwealth v. Page, the Pennsylvania Superior Court allowed a trial court to

amend the information at the close of evidence, prior to closing arguments. The trial court

granted the Commonwealth's motion to amend the information to charge the defendant with

aggravated indecent assault of a child under thirteen, 18 Pa.C,S.A. §3126(b), although he was

originally only charged him under 18 Pa.C.S.A §3125(a) (not involving a child under 13). The

defendant contended that the -amcndment was prejudicial because, "there was insufficient notice

to permit meaningful opportunity to address the amended charge." Page, 965 A.2d at 1223. The

Superior Court disagreed, holding:

       · In the instant case, the amendment did not alter the factual scenario in any way;
         the amended charge evolved out of the same factual situation as the original
         charge. No new facts were added to the amended information. The amended
         charge consists of the same basic. elements.v, The child's age was known to
         Appellant prior to this amendment, and he knew this fact was at issue because it is
         an element of 18 Pa. C.S.A.. §3125(a)(7). Appellant's defense was that he never
         engaged in any inappropriatebehavior; therefore the amendment did not hinder or
         necessitate any change in his defense strategy.

                                              7
.   .



        Id. at 1224.

                 In the case at hand, the primary difference between Aggravated Indecent Assault. and

        Indecent Assault is that the Commonwealth no longer must prove penetration, but must now

        show that the Defendant's indecent physical contact with the victim was for "arousing or

        gratifying sexual desire. "6 This added element does not change the factual scenario one iota. Nor

        does it substantially change the requirements of Appellant's defense preparation. As in Womack,

        Appellant here claimed that the sexual contact was consensual.

                 Furthermore, Appellant had ample time to prepare a defense to the new charge; which

        was added at the Preliminary Hearing on July 17; 2015. The. Appellant         was not tried until

        September 19, 2016, over a year. later. In the interim, counsel for the Appellant vigorously

        contested the added charge by way ofa Writ of Habeas Corpus, filed December 31, 2015, as well

        as an, Application for Amendment of Interlocutory Appeal, filed February 5, 2016, and a Motion

        to Dismiss/Quash, filed February 10, 2016. AU of the defense motions were denied shortly after

        filing, giving Appellant notice that the new charge would stand and allowing him sufficient time.

        to prepare an adequate defense. Accordingly, Appellant was not prejudiced by the substituted

        Indecent Assau1t charge.

                 Lastly, this court must anticipate misplaced reliance on Commonwealth v. Donaldson,

        339 Pa; Super 237,488 A.2d 639 (Pa. Super. 1985),. in which the Superior Court held that "the

        trial court was without authority to sua sponte add. a charge to the information,   i,   Id. at 641. In

        Donaldson, the trial court sua sponte amended the information          to substitute      a charge of

        misdemeanor aggravated assault for the originally charged felony aggravated assault, after the

        preliminary hearing and at the request of the Defendant. The Commonwealth           objected to the


        6                     .
            18 Pa. C.S.A.. §3126(a).
                                                     8
