Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1962, No. 221, in case of Commonwealth of Pennsylvania v. Harry L. Bruce.
William Goldstein, with him Paul M. Goldstein, for appellant.
James Garrett, Assistant District Attorney, with him David Richman, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ.
[ 230 Pa. Super. Page 508]
Appellant was indicted by a Philadelphia County Grand Jury for Forcible Entry and Burglary with the Intent to Commit Larceny. The charges arose from an incident involving appellant and his girlfriend, Juanita Green. They quarrelled over the telephone, and appellant later went to Miss Green's residence, entering by breaking the glass in the rear door. He was subsequently arrested by the police.
On August 2, 1962, appellant pled guilty to Forcible Entry, and was tried on the charge of Burglary with the Intent to Commit Larceny before a judge, sitting without a jury. The testimony of the parties indicates that appellant entered Miss Green's residence in the course of a domestic quarrel and that larceny was not involved.
[ 230 Pa. Super. Page 509]
However, the trial judge found appellant guilty of burglary, and, following the verdict and over appellant's objection, permitted the Commonwealth to amend the indictment to allege Burglary with the Intent to Commit Murder.
Appellant received a suspended sentence on the charge of Forcible Entry and was sentenced to a term of sixty-eight days to twenty-three months imprisonment for the charge of burglary with the Intent to Commit Murder. He has served the entire twenty-three months of the sentence.*fn1
Appellant did not file post-trial motions following his conviction. On May 7, 1970, he filed a Post Conviction Hearing Petition, pursuant to Act of January 25, 1966, P. L. (1965) 1580, § 1 et seq. (19 P.S. § 1180-1 et seq.) requesting leave to file post-trial motions nunc pro tunc. Following a number of procedural steps, appellant was granted the right to file post-trial motions by the Pennsylvania Supreme Court. This appeal is from the dismissal by the lower court of appellant's post-trial motions on March 26, 1973.
We find that the lower court erred in allowing the amendment of the indictment. Substantive aspects of an indictment may not be amended once they have been found and presented by a Grand Jury. Commonwealth v. Lawton, 170 Pa. Superior Ct. 9, 84 A.2d 384 (1951); Commonwealth v. Liebowitz, 143 Pa. Superior Ct. 75, 17 A.2d 719 (1941). However, if the defect is one of form it can be amended. Act of March 31, 1860, P. L. 427, ...