J-S59040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA


                       v.

BLAINE K. GHOLSON

                            Appellant                   No. 3665 EDA 2016


           Appeal from the Judgment of Sentence November 10, 2016
    In the Court of Common Pleas of Montgomery County Criminal Division at
                        No(s): CP-46-CR-0003684-2015

BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:               FILED SEPTEMBER 29, 2017

        Appellant, Blaine K. Gholson, appeals from the judgment of sentence

of one and one-half to five years’ imprisonment, followed by three years’

probation, entered in the Montgomery County Court of Common Pleas.

Appellant claims that the trial court erred in denying his request for new

counsel and granting the Commonwealth’s motion to amend the information

to include a higher graded offense of fleeing or attempting to elude a police

officer.1 We affirm.

        The facts giving rise to Appellant’s conviction are as follows. On April

28, 2015, Appellant drove around two vehicles stopped at a red light at the

intersection of Washington Lane and Church Road in Montgomery County

*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. § 3733(a), (a.2)(1), (a.2)(2)(iii).
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and struck two vehicles as he proceeded through the intersection. Appellant

did not stop at the scene. After police arrived to investigate the accident,

Appellant drove by the scene, but again passed through a red light at the

intersection and did not stop.

        Police then located Appellant driving on Washington Lane near the

Cheltenham Mall. An officer began to follow him and signaled him to stop,

but Appellant drove through the parking lot of the mall and back onto the

street. A pursuit ensued, and Appellant was not stopped until he reached

the intersection of Paper Mill Road and Stenton Avenue. The pursuit lasted

for more than seven minutes, during which Appellant passed by pedestrians

in the mall parking lot, proceeded through stop signs and red lights, and

sped through an active school zone.

        Appellant was initially charged with thirteen counts, including accidents

involving personal injury,2 accidents involving property damage,3 recklessly

endangering another person,4 and, of relevance to this appeal, fleeing or

eluding graded as a misdemeanor of the second degree.5            Appellant was

represented by Thomas Bowman, Esq. of the Public Defender’s Office (“trial

counsel”) and waived a preliminary hearing.

2
    75 Pa.C.S. § 3742(a).

3
    75 Pa.C.S. § 3743(a).

4
    18 Pa.C.S. § 2705.

5
    75 Pa.C.S. § 3733(a), (a.2)(1).



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        On May 25, 2015, the trial court received a pro se letter from

Appellant regarding his dissatisfaction with trial counsel. The clerk of courts

placed the letter in the record and forwarded a copy of it to trial counsel.6

        On August 5, 2016, the Commonwealth filed a motion to amend the

information to change the grade of the fleeing and eluding offense to a third-

degree felony.7      The trial court granted the motion on August 9, 2016,

immediately before a jury trial. The Commonwealth presented its evidence

and rested on August 9, 2010.

        The following day, trial counsel raised a motion for new counsel, which

the trial court denied.      Appellant thereafter testified on his own behalf.

Appellant admitted to causing the accidents and failing to stop for the police.

He asserted, however, that he was working as a delivery person for Mojo’s

Pizza, was almost robbed while delivering food in the Northeast section of

Philadelphia, and was driving in a panic in an attempt to flee from the

robbers, whom he believed were following him in a vehicle.           He further

testified that he saw officers signaling him to stop, but did not do so because

he was afraid the robbers were still pursuing him.8           In rebuttal, the


6
    See Pa.R.Crim.P. 576(A)(4).

7
    75 Pa.C.S. § 3733(a), (a.2)(2)(iii).

8
  See 75 Pa.C.S. § 3733(c)(2) (establishing affirmative defense to fleeing
and eluding “if the defendant can show by a preponderance of the evidence
that the failure to stop immediately for a police officer’s vehicle was based
upon a good faith concern for personal safety”).



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Commonwealth called the manager of Mojo’s Pizza, who testified that

Appellant was not an employee.      The Commonwealth further presented

testimony that the site where Appellant was allegedly threatened was

approximately eight miles from the location of the accident at Washington

Lane and Church Road. The jury found Appellant guilty of accident involving

personal injury, accident involving property damage, recklessly endangering

another person, and fleeing or eluding graded as a felony of the third

degree.

     On November 10, 2016, the trial court sentenced Appellant to serve an

aggregate one and one-half to five years’ imprisonment. Appellant, acting

pro se, timely mailed a post-sentence motion and a notice of appeal on

November 15, 2016,9 which the trial court received on November 21, 2016.

The trial court did not address Appellant’s post-sentence motion, but

withdrew trial counsel’s appearance and appointed new counsel for the

appeal.

     The trial court entered an order for a Pa.R.A.P. 1925(b) statement on

January 10, 2017. Present counsel filed a Rule 1925(b) statement on March




9
  See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (discussing
the prisoner mailbox rule). Although Appellant was represented by trial
counsel when he filed the pro se notice of appeal, a counseled notice of
appeal was not filed on his behalf. We regard the pro se notice of appeal as
effective under the circumstance of this case.




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3, 2017, and the trial court filed a responsive opinion.10         This appeal

followed.

      Appellant presents the following questions for review:

         1. Did the [trial court] err by failing to fully consider []
         Appellant’s request, made prior to trial (by way of a pro se
         letter filed May 25, 2016) and during trial, to fire [trial
         counsel] and engage alternate counsel?

         2. Did the [trial court] err by granting the
         Commonwealth’s motion, made on the eve of trial, to alter
         the count of Fleeing or Attempting to Elude Police Officer,
         75 Pa.C.S. § 3733—thereby increasing the grading from a
         misdemeanor of the second degree to a felony of the third
         degree—on theories that (i) [Appellant] had previously
         waived his right to a preliminary hearing on all charges
         with the understanding that the fleeing and eluding count
         was charged as a misdemeanor, and (ii) [Appellant] was
         prejudiced by the fact that the count was amended
         immediately prior to the beginning of trial?

Appellant’s Brief at 4.

      Appellant first claims that the trial court erred in denying his request

for new counsel. Appellant contends that he had irreconcilable differences

with trial counsel. He further argues that that trial court’s inquiry into the

basis of his disagreement with trial counsel was insufficient and that the trial




10
   Present counsel’s Rule 1925(b) statement was untimely filed. However,
we will consider the issues raised in this appeal as counsel’s failure to file a
timely Rule 1925(b) constitutes per se ineffectiveness, and the trial court
prepared an opinion responsive to the untimely Rule 1925(b) statement.
See Pa.R.A.P. 1925(c)(3); Commonwealth v. Burton, 973 A.2d 428, 433
(Pa. Super. 2009) (en banc) (noting that a remand under Rule 1925(c)(3) is
not necessary where a Rule 1925 statement has been filed and the trial
court filed a responsive opinion).



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court improperly forced him to proceed with trial counsel or pro se. Id. at

9-10. No relief is due.

        It is well settled that

           “the right to appointed counsel does not include the right
           to counsel of the defendant’s choice.” Moreover,

              [w]hether to grant a defendant’s petition to replace
              court appointed counsel is a decision which is left to
              the sound discretion of the trial court. As a general
              rule, however, a defendant must show irreconcilable
              differences between himself and his court appointed
              counsel before a trial court will be reversed for abuse
              of discretion in refusing to appoint new counsel.

           In some cases, we have concluded that “substantial
           reasons”   or    “irreconcilable differences” warranting
           appointment of new counsel are not established where the
           defendant merely alleges a strained relationship with
           counsel, where there is a difference of opinion in trial
           strategy, where the defendant lacks confidence in
           counsel’s ability, or where there is brevity of pretrial
           communications.

Commonwealth v. Floyd, 937 A.2d 494, 497 (Pa. Super. 2007).

        The record in this case reveals that Appellant sent a letter to the trial

court that was received on May 25, 2016. In his letter, Appellant asserted

that trial counsel was deceptive, prevented him from viewing discovery, and

failed to conduct independent discovery, including obtaining a copy of his

cellphone records.11       According to Appellant, his cellphone records were

necessary to support his defense that he was an employee of Mojo’s Pizza.

Appellant did not expressly request new counsel.

11
     Appellant did not expressly request new counsel in his letter.



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     On the second day of trial, trial counsel asserted that he did not have

a copy of Appellant’s cellphone records. According to trial counsel, he asked

Appellant whether to request a continuance before trial but believed

Appellant stated “no.”   N.T., 8/10/16, at 7, 14.   Trial counsel stated that

Appellant currently sought a continuance until the phone records were

produced or a declaration of mistrial.    After the trial court denied those

motions, trial counsel represented that Appellant wanted to “fire [him] as

counsel[,]” and the following exchange occurred:

        THE COURT: [to Appellant] it is not as easy as you are
        suggesting in the midst of a jury trial having listened to
        the Commonwealth’s case, and apparently attempting to
        delay this matter, it is not [as] easy as you might think.
        About causing this trial to stop mid stream, on what basis
        do you now want to assert that you want to fire your
        counsel?

           Stand up.

        [Appellant]: Your Honor, I—on the basis of ineffective
        counsel, or ineffective assistance of counsel. He hasn’t—
        everything that I asked for from day one he hasn’t brought
        any evidence to support my claim of innocence.

           To my defense, we had multiple continuances to get
        evidence that would ascertain everything that I am saying,
        and he still doesn’t have it. I have been incarcerated for
        16 months. From day one I have been asking for these
        things.

        THE COURT: Thank you . . . . It sounds to me like what
        you are asserting is what you believe to be his ineffective
        assistance.

           This is not the appropriate forum, or the appropriate
        time to raise those issues, if you believe you have
        ineffective assistance of counsel claims. And that’s, of


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         course, assuming that the jury convicts you of any crime,
         there’s an appropriate time to raise those claims, do you
         understand that.

         [Appellant]: Yes, Your Honor.

         THE COURT: At this point in time, let me make it clear, we
         are going forward with the trial. The jury is about to be
         brought into the courtroom. You do have a constitutional
         right to represent yourself. If that happens, and if I
         believe it’s appropriate under the circumstances, [trial
         counsel] will be relieved of any duty to go forward at this
         point. You will be held to the same standard of any
         attorney, and I won’t put up with any monkey business,
         except for you to be as forthright as any attorney might
         be. Meaning that I will hold you to the same standard
         regarding evidence, regarding rules, regarding timeliness,
         regarding appropriate arguments.

           Now, is it your desire, having learned that there is an
         appropriate time to raise a PCRA claim—if that’s what you
         want to do, is it your desire now to have [trial counsel]
         complete the trial for you?

         [Appellant]: Your Honor, would ask for another—someone
         else to assist me.

         THE COURT: No. We don’t do that in the middle of the
         trial, no. That’s not going to happen. Your request for a
         different lawyer in the middle of the trial is denied.

            You want [trial counsel] to represent you?     You’ve of
         indicated—

         [Appellant]: Yes, I need some type of attorney.

         THE COURT: Thank you. Well, [to trial counsel] you will
         remain in the case, and any issues that he wants you to
         raise at an appropriate time may be raised then.

Id. at 7-9.




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       Following our review, we conclude the record did not evince

irreconcilable differences, and that the trial court’s inquiry into the basis for

Appellant’s request for new counsel was adequate.            The dispute between

Appellant and trial counsel focused on Appellant’s cellphone records, which

Appellant believed would have supported his testimony that he was working

as a delivery person and bolstered his claim that he was being chased

following a robbery attempt. However, Appellant apparently agreed not to

request a pretrial continuance based on the absence of the records and did

not express any further displeasure with trial counsel’s performance until the

Commonwealth had rested its case. As noted by the trial court, this dispute

thus   involves   a   challenge   to   the   effectiveness   of   counsel,   not   an

irreconcilable difference.    See Floyd, 937 A.2d at 497.             Furthermore,

because Appellant failed to demonstrate an irreconcilable difference, we

discern no error in the trial court’s inquiry into the matter or its direction

that Appellant would be required to proceed with trial counsel or pro se.

See id. Therefore, Appellant’s first claim fails.

       Appellant next claims that the trial court erred in granting the

Commonwealth’s motion to amend the fleeing and eluding charge to a

higher graded offense. Appellant argues that the amendment presented “‘a

substantially different factual scenario[,]’” resulted in a higher possible

sentence, and caused him prejudice by adding a new element. Appellant’s

Brief at 24. Appellant suggests Commonwealth v. Bricker, 882 A.2d 1008



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(Pa. Super. 2005), supports his position that the amendment was improper.

We disagree.

      The principles governing our review of this claim are as follows:

         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.

         [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. The test to be
         applied is:

            [W]hether 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.

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

citations and footnote omitted).




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         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.

Id. at 1223 (citation omitted).

      In Bricker, the Commonwealth initially filed an information charging

Appellant with possessing 0.37 grams of crack cocaine found on his person.

Bricker, 882 A.2d at 1019-20. At trial, an officer testified that 0.37 grams

of the drug could be for personal use. Id. at 1020. However, the officer

also testified that fourteen packets of crack cocaine—which weighed 5.3

grams, and which were thrown to the ground by an individual with the

defendant—were possessed for sales.         Id.   The defendant moved for

judgment of acquittal at the close of the Commonwealth’s case, and the

Commonwealth thereafter sought to amend the information to include both

the 0.37 grams initially charged, and the 5.3 grams discarded by the other

individual. Id. The trial court granted the amendment. Id. The defendant

was convicted of possessing 5.67 grams of crack cocaine with the intent to

deliver. Id. at 1013.

      On appeal, the Bricker Court concluded “the addition of [the] 5.3

grams of crack cocaine that was found on the floor . . . near [the other


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individual] present[ed] a substantially different factual scenario that that

which the Commonwealth charged initially.” Id. at 1020. The Court further

concluded that Appellant was prejudiced because the addition of the 5.67

grams of crack cocaine rendered his defense of possession for personal use

ineffective and exposed him to greater punishment under the mandatory

minimum statutes in effect at that time.        Id. at 1021.    Thus, the Court

vacated the conviction and remanded for a new trial. Id. at 1021-22.

      Instantly, the offense and grade of fleeing and eluding are defined as

follows:

           (a) Offense defined.—Any driver of a motor vehicle who
           willfully fails or refuses to bring his vehicle to a stop, or
           who otherwise flees or attempts to elude a pursuing police
           officer, when given a visual and audible signal to bring the
           vehicle to a stop, commits an offense as graded in
           subsection (a.2).

                                       ***

           (a.2) Grading.—

              (1) Except as provided in paragraph (2), an offense
              under subsection (a) constitutes a misdemeanor of the
              second degree. . . .

              (2) An offense under subsection (a) constitutes a felony
              of the third degree if the driver while fleeing or
              attempting to elude a police officer does any of the
              following:

                                       ***

                 (iii) endangers a law enforcement officer or member
                 of the general public due to the driver engaging in a
                 high-speed chase.



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75 Pa.C.S. § 3733(a), (a.2)(1), (a.2)(2)(iii).

      There is no doubt that the amendment was substantive in nature

because it added a factor that increased the grade of the offense of fleeing

or eluding—i.e., that Appellant endangered others during a “high-speed

chase.”12   See Commonwealth v. Gray, 478 A.2d 822, 825 (Pa. Super.

1984); see also Apprendi v. New Jersey, 530 U.S. 466 (2000).

Nevertheless, while the amendment added a factor that the Commonwealth

had to prove beyond a reasonable doubt, the basic elements of the

underlying offense of fleeing and eluding remained the same.           See 75

Pa.C.S. § 3733(a).

      Turning to the prejudice resulting from the amendment, the affidavit of

probable cause indicated that Appellant drove through the mall parking lot

“where multiple pedestrians were walking on foot[,]” and that he “drove his

vehicle toward [an officer] and almost struck his marked patrol car.” Aff. of

Probable Cause, 4/28/15, at 9.      Therefore, the fact that Appellant’s flight

from police endangered both police and the public were known to him.

      Additionally, the amendment did not affect Appellant’s intended

defense.    Unlike Bricker, Appellant’s defense of a fear for his safety was

unaffected by the amendment charging a higher grade of fleeing and

eluding. See 75 Pa.C.S. § 3733(c)(2). Moreover, Appellant had notice of

12
   This Court has held that the “high-speed chase” factor in Section
3733(a.2)(2)(iii) does not require that the chase be conducted at excessive
speed. In re R.C.Y., 27 A.3d 227, 230-31 (Pa. Super. 2011).



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the Commonwealth’s intent to amend the information before trial and could

have requested a continuance when the trial court granted the motion

before trial. See Sinclair, 897 A.2d at 1223. Accordingly, we conclude that

no relief is due.

      Thus, finding no merit to Appellant’s claims in this appeal, we affirm

the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/29/2017




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