Commonwealth v. DeSumma

BROSKY, Judge:

This is an appeal from the judgment of sentence imposed after appellant’s jury conviction of simple assault.

Appellant’s complaint to this Court is that the trial court erred in permitting the Commonwealth to make a substantive amendment to the information by changing the name of the victim prior to the commencement of trial where such an amendment violates Pa.R.Crim.P. 229 by working an irreparable prejudice to appellant’s right to a fundamentally fair trial. Finding this argument lacking in foundation, we affirm. Although we look to the well-reasoned opinion of the trial court, we wish to further elaborate on its analysis.

Evidence adduced at trial revealed that appellant knew from the time of the preliminary hearing, at which he was present, that four passengers were in the car in addition to the original victim-driver (N.T. 35). Moreover, the evidence demonstrated that appellant conceded that the original victim, Mr. O’Hara, testified at the preliminary hearing that appellant pointed the gun at the car (N.T. 135). Yet, appellant urges us to create a per se rule of prejudice, without asserting specific reasons therefor, because allowance of an amendment which charges no additional or different offense materially altering the elements or defenses to the original crime but which merely seeks to add the names of victims is requested and granted just before trial. This we decline to do.

In Commonwealth v. Johnson, 336 Pa.Super. 1, 485 A.2d 397 (1985), relied upon by the trial court, this court held that the defendant was not surprised by the amendment because neither the factual scenario nor the nature of the charges had been altered thereby, thus obviating any prejudice to him.

Neither may appellant here claim surprise. The nature of the instant amendment worked no change in the factual scenario nor in the description of the charges. Hence, the amendment here did not charge an additional or different offense which would necessarily implicate a last-minute alteration in defense strategy. Commonwealth v. Stanley, 265 Pa.Super. 194, 401 A.2d 1166 (1979), aff'd, 498 Pa. 326, 446 A.2d 583 (1982). Accord Commonwealth v. Tillia, 359 Pa.Super. 302, 518 A.2d 1246 (1986). It merely added the names of victims of whose existence and role in the criminal scenario appellant was cognizant since the preliminary hearing. Commonwealth v. Johnson, supra. In our view, Commonwealth v. Johnson, supra, is squarely apposite to the matter now before us.

The case sub judice is unlike Commonwealth v. Thomas, 278 Pa.Super. 39, 419 A.2d 1344 (1980), where substitution of a named co-conspirator for another one later implicated was held prejudicial because the amendment alleged a different set of events. There, the complaint alleged defendant to have conspired with Hart on the basis of an initial photo array from which the victim chose Hart’s photo. Hart was found not to be implicated, whereupon the victim was shown another array and identified Kocher as the co-conspirator. At the preliminary hearing, the Commonwealth sought to amend the complaint by substituting the name of Kocher for that of Hart. This was considered to be a substantive defect calling for discharge under former Rule 150 distinguishing between substantive and informal defects. In so holding, our court distinguished Thomas from Commonwealth v. Brown, 229 Pa.Super. 67, 323 A.2d 845 (1974), on the basis that the former charged conspiracy with a specifically named co-conspirator, implicating a unique factual situation and defense strategy, which the amendment, if allowed, would have altered. In Brown, on the other hand, the name of the co-conspirator was omitted from the indictment, yet the defendant knew of his identity several months before trial. Accordingly, this court held that no prejudice resulted from allowance of the amendment.

In any event, if appellant believed that the Commonwealth’s requested amendment worked a genuine surprise and would prejudice his defense, his remedy at that time was to ask the trial court for a continuance to enable him to adequately prepare his defense. Pa.R.Crim.P. 301. See Commonwealth v. Souder, 176 Pa.Super. 523, 108 A.2d 831 (1954). But compare Commonwealth v. Brown, supra (no abuse of discretion to refuse motion for continuance because of amendment of indictment to add name of co-conspirator where appellant was aware several months before trial of the name of the co-conspirator).

Judgment of sentence affirmed.

WIEAND, J., filed a dissenting opinion.