Harassment Simple Assault Lesser-Included Offense Notice of Amendment to Criminal Information
Commonwealth v. Williams, PICS Case No. 17-1135 (Pa. Super. June 30, 2017) Fitzgerald, J. (9 pages).
Trial court erroneously permitted commonwealth to reinstate dismissed charge at the beginning of trial without notice to defendant, and further erred by granting the commonwealth's motion at the close of evidence, thereby depriving defendant of opportunity to prepare and present defense to reinstated charge. Judgment of sentence reversed, charge dismissed.
Addie Williams appealed from the judgment of sentence of guilty without further penalty following her conviction for harassment. Appellant was arrested after her daughter called the police and alleged that appellant locked her and her brothers out of their house, and had hit her in the mouth earlier in the day. Appellant was charged with multiple counts of endangering the welfare of children, one count of simple assault, and one count of harassment.
All charges except for simple assault were dismissed at appellant's preliminary hearing. However, at the beginning of trial the commonwealth orally moved to amend the information to reinstate the charge of harassment, arguing that such an amendment was proper because harassment was a lesser-included offense of simple assault. Defense counsel objected, asserting that, unless the amendment was to correct a defect in form or description, appellant was entitled to notice prior to the commonwealth's attempt to amend. The trial court noted defense counsel's argument, but suggested that appellant had notice of the harassment charge because the commonwealth had previously offered to permit her to plead guilty to harassment without further penalty.
At the close of evidence, defense counsel tailored his closing argument to the simple assault charge, while the commonwealth argued that appellant was guilty of simple assault, or in the alternative, harassment. The trial court found appellant not guilty of simple assault, but granted the commonwealth's motion to amend the information to add a charge of harassment, and found appellant guilty on that charge.
On appeal, appellant argued that the charge of harassment had to be dismissed due to the commonwealth's violation of the rules of criminal procedure requiring notice of amendment. The commonwealth conceded that the procedure in the trial court did not comply with the procedural rules. The court agreed with appellant that dismissal of the charge was the proper remedy, noting that the commonwealth violated the rule requiring the commonwealth to approve, in writing, the re-filing of the dismissed harassment charge with the issuing authority that dismissed it, and that the trial court violated the rule requiring a defendant to receive another preliminary hearing on a reinstated charge.
Moreover, the court noted that the trial court did not rule on the commonwealth's motion to amend the information to reinstate the harassment charge until after trial and after defense counsel had given an argument tailored to the only charge in the information. The court further ruled that harassment was a clearly different offense than simple assault, and thus the commonwealth's and trial court's action deprived appellant of the opportunity to prepare or present a defense to the new harassment charge. Finally, the court rejected the commonwealth's mootness argument, holding that, although appellant suffered no collateral consequences as she was found guilty without penalty, the circumstances of this case were capable of repetition yet evading review, noting that the commonwealth could otherwise continue to unjustly expose defendants to the stigma of a criminal record by adding new charges immediately before or during trial.