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COMMONWEALTH PENNSYLVANIA v. MICHAEL DALE PLYBON (07/03/80)

filed: July 3, 1980.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
MICHAEL DALE PLYBON



No. 361 October Term, 1979, Appeal from Order of the Court of Common Pleas of Montgomery County, Criminal Division, No. 4260 of 1978.

COUNSEL

Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellant.

Edwin L. Guyer, Blue Bell, for appellee.

Price, Watkins and Hoffman, JJ. Price, J., dissents.

Author: Hoffman

[ 279 Pa. Super. Page 331]

Appellant Commonwealth contends that the lower court erred in denying its petition to amend the bill of information against appellee. We disagree and, accordingly, affirm the order of the court below sustaining appellant's demurrer to the evidence.

On December 1, 1978, the District Attorney of Montgomery County filed a bill of information charging appellee with driving "under the combined influence of alcohol and a controlled substance" on September 22, 1978. At trial, however, the Commonwealth presented no evidence indicating that appellee was under the influence of a controlled substance at the time of the incident. At the close of the Commonwealth's case, appellee demurred to the evidence,

[ 279 Pa. Super. Page 332]

    alleging that the Commonwealth had failed to prove the crime with which he was charged. The Commonwealth then moved to amend the bill of information to delete the reference to controlled substances. After hearing oral argument, the lower court denied the motion to amend and sustained appellee's demurrer. The Commonwealth then took this appeal.

Rule 229 of the Pennsylvania Rules of Criminal Procedure provides that "[t]he 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 that the information as amended does not charge an additional or different offense." Pa.R.Crim.P. 229. In Commonwealth v. Stanley, 265 Pa. Super. 194, 401 A.2d 1166 (1979), this Court elaborated on the test to be applied in determining whether Rule 229 permits amendment:

[T]he courts of this Commonwealth employ the test of whether 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, 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.

Id., 265 Pa. Super. at 212, 401 A.2d at 1175 (footnotes omitted).

The original bill of information against appellee charged him under section 3731(a)(3) of the Vehicle Code with driving "under the combined influence of alcohol and a controlled substance to a degree which renders the person incapable of safe driving." 75 Pa.C.S.A. § 3731(a)(3). The Commonwealth sought to amend the bill to charge appellee under § 3731(a)(1) ...


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