Com. v. Kesner, G. ( 2021 )

J-A16009-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GARY EDWARD KESNER :
:
Appellant : No. 1118 MDA 2020
Appeal from the Judgment of Sentence Entered July 30, 2020,
in the Court of Common Pleas of Dauphin County,
Criminal Division at No(s): CP-22-CR-0004183-2019.
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED: SEPTEMBER 24, 2021
Gary Edward Kesner appeals from the judgment of sentence imposed
following his conviction for strangulation and simple assault.1 We affirm.
The trial court summarized the relevant factual background as follows:
On Friday, June 28, 2019, Officer Brian Guarnieri, a police
officer with the Lower Paxton Township police department since
2004, received a dispatch directing him to contact David Logan
regarding an incident that occurred on Thursday, June 27, 2019,
between Kesner and Meghan Seiders. Officer Guarnieri arranged
to meet Mr. Logan at Ms. Seiders’ apartment. Officer Guarnieri
told Ms. Seiders that he had become aware of a possible incident
and asked if she wanted to speak with him about anything that
had occurred. Ms. Seiders invited Officer Guarnieri into her
apartment and said that she would like to tell him what had
happened the night before. Ms. Seiders provided a verbal and
written statement regarding the incident that occurred the night
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 See 18 Pa.C.S.A. §§ 2718(a)(1), 2701(a)(1).
J-A16009-21
before. Officer Guarnieri observed injuries on Ms. Seiders during
this encounter. Specifically, Officer Guarnieri observed four
marks on one side of Ms. Seiders’ neck and one mark on the
opposite of her neck. He further observed redness in the eye
area on one side of her face. After contacting an on-duty
supervisor to respond with a camera, Officer Guarnieri took
photographs of the injuries. Officer Guarnieri then advised Ms.
Seiders to take more photographs of her injuries a few days later
to document any change in appearance. Officer received more
photographs from Ms. Seiders or Mr. Logan a few days later.
After receiving these additional photographs, Officer Guarnieri
visited Ms. Seiders the following week on July 2, 2019, to verify
the injuries to her face. Officer Guarnieri observed that the
injuries to Ms. Seiders’ face were more pronounced. Officer
Guarnieri specifically observed the blackening of her eye. Officer
Guarnieri testified that he did not reach out to [Kesner] during
his investigation because of the overwhelming evidence that he
had with the photographs and what Ms. Seiders reported to him
after the incident occurred.
Mr. Logan testified at the jury trial that Ms. Seiders
contacted him directly after the incident occurred on June 27,
2019, around 7:00 o’clock p.m. Mr. Logan testified that Ms.
Seiders was crying on the phone. Ms. Seiders told him that
there was an incident that happened at her apartment and she
needed him to come to her apartment. Mr. Logan arrived at Ms.
Seiders’ apartment and observed that she was still upset. Mr.
Logan observed injuries to Ms. Seiders’ neck area. Specifically,
he observed four marks on one side of her neck and one mark
on the opposite side. He further observed redness on Ms.
Seiders’ eye. According to Mr. Logan’s testimony, [Kesner]
came to Ms. Seiders’ door and was beating on the door. Ms.
Seiders told [Kesner] to leave, but [Kesner] did not leave. Ms.
Seiders opened the door to try to tell him to leave. Appellant
then pushed his way inside the apartment. [Kesner] grabbed
Ms. Seiders, they struggled, then they went to her bedroom.
[Kesner] was looking for another man in the apartment.
[Kesner] then left the apartment after striking Ms. Seiders. Mr.
Logan took photographs of Ms. Seiders’ neck. Mr. Logan
contacted police and arranged to meet Officer Guarnieri at Ms.
Seiders’ apartment. Mr. Logan was present when Ms. Seiders
spoke with Officer Guarnieri. Mr. Logan further testified that he
saw Ms. Seiders in person a few times following the incident and
observed that her eye area started to turn black.
-2-
J-A16009-21
Ms. Seiders testified at the jury trial that she and [Kesner]
dated each other for a few years. She then testified that she
and [Kesner] were still in a relationship at the time of the jury
trial. According to Ms. Seiders’ testimony, [Kesner] came to her
apartment on June 27, 2019. [Kesner] believed there was
another man in her apartment. Ms. Seiders testified that she let
him into her apartment to show him that she did not have
another man in her apartment. [Kesner] went to Ms. Seiders’
bedroom to look for another man. Ms. Seiders told [Kesner] to
leave, but [Kesner] did not leave. Ms. Seiders then began to hit
[Kesner] because he would not leave her apartment. [Kesner]
then pinned Ms. Seiders to her bed and got on top of her body.
Ms. Seiders was not able to fully breathe, so she then kicked him
off her. [Kesner] struck her in the face when they left the
bedroom Ms. Seiders fell to the floor. [Kesner] then left her
apartment. Ms. Seiders testified that she had injuries following
the incident and that the injuries hurt.
Raelynn Parson, a Lieutenant at Dauphin County Prison,
testified that defendants are routinely photographed when they
arrive at the Dauphin County Judicial Center. Defense stipulated
to the fact that [Kesner] did not have any injuries on his body at
the time he arrived at the Dauphin County Judicial Center.
Trial Court Opinion, 12/1/20, at 2-5 (footnotes and citations to the record
omitted).
Kesner was arrested and charged with strangulation, simple assault,
and burglary. The matter proceeded to a jury trial in March 2020. At the
conclusion of trial, the jury found Kesner guilty of strangulation and simple
assault, but not guilty of burglary. On March 18, 2020, the Commonwealth
sought leave to amend the information to change the grading of the
strangulation charge from a misdemeanor to a felony. The trial court
granted the Commonwealth’s request to amend the information. On April
16, 2020, Kesner filed a pro se correspondence which the trial court treated
-3-
J-A16009-21
as a motion for reconsideration of its order granting the Commonwealth’s
motion to amend the information. The trial court permitted briefing and
supplemental briefing on the motion before denying relief to Kesner. On
August 6, 2020, the trial court sentenced Kesner to five to ten years in
prison for strangulation, followed by one to two years in prison for simple
assault. Kesner did not file any post-sentence motions. Kesner filed a
timely notice of appeal, and both he and the trial court complied with
Pa.R.A.P. 1925.
Kesner raises the following issues for our review:
I. Was their insufficient evidence presented at trial to sustain
convictions for strangulation and simple assault?
II. Did the [trial] court abuse its discretion by overruling
[Kesner’s] objection to the Commonwealth eliciting hearsay
regarding telephone calls between [Kesner] and an
unknown male through the affiant in the case?
III. Did the [trial] court err by refusing to give the jury a self-
defense instruction at the request of [Kesner]?
IV. Did the [trial] court err by granting the Commonwealth’s
motion to amend the criminal information from a
misdemeanor strangulation to a felony strangulation
following the return of the verdict but prior to [Kesner’s]
sentencing hearing?
Kesner’s Brief at 6 (excess capitalization omitted, issues reordered for ease
of disposition).
In his first issue, Kesner challenges the sufficiency of the evidence
supporting his convictions for strangulation and simple assault. In reviewing
-4-
J-A16009-21
a challenge to the sufficiency of the evidence, our standard of review is as
follows:
As a general matter, our standard of review of sufficiency
claims requires that we evaluate the record in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.
Evidence will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of
wholly circumstantial evidence. Accordingly, [t]he fact that the
evidence establishing a defendant’s participation in a crime is
circumstantial does not preclude a conviction where the evidence
coupled with the reasonable inferences drawn therefrom
overcomes the presumption of innocence. Significantly, we may
not substitute our judgment for that of the fact finder; thus, so
long as the evidence adduced, accepted in the light most
favorable to the Commonwealth, demonstrates the respective
elements of a defendant’s crimes beyond a reasonable doubt,
the appellant’s convictions will be upheld.
Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)
(internal quotations and citations omitted). Importantly, “the jury, which
passes upon the weight and credibility of each witness’s testimony, is free to
believe all, part, or none of the evidence.” Commonwealth v. Ramtahal,
33 A.3d 602, 607 (Pa. 2011).
“A person commits the offense of strangulation if the person knowingly
or intentionally impedes the breathing or circulation of the blood of another
-5-
J-A16009-21
person by . . . applying pressure to the throat or neck.” 18 Pa.C.S.A. §
2718(a)(1).
“[A] person is guilty of assault if he . . . attempts to cause or
intentionally, knowingly or recklessly causes bodily injury to another” 18
Pa.C.S.A. § 2701(a)(1).
In regard to his sufficiency challenge, Kesner merely cites to our
standard of review, and then provides two sentences to support his claim
that the evidence presented by the Commonwealth at trial was insufficient to
establish either a strangulation or a simple assault. Kesner maintains that,
although there was some testimony that he became physical with Ms.
Seiders based upon her testimony, he was acting in self-defense. Kesner
additionally claims that there was no definitive testimony that he actually
strangled or choked Ms. Seiders.
Kesner’s sufficiency challenge is woefully vague and undeveloped. He
does not identify the elements of strangulation or simple assault, or explain
how the evidence presented by the Commonwealth was insufficient to
establish such elements. Moreover, Kesner’s brief lacks any reference to the
record or to the particular evidence presented, and is wholly devoid of
citations to any supporting case law discussing the sufficiency of the
evidence required to establish strangulation and/or simple assault. See
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007)
(appellant’s duty is to present arguments sufficiently developed for our
-6-
J-A16009-21
review; we will not act as counsel and will not develop arguments on behalf
of appellant; brief must support claims with pertinent discussion, references
to record, and citations to legal authorities); see also Commonwealth v.
Clayton, 572 Pa. 395, 816 A.2d 217, 221 (Pa. 2002) (undeveloped claims
are waived and unreviewable on appeal). Therefore, this claim is waived.
Kesner’s sufficiency challenge is also waived because he failed to
specify in his Rule 1925(b) statement the elements of his crimes that the
Commonwealth allegedly failed to prove. See Commonwealth v. Gibbs,
981 A.2d 274, 281 (Pa. Super. 2009) (holding that when challenging the
sufficiency of the evidence on appeal, the appellant’s Rule 1925(b)
statement must specify the element or elements upon which the evidence
was insufficient in order to preserve the issue for appeal). Thus, his first
issue entitles him to no relief.
In his second issue, Kesner challenges the trial court’s admission of a
portion of a transcribed prison telephone conversation that he had with an
unidentified male about Ms. Seiders’ testimony. He claims the conversation
constitutes inadmissible hearsay.
Our Supreme Court has explained that “[h]]earsay, which is a
statement made by someone other than the declarant while testifying at trial
and is offered into evidence to prove the truth of the matter asserted, is
normally inadmissible at trial.” Commonwealth v. Ali, 10 A.3d 282, 315-
16 (Pa. 2010); see also Pa.R.E. 801(c), 802. However, out-of-court
-7-
J-A16009-21
statements may be admissible if they offered for some relevant purpose
other than to prove the truth of the matter asserted. Ali, 10 A.3d 282, 316.
For example, an out-of-court statement regarding an attempt by a
defendant to interfere with a witness’s testimony is admissible to show a
defendant’s consciousness of guilt. See Commonwealth v. Johnson, 668
A.2d 97, 104 (Pa. 1995) (concluding that a witness’s testimony that a
defendant offered him a bribe not to testify at trial was admissible to show
the defendant's consciousness of guilt); see also Commonwealth v.
Goldblum, 447 A.2d 234, 243 (Pa. 1982) (citing cases for the proposition
that the Commonwealth may demonstrate consciousness of guilt through
attempts by a defendant to intimidate or influence a witness).
Kesner maintains that, during the direct examination of Officer
Guarnieri, the trial court permitted the officer to read a portion of a phone
conversation that Kesner had with an unidentified male while Kesner was in
prison. Kesner argues that “[s]uch statements were hearsay, as they were
not witnessed by either [the prosecutor] or the officer, and the male was
never identified or called to testify, depriving [Kesner] his right to cross
examine his accuser, in this instance, the unidentified male.” Kesner’s Brief
at 26-27. Kesner claims that the Commonwealth was clearly eliciting
hearsay testimony from Officer Guarneri, which was prejudicial to Kesner.
According to Kesner, he did not have the opportunity to cross examine the
unidentified male regarding the context of the conversation or its meaning,
-8-
J-A16009-21
or whether any of the information in the conversations was relayed to Ms.
Seiders.
Kesner further claims that the Commonwealth presented the testimony
after Ms. Seiders had already testified in the Commonwealth’s case-in-chief.
Kesner points out that the Commonwealth did not question Ms. Seiders
regarding whether Kesner had tried to influence her testimony through a
third party and presented no other evidence in support of that theory of their
case. Kesner points out that the trial court sustained his objection to the
admission of further prison phone conversations when the court realized that
the conversations were with an unidentified male; however, Kesner asserts
that “by that time, the damage was already done and [he] was prejudiced.”
Id. at 30.
The trial court considered Kesner’s second issue and concluded that it
lacked merit. It reasoned:
In this case, the Commonwealth introduced a portion of a
prison telephone call made by [Kesner] to an unknown male. A
portion of this conversation was transcribed then read during
trial by Officer Guarnieri. [Kesner] objected to the reading of
the transcript because of hearsay. As established in
Commonwealth v. Johnson, [838 A.2d 663, 680 (Pa. 2003),]
courts generally admit this type of evidence as non-hearsay to
show a defendant’s consciousness of guilt by interfering with a
witness’ testimony. [Kesner] argues that this violated his right
to confront a witness, however, this evidence is not being
introduced for its truth. The evidence is being introduce solely
to show that there was an attempt to interfere with a witness’
testimony.
-9-
J-A16009-21
Trial Court Opinion, 12/1/20, at 11-12 (citations to the record omitted).2
We discern no abuse of discretion by the trial court in admitting the
portion of the prison phone conversation between Kesner and the
unidentified male. In that conversation, Kesner told the unidentified male to
tell Ms. Seiders that “the only thing she can do is go in to [sic] court and say
that none of this happened.” N.T., 3/9/20, at 127. Kesner then told the
unidentified male to tell Ms. Seiders that she could state that Kesner slapped
her, but she needed to state that the altercation happened at Kesner’s
house, rather than at her house. Id. at 127-28. Kesner further indicated to
the unidentified male that Ms. Seiders needed to state that the photographs
of her black-and-blue marks were “fake.” Id. at 128. Finally, Kesner told
the male that, if Ms. Seiders did not provide such testimony, then “I’m
done.” Id. at 128.
As the trial court explained, the statements in question were not being
offered for the truth of the matter asserted, but to demonstrate that Kesner
was conscious of his own guilt and that he attempted to interfere with Ms.
Seiders’ testimony by influencing her to provide false testimony at his trial.
Thus, the statements in question were non-hearsay and admissible as
evidence of Kesner’s consciousness of guilt. See Johnson, 668 A.2d at
____________________________________________
2 The trial court additionally pointed out that Kesner did have an opportunity
to cross-examine Ms. Seiders, and he also had the option to call Ms. Seiders
on direct but elected not to do so. See Trial Court Opinion, 12/1/20, at 12.
- 10 -
J-A16009-21
104; see also Goldblum, 447 A.2d at 243. Accordingly, Kesner’s second
issue merits no relief.
In his third issue, Kesner challenges the trial court’s denial of his
request for a jury instruction on self-defense. “Our standard of review when
considering the denial of jury instructions is one of deference -- an appellate
court will reverse a court’s decision only when it abused its discretion or
committed an error of law.” Commonwealth v. DeMarco, 809 A.2d 256,
260-61 (Pa. 2002).
In reviewing a challenge to the trial court’s refusal to give a specific
jury instruction, we are mindful of the following principles:
[I]t is the function of this [C]ourt to determine whether the
record supports the trial court’s decision. In examining the
propriety of the instructions a trial court presents to a jury, our
scope of review is to determine whether the trial court
committed a clear abuse of discretion or an error of law which
controlled the outcome of the case. A jury charge will be
deemed erroneous only if the charge as a whole is inadequate,
not clear or has a tendency to mislead or confuse, rather than
clarify, a material issue. A charge is considered adequate unless
the jury was palpably misled by what the trial judge said or
there is an omission which is tantamount to fundamental error.
Consequently, the trial court has wide discretion in fashioning
jury instructions. The trial court is not required to give every
charge that is requested by the parties and its refusal to give a
requested charge does not require reversal unless the appellant
was prejudiced by that refusal.
Commonwealth v. Brown, 911 A.2d 576, 582-83 (Pa. Super. 2006)
(quotation marks omitted).
Defendants are generally entitled to instructions that they have
requested and that are supported by the evidence. See Commonwealth v.
- 11 -
J-A16009-21
Hairston, 84 A.3d 657, 668 (Pa. 2014). However, “[i]nstructions regarding
matters which are not before the court or which are not supported by the
evidence serve no purpose other than to confuse the jury.”
Commonwealth v. Patton, 936 A.2d 1170, 1176 (Pa. Super. 2007). Thus,
“[a] trial court shall only instruct on an offense where the offense has been
made an issue in the case and where the trial evidence reasonably would
support such a verdict.” Commonwealth v. Browdie, 671 A.2d 668, 673-
74 (Pa. 1996). The reason for this rule is that instructing the jury on legal
principles that cannot rationally be applied to the facts presented at trial
may confuse them and place obstacles in the path of a just verdict. See
Hairston, 84 A.3d at 668.
Self-defense is permitted under our statutes as follows: “[t]he use of
force upon or toward another person is justifiable when the actor believes
that such force is immediately necessary for the purpose of protecting
himself against the use of unlawful force by such person on the present
occasion.” 18 Pa.C.S.A. § 505(a).
Before the issue of self-defense may be submitted to a jury for
consideration, a valid claim of self-defense must be established as a matter
of law, and this determination must be made by the trial judge. See
Commonwealth v. Mayfield, 585 A.2d 1069, 1070 (Pa. Super. 1991).
Such claim may consist of evidence adduced by the defendant as part of his
case, or conceivably, may be found in the Commonwealth’s own case in chief
- 12 -
J-A16009-21
or be elicited through cross-examination. Id. at 1070-71. However, such
evidence from whatever source must speak to three specific elements for a
claim of self-defense to be placed in issue for a jury’s consideration:
a) the slayer was free from fault in provoking or continuing the
difficulty which resulted in the slaying; b) that the slayer must
have reasonably believed that he was in imminent danger of
death or great bodily harm, and that there was a necessity to
use such force in order to save himself therefrom; and c) the
slayer did not violate any duty to retreat or to avoid the danger.
Id. at 1071 (citations omitted). If there is any evidence from whatever
source that will support these three elements, then the decision as to
whether the claim is a valid one is left to the jury and the jury must be
charged properly thereon by the trial court. Id.Kesner contends that the trial court abused its discretion by refusing to
instruct the jury on self-defense. According to Kesner, there was evidence
that Ms. Seiders allowed him into her home, then physically attacked him.
According to Kesner, Ms. Seiders testified that she had been hitting him all
over, and that testimony was supported by a portion of her prior written
statement to police. Kesner further claims that Ms. Seiders additionally
testified that Kesner, in an attempt to stop her attack, pinned her to the
bed. Kesner argues that, even if there was evidence presented to the
contrary, the finder of fact should have been allowed to make a
determination of what witnesses or evidence to believe or disbelieve.
Kesner maintains that, by denying him a self-defense instruction, the jury
- 13 -
J-A16009-21
was prevented from making a determination as to whether Kesner had a
legitimate defense, thereby exonerating him from the charges.
Here, Kesner failed to discuss any of the three specific elements for a
claim of self-defense to be placed in issue for a jury’s consideration. Nor has
he made any reference to the record, or provided this Court with a pertinent
discussion of supporting case law explaining why the evidence in this
particular case warranted a self-defense instruction. Thus, Kesner’s third
issue is waived for lack of development. See Hardy, 918 A.2d at 771; see
also Clayton, 816 A.2d at 221.
Moreover, the trial court considered Kesner’s third issue and
determined that it lacked merit. It reasoned:
[Kesner’s] defense strategy focused on Ms. Seiders’
testimony that she began hitting [Kesner] first. This is in
contradiction to Ms. Seiders’ written statement to police taken
the day after the incident took place. Regardless of when Ms.
Seiders began hitting [Kesner], it is clear that the testimony
presented at trial did not establish the requisite conditions to
invoke a self-defense claim. First, [Kesner] was not free from
fault in provoking Ms. Seiders as she testified that he would not
leave her apartment when she asked him to. Ms. Seiders’
written statement further states that [Kesner] forced his way
into Ms. Seiders’ apartment after knocking and yelling loudly.
Second, [Kesner] could not have reasonably believed he was in
imminent danger of death or great bodily harm. Nor could
[Kesner] have reasonably believed choking and punching Ms.
Seiders was necessary to save himself from such imminent
danger of death or great bodily harm. [Kesner] was able to pin
Ms. Seiders to her bed, impede her breathing, and strike her
face with such force that she fell to the ground. It is also
important to note that [the] defense stipulated to the fact that
[Kesner] did not have any injuries to his body. It is clear from
the facts that it was not reasonable for [Kesner] to believe he
was in imminent danger of death or great bodily harm. Finally,
- 14 -
J-A16009-21
[Kesner] could have easily retreated from the situation by
leaving Ms. Seiders’ apartment when she asked or by not forcing
his way into her apartment.
Viewing the evidence in the light most favorable to
[Kesner], [Kesner] was not entitled to a self-defense jury
instruction because the jury was not afforded evidence on which
to base a finding of self-defense.
Trial Court Opinion, 12/1/20, at 17-18 (unnecessary capitalization and
citations to the record omitted).
We discern no abuse of discretion by the trial court in denying Kesner’s
request for a jury instruction on self-defense. Thus, had the issue not been
waived for lack of development, we would have determined that it was
meritless.
In his final issue, Kesner challenges the trial court’s ruling permitting
the Commonwealth to amend the criminal information. Pennsylvania Rule of
Criminal Procedure 564 governs the amendment of a criminal information
and provides as follows:
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 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 (effective December 21, 2017).
When presented with a question concerning the propriety of an order
authorizing the amendment of an information, we consider the following:
- 15 -
J-A16009-21
Whether 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
appraised 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.
Commonwealth v. Beck, 78 A.3d 656, 660 (Pa. Super. 2013) (citations
and some capitalization omitted). Stated another way, the test is “whether
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.”
Commonwealth v. Sinclair, 897 A.2d 1218, 1221 (Pa. 2006).
When the trial court exercises its discretionary power to allow
amendment of the information, a defendant will be afforded relief only if the
defendant was prejudiced by the amendment. See Commonwealth v.
Veon, 109 A.3d 754, 768 (Pa. 2015); see also Commonwealth v.
Witmayer, 144 A.3d 939, 947 (Pa. Super. 2016). If there is no prejudice,
- 16 -
J-A16009-21
the amendment of the information is allowed up to and including the day of
trial. See Sinclair, 897 A.2d at 1224.
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.
Beck, 78 A.3d at 660.
Kesner argues that Pennsylvania allows an amendment to the
information prior to trial, but not after a verdict has been rendered, as was
permitted in this case. Kesner maintains that, after the jury was charged
and sent out for deliberations, the trial court noticed that the strangulation
listed on the criminal information was a misdemeanor pursuant to 18
Pa.C.S.A. § 2718 (d)(1), rather than a felony pursuant to subsection (d)(2).
Kesner indicates that the Commonwealth then moved to amend the
information to change the strangulation count to a felony. According to
Kesner, after a brief discussion on the record, the trial court denied the
Commonwealth’s motion and assured Kesner that the strangulation would
remain a misdemeanor. Kesner asserts that, after the jury returned its
verdict, the trial court changed its decision when it was informed that the
- 17 -
J-A16009-21
guidelines on the simple assault conviction were only one to two years in
prison. Kesner maintains that the trial court then instructed the parties to
file briefs on the amendment of the criminal information to grade the
strangulation count as a felony.
Kesner argues that, even though he was aware that the nature of the
charges against him indicated a potential felony strangulation count, to allow
an amendment of the information after a jury has returned its verdict
prevents a criminal defendant from being fully aware of the penalties he is
facing if he chooses to proceed to trial. Kesner contends that a criminal
defendant, exercising his right to trial by jury, should be guaranteed the
certainty of what charges and potential punishments he is facing as soon as
jury selection begins. Kesner asserts that, permitting the Commonwealth to
amend a count to change the maximum punishment and guideline range of
sentences after a jury is seated, or even after a jury returns a verdict, is
patently unfair.
Kesner further contends that the trial court’s decision presents the
appearance of ill will, bias, prejudice, or partiality. He claims that the court
only considered amending the strangulation count to a felony (with a
maximum punishment of ten years) after the jury acquitted Kesner of
burglary (which carried a twenty-five-year mandatory sentence), and after
the court realized that the guidelines for simple assault were only one to two
years in prison.
- 18 -
J-A16009-21
In considering Rule 564, we observe that the rule itself provides no
limitation of time for the amendment of a bill of information. However, Rule
564 is located in Chapter 5 addressing “Pretrial Procedures in Court Cases.”
This context clearly indicates that amendment of a bill of information is
intended to occur pretrial. See Sinclair, 897 A.2d at 1224 (holding that, if
there is no showing of prejudice, amendment of information to add an
additional charge is proper even on the day of trial); see also
Commonwealth v. Picchianti, 600 A.2d 597, 599 (Pa. Super. 1991)
(same); Commonwealth v. Womack, 453 A.2d 642 (Pa. Super. 1982)
(same).
Notwithstanding, our review has disclosed instances in which our
appellate courts have affirmed the amendment of bills of information during
and even after trial where there is no showing of prejudice. See Beck, 78
A.3d at 660 (upholding amendment of information after the
Commonwealth’s case in chief); Commonwealth v. Mentzer, 18 A.3d
1200, 1202 (Pa. Super. 2011) (upholding amendment of information at
sentencing); Commonwealth v. Page, 965 A.2d 1212, 1223 (Pa. Super.
2009) (upholding amendment of information after the close of evidence, but
prior to closing arguments); Commonwealth v. Roser, 914 A.2d 447, 453
(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
- 19 -
J-A16009-21
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).
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,
727 A.2d 541, 543 (1999) (holding amendment violating Rule 564 only fatal
when variance between original and new charges prejudices appellant).
In the instant matter, the trial court considered the six prejudice
factors outlined in Beck, supra, and determined that Kesner was not
prejudiced by the late amendment. The court reasoned:
In this case, the first and second factors listed above both
weigh in favor of finding no prejudice towards [Kesner]. First,
the factual scenario remains the same regardless of whether the
charge is a misdemeanor or a felony. As discussed above, a
person commits the crime of strangulation, “if the person
knowingly or intentionally impedes the breathing or circulation of
blood of another person by: (1) applying pressure to the throat
or neck. . . .” 18 Pa.C.S.A . § 2718 (a)(1). The difference
between the charge as a felony instead of a misdemeanor is the
added determination of whether the defendant committed the
crime “against a family or household member.” 18 Pa.C.S.A. §
2718(d)(2). The fact that [Kesner] and Ms. Seiders’ were in a
relationship does not change the factual scenario nor is it a fact
that was previously unknown to [Kesner] as [he] had personal
knowledge of his relationship with Ms. Seiders. Further,
[Kesner] was on notice that the Commonwealth intended to
address the fact that they were in a relationship as the affidavit
of probable cause indicated that [Kesner] and Ms. Seiders were
formerly in a relationship.
The third factor listed above is not relevant in this case as
[Kesner] waived his preliminary hearing.
- 20 -
J-A16009-21
The fourth factor listed above weighs in favor of finding no
prejudice towards [Kesner]. The basic description of both the
charges and the allegations of the crime of strangulation
remained the same. The added element regarding the
relationship between [Kesner] and Ms. Seiders does not change
the basic description of the strangulation charge.
The fifth factor listed above also weighs in favor of finding
no prejudice towards [Kesner]. [Kesner’s] defense strategy
would not have changed if the Commonwealth had amended the
information before trial rather than afterwards. During trial,
[Kesner’s] defense strategy focused on the argument that the
incident did not occur at all and that Ms. Seiders lied to Officer
Guarnieri. The added fact that [Kesner] and Ms. Seiders were in
a relationship does not necessitate a change in defense strategy.
[Kesner] noted his relationship with Ms. Seiders many times
during trial and clearly wanted the jury to know about their
relationship status. Further, [Kesner] was provided the jury
instructions before trial began. The jury instructions included
the added interrogatory asking the jury whether [Kesner] and
Ms. Seiders were in a relationship. Additionally, it is important
to point out that [Kesner] admitted in his Motion for
Reconsideration that he believed that he was charged with felony
strangulation before trial began. [Kesner] prepared for trial with
this belief.
Finally, the sixth factor listed above weighs in favor of
finding no prejudice towards [Kesner]. In this case, [Kesner]
had ample notice and time to prepare a response. The
Commonwealth filed its motion to amend the information on
March 18, 2020. This court initially granted the motion on March
19, 2020. [Kesner] filed a pro se correspondence that this court
treated as a motion for reconsideration. This court then directed
the Commonwealth to respond to the motion. After careful and
thorough consideration of the relevant rule and case law, this
court denied [Kesner’s] motion for reconsideration. When
[Kesner] filed an addendum to his motion, this court, again,
directed the Commonwealth to respond and thoroughly
considered the addendum and response. This court ultimately
denied the addendum and proceeded with sentencing. [Kesner]
had ample notice and time to prepare a response.
Trial Court Opinion, 12/1/20, at 14-16 (unnecessary capitalization omitted).
- 21 -
J-A16009-21
Under these circumstances, we conclude that Kesner has not
established prejudice. As the trial court explained, Kesner was clearly aware
of the facts underlying the charges in the amended information from the
time charges were first brought against him. Indeed, Kesner candidly
admits that “he was aware that the nature of the charges against him
indicated a potential felony strangulation count.” Kesner’s Brief at 21.
While the amendment changed the grading of Kesner’s strangulation
conviction from a misdemeanor to a felony, and increased the applicable
period of incarceration, a change in grading or increase in penalties does not
necessarily cause prejudice. See Commonwealth v. Picchianti, 600 A.2d
597, 599 (Pa. Super. 1991) (holding that the mere possibility amendment of
an information may result in a more severe penalty due to the addition of
charges is not, of itself, prejudice); see also Commonwealth v. Jones,
466 A.2d 691, 692 (Pa. Super. 1983) (holding that a change in the grade of
a criminal mischief charge does not amount to an additional charge or to the
charging of another offense). Therefore, as we find Kesner had notice of the
facts surrounding the amended information and was not prejudiced by the
amendment, we conclude that the trial court did not err in allowing the post-
verdict amendment. Accordingly, Kesner is due no relief on his final issue.
Judgment of sentence affirmed.
- 22 -
J-A16009-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2021
- 23 -