decided: June 21, 1974.
Appeal from judgment of sentence of Court of Common Pleas of Dauphin County, No. 405 of 1972, in case of Commonwealth of Pennsylvania v. Joe Brown.
Carl B. Stoner, Jr., for appellant.
Marion E. MacIntyre and Rolf W. Bienk, Deputy District Attorneys, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J.
[ 229 Pa. Super. Page 68]
Appellant, Joe Brown, was convicted by a Dauphin County jury of conspiracy to violate the narcotic laws of the Commonwealth pertaining to the sale of heroin. He appeals from the order of the court below denying a new trial and his motions to quash the indictment and for a continuance, contending that the indictment was fatally defective and not capable of being amended. The motions were made after the jury was sworn and impaneled, but before the start of testimony.
Appellant argues that the indictment was defective because it did not contain the name of any co-conspirators.*fn1 He further argues that this defect is substantive
[ 229 Pa. Super. Page 69]
in nature, necessitating the quashing of the indictment and resubmission of the case to the grand jury. We do not agree.
It is well settled that a defect of substance in an indictment cannot be amended and the indictment must be quashed. Commonwealth v. Lawton, 170 Pa. Superior Ct. 9, 84 A.2d 384 (1951). However, if the defect is one of form it can be amended. Pennsylvania Rules of Criminal Procedure, Rule 220.*fn2 Rule 220 permits an amendment to an indictment if the amendment does not charge an additional or different offense.*fn3 The amendment in this case, permitting the insertion of the co-conspirator's name, did not in any sense charge an additional or different offense. Thus, in the instant case, the omission of a co-conspirator in an indictment charging
[ 229 Pa. Super. Page 70]
conspiracy is a defect in form and may be properly corrected by amendment.
The test for a sufficient indictment is whether the defendant is notified of the charge he is to meet. Commonwealth v. Petrillo, 338 Pa. 65, 12 A.2d 317 (1940). See Commonwealth v. Campbell, 116 Pa. Superior Ct. 180, 176 A. 246 (1935); Commonwealth v. Fahey, 113 Pa. Superior Ct. 598, 173 A. 854 (1934). While it is true that the indictment does not name the other person with whom Joe Brown conspired, as the lower court noted, "it is . . . obvious from the indictment that other persons were involved." Furthermore, the complaint, a copy of which was given to the defendant at the time of the preliminary arraignment, and from which the indictment was drawn, does contain the name of the co-conspirator. Clearly the appellant was put on notice as to the nature of the charge against him, and was in no way prejudiced by the amendment.
Because of our finding that the defect in the indictment could be amended, the motion to quash was waived by waiting to make the motion after the jury had been sworn and impaneled. The Act of March 31, 1860, P. L. 427, § 11 (19 P.S. § 431) requires that objections to the indictments for formal defects shall be taken before the jury is sworn and not thereafter.*fn4 In Commonwealth v. Hicks, 209 Pa. Superior Ct. 1, 223 A.2d 873 (1966), no objection was made to the indictment until the defendant went to trial and the Court held that by so
[ 229 Pa. Super. Page 71]
doing defendant waived the right to question any insufficiencies in the indictment.
We find no merit in appellant's argument that the lower court erred in denying his motion for a continuance after the indictment was amended. The appellant's request for a continuance was a matter within the discretion of the lower court, Commonwealth v. DiPasquale, 431 Pa. 536, 246 A.2d 430 (1968); there was no abuse in refusing the motion since appellant was aware for several months prior to trial through the complaint of the name of the co-conspirator.
The judgment of sentence of the lower court is affirmed.
Judgment of sentence affirmed.