J-S21009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GARY STEHLEY

                            Appellant                 No. 861 WDA 2016


              Appeal from the Judgment of Sentence May 4, 2016
                  In the Court of Common Pleas of Blair County
              Criminal Division at No(s): CP-07-CR-0000200-2013,
                            CP-07-CR-0000465-2014


BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                                 FILED MAY 16, 2017

        Gary Stehley appeals from the judgment of sentence, entered in the

Court of Common on Pleas of Blair County, following his conviction of

multiple sex offenses against two of his children.1        After our review, we

affirm.

        On December 4, 2015, the court sentenced Stehley to fifteen to thirty

years’ imprisonment.        That judgment of sentence was entered on May 4,

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Stehley was convicted of two counts of rape of a child, 18 Pa.C.S.A. §
3121(c); two counts of involuntary sexual intercourse with a child, 18
Pa.C.S.A. § 3123(b); three counts of indecent assault of a person less than
13 years of age, 18 Pa.C.S.A. § 3126(a)(7); two counts of corruption of
minors-sexual offense, 18 Pa.C.S.A. § 6301(a)(1); and incest, 18 Pa.C.S.A.
§ 4302.
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2016, and Stehley filed a timely notice of appeal.    He raises the following

issue for our review:

      Whether the trial court erred in allowing the Commonwealth to
      amend the criminal information at CR 465-2014 multiple times
      both prior to and during trial and whether the trial court erred in
      determining that the serial amendments of the criminal
      information by the Commonwealth prior to and during trial did
      not prejudice [Stehley]?

Appellant’s Brief, at 4.

      Pennsylvania Rule of Criminal Procedure 564 permits amendment of an

information “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.” 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. Sinclair, 897 A.2d

1218, 1221 (Pa. Super. 2006).

      Here, the complaint alleged the sexual assaults occurred on or about

January 1, 2012 to March 1, 2012.      The criminal information at 465-2014

charged that the sexual offenses against the younger victim, who was seven

years old at the time, occurred on or about Sunday, January 1, 2012. On

October 9, 2014, the Commonwealth sought amendment pursuant to

Pa.R.Crim.P. 564 to reflect that the sexual abuse occurred on or about

January 1, 2012 to March 1, 2012. Stehley did not object to this motion.

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      At the start of trial, on September 8, 2015, the Commonwealth filed a

second motion to amend the information. The Commonwealth argued that

the testimony would reflect that the weather was hot when the abuse

occurred against the younger victim, that the younger victim had turned

seven years old in September 2011, and that the victims and their mother

had moved out of the family home by January 27, 2012. The court deferred

its ruling until after it heard the evidence. Thereafter, the court granted the

Commonwealth’s motion to amend the information.

      Stehley argues that the court erred in permitting the Commonwealth’s

amendment because it enlarged the dates between which the criminal acts

allegedly occurred against the younger victim, from January to March of

2012, to September 2011 to January 27, 2012, and, therefore, he was

prejudiced. Stehley claims that this expanded time period affected his alibi

defense -- that he was at work every weekday between the hours of 3:00

p.m. and 11:30 p.m. from January 1, 2012 through March 1, 2012.           This

claim is meritless.

      At the start of trial, the Commonwealth and Stehley entered into a

stipulation with respect to Stehley’s alibi. Stehley’s counsel stated the

following on the record, and in the presence of the jury:

      I just want to indicate, as Judge Milliron mentioned, there is a
      stipulation that has been entered into between the defense and
      the Commonwealth. I appreciate the Commonwealth’s agreeing
      to this. It makes things a lot easier and timely for everyone
      involved. My client was employed with the Altoona Area
      School District at the relevant time frames involved in the
      Criminal Complaint involving [D.S].          Specifically, the

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      Commonwealth is alleging that these incidents occurred
      between September of 2011 and January 27, 2012. The
      stipulation is that my client worked. Margaret McMinn from the
      Department of Human Resources at the Altoona School District
      would testify, if called upon, that my client worked every
      single day Monday through Friday from 3 p.m until
      approximately 11:30 p.m. during this time period. That is,
      again, September of 2011 through and including January
      27, 2012.

N.T. Jury Trial, 9/10/15, at 54 (emphasis added).

      This Court has stated:

      When a challenge is raised to an amended information, the
      salient inquiry is [w]hether the crimes specified in the original ...
      information involve the same basic elements and evolved out of
      the same factual situation as the crimes specified in the
      amended ... 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 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.

Commonwealth v. Samuel, 102 A.3d 1001, 1008–09 (Pa. Super. 2014)

(internal citations omitted). Further, “relief is warranted only when the

amendment to the information prejudices a defendant.” Commonwealth v.

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

      In Page, we stated that the factors to be considered when

determining whether a defendant was prejudiced by the Commonwealth's

amendment include: “whether the amendment changes the factual scenario;

whether new facts, previously unknown to appellant, were added; whether

the   description   of   the   charges    changed;   whether   the   amendment


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necessitated a change in defense strategy; and whether the timing of the

request for the amendment allowed for ample notice and preparation by

[defendant].” Id. 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. Davalos, 779 A.2d 1190, 1194 (Pa.

Super. 2001).

     Here, the amendment clearly did not affect Stehley’s alibi defense.

The Commonwealth agreed to a stipulation that accommodated the

expanded timeframe. Further, the amendment brought no new charges and

changed no elements of any of the charges. The amendment did not alter

the fact that Stehley was on notice of the criminal conduct charged, nor did

it alter his defense strategy. See Commonwealth v. J.F., 800 A.2d 942,

945 (Pa. Super. 2002) (informations charging defendant with rape and other

sexual offenses against minors was properly amended to change dates of

majority of charges; neither additional charges nor different set of events

was added to informations).        Further, in light of the special difficulties in

ascertaining    specific   dates   in   cases   of   ongoing   sexual   abuse,   the

Commonwealth is afforded a measure of latitude, particularly when the

cases involve a young child. See Commonwealth v. Groff, 548 A.2d 1237

(Pa. Super. 1988).




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     We agree with the trial court’s determination that Stehley was not

prejudiced by the amendments, and we conclude no relief is warranted.

Page, supra.   We, therefore, affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/16/2017




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