Opinion
J-S54021-17 No. 98 WDA 2017
11-17-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. PARIS NEVELS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 15, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001993-2015 BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J. MEMORANDUM BY MOULTON, J.:
Former Justice specially assigned to the Superior Court. --------
Paris Nevels appeals from the December 15, 2016 judgment of sentence entered in the Erie County Court of Common Pleas following his conviction for indecent assault, 18 Pa.C.S. § 3126. We affirm.
The trial court set forth the factual and procedural history in its Pennsylvania Rule of Appellate Procedure 1925(a) opinion, which we adopt and incorporate herein. 1925(a) Opinion, 2/2/17, at 1-3 ("1925(a) Op.").
Nevels raises the following issue on appeal:
Did the Magisterial District Judge overstep his authority or commit an error of law when he amended a charge of aggravated indecent assault on the police complaint sua sponte (which had been withdrawn by the Commonwealth during the preliminary hearing) to indecent assault and held that sole charge for court?Nevels' Br. at 6 (full capitalization omitted).
The trial court noted that judges of the court of common pleas and magisterial district justices have the authority to convict a defendant of uncharged lesser-included offenses. 1925(a) Op. at 3. It also noted that the "important inquiry" in determining whether an amendment is proper is whether the "defendant has been put on notice of the charges against him and can adequately prepare a defense." Id. at 4. The trial court found that, although indecent assault was not a lesser-included offense of aggravated indecent assault, "the same basic elements are necessary in order to prove" both crimes and the "underlying factual situation is no different for either charge." Id. at 5. It further found that Nevels was not prejudiced by the amended charge because the new charge did "not change the factual scenario"; the charge did not "substantially change the requirements of [Nevels'] defense preparation"; and Nevels had "ample time to prepare a defense" because the new charge was added at the preliminary hearing and his trial did not occur until over a year later. Id. at 8. The trial court further noted that the Commonwealth did not object to the new charge. Id. at 8-9. After review of the record, the parties' briefs, and the relevant law, we affirm on the basis of the well-reasoned opinion of the Honorable John Garhart, which we adopt and incorporate herein. See 1925(a) Op. at 3-9.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/17/2017
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