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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANTONIO JAMES HAWLEY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 604 MDA 2023

Appeal from the Judgment of Sentence Entered June 7, 2022

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

No(s): CP-57-CR-0000036-2021

BEFORE: NICHOLS, J., KING, J., and SULLIVAN, J.

MEMORANDUM BY NICHOLS, J.: FILED: APRIL 16, 2024

Appellant Antonio James Hawley appeals nunc pro tunc from the 

judgment of sentence imposed after a jury convicted him of strangulation and 

related offenses. Appellant argues that the trial court abused its discretion by 

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

his motion for judgment of acquittal. We affirm. 

The trial court summarized the facts of this case as follows:

On or about December 16, 2021, a criminal complaint was filed 

against [Appellant] charging [him] with the following:

Count 1: Strangulation — Applying Pressure to Throat or 

Neck, 18 Pa.C.S. § 2718(a)(2)(i) [sic], a felony of the 

second degree[.]

Count 2: Simple Assault, 18 Pa.C.S. § 2701(a)(1), a 

misdemeanor of the second degree[.]

Count 3: Harassment — Strike, Shove, Kick, 18 Pa.C.S. § 

2709(a)(1), a summary offense.
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More specifically, [Appellant] was charged with knowingly or 

intentionally impeding the breathing or circulation of the blood of 

another person by applying pressure to the throat or neck of his 

father, Gerard Hawley [(the victim)] on or about October 2, 2021. 

. . .

Trial Ct. Op., 4/24/23, at 1 (some formatting altered). 

On March 28, 2022, Appellant proceeded to a jury trial. The 

Commonwealth presented testimony from the victim and Trooper Eric Whited 

of the Pennsylvania State Police. 

The trial court summarized the ensuing procedural history of this case 

as follows:

Following the close of the Commonwealth’s case, counsel for 

[Appellant] made a motion for judgment of acquittal on all three 

(3) counts. [For count one, strangulation, Appellant] was charged 

under 18 Pa.C.S. § 2718(a)(2)(i). As was pointed out during oral 

argument by counsel for [Appellant], said subsection does not 

exist. In response, counsel for the Commonwealth conceded that 

there was a typographical error and that it should have been 18 

Pa.C.S. § 2718(a)(1). This court further noted that a review of 

the magisterial district [court] docket transcript that the charge of 

strangulation was noted as (a)(1).

Id. at 2-3 (citations omitted). 

The trial court denied Appellant’s motion for judgment of acquittal and 

granted the Commonwealth’s motion to amend the information to change the 

statutory citation. Ultimately, the jury found Appellant guilty of strangulation 

and simple assault, and the trial court found Appellant guilty of the summary 

offense of harassment.

1

 On June 7, 2022, the trial court sentenced Appellant 

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1 18 Pa.C.S. §§ 2718(a)(1), 2701(a)(1), and 2709(a)(1), respectively. 
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to an aggregate term of 591⁄2 to 120 months’ incarceration and imposed 

$1,300 in fines. Appellant did not file any post-sentence motions nor a direct 

appeal. 

On December 5, 2022, Appellant filed a timely pro se Post Conviction 

Relief Act2 (PCRA) petition requesting the reinstatement of his direct appeal 

rights. On December 19, 2022,

3

the trial court reinstated Appellant’s direct 

appeal rights nunc pro tunc. Appellant filed a timely notice of appeal.4 Both 

the trial court and Appellant complied with Pa.R.A.P. 1925. 

On appeal, Appellant raises the following issue: 

Whether the trial court erred in permitting the Commonwealth to 

substantively amend the criminal information from 18 Pa.C.S.[] § 

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2 42 Pa.C.S. §§ 9541-9546. 

3 We note that although the PCRA court’s order granting Appellant’s PCRA 

petition was dated December 13, 2022 and time-stamped on December 16, 

2022, the docket entries reflect that the PCRA court served Appellant with a 

copy of this order on December 19, 2022. See Commonwealth v. Jerman, 

762 A.2d 366, 368 (Pa. Super. 2000) (stating that “[i]n a criminal case, the 

date of entry of an order is the date the clerk of courts enters the order on 

the docket, furnishes a copy of the order to the parties, and records the time 

and manner of notice on the docket” (citations omitted)); see also 

Pa.R.Crim.P. 114(C)(2)(c); Pa.R.A.P. 108(a)(1), (d)(1). 

4 Appellant filed his notice of appeal nunc pro tunc on December 15, 2022. As 

stated above, the PCRA court did not enter its order reinstating Appellant’s 

direct appeal rights until December 19, 2022. Pa.R.A.P. 905 provides that 

“[a] notice of appeal filed after the announcement of a determination but 

before the entry of an appealable order shall be treated as filed after such 

entry and on the day thereof.” Pa.R.A.P. 905(a)(5). Therefore, Appellant’s 

notice of appeal relates forward to the PCRA court’s December 19, 2022 order

reinstating Appellant’s direct appeal rights nunc pro tunc. See id. 

Accordingly, we have jurisdiction over this appeal. 
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2718(a)(2) as originally filed to 18 Pa.C.S.[] § 2718(a)(1) after 

defense counsel’s motion for judgement of acquittal following the 

close of the Commonwealth’s case in chief when granting the 

same substantively changed the evidence required for conviction?

Appellant’s Brief at 7 (some formatting altered). 

Appellant argues that the trial court erred in granting the 

Commonwealth’s request to amend the information. Id. at 11-15. 

Specifically, Appellant contends that he suffered prejudice because the 

amendment changed the factual scenario underlying the charge and modified 

the description of the charge to an entirely separate and distinct offense. Id.

at 11-12. Appellant also argues that the amendment prejudiced him because 

his defense strategy was based on the Commonwealth’s failure to prove that 

Appellant blocked the nose and mouth of the victim. Id. at 12-14. 

We review a trial court’s decision to grant or deny a motion to amend 

an information for an abuse of discretion. See Commonwealth v. Small, 

741 A.2d 666, 681 (Pa. 1999). As we have explained,

[a]n abuse of discretion is not merely an error of judgment, but is 

rather the overriding or misapplication of the law, or the exercise 

of judgment that is manifestly unreasonable, or the result of bias, 

prejudice, ill-will or partiality, as shown by the evidence of record. 

If in reaching a conclusion the trial court overrides or misapplies 

the law, discretion is then abused and it is the duty of the appellate 

court to correct the error.

Commonwealth v. Belknap, 105 A.3d 7, 10 (Pa. Super. 2014) (citations 

omitted and some formatting altered).

Rule 564 of the Pennsylvania Rules of Criminal Procedure provides as 

follows:
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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. 

“[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.” 

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

(citation omitted). “[O]ur courts apply the rule with an eye toward its 

underlying purposes and with a commitment to do justice rather than be 

bound by a literal or narrow reading of [the] procedural rules.” 

Commonwealth v. Grekis, 601 A.2d 1284, 1289 (Pa. Super. 1992). 

When presented with a question concerning the propriety of an 

amendment, we consider

[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 amend[ment] is not permitted.

Commonwealth v. Mentzer, 18 A.3d 1200, 1202 (Pa. Super. 2011) 

(citations omitted). 
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Since the purpose of the information is to apprise the defendant 

of the charges against him so that he may have a fair opportunity 

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 [a 

defendant] by, for example, rendering defenses which might have 

been raised against the original charges ineffective with respect 

to the substituted charges.

Sinclair, 897 A.2d at 1223 (citation omitted). 

In determining whether a defendant suffered prejudice, we consider the 

following factors:

(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.

Mentzer, 18 A.3d at 1203 (citation omitted). 

With respect to strangulation, Section 2718(a) of the Crimes Code 

provides:

(a) Offense defined.—A person commits the offense of 

strangulation if the person knowingly or intentionally impedes the 

breathing or circulation of the blood of another person by:

(1) applying pressure to the throat or neck; or

(2) blocking the nose and mouth of the person.

18 Pa.C.S. § 2718(a). 
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Here, the trial court explained:

As was pointed out during oral argument by counsel for 

[Appellant, 18 Pa.C.S. § 2718(a)(2)(i)] does not exist. In 

response, counsel for the Commonwealth conceded that there was 

a typographical error and that it should have been 18 Pa.C.S. § 

2718(a)(1). This court further noted that a review of the 

magisterial district [court] docket transcript that the charge of 

strangulation was noted as (a)(1).

Pennsylvania Rule of Criminal Procedure 560(c) states that “[t]he 

information shall contain the official or customary citation of the 

statute and section thereof, or other provision of law that the 

defendant is alleged therein to have violated; but the omission of 

or error in such citation shall not affect the validity or sufficiency 

of the information.[”] Pa.R.Cr[im].P. 560(c). Based upon this and 

because [Appellant] was on notice as to what he was defending 

because the words of the statute were spelled out in count 1 of 

the criminal information, this court allowed the amendment.

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. . . . As such, this 

Court allowed the [amendment].

Trial Ct. Op. at 2-3 (some citations omitted and some formatting altered). 

Based on our review of the record, we discern no abuse of discretion by 

the trial court in granting the Commonwealth’s motion to amend the 

information. See Small, 741 A.2d at 681; see also Belknap, 105 A.3d at 

10. As the trial court explained, the information alleged that Appellant “did 

knowingly or intentionally impede the breathing or circulation of the blood of 

another person by applying pressure to the throat or neck.” See Criminal 

Information, 12/16/21, at 1. The information cited 18 Pa.C.S. § 2718(a)(2)(i) 
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for this offense. See id. However, as the trial court correctly observed, this 

subsection does not exist. See Trial Ct. Op. at 2-3; see also 18 Pa.C.S. § 

2718. Although the Commonwealth amended the citation for the 

strangulation charge from Section 2718(a)(2)(i) to Section 2718(a)(1), that 

did not change the factual scenario underlying the charges or add any facts 

that were unknown to Appellant. See 18 Pa.C.S. § 2718(a). For these 

reasons, we conclude that Appellant did not suffer prejudice as a result of the 

amendment. See Mentzer, 18 A.3d at 1203; Sinclair, 897 A.2d at 1223. 

Therefore, Appellant is not entitled to relief on this claim. 

Judgment of sentence affirmed. Jurisdiction relinquished. 

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 04/16/2024