J-S59040-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

BLAINE K. GHOLSON 

Appellant No. 3665 EDA 2016

Appeal from the Judgment of Sentence November 10, 2016

In the Court of Common Pleas of Montgomery County Criminal Division at 

No(s): CP-46-CR-0003684-2015

BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 29, 2017

Appellant, Blaine K. Gholson, appeals from the judgment of sentence 

of one and one-half to five years’ imprisonment, followed by three years’ 

probation, entered in the Montgomery County Court of Common Pleas. 

Appellant claims that the trial court erred in denying his request for new 

counsel and granting the Commonwealth’s motion to amend the information 

to include a higher graded offense of fleeing or attempting to elude a police 

officer.1 We affirm. 

The facts giving rise to Appellant’s conviction are as follows. On April 

28, 2015, Appellant drove around two vehicles stopped at a red light at the 

intersection of Washington Lane and Church Road in Montgomery County 

 

* Former Justice specially assigned to the Superior Court.

1 75 Pa.C.S. § 3733(a), (a.2)(1), (a.2)(2)(iii). 
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and struck two vehicles as he proceeded through the intersection. Appellant 

did not stop at the scene. After police arrived to investigate the accident, 

Appellant drove by the scene, but again passed through a red light at the 

intersection and did not stop. 

Police then located Appellant driving on Washington Lane near the 

Cheltenham Mall. An officer began to follow him and signaled him to stop, 

but Appellant drove through the parking lot of the mall and back onto the 

street. A pursuit ensued, and Appellant was not stopped until he reached 

the intersection of Paper Mill Road and Stenton Avenue. The pursuit lasted 

for more than seven minutes, during which Appellant passed by pedestrians 

in the mall parking lot, proceeded through stop signs and red lights, and 

sped through an active school zone. 

Appellant was initially charged with thirteen counts, including accidents 

involving personal injury,2 accidents involving property damage,3recklessly 

endangering another person,4 and, of relevance to this appeal, fleeing or 

eluding graded as a misdemeanor of the second degree.5 Appellant was 

represented by Thomas Bowman, Esq. of the Public Defender’s Office (“trial 

counsel”) and waived a preliminary hearing. 

 

2 75 Pa.C.S. § 3742(a).

3 75 Pa.C.S. § 3743(a). 

4 18 Pa.C.S. § 2705.

5 75 Pa.C.S. § 3733(a), (a.2)(1). 
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On May 25, 2015, the trial court received a pro se letter from 

Appellant regarding his dissatisfaction with trial counsel. The clerk of courts 

placed the letter in the record and forwarded a copy of it to trial counsel.6

On August 5, 2016, the Commonwealth filed a motion to amend the 

information to change the grade of the fleeing and eluding offense to a thirddegree felony.7

 The trial court granted the motion on August 9, 2016, 

immediately before a jury trial. The Commonwealth presented its evidence 

and rested on August 9, 2010. 

The following day, trial counsel raised a motion for new counsel, which 

the trial court denied. Appellant thereafter testified on his own behalf. 

Appellant admitted to causing the accidents and failing to stop for the police. 

He asserted, however, that he was working as a delivery person for Mojo’s 

Pizza, was almost robbed while delivering food in the Northeast section of 

Philadelphia, and was driving in a panic in an attempt to flee from the 

robbers, whom he believed were following him in a vehicle. He further 

testified that he saw officers signaling him to stop, but did not do so because 

he was afraid the robbers were still pursuing him.8 In rebuttal, the 

 

6 See Pa.R.Crim.P. 576(A)(4). 

7 75 Pa.C.S. § 3733(a), (a.2)(2)(iii).

8 See 75 Pa.C.S. § 3733(c)(2) (establishing affirmative defense to fleeing 

and eluding “if the defendant can show by a preponderance of the evidence 

that the failure to stop immediately for a police officer’s vehicle was based 

upon a good faith concern for personal safety”). 
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Commonwealth called the manager of Mojo’s Pizza, who testified that 

Appellant was not an employee. The Commonwealth further presented 

testimony that the site where Appellant was allegedly threatened was 

approximately eight miles from the location of the accident at Washington 

Lane and Church Road. The jury found Appellant guilty of accident involving 

personal injury, accident involving property damage, recklessly endangering 

another person, and fleeing or eluding graded as a felony of the third 

degree. 

On November 10, 2016, the trial court sentenced Appellant to serve an 

aggregate one and one-half to five years’ imprisonment. Appellant, acting 

pro se, timely mailed a post-sentence motion and a notice of appeal on 

November 15, 2016,9 which the trial court received on November 21, 2016. 

The trial court did not address Appellant’s post-sentence motion, but 

withdrew trial counsel’s appearance and appointed new counsel for the 

appeal. 

The trial court entered an order for a Pa.R.A.P. 1925(b) statement on 

January 10, 2017. Present counsel filed a Rule 1925(b) statement on March 

 

9 See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (discussing 

the prisoner mailbox rule). Although Appellant was represented by trial 

counsel when he filed the pro se notice of appeal, a counseled notice of 

appeal was not filed on his behalf. We regard the pro se notice of appeal as

effective under the circumstance of this case. 
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3, 2017, and the trial court filed a responsive opinion.10 This appeal 

followed. 

Appellant presents the following questions for review:

1. Did the [trial court] err by failing to fully consider [] 

Appellant’s request, made prior to trial (by way of a pro se

letter filed May 25, 2016) and during trial, to fire [trial 

counsel] and engage alternate counsel?

2. Did the [trial court] err by granting the 

Commonwealth’s motion, made on the eve of trial, to alter 

the count of Fleeing or Attempting to Elude Police Officer, 

75 Pa.C.S. § 3733—thereby increasing the grading from a 

misdemeanor of the second degree to a felony of the third 

degree—on theories that (i) [Appellant] had previously 

waived his right to a preliminary hearing on all charges 

with the understanding that the fleeing and eluding count 

was charged as a misdemeanor, and (ii) [Appellant] was 

prejudiced by the fact that the count was amended 

immediately prior to the beginning of trial?

Appellant’s Brief at 4. 

Appellant first claims that the trial court erred in denying his request 

for new counsel. Appellant contends that he had irreconcilable differences 

with trial counsel. He further argues that that trial court’s inquiry into the 

basis of his disagreement with trial counsel was insufficient and that the trial 

 

10 Present counsel’s Rule 1925(b) statement was untimely filed. However, 

we will consider the issues raised in this appeal as counsel’s failure to file a 

timely Rule 1925(b) constitutes per se ineffectiveness, and the trial court 

prepared an opinion responsive to the untimely Rule 1925(b) statement. 

See Pa.R.A.P. 1925(c)(3); Commonwealth v. Burton, 973 A.2d 428, 433 

(Pa. Super. 2009) (en banc) (noting that a remand under Rule 1925(c)(3) is 

not necessary where a Rule 1925 statement has been filed and the trial 

court filed a responsive opinion). 
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court improperly forced him to proceed with trial counsel or pro se. Id. at 

9-10. No relief is due.

It is well settled that 

“the right to appointed counsel does not include the right 

to counsel of the defendant’s choice.” Moreover,

[w]hether to grant a defendant’s petition to replace 

court appointed counsel is a decision which is left to 

the sound discretion of the trial court. As a general 

rule, however, a defendant must show irreconcilable 

differences between himself and his court appointed 

counsel before a trial court will be reversed for abuse 

of discretion in refusing to appoint new counsel.

In some cases, we have concluded that “substantial 

reasons” or “irreconcilable differences” warranting 

appointment of new counsel are not established where the 

defendant merely alleges a strained relationship with 

counsel, where there is a difference of opinion in trial 

strategy, where the defendant lacks confidence in 

counsel’s ability, or where there is brevity of pretrial 

communications.

Commonwealth v. Floyd, 937 A.2d 494, 497 (Pa. Super. 2007). 

The record in this case reveals that Appellant sent a letter to the trial 

court that was received on May 25, 2016. In his letter, Appellant asserted 

that trial counsel was deceptive, prevented him from viewing discovery, and 

failed to conduct independent discovery, including obtaining a copy of his 

cellphone records.11 According to Appellant, his cellphone records were 

necessary to support his defense that he was an employee of Mojo’s Pizza. 

Appellant did not expressly request new counsel. 

 

11 Appellant did not expressly request new counsel in his letter. 
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On the second day of trial, trial counsel asserted that he did not have 

a copy of Appellant’s cellphone records. According to trial counsel, he asked 

Appellant whether to request a continuance before trial but believed 

Appellant stated “no.” N.T., 8/10/16, at 7, 14. Trial counsel stated that 

Appellant currently sought a continuance until the phone records were 

produced or a declaration of mistrial. After the trial court denied those 

motions, trial counsel represented that Appellant wanted to “fire [him] as 

counsel[,]” and the following exchange occurred: 

THE COURT: [to Appellant] it is not as easy as you are 

suggesting in the midst of a jury trial having listened to 

the Commonwealth’s case, and apparently attempting to 

delay this matter, it is not [as] easy as you might think. 

About causing this trial to stop mid stream, on what basis 

do you now want to assert that you want to fire your 

counsel?

Stand up.

[Appellant]: Your Honor, I—on the basis of ineffective 

counsel, or ineffective assistance of counsel. He hasn’t—

everything that I asked for from day one he hasn’t brought 

any evidence to support my claim of innocence. 

To my defense, we had multiple continuances to get 

evidence that would ascertain everything that I am saying, 

and he still doesn’t have it. I have been incarcerated for 

16 months. From day one I have been asking for these 

things.

THE COURT: Thank you . . . . It sounds to me like what 

you are asserting is what you believe to be his ineffective 

assistance. 

This is not the appropriate forum, or the appropriate 

time to raise those issues, if you believe you have 

ineffective assistance of counsel claims. And that’s, of 
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course, assuming that the jury convicts you of any crime, 

there’s an appropriate time to raise those claims, do you 

understand that.

[Appellant]: Yes, Your Honor.

THE COURT: At this point in time, let me make it clear, we 

are going forward with the trial. The jury is about to be 

brought into the courtroom. You do have a constitutional 

right to represent yourself. If that happens, and if I 

believe it’s appropriate under the circumstances, [trial 

counsel] will be relieved of any duty to go forward at this 

point. You will be held to the same standard of any 

attorney, and I won’t put up with any monkey business, 

except for you to be as forthright as any attorney might 

be. Meaning that I will hold you to the same standard 

regarding evidence, regarding rules, regarding timeliness, 

regarding appropriate arguments.

Now, is it your desire, having learned that there is an 

appropriate time to raise a PCRA claim—if that’s what you 

want to do, is it your desire now to have [trial counsel] 

complete the trial for you?

[Appellant]: Your Honor, would ask for another—someone 

else to assist me.

THE COURT: No. We don’t do that in the middle of the 

trial, no. That’s not going to happen. Your request for a 

different lawyer in the middle of the trial is denied.

You want [trial counsel] to represent you? You’ve of 

indicated—

[Appellant]: Yes, I need some type of attorney.

THE COURT: Thank you. Well, [to trial counsel] you will 

remain in the case, and any issues that he wants you to 

raise at an appropriate time may be raised then.

Id. at 7-9. 
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Following our review, we conclude the record did not evince 

irreconcilable differences, and that the trial court’s inquiry into the basis for 

Appellant’s request for new counsel was adequate. The dispute between 

Appellant and trial counsel focused on Appellant’s cellphone records, which 

Appellant believed would have supported his testimony that he was working 

as a delivery person and bolstered his claim that he was being chased 

following a robbery attempt. However, Appellant apparently agreed not to 

request a pretrial continuance based on the absence of the records and did 

not express any further displeasure with trial counsel’s performance until the 

Commonwealth had rested its case. As noted by the trial court, this dispute 

thus involves a challenge to the effectiveness of counsel, not an 

irreconcilable difference. See Floyd, 937 A.2d at 497. Furthermore, 

because Appellant failed to demonstrate an irreconcilable difference, we 

discern no error in the trial court’s inquiry into the matter or its direction 

that Appellant would be required to proceed with trial counsel or pro se. 

See id. Therefore, Appellant’s first claim fails.

Appellant next claims that the trial court erred in granting the 

Commonwealth’s motion to amend the fleeing and eluding charge to a 

higher graded offense. Appellant argues that the amendment presented “‘a 

substantially different factual scenario[,]’” resulted in a higher possible 

sentence, and caused him prejudice by adding a new element. Appellant’s 

Brief at 24. Appellant suggests Commonwealth v. Bricker, 882 A.2d 1008 
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(Pa. Super. 2005), supports his position that the amendment was improper. 

We disagree. 

The principles governing our review of this claim are as follows: 

Pennsylvania Rule of Criminal Procedure 564 states:

The court may allow an information to 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. Upon amendment, 

the court may grant such postponement of trial or 

other relief as necessary in the interests of justice.

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. The test to be 

applied is:

[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 amendment is not permitted.

Commonwealth v. Sinclair, 897 A.2d 1218, 1221 (Pa. Super. 2006) (some 

citations and footnote omitted). 
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Factors that we must consider in determining whether a 

defendant was prejudiced by an amendment include: (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. at 1223 (citation omitted).

In Bricker, the Commonwealth initially filed an information charging 

Appellant with possessing 0.37 grams of crack cocaine found on his person. 

Bricker, 882 A.2d at 1019-20. At trial, an officer testified that 0.37 grams 

of the drug could be for personal use. Id. at 1020. However, the officer 

also testified that fourteen packets of crack cocaine—which weighed 5.3 

grams, and which were thrown to the ground by an individual with the 

defendant—were possessed for sales. Id. The defendant moved for 

judgment of acquittal at the close of the Commonwealth’s case, and the 

Commonwealth thereafter sought to amend the information to include both 

the 0.37 grams initially charged, and the 5.3 grams discarded by the other 

individual. Id. The trial court granted the amendment. Id. The defendant 

was convicted of possessing 5.67 grams of crack cocaine with the intent to 

deliver. Id. at 1013. 

On appeal, the Bricker Court concluded “the addition of [the] 5.3 

grams of crack cocaine that was found on the floor . . . near [the other 
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individual] present[ed] a substantially different factual scenario that that 

which the Commonwealth charged initially.” Id. at 1020. The Court further 

concluded that Appellant was prejudiced because the addition of the 5.67 

grams of crack cocaine rendered his defense of possession for personal use 

ineffective and exposed him to greater punishment under the mandatory 

minimum statutes in effect at that time. Id. at 1021. Thus, the Court 

vacated the conviction and remanded for a new trial. Id. at 1021-22. 

Instantly, the offense and grade of fleeing and eluding are defined as 

follows: 

(a) Offense defined.—Any driver of a motor vehicle who 

willfully fails or refuses to bring his vehicle to a stop, or 

who otherwise flees or attempts to elude a pursuing police 

officer, when given a visual and audible signal to bring the 

vehicle to a stop, commits an offense as graded in 

subsection (a.2).

***

(a.2) Grading.—

(1) Except as provided in paragraph (2), an offense 

under subsection (a) constitutes a misdemeanor of the 

second degree. . . . 

(2) An offense under subsection (a) constitutes a felony 

of the third degree if the driver while fleeing or 

attempting to elude a police officer does any of the 

following:

***

(iii) endangers a law enforcement officer or member 

of the general public due to the driver engaging in a 

high-speed chase.
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75 Pa.C.S. § 3733(a), (a.2)(1), (a.2)(2)(iii). 

There is no doubt that the amendment was substantive in nature 

because it added a factor that increased the grade of the offense of fleeing 

or eluding—i.e., that Appellant endangered others during a “high-speed 

chase.”12 See Commonwealth v. Gray, 478 A.2d 822, 825 (Pa. Super. 

1984); see also Apprendi v. New Jersey, 530 U.S. 466 (2000). 

Nevertheless, while the amendment added a factor that the Commonwealth 

had to prove beyond a reasonable doubt, the basic elements of the 

underlying offense of fleeing and eluding remained the same. See 75 

Pa.C.S. § 3733(a). 

Turning to the prejudice resulting from the amendment, the affidavit of 

probable cause indicated that Appellant drove through the mall parking lot 

“where multiple pedestrians were walking on foot[,]” and that he “drove his 

vehicle toward [an officer] and almost struck his marked patrol car.” Aff. of 

Probable Cause, 4/28/15, at 9. Therefore, the fact that Appellant’s flight 

from police endangered both police and the public were known to him.

Additionally, the amendment did not affect Appellant’s intended 

defense. Unlike Bricker, Appellant’s defense of a fear for his safety was 

unaffected by the amendment charging a higher grade of fleeing and 

eluding. See 75 Pa.C.S. § 3733(c)(2). Moreover, Appellant had notice of 

 

12 This Court has held that the “high-speed chase” factor in Section 

3733(a.2)(2)(iii) does not require that the chase be conducted at excessive 

speed. In re R.C.Y., 27 A.3d 227, 230-31 (Pa. Super. 2011).
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the Commonwealth’s intent to amend the information before trial and could 

have requested a continuance when the trial court granted the motion 

before trial. See Sinclair, 897 A.2d at 1223. Accordingly, we conclude that 

no relief is due. 

Thus, finding no merit to Appellant’s claims in this appeal, we affirm 

the judgment of sentence. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/29/2017