J-S64008-14 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

BRIAN KEITH GREENE 

 Appellant No. 109 WDA 2014 

Appeal from the Judgment of Sentence September 25, 2012 

In the Court of Common Pleas of Blair County 

Criminal Division at No(s): CP-07-CR-0001064-2011 

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J. 

MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 12, 2014 

 Brian Keith Greene appeals nunc pro tunc from his judgment of 

sentence, entered in the Court of Common Pleas of Blair County, after a jury 

found him guilty of the crime of intimidation of witness or victim (F-3).1 

Greene was sentenced to 12 (less one day) to 24 months’ (less two days) 

imprisonment. After careful review, we affirm. 

 Greene’s girlfriend, Brenda Lafferty, was involved in two controlled 

drug buys with a confidential informant, William T. Weyant. On May 24, 

2011, Lafferty was arrested for the drug deliveries. Weyant gave police a 

statement indicating that on that same date, Greene threatened him over 

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1

 18 Pa.C.S. § 4952(a)(1). Greene had also been originally charged with 

retaliation against a witness or victim, 18 Pa.C.S. § 4953(a), however, the 

court granted defense counsel’s motion for a directed verdict on that charge. 
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the telephone, “About a [sic], you know, me getting [Greene’s girlfriend] in 

trouble and that I was a snitch and that I was going to get beat for it.” N.T. 

Jury Trial, 4/12/12, at 51. Although Weyant stated that Greene did not 

indicate he would do anything to him if he testified against Lafferty, N.T. 

Jury Trial, 4/12/12, at 28, Weyant immediately changed his telephone 

number following Greene’s threatening call, id. at 55, gave the abovequoted statement to police, and filed charges against Greene. Id. at 57. 

Weyant also testified that Greene’s threat did not scare him, id. at 82, but 

that he believed that Greene was going to try to assault him, id., and that 

he changed residence as a result of the threat. Id. At trial, Greene 

testified on his own behalf, consistently claiming that he never made the 

alleged threatening phone call to Weyant. 

 A jury ultimately convicted Greene of intimidation of a witness and the 

court sentenced him to 12 months’ (less one day) to 24 months’ (less two 

days) imprisonment. Greene filed post-sentence motions that were denied 

by the trial court. This timely appeal follows. 

 On appeal, Greene presents the following issues for our consideration: 

(1) Whether the trial court erred in permitting amendment of 

the information, charging a violation of 18 Pa.C.S. § 

4952(a)(1) by adding elements indicative of violation of 18 

Pa.C.S. § 4952(a)(2) and of 18 Pa.C.S. § 4952(a)(3) which 

prejudiced the appellant. 

(2) Whether the trial court abused its discretion or committed 

error in failing to grant the motion for new trial when the 

putative object of intimidation testified that he had moved 

following a purported telephone threat from the appellant, 

even though the appellant presented evidence at the post-
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sentence motions hearing that such move antedated the 

purported telephone threat, thereby negating the 

Commonwealth’s evidence. 

(3) Whether the trial court erred by denying the motion for 

judgment of acquittal inasmuch as the evidence did not 

suffice to convict of the offense of intimidation of witness, 

18 Pa.C.S. § 4952(a)(1), by failing to prove the requisite 

intent and the elements required by 18 Pa.C.S. § 

4952(b)(1) and 18 Pa.C.S. § 4952(b)(4), which increase 

the offense’s grading to a felony of the third degree and 

the maximum term from two years to seven years. 

 Greene argues that the Commonwealth improperly amended the bill of 

information which originally charged Greene with the offense of witness 

intimidation under subsection 4952(a)(1). At trial, the court permitted the 

Commonwealth to orally amend Count 1 from the bill of information to 

include the conduct proscribed in subsections (a)(2) and (a)(3) of section 

4952.2 Greene asserts that he was prejudiced by the amendment, which 

caused him to change his defense. 

 When presented with a question concerning the propriety of an 

amendment, a court considers 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. Commonwealth v. Mentzer, 18 A.3d 1200 (Pa. 

Super. 2011). If so, then the defendant is deemed to have been placed on 

notice regarding his alleged criminal conduct. Id. If, however, the amended 

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2

 Interestingly, however, Greene was convicted of the original charge under 

section 4952(a)(1). 
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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. Id. 

 Moreover, when our Court reviews a trial court’s decision to grant the 

amendment of an information, we will look to: 

whether the defendant was fully apprised of the factual scenario 

which supports the charges against him. Additionally, where the 

crimes specified in the original information involved the same 

basi[c] elements and arose out of the same factual situation as 

the crime added by the amendment, the defendant is deemed to 

have been placed on notice regarding his alleged criminal 

conduct and no prejudice to the defendant results. Further, the 

factors which the trial court must consider in determining 

whether an amendment is prejudicial are: (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 1202-1203 (citations omitted). 

 Instantly, the crime charged in Greene’s original information, 18 

Pa.C.S. § 4952(a)(1), arose out of the same factual situation and involved 

the same basic elements as the crimes specified in the amended 

information, 18 Pa.C.S. §§ 4952(a)(2) and (a)(3). The factual situation is 

the same in all cases; i.e., the alleged telephonic threat made by Greene to 

Weyant. Moreover, the elements in the amended charges (subsections of 
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section 4952(a)) were not materially different from those found in the 

original charge (subsection (a)(1)). As the Commonwealth notes, the only 

difference among the subsections is that under (a)(1) the defendant is 

attempting to prevent a witness or victim from reporting a crime, whereas 

under subsections (a)(2) and (a)(3), the defendant is attempting to prevent 

a witness or victim from testifying or truthfully following up with a 

prior report. 

 In all of the crimes alleged, Greene was charged with attempting to 

prevent a witness from offering information concerning the drug activity with 

which Lafferty was allegedly involved. Because the elements were not 

materially different regarding the different subsections charged, we find that 

Greene was placed on notice regarding his alleged criminal conduct. 

Commonwealth v. Mosley, 585 A.2d 1057 (Pa. Super. 1991). 

 Additionally, we find that the amendment did not prejudice Greene or 

affect his defense. At trial, Greene’s defense consisted of denying that he 

ever made the alleged threatening phone call to Weyant. N.T. Jury Trial, 

4/12/12, at 218; 224; 226. Based on the circumstances, the amendment 

would not have altered Greene’s defense. Therefore, he is afforded no relief 

on this issue. Mentzer, supra. 

 Greene next asserts that the court erred in failing to grant him a new 

trial when he presented evidence at his post-sentence motion hearing that 

Weyant never actually changed his residence after the allegedly threatening 

phone call. 
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 At trial, Weyant testified that he had relocated to a new residence 

after the threatening incident. N.T. Jury Trial, 4/12/12, at 35. However, at 

the post-sentence motion hearing, Greene had the record keeper for 

Weyant’s employer, Altoona Pipe and Steel, testify that Weyant actually 

noted a change of address in his personnel file on April 8, 2011 – 46 days 

prior to the alleged incident. However, Weyant explained at the hearing that 

he did not actually move on that date, but remained in his current home and 

actually moved immediately following the alleged incident. Accepting this as 

true, this evidence, if believed by the jury, would not have affected the 

outcome of trial. Commonwealth v. Bonaccurso, 625 A.2d 1197 (Pa. 

Super. 1993) (when appellate court examines decision of trial court to grant 

new trial on basis of after-discovered evidence, it asks only if trial court 

committed abuse of discretion or error of law which controlled the outcome 

of the case). 

 Greene’s final claim on appeal concerns the sufficiency of the evidence 

offered by the Commonwealth to prove his guilt under section 4952(a)(1). 

Specifically, Greene asserts that the Commonwealth failed to prove the 

requisite intent element that increased the offense’s grading to a thirddegree felony under section 4952(b).3

 He also alleges that the evidence was 

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3

 Pursuant to section 4952, if the offense is not graded as a first, second, or 

third-degree felony, “the offense is a misdemeanor of the second degree.” 

18 Pa.C.S. § 4952(b)(5). 
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insufficient to prove that the purpose of Greene’s phone call was to prevent 

Weyant from reporting or informing the authorities about Lafferty’s criminal 

acts or that the call was made in order to interfere with the administration of 

criminal justice. 

 Under section 4952(b)(4), “the offense [of intimidation of a witness is 

a] felony of the third degree in any other case in which the actor sought to 

influence or intimidate a witness or victim as specified in this subsection.” 

18 Pa.C.S. § 4952(b)(4) (emphasis added). The predicates for grading 

under this section are set forth in section 4952(b)(1), which states “[t]he 

actor employs force, violence or deception or threatens to employ force or 

violence, upon the witness or victim or, with the requisite intent or 

knowledge upon any other person.” 18 Pa.C.S. § 4952(b)(1)(i) (emphasis 

added). 

 Here, the Commonwealth offered evidence that Greene verbally 

threatened to assault Weyant for his involvement in the prosecution of 

Lafferty for drug charges. This testimony was sufficient to prove the 

requisite “knowledge” element under section 4952(b) that would suffice for a 

third-degree felony conviction under section 4952(a)(1). The fact that 

Greene never actually physically assaulted his victim is not determinative of 

a guilty verdict under section 4952; all that is required is an attempt to 
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intimidate.4 See Commonwealth v. Brachbill, 527 A.2d 113 (Pa. Super. 

1987) (intimidation of witness or victim under section 4952 does not require 

proof of threatening conduct). 

 Moreover, based on the proximity in time between the alleged 

threatening phone call and Lafferty’s arrest on the drug charges, the jury 

could reasonably infer from the evidence that the call was made with the 

intent to intimidate Weyant so that he would not report any information to 

authorities about Lafferty’s involvement in the two controlled drug buys. 

See Commonwealth v. Johnson, 910 A.2d 60 (Pa. Super. 2006) (in 

reviewing sufficiency claim, court is required to view evidence in light most 

favorable to verdict winner, giving prosecution benefit of all reasonable 

inferences to be drawn from evidence); see also 18 Pa.C.S. § 4952(a)(1) 

(person commits intimidation of witness where he has intent to interfere 

with administration of justice by intimidating witness to refrain from 

informing authorities concerning information related to commission of 

crime). 

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4

 In addition, in Commonwealth v. Felder, 75 A.3d 513 (Pa. Super. 2013), 

our Court explained that the grading of the crime of intimidation of a witness 

is based upon the highest degree of the offense charged in the case. Id. at 

517. Here, Greene was charged in the case with two third-degree felonies, 

intimidation of witnesses (section 4952(a)(1)) and retaliation against witness 

(section 4953(a)). Instantly, the court convicted Greene under section 

4952, graded as a third-degree felony. Thus, the grading of his offense also 

complied with the rule announced in Felder. 
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 Finally, to the extent that Greene argues that the Commonwealth did 

not prove that Greene actually made the threatening phone call to Weyant, 

we reiterate that a sufficiency of the evidence argument that is founded 

upon a mere disagreement with the credibility determinations made by the 

fact finder, or discrepancies in the accounts of the witnesses, does not 

warrant appellate relief. Johnson, supra. It is within the province of the 

fact finder to determine the weight to be accorded each witness's testimony 

and to believe all, part, or none of the evidence introduced at trial. Id.

 Here, the trial judge noted in his closing statement to the jury that this 

case came down to a credibility determination regarding Greene’s defense 

and Weyant’s allegation of a threatening telephone call. We will not disturb 

the fact finder’s credibility determinations where they are supported by the 

evidence. Id.

 Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 11/12/2014