J-S57040-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

PERRY BRISBON

                            Appellant                No. 642 EDA 2014


      Appeal from the Judgment of Sentence entered February 4, 2014
             In the Court of Common Pleas of Delaware County
              Criminal Division at No: CP-23-CR-0005269-2013


BEFORE: DONOHUE, MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                       FILED OCTOBER 29, 2014

       Perry Brisbon was convicted of theft by unlawful taking.   He appeals

from the judgment of sentence, contending the trial court erred in permitting

amendment of the criminal information on the day of trial, changing the

charge against him from a first-degree misdemeanor to a third-degree

felony. Finding no abuse of discretion, we affirm.

       The Commonwealth charged Brisbon and his wife, Marquita Wiley with

theft by unlawful taking of movable property1 and related crimes for stealing

____________________________________________


1
   “A person is guilty of theft if he unlawfully takes, or exercises unlawful
control over, movable property of another with intent to deprive him
thereof.” 18 Pa.C.S.A. § 3921(a). Theft by unlawful taking is a third-degree
felony if the amount involved is over $2,000.00.            Id. § 3903(a.1).
Otherwise, and absent exceptions not relevant here, theft by unlawful taking
is a first-degree misdemeanor. Id. § 3903(b).
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appliances and fixtures from their former landlord following their eviction.

At the preliminary hearing, the magisterial district judge refused to grade

the theft charges as felonies of the third degree, even though the victim

testified that the value of the stolen objects was between $3,000.00 and

$5,000.00.2 The day before trial, the Commonwealth provided Brisbon and

Wiley with a list prepared by the victim stating the value of the objects

stolen was $4,505.50. On the morning of trial, the Commonwealth moved

to amend the information to change the grading of the theft charges from

first-degree misdemeanors to third-degree felonies.         Over Brisbon’s and

Wiley’s objections, the trial court granted the motion.       Following a joint

nonjury trial, the court convicted Brisbon of theft, and acquitted Wiley of all

charges. On February 4, 2014, the trial court sentenced Brisbon to three to

twelve months in jail, followed by two years of probation.         This appeal

followed.

       On appeal, Brisbon raises the following issue:

       Whether the trial court erred in permitting the Commonwealth to
       amend the theft by unlawful taking – movable property charge
       from a misdemeanor (M1) to a felony [of] the third degree (F3)
       on the day of trial?

Appellant’s Brief at 5 (all-capitalization font removed).



____________________________________________


2
  In their briefs, both parties reference the transcript of the preliminary
hearing, but it is not a part of the certified record.



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       We review a decision regarding the amendment of an information for

an abuse of discretion. See Commonwealth v. Bricker, 882 A.2d 1008,

1021 (Pa. Super. 2005). “An abuse of discretion is not merely an error of

judgment, but is rather the overriding or misapplication of the law, or the

exercise of judgment that is manifestly unreasonable, or the result of bias,

prejudice, ill-will or partiality, as shown by the evidence of record.”

Commonwealth v. Williams, 91 A.3d 240, 242 (Pa. Super. 2014) (en

banc) (quotation omitted).

       Having reviewed the record and relevant legal authority, we hold that

the trial court did not abuse its discretion in permitting the Commonwealth

to amend the criminal information. Furthermore, we find that the opinion of

the Honorable James P. Bradley adequately disposes of this appeal. Briefly,

Judge Bradley found that Brisbon was on adequate notice that the value of

property taken exceeded $2,000.00, and the amendment did not change the

underlying factual scenario. Trial Court Opinion, 4/15/14, at 3-6.     Judge

Bradley additionally found that Brisbon failed to show that he was prejudiced

by the amendment.3         Therefore, we adopt Judge Bradley’s opinion as our

own, attach it to our decision, and direct that it be attached to any further

filings in this case. The judgment of sentence is affirmed.

       Judgment of sentence affirmed.
____________________________________________


3
  We also note that Brisbon did not request a continuance after the trial
court granted the motion to amend.



                                           -3-
J-S57040-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2014




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