J-S05025-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

EION JOSEPH MCCLINTICK 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 882 WDA 2023

Appeal from the Judgment of Sentence Entered July 6, 2023

In the Court of Common Pleas of McKean County

Criminal Division at No(s): CP-42-CR-0000213-2022

BEFORE: PANELLA, P.J.E., KING, J., and BENDER, P.J.E.

MEMORANDUM BY KING, J.: FILED: June 28, 2024

Appellant, Eion Joseph McClintick, appeals from the judgment of 

sentence entered in the McKean County Court of Common Pleas, following his 

jury trial convictions for indecent assault and simple assault, and bench trial 

conviction for the summary offense of harassment.

1

 We affirm.

The relevant facts and procedural history of this case are as follows. On 

May 23, 2022, the Commonwealth filed a criminal information charging 

Appellant with rape, involuntary deviate sexual intercourse, sexual assault, 

aggravated indecent assault, strangulation, indecent assault, simple assault, 

harassment, and disorderly conduct, for offenses he allegedly committed with 

____________________________________________

1 18 Pa.C.S.A. §§ 3126(a)(2); 2701(a)(1); and 2709(a)(1), respectively.
J-S05025-24

- 2 -

a minor victim (born in January 2005) on or about August 1, 2020.2 

On November 28, 2022, the Commonwealth filed a motion to amend the 

criminal information seeking to amend the date range of the alleged offenses 

to be between May 27, 2021 and June 1, 2021, based on the victim’s 

statements that the offenses occurred around Memorial Day weekend 2021. 

The court held a hearing on the motion on December 7, 2022, and granted 

the request. The Commonwealth filed the amended criminal information on 

December 8, 2022.3 The Commonwealth filed a second motion to amend the 

criminal information on December 20, 2022, seeking to amend the date range 

of the alleged offenses to between May 9, 2021 and June 25, 2021.4 The court 

held a hearing on February 24, 2023. On March 6, 2023, the court granted 

relief, in part, permitting the Commonwealth to amend the date range of the 

alleged offenses to be between May 29, 2021 and June 7, 2021. The court 

entered another order on March 10, 2023, clarifying this date range. On March 

14, 2023, the Commonwealth filed an amended criminal information with the 

date range of the alleged offenses as between May 29, 2021 and June 7, 2021.

Appellant proceeded to a jury trial on March 27, 2023. During trial, the 

____________________________________________

2 The criminal complaint provided a date range of August 2020 to June 2021.

3 The amended criminal information set the date range for some of the alleged 

offenses as “on or about between” May 28, 2021 and June 1, 2021.

4 At a subsequent hearing, the Commonwealth stated that it meant to amend 

the date range of the offenses to between May 29, 2021 (not May 9th) and 

June 25, 2021.
J-S05025-24

- 3 -

Commonwealth made an oral request to amend the criminal information to a 

date range of the offenses through June 20, 2021, based upon the testimony 

provided by the victim at trial. Over Appellant’s objection, the court granted 

the request. At the conclusion of trial, the jury convicted Appellant of indecent 

assault and simple assault; the court convicted Appellant of summary 

harassment.5 The Commonwealth formally filed a third amended criminal 

information on March 30, 2023, to comport with the trial court’s order granting 

the Commonwealth’s oral motion to amend, with the date range of the 

offenses as between May 29, 2021 and June 20, 2021. 

On July 6, 2023, the court sentenced Appellant to an aggregate 208 

days to 231⁄2 months’ imprisonment with credit for time served and immediate 

parole, and a concurrent term of two years’ probation. Appellant timely filed 

a notice of appeal on August 4, 2023. On August 7, 2023, the court ordered 

Appellant to file a Pa.R.A.P. 1925(b) statement, which Appellant timely filed 

on August 28, 2023.

Appellant raises one issue for our review:

Did the trial Court err in granting the Commonwealth’s midtrial request to amend the Criminal Information, thereby 

extending the period for which [Appellant] was required to 

defend against without proper notice?

(Appellant’s Brief at 4).

Appellant argues that he suffered prejudice as a result of the 

____________________________________________

5 Appellant was acquitted of the other offenses charged. 
J-S05025-24

- 4 -

Commonwealth’s mid-trial amendment to the criminal information. 

Specifically, Appellant asserts that the amendment changed the factual 

scenario allegedly supporting the charges and added facts previously unknown 

to Appellant—namely, when the offense allegedly occurred. Appellant 

contends that he prepared for trial based on the factual scenario set forth at 

the preliminary hearing, and clarified at the February 24, 2023 hearing, during 

which the Commonwealth alleged that the crime occurred “[a]round Memorial 

Day,” on a Saturday, while school was still in session (before June 7, 2021, 

when the juvenile believed school had ended for the year). (Id. at 26-27). 

Appellant maintains that the court set the date range of the alleged offense(s) 

from May 29, 2021 to June 7, 2021. Appellant avers that he relied on this 

information in preparing his defense by filing a notice of alibi witnesses who 

could verify his whereabouts during the weekend of May 29-31, 2021. 

Appellant claims he also produced his mother as a witness, and elicited 

testimony from the alleged victim, to demonstrate that Appellant and the 

victim were outside of McKean County during the weekend of June 6-7, 2021. 

Appellant emphasizes testimony from the alleged victim wherein she admitted 

that the alleged crime did not occur between May 29-June 7, 2021. 

Appellant insists that he engaged in substantial trial preparation to 

address the timeline alleged in the criminal information, and Appellant’s trial 

strategy was focused on addressing the timeline and the impossibility that the 

offense(s) could have occurred as alleged. Appellant submits that allowing
J-S05025-24

- 5 -

the Commonwealth to amend the criminal information to extend the timeline 

of the alleged offense(s) beyond June 7, 2021 was very prejudicial, where 

Appellant had no notice to prepare an alibi defense for any dates after June 7, 

2021. Appellant stresses that the Commonwealth’s mid-trial amendment was 

its third amendment to the criminal information. Appellant further avers that 

the court denied his request for a mistrial, which could have afforded Appellant 

additional time for defense investigation and to subpoena additional defense 

witnesses related to the expanded date range. Appellant complains the court 

also sustained the Commonwealth’s objection to Appellant’s attempt to 

introduce photographs of Appellant and the alleged victim at a birthday party 

during one of the weekends in the expanded date range and a corresponding 

social media post. 

Appellant proclaims that the Commonwealth’s “pattern of repeatedly 

changing witness testimony, and then amendments to the criminal 

Information to change or expand the asserted dates of the crime, in essence 

created a shell game or moving target for which Appellant was denied the 

ability to fairly defend against.” (Id. at 32). Appellant insists that the court’s 

allowance of the mid-trial amendment left Appellant unprepared to present 

additional impeachment and/or alibi testimony to address the entirety of the 

newly expanded allegations. Appellant concludes the court abused its 

discretion in granting the mid-trial amendment to the criminal information, 

and this Court must vacate his judgment of sentence and remand for a new 
J-S05025-24

- 6 -

trial. We disagree. 

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

an information for an abuse of discretion.” Commonwealth v. Moffitt, 305 

A.3d 1095, 1099 (Pa.Super. 2023) (internal citation omitted). Pennsylvania 

Rule of Criminal Procedure 564 governs the amendment of a criminal 

information as follows:

Rule 564. Amendment of Information

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. “The 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.” 

Moffitt, supra at 1101 (internal citation omitted).

This Court has explained:

When presented with a question concerning the propriety of 

an amendment, 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 
J-S05025-24

- 7 -

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.

Additionally, in reviewing a grant to amend an information, 

the [c]ourt will look to whether the appellant was fully 

apprised of the factual scenario which supports the charges 

against him. Where the crimes specified in the original 

information involved the same basic elements and arose out 

of the same factual situation as the crime added by the 

amendment, the appellant is deemed to have been placed 

on notice regarding his alleged criminal conduct and no 

prejudice to 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.

Commonwealth v. Beck, 78 A.3d 656, 660 (Pa.Super. 2013) (internal 

citations and quotation marks omitted; reformatting provided).

In Commonwealth v. Samuel, 102 A.3d 1001 (Pa.Super. 2014), 

appeal denied, 635 Pa. 742, 134 A.3d 56 (2016), the appellant alleged on 

appeal, inter alia, that the trial court erred by allowing the Commonwealth to 

amend the criminal informations filed against him. Specifically, the appellant 

claimed the court erred in permitting the amendment, which had the effect of 

backdating the appellant’s involvement in a cocaine distribution ring. In 
J-S05025-24

- 8 -

addressing this issue, this Court explained:

In this case, the original information alleged a period of 

criminal activity from October 5, 2011 to November 4, 2011, 

the date of [the appellant’s] arrest. On February 28, 2012, 

as a result of information learned from the Grand Jury 

investigation that commenced following [the appellant’s]

arrest, a second set of charges relating to the same time 

period was filed against [the appellant].

Subsequently, based upon further information obtained 

from the Grand Jury investigation, the Commonwealth 

sought to amend the informations filed against [the 

appellant] (and his cohorts) only for the purpose of 

extending the period of their criminal activities back to 

January 1, 2011. The crimes charged in the amended 

informations were identical to the crimes charged in the 

original informations. The charges involved the same 

pattern of events upon which the charges in the original 

informations were based; the amendment simply extended 

the period of time in which the events occurred. As such, 

there was no “last minute addition of alleged criminal acts” 

of which [the appellant] was not informed. The amendment 

did not run afoul of Rule of Criminal Procedure 564.

[The appellant] argues that he was prejudiced because the 

amendments “back-dated” his involvement in the criminal 

enterprise. [The appellant] misses the mark with this claim. 

As made clear by the discussion of the relevant law above, 

prejudice in this context refers to charging a defendant with 

crimes arising out of a set of events unrelated to the conduct 

that served as the basis for the original charges. That did 

not occur in this case. ...

Id. at 1009 (internal citations omitted). 

Instantly, after hearing argument from counsel regarding the 

Commonwealth’s request to amend the criminal information during trial, the 

trial court ruled as follows:

...I understand the practical considerations presented by the 

Defense, from a common-sense standpoint. It makes 
J-S05025-24

- 9 -

sense. We had huge dates and we had narrow dates and 

we had a little bit more, which I ruled on because I looked 

at the evidence and even though the Commonwealth asked 

for a broader period, at the last hearing regarding this, I just 

couldn’t find anything in all of that. That said it went, I 

think, beyond the seventh [of June] or whatever it was. And 

then there was a request to what did you really rule? And I 

said, yeah, I said in court [at the last hearing], I was going 

to go, I think it was to the 20th. But I just didn’t see anything 

here that could possibly get to that day.

So, from a practical standpoint, the Defense is absolutely 

right. This has been all over the place. It’s this big, it’s this 

small, it’s this big. By pointing that out, I’m not faulting the 

Commonwealth, I mean, the witness’s testimony is what it 

is. They can’t, of course, tell them we’ll stick to this, or don’t 

change that the witnesses have to answer the way they 

answer. So, it’s not Counsel’s doing, it’s just, the witness 

has been all over with these dates.

And the argument that while we prepared for this date time 

period, that makes practical sense. But again, I have to 

follow the law. The law is the law. In [Samuel, supra], 

I’m going to read part of it. “Samuel argues that he was 

prejudiced because the amendments backdated his 

involvement in the criminal enterprise. Samuel misses the 

mark with this claim. As made clear by the discussion of 

the relevant law above, prejudice in this context refers to 

charging the defendant with crimes arising out of a set of 

events unrelated to the conduct that’s served as the basis 

for the original charges.” There isn’t different conduct 

alleged if you change the date [in this case].

This witness has been clear that there was one incident that 

she’s asserting, whether it’s clearly accepted is up to the 

Jury, but it isn’t well this happened this weekend, that 

weekend, that weekend it’s nope we’re here for one alleged 

incident. It’s just, when did it happen? And today she 

provided testimony that would set that date to June 20th, 

2021.

Because of that, I’m compelled by [Samuel]. As well as the 

other cases cited, in my previous opinion, to grant the 

motion to go up to the end date of June 20th, 2021. 
J-S05025-24

- 10 -

(N.T. Trial, 3/27/23, at 74-76). 

The record supports the court’s analysis. As the trial court stated in its 

earlier opinion granting the Commonwealth’s second motion to amend the 

criminal information:

Here, the Commonwealth has strived to narrow the date. 

Considering the age of the victim and the nature of the 

charges, as well as the above authority, this time period is 

not too broad so as to violate [Appellant’s] due process 

rights.

The defense asserts that the victim’s testimony about the 

date range is unreliable and incredible. [Appellant asserts] 

that the victim only changed the date to avoid [Appellant’s] 

alibi defense. However, this argument ignores the court’s 

role here. We are not the judge of credibility and/or 

accuracy. It [is] our responsibility to determine if there is 

some basis to support the dates asserted by the 

Commonwealth and that there have been reasonable 

attempts to limit that date range. We find [here] that there 

was.2

2 It is true that the victim’s testimony about the date 

of the alleged offense has changed several times and, 

at least at times, is confusing. These changes and the 

confusion, such as Memorial Day being in June, may 

or may not cause the jury, as finder of fact, to 

question the victim’s ability to accurately recall 

events. However, and again, that is not the court’s 

responsibility here.

(Opinion, filed 3/6/23, at 8).

Here, the Commonwealth’s request to amend the criminal information 

did not alter the basic elements or factual scenario of the crimes charged. 

See Samuel, supra; Beck, supra. The Commonwealth’s theory of the case 

has remained the same throughout the life of this case that Appellant’s assault 
J-S05025-24

- 11 -

on the victim took place on or around Memorial Day weekend in 2021.6 In 

ruling on the Commonwealth’s second motion to amend, the court limited the 

proffered date range to between May 29, 2021 and June 7, 2021 because at 

the February 24, 2023 hearing, the Commonwealth’s evidence reflected that 

the offenses occurred within that date range. Nevertheless, on crossexamination at trial, the victim admitted that the assault did not occur on 

Memorial Day weekend of 2021, and she stated that it took place during “a 

weekend, after school let out on June 3rd, and before [she and Appellant] 

broke up June 25th or sooner[.]” (N.T. Trial, 3/27/23, at 42). 

As this Court stated in Samuel, and as the trial court explained in its 

ruling, “prejudice in this context refers to charging a defendant with crimes 

arising out of a set of events unrelated to the conduct that served as the basis 

for the original charges. That did not occur in this case.” Samuel, supra at 

1009.7 Here, the Commonwealth did not seek to violate the purpose of Rule 

____________________________________________

6 We note that Rule 560 addresses the filing of a criminal information and 

provides that “if the precise date is not known or if the offense is a continuing 

one, an allegation that it was committed on or about any date within the period 

fixed by the statute of limitations shall be sufficient[.]” Pa.R.Crim.P. 

560(B)(3).

7 Although Appellant attempts to distinguish Samuel as related to a pre-trial 

amendment to the criminal information as opposed to one made during trial, 

we disagree that this difference is dispositive here. Appellant suggests on 

appeal that he moved for a mistrial, which “was the only way to give Appellant 

sufficient notice to prepare a defense” based on the new date range. 

(Appellant’s Brief at 30). Nevertheless, Appellant does not attack the court’s 

ruling denying his motion for a mistrial on appeal. To the extent Appellant 

(Footnote Continued Next Page)
J-S05025-24

- 12 -

564 by adding “last minute” criminal acts of which Appellant was uninformed. 

See Pa.R.Crim.P. 564; Moffitt, supra. We cannot say that the trial court 

abused its discretion under these circumstances. See id. Accordingly, we 

affirm.

Judgment of sentence affirmed. 

6/28/2024

____________________________________________

attempts to do so, that claim would be waived for failure to challenge the 

ruling on his motion for a mistrial in his Rule 1925(b) statement. See

Pa.R.A.P. 1925(b)(4)(vii) (stating issues not raised in concise statement are 

waived).