Com. v. Belgrave, J.

J-A08003-23
2023 PA Super 275COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JERMAINE BELGRAVE :
:
Appellant : No. 1480 WDA 2021
Appeal from the Judgment of Sentence Entered November 19, 2021
In the Court of Common Pleas of Erie County
Criminal Division at No: CP-25-CR-0001015-2019
BEFORE: STABILE, J., SULLIVAN, J., and PELLEGRINI, J.*
OPINION BY STABILE, J.: FILED: December 28, 2023
Appellant, Jermaine Belgrave, appeals from his judgment of sentence of
7½-15 years’ imprisonment for possession with intent to deliver a controlled
substance (“PWID”), reckless endangerment, and carrying firearms without a
license.1 We affirm Appellant’s convictions, but remand for further
proceedings to correct Appellant’s sentence.
The charges against Appellant arise from a sale of drugs at a hotel in
Erie, Pennsylvania on February 9, 2019, that ended in a gunfight. The
Commonwealth presented its evidence at trial through the testimony of Erie
police officials and evidence gathered during their investigation. The evidence
demonstrates that on February 7, 2019, four males, including Appellant, drove
from Chicago, Illinois to Erie, Pennsylvania. On the same date, one of the
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. §780-113(a)(30), 18 Pa.C.S.A. §§ 2705 and 6106, respectively.
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four men, Sheldon Morales, rented a room at a Marriott Hotel in Erie with a
checkout date of February 9, 2019. The four men, including Appellant,
Morales, Baizar, and another man, stayed together in this room.
The hotel’s videotape demonstrates that at approximately 5:15 p.m. on
February 9, 2019, the four men were parked in a Chevrolet Impala in front of
the hotel. Appellant was in the front passenger seat; Baizar was in the
backseat. A dark-colored SUV arrived in the parking lot and parked
nearby. Baizar and another man exited the Impala and walked toward the
SUV. When Baizar attempted to enter the SUV, the SUV’s driver exited the
vehicle and began shooting at Baizar. Baizar ran away and dropped a
package. Appellant reacted to the gunshots by exiting the Impala and firing
two shots in the direction of the SUV. Moments later, Appellant was shot and
seriously injured.
Appellant and Baizar re-entered the Impala, which then drove
away. Subsequently, police stopped the Impala when it was exiting from a
parking garage located across from the Marriott. At that time, Baizar was
driving the Chevy Impala and Appellant was the front seat
passenger. Appellant received treatment for his injuries at a local hospital.
The package that Baizar dropped during the gunfight was found to contain
239 grams of heroin.
Appellant was charged with conspiracy to commit PWID and other
charges. Baizar was charged with conspiracy to commit PWID. At Appellant’s
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preliminary hearing, defense counsel contended that the evidence merely
showed that Appellant was present at the scene, and that his mere presence
did not demonstrate any conspiracy between him and the other occupants of
the Impala to commit PWID. N.T., 4/8/19, at 74-75. Appellant was held for
court on all charges; Baizar was held for court on the conspiracy charge. In
December 2019, Baizar pled guilty to conspiracy and was sentenced to a term
of imprisonment.
On the first morning of Appellant’s trial, the Commonwealth moved to
amend the information to charge Appellant with PWID in lieu of conspiracy to
commit PWID. N.T., 6/9/21, at 5. The Commonwealth contended it could
prosecute Appellant for PWID under a theory of accomplice liability. Id. It
asserted that the amendment in charges would not prejudice Appellant
because the Commonwealth intended to present the “exact same facts” but
simply claim that these facts made Appellant an accomplice rather than a
conspirator. Id. (“we’re saying, instead of saying he’s a conspirator, we’re
saying he’s an accomplice”). The charges of accomplice liability and
conspiracy were “completely identical,” the prosecutor continued, because
there was no “functional change” in the charges. Id. at 5-6. The prosecutor
added that “[o]ftentimes we heard jurors express confusion about the
distinction [between these charges] and I have expressed confusion about the
actual distinction.” Id. at 6. Following argument, the court verbally granted
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the Commonwealth’s motion to amend the charge of conspiracy to commit
PWID to PWID.2
During trial, the Commonwealth called Baizar as a witness. Prior to
Baizar’s testimony, outside the presence of the jury, Baizar’s counsel indicated
that Baizar intended to invoke his privilege against self-incrimination if called
to testify. N.T., 6/9/21, at 177-78. The Commonwealth sought and obtained
an order granting Baizar immunity.3 The court informed Baizar, again outside
the presence of the jury, that “no testimony, information or other evidence
directly or indirectly derived from the testimony of [Baizar during] trial may
be used against [him], including on cross-examination . . . The Commonwealth
explicitly includes the crime of perjury in this cloak of immunity.” Id. at 180.
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2 The record does not include an amended information. The Commonwealth
advised that it “doesn’t even believe we have to file an amended information
because the change is so minor.” Id. at 7. Although this Court frequently
refers to possession with intent to deliver as “PWID,” in this case, we will refer
to the amended charge as “PWID-accomplice liability” in accordance with the
theory of criminal liability advanced by the Commonwealth during trial.
3 The Judiciary Code provides that when “a witness has refused or is likely to
refuse to testify . . . on the basis of his privilege against self-incrimination,”
the district attorney “may request an immunity order from [the trial] judge,
and that judge shall issue such an order.” 42 Pa.C.S.A. § 5947(b). Following
an order of immunity, if the witness refuses to testify on the basis of his
privilege against self-incrimination, and the trial court “communicates to the
witness [the] immunity order, that witness may not refuse to testify based on
his privilege against self-incrimination.” 42 Pa.C.S.A. § 5947(c). If the
witness fails to comply with the immunity order, he “is guilty of criminal
contempt,” 42 Pa.C.S.A. § 5947(e), and may also be adjudged in civil
contempt . . . until such time as he purges himself of contempt by complying
with the order.” 42 Pa.C.S.A. § 5937(d).
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The court instructed Baizar that he no longer had a Fifth Amendment right not
to testify because the court had signed an order of immunity. Id. at 178. The
court advised Baizar that he could be held in contempt if he failed to comply
with the order of immunity. Id. at 180. Nevertheless, Baizar continued to
state that he was not going to provide testimony. Id. at 183-84.
When the jury returned to the courtroom, Baizar was called to the
stand by the prosecution. After he stated his name, the prosecutor asked
eighteen questions. In response, Baizar either stated that he refused to
answer questions or remained silent in response to all eighteen questions by
the prosecutor. N.T., 6/9/21, at 185-91. For example, the prosecutor stated:
Q. You are citizen of Belize? He does not answer. Is it fair to say
you are cousins with Mr. Belgrave? No answer. Fair to say that
you came to the City of Erie to sell heroin with Mr. Belgrave? Fair
to say that that’s what you told police during your interview...
Id. at 187. At another point, the prosecutor stated:
Fair to say you gave four separate statements back on February
7th, Mr. Baizar? No answer. Fair to say you answered questions
during those statements about what happened on February 7th
during this incident. And I’ll note no answer. Fair to say that
officers attempted to have you perform a lineup of the individuals
that robbed you and you didn’t want to participate in that because
you believe in criminals getting away with crimes? No answer.
Id. at 191. The court then asked Baizar whether “[it is] your intent not to
answer any questions today?”4 Id. at 185. Baizar answered, “It’s my
intention not to answer no questions at all.” Id. At the conclusion of the
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4 The court did not inform the jury that Baizar had been granted immunity.
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prosecutor’s questioning, defense counsel stated that he had no questions for
Baizar. The court excused Baizar from the stand without holding him in
contempt. The jury did not learn that Baizar was standing on his self-
incrimination privilege and that he had been granted immunity.
At the conclusion of trial, the court instructed the jury on the elements
of PWID-accomplice liability. N.T., 6/11/21, at 6-7. The jury found Appellant
guilty of PWID-accomplice liability, reckless endangerment, and carrying
firearms without a license. The jury did not reach a verdict on three charges
of aggravated assault and simple assault. On November 19, 2021, the court
sentenced Appellant to a term of imprisonment for conspiracy to commit PWID
and concurrent sentences of imprisonment for reckless endangerment and
carrying firearms without a license. Appellant filed a timely appeal to this
Court, and both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises two issues in this appeal:
I. Whether or not the trial court erred resulting in prejudice to the
Appellant by allowing the Commonwealth to continue questioning
the Appellant’s co-defendant, Charles Baizar, over objection of the
Appellant, when both Mr. Baizar and his attorney made it clear
[that] Mr. Baizar would not be answering any questions,
notwithstanding the fact that the trial court gave a cautionary
instruction to the jury once Mr. Baizar was excused from the
witness stand, since the questions posed to Mr. Baizar clearly
implicated the Appellant regarding the charge of unlawful delivery
of a controlled substance?
II. Whether or not the trial court erred in allowing the
Commonwealth to amend the charge of criminal conspiracy to
unlawfully deliver a controlled substance to the charge of unlawful
delivery of a controlled substance, on the day trial was to
commence, thus resulting in prejudice to the Appellant, since the
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elements or defenses to the amended charge, unlawful delivery of
a controlled substance, are materially different [from] the
elements or defenses to the charge of criminal conspiracy to
unlawfully deliver a controlled substance?
Appellant’s Brief at 5.
In his first argument, Appellant contends that the court erred by
permitting the Commonwealth to question Baizar after Baizar and his attorney
indicated prior to trial and on the first day of trial that Baizar would invoke his
Fifth Amendment privilege against self-incrimination. Baizar maintained that
his position remained unchanged even after the grant of immunity. Relying
principally on Commonwealth v. Duval, 307 A.2d 229 (Pa. 1973), Appellant
insists that Baizar’s refusal to testify prejudiced Appellant and caused the jury
to convict him based on guilt by association.
In Duval, our Supreme Court reversed the defendant’s conviction for
voluntary manslaughter and ordered a new trial because the prosecutor
summoned two witnesses to the stand with foreknowledge that they intended
to invoke their privilege against self-incrimination. The same events took
place with regard to each witness. Each witness gave her name and address
when called to the stand and then asserted her Fifth amendment privilege in
response to all other questions. Out of the jury’s presence, the trial court held
that each witness waived her privilege by testifying during prior proceedings
in the case (a grand jury proceeding and a habeas corpus hearing). The jury
returned, and the court ordered the witness to testify, but each witness
continued to refuse to testify. The court held each witness in contempt, and
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each was led off in the custody of the sheriff. Citing its then recent case of
Commonwealth v. Terenda, 301 A.2d 625 (Pa. 1973), the Court concluded
that calling these witnesses to testify was prejudicial error due to “the risk
that the jury would draw adverse inferences against the defendant.” Duval,
307 A.2d at 232. The court held that when the prosecutor attempts to
capitalize on a witness’s refusal to testify on grounds of self-incrimination,
there is a special vice: the inference to be drawn from the refusal
to testify of the defendant’s co-defendant, accomplice or
associate, has [n]o probative value whatsoever in establishing the
guilt of the defendant. It is rather an effort to use the jury to
think guilt by association.
Id. at 232-33.
The Commonwealth argued that it acted in good faith because it
honestly believed that the claim of privilege of which it had been forewarned
would not be legally sustainable on the ground that the witnesses had waived
their privilege by testifying on prior occasions. The Court rejected this
argument because, inter alia, the Commonwealth’s position was contrary to
Snyder’s Appeal, 157 A.2d 207 (Pa. 1960), which held that a witness could
invoke her Fifth Amendment privilege on the stand during trial even though
she had testified concerning the same subject in preliminary proceedings. Id.at 233 & n.5. The Court further stated that a good-faith belief was irrelevant.
The Court explained:
The witness’ known intent to invoke the privilege coupled with the
prosecutor’s opinion that the testimony sought can be
nevertheless compelled presents the risk that, as actually
occurred twice in the case at bar, the witness might prove not only
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reluctant to testify but contumacious as well. If the fact of
invocation of the privilege is, as we believe, irrelevant to the
issues and prejudicial to the defendant, it is that much more
prejudicial to permit the jury to observe that the recalcitrant
witness (a person likely to be associated in the juror’s minds with
the defendant) elects to remain silent notwithstanding the order
of the court that he testify.
In the case at bar it would have been a simple matter indeed, with
the jury already removed from the courtroom, to determine
whether the witnesses . . . would continue to assert a privilege
despite the contrary ruling by the court. Permitting the jury to
return to the courtroom and then to observe [each witness] being
cited for contempt and marched out in the custody of the sheriff
was prejudicial to the defendant.
We therefore hold that the prosecution, once informed that
a witness intends to claim a privilege against self-
incrimination, commits error in calling that witness to the
stand before the jury where the witness is a person (co-
defendant, accomplice, associate, etc.) likely to be thought
by the jury to be associated with the defendant in the
incident or transaction out of which the criminal charges
arose. Whether or not the prosecution has a good faith
belief that the assertion of privilege is legally invalid is
irrelevant; that matter can be settled outside the hearing of the
jury.
Id. at 234-35 (emphasis added).
Appellant is correct that under Duval, it is prejudicial error for a
prosecutor to call a witness to the stand knowing that the witness will invoke
their privilege against self-incrimination under circumstances where the
witness is likely to be considered as associated with the defendant with respect
to the criminal charges being tried. Nonetheless, we find Duval not applicable
here because Baizar never invoked his privilege against self-incrimination in
front of the jury.
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The prejudice to be avoided by prohibiting a prosecutor from calling an
alleged accomplice to the stand, knowing the witness will assert their privilege
against self-incrimination in the presence of a jury, is the human tendency to
treat the claim of privilege as a confession of a crime or guilt, thereby creating
an adverse inference that the defendant is unable to confront through cross-
examination. Id.; see also State v. Allen, 224 N.W.2d 237, 241 (Iowa
1974). There is a distinct danger that jurors will misconstrue a known co-
actor’s refusal to testify on Fifth Amendment grounds as evidence of the
defendant’s guilt by association. Commonwealth v. Todaro, 569 A.2d 333,
335 (Pa. 1990).5
Our Supreme Court’s decision in Todaro is sufficiently analogous to
control the outcome on this issue of privilege. In Todaro, the Commonwealth
accused the defendant of committing multiple burglaries with a co-actor
named Kinsey. During trial,
Kinsey was called to the stand by the Commonwealth. After being
sworn, he quietly turned to the trial judge and requested to plead
the Fifth, stating that he did not want to testify. The request was
deemed proper since he had not yet been sentenced on his guilty
plea.
The trial judge called counsel to side bar and informed them of
Kinsey’s request, which neither of them had heard. He granted a
recess and, out of the presence and hearing of the jury, he heard
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5 In our view, this prejudice would be exacerbated if a jury, in addition to
being informed that the witness is invoking the Fifth Amendment, also is told
the witness is doing so despite a grant of immunity, because this latter fact
would reinforce the adverse inference against the defendant of guilt by
association.
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the prosecuting attorney explain that the witness, the day before,
had indicated he would have no problem in testifying. Defense
counsel complained that he had told the prosecuting attorney two
months before that the witness would invoke his Fifth amendment
privilege and refuse to testify. He argued, therefore, that a
mistrial must be granted in accordance with the rule we have laid
down in DuVal….
Id. at 334. Counsel argued that Kinsey’s appearance and excusal from
testifying for no apparent reason prejudiced the defendant in the eyes of the
jury. Counsel maintained that since the jury knew Kinsey had certain stolen
items in his possession from the various burglaries, the jury imputed Kinsey’s
guilt to the defendant.
Our Supreme Court granted allocatur to consider whether a mistrial
must be declared where a co-actor is called as a witness by the
Commonwealth, is sworn, takes the witness stand, but then leaves the stand
without explanation to the jury. The Court granted review to determine
whether such conduct was consistent with its decisions in Duval and
Commonwealth v. Virtu, 432 A.2d 198 (Pa. 1981) (mistrial declared and
subsequent retrial barred by double jeopardy where prosecutor’s misconduct
in calling a witness to the stand knowing the witness would invoke his Fifth
Amendment privilege was found to be intentional to prejudice the defendant).
Todaro, 569 A.2d at 334. The Court found that the facts in Todaro compelled
a different result than that in Duval and Virtu, because the witness did not
invoke his self-incrimination privilege in front of the jury. The Court dismissed
the argument that Kinsey’s appearance and unexplained departure from the
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stand prejudiced the defendant as the “sheerest speculation! The jury was
just as likely to conclude that [] Kinsey had decided at the last minute to
testify against the Commonwealth and was dismissed for that reason . . .
[T]here was nothing that occurred that would be likely to cause the jury to
infer anything, one way or the other.” Id. at 336 (emphasis in original). “It
is the expressed, highlighted reference to the Fifth Amendment privilege that
may prejudice or influence a jury, not mere silence itself.” Todaro, 569 A.2d
at 336. This adverse inference does not arise when the witness refuses to
testify or remains silent and does not invoke the Fifth Amendment in front of
the jury. Id.
Like the witness in Todaro, but unlike the witnesses in Duval, Baizar
did not expressly invoke his self-incrimination privilege in front of the jury; he
simply refused to answer questions and then remained silent. Nothing about
Baizar’s refusal to answer or his remaining silent suggested that the reason
for his conduct was his assertion of his Fifth Amendment privilege. A witness
“does not expressly invoke the privilege by standing mute.” Salinas v.
Texas, 570 U.S. 178, 187 (2013) (plurality). If he desires the protection of
the privilege, he “must claim it at the time he relies on it.” Id. Just as the
jury had nothing to infer from Kinsey’s departure from the stand in Todaro,
so too there was nothing to infer from Baizar’s refusal to answer or remain
silent. Nothing in Baizar’s silence or refusal to answer gave the jury any
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reason to suspect that he was invoking his Fifth Amendment privilege.
Accordingly, Appellant is not entitled to relief on this issue.
In his second argument, Appellant claims that the trial court erred by
allowing the Commonwealth to amend the original information in violation of
Pa.R.Crim.P. 564 by changing the charge of conspiracy to commit PWID to
PWID-accomplice liability. We find no error.
On the first morning of trial, immediately before opening statements,
the Commonwealth sought leave to amend the information to charge PWID-
accomplice liability instead of conspiracy to commit PWID. Appellant objected
on the grounds that (1) the amendment was not minor because conspiracy to
commit PWID is distinct substantively from PWID-accomplice liability, (2) the
defense strategy would have to change as a result of this amendment, and
(3) the timing of the Commonwealth’s request did not give defense counsel
adequate time to prepare. N.T., 6/9/21, at 8-10. Counsel requested a
continuance if the court intended to grant the amendment. Id. at 10. The
court ruled that a continuance was unnecessary and granted the
Commonwealth’s motion to amend. Id. at 14. The court charged the jury
that Appellant could be found guilty of PWID based on accomplice liability, and
the jury returned a verdict of guilty on this count.
We review decisions to allow an amendment to the information for abuse
of discretion. Commonwealth v. Small, 741 A.2d 666, 681 (Pa. 1999).
Prior to December 21, 2017, the version of Rule 564 in effect provided:
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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 is necessary in the
interests of justice.
Pa.R.Crim.P. 564 (former version). Effective December 21, 2017, our
Supreme Court amended Rule 564 to provide:
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 Dec. 21, 2017). The Comment to amended Rule
564 states:
The rule was amended in 2016 to more accurately reflect the
interpretation of this rule that has developed since it first was
adopted in 1974. See Commonwealth v. Brown, 727 A.2d 541(Pa. 1999). See also Commonwealth v. Beck, 78 A.3d 656(Pa. Super 2013); Commonwealth v. Page, 965 A.2d 1212 (Pa.
Super. 2009); Commonwealth v. Sinclair, 897 A.2d 1218 (Pa.
Super. 2006).
Comment, Pa.R.Crim.P. 564 (“Comment”).
Rule 564’s purpose 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.” Sinclair, 897
A.2d at 1221. The three Superior Court decisions cited in the Comment
(Beck, Page, and Sinclair) list six factors that the court must weigh in
determining whether an amendment is prejudicial:
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(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; Page, 965 A.2d at 1224; Sinclair, 897 A.2d at 1221.6
Because new Rule 564 reflects the standards articulated in these decisions,
we will apply them to review whether prejudice resulted in the present case.7
Decisions from this Court provide many examples of amendments that
do not prejudice the defendant. For example, in Commonwealth v.
Whitmayer, 144 A.3d 939 (Pa. Super. 2016), a case involving sexual abuse
of a lone victim, we concluded that adding sexual misconduct charges from
Chester County “did not add any new facts or charges of which [the defendant]
was previously unaware. Both the criminal complaint and affidavit of probable
cause detailed acts of abuse occurring in both Chester County and
Montgomery County.” Id., 144 A.3d at 947. Therefore, the missing phrase,
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6 The fourth case, the Supreme Court’s decision in Brown, did not include this
list, presumably because the first three factors in the list were not implicated
in that case.
7 This Court also has applied the six-factor test in cases that went to trial after
new Rule 564’s effective date of December 21, 2017. See, e.g.,
Commonwealth v. Jackson, 215 A.3d 972, 979 (Pa. Super. 2019);
Commonwealth v. Ricci, 2023 WL 5013697, *4 (Pa. Super., Aug. 7, 2023)
(non-precedential decision).
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“County of Chester,” was “merely a defect in form,” id. at 948, and the
amendment did not violate Rule 564. Similarly, in Sinclair, a prosecution for
driving under the influence of alcohol (“DUI”), an amendment to charge the
defendant with a lower range of blood alcohol content was permitted, because
he could not demonstrate any prejudice by being charged in a lower range.
“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.”
Sinclair, 897 A.2d at 1222; see also Beck, 78 A.3d at 661 (defendant was
not prejudiced by amendment to information adding DUI-high rate of alcohol,
because he: (1) was on notice, due to prior filings, that the additional charge
would be included; (2) cross-examined Commonwealth’s witness on
information relevant to defense on this charge; (3) did not assert any specific
prejudice suffered as result of amendment; and (4) did not request
postponement to retain expert witness); Page, 965 A.2d at 1224 (defendant
was not prejudiced by amendment to information for aggravated indecent
assault charge, from a child under 18 to a child under 13, because amendment
did not require change in defense strategy, child victim was known to
defendant before trial, and defendant was aware age was element of offense).
In contrast, in Brown, our Supreme Court did find prejudice when,
immediately before trial, the Commonwealth added charges alleging rape and
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involuntary deviate sexual intercourse (“IDSI”) with an unconscious person,
and the defendant was subsequently convicted of these charges as well as
indecent assault, indecent exposure, and aggravated indecent assault. The
Court explained:
The original information included the charges of Rape and IDSI by
forcible compulsion. In order to prove the “forcible compulsion”
component of these charges, the Commonwealth was required to
establish beyond a reasonable doubt that appellant used either
physical force, a threat of physical force, or psychological
coercion, since the mere showing of a lack of consent does not
support a conviction for Rape and/or IDSI by forcible compulsion.
The amendment introduced the charges of Rape and IDSI with a
person who is unconscious. These latter charges did not require
proof by the Commonwealth that force of any sort was employed
by the accused. Consequently, the amendment to the information
violated Rule [564] by introducing new offenses.
Id., 727 A.2d at 544. After determining that the amendment at issue violated
the rule by introducing new offenses, the Court held that the amendment
prejudiced the appellant:
[B]ased on the original charges, appellant had every reason to
expect that the Commonwealth would be attempting to establish
that the victim was conscious during the sexual encounter. It
would be virtually impossible for the Commonwealth to meet its
burden of establishing that appellant used physical force, a threat
of physical force, or psychological coercion against the victim if
the Commonwealth did not first establish that the victim was
conscious. Assuming the Commonwealth could establish that the
victim was conscious, appellant’s primary line of defense would
have been that she consented to the encounter. When the
Commonwealth shifted the focus of its case to proving that the
victim was unconscious, the Commonwealth vitiated appellant’s
primary line of defense, since consent is not a defense to the
charges of Rape and/or IDSI with an unconscious person.
Therefore, by varying the information at the eleventh hour, the
Commonwealth rendered appellant’s primary defense a nullity.
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Id. (emphasis in original). The Court reversed the defendant’s rape and IDSI
convictions, and because the other charges were lesser-included offenses
relative to rape and IDSI, the Court granted a new trial as to all charges.
More recently, in Commonwealth v. Quinones, 200 A.3d 1004 (Pa.
Super. 2018), the Commonwealth originally charged the defendant with abuse
of corpse, conspiracy to abuse corpse, and firearms charges. The defendant
and his cohort used a Honda Odyssey van to transport handguns as well as
the corpse of an individual whom the cohort had shot and killed. Months after
the defendant’s arrest on these charges and his preliminary hearing, the police
searched the Odyssey and found drugs and paraphernalia. The
Commonwealth moved to amend the information to add charges of PWID and
possession of drug paraphernalia. The court granted the motion. The jury
found the defendant guilty of one firearms charge, abuse of corpse, conspiracy
to abuse corpse, PWID, and possession of drug paraphernalia.
Applying the six-factor test described above, this Court vacated the
defendant’s convictions and remanded for a new trial on all charges. We held
that the amendment to the information added new facts relating to drug
activity that were not in the original information. Moreover,
The description of the charges changed drastically with the
amendment, taking the case from one of guns and abuse of corpse
to one involving drug dealing and drug possession. As a result, a
change in defense strategy was necessitated in order to defend
against the new charges, which were unrelated to the original
charges and painted a different picture of the events[.]
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Quinones, 200 A.3d at 1012-13. We also cited with approval the argument
in the defendant’s appellate brief that the effect of the amendments to the
information was to tarnish the defendant’s character as a drug dealer. Id. at
1013-14. Consequently, we vacated the defendant’s judgment of sentence
and remanded with instructions to sever the drug charges from the charges
in the original information. Id. at 1014.
With these precedents as backdrop, we turn to the present case.
Appellant does not satisfy the first three factors in the six-part test, because
the amendment to the information did not change the factual scenario
supporting the charges or add new facts previously unknown to Appellant, and
the entire factual scenario was developed during the preliminary hearing.
Appellant contends that he satisfies the fourth and fifth factors of the
test, arguing:
[With regard to factor 4,] there is absolutely no question the
description of the charges changed with the amendment. The
Commonwealth went from having to prove an agreement,
whether direct or implied, between the Appellant and the co-
defendant, Charles Baizar, to merely showing that the Appellant
was an accomplice who aided and abetted in the commission of
the said crime. Looking at factor 5, clearly there was a change in
strategy at the time of trial. At all times relevant hereto, the
Appellant was prepared to argue that there was no evidence of a
conspiracy between him and Mr. Baizar other than their mere
association. Clearly, under conspiracy, the Appellant could not be
convicted because he or she was merely present with others, or
even because he or she knew what the others had planned or were
doing. There had to be actual proof of an agreement between the
Appellant and another person or persons to form or continue a
conspiracy.
Appellant’s Brief at 25.
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As stated above, courts have identified the fourth factor as “whether the
description of the charges changed with the amendment.” Beck, 78 A.3d at
660. We think it important to examine this factor in conjunction with the text
of Rule 564, i.e., relief is unavailable unless “the amended charges are . . . so
materially different from the original charge that the defendant would be
unfairly prejudiced.” Id. Since the Commonwealth did not file a written
amended information charging PWID-accomplice liability, we will analyze the
fourth factor by comparing the original information’s description of the
conspiracy charge with the court’s jury instructions on PWID-accomplice
liability. For two reasons, the description of the charges did not change with
the amendment to the information.
First, the original charge of conspiracy to commit PWID and the jury
instruction on accomplice liability both required the Commonwealth to prove
that Appellant had the “intent of promoting or facilitating the commission of
the crime of [PWID].” Information, Count 1 (conspiracy charge); N.T.,
6/11/21, at 6-7 (jury instruction on accomplice liability).
Second, both the original charge of conspiracy to commit PWID and the
jury instructions on accomplice liability contain the element of an “agreement”
between Appellant and others. The original information charged Appellant
with conspiracy by alleging that Appellant, did agree with [Baizar, Morales]
and others, known or unknown, and agreed with them to engage in conduct
which constitutes [PWID].” Information, Count 1. Count 1 alleged an
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“agreement” because an agreement is an element of conspiracy. See 18
Pa.C.S.A. § 903(a)(1) (“A person is guilty of conspiracy with another person
or persons to commit a crime if with the intent of promoting or facilitating its
commission he: . . . agrees with such other person or persons that they or
one or more of them will engage in conduct which constitutes such crime or
an attempt or solicitation to commit such crime”).8 The jury instructions on
PWID-accomplice liability also include the element of an agreement. The court
instructed:
To be an accomplice, a person does not have to agree to help
someone else. A person is an accomplice if he, on his own, acts
to help the other person commit a crime. More specifically, you
may find that the defendant is an accomplice of another, in this
case, if the following two elements are proven beyond a
reasonable doubt:
First, that the defendant had the intent of promoting or facilitating
the commission of the offense . . . and the defendant aids, agrees
to aid, or attempts to aid the other person in planning or
committing the crime. It is important to understand that a person
is not an accomplice merely because he is present when a crime
is committed or knows that a crime is committed. To be an
accomplice, the defendant must specifically intend to bring about
the crime by assisting another in its commission.
N.T., 6/11/21, at 7, 24 (emphasis added).9
____________________________________________
8 Another subsection of the conspiracy statute provides that the defendant is
guilty of conspiracy if he “agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or solicitation to
commit such crime.” 18 Pa.C.S.A. § 903(a)(2). The Commonwealth,
however, did not charge Appellant with violating this subsection.
9 The “agrees to aid” element also is included in the Crimes Code’s definition
of an accomplice. See 18 Pa.C.S.A. § 306(c).
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We turn to the fifth factor, “whether a change in defense strategy was
necessitated by the amendment.” Beck, 78 A.3d at 660. No change in
strategy was necessary. As discussed above, the original charge of conspiracy
included the element of an agreement. So, too, did the amended charge of
PWID-accomplice liability, because the trial court instructed that this charge
includes the element of an agreement. N.T., 6/11/21, at 7, 24. Thus, the
change in charges from conspiracy to PWID-accomplice liability did not
preclude defense counsel from making the same argument he intended to
make in opposition to the conspiracy charge: no agreement existed between
Appellant and the other males.
Nor did the amended charge necessitate any other change in Appellant’s
trial strategy. We acknowledge that the charge of PWID-accomplice liability
added one element that was not present in the conspiracy charge: the element
that Appellant “aided” others in possessing heroin with intent to deliver it. In
the context of this case, however, we do not consider “aiding” the other males
materially different from the conspiracy element of “agreeing” with others to
“engage in conduct which constitutes [the] crime.” 18 Pa.C.S.A. § 903(a)(1).
The evidence that Appellant aided others in committing PWID was precisely
the same as the evidence that the Commonwealth would have proffered to
prove Appellant’s agreement with others to commit PWID—specifically,
Appellant’s trip together with the others from Chicago to Erie, their occupancy
of the same hotel room, their presence together in the car in the parking lot,
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Appellant’s possession of a gun while two of his companions approached the
SUV with a package of heroin, Appellant’s firing of the gun toward the SUV
after the SUV’s occupants fired at his companions, and Appellant’s flight from
the parking lot with Baizar. We see no difference between the strategy that
Appellant used in defending against this evidence in a PWID-accomplice
liability prosecution to the strategy that he would have used in defending
against the same evidence in a conspiracy prosecution.
The absence of any need to devise a new strategy distinguishes this
case from decisions in which amendment of the charges necessitated a new
trial. See Brown, Quinones, supra. In Brown, the amendment in charges
from rape by forcible compulsion to rape of an unconscious person changed
the charge from one requiring proof of force to one requiring entirely different
evidence, i.e., proof that the victim was unconscious. Id., 727 A.2d at 544.
In Quinones, the addition of PWID and drug paraphernalia charges to the
original charges of abuse of corpse and gun possession “changed [the
charges] drastically . . . from one of guns and abuse of corpse to one involving
drug dealing and drug possession.” Id., 200 A.3d at 1012-13. The defendants
in these cases had to create new strategies unrelated to the original charges
to defend against new evidence. No such change in strategy was necessary
in the present case.
Finally, as to the sixth factor, Appellant argues that the Commonwealth’s
request for amendment on the first morning of trial did not allow for ample
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notice and preparation. While an earlier request might have been more
courteous, we agree with the trial court that Appellant suffered no prejudice,
and therefore no continuance was necessary. As discussed above, Appellant
was able to make the same argument against the PWID-accomplice liability
charge as he intended to make against the conspiracy charge, and the change
in charges did not force him to make any other change in strategy.
In short, we conclude that Appellant fails to meet any of the six factors
used to analyze claims of error under Rule 564.
Because neither of Appellant’s arguments has merit, we affirm his
convictions. However, we are obliged to remand for consideration of a
sentencing issue that we raise sua sponte. See Commonwealth v. Watson,
228 A.3d 928, 941 (Pa. Super. 2020) (issues relating to legality of sentence
may be raised sua sponte by appellate court). In its sentencing order, the
court sentenced Appellant to 7½-15 years’ imprisonment for conspiracy to
commit PWID, instead of PWID itself. On remand, we direct the trial court to
determine whether the reference to conspiracy to commit PWID in its
sentencing order was merely a clerical error, or if in fact Appellant was
sentenced to conspiracy to commit PWID. If the court determines the
reference to conspiracy in its sentencing order was merely a clerical error, the
court may correct this error without conducting further proceedings. See
Commonwealth v. Black, 531 A.2d 492, 493 (Pa. Super. 1986) (where
defendant pled guilty to false imprisonment but was sentenced for unlawful
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restraint, “this error should be corrected”); see also Commonwealth v.
Rosario, 248 A.3d 599, 606-07 (Pa. Super. 2021) (trial court may correct its
clear clerical error or patent and obvious mistake in sentencing order; court
was authorized to correct sentencing order to reflect that defendant was
sentenced on one, not three, conspiracy charges, where sentencing transcript
clearly supported conviction and correction did not affect aggregate sentence).
If on the other hand, the court incorrectly sentenced Appellant on conspiracy
to commit PWID, rather than PWID, then the court shall vacate Appellant’s
current sentence and resentence Appellant for those crimes upon which he
was convicted. It has been settled for over a century that a defendant can
only be sentenced for crimes that they have been charged with and have been
found guilty of committing. See Conway v. Commonwealth, 4 Walker 106,
1881 WL 14631 (Pa. 1881) (where defendant was convicted of larceny and
acquitted of burglary, it was error to count larceny as a second offense).
Appellant’s convictions affirmed. Case remanded for further
proceedings relating to Appellant’s sentence. Jurisdiction relinquished.
Judge Sullivan joins the Opinion.
Judge Pellegrini files a Dissenting Opinion.
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12/28/2023
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