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HomeMy WebLinkAbout98-1107 criminalCOMMONWEALTH VS. GARY W. BOLTON IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-1107 CRIMINAL IN RE: POST-SENTENCING MOTION OPINION AND ORDER ORDER AND NOW, this day of November, 1999, the post-sentence motion of the defendant in the nature of a motion in arrest of judgment is DENIED. BY THE COURT, Jaime Keating, Esquire Chief Deputy District Attorney · Hess, J. Paul Bradford Orr, Esquire For the Defendant :rlm COMMONWEALTH VS. GARY W. BOLTON IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-1107 CRIMINAL IN RE: POST-SENTENCING MOTION OPINION AND ORDER In this case, the defendant was initially charged with statutory sexual assaultand specifically an allegation that he had had sexual intercourse with a minor. The information filed in this case alleged that the offense occurred between April 1 st and May 31 st of 1997. The response of the District Attorney's Office to the defendant's request for a bill of particulars, however, indicated that the offense occurred on July 21, 1997. On January 12, 1999, the Honorable Edward E. Guido of this court entered an order which provided, in pertinent part: The Commonwealth is granted leave to amend the information to provide that the alleged offense occurred on July 21, 1997, rather than the periods of 1 April 1997 to 31 May 1997. Following a bench trial on July 12 and 13, 1999, the defendant was convicted of the lesser and included offense of indecent assault. At no time prior to the conclusion of the trial did the Commonwealth file an amended information, Judge Guido's order of January 12, 1999 notwithstanding. Because the Commonwealth failed to prove an offense in either April or May of 1997, the defendant, at trial, moved to dismiss the charge. This motion was denied and the issue has been raised again as a basis for post-sentence relief. The amendment of criminal informations is governed by Pa.R.Crim. P. 229 which 98-1107 CRIMINAL provides that' The court may allow an information to be amended when there is a defect in form, a description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. The purpose of this role is to insure that the defendant is notified of the charges against him, and to avoid prejudice by prohibiting last minute additions of which the defendant is uninformed. Com. v. Mosely, 585 A.2d 1057, 1059 (Pa. Super. 1991) citing Com. v. Stanley, 265 Pa. Super. 194, 401 A.2d 1166 (1979). A variance from an information is not fatal unless it would mislead the defendant at trial and involves an element of surprise prejudicial to the defendant's efforts to prepare his defense or preclude the defendant from anticipating the prosecution' s proof or impairs a substantive right. Com. v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983). In this case, the defendant had had notice of the charges against him even before the original information was filed on July 10, 1998. The defendant was also aware of the precise date of the alleged offense more than six months prior to trial. Nonetheless, the defendant contends that because an amended information was never filed, the Commonwealth was obliged to prove an offense which occurred in April or May of 1997. All of this invites the question of whether a court order granting leave to amend an information is the functional equivalent of filing the amendment. On this question, neither side has cited appellate authority nor have we been able to find any. Common sense, however, suggests that once leave to amend an information has been obtained, the filing of the amendment, 98-1107 CRIMINAL itself, is little more than a formality. Moreover, existing case law supports this conclusion by logical extension. If there is no showing of prejudice, amendment of an information is proper even on the day of trial. Com. v. Womack, 307 Pa. Super. 365,453 A.2d 642 (1982). Under such a circumstance, the amendment would be accomplished on oral motion and not by the filing of a new piece of paper with the Clerk of Courts. At least one case from the Superior Court, Com. v. Pisshianti, 600 A.2d 597 (Pa. Super. 1991), dealt with the concepts of"amendment" and "a grant to amend" as being synonymous. While the better procedure would have been to file a new information following Judge Guido's order, we do not conclude that the failure to do so was fatal to the prosecution. The defendant had ample and proper notice of the date on which the offense was alleged to have occurred. ORDER AND NOW, this day of November, 1999, the post-sentence motion of the defendant in the nature of a motion in arrest of judgment is DENIED. BY THE COURT, Jaime Keating, Esquire Chief DePuty District Attorney ess, J. Paul Bradford Orr, Esquire For the Defendant :rlm