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filed: November 30, 1982.




Harry L. Clark, Philadelphia, for appellant.

Ronald Eisenberg, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Hester, Cirillo and Johnson, JJ. Johnson, J., files a dissenting opinion.

Author: Cirillo

[ 307 Pa. Super. Page 400]

On July 18, 1980, appellant, Robert Womack, was found guilty of Rape*fn1 and Criminal Conspiracy.*fn2 Following the jury's verdict, appellant's trial counsel failed to file post-verdict motions pursuant to Pa.R.Crim.P. 1123.*fn3 Instead, counsel attempted to file post-trial motions nunc pro tunc on January 26, 1981, the date of sentencing. The trial judge

[ 307 Pa. Super. Page 401]

    denied the request,*fn4 and imposed sentence. Shortly thereafter, appellant filed a pro se Notice of Appeal to this court.*fn5

Appellant raises the following contentions for our review: (1) The trial court committed reversible error by granting the Commonwealth's pre-trial motion to amend the information; (2) closing argument by the District Attorney amounted to prosecutorial overreaching; (3) the trial court committed reversible error in allowing a Commonwealth witness to express an opinion without a proper foundation being laid, and; (4) trial counsel was ineffective for failing to pursue a pretrial motion to suppress evidence, and for failing to thoroughly prepare his client's case for trial. Appellant's contentions are without merit and we, therefore, affirm the lower court's judgment of sentence.

Appellant's first contention is that the trial court committed reversible error by granting the Commonwealth's pretrial motion to amend the information, adding the charge of Criminal Conspiracy. Specifically, appellant argues that the amendment irreversibly prejudiced his case because he was denied adequate notice of all pending charges, as well as, adequate time to prepare a defense to the additional charge. No request was made for a continuance in order to prepare for the new information, as provided for by Pa.R.Crim.P. 229. See Commonwealth v. Fowler, 259 Pa. Super. 314, 320, 393 A.2d 844, 847 (1978).

This issue was not raised in post-trial motions and, therefore, the merits of this issue have not been properly preserved for appellate review. Commonwealth v. Whitner, 278 Pa. Super. 175, 420 A.2d 486 (1980); Commonwealth v. O'Brien, 273 Pa. Super. 198, 417 A.2d 236 (1979). However, appellant's brief couches the issue within the context of an

[ 307 Pa. Super. Page 402]

    ineffective assistance of counsel claim, in that trial counsel failed to preserve his original objection to the amendment by failing to file post-trial motions. Since this appeal represents the earliest opportunity at which appellant is represented by new counsel, the issue is properly before us at this time. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

The standard of review in determining whether or not counsel has rendered ineffective assistance necessitates an initial inquiry into whether the underlying claim is of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). If the underlying claim is found to be of arguable merit, only then may we proceed to determine whether there was some reasonable basis for counsel's actions designed to protect his client's interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Pennsylvania Rule of Criminal Procedure 225 provides:

(a) In counties in which the indicting grand jury has been abolished, after the defendant has been held for court, the attorney for the Commonwealth either shall move to nolle prosequi the charges or shall proceed by preparing an information and filing it with the Court of Common Pleas.

According to Pennsylvania Rule of Criminal Procedure 229, after the information or indictment is issued:

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 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.

In determining whether an additional or different offense has been added by the amendment, the courts look to

[ 307 Pa. Super. Page 403]

    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.

Applying these standards, our court in Commonwealth v. Stanley, 265 Pa. Super. 194, 401 A.2d 1166 (1979), upheld a substantive amendment to an information because it found that appellant was in no way prejudiced by the change. The court emphasized that appellant's defense to the charge was unaltered, and it was evident that he had been thoroughly informed of the underlying events giving rise to the charges. See also, Commonwealth v. Lawton, 272 Pa. Super. 40, 414 A.2d 658 (1979); Commonwealth v. Yohn, 271 Pa. Super. 537, 414 A.2d 383 (1979).

In the case at bar, appellant and his co-defendant were arrested and charged with criminal conspiracy, criminal attempt of involuntary deviate sexual intercourse, simple assault, kidnapping, rape, robbery, unlawful restraint, indecent assault, theft, recklessly endangering another person and receiving stolen property. At the preliminary hearing, on February 27, 1980, the court held that a prima facie case had been proven by the Commonwealth against both defendants on all charges except robbery, which was dismissed. Though the court failed to include conspiracy in its concluding remarks, in the preliminary hearing disposition report, signed by the judge and filed with the prothonotary, criminal conspiracy was listed as one of the offenses for which appellant was being held. Pursuant to Pa.R.Crim.P. 225, the District Attorney issued bills of information which, however, did not include the charge of criminal conspiracy. The day of the trial, July 15, 1980, the court granted the Commonwealth's motion to amend the informations of appellant and his co-defendant to include the charge of Criminal Conspiracy.

We conclude that absent a showing of prejudice, the amendment to the information, even on the day of trial, was permissible. See Yohn, supra. Instantly, appellant was clearly aware ...

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