J-S28045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                             Appellee

                       v.

LLOYD RICHARD THOMAS

                             Appellant                     No. 1751 MDA 2014


             Appeal from the Judgment of Sentence March 3, 2014
             In the Court of Common Pleas of Susquehanna County
              Criminal Division at No(s): CP-58-CR-0000092-2012


BEFORE: BOWES, J., ALLEN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                                      FILED JULY 06, 2015

        Lloyd Richard Thomas appeals from the judgment of sentence imposed

by the Court of Common Pleas of Susquehanna County, following his

convictions for two counts of voluntary manslaughter,1 possession of drug

paraphernalia,2 and possession of a small amount of marijuana.3                   Upon

review, we affirm.

        On February 11, 2012, Thomas shot and killed Gilberto Alvarez and

Joshua     Rogers    after   they   came       onto   Thomas’    father’s   property   in

Susquehanna County. Alvarez and Rogers had driven by the property earlier

____________________________________________


1
    18 Pa.C.S. § 2503(b).
2
    35 P.S. § 780-113(a)(32).
3
    35 P.S. § 780-113(a)(31).
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in the day and believed that the Ford Mustang in which they were driving

had been shot.     Rogers and Alvarez returned to the area to investigate.

They spoke with a neighbor who told them shots were fired earlier in the day

from the direction of Thomas’ father’s property.

      Alvarez and Rogers approached the property through a wooded area.

The two men decided to split up and Alvarez approached the front of the

house while Rogers went around the back. Rogers carried a shotgun, which

he did not fire.

      Thomas spotted Alvarez first and shot him while Alavarez was

approximately 61 feet from the house. Thomas then made his way through

the house to the rear deck where he shot several times at Rogers, once

striking Rogers’ gun and subsequently fatally shooting Rogers as he

retreated from the property.

      Upon questioning by law enforcement officials, Thomas did not claim

that either victim threatened him in any manner. He simply stated that he

saw Alvarez emerge from the woods and reacted to the situation.

      A preliminary hearing was held on February 22, 2012.        Two open

counts of criminal homicide were transferred to criminal court. A jury trial

commenced on January 13, 2014.          Following jury selection, the court

allowed the amendment of the pending charges to include one count of

possession of drug paraphernalia and one count of possession of a small

amount of marijuana.




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      On   January    16,   2014,   the   jury   found   Thomas   guilty   of   the

aforementioned offenses. On March 3, 2014, the court sentenced Thomas to

an aggregate term of 6 to 12 years’ incarceration, followed by 8 years of

probation. Thomas filed a post-sentence motion seeking a new trial, which

the court denied on June 9, 2014. This timely appeal followed.

      On appeal, Thomas presents the following issues for our review:

      1. Did the trial court err in failing to award [Thomas] a new trial
         on the charges of voluntary manslaughter when said verdicts
         were against the weight of the evidence?

      2. Did the trial court err by allowing the amendment of the
         informations after the jury was selected and seated to include
         charges of possession of drug paraphernalia and possession
         of a small amount of marijuana thereby resulting in prejudice
         to [Thomas]?

      3. Did the trial court erred [sic] by denying [Thomas] a new trial
         where [the] Commonwealth provided information to the
         defense after the verdict was rendered when said information
         was material to the question of whether the victims were the
         aggressors in this instance?

Brief of Appellant, at 7.

      In his first issue, Thomas argues that the voluntary manslaughter

verdicts were against the weight of the evidence. Our standard of review of

a weight of the evidence claim is as follows:

      The finder of fact is the exclusive judge of the weight of the
      evidence, as the fact finder is free to believe all, part, or none of
      the evidence presented and determines the credibility of the
      witnesses. As an appellate court, we cannot substitute our
      judgment for that of the finder of fact. Therefore, we will
      reverse a jury’s verdict and grant a new trial only where the
      verdict is so contrary to the evidence as to shock one’s sense of
      justice. Our appellate courts have repeatedly emphasized that
      one of the least assailable reasons for granting or denying a new

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      trial is the lower court’s conviction that the verdict was or was
      not against the weight of the evidence.

         Furthermore,

         [W]here the trial court has ruled on the weight claim
         below, an appellate court’s role is not to consider the
         underlying question of whether the verdict is against the
         weight of the evidence. Rather, appellate review is limited
         to whether the trial court palpably abused its discretion in
         ruling on the weight claim.

Commonwealth v. Rabold, 920 A.2d 857, 860-61 (Pa. Super. 2007)

(citations and quotations omitted).

      Additionally, pursuant to the Pennsylvania Crimes Code, “[a] person

who intentionally or knowingly kills an individual commits voluntary

manslaughter if at the time of the killing he believes the circumstances to be

such that, if they existed, would justify killing . . . but his belief is

unreasonable.” 18 Pa.C.S. § 2503(b).

      Thomas claims he shot Alvarez and Rogers in self-defense. At trial, it

was determined that Alvarez and Rogers approached Thomas’ residence in a

non-confrontational manner. While Alvarez was still 61 feet away, Thomas

shot him through the side of the head at a time when the victim was not

even looking at him. Thomas then fired a number of shots at Rogers. One

bullet struck the gun Rogers was holding, which was turned away from

Thomas and pointed at a downward angle. Based upon forensic evidence,

Thomas shot Rogers as he was attempting to retreat from the residence.

      The jury concluded that Thomas was in fear for his life, but that his

fear was not reasonable. Based upon the uncontested evidence, we discern



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no abuse of discretion by the trial court and do not find the verdict to be so

contrary to the evidence as to shock one’s sense of justice.

      In his second issue, Thomas argues that trial court erred when it

added the charges of possession of drug paraphernalia and possession of a

small amount of marijuana to the criminal information after jury selection.

Pennsylvania Rule of Criminal Procedure 564 states:

      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 necessary in
      the interests of justice.

Pa.R.Crim.P. 564.

      We have previously stated that the purpose of Rule 564 is to ensure

that a defendant is fully aware of the charges against him and to avoid

prejudice by prohibiting the last minute addition of alleged criminal acts of

which the defendant is uninformed. We apply the following test:

         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 a different set of events, or the
         elements or defenses to the amended crime are materially
         different from the elements or defenses to the crime
         originally charged, such that the defendant would be
         prejudiced by the change, then the amendment is not
         permitted.




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Commonwealth v. Sinclair, 897 A.2d 1218, 1221 (Pa. Super. 2006), citing

Commonwealth v. Davalos, 779 A.2d 1190, 1194 (Pa. Super. 2001)

(citation omitted).

      Here, the trial court permitted different offenses to be charged through

the amendment of the information. The additional charges of possession of

drug paraphernalia and possession of a small of marijuana rely on different

elements than criminal homicide.    Based on this, it would appear that the

amendment of the information was improper         However, relief may not be

available unless the amendment causes prejudice to the defendant.         See

Commonwealth v. Page, 965 A.2d 1212, 1224 (Pa. Super. 2009).

      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 an
      appellant by, for example, rendering defenses which might have
      been raised against the original charges ineffective with respect
      to the substituted charges. Factors that we must consider in
      determining whether a defendant was prejudiced by an
      amendment 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.

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




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      In this case, Thomas cannot demonstrate prejudice.         On March 23,

2013, the Commonwealth filed a pre-trial motion seeking clarification on a

variety of evidentiary issues, in particular, the admissibility of the marijuana

and related paraphernalia in Thomas’ possession at the time of the shooting.

A pre-trial conference took place on July 31, 2013. At the conference, there

was a discussion regarding the admissibility of the marijuana and related

paraphernalia, and the Commonwealth made an oral motion to amend the

information to include those charges. The trial court did not make a ruling

on the Commonwealth’s oral motion at that time.

      Thereafter, in preparation for trial, the parties entered into discussions

regarding trial stipulations, which included a stipulation concerning the lab

reports relating to the marijuana.      The lab reports were provided to the

defense during discovery. On September 13, 2013, the Commonwealth and

Thomas’s counsel reached an agreement to stipulate to the findings of the

lab reports rather than bring in expert witnesses.

      The trial court finally ruled on the Commonwealth’s motion to amend

the information on January 13, 2015, the day trial began.            The court

permitted the amendment and allowed the evidence of marijuana and

related paraphernalia to be admitted.

      Based on the foregoing, we cannot say that Thomas was prejudiced by

the amendment to the information. Thomas was aware of the existence of

the marijuana and paraphernalia evidence, as well as the Commonwealth’s

intention to amend the information, nine months before trial was scheduled

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to commence.       There was no surprise for the defense as the Commonwealth

had made it abundantly clear of its intent to introduce the evidence in

question.      Both    parties    proceeded      through   jury   selection   and   the

commencement of trial without knowing for certain whether the lower court

would allow the drug evidence to be admitted. Accordingly, both sides were

in the same position regarding trial preparation and strategy.

       Thomas argues that by the time the court ruled on the amendment,

there was no time to prepare a new defense or hire an expert to testify

regarding the effects of marijuana on decision-making.4             As we previously

explained, both parties were aware of the possibility of the addition of drug

charges and should have prepared accordingly.

       Therefore, we discern no error of law or abuse of discretion by the trial

court in its decision to amend the information and admit the drug related

evidence.    Commonwealth v. Womack, 453 A.2d 642, 645 (Pa. Super.

1982) (if no showing of prejudice, amendment of information to add

additional charge is proper even on day of trial).

       In his third issue, Thomas argues that the trial court erred when it

denied his request for a new trial due to the Commonwealth’s failure to




____________________________________________


4
  It is noteworthy that Thomas took the stand in his own defense and
admitted to possessing a small amount of marijuana and related
paraphernalia.



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provide evidence of Alvarez’s prior bad acts.         The record belies Thomas’

argument.

       “[S]uppression by the prosecution of favorable evidence to an accused

upon request violates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.”     Commonwealth v. Brady, 373 U.S. 83, 87 (1963).                   “To

establish a Brady violation, a defendant must demonstrate that:             (1) the

evidence    was     suppressed      by   the   Commonwealth   either   willfully    or

inadvertently; (2) the evidence was favorable to the defendant; and (3) the

evidence was material, in that its omission resulted in prejudice to the

defendant.”     Commonwealth v. Haskins, 60 A.3d 538, 547 (Pa. Super.

2012). Further,

       The burden rests with the defendant to prove, by reference to
       the record, that evidence was withheld or suppressed by the
       prosecution. The withheld evidence must have been in the
       exclusive control of the prosecution at the time of trial. No
       Brady violation occurs when the defendant knew, or with
       reasonable diligence, could have discovered the evidence in
       question. Similarly, no violation occurs when the evidence was
       available to the defense from a non-governmental source.

Id.

       Here, the record indicates that the existence of the Florida 5 records

relating to Alvarez’s prior bad acts was disclosed by the Commonwealth as

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5
  Shortly after the shooting, the Susquehanna County District Attorney’s
Office received an unsolicited phone call from a Miami, Florida prosecutor
(Footnote Continued Next Page)


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early as March 23, 2013, in its motion for pre-trial conference. At the pre-

trial conference held on July 31, 2013, the defense was again apprised of the

existence of the Florida records relating to Alvarez.               Accordingly, Thomas’

argument that the Commonwealth withheld information is meritless.

      Furthermore, even if Thomas had Alvarez’s Florida records, the

evidence    of   Alvarez’s     prior   bad       acts   was   not   relevant   under   the

circumstances.         The evidence was not relevant because Alvarez was

unarmed and Thomas did not know Alvarez, or of his aggressive tendencies,

at the time of the shooting.

      Judgment of sentence affirmed.

      Judge Allen joins the Memorandum.

      Judge Bowes concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2015




                       _______________________
(Footnote Continued)

relating to Alvarez. The records indicate that Alvarez had previous criminal
convictions for crimes of violence.



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