# Commonwealth v. Page

> Superior Court of Pennsylvania · February 3, 2009 · 2009 Pa. Super. 20

URL: https://www.frixlaw.com/law-library/cases/4964151

## Case

- **Full name:** COMMONWEALTH of Pennsylvania v. David PAGE
- **Court:** Superior Court of Pennsylvania
- **Decided:** February 3, 2009
- **Citations:** 2009 Pa. Super. 20; 965 A.2d 1212; 2009 Pa. Super. LEXIS 28
- **Precedential status:** Published
- **Opinion:** Concurring in part by McEwen
- **Judges:** Elliott, Freedberg, McEwen
- **Cited by:** 123 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4964151

## How later opinions describe it (automated extraction)

- stating that “[a] person is considered to be in custody for the purposes of Miranda when the officer’s show of authority leads the person to believe that she was not free to decline the officer’s request, or otherwise terminate the encounter.” (citation omitted)
- holding that “the victim’s testimony about [the a]ppellant’s physical abuse of her mother was not unduly prejudicial” where “[t]he reference was admitted to explain the victim’s delay in reporting”
- explaining that where a curative instruction issued in response to an objection and the objecting party does not object to the instruction, “any claim in relation to its adequacy is waived”
- stating that the court is not required to sanitize the trial by eliminating relevant, albeit unpleasant, facts
- explaining that evidence is not prohibitively prejudicial simply because it is harmful to a defendant

## Opinion text

CONCURRING AND DISSENTING STATEMENT BY
McEWEN, P.J.E.:
¶ 1 While the Opinion of the majority reveals a careful analysis and presents a perceptive rationale to support positions with which, in substantial measure, I agree, I am compelled to differ with the ruling that the Commonwealth was properly permitted to amend the information at the close of the presentation of evidence at *1225 trial. Rule 564 of the Pennsylvania Rules of Criminal Procedure provides in relevant part that an information may be amended “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 (emphasis supplied).
¶ 2 Here, the decision of the trial court to allow the Commonwealth to amend the information fundamentally altered the crime of which appellant was charged from a felony of the second degree, which carried a maximum minimum sentence of five years imprisonment, to a felony of the first degree, which carried a maximum minimum sentence of ten years imprisonment. See: 18 Pa.C.S. § 1108; 42 Pa.C.S. § 9752(b). Moreover, unlike the case of Commonwealth v. Sinclair, 897 A.2d 1218 (Pa.Super.2006) — upon which the majority relies — where the amendment was permitted on the fírst day of trial and this Court suggested that the defendant would have been entitled to a continuance if sought, here the amendment was permitted when the presentation of evidence had been completed and the trial judge was about to deliver the charge to the jury. As a result, appellant was preempted from adjustment of his trial strategy, which might well have included the tactic of pleading guilty to the lower graded felony.
¶ 8 It bears particular emphasis that this Court in Sinclair specifically remarked that “for purposes of amending an information, a substantive amendment is one that changes the nature or grade of the offense charged.” Id., 897 A.2d at 1223 n. 8 (emphasis supplied). 4
¶ 4 Therefore, while I join in the Opinion of the majority in most aspects, I am of the mind, most respectfully, that the trial court erred when it permitted the prosecution to amend the information at the conclusion of the presentation of all of the evidence by both parties. Accordingly, I would vacate the judgment of sentence on that conviction and remand this case for resentencing on the lesser graded offense.
. It bears further mention that in the other case relied upon by the majority, namely, Commonwealth v. Roser, 914 A.2d 447 (Pa.Super.2006), appeal denied, 592 Pa. 788 , 927 A.2d 624 (2007), the Court specifically found that the amended charges were "filed under a different section of the same DUI statute,” and that the change was "prompted by” defendant’s own defense strategy of confessing to a different crime in the hope of escaping responsibility for the originally charged offense. Id. at 455.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4964151. Public record. Not legal advice.