Com. v. Williams, A. ( 2015 )

J-S51030-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTOINE WILLIAMS
Appellant No. 2698 EDA 2014
Appeal from the Judgment of Sentence August 19, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010129-2013,
MC-51-CR-0011641-2013
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 01, 2015
Antoine Williams appeals from the judgment of sentence imposed in
the Court of Common Pleas of Philadelphia County, following his convictions
for robbery – theft by removing money from a financial institution by making
a demand on an employee,1 and related offenses.
The trial court set forth the factual history of this case as follows:
On December 9, 2011, Ms. Delnisha Sims was working as a bank
teller inside a branch office of Sovereign Bank located at 101
East Olney Avenue in Philadelphia when, at about 5:18 p.m., she
looked over to her co-worker, Elsa Febes, and noticed that Ms.
Febes was red in the face, shaking and appeared to be scared.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 3701(a)(1)(vi).
J-S51030-15
Suddenly, Ms. Febes screamed, “Oh, my God. I just got
robbed.”1
1
An examination of Ms. Febes’ cash drawer following the
robbery showed that it was short $3,303.65. This fact was
entered as a stipulation.
Ms. Sims immediately observed a person fleeing the bank. Post
incident Sims was shown photographs taken from the bank’s
surveillance system, and stated that the person depicted in the
photographs was the person she saw fleeing the bank. Ms. Sims
also provided police with a description of the person
approximately five minutes after the robbery occurred.
Detective Steven Jefferson, the assigned investigator, recovered
a black leather aviator hat outside the entrance of the bank
along with a demand note that read, “Give me your fucking
money, no dye packs.” Detective Jefferson interviewed
[Williams] on March 25, 2013. [Williams] denied involvement in
the robbery claiming he had been in Georgia on the day the
robbery was committed.
The Commonwealth’s key witness was Nicole Lane, [Williams’]
former paramour and the mother of two of his children. Lane
[was looking at the news online] and in the course of doing so
recognized [Williams] as the person depicted in the photograph
accompanying the article [about] the purported robber. Lane,
employed as a nurse at a correctional facility, reported her
observation to her superior at work in accordance with a
regulation requiring employees to report any evidence of crime.
Lane also identified the hat recovered by police as belonging to
[Williams] and also recognized that the handwriting on the
demand note was that of [Williams].
Trial Court Opinion, 2/4/15, at 2-3.
The Commonwealth charged Williams with robbery – threatening
another or intentionally putting him in fear of bodily injury in the course of
committing a theft,2 theft by unlawful taking,3 receiving stolen property,4
____________________________________________
2
18 Pa.C.S. § 3701(a)(1)(ii).
(Footnote Continued Next Page)
-2-
J-S51030-15
and simple assault.5 On February 6, 2014, at the conclusion of a non-jury
trial, the court found Williams guilty of theft by unlawful taking and receiving
stolen property. The court also found him guilty of robbery – theft by
removing money from a financial institution by making a demand on an
employee.
Williams filed a motion for extraordinary relief on February 19, 2014,
which the court denied July 11, 2014. On August 19, 2014, the court
sentenced Williams to eleven and one-half to twenty-three months’
incarceration plus five years’ probation for robbery, followed by two
concurrent terms of two years’ probation for the theft convictions.
This timely appeal followed, in which Williams raises the following
issue for our review:
Did the trial court improperly convict Williams of robbery as a
felony of the second degree under 18 Pa.C.S. § 3701(a)(1)(vi)
where he was never charged with this subsection on the bills of
information or formal charging documents, the Commonwealth
never amended the bills or the charges, and where Williams was
never arraigned on this form of robbery?
Appellant’s Brief, at 3.
Williams relies, in part, on Pa.R.Crim.P. 564, which provides:
_______________________
(Footnote Continued)
3
18 Pa.C.S. § 3921(a).
4
18 Pa.C.S. § 3925(a).
5
18 Pa.C.S. § 2701(a).
-3-
J-S51030-15
Rule 564. Amendment of Information
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 is necessary
in the interests of justice.
Pa.R.Crim.P. 564.
Williams argues the trial court “circumvented the plain language” of
the Rule. See Appellant’s Brief, at 16. He maintains that although Rule 564
permits the court to allow amendments requested by the Commonwealth,
the court may not amend an information sua sponte. Williams further
asserts that the amendment was improper because it occurred after the
close of evidence. However, Rule 564 “is a starting point only . . . because
our courts apply the rule with an eye towards 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. Grekis, 610 A.2d
1284, 1289 (Pa. Super. 1992). “The caselaw sets forth a broader test for
the propriety of amendments than the plain language of the rule suggests.”
Commonwealth v. Mosley, 585 A.2d 1057, 1060 (Pa. Super. 1991).
Our disposition of this matter is informed by In re D.G., 114 A.3d
1091 (Pa. Super. 2015), where this Court noted:
In Commonwealth v. Mentzer, 18 A.3d 1200 (Pa. Super.
2011), we set forth our considerations in determining whether
the trial court erred in permitting the amendment of the
information.
-4-
J-S51030-15
[W]hen presented with a question concerning the propriety of an
amendment, we consider:
[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. Additionally, [i]n reviewing a grant to amend an
information, the Court will look to whether the appellant was
fully apprised of the factual scenario which supports the charges
against him. Where the crimes specified in the original
information involved the same basic elements and arose out of
the same factual situation as the crime added by the
amendment, the appellant is deemed to have been placed on
notice regarding his alleged criminal conduct and no prejudice to
defendant results.
Further, the factors which the trial court must consider in
determining whether an amendment is prejudicial are:
(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.
In re D.G., 114 A.3d 1091, 1095 (Pa. Super. 2015) (citations omitted).
Accordingly, the critical issue is whether Williams was prejudiced by
the trial court’s amendment of the charge of robbery brought against him.
Here, the facts underlying the offense of robbery by committing a theft in
the course of which the defendant threatened or put another in fear of
-5-
J-S51030-15
immediate serious bodily injury (section 3701(a)(1)(ii)) and robbery by
removing money from a financial institution by making a demand of an
employee (section 3701(a)(1)(vi)) were the same, namely, handing a
demand note to a bank teller with the words, “Give me your fucking money,
no dye packs.”
Prior to trial, Williams was aware that the Commonwealth had the
demand note and intended to enter it into evidence. Accordingly, there was
no element of surprise in the introduction of this critical piece of evidence
necessary to establish the offense set forth in section 3701(a)(1)(vi).
At trial, Williams presented no evidence. Nevertheless, during his
cross-examination of the Commonwealth’s witnesses, and in his closing
statement, Williams’ counsel pursued a defense of mistaken identity. Such a
defense was equally applicable to a charge under section 3701(a)(1)(ii) or
section 3701(a)(1)(vi).
Because the crime originally charged involved the same basic elements
and arose out of the same factual situation as the crime included in the
amendment, Williams was on notice regarding his alleged criminal conduct.
Accordingly, he was not prejudiced by the court’s amendment of the charge.
See In re D.G., supra. 6
____________________________________________
6
In the statement of questions involved section of his brief Williams also
asserts that the trial court improperly denied his post-verdict motion for
extraordinary relief. However, he has abandoned that issue. See
Appellant’s Brief, at 27.
-6-
J-S51030-15
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/1/2015
-7-