No. 173 April Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas of Beaver County, Pennsylvania, Criminal Division, at No. 851 of 1975
John P. Dohanich, Assistant Public Defender, Beaver, for appellant.
John Lee Brown, Jr., Assistant District Attorney, Beaver, for Commonwealth, appellee.
Cercone, President Judge. Hoffman, J., concurs in the result. Van der Voort, J., dissents. Jacobs, former President Judge, did not participate in the consideration or decision of this case.
[ 274 Pa. Super. Page 226]
Appellant, Gregory P. Neal, takes this appeal from his conviction on May 4, 1977 for robbery. Appellant now asks this court to reverse his conviction, arguing that the lower court erred when it, sua sponte amended the indictment describing appellant's alleged offense so that the indictment conformed to the evidence produced by the Commonwealth at trial. We find appellant's argument to be sound and for the reasons which follow, we reverse.
On November 12, 1975, the grand jury of Beaver County returned an indictment against appellant charging that on July 19, 1975 appellant "did in the course of committing a theft, feloniously commit or threaten immediately to commit a felony of the first or second degree."*fn1 The language used by the Grand Jury in describing appellant's alleged offense follows word for word the language of subsection (iii) of the robbery section found in the Crimes Code, 18 Pa.C.S.A.
[ 274 Pa. Super. Page 227]
§ 3701(a)(1)(iii). However, at trial the Commonwealth did not prove that appellant threatened or committed a felony of the first or second degree in the course of committing a theft. Rather, the Commonwealth offered evidence which would prove that appellant, in the course of committing a theft, threatened another with or intentionally put another in fear of immediate serious bodily injury.*fn2 This evidence, if accepted by the fact finder, would prove that appellant violated subsection (ii), not subsection (iii), of Section 3701.
In relevant part, the offense of robbery is defined in the Crimes Code thusly:
(1) A person is guilty of robbery if, in the course of committing a theft, he:
(ii) threatens another with or intentionally puts him in fear of immediate ...