Com. v. Rivera, J.

J-A03033-21

                                   

  COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
  JONATHAN RIVERA                              :
                                               :
                       Appellant               :   No. 1788 MDA 2019

     Appeal from the Judgment of Sentence Entered September 26, 2019
    In the Court of Common Pleas of Bradford County Criminal Division at
                      No(s): CP-08-CR-0000606-2018


BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.

OPINION BY LAZARUS, J.:                                   FILED MAY 24, 2021

       Jonathan Rivera appeals from the judgment of sentence, entered in the

Court of Common Pleas of Bradford County, after a jury convicted him of four

counts of corruption of minors—course of conduct;1 three counts of indecent

assault—person less than 13 years of age;2 two counts of indecent exposure;3

and one count each of criminal attempt to commit indecent assault—person

less than 13 years of age,4 and endangering the welfare of a child (EWOC).5

After careful review, we affirm in part, vacate in part, and remand.

____________________________________________


1 18 Pa.C.S.A. § 6301(a)(1)(ii).


2 18 Pa.C.S.A. § 3126(a)(7).Counts 21 and 22 were graded as third-degree
felonies. Count 24 was graded as a first-degree misdemeanor.

3 18 Pa.C.S.A. § 3127(a).


4 18 Pa.C.S.A. §§ 901, 3126(a)(7).


5 18 Pa.C.S.A. § 4304(a)(1).
J-A03033-21



Specifically, because the Commonwealth’s amendment to the criminal

information unfairly prejudiced Rivera, we vacate Rivera’s convictions under

Counts 21 and 22, and remand for a new trial. Additionally, because the jury

did not find that Rivera’s EWOC conviction was the result of a course of

Rivera’s conduct or that his actions resulted in a substantial risk of death or

serious bodily injury, we remand for resentencing on Count 15. We affirm

Rivera’s remaining convictions.

       On April 17, 2018, F.M.6 recorded a video in which her daughter, G.R.,7

accused Rivera of various acts constituting criminal sexual assault. The next

day, F.M. recorded another video in which her niece, C.P.,8 accused Rivera of

similar inappropriate behavior.        F.M. then took these videos to the police,



____________________________________________


6 F.M. is G.R.’s mother and K.M.’s sister.   K.M. is C.P.’s mother. K.M. lived
with Rivera and C.P. at the time of the initial police reports.

7 G.R., born in October of 2010, was seven years old at the time of the initial

police report. G.R. alleged that Rivera committed multiple acts including
anally penetrating her, telling her to touch his privates, exposing himself to
her, and choking her with a lollipop. As discussed infra, Counts 2, 3, 6, 7,
14, 16, 21, and 25 of the Commonwealth’s charges, naming G.R. as the victim,
alleged a continuing course of conduct dating from January 1, 2009, which
predated G.R.’s birth by nearly two years.

8 C.P., born in March of 2010, was eight years old at the time of the initial

police report. C.P. alleged that Rivera anally penetrated her, touched her
privates with his private, and exposed himself to her. As discussed infra,
Counts 4, 5, 8-11, 17, 22, and 26, naming C.P. as the victim, alleged a
continuing course of conduct dating from January 1, 2009, which predated
C.P.’s birth by nearly one year.



                                           -2-
J-A03033-21



which led to the discovery of two additional child victim complainants, S.C.9

and S.M.10

       On September 7, 2018, the Commonwealth charged Rivera with: Count

1—aggravated assault11 (victim G.R.); Counts 2 and 3—rape of a child12

(victim G.R.); Counts 4 and 5—rape of a child (victim C.P.); Counts 6 and 7—

involuntary deviate sexual intercourse13 (IDSI) (victim G.R.); Counts 8 and

9—IDSI (victim C.P.); Counts 10 and 11—attempted aggravated indecent

assault14 (victim C.P.); Counts 12 and 13—attempted aggravated indecent

assault (victim S.M.); Count 14—attempted aggravated indecent assault

(victim G.R.); Count 15—EWOC (victim G.R.); Counts 16, 17, 18, and 19—
____________________________________________


9 S.C., born in February of 2008, is K.R.’s daughter. K.R. was married to
Rivera, and the trio lived together for approximately three years. S.C. alleged
that Rivera rubbed her doll against his private parts and touched S.C.
inappropriately on her butt, over her clothing. S.C. was of elementary school
age when she lived with Rivera in Pennsylvania, but the Commonwealth
alleged the criminal acts commenced when S.C. was eleven months old.

10 S.M., born in March of 2003, testified that Rivera was her uncle’s friend.

S.M. lived and visited with that uncle in Scranton, Pennsylvania, on multiple
occasions in 2009, when she was six years old. S.M. alleged that Rivera
touched her inappropriately between four and nine times, once putting his
hands inside her underwear, and another time rubbing her stomach until she
fell asleep, after she woke up to find him on her bedroom floor apparently
looking for something.

11 18 Pa.C.S.A. § 2702(a)(1).


12 18 Pa.C.S.A. § 3121(c).


13 18 Pa.C.S.A. § 3123(b).


14 18 Pa.C.S.A. § 3125(a)(7).




                                           -3-
J-A03033-21



corruption of minors (victims G.R., C.P., S.C., and S.M., respectively); Count

20—simple assault15 (victim G.R.); Counts 21, 22, 23, and 24—indecent

assault of a child (victims G.R., C.P., S.C., and S.M., respectively); and Counts

25 and 26—indecent exposure (victims “two female juveniles”).

       On January 14, 2019, the court dismissed Count 13 as duplicative of

Count 12, and further ordered the Commonwealth to identify the complainants

for Counts 25 and 26. On July 31, 2019, mere days before the scheduled trial,

the Commonwealth—apparently disregarding the fact that the court had

already dismissed Count 13—moved to amend the information by changing

the location of Counts 12 and 13 and specified the victims for Counts 25 and

26, as G.R. and C.P., respectively.            The court commenced a jury trial on

August 6, 2019.

       At trial, following defense questioning of Pennsylvania State Trooper

Christopher Higdon, the Commonwealth inquired if Rivera, having been read

his Miranda16 warnings after his arrest, denied the charges against him.

Trooper Higdon, over defense counsel’s objection, testified that Rivera did not

deny committing the offenses and that Rivera wished to remain silent. See

N.T. Jury Trial, 8/6/19, at 101-02.

       The Commonwealth rested its case-in-chief on August 7, 2019. The

defense began presentation of its witnesses that same day. On August 8,

____________________________________________


15 18 Pa.C.S.A. § 2701(a)(1).


16 See Miranda v.      Arizona, 

 (1966).

                                           -4-
J-A03033-21



2019, the court dismissed Counts 10, 11, and 14, after the Commonwealth

agreed that it had proffered insufficient evidence to prove those charges.

Additionally, the court permitted the Commonwealth to amend Counts 12, 21,

and 22 by changing the latter two counts from first-degree misdemeanors

charged pursuant to subsection 3126(b)(3), to third-degree felonies charged

pursuant to subsection 3126(b)(3)(iii). See N.T. Jury Trial, 8/8/19, at 7-9.

       On August 8, 2019, the jury returned a verdict acquitting Rivera of

Counts 1-9, 20, and 23, and convicting Rivera of Counts 12, 15, 16-19, 21,

22, and 24-26. At the sentencing hearing held on September 26, 2019, the

court sentenced Rivera to an aggregate term of eight to fifty-two years’

incarceration. Rivera filed a timely notice of appeal; both he and the trial

court have complied with Pa.R.A.P. 1925.

       Following our grant of two extensions of time, see Order, 4/13/20;17

Order, 6/12/20,18 Rivera filed his appellate brief on July 6, 2020. Having also

been granted an extension, see Order, 7/31/20,19 the Commonwealth filed its

appellate brief on September 4, 2020. We subsequently granted two more
____________________________________________


17 Without opposition from the Commonwealth, Rivera requested, and this
Court granted, a 60-day extension to file his appellate brief. We ordered
Rivera to file his brief on or before June 22, 2020.

18 On June 10, 2020, Rivera, requested a 14-day extension, which the
Commonwealth did not oppose. We granted the request and ordered that
Rivera file his brief no later than July 6, 2020.

19 We granted the request and ordered the Commonwealth to file its brief on

or before September 4, 2020.



                                           -5-
J-A03033-21



extensions, see Order, 9/22/2020 and Order, 10/15/20,21 after which Rivera

filed a reply brief on November 13, 2020.          On November 23, 2020, we

continued the case.22

       On January 14, 2021, we ordered the parties to submit supplemental

briefs on or before January 28, 2021, to “specifically address how the Supreme

Court’s decision in Commonwealth v. McClelland, 

 (Pa. 2020),

applies to the instant case.”23 Order, 1/14/21. Both parties complied.

____________________________________________


20 We granted the request and ordered Rivera to file his reply brief on or before

October 30, 2020, and noted that no further extensions would be granted.

21 We granted Rivera’s request for an extension and ordered Rivera to file his

reply brief on or before November 13, 2020, again noting that no further
extensions would be granted.

22 We granted the Commonwealth’s application for continuance, in which
Rivera joined, ordering the Harrisburg Prothonotary’s Office to list this case
for the next available argument panel. The Prothonotary complied, at which
point this panel assumed jurisdiction over this case and listed it for remote
video-teleconference argument on February 4, 2021, due to the ongoing
COVID-19 pandemic.
23 The parties agree that the Commonwealth proved its        prima facie case at
Rivera’s preliminary hearing by relying solely on hearsay evidence. See N.T.
Preliminary Hearing, 8/17/18. In McClelland, our Supreme Court held that
the Commonwealth may not establish a prima facie case against a defendant
relying on hearsay evidence alone. See 

 (reversing the previous
rule set forth in Commonwealth v. Ricker, 

 (Pa. Super. 2015)).
Rivera raised the issue of the adequacy of the Commonwealth’s prima facie
case in his Rule 1925(b) statement, but abandoned it in his original appellate
brief. The trial court’s Rule 1925(a) opinion addressed the issue, but relied
on Ricker in recommending we find no error. We note that our Supreme
Court published the McClelland decision on July 21, 2020, after Rivera’s case
was already on appeal. Subsequent to our supplemental briefing order, Rivera
argued that his failure to raise the issue in his appellate brief did not result in



                                           -6-
J-A03033-21



       Following our review of the Supreme Court’s decision in McClelland,

the parties’ briefs, relevant case law, and the certified record on appeal, we

find that the Supreme Court did not intend to extend McClelland’s holding to

cases such as this one, where the complained-of defect in the preliminary

hearing is subsequently cured at trial. Cf. Commonwealth v. Ballard, 

 (Pa. 1987) (“A finding at a preliminary hearing that sufficient

evidence exists to require a defendant to stand trial is not subject to review if

there has been a subsequent independent judicial judgment that there is

sufficient    evidence      to    require      the   defendant to   stand   trial.”);

Commonwealth v. Tyler, 

 (Pa. Super. 1991) (purpose of

preliminary hearing is not to prove guilt but to avoid defendant’s incarceration

or trial unless sufficient evidence establishes crime was committed and

probability that defendant was involved; “Once [an] appellant has gone

to trial and been found guilty of the crime, any defect in the

preliminary hearing is rendered immaterial[.]”) (emphasis added;

internal citation omitted); Commonwealth v. Mignogna, 

 (Pa.

Super. 1990) (deficiency in evidence at preliminary hearing cured where trial

judge determines trial evidence is sufficient for submission to jury).




____________________________________________


waiver because it would have been futile for Rivera to raise the issue where,
at the time of the preliminary hearing, Ricker was governing law. See
Appellant’s Supplemental Brief, at 4-9. Nevertheless, for the reasons noted
in this decision, we find we cannot apply McClelland retroactively to the
instant case.

                                            -7-
J-A03033-21



      Here, because the Honorable Evan S. Williams, III, determined that the

Commonwealth’s trial evidence was sufficient to submit Rivera’s case to the

jury, any defect that existed in the evidence proffered at Rivera’s preliminary

hearing was subsequently cured. See 

 and

 cf. McClelland, supra at 725 (interlocutory appeal taken

from pre-trial order denying motion seeking writ of habeas corpus);

Commonwealth ex rel. Buchanan v. Verbonitz, 

 (Pa.

1990) (appeal taken from pre-trial order denying motion seeking writ of

habeas corpus). Moreover, Rivera fails to argue that the defect in the evidence

at the preliminary hearing tainted the validity of the verdict. See 

 (“[A] defendant must establish the existence of actual prejudice

arising from a denial of due process at the preliminary hearing in order to be

afforded the remedy of discharge.”); cf. Appellant’s Supplemental Brief, at 10

(“[The defects alleged here by Rivera] are of a type that require reversal

without a showing of prejudice.”) (emphasis added). Therefore, we will

not consider any deficiency in the Commonwealth’s evidence that may have

existed prior to this case’s submission to the jury, and we will proceed to

address the issues Rivera raises on appeal.

      On appeal, Rivera presents the following issues for our review:

      1. Whether the trial court committed reversible constitutional
      error when it admitted testimony commenting on Mr. Rivera’s
      post-arrest, post-Miranda, exercise and assertion of his right to
      silence?

      2. Whether the trial court erred by permitting the Commonwealth
      to amend the [i]nformation to add new felony offenses on the last

                                     -8-
J-A03033-21


      day of trial, after the defense case was underway, and the
      defendant was prejudiced by the amendment?

Appellant’s Brief, at 5.

      First, Rivera claims that he is entitled to a new trial because the court

admitted evidence of his post-arrest and post-Miranda silence, in violation of

his constitutional rights to remain silent under the 5th and 14th Amendments

of the United States Constitution, and Article 1, Section 9 of the Pennsylvania

Constitution.   See Appellant’s Brief, at 31-43; see also Appellant’s Reply

Brief, at 1-15.    Specifically, Rivera argues that the court permitted the

Commonwealth to place evidence into the record in contravention of our

Supreme Court’s decision in Commonwealth v. Turner, 

 (Pa.

1982), wherein our Supreme Court stated that, to admit evidence of the

defendant’s post-arrest silence:

      [T]he Commonwealth must seek to impeach a defendant’s
      relation of events by reference only to inconsistencies as
      they factually exist, not to the purported inconsistency between
      silence at arrest and testimony at trial. Silence at the time of
      arrest may become a factual inconsistency in the face of an
      assertion by the accused while testifying at trial that he
      related this version to the police at the time of arrest
      when[,] in fact[,] he remained silent.

 at 539-40 (citing Doyle v. Ohio, 

 (1976)) (emphasis added).

Rivera claims that his counsel’s questioning of Trooper Higdon, on cross-

examination, inquired into the completeness of the Trooper’s pre-arrest

investigation as well as the Commonwealth’s bases for seeking Rivera’s arrest,

rather than inquired into whether Rivera denied the allegations against him at

the time of his arrest.    Restated, Rivera claims that the Commonwealth


                                     -9-
J-A03033-21



improperly relies on the defense question that related to Rivera’s pre-arrest

statements in asserting that a factual inconsistency existed at trial regarding

Rivera’s alleged post-arrest denial of the criminal charges against him.

      The Commonwealth relies on our Supreme Court’s decision in

Commonwealth v. Copenhefer, 

 (Pa. 1988), where the Court

found the prosecutor’s reference to the defendant’s post-arrest silence was a

“fair response” and did not violate the defendant’s constitutional right to

remain silent where the defendant raises a factual inconsistency at trial. 

.   The Commonwealth argues that Rivera’s testimony attacked the

thoroughness and fairness of its investigation into his case, raising a factual

inconsistency, and thereby opened the door to “fair response.” See Appellee’s

Brief, at 11-13.

      The admission of evidence is within the sound discretion of the trial court

and an appellate court will not reverse the trial court’s determination absent

an abuse of that discretion. Commonwealth v. Puksar, 

(Pa. 1999). “Not merely an error in judgment, an abuse of discretion occurs

when the law is overridden or misapplied, or the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will,

as shown by the evidence on record.” Commonwealth v. Montalvo, 

 (Pa. 2009) (citing Commonwealth v. Cooper, 

 (Pa. 2007)) (internal citation and quotation marks omitted).

      At trial, Rivera’s counsel’s cross-examination of Trooper Higdon

proceeded as follows:

                                      - 10 -
J-A03033-21


     [By Defense Attorney:]

     Q. And you still arrested my client[?]

     A. Correct.

     Q. So therefore you arrested my client based upon the forensic
     interview.

     A. Well not solely, but correct.

     Q. Well you never talked to my client, did you?

     A. No, I attempted to.

N.T. Jury Trial, 8/7/19, at 100 (emphasis added). On re-direct examination,

under the theory of “fair response,”          see 

 the

Commonwealth questioned Trooper Higdon as follows:

     [By Commonwealth Attorney:]

     Q. I’d like to direct your attention to June 26, 2018, at about 1400
     hours, did you[,] along with other Pennsylvania State Police
     Troopers[,] go to the home of Jonathan Rivera?

     A. Yes.

     Q. And was he arrested based on the arrest warrant?

     A. I had an arrest warrant in hand, correct.

     Q. At approximately 1430 hours, did you read Mr. Rivera his
     Miranda warnings?

     A. Yes.

     Q. [W]hat are the Miranda warnings?

     A. Miranda warnings are[—]I’ll say in easy terms[—]their right
     to remain silent.

     Q. Okay. After you read him his Miranda warnings, he never
     told you that he didn’t do anything to any of these kids?

     A. No.

     Q. He never denied doing anything to—


                                    - 11 -
J-A03033-21


      [Defense Attorney]: Objection to that. A person doesn’t have to
      deny.

      The Court: You’re correct, I think he’s just asking if he did. You
      may answer.

      A. He did not deny.

      Q. He never said [“]I didn’t do this[”]?
      A. No.

      Q. What did he say?

      A. Nothing, he said he wished to not talk.

Id. at 101-02 (emphasis added).

      Here, we agree with Rivera that the court admitted Trooper Higdon’s

rebuttal testimony on re-direct examination in error, as it did not qualify as a

“fair response.”   The defense’s questioning of Trooper Higdon, when read

within the context of the record, inquired into Rivera’s pre-arrest questioning

by police. See N.T. Jury Trial, 8/7/19, at 95-99 (defense attorney inquiring

into bases for Trooper Higdon’s belief that Rivera was perpetrator prior to his

arresting Rivera). As such, Rivera did not create a factual inconsistency with

regard to whether he denied the allegations against him “at the time of [his]

arrest.” 

 (emphasis added); see also 

 (defendant clearly stated he cooperated with police because he had

nothing to hide and insinuated that he answered “everything” police believed

relevant during his questioning, when in fact, defendant had selectively

invoked right to remain silent when police inquired regarding most

incriminating questions).   Nevertheless, we hold that the trial court’s error

was harmless because the prejudice to Rivera, if any, was de minimis.


                                     - 12 -
J-A03033-21



       Our Supreme Court has long held that:

       although a perfectly conducted trial is indeed the ideal objective
       of our judicial process, the defendant is not necessarily entitled to
       relief simply because of some imperfections in the trial, so long as
       he has been accorded a fair trial. A defendant is entitled to a fair
       trial but not a perfect one. If a trial error does not deprive the
       defendant of the fundamentals of a fair trial, his conviction will not
       be reversed.

Commonwealth v. Noel, 

 (Pa. 2014) (quoting

Commonwealth v. Wright, 

 (Pa. 2008)) (brackets and

quotation marks omitted).          Where a trial court has erroneously admitted

evidence of post-arrest silence, we may find that no new trial is warranted if

we are convinced the error was harmless beyond a reasonable doubt. See

Commonwealth v. Adams, 

 (Pa. Super. 2012). The

Commonwealth carries the burden of proving harmless error.24 

.

Our Supreme Court has clarified that harmless error exists where

       the record demonstrates either: (1) the error did not prejudice
       the defendant or the prejudice was de minimis; or (2) the
       erroneously admitted evidence was merely cumulative of other
       untainted evidence which was substantially similar to the
       erroneously admitted evidence; or (3) the properly admitted and
       uncontradicted evidence of guilt was so overwhelming and the
       prejudicial effect of the error was so insignificant by comparison
       that the error could not have contributed to the verdict.

Commonwealth v. Hairston, 

 (Pa. 2014).
____________________________________________


24 But see Commonwealth v. Hamlett, 

, 492 (Pa. 2020)
(“[S]ua sponte invocation of the harmless error doctrine is not inappropriate
as it does nothing more than affirm a valid judgment of sentence on an
alternative basis.”). Here, the Commonwealth, without citation, argued that
the doctrine of harmless error is applicable to Rivera’s case. See Appellee’s
Brief, at 13-14. Following our review of the relevant case law, see infra, we
agree.

                                          - 13 -
J-A03033-21



      In Commonwealth v. Adams, 

 (Pa. 2014), our Supreme

Court found harmless error where the prosecutor elicited testimony that

referenced the defendant’s post-arrest silence because the reference was

“contextual and brief and did not highlight [d]efendant’s silence as evidence

of guilt,”    where the Court found “it was simply utilized to recount the

sequence of the [Commonwealth’s] investigation, in particular, how the DNA

sample was obtained from [d]efendant.”                

.     See also

Commonwealth v. DiNicola, 

 (Pa. 2005) (where defense

counsel first created inference that Commonwealth’s investigative efforts were

minimal or one-sided, and where trooper testified both that defendant

declined police interview and that defense counsel advised trooper that

defendant denied allegations and would invoke right to remain silent,

reference to silence was “circumspect,” “limited to its context,” and “not used

in any fashion likely to burden [d]efendant’s Fifth Amendment right” or create

inference of admission of guilt since prosecution made no further reference to

defendant’s     silence,   thus,   defendant    did    not   suffer   prejudice);

Commonwealth v. Whitney, 

 (Pa. 1998) (“Even an

explicit reference to silence is not reversible error where it occurs in a context

not likely to suggest to the jury that silence is the equivalent of a tacit

admission of guilt.”).

      Here, as in Adams, we find that, in recounting the sequence of the

Commonwealth’s investigation into Rivera’s case, Trooper Higdon’s reference

to Rivera’s post-arrest silence—that Rivera failed to deny the allegations

                                     - 14 -
J-A03033-21



against him and “wished not to talk” after receiving his Miranda warnings—

resulted in de minimis, if any, prejudice.        See also 

 We conclude that the testimonial reference was “contextual

and brief,” see Adams, 

; see also 

,

and that it rebutted the inference that police officers had failed to interview

Rivera at all as a part of their investigation into his case, see N.T. Jury Trial,

8/7/19, at 100 (Q: “Well you never talked to my client, did you?” A. “No, I

attempted to.”), rather than highlighted Rivera’s silence at the time of his

arrest as evidence of his guilt. See id. at 101-02. Indeed, the Commonwealth

did not mention Rivera’s post-Miranda silence again or reference it during

closing argument. See Adams, 

 (citing Commonwealth v.

Molina, 

 (Pa. Super. 2011)) (prosecutor’s questions eliciting

reference to defendant’s silence permissible when employed for narrow

purpose of describing police investigation, and not for implying defendant’s

guilt; however, where defendant’s silence used as substantive evidence of

guilt in closing arguments, prejudice to defendant results); see also

     Accordingly, the trial court’s error in admitting Trooper

Higdon’s brief and contextual testimonial reference to Rivera’s post-Miranda

silence—where such reference was not relied upon as substantive evidence of

Rivera’s guilt—did not deprive Rivera of the fundamentals of a fair trial. See

      Next, Rivera claims that the trial court erred when it permitted the

Commonwealth to amend the information after the close of its case-in-chief

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J-A03033-21



and after the start of the defense at trial. Specifically, Rivera argues that the

Commonwealth’s amendments to Counts 21 and 22 upgraded those charges

from misdemeanors in the first degree25 to felonies of the third degree.26

       The court permitted the Commonwealth to amend Counts 21 and 22

because the Commonwealth alleged the amendment simply changed the

grading pursuant to subsection 3126(b)(3)(iii). See N.T. Jury Trial, 8/8/19,

at 6 (Commonwealth Attorney: “There’s a subsection under indecent assault
____________________________________________


25 Initially, the Commonwealth’s information charged Rivera, at those counts,

with indecent assault pursuant to subsection 3126(a)(7), which states:

       (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:

                                       …

          (7) the complainant is less than 13 years of age[.]

18 Pa.C.S.A. § 3126(a)(7). Under subsection (b), those crimes were graded
as misdemeanors of the first degree. See 18 Pa.C.S.A. § 3126(b)(3) (“An
offense under subsection (a)(7) is a misdemeanor of the first degree unless
any of the following apply, in which case it is a felony of the third degree: [i]t
is a second or subsequent offense[; t]here has been a course of conduct of
indecent assault by the person[; t]he indecent assault was committed by
touching the complainant’s sexual or intimate parts with sexual or
intimate parts of the person[; or, t]he indecent assault is committed by
touching the person’s sexual or intimate parts with the complainant’s sexual
or intimate parts.”) (emphasis added); see also N.T. Jury Trial, 8/8/19, at 6
(“[Counts 21and 22 are both] graded as a misdemeanor of the first degree.”).

26 Subsection 3126(b)(3)(iii) states that an indecent assault is graded as a
felony of the third degree when it “was committed by touching the
complainant’s sexual or intimate parts with sexual or intimate parts of the
person.” 18 Pa.C.S.A. § 3126(b)(3)(iii). See also supra at n.31.

                                           - 16 -
J-A03033-21



that says it’s a felony of the third degree if the indecent contact has to do with

. . . the private parts of the suspect and the private part of the victim

touch[ing]. So I’m going to suggest that—I understand that it’s late in the

game to be upgrading two counts from misdemeanor 1’s to felony 3’s[—]but

I’m going to suggest that they’re lesser included offenses of the [] rape [and]

IDSI charges.”) (unnecessary capitalization omitted); id. at 9 (The Court:

“Okay, that’s fine. I’m going to allow [the amendments to Counts 21 and 22],

with the understanding I’m not adding a new offense[.] I am going to add

some language to [those counts t]hat will make reference to the sexual or

intimate parts that is mentioned in [subsection] (b)(3)(iii)[. This amendment]

adds an additional element to the offense, but that element is included in other

offenses that have previously been charged[,] so it’s really not adding

anything new.”).

      Rivera asserts that he was unfairly prejudiced by the Commonwealth’s

last-minute amendment because it alleged, for the first time, that Rivera

brought “his intimate parts into contact with the intimate parts of another for

the purpose of arousing or gratifying sexual desire[.]” Appellant’s Brief, at 47.

Additionally, Rivera argues that his trial strategy was adversely affected

insofar as his previous strategy permitted Rivera to avoid all felony charges

by pointing to a lack of physical evidence and denying any penetration

occurred, whereas, post-amendment, Rivera’s defense—if believed by the

jury—would no longer permit avoidance of all felony convictions since lack of

physical evidence, and lack of penetration, was no defense. See id. at 51.

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J-A03033-21



Rivera concludes that he suffered irreparable prejudice and, therefore, he is

entitled to a new trial. We agree.

     Pennsylvania Rule of Criminal Procedure 564 governs when the

Commonwealth may amend the charges against a defendant, and states:

     The court may allow an information to be amended, provided that
     the information[,] as amended[,] does not charge offenses arising
     from a different set of events and that the amended charges are
     not so materially different from the original charge that the
     defendant would be unfairly prejudiced. Upon amendment, the
     court may grant such postponement of trial or other relief as is
     necessary in the interests of justice.

Pa.R.Crim.P. 564.

     Our standard of review for a challenge to the court’s grant of an

amendment to the information is well-settled:

     [We consider] whether 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 amendment is not
     permitted.

Commonwealth v. Davalos, 

 (Pa. Super. 2001)

(quoting Commonwealth v. Stanley, 

 (Pa. Super.

1979)); see also Commonwealth v. Jackson, 

, 979 (Pa.

Super. 2019).

     Since the purpose of the information is to apprise the defendant
     of the charges against him so that he may have a fair opportunity


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J-A03033-21


       to prepare a defense, our Supreme Court has stated that following
       an amendment, relief is warranted only when the variance
       between the original and the new charges prejudices an
       appellant by, for example, rendering defenses which might
       have been raised against the original charges ineffective
       with respect to the substituted charges.

Commonwealth v. Sinclair, 

 (Pa. Super. 2006) (citing

Commonwealth v. Brown, 

 (Pa. 1999)) (emphasis

added). We consider the following factors to determine whether the defendant

suffered prejudice:

       (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.

 (citing Commonwealth v. Grekis, 

 (Pa.

Super. 1992)).

       Here, under the first Sinclair factor, the Commonwealth argues that the

factual scenario supporting the charges remained the same before and after

the amendment because the additional element—that Rivera’s indecent

assault be “committed by touching the complainant’s sexual or intimate parts

with [Rivera’s] sexual or intimate parts,” 18 Pa.C.S.A. § 3126(b)(3)(iii)—was

previously alleged through the rape and IDSI charges.27 See Appellee’s Brief,


____________________________________________


27 Counts 2-9 alleged Rivera committed the crimes of rape and IDSI against

both G.R. and C.P.

                                          - 19 -
J-A03033-21



at 16-17. As such, the Commonwealth would have us find that Rivera was

already on notice that he was accused of touching his intimate parts to the

intimate parts of his victims. We disagree.

      In Rivera’s case, the factual scenario supporting the charges under

Counts 21 and 22 materially changed following the Commonwealth’s

amendment. See 

 G.R. alleged separate acts constituting

rape and indecent assault. See N.T. Jury Trial, 8/6/19, at 61, 62-63. G.R.

claimed that Rivera anally penetrated both her and C.P., and separately,

claimed she and C.P. each touched Rivera’s genitals. 

 Nevertheless, the

Commonwealth’s amendment required the logical inference that elements

from the rape or IDSI charges could be cobbled together, or merged, with

those of indecent assault. They cannot under these circumstances, where the

factual scenario underlying each charge is separate and distinct. See, e.g.,

Commonwealth v. Richter, 

 (Pa. Super. 1996)

(“[W]hen an indecent assault conviction is predicated upon an act separate

from the act of forcible intercourse, the indecent assault conviction does not

merge with a conviction for rape.          This is true whether the act [that]

constitutes   indecent   assault   is   committed   immediately   prior   to,   or

concurrently with[,] the rape.”); cf. Commonwealth v. Lomax, 

 (Pa. Super. 2010) (rape of child merged with first-degree misdemeanor

indecent assault where crime of rape, alleging touching of defendant’s and

victim’s genitals together, added no elements to indecent assault charge,

which Commonwealth based on defendant’s touching of victim’s sexual parts).

                                        - 20 -
J-A03033-21



       Under the second Sinclair factor, Rivera claims that the amendment

added new facts previously unknown to him insofar as the Commonwealth

alleged, for the first time, that Rivera brought his intimate parts into contact

with G.R.’s and C.P.’s intimate parts for the purpose of arousing or gratifying

sexual desire. See Appellant’s Brief, at 47, 49 n.14. We agree.

       The Commonwealth’s reliance on the facts underlying the rape and IDSI

charges is misplaced, since indecent assault contains an intent element that

the prosecution need not prove to sustain a rape or IDSI conviction. See 18

Pa.C.S.A. § 3126(a) (elements of offense includes that indecent contact was

“for the purpose of arousing sexual desire in the person or the

complainant.”) (emphasis added);28 see also 18 Pa.C.S.A. § 3121(c) (“A

person commits the offense of rape of a child, a felony of the first degree,

when the person engages in sexual intercourse with a complainant who is less

than 13 years of age.”);29 18 Pa.C.S.A. § 3123(b) (“A person commits

involuntary deviate sexual intercourse with a child, a felony of the first degree,




____________________________________________


28  Indecent contact is defined as “[a]ny touching of the sexual or other
intimate parts of the person for the purpose of arousing or gratifying sexual
desire, in any person.” 18 Pa.C.S.A. § 3101.

29  In addition to its ordinary meaning, “sexual intercourse” includes
intercourse per os or per anus, with some penetration however slight;
emission is not required. See 18 Pa.C.S.A. § 3101.



                                          - 21 -
J-A03033-21



when the person engages in deviate sexual intercourse with a complainant

who is less than 13 years of age.”).30

       Here, the Commonwealth’s information did not charge Rivera with

bringing his intimate parts into contact with G.R.’s and C.P.’s intimate parts

for the purpose of arousing or gratifying sexual desire until after the

court permitted the amendment to Counts 21 and 22. See 18 Pa.C.S.A. §

3126(b)(3)(iii) (indecent assault is third-degree felony when “committed by

touching the complainant’s sexual or intimate parts with [the defendant’s]

sexual or intimate parts”).          As such, the Commonwealth’s amendment

resulted in the inclusion of a new fact previously unknown to Rivera. See

       Under the third Sinclair factor, we note that, had Rivera raised a

challenge to the sufficiency of the evidence proffered at his preliminary

hearing in a pre-trial writ of habeas corpus, he would have been entitled to

relief in the form of a new preliminary hearing. See McClelland, supra.

       With regard to the fourth Sinclair factor, the description of the charges

materially changed, as described above in the analysis of the first and second

Sinclair factors.
____________________________________________


30 Deviate sexual intercourse is defined as “[s]exual intercourse[,] per os or

per anus[,] between human beings and any form of sexual intercourse with
an animal. The term also includes penetration, however slight, of the genitals
or anus of another person with a foreign object for any purpose other than
good faith medical, hygienic[,] or law enforcement procedures.” 18 Pa.C.S.A.
§ 3101. “A foreign object is any physical object not a part of the actor’s
body[.]” Commonwealth v. Kelley, 

, 555 n.4 (Pa. 2002)
(citation and quotation marks omitted).

                                          - 22 -
J-A03033-21



      Under the fifth Sinclair factor, Rivera’s professed trial strategy was

adversely affected. See Appellant’s Brief, at 51. Prior to the Commonwealth’s

amendment, Rivera could avoid all of his felony charges—Counts 1-19—by

denying that any penetration occurred and relying on the lack of evidence.

See 18 Pa.C.S.A. §§ 2702(a)(1), 3121(c), 3123(b), 3125(a)(7), 4304(a)(1),

and 6301(a)(ii).      Conversely, post-amendment, Rivera’s defense that no

penetration occurred and that there was a general lack of physical evidence—

if believed by the jury—would no longer permit avoidance of all felony

convictions, since lack of penetration was no defense. See 18 Pa.C.S.A. §

3126(b)(3)(iii) (indecent assault is third-degree felony when it “was

committed by touching the complainant’s sexual or intimate parts with [the

defendant’s] sexual or intimate parts”).

      Finally,    under    the    sixth     Sinclair   factor,   the     Commonwealth’s

amendment request denied Rivera fair notice as well as the time necessary to

adequately       prepare   a     defense.      Indeed,    the    court    permitted   the

Commonwealth’s amendment after the defense had already begun placing

evidence into the record. See N.T. Jury Trial, 8/8/19, at 9.

      In sum, all six of the Sinclair factors weigh in favor of finding that Rivera

suffered prejudice. See 

. We conclude, therefore,

that Rivera was unfairly prejudiced. Consequently, the court should not have

permitted the Commonwealth to amend Counts 21 and 22, see 

 and Rivera is, thus, entitled to have those convictions vacated. If,

upon remand, the Commonwealth wishes to refile those two charges, Rivera

                                            - 23 -
J-A03033-21



is entitled to a new trial on those two counts.       See Commonwealth v.

Bricker, 

 (Pa. Super. 2005) (where trial court abuses its

discretion in permitting Commonwealth to amend charges, appellate court

may vacate convictions and order new trial as to those erroneously-amended

charges). Moreover, because the court sentenced Rivera to consecutive 1-7

years’ terms of incarceration on Count 21 and Count 22, our vacation of

Rivera’s convictions upsets the court’s sentencing scheme. Thus, Rivera must

be resentenced on the remaining convictions we have affirmed.               See

Commonwealth v. Lekka, 

 (Pa. Super. 2019) (quoting

Commonwealth v. Benchoff, 

 (Pa. Super. 1997)) (“[I]f

we determine that a correction by this [C]ourt may upset the sentencing

scheme envisioned by the [sentencing] court, the better practice is to

remand.”).

      Additionally, our review of the record requires that we remand for

resentencing on Count 15—EWOC. Although graded as a third-degree felony,

the Commonwealth’s information did not specifically allege, and the court did

not specifically instruct the jury regarding, either a “course of conduct,” see

18 Pa.C.S.A. § 4304(b)(1)(ii), or a “substantial risk of death or serious bodily

injury,” see id. at (b)(1)(iii), to the victim, G.R., with regard to the Count 15




                                     - 24 -
J-A03033-21



EWOC charge.31 See N.T. Jury Trial, 8/8/19, at 180-81.32 Nevertheless, the

jury convicted Rivera of EWOC as a third-degree felony, rather than a first-


____________________________________________


31 The Commonwealth’s bill of information charged Rivera at Count 15 with:



       COUNT 15—Endangering Welfare of Children—(FELONY 3)—
       [Rivera], on or about, between 02/21/18 and 02/22/18, in
       the County of Bradford, being a parent, guardian or other person
       supervising the welfare of [G.R.] a child under 18 years of age,
       knowingly endangered the welfare of said child by violating a duty
       of care, protection or support, namely, intentionally shoved a
       lollipop in and out of the victim’s mouth for sexual
       gratification, getting it stuck in her throat causing cardiac
       arrest, in violation of Section § 4304(a)(1) of the Pennsylvania
       Crimes Code, Act of December 6, 1972, as amended, 18
       Pa.C.S.[A.] §4304(a)(1)[.]

Commonwealth’s Information, at 3 (emphasis added).

32 With respect to the EWOC charge, the court instructed the jury as follows:



       The defendant has been charged with endangering the welfare of
       a child. To find the defendant guilty of this offense, you must find
       that each of the following elements have been prove[n] beyond a
       reasonable doubt: [f]irst, that the defendant endangered the
       welfare of the child by violating a duty of care, protection, or
       support[; s]econd, that the defendant endangered the welfare of
       the child knowingly[—a person’s conduct is [“]knowing[”] when
       he or she is aware that it is practically certain that his or her
       conduct will cause a particular result[; t]hird, that the defendant
       was[,] at the time[,] a parent, guardian, person supervising the
       welfare of the child under the age of 18, or a person that employs
       or supervises such a person[—t]he term [“]person supervising the
       welfare of a child[”] means a person other than a parent or
       guardian that provides care, education, training or control of a
       child[; f]ourth, that the child was under the age of 18 years at the
       time of the endangering. If, after considering all the evidence,
       you find that the Commonwealth has established beyond a
       reasonable doubt all of the elements of this crime, you must find



                                          - 25 -
J-A03033-21



degree misdemeanor.          See 18 Pa.C.S.A. §§ 4304(b)(1)(i), (ii), (iii) (“An

offense under this section constitutes a misdemeanor of the first degree. [] If

the actor engaged in a course of conduct of endangering the welfare of a child,

the offense constitutes a felony of the third degree. [] If, in the commission

of the offense under subsection (a)(1), the actor created a substantial risk of

death or serious bodily injury, the offense constitutes a felony of the third

degree.”).

       Moreover, the court sentenced Rivera to 18 months’ to 7 years’

incarceration on Count 15—the statutory maximum for a third-degree felony.

See 18 Pa.C.S.A. § 1103(3) (“In the case of [a person who has been convicted

of] a felony of the third degree, [the person may be sentenced] for a term

which shall be fixed by the court at not more than seven years.”); cf. id. at §

1104(1) (“A person who has been convicted of a [first-degree] misdemeanor

may be sentenced to imprisonment for a definite term which shall be fixed by

the court and shall be not more than [5] years[.]”).

       Because Rivera’s Count 15 was improperly graded as a third-degree

felony where the trial court failed to give a proper instruction on the offense,

we remand to the trial court for imposition of a sentence consistent with the

grading of this crime as a first-degree misdemeanor. See Commonwealth


____________________________________________


       the defendant guilty. Otherwise, you must find the defendant not
       guilty.

N.T. Jury Trial, 8/8/19, at 180-81.


                                          - 26 -
J-A03033-21



v. Hoffman, 

 (Pa. Super. 2018) (“[A] claim that the

court improperly graded an offense for sentencing purposes implicates the

legality of sentence. A challenge to the legality of sentence is never waived

and may be the subject of inquiry by the appellate court sua sponte.

Our standard of review is de novo, and the scope of our review is plenary.”)

(internal citations, quotation marks, and brackets omitted; emphasis added);

see also Commonwealth v. Popow, 

 (Pa. Super. 2004)

(“[I]n order to be graded as a third-degree felony, the Commonwealth must

allege in the information and present evidence at trial of the additional factor

of ‘course of conduct,’ and the jury must be instructed on such. . . . We

cannot merely assume the jury found this additional fact when no evidence of

it was presented at trial and no mention of it was made in the jury’s

charge.”) (emphasis added).

       Here, the court made no mention of either “course of conduct” or

“substantial risk of death or serious bodily injury” during the jury charge.33

See N.T. Jury Trial, 8/8/19, at 180-81; see also Commonwealth v.
____________________________________________


33 It is likely safe to assume the Commonwealth was proceeding on a theory

of “substantial risk of death or serious bodily injury,” see N.T. Jury Trial,
8/6/19, at 115 (Q:          “Based on your training and experience, if
[cardiopulmonary resuscitation] hadn’t [] resulted in . . . the lollipop being
dislodged from [G.R.’s] throat, is there a significant chance she would
have expired?” A: “Almost assuredly.”) (emphasis added), rather than a
“course of conduct.” Nevertheless, because the court instructed the jury on
neither ground for increasing the grading of Rivera’s EWOC charge, we cannot
assume the jury found either element present here. See 

 (“We cannot merely assume the jury found this additional fact when no
evidence of it was presented at trial and no mention of it was made in the
jury’s charge.) (emphasis added).

                                          - 27 -
J-A03033-21



Hartman, 

 (Pa. 1994) (when court instructs jury, objective

is to explain to jury how to approach its task and factors it should consider in

reaching verdict).   Additionally, the jury verdict sheet failed to identify

whether the jury made any determination with respect to those terms. See

Jury Verdict Slip, 8/8/19, at 2. Because we may not assume that the jury

found either one of these additional facts with respect to the EWOC charge,

especially where they were not charged on those terms, see 

sentencing Rivera on the offense as a third-degree felony was improper, and

he is entitled to resentencing on Count 15. 

      Convictions under Counts 21, and 22 vacated, all other convictions

affirmed. Judgment of sentence vacated. Case remanded for resentencing in

accordance with the dictates of this opinion. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/24/2021




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