Com. v. Ogden, T.

J-A18039-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TIM A. OGDEN : No. 138 WDA 2020
Appeal from the Order Dated January 16, 2020
In the Court of Common Pleas of Clearfield County Criminal Division at
No(s): CP-17-CR-0000494-2018
BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED AUGUST 18, 2020
The Commonwealth appeals from the order denying its motion to amend
the bill of information filed against Appellee Tim A. Ogden. The
Commonwealth argues that the trial court erred in concluding that Appellee
would suffer prejudice if it granted the Commonwealth’s motion to add two
additional charges, which it filed two days before trial. We affirm.
The trial court summarized the facts and procedural history of this case
as follows:
On December 3, 2017, the state police received a report that an
automobile accident had occurred on Rockton Mountain Highway,
State Route 322, Pine Township, Clearfield County. Trooper Kerry
Jodon responded to the scene at approximately 4:08 p.m. Two
vehicles had been involved in the accident, [one] being a Ford
Ranger and [the other] a Buick Rendezvous. Major damage to
both vehicles was observed by Trooper Jodon. The operator of
the Ford Ranger, [Appellee], was being transported to Penn
Highlands DuBois Hospital. An EMT at the scene advised Trooper
Jodon that an open Budweiser can was seen in [Appellee’s]
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console, [Appellee] stumbled as he exited his vehicle and smelled
of alcohol.
The operator of the Buick Rendezvous was William Bloom. Mr.
Bloom advised police that he was traveling west on SR-322 at
approximately 35 mph. He saw [Appellee’s] vehicle start to slide
broadside, then slide completely broadside into Mr. Bloom’s lane.
The Bloom vehicle then hit the passenger side of [Appellee’s]
vehicle head on. Mr. Bloom’s wife and passenger, Donna Bloom,
age 78, suffered a serious wrist injury which required use of an
affixation stabilizer. This necessitated Mrs. Bloom to have the
device attached to her wrist with pins for a period of six (6) weeks.
Trooper Jodon interviewed [Appellee] at the hospital at 5:45 p.m.
It was observed that [Appellee]’s speech was slurred and his eyes
were glassy; [Appellee] also had the smell of alcohol. Ultimately,
[Appellee] refused a request for a chemical blood test. Trooper
Jodon obtained a search warrant, and hospital testing showed
[Appellee]’s blood alcohol content was 0.135%. From his
investigation, Trooper Jodon believed that [Appellee] was
responsible for the accident and [Mrs.] Bloom’s injuries.
On April 16, 2018, Trooper Jodon filed criminal charges against
[Appellee] at the office of Magisterial District Judge Patrick Ford.
[The charges included aggravated assault by vehicle while driving
under the influence (DUI)—75 Pa.C.S. § 3735.1(a); DUI—general
impairment, 75 Pa.C.S. § 3802(a)(1); DUI—high rate of alcohol,
75 Pa.C.S. § 3802(b), and summary offenses including driving at
an unsafe speed—75 Pa.C.S. § 3361, careless driving—75 Pa.C.S.
§ 3714, and reckless driving—75 Pa.C.S. § 3736.]
The preliminary hearing was set for May 18, 2018, which was
waived by [Appellee, who was pro se]. The case proceeded
through the criminal court system with various continuances being
requested by [Appellee] and [Appellee’s] counsel. Ultimately,
[Appellee] waived his right to a jury trial and [a bench trial was
scheduled for] January 16 and 17, 2020.
Trial Ct. Op., 4/11/20, at 1-2 (footnote omitted).
Two days before trial was scheduled to begin, the Commonwealth filed
a motion to amend the criminal information to include two additional charges:
aggravated assault by vehicle and recklessly endangering another person
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(REAP).1 The trial court agreed to hear the motion before Appellee’s trial on
January 16, 2020.
At the motions hearing, the Commonwealth argued:
As far as the law states, in order to amend the information, so
long as it does not change the offense and is arising from the same
set of facts and circumstances, then normally that would be
permitted by the court.
As far as the aggravated assault [by vehicle], there’s already an
aggravated assault by vehicle while DUI charge, so this [new
charge] would essentially be the same offense without the DUI.
As far as [REAP] . . . the original information charged reckless
driving, and the serious bodily injury offense is contained within
the aggravated assault by vehicle while DUI. So, essentially, the
elements are the same and the factual circumstances are the
same.
N.T. Mot. Hr’g, 1/16/20, at 3.
Appellee then responded:
Respectfully, the defense would oppose the amendment to the
information. I received this proposition and motion for
amendment on January 14th, two days prior to trial.
Your Honor, these two charges that are being added are not
lesser-included offenses but, in fact, different offenses. As [the
Commonwealth] has stated, they require a gross negligent aspect
and a recklessness that my client and I have not had an
opportunity to, obviously, prepare for.
The [original] aggravated assault [charge] requires the DUI. Your
Honor, I would cite Commonwealth v. Quinones[, 200 A.3d
1004 (Pa. Super. 2018)] . . . in that case, the court recognized
that a last-minute change to the information can, in fact, put the
defendant in a position of prejudice due to the fact that there’s
not adequate time to prepare for these new charges. Had this
amendment been made anytime during the past two years, I
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1 75 Pa. C.S. § 3732.1(a) and 18 Pa.C.S. § 2705, respectively.
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supposed that we would have been able to argue it and have the
[trial c]ourt make a decision and, at that point, had an opportunity
to prepare our defense.
But at this point, Your Honor, we would request that the [trial
c]ourt leave the information as filed by the [Commonwealth].
Id. at 3-4.
The trial court explained that the Commonwealth “had a very extensive
period of time to . . . file such a motion to amend” and “that doing it a couple
days before the actual trial does cause prejudice to the defense.” Id. at 4.
After the trial court stated that it would deny the Commonwealth’s motion and
proceed to trial, the Commonwealth requested to certify the matter for an
interlocutory appeal pursuant to Pa.R.A.P. 311(d). Id. at 5.
After the trial court sought to clarify the purpose of the Commonwealth’s
amendment, the Commonwealth explained:
Your Honor, the concern, with candor – in the interest of candor
towards the tribunal, and I have provided this information to
[Appellee’s counsel] once I found out about it, there’s an issue
with the blood testing at the hospital [that performed Appellee’s
blood draw] . . .
I received an email a couple of days ago, this week sometime,
when I was asking for information about [the hospital’s testing]
equipment . . . [the hospital representative stated that] the
calibration documents had been purged. The other issue was this
was an alcohol DUI; and because it was a medical draw, I didn’t
have . . . confirmation as to whether the draw was done with
alcohol or Betadine.[2] Therefore, that was an issue as far as the
alcohol DUI goes.
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2 When conducting a blood draw for a DUI case, providers must use special
Betadine swabs for preparation, not alcohol swabs, so that the alcohol level in
the person’s blood is not altered. See 10A West’s Pennsylvania Practice,
Driving Under the Influence § 26:5 (2019 ed.).
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I do have an issue of a refusal for the DUI, but there was a DL-26
that was filed – that was read to Appellee . . . which for some
reason, hasn’t been located.
So we do possibly have a refusal – we have a refusal; but as far
as [Appellee’s counsel], I know he’s a good defense attorney and
is going to raise the issue that we don’t have the DL-26 that was
read to Appellee. I do have the testimony from the trooper.
So the DUI may not – I may not have evidence sufficient . . . to
prove the DUI. If I don’t have the DUI, I don’t have the
agg[ravated] assault by vehicle while DUI.
Id. at 6-7.
The trial court responded:
With all due respect to what you’re saying, all of this information
that you’re relaying should have been determined by the
Commonwealth a considerable period of time ago.[3] And basically
from what you’re saying, you’re making a case for the defense as
to the high level of prejudice that is to the defense under the
circumstances, by wanting to come in here and amend the
information immediately before trial starts.
Id. at 7.
After denying the Commonwealth’s motion to amend the information,
the trial court took a brief recess for the Commonwealth to provide legal
authority under which it could take an interlocutory appeal. Id. Ultimately,
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3 The trial court acknowledged that a new district attorney had recently been
sworn in and that many of the assistant district attorneys were new. See N.T.
Mot. Hr’g at 7. However, the trial court explained that “the change of the DA
regime from one to the other in no way affects the duties and responsibilities
that the Commonwealth, as its own entity, has in its dealings with this case
or any other case.” Id. at 8. Further, the trial court indicated that it would
not “use that as an excuse in regard to the procedural rights of [Appellee] and
defense counsel.” Id.
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the trial court relied on Commonwealth v. Brister, 16 A.3d 530, 533-34 (Pa.
Super. 2011) for the proposition that the Commonwealth may appeal an
interlocutory order as of right where it certifies that the order will terminate
or substantially handicap the prosecution. Id. at 13.
The Commonwealth filed a timely notice of appeal4 on January 27, 2020
and subsequently filed a court-ordered Pa.R.A.P. 1925(b) statement. The trial
court filed a Rule 1925(a) opinion asserting that it properly denied the
Commonwealth’s motion.
On appeal, the Commonwealth raises one issue:
Did the trial court err when it denied the Commonwealth’s motion
to amend information?
Commonwealth’s Brief at 6.
Initially, we must address our jurisdiction over the Commonwealth’s
appeal. See Commonwealth v. Gaines, 127 A.3d 15, 17 (Pa. Super. 2015)
(en banc) (stating that “[w]e may raise issues concerning our appellate
jurisdiction sua sponte.” (citation omitted)). Generally, Rule 311(d) is
“invoked in appeals addressing the admission or exclusion of evidence.”
Commonwealth v. Woodard, 136 A.3d 1003, 1005 (Pa. Super. 2016)
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4 The Commonwealth certified that the trial court’s order denying its motion
to amend the information would substantially handicap the prosecution. See
Pa.R.A.P. 311(d) (stating that “[i]n a criminal case, under the circumstances
provided by law, the Commonwealth may take an appeal as of right from an
order that does not end the entire case where the Commonwealth certifies in
the notice of appeal that the order will terminate or substantially handicap the
prosecution.”).
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(citation omitted). However, “[i]n addition to evidentiary rulings, appellate
courts have recognized the right of the Commonwealth to appeal several types
of non-evidentiary pretrial orders.” Id. (citations omitted). Nonetheless, we
“will not accept blindly the Commonwealth’s certification of substantial
hardship when appeal is sought for non-evidentiary interlocutory orders.” Id.
(citations and quotation marks omitted).
Here, the Commonwealth certified that the trial court’s order would
substantially handicap its prosecution pursuant to Pa.R.A.P. 311(d). Further,
prior decisions by this Court confirm that the Commonwealth has the right to
appeal from an order denying its motion to amend a criminal information. See
Commonwealth v. Medrano, 788 A.2d 422, 426 (Pa. Super. 2001) (stating
that “where an order denying the Commonwealth’s motion to amend charges
effectively precludes later review of that order on double jeopardy grounds,
the Commonwealth may appeal that order as of right.” (citation omitted));
see also Commonwealth v. Jones, 826 A.2d 900, 906 (Pa. Super. 2003)
(explaining that “[i]f the Commonwealth has no opportunity to obtain
appellate review of an adverse pre-trial interlocutory order implicating double
jeopardy concerns, such review will never occur because the Commonwealth
cannot try a defendant for a second time if the first prosecution results in an
acquittal.”). Therefore, we conclude that the Commonwealth’s appeal is
properly before us.
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We review a trial court’s decision to grant or deny a motion to amend
an information for an abuse of discretion. See Commonwealth v. Small,
741 A.2d 666, 681 (Pa. 1999). As we have explained,
[a]n 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 and some formatting altered).
Rule 564 of the Pennsylvania Rules of Criminal Procedure 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. “[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.”
Commonwealth v. Sinclair, 897 A.2d 1218, 1221 (Pa. Super. 2006)
(citation omitted). “[O]ur courts apply the rule with an eye toward its
underlying purposes and with a commitment to do justice rather than be
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bound by a literal or narrow reading of the procedural rules.” Commonwealth
v. Grekis, 601 A.2d 1284, 1289 (Pa. 1992).
When 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 amend[ment] is not permitted.
Commonwealth v. Mentzer, 18 A.3d 1200, 1203 (Pa. Super. 2011)
(citations omitted).
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 [a
defendant] by, for example, rendering defenses which might have
been raised against the original charges ineffective with respect
to the substituted charges.
Sinclair, 897 A.2d at 1223 (citation omitted).
In determining whether a defendant would suffer prejudice, we consider
the following factors:
(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
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necessitated by the amendment; and (6) whether the timing of
the Commonwealth’s request for amendment allowed for ample
notice and preparation.
Mentzer, 18 A.3d at 1203 (citation omitted).
Here, Appellee was originally charged with three summary traffic
offenses and three DUI offenses, included aggravated assault by vehicle—DUI,
which is defined as follows:
§ 3735.1. Aggravated assault by vehicle while driving
under the influence
Offense defined.—Any person who negligently causes serious
bodily injury to another person as the result of a violation of
section 3802 (relating to driving under influence of alcohol or
controlled substance) and who is convicted of violating section
3802 commits a felony of the second degree when the violation is
the cause of the injury.
75 Pa.C.S. § 3735.1(a).
The Commonwealth’s proposed amendment included two new charges,
aggravated assault by vehicle and REAP, which are defined as follows:
§ 3732.1. Aggravated assault by vehicle
(a) Offense.—Any person who recklessly or with gross
negligence causes serious bodily injury to another person
while engaged in the violation of any law of this
Commonwealth or municipal ordinance applying to the
operation or use of a vehicle or to the regulation of traffic,
except section 3802 (relating to driving under influence of
alcohol or controlled substance), is guilty of aggravated
assault by vehicle, a felony of the third degree when the
violation is the cause of the injury.
75 Pa.C.S. § 3732.1(a).
§ 2705. Recklessly endangering another person
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A person commits a misdemeanor of the second degree if he
recklessly engages in conduct which places or may place another
person in danger of death or serious bodily injury.
18 Pa.C.S. § 2705.
The Commonwealth argues that Appellee would not have been
prejudiced by the proposed amendment, as “[t]he amended charges involve
the same basic elements and evolved out of the same factual situation.”
Commonwealth’s Brief at 15-16. Further, the Commonwealth asserts that
although Appellee waived his right to a preliminary hearing, the facts
underlying the offenses have been the same throughout the proceedings. Id.
The Commonwealth concedes that the description of the charges would have
changed based on the proposed amendment, but argues that aggravated
assault by vehicle and aggravated assault—DUI have “the same elements
except the added charge has one less element (that he be convicted of DUI).
Further, the aggravated assault by vehicle offense [requires recklessness,
which is] a higher intent element.” Id. at 16. (emphases in original, some
formatting altered). Nonetheless, the Commonwealth asserts that “[t]here is
no conceivable way that the defense strategy would have changed . . . [i]f
[Appellee] intended to argue that he did not negligently cause bodily injury
then it would logically follow that he did not act recklessly or grossly
negligently.” Id. at 18. Further, with respect to the timing of the motion to
amend, the Commonwealth faults Appellee for failing to “request a
continuance in order to have time to prepare or modify his defense to the new
charges.” Id.
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Appellee responds that the Commonwealth did not act in “good faith”
when it requested to certify this matter for appeal. Appellee’s Brief at 10.
Appellee argues that “the Commonwealth was ill-prepared to proceed to trial”
and that “[b]y asking for an amendment to the information at the last minute
and filing a subsequent appeal, the Commonwealth now has many months to
prepare for trial.” Id. Relying on the trial court’s Rule 1925(a) opinion,
Appellee asserts he would have suffered prejudice if the trial court had granted
the Commonwealth’s motion to amend the information. Id. at 7.
In its Rule 1925(a) opinion, the trial court addressed its decision to deny
the Commonwealth’s proposed amendment as follows:
In the case at bar, [Appellee] was pro se during the preliminary
hearing phase and did not have a full hearing, but rather waived
the charges into court. While factors 1, 2 and 4 could be
vigorously argued on both sides, factors 5 and 6 are clear. If the
amendment to the information would have been permitted,
[Appellee] would certainly have to change the defense strategy.
The charges set forth in the original information all involved
driving under the influence as an element of the offense. The
proposed amended charges have different elements. Given the
fact that the Commonwealth admitted that there were “issues”
with the DUI charges, an amendment to the charges would force
a change in defense strategy.
Additionally, the timing of the motion to amend [the] information
did not allow for ample notice and preparation for the defense.
Had th[e trial c]ourt granted the Commonwealth’s motion, it
would have been in direct violation of Rule 564, and [Appellee]
would have had no choice but to request a continuance to
adequately prepare for trial. Therefore, it is clear that [Appellee]
would have been unfairly prejudiced had the Commonwealth’s
motion been granted. Th[e trial c]ourt acted in fairness and with
justice in denying the motion. The argument made by the
Commonwealth that the new charges have less elements and
should be easier to defend is misplaced.
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Trial Ct. Op. at 4 (footnote omitted).
Based on our review of the record, we conclude that the trial court did
not abuse its discretion in denying the Commonwealth’s motion to amend the
information. See Small, 741 A.2d at 681; see also Belknap, 105 A.3d at
10. As discussed above, the original information charged Appellee with three
DUI-related offenses, including aggravated assault by vehicle—DUI, which
required a DUI conviction as an element of the offense. See 75 Pa.C.S. §
3735.1(a). Although the new charges of REAP and aggravated assault by
vehicle were based on the same underlying incident, neither offense required
proof of a DUI. See 75 Pa.C.S. § 3732.1(a); see also 18 Pa.C.S. § 2705. As
such, the elements were materially different, and Appellee would have been
required to change his defense strategy to address the new charges. See
Mentzer, 18 A.3d at 1203. Further, given that the Commonwealth filed its
motion to amend two days before trial, Appellee did not have ample notice to
prepare. See Sinclair, 897 A.2d at 1221. Therefore, the trial court acted
within its discretion by concluding that the proposed amendment would cause
prejudice to Appellee. See id; see also Small, 741 A.2d at 681. Accordingly,
we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2020
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