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COMMONWEALTH PENNSYLVANIA v. BARBARA HERSTINE (03/16/79)

decided: March 16, 1979.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
BARBARA HERSTINE



No. 1014 October Term, 1978, Appeal from the Order of Lowe, President Judge, dated February 10, 1978, arresting Judgment and discharging defendant, in the Court of Common Pleas of Montgomery County, Pennsylvania, Criminal Division, at No. 2895-77

COUNSEL

James A. Cunningham, Assistant District Attorney, Norristown, for Commonwealth, appellant.

Douglas M. Johnson, Assistant Public Defender, Norristown, for appellee.

Cercone, Spaeth and Lipez, JJ.

Author: Lipez

[ 264 Pa. Super. Page 416]

This is an appeal by the Commonwealth from the grant of defendant's motion in arrest of judgment. A written complaint had been filed on June 27, 1977, against the defendant charging her with retail theft, second offense. The information filed on September 9, 1977, failed to mention second offense. Before trial the Commonwealth requested and was granted leave to amend its information to include second offense in the description of the crime. In a jury trial the defendant was convicted of the amended charge. The defendant then filed motions for a new trial and in arrest of judgment. The latter was granted. For the reasons which follow, we affirm.

It is well settled that in order to impose enlarged sentences under a recidivist statute, the indictment must contain averments of prior convictions. Com. v. Moses, 441 Pa. 145, 271 A.2d 339 (1970). Com. v. Koczwara, 188 Pa. Super. 153, 146 A.2d 306 (1958), affd. 397 Pa. 575, 155 A.2d 825 (1959). Since a second offense carries a greater penalty than a first offense, it "is different in kind and character from a first offense." Com. v. Ciccarelli, 42 D & C 643 (1941).*fn1 Hence, an indictment must plead the peculiar characteristics which distinguished it from a first offense. Ciccarelli, supra, p. 647. See also Com. v. Reed, 103 Montg.Co.L.R. 255 (1977).

Pa.R.Crim.P. Rule 225 provides for the preparation and filing of an information by the attorney for the Commonwealth in those counties where the indicting grand jury has been abolished. The requirements as to content and form

[ 264 Pa. Super. Page 417]

    are identical to the indictment requirements. See Pa.R.Crim.P. 213. The Rules further provide for amendments to indictments, Rule 220, and informations, Rule 229, in identical terms. Thus Rule 229 provides:

The court may allow an information to be amended when there is a defect in form, the description of the offense, 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.

We think it is apparent that the rule contemplates amendments of formal defects, and not substantive matters,*fn2 as indicated by the language "provided the information as amended does not charge an additional or different offense." See 42 C.J.S. Indictments and Information § 240 n. 39. Since we conclude the pleading of second offense in the amended information charges a different offense, a substantive matter, the allowance of the amendment was improvident.

The Commonwealth seems to argue that the language of 19 P.S. § 871 allows dismissal of the charges only where a challenge to sufficiency of the evidence is sustained; that inasmuch as the challenge here was with respect to an error by the court in allowing the Commonwealth to amend the information, it should have granted a new trial and not dismiss the charges; or if the remedy was not the grant of a new trial, the ...


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