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COMMONWEALTH PENNSYLVANIA v. FRANK DESUMMA (05/31/89)

decided: May 31, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
FRANK DESUMMA, APPELLANT



Appeal from the Order of the Superior Court at No. 02429 Philadelphia, 1986, dated November 10, 1987, affirming the Judgment of Sentence imposed on August 1, 1986, in the Court of Common Pleas of Bucks County, Criminal Division, at No. 85-3224. Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Nix, C.j., did not participate in the consideration or decision of this case. Papadakos, J., files a dissenting opinion in which McDermott, J., joins.

Author: Flaherty

[ 522 Pa. Page 37]

OPINION OF THE COURT

This appeal requires us to interpret Pa.R.Crim.P. 229 in reviewing the propriety of amending a criminal complaint at trial to include victims of assault who were not named in the original complaint. The trial court allowed the amendment on the ground that appellant was not surprised or prejudiced by the addition of new victims, and appellant was convicted. We reverse, due to violation of Rule 229.

The appellant, Frank DeSumma, was offended one evening by the inconsiderate driving of Frank O'Hara, who cut him off in traffic. Appellant exchanged angry words with O'Hara, then displayed a handgun, menacing O'Hara and his four passengers, while the two vehicles were proceeding side-by-side on the highway. After both drivers pulled off the highway, a police officer arrived and took statements of the parties. Appellant voluntarily surrendered his loaded handgun, which he was licensed to carry, and was then arrested and charged with simple assault upon O'Hara and recklessly endangering O'Hara, in violation of 18 Pa.C.S. ยงยง 2701(a)(3) and 2705. Appellant was not charged with assaulting or endangering the four passengers, though their names were available in the police report.

At appellant's preliminary hearing, only O'Hara and the arresting officer testified against appellant. None of the

[ 522 Pa. Page 38]

    passengers appeared at the hearing. The Commonwealth established a prima facie case through O'Hara's testimony that appellant pointed a gun at him while both were driving their cars, and by the officer reading his report into the record, including the portion identifying the four passengers.

Before appellant's trial, however, O'Hara disappeared and could not be subpoenaed to testify for the Commonwealth. One of the passengers, Michelle Sharper, was available and was summoned to testify. Due to O'Hara's absence, the Commonwealth moved to amend the information to add the names of the four passengers, requesting that the first count charge appellant with assaulting O'Hara and four named passengers and the second count charge appellant with recklessly endangering O'Hara and four named passengers. Because the four passengers had been identified by name at the preliminary hearing, the trial court granted the motion, reasoning that appellant could not claim surprise and that the amendment did not prejudice him in any way. The court categorically refused, however, to add counts naming individual passengers in the additional counts. Over appellant's objection, he was tried on the amended two-count complaint, wherein each count named five victims instead of one.

Following a jury trial, appellant was convicted of simple assault; he was acquitted of recklessly endangering another person. Superior Court affirmed his judgment of sentence, following the rationale of the trial court. Judge Wieand, in dissent, expressed the opinion that the amendment did not comply with Pa.R.Crim.P. 229, which prohibits amendments charging additional or different offenses. Relying on cases such as Commonwealth v. Johnson, 336 Pa. Super. 1, 485 A.2d 397 (1985), and Commonwealth v. Stanley, 265 Pa. Super. 194, 401 A.2d 1166 (1979), aff'd 498 Pa. 326, 446 A.2d 583 (1982), the dissent maintained that the purpose of Rule 229 is to give a defendant adequate notice and time to prepare for trial without risk of last-minute additions to the charge which materially alter potential

[ 522 Pa. Page 39]

    defenses. Judge Wieand concluded that the amendment was prejudicial because it added an additional and different offense:

He arrived for trial anticipating that he would be required to defend against a charge that he had pointed a loaded gun at O'Hara with the intent of putting O'Hara in fear of imminent bodily injury. At trial, however, he found that he was required to defend against an accusation that he had intended to put in fear of bodily injury the passengers in the other vehicle with whom he had not exchanged words and with whom he had no quarrel. Until the time when trial started, there had not ...


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