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[U] Commonwealth v. Trimble

Superior Court of Pennsylvania

February 11, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
BRIAN A. TRIMBLE, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence January 22, 2013 in the Court of Common Pleas of Delaware County, Criminal Division, at No(s): CP-23-CR-0004050-2012

BEFORE: BENDER, P.J., OTT, J. and STRASSBURGER, [*] J.

MEMORANDUM

STRASSBURGER, J.

Brian A. Trimble (Appellant) appeals from his January 22, 2013 judgment of sentence of 48 to 96 months of imprisonment, a consecutive five years of probation, and lifetime sexual offender registration, following his convictions of aggravated indecent assault by forcible compulsion and indecent assault by forcible compulsion.[1] We affirm.

The trial court summarized the underlying facts as follows.

On the afternoon of May 31, 2012, Ashley Harnett met Brad Patch, an ex-boyfriend, and Appellant in the parking lot of Bally's Gym in Woodlyn, PA, to help unlock a friend's car. Ms. Hartnett testified that she had never met Appellant prior to this encounter. Once the car was unlocked, Ms. Hartnett mentioned to Mr. Patch that she needed some furniture moved at her house, and Mr. Patch and Appellant offered to move the furniture. After the three stopped at a local bar for beers, Mr. Patch and Appellant followed Ms. Hartnett to her house in Ridley Park, Delaware County, PA. When they arrived at her house, Ms. Hartnett, Mr. Patch, and Appellant went inside, and they all chatted for a while, during which time Ms. Hartnett described her tattoos. Then, the two men moved two dressers for her, which took about twenty (20) minutes, and then talked to her for another ten (10) minutes. Ms. Hartnett testified that during this time, she noticed Appellant received a text message and put his phone into his pocket. Then, Mr. Patch said he needed to leave, both men left the house, and Ms. Hartnett remained there alone. Ms. Hartnett testified that up to this point, her interactions with Appellant were normal and not flirtatious.
About fifteen (15) minutes later Appellant returned to Ms. Hartnett's house alone, claiming that he left his cell phone there. After Ms. Hartnett gave him permission to look for his phone, Appellant spent a brief time upstairs and a brief time in the basement and then returned to the living room without finding his phone. Ms. Hartnett testified that she then questioned him about putting his phone in his pocket, and he responded by looking at her and lifting up his shirt, at which time she saw the black handle of a gun tucked into Appellant's pants.
After seeing the gun, she sat down on the middle cushion of her couch, and Appellant asked her for a cigarette and sat down next to her. Ms. Hartnett testified that after engaging in small-talk for a while, Appellant touched her knee without saying anything and attempted to touch other parts of her leg. She testified that she reacted by moving his hand away, to which Appellant responded, "you know you want to, " and "you so small. You're breakable." Ms. Hartnett testified that when she moved to the corner of the couch, Appellant grabbed her ankles and pulled her horizontally onto her back so that she was lying down on the couch. She also testified that Appellant held her arms down, said that he wanted to see the tattoo on her leg, and removed her jeans. She testified that Appellant then said he wanted to see the tattoos on her back and told her to take off her shirt. She testified that she turned over, that Appellant began kissing her neck, and that she tried to but could not move her head. She testified she told Appellant she "didn't want to do this" and "to stop, " and in response he pressed harder on her shoulders with his hands. Ms. Hartnett testified that Appellant then physically turned her over and, still holding her shoulders with one hand, unzipped his pants. She testified that she said no and told him to stop, but he vaginally penetrated her. She testified that Appellant then zipped his pants, said "nobody has to know about this, right?, " and left her house.
After Appellant left, Ms. Hartnett went to her bedroom and fell asleep. The next day Ms. Hartnett told Ms. Lisa Lee that she was raped the previous night, and Ms. Lee called the police. The police came to Ms. Hartnett's house, spoke with Ms. Hartnett, and called an ambulance so that Ms. Hartnett could go to the hospital and receive a rape kit. Ms. Foresman-Capuzzi performed a physical examination of Ms. Hartnett at Taylor Hospital. The only injuries she found were two marks on Ms. Hartnett's labia minora, but she testified that she could not determine what caused the injuries or if the marks were made as a result of consensual sexual contact.
Appellant's testimony significantly conflicted with the testimony of Ms. Hartnett. Appellant testified that he met Ms. Hartnett one week prior to May 31, 2012 in a bar. He also testified that when he, Mr. Patch, and Ms. Hartnett arrived at Ms. Hartnett's house, she made Appellant a cup of coffee and was "making out" with Mr. Patch in front of him. In addition, Appellant testified that he was carrying two cell phones on the night of the incident. He also testified that when he returned to the house to look for his old phone, he initially sat down on a separate couch from the one Ms. Hartnett was sitting on and later moved to the same couch as her, after asking if he could do so, because he was smoking a cigarette and needed to be near an ashtray on the coffee table. He testified that he asked Ms. Hartnett if she wanted him to leave, and she responded that he could stay.
According to Appellant's testimony, after they were sitting on the same couch Ms. Hartnett began giving him flirtatious looks, asked if he wanted to rub her back, and then took her shirt and bra off after he asked if he could do so. Appellant testified that Ms. Hartnett then started talking about her tattoos, Appellant asked to see the tattoo on her leg, and Ms. Hartnett removed her pants to show him the tattoo. He testified that he massaged her back, and then the two began kissing and eventually had consensual sexual intercourse. He also testified that he remained at Ms. Hartnett's house for over an hour after that, and Ms. Hartnett said that Appellant should not tell anyone about anything that happened because "this was a one time deal." He also testified that before leaving he asked if he could call her later and kissed and hugged her. Finally, Appellant testified that he has never owned a gun.

Trial Court Opinion (TCO), 6/21/2013, at 1-5 (citations omitted).

On June 8, 2012, Appellant was charged with rape by threat of forcible compulsion, aggravated indecent assault without consent, indecent assault without consent, terroristic threats, and possession of instruments of crime.[2] Following a preliminary hearing and arraignment, Appellant proceeded to a jury trial. On October 17, 2012, at the close of its case-in-chief, the Commonwealth sought to amend the charges of rape, aggravated indecent assault, and indecent assault. The trial court allowed the amendments over Appellant's objection, adding the charge of rape by forcible compulsion, 18 Pa.C.S. § 3121(a)(1); and substituting aggravated indecent assault by forcible compulsion and indecent assault by forcible compulsion, 18 Pa.C.S. §§ 3125(a)(2) and 3126(a)(2), for the original charges of committing those crimes without consent per subsections (a)(1) of the respective statutes.[3] Thereafter, the Commonwealth rested and Appellant took the stand to present his defense that Ms. Hartnett consented to the activities of the night in question.

The jury convicted Appellant of aggravated indecent assault by forcible compulsion and indecent assault by forcible compulsion; it found him not guilty of all other charges. Appellant was sentenced as detailed above and filed post-sentence motions which were denied by order of March 1, 2013. Appellant timely filed a notice of appeal. Appellant subsequently complied with a trial court order granting him leave to file a concise statement of errors complained of on appeal nunc pro tunc. The trial court filed an opinion on June 21, 2013, and the case is ripe for our review.

Appellant presents one question to this Court: "whether the trial court abused its discretion when it permitted the Commonwealth to amend the criminal informations at the close of the Commonwealth's case." Appellant's Brief at 7 (capitalization omitted).

We consider Appellant's question mindful of the following.

According to Pa.R.Crim.P. 564, the court may permit amendment of an information "when there is a defect in form, the description of the offense(s), the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense." Pa.R.Crim.P. 564. … "[T]he purpose of Rule 564 is to ensure that a defendant is fully apprised of the charges, and to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of which the defendant is uninformed." Commonwealth v. Sinclair, 897 A.2d 1218, 1221 (Pa.Super. 2006). [O]ur courts apply the rule with an eye toward its underlying purposes and with a commitment to do justice rather than be bound by a literal or narrow reading of the procedural rules.

As stated in Sinclair, when presented with a question concerning the propriety of an amendment, we consider:

[w]hether 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 so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. 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 amend[ment] is not permitted.

Sinclair, 897 A.2d at 1221 [ ]. Additionally,

[i]n reviewing a grant to amend an information, the Court will look to whether the appellant was fully apprised of the factual scenario which supports the charges against him. Where the crimes specified in the original information involved the same basic elements and arose out of the same factual situation as the crime added by the amendment, the appellant is deemed to have been placed on notice regarding his alleged criminal conduct and no prejudice to defendant results.

Id. at 1222. Further, the factors which the trial court must consider in determining whether an amendment is prejudicial are:

(1) whether the amendment changes the factual scenario supporting the charges; (2) whether the amendment adds new facts previously unknown to the defendant; (3) whether the entire factual scenario was developed during a preliminary hearing; (4) whether the description of the charges changed with the amendment; (5) whether a change in defense strategy was necessitated by the amendment; and (6) whether the timing of the Commonwealth's request for amendment allowed for ample notice and preparation.
Id. (citation omitted). Most importantly, we emphasize that the mere possibility [an] amendment of [the] information may result in a more severe penalty ... is not, of itself, prejudice.

Commonwealth v. Mentzer, 18 A.3d 1200, 1202-1203 (Pa.Super. 2011) (some quotations and citations omitted).

Appellant posits that the amendments "clearly changed the nature, character and elements of the crimes originally charged." Appellant's Brief at 14. Appellant claims that the original charges, alleging only lack of consent, "necessarily implied" that the victim suffered "some manner of mental infirmity" rather than having been forced to have sexual contact with him. Id. at 14-15. Appellant argues that the amendments "were permitted suddenly and without warning at the last possible minute" and that he was unaware until that time "that he was actually being tried for the crime of engaging in sex with the victim by means of forcible compulsion." Id. at 15. Appellant further claims that he was prejudiced by the lack of notice, as it required him, without any time to prepare, "to shift focus and abandon his primary line of defense." Id.

We disagree. First, as the trial court noted, even Appellant acknowledged that the amendments did not change the factual scenario, and Appellant was aware of all of Ms. Hartnett's allegations to which she testified at trial. Trial Court Opinion, 6/21/2013, at 9 (quoting N.T., 10/17/2012, at 137-138). Indeed, as the Commonwealth notes, the original affidavit of probable cause, which was supported by the preliminary hearing testimony, stated that Ms. Hartnett informed the police that Appellant showed her in a threatening manner that he had a gun and then "held her down on the couch[, ] took her pants off[, ] and forcibly sexually assaulted her by inserting his fingers, and his penis into her vagina while holding her arms pinned against the living room couch." Commonwealth's Brief at 15. See also N.T., 6/18/2012, at 17 (wherein Ms. Hartnett testified that Appellant "[he]ld me down by my shoulders"). There was simply nothing factually new or surprising added by the amendments.

Second, the amended information alleges crimes with the same basic elements as those originally charged. The statutes at issue provide as follows.

§ 3125. Aggravated indecent assault

(a) Offenses defined.--… a person who engages in penetration, however slight, of the genitals or anus of a complainant with a part of the person's body for any purpose other than good faith medical, hygienic or law enforcement procedures commits aggravated indecent assault if:
(1) the person does so without the complainant's consent;
(2)the person does so by forcible compulsion;
(3) the person does so by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
(4) the complainant is unconscious or the person knows that the complainant is unaware that the penetration is occurring;
(5) the person has substantially impaired the complainant's power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance;
(6) the complainant suffers from a mental disability which renders him or her incapable of consent….

18 Pa.C.S. § 3125(a).

§ 3126. Indecent assault

(a) Offense defined.--A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and:
(1) the person does so without the complainant's consent;
(2)the person does so by forcible compulsion;
(3) the person does so by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
(4) the complainant is unconscious or the person knows that the complainant is unaware that the indecent contact is occurring;
(5) the person has substantially impaired the complainant's power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance;
(6) the complainant suffers from a mental disability which renders the complainant incapable of consent….

18 Pa.C.S. § 3126(a).

A mere glance at the statutes belies Appellant's argument that being charged under subsections (a)(1) "necessarily implied that the victim was not forcibly put upon by an attacker but instead posed the claim that the victim was incapable of participating in the sexual activity [consensually] due to some manner of mental infirmity." Id. at 14-15 (emphasis in original). Appellant was not originally charged under subsections (a)(4), (a)(5), or (a)(6) of the statutes, which specify those forms of lack of consent. As the Commonwealth argues, the original charges required it to prove that Ms. Hartnett did not consent, while "[t]he amended charges required the Commonwealth to prove not only that the victim did not consent but the reason she did not consent was the use of force and threat of force caused by [Appellant's] forcible positioning of the victim and his display of the gun." Commonwealth's Brief at 15. Accordingly, the trial court reasonably concluded that the amended charges do not contain substantially different elements.

Third, although Appellant baldly claims that he had to change his defense strategy, this claim is not supported by the record. He points to nothing of record that indicates that he intended to defend the case by showing that Ms. Hartnett did indeed have the capacity to consent. Rather, Appellant's opening statement to the jury confirms the trial court's assertion that "Appellant's defense strategy did not, and need not have changed, since he originally and continued to argue that the victim consented, which is a defense to all charges, both original and amended." Trial Court Opinion, 6/21/2013, at 11. See also N.T., 10/16/2012, at 139 (wherein Appellant's counsel, in his opening statement, informs the jury that "they had sex, consensual sex" and that the medical evidence showed "not a mark on Miss Hartnett. Not a bruise.").

Certainly the timing of the amendment was not optimal, coming in the middle of trial. Given that, as discussed above, the issue of force was known to the Commonwealth from the beginning of the case, it could have sought amendment at an earlier date. However, because "the crimes specified in the original information involved the same basic elements and arose out of the same factual situation as the crime added by the amendment, the appellant is deemed to have been placed on notice regarding his alleged criminal conduct and no prejudice to defendant results." Sinclair, 897 A.2d at 1221. Therefore, because the record does not reflect that Appellant suffered prejudice, despite the lateness of the amendments, we conclude that the trial court did not err or abuse its discretion in allowing it. See Commonwealth v. Page, 965 A.2d 1212 (Pa.Super. 2009), appeal denied 74 A.3d 125 (Pa. 2013) (affirming amendment of information at the close of evidence but before closing arguments where the appellant suffered no prejudice).

Judgment of sentence affirmed.

Judgment Entered.

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