J. S08017/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                 :     IN THE SUPERIOR COURT OF
                                              :          PENNSYLVANIA
                           Appellee           :
                                              :
                    v.                        :
                                              :
JAMES DENNIS PETTY,                           :
                                              :
                           Appellant          :     No. 877 WDA 2015

             Appeal from the Judgement of Sentence April 14, 2015
                 In the Court of Common Pleas of Blair County
              Criminal Division at No(s): CP-07-CR-0000628-2014

BEFORE: STABILE, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                                FILED MARCH 16, 2016

        Appellant, James D. Petty, appeals from the judgment of sentence

entered in the Court of Common Pleas of Blair County following his

convictions for two counts of Aggravated Assault Attempted Serious Bodily

Injury,1 two counts of Aggravated Assault Attempted Bodily Injury with a

Deadly Weapon,2 and related offenses. Upon careful review, we affirm.

        The trial court set forth the factual history of this case as follows:

        This unusual incident began on March 1, 2014, when [Appellant],
        James Dennis Petty, and roommate/victim Jonathan Learn
        engaged in a verbal altercation that turned physical over Learn's
        dog having escaped [Appellant]'s residence at 520 Crawford
        Avenue in Altoona, Pennsylvania.       After the fight stopped,
        [Appellant] threatened to get his gun and retrieved a loaded 12

1
    18 Pa.C.S. § 2702(a)(1).
2
    18 Pa.C.S. § 2702(a)(4).
J. S080017/16

        gauge single shotgun.      Johnathan Learn and his girlfriend
        Carmen Rightenour retreated from the residence and closed the
        front door seconds before [Appellant] fired his gun. Although
        Learn was standing slightly to the side of the front door, neither
        he nor Rightenour were struck by the shell. Several pellet holes
        were discovered in the fence and shed located across the street
        on 519 Crawford Avenue.

Trial Court Opinion, dated 10/23/15, at 1 (internal citations omitted).      In

addition, there was testimony that after the shotgun was fired, a neighbor

observed Appellant on his porch with the shotgun and heard Appellant shout

“bring it on, bring it on.” N.T. Trial, 1/27/15, at 80, 81-82.

        A jury convicted Appellant of two counts of Aggravated Assault

Attempted Serious Bodily Injury,3 two counts of Aggravated Assault

Attempted Bodily Injury with a Deadly Weapon,4 Terroristic Threats with

Intent to Terrorize Another,5 two counts of Simple Assault,6 three counts of

Recklessly Endangering Another Person,7 and Criminal Mischief – Damage

Property.8 The trial court sentenced Appellant to a term of 48 months to 10

years’ incarceration followed by one year of probation.


3
    18 Pa.C.S. § 2702(a)(1).
4
    18 Pa.C.S. § 2702(a)(4).
5
    18 Pa.C.S. § 2706(a)(1).
6
    18 Pa.C.S. § 2701(a)(1).
7
    18 Pa.C.S. § 2705.
8
    18 Pa.C.S. § 3304(a)(5).




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      After the denial of his Post-Sentence Motion, Appellant timely

appealed.

      Appellant raises the following issues:

      a. Whether the Trial Court erred by permitting the
         Commonwealth to amend the Criminal Information at Jury
         Selection to add two (2) additional counts of Aggravated
         Assault at 18 Pa.C.S. §2702(A)(4) over the objection of the
         Defense.

      b. Whether the Trial Court erred in denying Defendant’s Motion
         for Judgment of Acquittal at the conclusion of the
         Commonwealth’s case-in-chief and again once the Defense
         rested where the evidence at trial failed to establish the
         requisite intent for Counts one (1) through six (6).

Appellant’s Brief at 4.

      As an initial matter, the trial court stated in its Pa.R.A.P. 1925(a)

Opinion that Appellant waived his challenge to the sufficiency of the

evidence for failure to be specific enough in his 1925(b) statement.    See

Trial Court Opinion, dated 7/28/15, at 4.      Appellant’s 1925(b) Statement

provides:    "The trial court erred in denying the Appellant's Motion for

Judgment of Acquittal as none of the evidence from any of the witnesses at

trial showed that Appellant had the requisite intent." Appellant’s 1925(b)

Statement at 2.       The trial court observed that Appellant had multiple

convictions for offenses against multiple victims and stated it was unable to

determine which convictions Appellant was challenging. Trial Court Opinion,

dated 7/28/15, at 4. The trial court nonetheless analyzed the issues on the

merits. Id. at 5-8.



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      It is a bright-line rule in Pennsylvania that issues not raised in a timely

Pa.R.A.P. 1925(b) statement are deemed to be waived for appellate review.

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011). Likewise, “if a Rule

1925(b) statement is too vague, the trial judge may find waiver and

disregard any argument.”      Commonwealth v. Reeves, 907 A.2d 1, 2

(Pa.Super. 2006). Particularly for claims that the evidence was insufficient,

the 1925(b) statement needs to specify the element or elements upon which

the evidence was insufficient or the claim may be waived. Commonwealth

v. Williams, 959 A.2d 1252, 1257-58 (Pa.Super. 2008). However, even if a

sufficiency claim is vague, this Court may grant review where the case is

straightforward, the record is not long and complex, the trial court readily

apprehended the appellant’s claim, and the trial court thoroughly addressed

the merits of the claim in its opinion. Commonwealth v. Laboy, 936 A.2d

1058, 1060 (Pa. 2007).

      In the instant case, the facts are straightforward and arise out of one

incident.   Appellant’s trial lasted one day and the record is not complex.

Although Appellant’s sufficiency claim does not address specific crimes, the

claim does address a specific element – intent.      From that, the trial court

was able to deduce that Appellant was challenging the sufficiency of the

evidence as to all crimes that contained intent as an element and was able

to address the merits of the issue. Accordingly, we find that Appellant did

not waive the sufficiency claim. See id.



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        Appellant’s first issue challenges the trial court’s decision to allow the

Commonwealth to amend the Criminal Information at jury selection to add

two counts of Aggravated Assault Attempted Bodily Injury with a Deadly

Weapon.9     We review a trial court’s decision to grant or deny a motion to

amend the Criminal Information for abuse of discretion. Commonwealth v.

Small, 741 A.2d 666, 681 (Pa. 1999).

        Pennsylvania Rules of Criminal Procedure Rule 564 provides:

        [t]he 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.

Pa.R.Crim.P. 564. This Court has explained that the purpose of Rule 564 is

to ensure that Appellant is fully apprised of the charges, and to avoid

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

which appellant is uninformed.        Commonwealth v. Sinclair, 897 A.2d

1218, 1221 (Pa.Super. 2006).         If there is no showing of prejudice, the

amendment of the criminal information to add an additional charge is proper

even on the day of trial. Commonwealth v. Womack, 453 A.2d 642, 646

(Pa.Super. 1982).

        If the crimes specified in the original indictment or information involve

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

9
    18 Pa.C.S. § 2702(a)(4).



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the crimes specified in the amended indictment or information, then

appellant is deemed to have been placed on notice – and not prejudiced –

regarding his alleged criminal conduct.      Sinclair, 897 A.2d at 1221.

However, prejudice may exist if the amendment 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. Id.

      Factors that this Court should consider when determining whether

Appellant has suffered prejudice include:

      1) whether the amendment changes the factual scenario
         supporting the charges;
      2) whether the amendment adds new facts previously unknown
         to the appellant;
      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 request for amendment allowed for
         ample notice and preparation.

Id. at 1223 (citation omitted).

      In the instant case, the trial court allowed the Commonwealth to

amend the Criminal Information over Appellant’s objection two weeks prior

to trial.   Trial Opinion, dated 10/23/15, at 8.   The Criminal Information

originally included two counts of aggravated assault pursuant to 18 Pa.C.S. §

2702(a)(1), “attempts to cause serious bodily injury to another…under

circumstances manifesting extreme indifference to the value of human life.”

The trial court allowed the addition of two counts pursuant to 18 Pa.C.S. §


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2702(a)(4), “attempts to cause…bodily injury to another with a deadly

weapon.”

      The underlying factual scenario for both offenses is the same –

Appellant retrieved a shotgun and discharged it through a closed door that

victims Learn and Rightenour had just exited. Those facts were set forth in

the Criminal Complaint ten months prior to trial. Criminal Complaint, dated

3/2/14, at 8. The addition of the Section 2702(a)(4) charge did not add any

new facts of which Appellant was previously unaware.

      Moreover, the charges do not involve materially different elements or

defenses. The Section 2702(a)(1) charge involves attempt to cause “serious

bodily injury,”10 and the Section 2702(a)(4) charge involves attempt to

cause “bodily injury,”11 a lesser included offense.     Even though Section

2702(a)(4) does add the element of a deadly weapon, this did not change

the factual scenario or add new facts.         Significantly, adding Section

2702(a)(4) did not necessitate a change in defense strategy. Both charges

require intent and Appellant’s defense throughout trial was that the shotgun

discharged by accident. See N.T. Trial, 1/27/15, at 206-12. As there was

no demonstrated prejudice to Appellant, the trial court did not abuse its

discretion when it amended the information prior to trial.


10
   “Bodily injury which creates a substantial risk of death or which causes
serious, permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.” 18 Pa.C.S. § 2301.
11
   “Impairment of physical condition or substantial pain.” 18 Pa.C.S. § 2301.



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      Appellant next raises the issue of whether the trial court erred in

denying Appellant’s Motion for Judgment of Acquittal at the conclusion of

Appellant’s case-in-chief, and again once Appellant rested, where the

evidence at trial failed to establish the requisite intent for the Attempted

Aggravated Assault charges.12

      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.”    Commonwealth v. Andrulewicz, 911 A.2d 162, 165

(Pa.Super. 2006) (citation omitted).

      Our Supreme Court has set forth the appropriate standard of review:

“[w]hen reviewing the sufficiency of the evidence, an appellate court must

determine whether the evidence, and all reasonable inferences deducible

from that, viewed in the light most favorable to the Commonwealth as

verdict winner, are sufficient to establish all of the elements of the offense

beyond a reasonable doubt.” Commonwealth v. Weiss, 776 A.2d 958, 963

(Pa. 2001) (citation omitted).




12
   The Appellant also challenged the sufficiency of the evidence for two
counts of Criminal Attempt – Criminal Homicide pursuant to 18 Pa.C.S. §
901 and 18 Pa.C.S. § 2501(a). This Court will not address those charges as
the Appellant was found not guilty as to both counts.



                                       -8-
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        Appellant correctly states that the Commonwealth is required to prove

specific intent for both Aggravated Assault Attempted Serious Bodily Injury13

and Aggravated Assault Attempted Bodily Injury with a Deadly Weapon.14

See Commonwealth v. Everett, 596 A.2d 244, 245 (Pa.Super. 1991)

(holding    where    attempt    is   made    to   commit   Aggravated   Assault,

Commonwealth is required to prove specific intent).            Pursuant to the

Pennsylvania Crimes Code, a person acts “intentionally…if it is his conscious

object to engage in conduct of that nature or to cause such a result.” 18

Pa.C.S. § 302. This Court has stated:

        [t]he fact-finder is free to conclude the accused intended the
        natural and probable consequences of his actions to result
        therefrom. A determination of whether an appellant acted with
        intent to cause serious bodily injury must be determined on a
        case-by-case basis. An intent is a subjective frame of mind, it is
        of necessity difficult of direct proof[.] We must look to all the
        evidence to establish intent, including, but not limited to,
        appellant's conduct as it appeared to his eyes[.] Intent can be
        proven by direct or circumstantial evidence; it may be inferred
        from acts or conduct or from the attendant circumstances.

Commonwealth v. Lewis, 911 A.2d 558, 564 (Pa.Super. 2006) (internal

citations and quotations omitted).

        Appellant claimed throughout the trial that he discharged the shotgun

by accident.     See N.T. Trial, 1/27/15, at 206-12.       However, there is a

myriad of evidence to dispute this contention. Appellant was aware that the

13
     18 Pa.C.S. § 2702(a)(1).
14
     18 Pa.C.S. § 2702(a)(4).




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shotgun was loaded, as evidenced by Learn’s testimony that Appellant had

previously shown him the loaded shotgun that Appellant kept by a hutch.

Id. at 25.    By his own admission, Appellant was upset and went to retrieve

the shotgun after Learn and he got in a fight: “I made a bad judgment by

saying I’ll go get a gun…I was so mad and so hurt he did this.” Id. at 205-

06. Appellant’s threat and subsequent retrieval of the gun evidence that he

intended to use it. Id.

      Appellant claims that the gun went off accidentally after he stumbled,

thereby negating his intent but, as the trial court observed, the evidence

suggests otherwise.    Appellant knew that both victims were on the porch

when he shot the gun because the shots came through the door “three or

four seconds” after Learn and Rightenor left and closed the door. Id. at 28.

Appellant aimed for the upper part of the victims’ bodies; Learn “felt like the

percussion” of the shot “on the back of my head and face.” Id. at 29. The

police observed that the front door had “a large hole just above the peep

hole” and that the gunshot blast was “level…meaning straight through the

door, straight through the screen door and straight through the porch

screen” indicating that Appellant had not been stumbling; rather the

evidence showed that Appellant was aiming when the shotgun was

discharged.     Id. at 115, 120, 123.        The trial court noted that several

officers gave the exact same testimony as to their observation of the

trajectory of the shotgun blast. Trial Court Opinion, dated 10/23/15, at 5.



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Appellant admitted that the shotgun was in his hand when it discharged.

N.T. Trial, 1/27/15, at 214-18. The evidence showed that, even after the

gun discharged, Appellant was still threatening the victims. After hearing a

loud bang, a neighbor observed Appellant standing on his porch with the

shotgun saying “bring it on, bring it on.” Id. at 78, 80-81.

      Our review of the evidence in the light most favorable to the

Commonwealth demonstrates that there is sufficient evidence to prove the

element of intent with regard to all counts of Aggravated Assault. Therefore,

the trial court did not err when it denied the Motions for Acquittal at various

stages throughout the trial.

      For the foregoing reasons, we conclude that it was not an abuse of

discretion for the trial court to amend the Criminal Information or deny the

Appellant’s Motions for Acquittal.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/16/2016




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