J-S06042-17

                                2017 PA Super 204

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

ADDIE WILLIAMS

                               Appellant               No. 778 EDA 2016


             Appeal from the Judgment of Sentence January 7, 2016
     in the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0002246-2014

BEFORE: MOULTON, RANSOM, and FITZGERALD,* JJ.

OPINION BY FITZGERALD, J.:                              FILED JUNE 30, 2017

        Appellant, Addie Williams, appeals from her judgment of sentence of

guilt without further penalty on her conviction for harassment. 1          We

conclude that the Commonwealth’s violation of Appellant’s rights under

Pa.R.Crim.P. 544 and 564 requires us to reverse her conviction and direct

the trial court to dismiss the harassment charge with prejudice.

        In the early morning hours of February 5, 2014, Appellant was

arrested after her daughter called the police and alleged that Appellant

locked her and her brothers out of their house.           Appellant’s daughter

informed a police officer at the scene that Appellant had hit her in the mouth

at some point one day earlier. Appellant was charged with multiple counts



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2709(a)(1).
J-S06042-17


of endangering the welfare of children, one count of simple assault and one

count of harassment.

        On February 18, 2014, Appellant posted bail and was released from

jail.   On March 24, 2014, all charges except for simple assault were

dismissed at Appellant’s preliminary hearing. The Commonwealth thereupon

filed an information charging her only with simple assault.2

        On January 7, 2016, the matter proceeded to trial. At the beginning of

trial, the Commonwealth orally moved to amend the information to include

the previously dismissed charge of harassment. The Commonwealth claimed

that this amendment was proper on the ground that harassment is a lesser

included offense of simple assault. N.T., 1/7/16, at 9-10. Defense counsel

responded:

           I am going to object to [the] bill of information being
           amended in any way at this point. I think there is a
           process that has to be gone through by the District
           Attorney in order to do that. That hasn’t been done in this
           case. I think a petition has to be filed. In any event, I am
           looking at [Rule 564] right now. [The information] can be
           amended if there is a defect in form, the description of the
           offenses, description of any person or property, date
           charged, as long as they will not charge different
           offense[s]. We have gotten no notice that the bill of
           information was going to be amended. There is nothing in
           writing.   I think there is a process that the District
           Attorney is trying to circumvent here.

Id. at 10-11.



2
    18 Pa.C.S. § 2701(a)(1).



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      The trial court suggested that Appellant had received notice of the

harassment charge because the Commonwealth had offered to permit her to

plead guilty to harassment without further penalty.   Id. at 11.   The court

also observed, however, that “generally there has to be a defect in form,

which, by the way, I didn’t hear any defect in form, description of the

offenses, description of any person or property.”     Id. at 12.   The court

concluded that defense counsel raised an “interesting argument,” and that

the court would “figure it out.” Id. at 13.

      At the close of evidence, defense counsel, in the words of the trial

court, “tailored [his] closing argument to the simple assault charge.” Trial

Ct. Op., 5/16/16, at 13. Defense counsel argued that Appellant slapped her

daughter during a quarrel, and that Appellant’s daughter lied to the police

that the slap caused a cut on the side of her mouth. N.T., 1/7/16, at 114.

Counsel contended that slight cuts or bruises were insufficient to establish

simple assault.3   Id.   The Commonwealth countered that Appellant was

guilty of simple assault or, in the alternative, harassment. The court found

Appellant not guilty of simple assault, but it granted the Commonwealth’s



3
  Earlier in the case, defense counsel cited Commonwealth v. Kirkwood,
520 A.2d 451 (Pa. Super. 1987), for this proposition. See id. at 275
(evidence that defendant’s uninvited attention and violent dancing,
according to victim, caused bruises and slight cuts on her arms, and that her
right knee and arms hurt as a result of manner in which defendant swung
her during dance, was insufficient to establish “physical impairment” or
“substantial pain” elements of simple assault).



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J-S06042-17


motion to add harassment to the information and subsequently found

Appellant guilty of harassment.

      Appellant filed timely post-sentence motions, which the court denied,

and a timely notice of appeal. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant raises two issues in this appeal:

         I. Whether the charge of harassment should be dismissed
         due to a variance between the indictment and the crime of
         conviction failing to meet the requirements of Rule of
         [C]riminal [P]rocedure 564 and because the trial court
         committed a procedural error in rendering the verdict
         where summary harassment was dismissed at the
         preliminary hearing and never reinstated and is not a
         lesser included offense of simple assault.

         II. Whether the evidence presented by the Commonwealth
         was sufficient to support a conviction for summary
         harassment.

Appellant’s Brief at 7.

      In her first argument, Appellant maintains that the charge of

harassment should be dismissed due to the Commonwealth’s violations of

Pa.R.Crim.P. 544 and 564. The Commonwealth “concedes, with the benefit

of hindsight, that the procedure below did not comply with [Rule] 544.”

Commonwealth’s Brief at 6. We agree with Appellant that dismissal is the

proper remedy.

      The   Commonwealth     clearly   violated   Pa.R.Crim.P.   544(A),   which

provides: “When charges are dismissed or withdrawn at . . . a preliminary

hearing . . . the attorney for the Commonwealth may reinstitute the charges


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by approving, in writing, the re-filing of a complaint with the issuing

authority who dismissed . . . the charges.”    Pa.R.Crim.P. 544(A).     In this

case, the harassment charge was dismissed at Appellant’s preliminary

hearing, but the Commonwealth failed to “approve, in writing, the re-filing of

a complaint [alleging harassment] with the issuing authority who dismissed .

. . [this charge].” Id. The Commonwealth also violated Rule 544(B), which

requires that the defendant receive another preliminary hearing on the

reinstituted charge before the same issuing authority, or, if need be, before

a different issuing authority.     See Pa.R.Crim.P. 544(B).        Here, the

Commonwealth orally requested that the trial court—not the issuing

authority—grant the Commonwealth leave to amend its information to add

the harassment charge back into the case.       The court delayed until the

conclusion of trial before granting the Commonwealth’s motion, thus

depriving Appellant of her right to a new preliminary hearing on the

harassment charge and preventing defense counsel from preparing any

defense to this charge.

     In addition, the Commonwealth violated Pa.R.Crim.P. 564, which

presently provides:

        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.              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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J-S06042-17



Pa.R.Crim.P. 564.4 When the trial court exercises its discretionary power to

allow amendment of the information, the defendant can obtain relief if the

amendment prejudices him.      See Commonwealth v. Mentzer, 18 A.3d

1200, 1203 (Pa. Super. 2011) (citation omitted).      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 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 this case, the Commonwealth waited until the beginning of trial

before moving to amend the information to add a charge of harassment.

4
 This version of Rule 564 is effective until December 21, 2017, when an
amended version of Rule 564 takes effect. The amended version 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.

Id. Our Supreme Court amended Rule 564 “to more accurately reflect the
interpretation of this rule that has developed since it first was adopted in
1974.” Pa.R.Crim.P. 564, cmt.



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J-S06042-17


The court took the motion under advisement and did not make its ruling

until after the close of evidence and after defense counsel had already

given his closing argument tailored to the only charge in the information at

that time—simple assault.

      Further, harassment is clearly a “different offense” than simple

assault. See Pa.R.Crim.P. 564. We have observed:

         To establish harassment, there must be proof the accused
         acted with an intent to harass, annoy, or alarm the other
         person. This unique element of intent is not required for
         simple assault. To prove simple assault, an intentional or
         reckless effort to cause bodily injury must be shown.
         Bodily injury is not a part of harassment. These crimes
         have distinct mental elements, and distinct types of harm
         are addressed.

Commonwealth v. Townley, 722 A.2d 1098, 1099 (Pa. Super. 1998).

Thus, the Commonwealth’s failure here to request an amendment to the

information until the beginning of trial, and the court’s failure to rule on this

motion until the end of trial, deprived defense counsel of any realistic

opportunity to prepare or present a defense to this new and different charge

during trial.

      The Commonwealth injected a new charge into this case at the

eleventh hour in clear disregard for rules whose purpose is to give the

defendant a fair opportunity to prepare and present her defense. We hold

that the trial court abused its discretion in permitting the Commonwealth to

amend its information to add the harassment charge.




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J-S06042-17


      The Commonwealth argues that Appellant cannot obtain relief because

of mootness. In the context of post-conviction proceedings or direct appeals

challenging the legality of sentence, Pennsylvania courts have found criminal

cases moot when the defendant has completed her sentence and does not

suffer from any collateral civil or criminal consequence of her conviction.

See Commonwealth v. Rohde, 402 A.2d 1025, 1027 (Pa. 1979);

Commonwealth v. Doria, 364 A.2d 322, 324 (Pa. 1976); Commonwealth

v. Sheehan, 285 A.2d 465, 469 (Pa. 1971); Commonwealth v. Schmohl,

975 A.2d 1144, 1149 (Pa. Super. 2009) (defendant’s appeal not moot based

on “reasonable assumption” that he remains on parole from his conviction);

Commonwealth v. King, 786 A.2d 993, 996-97 (Pa. Super. 2001);

Commonwealth v. Kelly, 418 A.2d 387, 388 (Pa. Super. 1980).

      Even when a claim becomes moot, however, we may still reach its

merits if the issue is “capable of repetition yet likely to evade review.” Pub.

Defender’s Office of Venango Cty. v. Venango Cty. Court of Common

Pleas, 893 A.2d 1275, 1276, 1279 (Pa. 2006) (citation omitted) (public

defender challenged order compelling him to serve as standby counsel for

pro se criminal defendant who previously had been denied public defender

representation because his annual income exceeded the financial guidelines;

although matter was moot because defendant had already gone to trial,

Supreme Court proceeded to merits because issue was capable of repetition

yet evading review).



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J-S06042-17


      Arguably, the present case is moot, because the court found Appellant

guilty without further penalty, and she has not claimed to have suffered any

collateral consequences from this conviction.           Nevertheless, we reach the

merits of this case because its circumstances are capable of repetition yet

evading review.      Specifically, in future cases, the Commonwealth could

attempt     to   rescue   prosecutions   by    adding    new   charges   during   or

immediately before trial. It is unjust to expose defendants to the stigma of

a criminal record by circumventing the Rules of Criminal Procedure in this

fashion.5

      Judgment of sentence reversed. Case remanded with instructions to

dismiss harassment charge with prejudice. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/30/2017




5
   Our decision in Appellant’s favor on her first argument makes it
unnecessary for us to review her second argument, a challenge to the
sufficiency of the evidence underlying her harassment conviction.



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