J-S06042-17
2017 PA Super 204
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ADDIE WILLIAMS
Appellant No. 778 EDA 2016
Appeal from the Judgment of Sentence January 7, 2016
in the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0002246-2014
BEFORE: MOULTON, RANSOM, and FITZGERALD,* JJ.
OPINION BY FITZGERALD, J.: FILED JUNE 30, 2017
Appellant, Addie Williams, appeals from her judgment of sentence of
guilt without further penalty on her conviction for harassment. 1 We
conclude that the Commonwealth’s violation of Appellant’s rights under
Pa.R.Crim.P. 544 and 564 requires us to reverse her conviction and direct
the trial court to dismiss the harassment charge with prejudice.
In the early morning hours of February 5, 2014, Appellant was
arrested after her daughter called the police and alleged that Appellant
locked her and her brothers out of their house. Appellant’s daughter
informed a police officer at the scene that Appellant had hit her in the mouth
at some point one day earlier. Appellant was charged with multiple counts
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2709(a)(1).
J-S06042-17
of endangering the welfare of children, one count of simple assault and one
count of harassment.
On February 18, 2014, Appellant posted bail and was released from
jail. On March 24, 2014, all charges except for simple assault were
dismissed at Appellant’s preliminary hearing. The Commonwealth thereupon
filed an information charging her only with simple assault.2
On January 7, 2016, the matter proceeded to trial. At the beginning of
trial, the Commonwealth orally moved to amend the information to include
the previously dismissed charge of harassment. The Commonwealth claimed
that this amendment was proper on the ground that harassment is a lesser
included offense of simple assault. N.T., 1/7/16, at 9-10. Defense counsel
responded:
I am going to object to [the] bill of information being
amended in any way at this point. I think there is a
process that has to be gone through by the District
Attorney in order to do that. That hasn’t been done in this
case. I think a petition has to be filed. In any event, I am
looking at [Rule 564] right now. [The information] can be
amended if there is a defect in form, the description of the
offenses, description of any person or property, date
charged, as long as they will not charge different
offense[s]. We have gotten no notice that the bill of
information was going to be amended. There is nothing in
writing. I think there is a process that the District
Attorney is trying to circumvent here.
Id. at 10-11.
2
18 Pa.C.S. § 2701(a)(1).
-2-
J-S06042-17
The trial court suggested that Appellant had received notice of the
harassment charge because the Commonwealth had offered to permit her to
plead guilty to harassment without further penalty. Id. at 11. The court
also observed, however, that “generally there has to be a defect in form,
which, by the way, I didn’t hear any defect in form, description of the
offenses, description of any person or property.” Id. at 12. The court
concluded that defense counsel raised an “interesting argument,” and that
the court would “figure it out.” Id. at 13.
At the close of evidence, defense counsel, in the words of the trial
court, “tailored [his] closing argument to the simple assault charge.” Trial
Ct. Op., 5/16/16, at 13. Defense counsel argued that Appellant slapped her
daughter during a quarrel, and that Appellant’s daughter lied to the police
that the slap caused a cut on the side of her mouth. N.T., 1/7/16, at 114.
Counsel contended that slight cuts or bruises were insufficient to establish
simple assault.3 Id. The Commonwealth countered that Appellant was
guilty of simple assault or, in the alternative, harassment. The court found
Appellant not guilty of simple assault, but it granted the Commonwealth’s
3
Earlier in the case, defense counsel cited Commonwealth v. Kirkwood,
520 A.2d 451 (Pa. Super. 1987), for this proposition. See id. at 275
(evidence that defendant’s uninvited attention and violent dancing,
according to victim, caused bruises and slight cuts on her arms, and that her
right knee and arms hurt as a result of manner in which defendant swung
her during dance, was insufficient to establish “physical impairment” or
“substantial pain” elements of simple assault).
-3-
J-S06042-17
motion to add harassment to the information and subsequently found
Appellant guilty of harassment.
Appellant filed timely post-sentence motions, which the court denied,
and a timely notice of appeal. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises two issues in this appeal:
I. Whether the charge of harassment should be dismissed
due to a variance between the indictment and the crime of
conviction failing to meet the requirements of Rule of
[C]riminal [P]rocedure 564 and because the trial court
committed a procedural error in rendering the verdict
where summary harassment was dismissed at the
preliminary hearing and never reinstated and is not a
lesser included offense of simple assault.
II. Whether the evidence presented by the Commonwealth
was sufficient to support a conviction for summary
harassment.
Appellant’s Brief at 7.
In her first argument, Appellant maintains that the charge of
harassment should be dismissed due to the Commonwealth’s violations of
Pa.R.Crim.P. 544 and 564. The Commonwealth “concedes, with the benefit
of hindsight, that the procedure below did not comply with [Rule] 544.”
Commonwealth’s Brief at 6. We agree with Appellant that dismissal is the
proper remedy.
The Commonwealth clearly violated Pa.R.Crim.P. 544(A), which
provides: “When charges are dismissed or withdrawn at . . . a preliminary
hearing . . . the attorney for the Commonwealth may reinstitute the charges
-4-
J-S06042-17
by approving, in writing, the re-filing of a complaint with the issuing
authority who dismissed . . . the charges.” Pa.R.Crim.P. 544(A). In this
case, the harassment charge was dismissed at Appellant’s preliminary
hearing, but the Commonwealth failed to “approve, in writing, the re-filing of
a complaint [alleging harassment] with the issuing authority who dismissed .
. . [this charge].” Id. The Commonwealth also violated Rule 544(B), which
requires that the defendant receive another preliminary hearing on the
reinstituted charge before the same issuing authority, or, if need be, before
a different issuing authority. See Pa.R.Crim.P. 544(B). Here, the
Commonwealth orally requested that the trial court—not the issuing
authority—grant the Commonwealth leave to amend its information to add
the harassment charge back into the case. The court delayed until the
conclusion of trial before granting the Commonwealth’s motion, thus
depriving Appellant of her right to a new preliminary hearing on the
harassment charge and preventing defense counsel from preparing any
defense to this charge.
In addition, the Commonwealth violated Pa.R.Crim.P. 564, which
presently provides:
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.
-5-
J-S06042-17
Pa.R.Crim.P. 564.4 When the trial court exercises its discretionary power to
allow amendment of the information, the defendant can obtain relief if the
amendment prejudices him. See Commonwealth v. Mentzer, 18 A.3d
1200, 1203 (Pa. Super. 2011) (citation omitted). Factors for a court to
consider in determining the existence of prejudice include:
(1) whether the amendment changes the factual scenario
supporting the charges; (2) whether the amendment adds
new facts previously unknown to the defendant; (3)
whether the entire factual scenario was developed during a
preliminary hearing; (4) whether the description of the
charges changed with the amendment; (5) whether a
change in defense strategy was necessitated by the
amendment; and (6) whether the timing of the
Commonwealth’s request for amendment allowed for
ample notice and preparation.
Id. (citation omitted).
In this case, the Commonwealth waited until the beginning of trial
before moving to amend the information to add a charge of harassment.
4
This version of Rule 564 is effective until December 21, 2017, when an
amended version of Rule 564 takes effect. The amended version provides:
The court may allow an information to be amended,
provided that the information as amended does not charge
offenses arising from a different set of events and that the
amended charges are not so materially different from the
original charge that the defendant 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.
Id. Our Supreme Court amended Rule 564 “to more accurately reflect the
interpretation of this rule that has developed since it first was adopted in
1974.” Pa.R.Crim.P. 564, cmt.
-6-
J-S06042-17
The court took the motion under advisement and did not make its ruling
until after the close of evidence and after defense counsel had already
given his closing argument tailored to the only charge in the information at
that time—simple assault.
Further, harassment is clearly a “different offense” than simple
assault. See Pa.R.Crim.P. 564. We have observed:
To establish harassment, there must be proof the accused
acted with an intent to harass, annoy, or alarm the other
person. This unique element of intent is not required for
simple assault. To prove simple assault, an intentional or
reckless effort to cause bodily injury must be shown.
Bodily injury is not a part of harassment. These crimes
have distinct mental elements, and distinct types of harm
are addressed.
Commonwealth v. Townley, 722 A.2d 1098, 1099 (Pa. Super. 1998).
Thus, the Commonwealth’s failure here to request an amendment to the
information until the beginning of trial, and the court’s failure to rule on this
motion until the end of trial, deprived defense counsel of any realistic
opportunity to prepare or present a defense to this new and different charge
during trial.
The Commonwealth injected a new charge into this case at the
eleventh hour in clear disregard for rules whose purpose is to give the
defendant a fair opportunity to prepare and present her defense. We hold
that the trial court abused its discretion in permitting the Commonwealth to
amend its information to add the harassment charge.
-7-
J-S06042-17
The Commonwealth argues that Appellant cannot obtain relief because
of mootness. In the context of post-conviction proceedings or direct appeals
challenging the legality of sentence, Pennsylvania courts have found criminal
cases moot when the defendant has completed her sentence and does not
suffer from any collateral civil or criminal consequence of her conviction.
See Commonwealth v. Rohde, 402 A.2d 1025, 1027 (Pa. 1979);
Commonwealth v. Doria, 364 A.2d 322, 324 (Pa. 1976); Commonwealth
v. Sheehan, 285 A.2d 465, 469 (Pa. 1971); Commonwealth v. Schmohl,
975 A.2d 1144, 1149 (Pa. Super. 2009) (defendant’s appeal not moot based
on “reasonable assumption” that he remains on parole from his conviction);
Commonwealth v. King, 786 A.2d 993, 996-97 (Pa. Super. 2001);
Commonwealth v. Kelly, 418 A.2d 387, 388 (Pa. Super. 1980).
Even when a claim becomes moot, however, we may still reach its
merits if the issue is “capable of repetition yet likely to evade review.” Pub.
Defender’s Office of Venango Cty. v. Venango Cty. Court of Common
Pleas, 893 A.2d 1275, 1276, 1279 (Pa. 2006) (citation omitted) (public
defender challenged order compelling him to serve as standby counsel for
pro se criminal defendant who previously had been denied public defender
representation because his annual income exceeded the financial guidelines;
although matter was moot because defendant had already gone to trial,
Supreme Court proceeded to merits because issue was capable of repetition
yet evading review).
-8-
J-S06042-17
Arguably, the present case is moot, because the court found Appellant
guilty without further penalty, and she has not claimed to have suffered any
collateral consequences from this conviction. Nevertheless, we reach the
merits of this case because its circumstances are capable of repetition yet
evading review. Specifically, in future cases, the Commonwealth could
attempt to rescue prosecutions by adding new charges during or
immediately before trial. It is unjust to expose defendants to the stigma of
a criminal record by circumventing the Rules of Criminal Procedure in this
fashion.5
Judgment of sentence reversed. Case remanded with instructions to
dismiss harassment charge with prejudice. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2017
5
Our decision in Appellant’s favor on her first argument makes it
unnecessary for us to review her second argument, a challenge to the
sufficiency of the evidence underlying her harassment conviction.
-9-