Com. v. Gordon, B. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN GORDON :
:
Appellant : No. 3038 EDA 2019
Appeal from the Judgment of Sentence Entered April 22, 2019
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0002526-2018
BEFORE: BOWES, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY McCAFFERY, J.: FILED AUGUST 17, 2020
Brian Gordon (Appellant) appeals from the judgment of sentence
entered in the Bucks County Court of Common Pleas, following his jury
conviction of burglary/adapted for overnight accommodations1 and related
offenses. On appeal, Appellant argues: (1) the trial court erred in granting
the Commonwealth’s motion to amend the original criminal information charge
of burglary/not adapted for overnight accommodations;2 and (2) the verdict
was against the weight of the evidence supporting his identity as the
perpetrator. For the reasons below, we affirm.
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1 18 Pa.C.S. § 3502(a)(1)(ii).
2 18 Pa.C.S. § 3502(a)(3).
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The trial court summarized the evidence presented at Appellant’s jury
trial. The victim in this matter, Stephen Howard, testified to the following:
[D]uring the early morning hours of April 3, 2018, Mr. and Mrs.
[Tiffani] Howard, their three children and Mrs. Howard’s mother
were inside their home located at 310 Crimson Court, Warrington
Township, Bucks County. At approximately 3:00 a.m., Mr.
Howard entered the garage through the door connecting the
kitchen to the garage. At the time, he observed [Appellant] in
Mrs. Howard’s car. Upon being confronted by Mr. Howard,
[Appellant] fled the garage, pursued by Mr. Howard. After a brief
foot chase, during which Mr. Howard never lost sight of
[Appellant], Mr. Howard tackled [Appellant] and a struggle
ensued. When police arrived on scene, Mr. Howard was on top of
[Appellant]. In the immediate vicinity, police found approximately
$30 in loose change[ ] scattered on the street, a plastic bag, and
dark-colored work gloves. After the police arrived, Mr. Howard
returned to his home to find the center console of his wife’s car
open and approximately $4.00 in change missing from the door
pocket of the vehicle.
Trial Ct. Op., 1/10/20, at 4 (citations to trial transcript omitted). Pertinently,
Mr. Howard testified he did not see the perpetrator’s face while they were in
the garage. However, Appellant’s vehicle was found nearby. N.T. Trial,
1/7/19, at 13, 25.
Appellant was arrested at the scene. For this incident, Appellant was
initially charged with burglary/not adapted for overnight accommodations,
criminal trespass,3 receiving stolen property (RSP), theft from a motor vehicle,
disorderly conduct, and loitering and prowling at nighttime.4
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3 18 Pa.C.S. § 3503(a)(1)(i).
4 18 Pa.C.S. §§ 3925(a), 3934(a), 5503(a)(4), 5506.
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The Howards’ neighbor, Ernest Rehr, testified that on April 3, 2018,
while the chase and altercation between Appellant and Mr. Howard ensued,
he awoke to his dog barking at the sound of two men shouting near his home.
N.T., 1/4/19, at 175-76. Mr. Rehr looked out his window to investigate, saw
his vehicle’s interior dome light was on, and “realized that somebody had been
in [his] car, [so he] called the police.” Id. at 176-77. Police arrived and
arrested Appellant. Police also learned that approximately $5 worth of coins
had been taken from Mr. Rehr’s vehicle. Id. at 181-82. For this incident,
Appellant was also charged with theft from a motor vehicle, RSP, and loitering
and prowling at night time.
Finally, we note Mr. Howard and Mr. Rehr’s neighborhood was described
as a quiet residential area with “good sized yards,” most of which are not
fenced. N.T., 1/4/19, at 148, N.T, 1/7/19, at 7. Mr. Howard’s residence is on
a cul-de-sac, while Mr. Rehr’s home is located between two cul-de-sacs, one
being Crimson Court.
On August 31, 2018, the Commonwealth filed a motion to amend the
criminal information, seeking leave to change the burglary charge from
burglary/not adapted for overnight accommodations to burglary/adapted for
overnight accommodations. On January 4, 2019, the trial court heard
argument, granted the Commonwealth’s motion to amend, and immediately
proceeded to trial.
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At trial, Mr. Howard testified Appellant was wearing a white t-shirt,
hoodie, or something similar, but Mr. Howard could not remember because
the incident happened nine months prior. N.T., 1/4/19, at 142, 146.
However, Officer Jamie Valerieno, a responding officer, testified that Appellant
wore a blue and gray sweatshirt and sweatpants. Id. at 190. The
Commonwealth presented a photograph, marked C-3, taken when officers
arrived on scene and depicting Appellant on the ground in a sweatshirt and
sweatpants, with black work gloves under his left arm. Id. at 191. Meanwhile,
another responding officer, Officer Alexander Moldavisky, testified Appellant
was wearing a long sleeve black shirt, matching the description in the affidavit
of probable cause. Id. at 202-03, 215. Plastic bags and $30 in loose change
were also scattered on the ground near Appellant. Id. at 195-96, 210. Finally,
also presented at trial were Mr. Howard’s crimen falsi convictions from Ohio,
dated 2003 and 2010. Id. at 126-28.
Appellant testified in his defense to the following. On his way home
from work in Bensalem, Appellant was paid to drop off co-workers at their
homes in Warrington and Warminster. N.T., 1/7/19, at 29, 34. Along the
way, Appellant stopped at the home of a former co-worker in Warrington. Id.
at 30, 34. Appellant later stopped at a Wawa store, which did not have a
bathroom, for coffee and “took the back . . . side road” out of the
neighborhood. Id. at 31. With a sudden urge to urinate, Appellant stopped
his car in the neighborhood. Id. at 31, 35. He took off his driving gloves to
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relieve himself in someone’s yard. Id. at 31, 36. When Appellant attempted
to go back to his vehicle, he heard someone yelling in his direction, and was
then tackled to the ground. Id. Appellant further testified that he had nothing
to do with the $30 in change that was found on the ground close to him. Id.
On January 7, 2019, the jury returned a guilty verdict on the charges of
burglary/adapted for overnight accommodations, loitering and prowling at
night time, criminal trespass, theft from a motor vehicle, and RSP — all
relative to Mr. Howard. The jury found Appellant not guilty of disorderly
conduct with respect to Mr. Howard, as well as all charges related to Mr. Rehr’s
motor vehicle.
On April 22, 2019, the trial court sentenced Appellant to four to ten
years’ imprisonment on burglary/adapted for overnight accommodations, and
one year of probation for loitering and prowling at night time, to be served
consecutively. No penalty was imposed for the remaining convictions.
On May 2, 2019, Appellant filed a timely post-sentence motion
challenging the weight of the evidence, which the trial court denied on
September 24, 2019. A timely notice of appeal was filed on October 24, 2019.
Thereafter, Appellant complied with the trial court’s November 13, 2019 order
directing him to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).
Appellant raises two issues for our review:
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[1] Did the Court err in granting the Commonwealth’s motion to
amend count one of the information to 18 Pa.C.S. §
3502(a)(1)(ii).
[2] Was the verdict against the weight of the evidence in that the
complainant’s testimony contained major discrepancies, and
Appellant testified credibly that he did not commit the crimes.
Appellant’s Brief at 4.5
First, Appellant argues the trial court erred in granting the
Commonwealth’s motion to amend the criminal information because the new
charge, burglary/adapted for overnight accommodation, involved different
elements than the original charge — burglary/not adapted for overnight
accommodation. He emphasizes the court permitted the Commonwealth to
amend the information on the day of trial. Appellant’s Brief at 15. Appellant
concedes “many of the facts as alleged were unchanged,” but nevertheless
avers the “untimely amendment was prejudicial as it changed the elements of
the crime charged.” Appellant’s Brief at 16. We disagree.
“The decision of whether to allow the Commonwealth to amend the
[i]nformation[ ] is a matter within the discretion of the trial court, and only an
abuse of discretion will constitute reversible error.” Commonwealth v.
Small, 741 A.2d 666, 681 (Pa. 1999). Pennsylvania Rule of Criminal
Procedure 564 provides:
The court may allow an information to be amended, provided that
the information as amended does not charge offenses arising from
a different set of events and that the amended charges are not so
materially different from the original charge that the defendant
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5 For ease of review, we have reordered the issues.
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would be unfairly prejudiced. 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.
[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.
* * *
In 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.
* * *
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[.] Factors that we must consider in determining
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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.
* * *
If there is no showing of prejudice, amendment of an
information to add an additional charge is proper even on the day
of trial. . . .
Commonwealth v. Sinclair, 897 A.2d 1218, 1221, 1221-24 (Pa. Super.
2006) (citations omitted).
The Pennsylvania burglary statute states:
(a) Offense defined.—A person commits the offense of
burglary if, with the intent to commit a crime therein, the person:
(1) . . .
(ii) enters a building or occupied structure, or
separately secured or occupied portion thereof, that is
adapted for overnight accommodations in which at the
time of the offense any person is present; [or]
* * *
(3) enters a building or occupied structure, or separately
secured or occupied portion thereof that is not adapted for
overnight accommodations in which at the time of the offense
any person is present[.]
18 Pa.C.S. § 3502(a)(1)(ii), (3).
Here, the trial court opined:
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The amendment of the criminal information did not alter the facts
upon which the prosecution was based. The probable cause
affidavit in support of the criminal complaint clearly alleges that
[Appellant] entered the attached garage of a private, occupied
residence. Those facts were presented at the preliminary hearing.
[Appellant] was therefore on notice that the structure was
adapted for overnight accommodation.
Moreover, the Commonwealth filed its Motion to Amend
Criminal Information on August 31, 2018 — four months before
trial. [Appellant], therefore, received ample notice of the
Commonwealth’s intent to seek to amend the criminal information
to reflect the subsection of the burglary statute applicable to the
factual allegations.
Finally, the amendment did not require any change in
defense strategy. [Appellant]’s defense at trial was that, while he
was in the neighborhood at the time the crime was committed, he
was not the person who committed the crime. The amendment
of the criminal information to reflect that the building burglarized
was adapted for overnight accommodations therefore had no
impact on defense strategy.
Trial Ct. Op. at 6-7 (citations to trial transcript omitted). We agree.
Appellant does not address, nor refute, the trial court’s analysis that:
(1) while the amendment was granted on the day of trial, the Commonwealth
filed its motion four months earlier and thus he had notice; and (2) his defense
strategy of mistaken identity was not affected. Both the Commonwealth’s
initial and amended information alleged Appellant entered the attached garage
of the Howard residence. The new burglary charge that the Commonwealth
wished to charge contained only one new element — that the structure was
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adapted for overnight accommodation.6 Appellant understood he was in a
residential area because he admitted at trial that he intended to urinate in
someone’s yard. See N.T., 1/4/19, at 31. Finally, Appellant fails to establish
he was prejudiced, especially as he concedes “many of the facts as alleged
were unchanged.” See Sinclair, 897 A.2d at 1223; Appellant’s Brief at 16.
Appellant’s sole claim of prejudice is that the “untimely amendment was
prejudicial as it changed the elements of the crime charged.” Appellant’s Brief
at 16. This argument is conclusory as well as circular; it merely cites the fact
of the amendment without explaining particularly how he was prejudiced. For
the foregoing reasons, we do not disturb the order of the trial court permitting
the Commonwealth to amend the information.
In his second issue, Appellant argues the verdict was against the weight
of the evidence. As stated above, his defense at trial was that another person
committed the crimes. Appellant maintains Mr. Howard’s testimony regarding
the perpetrator’s clothing was inconsistent with other testimony and evidence
presented at trial. Further, Appellant avers Mr. Howard’s crimen falsi record
casted doubt on Appellant’s identity as the actor because Mr. Howard was the
only person to identify Appellant, and Mr. Howard testified he did not see the
actor’s face while inside his garage. Meanwhile, Appellant maintains he
____________________________________________
6 We note Appellant’s Rule 1925(b) statement raised an additional issue: a
challenge to the sufficiency of evidence for burglary, on the ground that Mr.
Howard’s garage was not a separately secured or occupied building or
structure. He has abandoned this claim on appeal.
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testified credibly that he “was never in the Howard[s’] garage” and did not
commit the crimes.7 Appellant’s Brief at 11. Appellant also contends another
person committed the crimes and ran away, citing his acquittal of the charges
relating to Mr. Rehr’s vehicle. Finally, Appellant avers pursuant to Mr. Rehr’s
testimony, “it would have been impossible for Appellant to have committed
the theft at Mr. Rehr’s house and then committed the theft at Mr. Howard’s
house.” Appellant’s Brief at 13.
The Pennsylvania Supreme Court has stated:
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. Rather, “the
role of the trial judge is to determine that ‘notwithstanding all the
facts, certain facts are so clearly of greater weight that to ignore
them or to give them equal weight with all the facts is to deny
justice.’” It has often been stated that “a new trial should be
awarded when the jury’s verdict is so contrary to the evidence as
to shock one’s sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to
prevail.”
An appellate court’s standard of review when presented with
a weight of the evidence claim is distinct from the standard of
review applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying
question of whether the verdict is against the
weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence
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7 Neither Appellant’s Rule 1925(b) statement nor brief specify which of his
convictions were allegedly against the weight of the evidence. Nevertheless,
we note Appellant’s contention of mistaken identity and insistence that he did
not commit any of the crimes.
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presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by
the trial judge when reviewing a trial court’s
determination that the verdict is against the weight of
the evidence. One of the least assailable reasons for
granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against the
weight of the evidence and that a new trial should be
granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations
omitted).
A motion for a new trial on the grounds that the verdict is contrary
to the weight of the evidence concedes that there is sufficient
evidence to sustain the verdict but claims that “notwithstanding
all the facts, certain facts are so clearly of greater weight that to
ignore them or to give them equal weight with all the facts is to
deny justice.”
Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003) (citation
omitted); see also Trial Ct. Op. at 3 (quoting same).
Our Supreme Court has explained:
The weight of the evidence is exclusively for the finder of fact who
is free to believe all, part, or none of the evidence to determine
the credibility of the witnesses. An appellate court cannot
substitute its judgment for that of the finder of fact. Thus, we
may only reverse the lower court’s verdict if it is so contrary to
the evidence as to shock one’s sense of justice.
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations
omitted).
In denying relief of Appellant’s weight of the evidence claim, the trial
court reasoned:
In support of his weight of the evidence claim, [Appellant]
argues that the Commonwealth’s witnesses, the homeowner,
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lacked credibility based on an inconsistency in the description of
the clothing worn by the individual observed in the garage and
[Appellant’s] clothing. However, “the determination of the
credibility of a witness is within the exclusive province of the jury.”
The inconsistency identified by [Appellant] is not of such a nature
or extent as to make the jury’s verdict so contrary to the evidence
as to shock one’s sense of justice. Moreover, the identification of
[Appellant] as the perpetrator was established not only by the
victim’s identification of [Appellant] but by the fact that
[Appellant] was immediately pursued and apprehended at the
scene. [Appellant’s] claim therefore lacks merit.
Trial Ct. Op. at 4-5.
Although this Court’s review “is a review of the [trial court’s] exercise of
discretion, not of the underlying” weight of the evidence claim, Appellant’s
argument makes no reference to the trial court’s discussion of having already
denied relief on this issue. See Clay, 64 A.3d at 1055. We agree with the
court’s reasoning that the jury was free to believe all, part, or none of the
evidence, and to determine the credibility of the witnesses’ testimony. See
Champney, 832 A.2d at 408; Rakowski, 987 A.2d at 1219.
Although there was conflicting testimony as to Appellant’s clothing, and
Mr. Howard admitted he did not see the actor’s face while in the garage, Mr.
Howard testified he never lost sight of Appellant while in pursuit. N.T., 1/4/19,
at 133, 135, 147. Appellant also ignores that Mr. Howard tackled Appellant
and remained “on top of” him until police arrived. See Trial Ct. Op. at 4. With
respect to Mr. Howard’s past crimen falsi convictions, the court charged the
jury that it was to decide how the convictions affected his credibility. N.T.,
1/4/19, at 126-28. The jury was free to believe his testimony identifying
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Appellant as the person in his wife’s vehicle. Moreover, Mr. Howard’s
immediate pursuit and apprehension of Appellant supported Mr. Howard’s
identification of Appellant as the perpetrator. Thus, the verdict does not shock
one’s sense of justice. Appellant’s claim lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/20
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