J-S39011-18


                                  2018 PA Super 337

    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                         OF PENNSYLVANIA
                             Appellee

                        v.

    LUIS FELIX QUINONES

                             Appellant                  No. 1528 MDA 2017


        Appeal from the Judgment of Sentence imposed August 28, 2017
                  In the Court of Common Pleas of York County
                Criminal Division at No: CP-67-CR-0007047-2016


BEFORE: STABILE, MURRAY, and MUSMANNO, JJ.

OPINION BY STABILE, J.:                           FILED DECEMBER 11, 2018

        Appellant, Luis Felix Quinones, appeals from the judgment of sentence

imposed on August 28, 2017 in the Court of Common Pleas of York County

following Appellant’s convictions of firearms not to be carried without a

license, abuse of corpse, conspiracy to commit abuse of corpse, possession of

a controlled substance with intent to deliver (“PWID”), and possession of drug

paraphernalia.1     Appellant contends the trial court erred by permitting the

Commonwealth to amend the initial information to include charges of PWID




____________________________________________


1 18 Pa.C.S.A. § 6106(a)(1), § 5510, § 903(a)-§ 5510, 35 P.S. § 780-
113(a)(30) and § 780-113(a)(32), respectively. The jury acquitted Appellant
of possession of firearm prohibited, tampering with or fabricating physical
evidence, and possession of instruments of crime. 18 Pa.C.S.A. § 6105(a)(1),
§ 4910(a) and § 907(a), respectively.
J-S39011-18


and possession of drug paraphernalia.        We agree and therefore vacate

Appellant’s judgment of sentence.

      The trial court provided an abbreviated synopsis of this case, supported

by references to notes of testimony from Appellant’s four-day jury trial, as

follows:

      Kevin Brightful (“Brightful”), who shot the victim in this case,
      testified. Brightful testified that Appellant was in the business of
      selling heroin, including around the time the shooting occurred.
      The day before the shooting, Brightful and Appellant went to a
      storage shed to get a few handguns. They had gotten these
      handguns because of an incident the night before, [of] which
      Appellant was aware.

      Brightful, who does not have a license to carry a handgun, put the
      handguns in the wheel well, which was under the floor of the
      Honda Odyssey, and they drove the handguns back to Brightful’s
      house. Appellant knew Brightful carried the guns from the wheel
      well to the house. At the house, Brightful kept one of the
      handguns on top of his closet, and he kept the other in his pocket.

      On August 12, 2016, the victim in the case broke into [] Brightful’s
      home with a gun, and the victim was shot and killed by [] Brightful
      as a result. Appellant was present at the time. After the victim
      was killed, Appellant picked up the victim’s gun from the couch
      and told Brightful he wanted to keep it. Immediately afterwards,
      Brightful told him not to keep it, taking the gun away from
      Appellant.

      Then, Brightful and Appellant moved the body from Brightful’s
      home into the Honda Odyssey van. They drove to a secluded area
      and disposed of the victim’s body on the side of the road. After
      disposing the body, Brightful drove himself and Appellant back to
      the storage shed. Five days after the shooting and disposing of
      the body, police pulled over the same Honda Odyssey van,
      containing Appellant and Brightful, who were both then arrested.
      After obtaining a search warrant, police searched the van, and
      then, police conducted a second search several months later.
      During the second search, heroin and drug paraphernalia were
      discovered in the wheel well of the vehicle. The amount of heroin

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      and the type of drug paraphernalia that were discovered were
      consistent with selling heroin in York County.

Rule 1925(a) Opinion, 1/2/18, at 2-4 (references to notes of testimony

omitted).

      Our review of the trial transcripts does not cause us to challenge the

trial court’s summary of the evidence. Nevertheless, we believe additional

information is required to put Appellant’s allegation of trial court error in

context.

      Commonwealth       witness   Brightful   acknowledged     he    was   facing

numerous charges as a result of the August 2016 events, and voiced his hope

that his willingness to testify truthfully at trial would be viewed positively when

he faced sentencing. Also important for context is the fact that Brightful made

his living by selling marijuana in York County, netting him approximately

$2,000 per week. N.T., Trial, at 523-24. His clientele was not the same as

Appellant’s. Id. at 528.

      Brightful’s girlfriend, with whom Brightful lived, also testified at trial.

She stated that on the night before the shooting, a black man with a gun

knocked on either the back door or the kitchen window of the apartment where

she and Brightful lived with their infant daughter. The armed man gestured

for her to come to the back door.        Instead, she ran to the front of the

apartment. Id. at 118-21. She called Brightful who was not home at the

time. Brightful told her to leave the home. She did so, with a friend who took




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her and her daughter to a nearby Motel 6. She spent the night there and was

joined by Brightful. Id. at 122-25.

       The    next    day,    Brightful—accompanied   by   Appellant—retrieved

handguns, including the one he used to shoot the victim, from his storage

shed and brought them to the apartment. That night, Brightful slept with one

of the two handguns on the floor next to his side of the bad. He placed the

other gun on top of his closet. Id. at 551, 553.

       Appellant was a resident of Brooklyn, New York. Transcript of Recorded

Interview, 8/17/16, at 7.2 However, testimony indicated that he often slept

in the living room of Brightful’s York apartment, as was the case on the night

when the victim broke into the apartment and was shot by Brightful. N.T.,

Trial, at 548, 558.      Appellant did not have a gun of his own in Brightful’s

apartment. Id. at 555-56, 565.

       Following his arrest on August 17, 2016, Appellant was charged with

various firearms violations as well as abuse of corpse and conspiracy to

commit abuse of corpse. No drug-related charges were included in the original

information charging Appellant.




____________________________________________


2Appellant gave a statement to police on August 17, 2016. A redacted version
of that videotaped statement was played for the jury. See N.T., Trial, at 473-
75. A redacted transcript of the recorded interview was provided to the jurors
when the video was played. The interview was made part of the trial record,
although it was not separately transcribed during trial. Id.

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       A second search of the Honda Odyssey, conducted five months later on

January 17, 2017, yielded heroin and drug paraphernalia as well as a bullet

from one of the guns Brightful retrieved from the storage shed and stored in

the wheel well. According to Brightful, it was “an accident” that the bullet was

left there. N.T., Trial, at 529-30. Although he could explain the presence of

the bullet, Brightful stated he was unaware of the presence of heroin in the

wheel well. Id. at 528-29.

       No testimony was offered to explain how or why the second search came

about.    In fact, a sidebar discussion between the trial judge and counsel

suggested that the jury was not to hear why the police conducted a second

search.    Id. at 214-15.      However, the motion to add drug charges to the

information reveals that Brightful provided information to the Commonwealth

about Appellant’s alleged heroin business. Motion to Add Charges, 4/24/17,

at ¶ 4. The subsequent search yielded suspected heroin. Id. at ¶ 5. Despite

that fact, Brightful testified at trial that he did not know about the heroin in

the Odyssey and did not know how it got there. N.T., Trial, at 528, 620.3

       In its procedural history, the trial court explained:


____________________________________________


3 Brightful’s acknowledgement of a bullet being “accidently” left behind in the
wheel well when he and Appellant returned the guns to the storage shed calls
into question his testimony that he did not know of the heroin in the wheel
well or how it got there. At least two scenarios are plausible: (1) the drugs
retrieved in January 2017 from that wheel well were not present when
Brightful returned the guns to the shed after the shooting, or (2) the drugs
and drug paraphernalia were present in that same wheel well and Brightful
simply did not notice them when he removed the guns.

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      On April 24, 2017, the Commonwealth filed a motion to add
      charges, and, following a hearing on June 2, 2017, the court
      granted the motion for leave to amend [the] information, which
      was amended on June 8, 2017. On July 21, 2017, a jury found
      Appellant guilty of [the crimes enumerated above and not guilty
      of the remaining charges]. Appellant was sentenced on August
      28, 2017.

Rule 1925(a) Opinion at 1-2 (some capitalization omitted).

      Appellant filed post-sentence motions, which the trial court denied on

September 21, 2017. This timely appeal followed. Both Appellant and the

trial court complied with Pa.R.A.P. 1925.

      Appellant presents two issues for our consideration:

      I.    Whether the honorable trial court erred in permitting the
            Commonwealth to amend the information prior to trial to
            include charges of possession with intent to deliver heroin
            and possession of drug paraphernalia?

      II.   Whether the evidence was insufficient [to] support the jury
            verdict as to firearms not to be carried without a license in
            that the evidence was insufficient to establish that Appellant
            possessed a firearm and that the weapon possessed was
            operable?

Appellant’s Brief at 4.

      In Appellant’s first issue, he argues the trial court erred by permitting

the Commonwealth to amend the original information in violation of

Pa.R.Crim.P. 564, adding drug charges for PWID and possession of

paraphernalia. The version of Rule 564 in effect at all times relevant provided:

      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


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       different offense. 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 (emphasis added).4

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

Court recognized:

       “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
       defendant is uninformed.” Commonwealth v. Sinclair, 897
       A.2d 1218, 1221 (Pa. Super. 2006). “Our 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, 411 Pa. Super. 513, 601 A.2d 1284, [1289] (1992).

       As stated in Sinclair, when presented with a question concerning
       the propriety of an amendment, we 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
____________________________________________


4 Rule 564 was amended effective December 21, 2017 “to more accurately
reflect the interpretation of th[e] rule that has developed since it was first
adopted in 1974.” Pa.R.Crim.P. 465, cmt. (citing, inter alia, Commonwealth
v. Brown, 727 A.2d 541 (Pa. 1999) and Commonwealth v. Sinclair, 897
A.2d 1218 (Pa. Super. 2006)). The current rule provides:

       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.



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        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.

     Sinclair, 897 A.2d at 1221 (quoting Commonwealth v.
     Davalos, 779 A.2d 1190, 1194 (Pa. Super. 2001), appeal denied,
     567 Pa. 756, 790 A.2d 1013 (2001) (citation omitted)).
     Additionally,

        in reviewing a grant to amend an information, the Court will
        look to whether the appellant was fully apprised of the
        factual scenario which supports the charges against him.
        Where the crimes specified in the original information
        involved the same basi[c] 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., at 1222.

Id. at 1202-03 (brackets omitted from original; alterations added).

     In Commonwealth v. Witmayer, 144 A.3d 939 (Pa. Super. 2016),

this Court stated, “A defendant will be afforded relief when the trial court

exercises its discretionary power to allow amendment of the information only

if the defendant was prejudiced by the amendment.”      Id. at 947 (citation

omitted). The Court instructed:

     Factors for a court to consider in determining the existence of
     prejudice include:

        (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

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         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. (citation omitted).

      In its motion to add drug-related charges, the Commonwealth noted

that Appellant was arraigned on December 2, 2016 on the firearms and abuse

of corpse charges outlined above and that the case was scheduled for trial

during the July 2017 term of court. Further:

      4. Information provided to the Commonwealth by co-defendant
      Kevin Brightful is that [Appellant] was involved in selling heroin at
      the time of the instant charges.

      5. As a result of a search warrant on a vehicle believed to be
      occupied by both defendants at the time of their arrest, a
      substance believed to be heroin was discovered in the trunk.

      6. Said substance was submitted for testing at NMS labs.

      7. On April 14, 2017, the investigating Trooper, Jeremy Corrie,
      received an email from Thomas Walsh, Assistant DNA Technical
      Leader of NMS labs, indicating that [Appellant] was a major source
      contributor of the DNA swabs collected from three baggies of the
      suspected heroin.

      8. The email has been forwarded to defense counsel as part of
      discovery, and the report will be forwarded upon receipt.

      9. The Commonwealth seeks to amend the current charges to
      add one count of Possession of Heroin, a controlled substance,
      with the intent to Deliver (35 P.S. 780-113(30)), and one count
      of Possession of Drug Paraphernalia (35 P.S. 780-113(32)).

      10. [Appellant] will not be prejudiced as a result of this report.


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Motion to Add Charges, 4/24/17, at ¶¶ 4-10.

     At the June 2, 2017 hearing on the motion, the following exchange took

place between the trial court and Appellant’s counsel:

     THE COURT: Did you review the motion?

     DEFENSE COUNSEL: I did, Your Honor. I would be opposed to it
     on the following grounds:

     I understand that this is kind [of] a recent development that they
     have decided to charge - - make the charge.

     THE COURT: Obviously or you wouldn’t be here.

     DEFENSE COUNSEL: I understand that. You filed the charge of
     PWI and paraphernalia. I am requesting that it not be added as
     an additional charge in the instant case, which the person not to
     possess abusive corpse [sic]. It is not tied to the alleged - - PWI
     is not tied into the alleged factual allegation in that case.

     THE COURT: It is concurrent in time and place, correct?

     DEFENSE COUNSEL: I don’t know.

     THE COURT: That’s how I read the petition within the involved - -
     which was involved in this crime which gave the basis for these
     charges was found the heroin and took awhile for the lab tests to
     come back, which confirmed at least their belief that
     circumstantially your client was the person who possessed that
     and I guess the weight is what suggests the purpose for it.

     DEFENSE COUNSEL: I understand the weight.

     THE COURT: I mean - -

     DEFENSE COUNSEL: To get to PWI, I think in the instant case
     that I make a motion to [sever] it because - -

     THE COURT: Well, I don’t.

     DEFENSE COUNSEL: - - because, again, I think the alleged course
     of conduct having this charge added would be - -

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     THE COURT: Prejudicial.

     DEFENSE COUNSEL: Exactly, Your Honor. Because then we are
     getting into allegations my client is dealing drugs, which again as
     it relates to the instant case - -

     THE COURT: Well, based on that theory.

     DEFENSE COUNSEL: Not that alleged course of conduct.

     THE COURT: Everyone who happens to have a           weapon, there is
     a prejudice and I don’t agree with you that         the prejudice is
     overwhelming.   The mere fact that these             things occurred
     contemporaneously, it’s sufficient for me to join   them.

     It’s a matter of proof. Whether or not they can prove what they
     say, but I am going to grant their motion. I hear what you are
     saying.    I appreciate - - I don’t think the prejudice is
     overwhelming. We have a vast number of cases involving drugs
     and guns and not very frequently do we have abuse of corp[se]
     concurrent with that, but I am letting it in.

     DEFENSE COUNSEL: Understood.

     PROSECUTOR: Thank you, Your Honor.

N.T., Argument, 6/2/17, at 2-4.

     Addressing the issue in its Rule 1925(a) opinion, the trial court

explained:

     In the instant case, police pulled over the Honda Odyssey van,
     containing Appellant and Brightful, and they were arrested for
     charges associated with the instant case. This was the same van
     that was used to transport the victim’s body just five days before.
     At the time of the shooting, Appellant was a drug dealer for heroin.
     The van was searched, and police found heroin and drug
     paraphernalia in the van. Therefore, this amendment did not
     present new facts that were unknown to [Appellant]. Further,
     given the timeline, the charges were relevant in time and place to
     the other charges and it did assist in presenting a history of the
     case. The amendment did not change the factual scenario

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     supporting the charges. Although the defense strategy did not
     necessarily need to change for the original charges, it did need a
     strategy for the new charges. Further, the Commonwealth’s
     request was made in April, approximately three months before the
     trial. There was ample notice and time for preparation for the
     Defense, and there was no prejudice to [Appellant] as a result.

Rule 1925(a) Opinion, 1/2/18, at 8.

     Both this Court and our Supreme Court have examined claims of trial

court error for amending an information.       For example, in Witmayer, this

Court concluded that adding sexual misconduct charges from Chester County

“did not add any new facts or charges of which [Witmayer] was previously

unaware. Both the criminal complaint and affidavit of probable cause detailed

acts of abuse occurring in both Chester County and Montgomery County.” Id.,

144 A.3d at 947. Therefore, the missing phrase, “County of Chester,” was

“merely a defect in form,” id. at 948, and the amendment did not violate Rule

564. Similarly, in Sinclair, an amendment to include a lower range of BAC

was permitted because Sinclair could not demonstrate any prejudice by being

charged in a lower range.     “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.” Sinclair, 897 A.2d at 1222 (citation

omitted).

     In contrast, in Commonwealth v. Brown, 727 A.2d 541 (Pa. 1999),

our Supreme Court did find prejudice when, immediately before trial, charges

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were added alleging rape and involuntary deviate sexual intercourse (“IDSI”)

with an unconscious person. The Court explained:

       The original information included the charges of Rape and IDSI by
       forcible compulsion. In order to prove the “forcible compulsion”
       component of these charges, the Commonwealth was required to
       establish beyond a reasonable doubt that appellant used either
       physical force, a threat of physical force, or psychological
       coercion, since the mere showing of a lack of consent does not
       support a conviction for Rape and/or IDSI by forcible compulsion.
       The amendment introduced the charges of Rape and IDSI with a
       person who is unconscious. These latter charges did not require
       proof by the Commonwealth that force of any sort was employed
       by the accused. Consequently, the amendment to the information
       violated Rule [3645] by introducing new offenses.

Id. at 544 (citation omitted). After determining that the amendment at issue

violated the rule by introducing new offenses, the Court considered whether

Brown was prejudiced by the amendment.

       [B]ased on the original charges, appellant had every reason to
       expect that the Commonwealth would be attempting to establish
       that the victim was conscious during the sexual encounter. It
       would be virtually impossible for the Commonwealth to meet its
       burden of establishing that appellant used physical force, a threat
       of physical force, or psychological coercion against the victim if
       the Commonwealth did not first establish that the victim was
       conscious. Assuming the Commonwealth could establish that the
       victim was conscious, appellant’s primary line of defense would
       have been that she consented to the encounter. When the
       Commonwealth shifted the focus of its case to proving that the
       victim was unconscious, the Commonwealth vitiated appellant’s
       primary line of defense, since consent is not a defense to the
       charges of Rape and/or IDSI with an unconscious person.
       Therefore, by varying the information at the eleventh hour, the
       Commonwealth rendered appellant’s primary defense a nullity.


____________________________________________


5 The rule at issue in Brown was Rule 229, which was subsequently
renumbered as Rule 564 in 2000.

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Id. (emphasis in original) (reference to notes of testimony omitted).

       Turning to the case before us, it is without question that the amended

information charged additional and different offenses. As such, the amended

information violates Rule 564 on its face.           Therefore, we must consider

whether Appellant suffered prejudice as a result.          We do so, utilizing the

considerations outlined by this Court in Witmayer.6

       As explained above, the original information included firearms charges

and charges related to abuse of corpse stemming from events that occurred

on August 12, 2016 when Brightful shot and killed the victim. Brightful and

Appellant then drove the body to a remote site where it was discovered several

days later. The amended information changed the factual scenario supporting

the charges, alleging PWID (heroin) and possession of drug paraphernalia.

Those charges were added after Appellant’s preliminary hearing and after a

second search of a vehicle took place five months after his arrest for gun-

related charges and abuse of corpse.           The trial court believed that “these

things occurred contemporaneously,” N.T., Argument, 6/2/17, at 4, and

determined “the amendment did not present new facts that were unknown to


____________________________________________


6 Again, those considerations include “(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.” Witmayer, 144 A.3d at 947.

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[Appellant].” Rule 1925(a) Opinion, 1/2/18, at 8. Neither of those conclusions

is supported by the record. The first of the “prejudice” considerations exists

here.

        The second through fifth factors also are present. Prior to the second

search of the vehicle used to transport the victim’s body, there was no

suggestion that Appellant was involved in any drug activity. Therefore, new

facts were added. Further, the entire factual scenario facing Appellant at trial

was not developed during the preliminary hearing, which was held prior to

amendment of the information.       Moreover, the description of the charges

changed drastically with the amendment, taking the case from one of guns

and abuse of corpse to one involving drug dealing and drug possession. As a

result, a change in defense strategy was necessitated in order to defend

against the new charges, which were unrelated to the original charges and

painted a different picture of the events that occurred in August 2016.

        The final consideration relates to the timing of the Commonwealth’s

request for amendment and whether Appellant had ample notice to prepare.

Unlike Brown, where the information was amended “immediately before

trial,” the motion to add charges here was filed on April 24, 2017 and was

argued and granted on June 2, 2017. The information was amended on June

8, 2017, and the trial began approximately five and a half weeks later, on July

17, 2017.     We recognize the information was not amended “immediately

before trial,” as was the case in Brown. While the timing of the amendment


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might weigh in favor of the Commonwealth, we do not find it dispositive in the

case before us.

      Here, the amendment occurred well after the preliminary hearing and

relatively close to a trial that brought into play drug charges and DNA evidence

linking Appellant to possession of heroin with intent to deliver. Neither drug

charges nor DNA evidence was at issue with respect to the charges set forth

in the original information.

      We find compelling Appellant’s argument explaining the prejudice

resulting from the amendment.

      As Appellant argues in his brief:

      In the instant case Appellant was charged with offenses which
      were connected to the disposing of the body of the deceased and
      allegedly disposing of evidentiary items. The original charges had
      no connection to or arose out of any alleged drug dealing by the
      Appellant. The heroin was not even found until January 2017,
      approximately five months after the Appellant’s arrest. The
      Commonwealth then waited another four months to file the
      amended charges.

      The amended drug charges clearly alleged different facts and
      events and did not evolve out of the allegations of abuse of corpse
      and tampering with evidence. The drug charges are materially
      different from the original charges. The amendments clearly
      changed the original factual scenario; added new facts to the case
      not known to the Appellant until approximately one month prior
      to trial; the new factual scenario was not developed at a
      preliminary hearing but in fact was not instituted until almost ten
      months after the Appellant’s arrest; a description of the charges
      clearly changed with the amendments; and clearly prejudiced the
      Appellant. It should further be noted counsel made a motion to
      sever at the hearing which was denied.

      The prejudice is more evident as set forth in the argument
      below concerning relevant evidence. The amendments,

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       which had not[h]ing to do factually or otherwise with the
       original charges, allowed the district attorney to argue that
       the Appellant was a heroin dealer which had no connection
       to the original charges. Allowing the district attorney to
       argue that aspect clearly painted the Appellant in an
       unfavorable light. The alleged heroin involvement of the
       Appellant had no connection whatsoever to the deceased
       entering the co-defendant’s residence, being shot and
       killed, and then the disposing of the body and other
       evidence. The amended charges should have been filed in
       a separate criminal complaint under a separate offense
       tracking number. Appellant submits the sole motivation for
       the district attorney to want the amendments was clearly
       so Appellant’s character could be tarnished as a heroin
       dealer. This is especially true given the current climate
       regarding heroin in York County and throughout the
       Commonwealth. As a result, the trial court erred and
       Appellant should be afforded a new trial.

Appellant’s Brief at 11-12 (emphasis added).

       Further:

       The resulting prejudice to the Appellant is clear. The events which
       led to the abuse of corpse and related charges had absolutely no
       nexus to the Appellant being a drug dealer. In fact, it was just
       unlucky happenstance that Appellant happened to be at his co-
       defendant’s apartment when the deceased broke in and was shot.
       Obviously, had the amendments not been permitted, the district
       attorney would have been prohibited [under Pa.R.Crim.P. 404(b) 7]
       from producing evidence of the Appellant being a heroin dealer.
       Appellant submits it was a calculated effort by the district attorney
       to amend the information so that the highly prejudicial and
       inflammatory evidence would be introduced. At the time of the
       June 2, 2017 hearing, [Appellant’s] counsel was unaware when
       the heroin was even found by authorities. There was absolutely
       no logical correction [sic] between the drugs found and the initial
       charges. Again, the amendment emerged independently from
       and not from the same factual scenario or circumstances giving
       rise to the original charges.
____________________________________________


7 Appellant addressed the import and application of Pa.R.Crim.P. 404(b)
(Other Crimes, Wrongs, or Acts) in his brief. Appellant’s Brief, at 12-14.

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      The proper course of conduct if the court was going to permit the
      amendment was to sever the drug charges and conduct a separate
      trial on these allegations. Counsel suggested such a remedy at
      the June 2, 2017 hearing.

Id. at 15.

      It is apparent even from the Commonwealth’s opening statement that

the addition of drug-related charges enabled the prosecution to alter its theory

of the case and offer a motive for Appellant’s actions, causing prejudice to

Appellant. While opening statements are not evidence, and the jury was so

instructed, the Commonwealth’s opening confirms its advancement of the

newly-available motive, as reflected in the following passage:

      [] Brightful was engaged in selling marijuana at the time with his
      cousin Chisholm who was then in jail, and [Appellant] is from New
      York and had his own business of selling heroin at the time, and
      th[e] heroin that was found in the Odyssey belonged to
      [Appellant], and he intended to deliver it to another or others.

      Together, they aided one another, and both actively participated
      in illegally disposing of the body, the guns, and other evidence of
      the killer. They did so because of their various criminal
      enterprises and not wanting the authorities to gain
      knowledge either of the death or those enterprises. In
      short, they were scared of going to jail.

N.T., Trial, at 84-85 (emphases added).

      We conclude Appellant was prejudiced by the amendment of the

information.   Therefore, we vacate Appellant’s judgment of sentence and

remand for a new trial with instruction to the trial court to sever the charges

of PWID and possession of drug paraphernalia from the charges set forth in




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the original information. In light of our disposition of Appellant’s first issue,

we find his second issue moot.

      Judgment of sentence vacated. Case remanded for further proceedings

consistent with this Opinion. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2018




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