Com. v. Sandoval, J. ( 2021 )


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  • J-S24027-21
    
    2021 PA Super 242
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    Appellee                :
    :
    v.                             :
    :
    JOSHUA SANDOVAL                            :
    :
    Appellant               :       No. 389 WDA 2021
    Appeal from the Judgment of Sentence Entered November 4, 2020
    In the Court of Common Pleas of Clarion County
    Criminal Division at No(s): CP-16-CR-0000172-2020
    BEFORE:      DUBOW, J., KING, J., and STEVENS, P.J.E.*
    OPINION BY KING, J.:                           FILED: DECEMBER 14, 2021
    Appellant, Joshua Sandoval, appeals from the judgment of sentence
    entered in the Clarion County Court of Common Pleas, following his bench trial
    conviction for failure to comply with Subchapter I registration requirements.1
    We affirm.
    The relevant facts and procedural history of this case are as follows. At
    trial, the Commonwealth admitted an 8-page packet which detailed
    Appellant’s prior sexual conviction. (See N.T Trial, 10/13/20, at 4). According
    to the Commonwealth’s evidence, on June 27, 2011, Appellant entered a plea
    to one count of abduction with sexual motivation in the Court of Common
    Pleas of Franklin County, Ohio. (Id.) The Ohio court sentenced Appellant to
    ____________________________________________
    *   Former Justice specially assigned to the Superior Court.
    1   18 Pa.C.S.A. § 4915.2(a)(1).
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    two years at the Ohio Department of Rehabilitation and Correction and
    required him to register as a Tier II sex offender under Ohio’s laws for a period
    of 25 years. (Id.)
    At the beginning of August 2019, Appellant moved from Ohio to Clarion
    County, Pennsylvania.      (Id. at 45).     On February 20, 2020, Subway
    Restaurant hired Appellant at the Plaza Subway location in Monroe Township,
    Pennsylvania.     (Id. at 8).   On March 12, 2020, Subway terminated his
    employment. (Id.) Appellant did not report this termination of employment
    as required under the sexual offender notification law. (Id.) Trooper Katie
    Berggren of the Pennsylvania State Police became aware of Appellant’s
    employment termination on March 23, 2020. (Id. at 14). After making this
    discovery,   Trooper    Berggren   contacted   Evelyn   Stoner   who   oversees
    noncompliance with sex offender reporting and registration requirements.
    (Id.) Ms. Stoner informed Trooper Berggren that the law required Appellant
    to report a change in his employment by the beginning of the day on March
    18, 2020.       (Id.)   Appellant failed to do so, and as a result of his
    noncompliance, Trooper Berggren applied for an arrest warrant and filed a
    criminal complaint for one count of failure to comply with registration
    requirements under 18 Pa.C.S.A § 4915.1(a)(1). (Id. at 24).
    At the conclusion of the Commonwealth’s case-in-chief, Appellant’s
    counsel moved for judgment of acquittal on the grounds that Appellant “was
    intentionally charged under the wrong subsection of the statute.” (Id. at 27).
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    Counsel explained the basis for his motion was that 18 Pa.C.S.A §
    4915.1(a)(1), under which the Commonwealth charged Appellant, pertains to
    sex offenses that occurred after December 20, 2012, but Appellant’s Ohio
    conviction stemmed from an offense that occurred in 2010. (Id. at 28). Thus,
    counsel argued this statute did not apply to Appellant. (Id.) Further, counsel
    explained that the correct statute that applies to Appellant was 18 Pa.C.S.A §
    4915.2(a)(1).2 After hearing this argument, the Commonwealth moved the
    court to allow it to amend the information to change the crime charged from
    18 Pa.C.S.A § 4915.1 to 18 Pa.C.S.A § 4915.2. (Id. at 31). The court granted
    the Commonwealth’s motion to amend, and it denied Appellant’s motion for
    judgment of acquittal. (Id. at 43).
    In his defense, Appellant testified that he planned to update the state
    police on his change in employment whenever the Covid-19 restrictions eased
    (Id. at 57-60).3 At the conclusion of the trial, the court found Appellant guilty
    of failure to comply with Subchapter I registration requirements under 18
    Pa.C.S.A. § 4915.2. (Id. at 82).
    ____________________________________________
    2  Counsel correctly stated that Appellant was subject to reporting
    requirements under Subchapter I because Appellant committed his Ohio
    offense between April 22, 1996 and December 20, 2012. See 42 Pa.C.S.A.
    §§ 9799.51-9799.75.
    3 Notably, Trooper Berggren had testified that the sex offender registration
    unit within the state police did not change any of its policies because of the
    Covid-19 virus until March 19, 2020, the day after Appellant should have
    reported his change in employment. (Id. at 22).
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    On November 4, 2020, the court sentenced Appellant to 2-4 years’
    incarceration.   Appellant timely filed a post-sentence motion on Monday,
    November 16, 2020. The court denied post-sentence relief on February 11,
    2021. Appellant filed a timely notice of appeal on March 10, 2021. On March
    17, 2021, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
    statement of errors complained of on appeal, and Appellant timely complied.
    Appellant raises the following issues for our review:
    Whether the [t]rial [c]ourt abused its discretion by allowing
    the Commonwealth to amend the information as to the sole
    charge that [Appellant] was facing in the middle of trial after
    the Commonwealth had rested and Undersigned Counsel
    had moved for Motion for Judgment of Acquittal?
    Whether the trial court abused its discretion in finding that
    [Appellant]’s violation of [18 Pa.C.S.A. § 4915.2(a)(1)]
    went beyond a de minimis violation, [and] thus erred in
    finding him guilty of that offense?
    (Appellant’s Brief at 4).
    In his first issue, Appellant argues that the court abused its discretion
    by allowing the Commonwealth to amend the information after the
    Commonwealth rested its case-in-chief.          Appellant contends that the
    Commonwealth incorrectly charged him for failing to comply with registration
    requirements under 18 Pa.C.S.A § 4915.1 (which applies to individuals who
    committed sex offenses on or after December 20, 2012), instead of 18
    Pa.C.S.A § 4915.2 (which applies to individuals who committed sex offenses
    after April 22, 1996 but before December 20, 2012). After the Commonwealth
    rested, the court denied Appellant’s motion for judgment of acquittal, and
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    Appellant asserts that it was too late for him to request a continuance.
    Appellant claims the court’s decision to allow the Commonwealth to amend
    the information after he moved for acquittal violated Pa.R.Crim.P. 564.
    Appellant maintains that the amendment prejudiced his defense strategy.
    Appellant concludes that this Court should vacate his conviction and dismiss
    this case with prejudice. We disagree.
    We review a trial court’s decision to grant or deny a motion to amend
    an information for an abuse of discretion. Commonwealth v. Small, 
    559 Pa. 423
    , 450, 
    741 A.2d 666
    , 681 (1999). As this Court has explained:
    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. If in reaching a conclusion the
    trial court overrides or misapplies the law, discretion is then
    abused and it is the duty of the appellate court to correct
    the error.
    Commonwealth v. Belknap, 
    105 A.3d 7
    , 10 (Pa.Super. 2014) (citations
    omitted).
    Section 4915.1(a)(1) of the Crimes Code applies to individuals who
    committed a requisite offense on or after December 20, 2012, and states:
    (a) Offense defined.—An individual who is subject to
    registration under 42 Pa.C.S. § 9799.13 (relating to
    applicability) commits an offense if he knowingly fails to:
    (1) register with the Pennsylvania State Police as
    required under 42 Pa.C.S. § 9799.15 (relating to period of
    registration), 9799.19 (relating to initial registration) or
    9799.25 (relating to verification by sexual offenders and
    Pennsylvania State Police);
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    *    *    *
    18 Pa.C.S.A. § 4915.1(a)(1).
    Section 4915.2 of the Crimes Code applies to individuals who committed
    an offense set forth in 42 Pa.C.S.A. § 9799.55 on or after April 22, 1996, but
    before December 20, 2012, and whose period of registration under 42
    Pa.C.S.A. § 9799.55 has not expired. 18 Pa.C.S.A. § 4915.2(f)(1). Section
    4915.2(a)(1) states:
    (a) Offense defined.—An individual who is subject to
    registration under 42 Pa.C.S. § 9799.13 (relating to
    applicability) commits an offense if he knowingly fails to:
    (1) register with the Pennsylvania State Police as
    required under 42 Pa.C.S. § 9799.15 (relating to period of
    registration), 9799.19 (relating to initial registration) or
    9799.25 (relating to verification by sexual offenders and
    Pennsylvania State Police);
    *    *    *
    18 Pa.C.S.A. § 4915.2(a)(1).
    Pennsylvania Rule of Criminal Procedure 564 governs when the
    Commonwealth may amend the charges against a defendant, and provides:
    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. 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-
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    minute addition of alleged criminal acts of which the defendant is uninformed.
    Commonwealth v. Duda, 
    831 A.2d 728
    , 732 (Pa.Super. 2003).
    This Court has explained:
    Since the purpose of the information is to apprise the
    defendant of the charges against him so that he may have
    a fair opportunity to prepare a defense, our Supreme Court
    has stated that following an amendment, relief is warranted
    only when the variance between the original and the new
    charges prejudices an appellant by, for example, rendering
    defenses which might have been raised against the original
    charges ineffective with respect to the substituted charges.
    Commonwealth v. Sinclair, 
    897 A.2d 1218
    , 1223 (Pa.Super. 2006).
    Even in instances where the amendment is deemed improper, our
    Supreme Court has determined that relief is necessary only when the
    amendment prejudices the defendant. See Commonwealth v. Brown, 
    556 Pa. 131
    , 
    727 A.2d 541
     (1999) (holding amendment violating Rule 564 is fatal
    only when variance between original and new charges prejudices appellant).
    In evaluating prejudice, we consider:
    (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.
    Sinclair, 
    supra at 1223
    . Stated another way, the test is “whether the crimes
    specified in the original indictment or information involve the same basic
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    elements and evolved out of the same factual situation as the crimes specified
    in the amended indictment or information.” 
    Id. at 1221
    .
    Thus, this Court has repeatedly affirmed the amendment of a criminal
    information during and even after trial where there is no showing of prejudice.
    See Commonwealth v. Beck, 
    78 A.3d 656
     (Pa.Super. 2013) (upholding
    amendment      of    information    after    Commonwealth’s       case-in-chief);
    Commonwealth v. Mentzer, 
    18 A.3d 1200
     (Pa.Super. 2011) (upholding
    amendment of information at sentencing); Commonwealth v. Page, 
    965 A.2d 1212
     (Pa.Super. 2009) (upholding amendment of information after close
    of evidence, but prior to closing arguments); Commonwealth v. Roser, 
    914 A.2d 447
     (Pa.Super. 2006) (upholding amendment of information after
    appellant testified in his defense). The rationale utilized in these cases is that
    “our courts apply [Rule 564] with an eye toward its underlying purposes and
    with a commitment to do justice rather than be bound by a literal or narrow
    reading of procedural rules.” Commonwealth v. Grekis, 
    601 A.2d 1284
    ,
    1288 (Pa.Super. 1992).
    Instantly, the trial court considered the factors outlined in Sinclair,
    
    supra,
     and determined that Appellant was not prejudiced by the late
    amendment.      The court reasoned that the elements or defenses to the
    amended offense, 18 Pa.C.S.A. § 4915.2(a)(1), are not so materially different
    from the elements or defenses to the crime originally charged, 18 Pa.C.S.A. §
    4915.1(a)(1). The court further explained its reasoning as follows:
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    Both statutes apply to the same alleged conduct of
    [Appellant]—his failure to report a termination of
    employment to the Pennsylvania State Police. As previously
    set forth in the Procedural and Factual Background of this
    Opinion and Order of Court, one difference between the
    statutes is the date of [Appellant]’s conviction that makes
    him subject to 18 Pa.C.S.A. § 4915.2(a)(1) instead of 18
    Pa.C.S.A. § 4915.1(a)(1). The second difference is that 18
    Pa.C.S.A. § 4915.2(a)(1) refers to the registration
    procedures set forth in 42 Pa.C.S.A. § 9799.56, which
    requires sexual offenders under subsection (a)(2)(ii), to
    “inform the Pennsylvania State Police within three business
    days of…termination of employment.” While, 18 Pa.C.S.A.
    § 4915.1(a)(1) refers to the registration procedures set
    forth in 42 Pa.C.S.A. § 9799.15 and specifically applicable
    in this case, subsection (g)(3), which requires sexual
    offenders to “appear in person at an approved registration
    site within three business days to provide current
    information relating to…termination of employment.” So,
    where the original offense with which [Appellant] was
    charged would have required [Appellant] to report in-person
    to the Pennsylvania State Police; the amended offense only
    set forth the requirement that [Appellant] contact the
    Pennsylvania State Police to report his termination from
    employment. Whether [Appellant] was required to report
    his termination of employment within three (3) days to the
    Pennsylvania State Police in-person, as required by 42
    Pa.C.S.A. § 9799.15, or just by contacting the Pennsylvania
    State Police, as required by 42 Pa.C.S.A. § 9799.56, the
    allegation was that [Appellant] failed to do either of these
    things. Consequently, [Appellant] was placed on notice in
    regard to his criminal conduct under either statute and the
    amendment would not have resulted in prejudice to him.
    (Trial Court Opinion, filed February 10, 2021, at unnumbered p. 5-6).
    Further, after the court granted the Commonwealth’s request to amend
    the   information,   Appellant   did   not   request   a   continuance.   See
    Commonwealth v. Fowler, 
    393 A.2d 844
    , 847 (Pa.Super. 1978) (holding
    failure to request continuance after amendment to information supports
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    conclusion that amendment caused no prejudice). We agree with the court’s
    conclusion that the Commonwealth’s amendment of the information after the
    close of its case did not prejudice Appellant to a degree which should result in
    his conviction being overturned. See Beck, 
    supra.
     Indeed, this Court has
    affirmed the amendment of a criminal information during and even after trial
    where there is no showing of prejudice. See Mentzer, 
    supra;
     Page, 
    supra.
    As the court explained, Appellant was clearly aware of the facts
    underlying the charges in the amended information from the time charges
    were first brought against him. The crime specified in the original information
    involved the same basic elements and evolved out of the same factual
    situation as the crime specified in the amended information. See Sinclair,
    
    supra.
     Because Appellant had notice of the facts surrounding the amended
    information and was not prejudiced by the amendment, we see no abuse of
    discretion in the court’s allowance of the amendment. See Small, supra.
    Accordingly, Appellant’s first issue warrants no relief.
    In his second issue, Appellant argues that his conviction under Section
    4915.2 which criminalizes the failure to notify the Pennsylvania State Police
    of a change of employment within three business days is a de minimis
    violation. Appellant asserts that his arrest occurred only five days after the
    deadline to notify the police had expired. Appellant contends he was uncertain
    as to whether the police barracks would be open due to Covid-19 restrictions.
    Appellant claims that his violation of Section 4915.2 neither “caused nor
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    threatened the harms or evils” to be prevented under the law.         Appellant
    concludes his offense was de minimis, and this Court should reverse his
    conviction. We disagree.
    “We review a trial court’s failure to characterize [an a]ppellant’s conduct
    as de minimis for an abuse of discretion.” Commonwealth v. Olavage, 
    894 A.2d 808
    , 812 (2006), appeal denied, 
    589 Pa. 720
    , 
    907 A.2d 1102
     (2006).
    The Crimes Code governs de minimis infractions as follows:
    § 312. De minimis infractions
    (a) General rule.—The court shall dismiss a prosecution if,
    having regard to the nature of the conduct charged to
    constitute an offense and the nature of the attendant
    circumstances, it finds that the conduct of the defendant:
    (1) was within a customary license or tolerance, neither
    expressly negatived by the person whose interest was
    infringed nor inconsistent with the purpose of the law
    defining the offense;
    (2) did not actually cause or threaten the harm or evil
    sought to be prevented by the law defining the offense or
    did so only to an extent too trivial to warrant the
    condemnation of conviction; or
    (3) presents such other extenuations that it cannot
    reasonably be regarded as envisaged by the General
    Assembly or other authority in forbidding the offense.
    18 Pa.C.S.A. § 312(a).
    “The purpose of Section 312 is to remove petty infractions from the
    reach of the criminal law.” In re M.M., 
    855 A.2d 112
    , 114 (Pa.Super. 2004).
    “An offense alleged to be de minimis in nature should not be dismissed where
    either harm to the victim or society in fact occurs.”     Commonwealth v.
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    Lutes, 
    793 A.2d 949
    , 963 (Pa.Super. 2002). The purpose for requiring sexual
    offenders to register is because sexual offenders pose a high risk of
    committing additional sexual offenses and protection of the public from this
    type of offender is a paramount governmental interest. See 42 Pa.C.S.A. §
    9799.11(a)(4).    Further, the legislative intent for requiring registration
    explains that knowledge of whether a person is a sexual offender could be a
    significant factor in protecting oneself and one’s family members, or those in
    care of a group or community organization, from recidivist acts by such
    offenders. See 42 Pa.C.S.A. § 9799.11(a)(7).
    Instantly, the court was not obligated to accept Appellant’s explanation
    that his failure to comply with the registration requirements was because of
    the pandemic.    The court rejected this contention by noting that Covid-19
    restrictions and shutdowns had not yet occurred at the time Appellant’s period
    to report the termination of his employment expired. (See N.T. Trial at 74).
    In denying Appellant’s request to dismiss this case as de minimis, the court
    noted that “this is one of those offenses that needs to be strictly construed
    and strictly complied with.”     (Id.).   The court further stated that the
    seriousness of this offense is precisely the harm or evil sought to be prevented
    by the law. (Id.) We see no reason to disrupt the court’s decision. See
    Olavage, 
    supra;
     Lutes, 
    supra.
     Accordingly, we affirm.
    Judgment of sentence affirmed.
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/14/2021
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