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COMMONWEALTH PENNSYLVANIA v. FRANK A. DESUMMA (05/05/87)

submitted: May 5, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
FRANK A. DESUMMA, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Bucks County, Criminal Division, at No. 85-3224

COUNSEL

Patrick J. Duffy, Philadelphia, for appellant.

Alan M. Rubenstein, District Attorney, Doylestown, for Com., appellee.

Brosky, Wieand and Beck, JJ. Wieand, J., filed a dissenting opinion.

Author: Brosky

[ 367 Pa. Super. Page 635]

This is an appeal from the judgment of sentence imposed after appellant's jury conviction of simple assault.

Appellant's complaint to this Court is that the trial court erred in permitting the Commonwealth to make a substantive amendment to the information by changing the name of the victim prior to the commencement of trial where such an amendment violates Pa.R.Crim.P. 229 by working an irreparable prejudice to appellant's right to a fundamentally fair trial. Finding this argument lacking in foundation, we

[ 367 Pa. Super. Page 636]

    affirm. Although we look to the well-reasoned opinion of the trial court, we wish to further elaborate on its analysis.

Evidence adduced at trial revealed that appellant knew from the time of the preliminary hearing, at which he was present, that four passengers were in the car in addition to the original victim-driver (N.T. 35). Moreover, the evidence demonstrated that appellant conceded that the original victim, Mr. O'Hara, testified at the preliminary hearing that appellant pointed the gun at the car (N.T. 135). Yet, appellant urges us to create a per se rule of prejudice, without asserting specific reasons therefor, because allowance of an amendment which charges no additional or different offense materially altering the elements or defenses to the original crime but which merely seeks to add the names of victims is requested and granted just before trial. This we decline to do.

In Commonwealth v. Johnson, 336 Pa. Super. 1, 485 A.2d 397 (1985), relied upon by the trial court, this court held that the defendant was not surprised by the amendment because neither the factual scenario nor the nature of the charges had been altered thereby, thus obviating any prejudice to him.

Neither may appellant here claim surprise. The nature of the instant amendment worked no change in the factual scenario nor in the description of the charges. Hence, the amendment here did not charge an additional or different offense which would necessarily implicate a last-minute alteration in defense strategy. Commonwealth v. Stanley, 265 Pa. Super. 194, 401 A.2d 1166 (1979), aff'd, 498 Pa. 326, 446 A.2d 583 (1982). Accord Commonwealth v. Tillia, 359 Pa. Super. 302, 518 A.2d 1246 (1986). It merely added the names of victims of whose existence and role in the criminal scenario appellant was cognizant ...


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