J-A01038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    ROBERTO R. LAUREANO                        :   No. 1986 EDA 2017

                       Appeal from the Order June 9, 2017
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0000087-2012


BEFORE:      LAZARUS, J., OTT, J., and PLATT, J.

MEMORANDUM BY OTT, J.:                                     FILED MAY 14, 2018

        The Commonwealth appeals from the order entered in the Bucks County

Court of Common Pleas granting appellee, Roberto R. Laureano’s, post-

sentence motion requesting a judgment of acquittal based on the court’s

legally erroneous ruling permitting the Commonwealth to amend the

information. The Commonwealth contends the amendment to the criminal

information was proper. Based on the following, we reverse and remand for

further proceedings.

        The trial court set forth the facts and arduous procedural history as

follows:

              The instant case arises from a motor vehicle accident on
        October 20, 2011. The accident occurred in the area of 2220
        Street Road, Bensalem, PA. The roadway is a four-lane highway
____________________________________________


   Retired Senior Judge assigned to the Superior Court.
J-A01038-18


     with a center turning lane, and the accident occurred in the middle
     of the block with no traffic light or pedestrian crossing. When
     police arrived on scene, it was apparent that a pedestrian in a
     motorized wheelchair had been struck by a vehicle and was
     seriously injured. [Laureano] identified himself to police as the
     person driving the vehicle that had struck the pedestrian. The
     pedestrian later died.

           Officer Jennifer Stahl (“Officer Stahl”) of the Bensalem
     Township Police Department was the first officer to arrive at the
     scene and explained to [Laureano] that the police would like him
     to take a blood test due to the severity of the accident. [Laureano]
     was told that this was standard procedure, and Officer Stahl asked
     [Laureano] if he would consent to a blood draw. Officer Stahl
     made it clear that there was nothing that caused her to suspect
     that [Laureano] had done anything wrong or was in any way
     impaired. [Laureano] was not provided the standard consent
     form, nor was [Laureano] informed that the results of any test
     could be used against him in a criminal proceeding. [Laureano]
     consented to the blood test, and he was placed in a police car –
     without handcuffs – and taken to the local hospital for a blood
     draw.

            The blood test came back positive for a metabolite of
     marijuana. [Laureano] was charged with 75 § 3802(d)(1)(i),
     Driving Under the Influence: Controlled Substance – Schedule 1,
     on February 2, 2012. [Laureano] filed an Omnibus Pretrial Motion
     to, in part, suppress the blood test results. A suppression hearing
     was held on May 12, 2012, and after we denied the motion to
     suppress, a waiver trial was held immediately thereafter.

           During the waiver trial, all evidence and testimony from the
     suppression hearing was made part of the trial record. The
     Commonwealth also entered the blood results as evidence, but it
     offered no additional testimony. The defense demurred on the
     evidence. During arguments, the defense pointed out that the
     Commonwealth had charged [Laureano] with the incorrect
     statute. Specifically, the Commonwealth charged [Laureano] with
     [Section] 3802(d)(1)(i), which requires the active ingredient of
     the controlled substance to be in [Laureano]’s blood. In reality,
     [Section] 3802(d)(1)(iii) would have been the appropriate charge,
     as this section requires only that a metabolite of the controlled
     substance be present in [Laureano]’s blood. The Commonwealth
     requested that we allow them to reopen their case and allow an

                                    -2-
J-A01038-18


     amendment to the information to correct the charge, which we
     did. We then found [Laureano] guilty and deferred sentencing.

           [Laureano] then filed a Post-Trial Motion for Extraordinary
     Relief requesting reconsideration of the motion to suppress the
     blood test results and the ruling to allow the amendment to the
     criminal information. We held a hearing on this Motion, which
     occurred on August 27, 2012. At this hearing, the defense argued
     three issues: (1) the police did not have probable cause to
     request a chemical test pursuant to the implied consent law; (2)
     [Laureano]’s consent was not knowing and voluntary because the
     police did not explain that the blood test results could be used
     against him in criminal charges; and (3) the Commonwealth
     should not have been permitted to amend the criminal information
     after both parties had rested.

           We found that [Laureano]’s arguments on the voluntary
     nature of [his] consent had merit, and we reversed our original
     decision of May 15, 2012, thereby granting the motion to
     suppress. Because the Commonwealth could not meet its burden
     of proof without the suppressed evidence, we additionally vacated
     the conviction - also from May 15, 2012 - by an Order dated
     August 30, 2012. We did not reach the implied consent or
     amended criminal information issues at that time.

           The Commonwealth appealed our decision to suppress the
     blood test, which led to the Superior Court and the Pennsylvania
     Supreme Court considering this case. The Superior Court initially
     upheld our decision but the Commonwealth’s Petition for
     Allowance of Appeal was granted by the Pennsylvania Supreme
     Court. Following the Pennsylvania Supreme Court’s decision in
     Commonwealth v. Smith, 77 A.3d 562 (Pa. 2013), the
     Pennsylvania Supreme Court remanded the case to the Superior
     Court, which overturned our suppression of the blood test. The
     case was then remanded to us for sentencing.

            Sentencing was scheduled for November 19, 2014.
     [Laureano] again offered an oral Motion for Extraordinary Relief,
     arguing that we were incorrect in allowing the Commonwealth to
     amend its criminal information following the close of testimony at
     the trial. We considered argument from both sides on this point
     and consulted case law, after which we determined that it had
     been incorrect to allow the Commonwealth to amend its
     information following the close of testimony.       We therefore

                                   -3-
J-A01038-18


       reversed our original decision in this matter and, since the
       Commonwealth was unable to meet its burden of proof under
       [Section] 3802(d)(1)(i), found [Laureano] not guilty.      The
       Commonwealth then filed an appeal on December 18, 2014, and
       timely filed their Statement of Matters Complained of on Appeal
       on January 7, 2015.

             Thereafter, we filed our Opinion on January 30, 2015. On
       November 17, 2016, the Superior Court decided that we
       improperly granted [Laureano]’s Motion for Extraordinary Relief
       instead of waiting for a post -sentence motion, and thus, our Order
       of November 19, 2014 was reversed, and the case was remanded
       for sentencing.

              On remand, a sentencing hearing was held on March 24,
       2017. At the conclusion of that hearing we sentenced [Laureano]
       to imprisonment in the Bucks County Correctional Facility for not
       less than 90 days nor more than 6 months. [He] was also ordered
       to pay the costs of prosecution, as well as a fine of $1,500.00.
       [Laureano] was released on his own recognizance pending appeal
       or post -sentence motion.

             On March 31, 2017, [Laureano] filed a post -sentence
       motion, asking us to arrest judgment or order a judgment of
       acquittal. A hearing was held on June 6, 2017, regarding [his]
       post -sentence motion. After the hearing, on June 9, 2017, we
       granted [Laureano’s] motion requesting a judgment of acquittal
       based on our legally erroneous trial ruling permitting the
       Commonwealth to amend the information.

Trial Court Opinion, 7/17/2017, at 1-4 (record citations omitted).1          The

Commonwealth filed this appeal.2




____________________________________________


1   The court’s opinion was timestamped the following day.

2 On June 23, 2017, the trial court ordered the Commonwealth to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The Commonwealth filed a concise statement on July 10, 2017. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on July 17, 2017.

                                           -4-
J-A01038-18


     In its sole issue on appeal, the Commonwealth argues the trial court

erred in granting Laureano’s post-sentence motion for judgment of acquittal

and determining that its earlier ruling, permitting the Commonwealth to

amend the criminal information, was legally erroneous under Pennsylvania

Rule of Criminal Procedure 564, which governs the amendment of criminal

informations. See Commonwealth’s Brief at 13. The Commonwealth states

the court also “appears to misapprehend the nature of the amended crime

charged and the alleged prejudice [Laureano] suffered as a result of the

amendment.” Id. at 15.

     Our review of a ruling granting a motion for judgment of acquittal is

guided by the following:

     “A motion for judgment of acquittal challenges the sufficiency of
     the evidence to sustain a conviction on a particular charge, and is
     granted only in cases in which the Commonwealth has failed to
     carry its burden regarding that charge.” As we have stated:

        The standard we apply in reviewing the sufficiency of the
        evidence is whether viewing all the evidence admitted at
        trial in the light most favorable to the verdict winner, there
        is sufficient evidence to enable the fact-finder to find every
        element of the crime beyond a reasonable doubt. In
        applying the above test, we may not weigh the evidence and
        substitute our judgment for [that of] the fact-finder. In
        addition, we note that the facts and circumstances
        established by the Commonwealth need not preclude every
        possibility of innocence. Any doubts regarding a defendant’s
        guilt may be resolved by the fact-finder unless the evidence
        is so weak and inconclusive that as a matter of law no
        probability of fact may be drawn from the combined
        circumstances. The Commonwealth may sustain its burden
        of proving every element of the crime beyond a reasonable
        doubt by means of wholly circumstantial evidence.
        Moreover, in applying the above test, the entire record must

                                    -5-
J-A01038-18


        be evaluated and all evidence actually received must be
        considered. Finally, the trier of fact while passing upon the
        credibility of witnesses and the weight of the evidence
        produced, is free to believe all, part or none of the evidence.

     “It is well recognized, however, that a criminal conviction cannot
     be based upon mere speculation and conjecture.”

Commonwealth v. Graham, 81 A.3d 137, 142 (Pa. Super. 2013) (citations

omitted), appeal denied, 93 A.3d 462 (Pa. 2014).

     At issue in the present case is Rule 564, which 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.

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. Duda, 2003 PA
     Super 315, 831 A.2d 728, 732 (Pa. Super. 2003). The test to be
     applied is:

        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.


                                     -6-
J-A01038-18


       Commonwealth v. Davalos, 2001 PA Super 197, 779 A.2d
       1190, 1194 (Pa. Super. 2001)(citation omitted).

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

“‘[O]ur 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. Mentzer, 18 A.3d

1200, 1202 (Pa. Super. 2011), quoting Commonwealth v. Grekis, 601 A.2d

1284, 1288 (Pa. Super. 1992).3

       Here, Laureano was charged with the crime of driving under the

influence of a controlled substance (“DUI”).       A DUI offense is defined, in

relevant part, as follows:

       (d) Controlled substances. — An individual may not drive,
       operate or be in actual physical control of the movement of a
       vehicle under any of the following circumstances:

          (1) There is in the individual’s blood any amount of a:


____________________________________________


3 We must consider several factors in determining whether an amendment
has prejudiced a defendant:

       (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 (citation omitted).


                                           -7-
J-A01038-18


           (i) Schedule I controlled substance, as defined in the
           act of April 14, 1972 (P.L.233, No.64), known as The
           Controlled Substance, Drug, Device and Cosmetic Act;

                                     …

           (iii) metabolite of a substance under subparagraph
           (i) or (ii).

75 Pa.C.S. § 3802(d).

     As indicated above, Laureano was originally charged with Subsection

3802(d)(1)(i).   Following closing arguments, the Commonwealth was

permitted to amend its criminal information and charge Laureano with

Subsection 3802(d)(1)(iii), as it was the more appropriate charge based on

the facts of the case. Laureano was convicted under the latter offense, and

subsequently sentenced. He then requested, and was granted, extraordinary

relief regarding the ruling that granted the amendment. The Commonwealth

now contends:

     Here, there can be little doubt that the original charge
     [(Subsection 3802(d)(1)(i))] and the amended charge
     [(Subsection 3802(d)(1)(iii))] involved the same basic elements
     and evolved from the same factual situation. The Commonwealth
     always alleged that [Laureano] unlawfully operated his vehicle
     while having marijuana in his blood. The basic elements of that
     offense did not change regardless of whether he had marijuana
     constituent or marijuana metabolite in his blood. Nor did the
     requested amendment arise from a new or different factual
     scenario.    In addition, not only did the information place
     [Laureano] on notice of the criminal conduct alleged, but
     [Laureano]’s counsel conceded that he had actual notice that
     there was marijuana metabolite, rather than marijuana
     constituent, in [Laureano]’s blood once he received the lab report
     several weeks prior to trial. As such, the trial court had properly
     concluded during trial that it was appropriate to permit the
     Commonwealth to amend the information.

                                    -8-
J-A01038-18



Commonwealth’s     Brief   at   16-17   (citations   omitted).     Relying   on

Commonwealth v. Houck, 102 A.3d 443 (Pa. Super. 2014), the

Commonwealth further asserts:

     The trial court states in its Opinion that the latter is not a lesser
     included [offense] of the former, insofar as “a metabolite of a
     controlled substance is separate and distinct from the controlled
     substance itself.” Opinion, July 17, 2017, p. 7. Yet, just as the
     defendant in Houck could not have committed a Section 3802(c)
     offense without committing a Section 3802(b) offense, see
     Houck, 102 A.3d at 453, here [Laureano] could not have had
     committed a [Subs]ection 3802(d)(1)(i) offense without
     committing a [Subs]ection 3802(d)(1)(iii) offense. Put another
     way, [Laureano] could not have had marijuana metabolite in his
     blood if he had not also previously had marijuana constituent in
     his blood. As that is the very conduct prohibited by [Subs]ection
     3802(d)(1), the mere fact that, at the time of his blood draw, the
     marijuana constituent had broken down into a metabolite is legally
     insignificant. Cf. Commonwealth v. Sims, 919 A.2d 931, 938
     (Pa. 2007) (to be a cognate crime, and therefore a lesser included
     crime, it is sufficient that the two offenses have certain elements
     in common, such that the greater offense includes allegations of
     all the elements of the lesser offense); Commonwealth v.
     Sinclair, 897 A.2d [1218,] 1222 [(Pa. Super. 2006)] (“The driving
     under the influence statute proscribes a single harm to the
     Commonwealth.... The fact that the offense may be established
     as a matter of law if the Commonwealth can produce the
     necessary chemical test [as opposed to the “incapable of safe
     driving” element] does not constitute proof of a different offense,
     but merely represents an alternative basis for finding culpability.”)
     (quoting Commonwealth v. McCurdy, 558 Pa. 65, 735 A.2d 681
     (Pa. 1999)).

Commonwealth’s Brief at 18-20 (footnote omitted).             Additionally, the

Commonwealth states Laureano did not suffer any prejudice where: (1) “the

amended charge arose from the exact factual scenario as the original




                                     -9-
J-A01038-18


charge;”4 (2) “[t]he amendment did not add any new facts that were

previously unknown to [Laureano] as he was both aware that the charge

against him stemmed from marijuana in his blood while operating a vehicle

and in that he conceded that he was aware of the results of his BAC weeks

prior to trial;”5 and (3) Laureano “put on no evidence and proffered no defense

other than to rely on the variance between the results of the lab report and

the subsection charged.”6        Moreover, the Commonwealth alleges the “trial

court appears to ignore that it is illegal under [Subs]ection 3802(d)(1) to

operate a vehicle while having in one’s blood any amount of either a controlled

substance or a metabolite of a controlled substance, irrespective of whether

the controlled substance or metabolite thereof affected one’s ability to drive.”

Id. at 24.

          In its Rule 1925(a) opinion, the trial court explained it granted Laureano

relief for several reasons. First, relying on Commonwealth v. Plybon, 421

A.2d 224 (Pa. Super. 1980), the court stated, “[I]t had been incorrect to allow

the Commonwealth to amend its information during closing arguments of the

waiver trial.” Trial Court Opinion, 7/17/2017, at 4. Specifically, the court

found:



____________________________________________


4   Commonwealth’s Brief at 20.

5   Id. at 21

6   Id.

                                          - 10 -
J-A01038-18


            In the present case, the Commonwealth only moved to
      amend the information following the close of its case and following
      the defense’s demurrer on the evidence. It was not until the
      defense pointed out during its closing arguments that the
      Commonwealth had charged [Laureano] with the wrong statute
      that the Commonwealth requested allowance to amend the
      criminal information.

             Additionally, [Laureano] … was on notice that he would have
      to defend himself under the charge of driving under the influence
      of a controlled substance, but the defenses for the charge of
      having an active ingredient of marijuana in the bloodstream varies
      distinctly from the defenses for the charge of having a metabolite
      or inactive ingredient of marijuana in the bloodstream. Our
      understanding is that a metabolite of marijuana can stay in the
      bloodstream for a much longer period of time than the active
      ingredients. Because of this, and because the defense had access
      to the Commonwealth’s blood test results well before the trial, the
      defense prepared to argue[] that [Laureano] was not actually
      under the influence of marijuana at the time he operated the
      motor vehicle; that is, that the presence of the metabolite did not
      affect his ability to operate the vehicle. Additionally, the defense
      offered some alternative defenses as well, including, for example,
      a chain of custody argument.

Id. at 6.

      Second, the court stated it did not “believe that 75 Pa.C.S.A. [§]

3802(d)(1)(iii)   [wa]s   a   lesser-included   offense   of   75   Pa.C.S.A.   [§]

3802(d)(1)(i).” Trial Court Opinion, 7/17/2017, at 6. Moreover, the court

opined:

      Just as subsection (ii) of this statute could not be a lesser-included
      offense of subsection (i), as a schedule II or III substance is a
      wholly different drug than a schedule I substance, we do[] not
      believe that subsection (iii) is a lesser-included offense of
      subsection (i), as a metabolite of a controlled substance is
      separate and distinct from the controlled substance itself.
      Accordingly, that, coupled with the timing of the amendment,
      should be sufficient to uphold our determination that the
      amendment to the criminal information was improper in this case.

                                      - 11 -
J-A01038-18



Id. at 7. Additionally, the court determined “the potential for prejudice is

especially heightened ... because the Commonwealth did not request leave to

amend the information until after the close of the Commonwealth’s case and

after the demurrer of the defense.” Id.

      We are constrained to disagree with the court’s determination. First,

we conclude that despite the last minute notice of the amendment, the crime

specified in the original information (Subsection 3802(d)(1)(i)) involved the

same basic elements and evolved out of the same factual situation as the

crime specified in the amended information (Subsection 3802(d)(1)(iii)). See

Davolos, supra. In doing so, we disagree with the court’s conclusion that

Subsection 3802(d)(1)(iii) is not a lesser-included offense of Subsection

3802(d)(1)(i). It is obvious that one cannot have a metabolite of marijuana

in one’s system if he has not already ingested the active ingredient, marijuana.

“A ‘metabolite’ is the substance produced by metabolism or by a metabolic

process.”   Vereen v. Commonwealth of Pennsylvania Bd. of Prob. &

Parole, 515 A.2d 637, 639 n.4 (Pa. Cmwlth. 1986), citing Dortland’s

Illustrated Medical Dictionary 803 (26th Ed.1981).          Additionally, both

subsections do not require proof that a specific amount of the drug be in the

defendant’s system, they only require the presence of the drug or metabolite.

As such, it is logical to assume that a crime requiring proof of the by-product

of a controlled substance would fall under a crime requiring evidence of that




                                     - 12 -
J-A01038-18


controlled substance.       Accordingly, these crimes are not so “separate and

distinct” as the trial court implies. See Trial Court Opinion, 7/17/2017, at 7.7

       Second, we do not find that the defenses for these two subsections were

substantially different because driving under the influence of a controlled

substance pursuant to Section 3802(d)(1) does not require proof that the

controlled substance impaired or affected Laureano’s ability to operate the

vehicle, contrary to the trial court’s conclusion.8 Rather, Section 3802(d)(1)

only requires presence of the controlled substance in the defendant’s blood.

See Commonwealth v. Etchison, 916 A.2d 1169, 1174 (Pa. Super. 2007),

aff’d, 943 A.2d 262 (Pa. 2008) (“[A] conviction under Section 3802(d)(1) does

____________________________________________


7  As such, we find the court’s reliance on Plybon, supra, is misplaced. In
Plybon, a panel of this Court affirmed the trial court’s denial of the
Commonwealth’s motion to amend an information to remove a charge of
driving “under the combined influence of alcohol and a controlled substance
to a degree which renders the person incapable of safe driving” and to add a
charge of driving “under the influence of alcohol to a degree which renders
the person incapable of safe driving.” Plybon, 421 A.2d at 225. At the time
of the case, the pertinent statutory provisions were, respectively, 75 Pa.C.S §
3731(a)(3) and § 3731(a)(1). These provisions were subsequently repealed
by P.L. 120, No. 24, § 14, Sept. 30, 2003, effective Feb. 1, 2004, and were
replaced with similar provisions found at 75 Pa.C.S. § 3802(a)(1) and
§ 3802(d)(3). Like this case, the Commonwealth sought to amend its
information after the close of its case and the defendant had demurred to the
evidence. However, unlike here, the crimes were materially different where
one crime required the evidence of one being under the influence of alcohol
and the other demanded proof of one being under the combined influence of
alcohol and controlled substance. Accordingly, Plybon is distinguishable from
the present matter because there was a complete change in the evidence
itself.

8   See Trial Court Opinion, 7/17/2017, at 6.



                                          - 13 -
J-A01038-18


not require that a driver be impaired; rather, it prohibits the operation of a

motor vehicle by any driver who has any amount of specifically enumerated

controlled substances in his blood, regardless of impairment.”) (italics in

original); see also Commonwealth v. Hutchins, 42 A.3d 302, 311 (Pa.

Super. 2012) (same), appeal denied, 56 A.3d 396 (Pa. 2012).9 Therefore,

Laureano’s defense for both provisions would be the same – that the controlled

substance, whether it be the active ingredient of marijuana or the metabolite,

was not in his system at the time of the incident.

       Lastly, we believe the potential for prejudice was not heightened by the

Commonwealth’s “11th hour” request to amend. We find: (1) the amendment

did not change the factual scenario supporting the charges; (2) the

amendment did not add new facts previously unknown to Laureano; (3) the

entire factual scenario was developed during the suppression hearing; (4) the

description of the charges did not substantially change with the amendment;

(5) a change in defense strategy was not necessitated by the amendment;

____________________________________________


9  We note the language in Section 3802(d)(1) is different than in other
sections of the DUI statute. See 75 Pa.C.S. § 3802(a)(1) (“An individual may
not drive, operate or be in actual physical control of the movement of a vehicle
after imbibing a sufficient amount of alcohol such that the individual is
rendered incapable of safely driving, operating or being in actual physical
control of the movement of the vehicle.”) (emphasis added); 75 Pa.C.S. §
3802(d)(2) (“The individual is under the influence of a drug or combination of
drugs to a degree which impairs the individual’s ability to safely drive,
operate or be in actual physical control of the movement of the vehicle.”)
(emphasis added). See also Commonwealth v. Griffith, 32 A.3d 1231 (Pa.
2011) (comparing the different provisions of Section 3802).



                                          - 14 -
J-A01038-18


and (6) the timing of the Commonwealth’s request for amendment allowed for

notice and preparation. Sinclair, 897 A.2d at 1223. With respect to the sixth

factor, it merits mention that the purpose of Rule 564, “to avoid prejudice by

prohibiting the last minute addition of alleged criminal acts of which the

defendant is uninformed,”10 was not defeated where Laureano was put on

notice regarding the results of that lab report and his blood test came back

positive for a metabolite of marijuana because defense counsel acknowledged

that he had obtained the lab report at the time of discovery.          See N.T.,

5/12/2012, at 148. As such, this was not surprise information that would

have required more time to prepare for trial. Additionally, we note this was a

non-jury trial, therefore, there would have been no confusion on the part of

the jury regarding the different crimes and a need for an amendment.

Furthermore, while there are cases, as cited by the trial court,11 that have

reversed a decision to allow a tardy motion to amend a criminal information,

there    are   also   cases     upholding      belated   amendments.   See   i.e.,

Commonwealth v. Mentzer, 18 A.3d 1200, 1201 (Pa. Super. 2011)

(affirming decision to amend information which requested at the time of

sentencing and concerned the grading of the DUI offense); Commonwealth

v. Roser, 914 A.2d 447, 455 (Pa. Super. 2006) (concluding grant of



____________________________________________


10   Sinclair, 897 A.2d at 1221.

11   Trial Court Opinion, 7/17/2017, at 7-10.

                                          - 15 -
J-A01038-18


amendment just before closing arguments was proper, even where the

elements of the offenses differed, because appellant had prompted the need

for an amendment by his own inculpatory testimony), appeal denied, 927 A.2d

624 (Pa. 2007).    Therefore, we conclude the trial court erred in granting

Laureano’s post-sentence motion requesting a judgment of acquittal and

reversing its prior ruling granting the Commonwealth’s motion to amend the

criminal information.

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/18




                                   - 16 -
