J-S51030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

ANTOINE WILLIAMS

                            Appellant                    No. 2698 EDA 2014


            Appeal from the Judgment of Sentence August 19, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0010129-2013,
                           MC-51-CR-0011641-2013


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                           FILED OCTOBER 01, 2015

        Antoine Williams appeals from the judgment of sentence imposed in

the Court of Common Pleas of Philadelphia County, following his convictions

for robbery – theft by removing money from a financial institution by making

a demand on an employee,1 and related offenses.

        The trial court set forth the factual history of this case as follows:

        On December 9, 2011, Ms. Delnisha Sims was working as a bank
        teller inside a branch office of Sovereign Bank located at 101
        East Olney Avenue in Philadelphia when, at about 5:18 p.m., she
        looked over to her co-worker, Elsa Febes, and noticed that Ms.
        Febes was red in the face, shaking and appeared to be scared.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 3701(a)(1)(vi).
J-S51030-15


        Suddenly, Ms. Febes screamed, “Oh, my God.           I just got
        robbed.”1
           1
             An examination of Ms. Febes’ cash drawer following the
           robbery showed that it was short $3,303.65. This fact was
           entered as a stipulation.

        Ms. Sims immediately observed a person fleeing the bank. Post
        incident Sims was shown photographs taken from the bank’s
        surveillance system, and stated that the person depicted in the
        photographs was the person she saw fleeing the bank. Ms. Sims
        also provided police with a description of the person
        approximately five minutes after the robbery occurred.

        Detective Steven Jefferson, the assigned investigator, recovered
        a black leather aviator hat outside the entrance of the bank
        along with a demand note that read, “Give me your fucking
        money, no dye packs.”          Detective Jefferson interviewed
        [Williams] on March 25, 2013. [Williams] denied involvement in
        the robbery claiming he had been in Georgia on the day the
        robbery was committed.

        The Commonwealth’s key witness was Nicole Lane, [Williams’]
        former paramour and the mother of two of his children. Lane
        [was looking at the news online] and in the course of doing so
        recognized [Williams] as the person depicted in the photograph
        accompanying the article [about] the purported robber. Lane,
        employed as a nurse at a correctional facility, reported her
        observation to her superior at work in accordance with a
        regulation requiring employees to report any evidence of crime.
        Lane also identified the hat recovered by police as belonging to
        [Williams] and also recognized that the handwriting on the
        demand note was that of [Williams].

Trial Court Opinion, 2/4/15, at 2-3.

        The Commonwealth charged Williams with robbery – threatening

another or intentionally putting him in fear of bodily injury in the course of

committing a theft,2 theft by unlawful taking,3 receiving stolen property,4
____________________________________________


2
    18 Pa.C.S. § 3701(a)(1)(ii).
(Footnote Continued Next Page)


                                           -2-
J-S51030-15



and simple assault.5        On February 6, 2014, at the conclusion of a non-jury

trial, the court found Williams guilty of theft by unlawful taking and receiving

stolen property.       The court also found him guilty of robbery – theft by

removing money from a financial institution by making a demand on an

employee.

        Williams filed a motion for extraordinary relief on February 19, 2014,

which the court denied July 11, 2014.             On August 19, 2014, the court

sentenced Williams to eleven and one-half to twenty-three months’

incarceration plus five years’ probation for robbery, followed by two

concurrent terms of two years’ probation for the theft convictions.

        This timely appeal followed, in which Williams raises the following

issue for our review:

        Did the trial court improperly convict Williams of robbery as a
        felony of the second degree under 18 Pa.C.S. § 3701(a)(1)(vi)
        where he was never charged with this subsection on the bills of
        information or formal charging documents, the Commonwealth
        never amended the bills or the charges, and where Williams was
        never arraigned on this form of robbery?

Appellant’s Brief, at 3.

        Williams relies, in part, on Pa.R.Crim.P. 564, which provides:
                       _______________________
(Footnote Continued)


3
    18 Pa.C.S. § 3921(a).
4
    18 Pa.C.S. § 3925(a).
5
    18 Pa.C.S. § 2701(a).




                                            -3-
J-S51030-15


     Rule 564.      Amendment of Information

     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.

     Williams argues the trial court “circumvented the plain language” of

the Rule. See Appellant’s Brief, at 16. He maintains that although Rule 564

permits the court to allow amendments requested by the Commonwealth,

the court may not amend an information sua sponte.         Williams further

asserts that the amendment was improper because it occurred after the

close of evidence. However, Rule 564 “is a starting point only . . . because

our courts apply the rule with an eye towards its underlying purposes and

with a commitment to do justice rather than be bound by a literal or narrow

reading of the procedural rules.”   Commonwealth v. Grekis, 610 A.2d

1284, 1289 (Pa. Super. 1992). “The caselaw sets forth a broader test for

the propriety of amendments than the plain language of the rule suggests.”

Commonwealth v. Mosley, 585 A.2d 1057, 1060 (Pa. Super. 1991).

     Our disposition of this matter is informed by In re D.G., 114 A.3d

1091 (Pa. Super. 2015), where this Court noted:

     In Commonwealth v. Mentzer, 18 A.3d 1200 (Pa. Super.
     2011), we set forth our considerations in determining whether
     the trial court erred in permitting the amendment of the
     information.



                                    -4-
J-S51030-15


     [W]hen 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 amendment is not
     permitted. Additionally, [i]n reviewing a grant to amend an
     information, the Court will look to whether the appellant was
     fully apprised of the factual scenario which supports the charges
     against him.      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.

     Further, the factors which the trial court must consider in
     determining whether an amendment is prejudicial are:

     (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.

In re D.G., 114 A.3d 1091, 1095 (Pa. Super. 2015) (citations omitted).

     Accordingly, the critical issue is whether Williams was prejudiced by

the trial court’s amendment of the charge of robbery brought against him.

Here, the facts underlying the offense of robbery by committing a theft in

the course of which the defendant threatened or put another in fear of

                                   -5-
J-S51030-15



immediate serious bodily injury (section 3701(a)(1)(ii)) and robbery by

removing money from a financial institution by making a demand of an

employee (section 3701(a)(1)(vi)) were the same, namely, handing a

demand note to a bank teller with the words, “Give me your fucking money,

no dye packs.”

       Prior to trial, Williams was aware that the Commonwealth had the

demand note and intended to enter it into evidence. Accordingly, there was

no element of surprise in the introduction of this critical piece of evidence

necessary to establish the offense set forth in section 3701(a)(1)(vi).

       At trial, Williams presented no evidence.     Nevertheless, during his

cross-examination of the Commonwealth’s witnesses, and in his closing

statement, Williams’ counsel pursued a defense of mistaken identity. Such a

defense was equally applicable to a charge under section 3701(a)(1)(ii) or

section 3701(a)(1)(vi).

       Because the crime originally charged involved the same basic elements

and arose out of the same factual situation as the crime included in the

amendment, Williams was on notice regarding his alleged criminal conduct.

Accordingly, he was not prejudiced by the court’s amendment of the charge.

See In re D.G., supra. 6
____________________________________________


6
  In the statement of questions involved section of his brief Williams also
asserts that the trial court improperly denied his post-verdict motion for
extraordinary relief.     However, he has abandoned that issue.        See
Appellant’s Brief, at 27.



                                           -6-
J-S51030-15



     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/1/2015




                                 -7-
