J-A07017-15 

2015 PA Super 91 

IN THE INTEREST OF: D.G., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 

APPEAL OF: D.G. 

 No. 1198 WDA 2014 

Appeal from the Order Entered July 3, 2014 

In the Court of Common Pleas of Erie County 

Criminal Division at No(s): CP-25-JV-0000059-2014, 

CP-25-JV-0000343-2013 

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

OPINION BY LAZARUS, J.: FILED APRIL 21, 2015 

 D.G. appeals from the disposition order entered following his 

adjudication of delinquency by the Court of Common Pleas of Erie County 

based on the following offenses: (1) conspiracy to commit criminal 

trespass,1 and (2) criminal trespass.2 Upon review, we affirm. 

 The facts of this case are as follows. On August 24, 2013, at 

approximately midnight, Karar Al-Dafaai received a phone call from ADT 

Security Services, Inc., notifying him that the security alarm had gone off at 

his property located at 928 East Avenue in Erie. Al-Dafaai is the owner of a 

Stop N Go convenience store at this location. The building also contains a 

vacant upstairs apartment that is connected to the Stop N Go. 

____________________________________________ 

1

 18 Pa.C.S. § 903(a). 

2

 18 Pa.C.S. § 3503(a)(1)(ii). 
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 After receiving the call from ADT, Al-Dafaai drove directly to the 

property, located two blocks from his home. When he arrived, he saw two 

juveniles standing outside the property, whom he identified as D.G. and S.J. 

Upon arrival, he also observed that the building was shaking, consistent with 

an attempt to kick in the secure door to gain access to the Stop N Go. 

 After he got out of his car, Al-Dafaai engaged in a brief confrontation 

with the two juveniles, during which time he flagged down an approaching 

police car. At that time, the two juveniles fled. As they fled, Al-Dafaai 

noticed a third individual, Q.M., jump off the building’s roof and into the 

adjacent alley, where D.G. and S.J. had also fled.3

 At that time, Lieutenant Steven Goozdich of the Erie Police 

Department, having been waived down by Al-Dafaai and informed of the 

suspected robbery, approached the scene. Lieutenant Goozdich drew his 

weapon and entered the alley, where he saw three to four individuals coming 

off the roof and gathering at a fence near the end of the alley. He yelled, 

“police, stop,” and one person went over the fence and at least one other 

individual ran off in the opposite direction. Q.M. stood directly in front of 

Lieutenant Goozdich and hesitated, deciding which way to run. Lieutenant 

Goozdich, with gun drawn, commanded the juveniles to stop, but was only 

able to apprehend Q.M. 

____________________________________________ 

3

 While S.J., Q.M., and D.G. were subjects of the same adjudication proceeding, 

S.J. and Q.M. are not parties to this appeal. 
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 Al-Dafaai later testified that he was preparing the apartment to be 

rented; the barbed wire on the window to the apartment had been pulled 

back; and the ADT security sensors on the window had been tripped. 

Additionally, the door that leads into the upstairs apartment from the first 

floor had been kicked in. The downstairs landing had a second door that led 

into the Stop N Go and was secured by ADT sensors. That door had been 

kicked in and the sensors were jarred loose. 

 Subsequently, Lieutenant Goozdich put out a radio call regarding the 

incident. Sergeant Edward Noble received that call and within minutes, 

observed two individuals matching the juveniles’ descriptions in a parking lot 

approximately one block north of the Stop N Go. Sergeant Noble detained 

these individuals, and Al-Dafaai identified one of them as S.J. The other 

individual was released. 

 A second nearby officer, Patrolman Jason Russell, also received the 

radio call in an unmarked police car, and saw a juvenile matching the 

description of one of the perpetrators approximately one block south of the 

Stop N Go. Patrolman Russell apprehended the juvenile, later determined to 

be D.G., observing that he was breathing heavily and sweating profusely. 

Al-Dafaai later positively identified D.G. as one of the individuals he had 

seen at the Stop N Go. 
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 On August 28, 2013, D.G., S.J., and Q.M., were charged with criminal 

conspiracy to commit burglary,4 and burglary.5 An arraignment was held on 

August 30, 2013, at which time each of the juveniles denied the allegations. 

 On September 19, 2013, Al-Dafaai completed a restitution claim form 

for $1,466.00. Attached to that form were copies from his accounts book 

which set forth the following expenses: a $300.00 payment in cash to Kraus 

Hardware on August 27, 2013 for the costs of the door and frame; a 

$500.00 payment in cash to ADT on August 27, 2013, for the costs of the 

ADT alarm repair; and a $186.00 payment in cash to Kraus on August 27, 

2013, for the costs of window repair. 

 A combined denial hearing6 was held before the court on February 26, 

2014, at which all three juveniles were represented by counsel. Following 

testimony and argument of counsel, the court concluded that the juveniles 

engaged in a conspiracy. However, the court concluded that the facts 

supported criminal trespass, rather than burglary. Consequently, the court 

made findings that the juveniles had committed acts constituting conspiracy 

to commit criminal trespass and criminal trespass. 

____________________________________________ 

4

 18 Pa.C.S. § 903(a). 

5

 18 Pa.C.S. § 3502(a)(1). 

6

 The Court of Common Pleas of Erie County refers to a delinquency hearing 

as a denial hearing throughout its opinion. 
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 Counsel for D.G. objected to the court’s findings, which the court 

construed as an oral motion to reconsider. The court took the motion under 

advisement and, following the receipt of briefs and oral argument, the court 

denied the motion on April 4, 2014. 

 At a separate adjudication hearing on June 5, 2014, D.G. admitted to 

attempting to commit robbery by removing a wallet from a student’s pants 

pocket at East High School. 

 Following a consolidated dispositional hearing on July 3, 2014, the 

court adjudicated D.G. delinquent and placed him at the Glen Mills School. 

Further, the court ordered that D.G. pay restitution based on the accounting 

submitted by Al-Dafaai. The Court apportioned the total damages equally 

among the juveniles, ordering each to pay $488.67. Also, the Court’s 

finding of restitution against D.G. was made without prejudice to allow him 

the opportunity to request a restitution hearing. D.G. never requested such 

a hearing. 

 D.G. then filed a timely notice of appeal on July 24, 2014. On August 

12, 2014, D.G. filed a court-ordered statement of errors complained of on 

appeal, pursuant to Pa.R.A.P. 1925(b). 

 On appeal, D.G. raises the following issues: 

(1) Whether the trial court erred when it amended the 

allegations of delinquency to include different allegations, and 

such amendment was made sua sponte, at the conclusion of the 

denial hearing, with no notice to the juvenile. 

(2) Whether the trial court erred in ordering restitution to be 

paid without credible evidence substantiating the amount 
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ordered, and without taking into account the juvenile’s ability to 

pay, or his role in the underlying offense. 

Appellant’s Brief, at 2. 

D.G. first challenges the court’s sua sponte amendment of the charges 

brought at the delinquency adjudication. D.G.’s claim stems from 

Pennsylvania Rule of Juvenile Court Procedure 236, which provides in 

relevant part: 

Rule 232. Contents of Written Allegation 

Every written allegation shall contain: 

***** 

(6)(a) a summary of the facts sufficient to advise the juvenile of 

the nature of the offense alleged; and 

(b) the official or customary citation of the statute and section, 

or other provision of the law which the juvenile is alleged to have 

violated. 

Pa.R.J.C.P. 232(6). 

Further, D.G. cites to Pa.R.J.C.P. 334, which states in relevant part: 

Rule 334. Amendment of Petition 

***** 

(2) The court shall not allow a petition to be amended if the 

petition alleges a different set of events or offenses, where the 

elements or defenses are materially different from the elements 

or defenses to the offense originally petitioned. 

Pa.R.J.C.P. 334(2). 

Based on those rules, D.G. argues that the lower court violated his due 

process rights by amending the charges brought against him and failing to 

provide adequate notice, thus depriving him of an opportunity to present a 
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defense for the separate charge of trespass. In evaluating challenges to the 

amendment of criminal informations, this Court has set forth the following 

standard of review: 

In Commonwealth v. Mentzer, 18 A.3d 1200 (Pa. Super. 

2011), we set forth our considerations in determining whether 

the trial court erred in permitting the amendment of the 

information. 

[W]hen 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 amendment is not 

permitted. Additionally, [i]n reviewing a grant to amend an 

information, the Court 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 
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of the Commonwealth’s request for amendment allowed for 

ample notice and preparation. 

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

omitted). 

The central inquiry, therefore, is whether D.G. was prejudiced by the 

lower court’s amendment of the charges brought against him. Initially, we 

agree that criminal trespass is not a lesser included offense of burglary, as 

trespass contains the separate element of knowledge. See 

Commonwealth v. Carter, 393 A.2d 660 (Pa. Super. 1978). Such a 

finding, however, does not render D.G. per se prejudiced by the 

amendment. “The law does not disallow all proposed changes which involve 

offenses with different elements, but only those which constitute such 

material differences that the defendant is prejudiced thereby.” 

Commonwealth v. Grekis, 601 A.2d 1284, 1288, n.6 (Pa. Super. 1992). 

Our decision must turn, therefore, on whether, in this matter, criminal 

trespass and burglary are materially different. Section 3502 of the Crimes 

Code defines burglary, in relevant part, as follows: 

§3502. Burglary 

 (a) Offense Defined – A person commits the offense of 

burglary if, with the intent to commit a crime therein, the person 

 (1) enters a building or occupied structure . . . in which at 

the time of the offense no person is present. 

***** 

(b) Defense – It is a defense to prosecution for burglary if any 

of the following exists at the time of the offense:
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(1) The building or structure was abandoned. 

(2) The premises are open to the public. 

 (3) The actor is licensed or privileged to enter. 

18 Pa.C.S. § 3502(a)(1); (b)(1)-(3). 

 Section 3503 of the Crimes Code defines criminal trespass, in relevant 

part, as follows: 

§3503. Criminal Trespass 

(a) Buildings and occupied structures.— 

(1) A person commits an offense if, knowing that he is not 

licensed or privileged to do so, he: 

(i) enters, gains entry by subterfuge or surreptitiously 

remains in any building or occupied structure or separately 

secured or occupied portion thereof; or 

(ii) breaks into any building or occupied structure or 

separately secured or occupied portion thereof. 

***** 

(c) Defenses –It is a defense to prosecution under this section

that: 

(1) a building or occupied structure involved in an offense 

under subsection (a) of this section was abandoned;

(2) the premises were at the time open to members of the 

public and the actor complied with all lawful conditions imposed 

on access to or remaining in the premises; or 

(3) the actor reasonably believed that the owner of the 

premises, or other person empowered to license access thereto, 

would have licensed him to enter or remain. 

18 Pa.C.S. § 3503(a)-(c). 

The court concluded: 

Under the facts of this case, the elements of burglary and 

criminal trespass are not materially different, no new facts were 
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added by the Court, no change in defense strategy was 

precipitated by the amendment, and no prejudice was advanced 

at any time by the Juveniles other than the Court made the 

amendment sua sponte and ‘too late’. 

Trial Court Opinion, 4/11/14, at 20. 

Our Supreme Court considered this question specifically in Carter, 

supra, where defendants were charged with burglary but after a bench trial, 

were convicted of criminal trespass, although they were never actually 

charged with that crime. Id. at 660. The Court reversed that conviction, 

holding, “[s]cienter is not an element of [burglary] and thus, one defending 

against a burglary charge would have no reason to establish that (albeit 

falsely) he believed his presence in a building or occupied structure was 

privileged or licensed. Yet evidence of such a belief could provide a basis for 

an acquittal of a charge of criminal trespass.” Id. at 661. 

The Commonwealth attempts to distinguish Carter, arguing that, even 

if the two crimes are materially different, additional due process safeguards 

were provided in the instant matter. Specifically, the Commonwealth argues 

that the extensive oral argument at the hearing, and subsequent motion to 

reconsider, granted D.G. the opportunity to demonstrate prejudice. 

We recognize that the Supreme Court’s decision in Carter resulted 

from a concern for the due process rights of a defendant. In fact, Carter

held that although there may have been evidence presented in a burglary 

case to support a trespass conviction, due process must be observed, and a 

defendant must be put on notice of the trespass charge. 
J-A07017-15 

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In the matter sub judice, D.G. was never given notice that he might be 

adjudicated for trespass until after his case was presented. Despite this lack 

of notice, we do not perceive the same due process violations that influenced 

the Court’s decision in Carter. Although the lower court may have erred in 

amending the information sua sponte, it remedied that error by granting 

D.G. the opportunity to demonstrate prejudice with his motion to reconsider 

and supporting brief. The court liberally construed D.G.’s oral objection as a 

motion to reconsider, and permitted him to brief the issue. Despite that 

opportunity, D.G. could not demonstrate any significant prejudice or 

precluded defense or evidence, other than the fact that he “could not have 

introduced any additional evidence, or cross-examined any of the 

Commonwealth’s witness on the issue, nor could he have asked for a 

continuance at that time.” Appellant’s Brief, at 17. Further, per the factors 

laid out in Mentzer, supra, the charge of trespass did not entail the 

introduction of new facts or any further development of the facts presented. 

The facts relied upon by the lower court were the same presented with 

regard to the burglary charge. As such, D.G. was “fully apprised of the 

factual scenario which supports the charges against him.” Mentzer, supra. 

 In Carter, our Supreme Court noted that the crimes of criminal 

trespass and burglary are materially different. Despite this difference, D.G. 

was not prejudiced by the lower court’s amendment because he was fully 

apprised of the facts supporting that charge, see Mentzer, supra, and he 
J-A07017-15 

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was given the added due process safeguard of the motion to reconsider. 

D.G. simply failed to demonstrate that the amendment prejudiced his 

defense. Furthermore, the statutorily-defined defenses for burglary and 

trespass are virtually the same. If D.G. had a good faith basis to assert one 

of these defenses, it is logical to assume he would have done so with regard 

to the burglary charge. His failure to assert a statutory defense to burglary, 

therefore, is indicative that he is likewise unable to assert the same defense 

as to trespass. He has not shown, therefore, that the amendment 

prejudiced his ability to assert a defense. D.G.’s assertion that the 

amendment was procedurally improper is correct; however, a mere 

procedural mistake on the part of the trial court is not, on its face, enough to 

support the overturning of the adjudication, especially where that court 

granted the defendant a chance to demonstrate prejudice and he failed to do 

so. Accordingly, D.G. is not entitled to relief on this claim. 

 Next, D.G. challenges the trial court’s order that he pay restitution, 

arguing that there was no evidence to support the amount of restitution 

required. Appellant’s Brief, at 18. D.G. asserts that “the [c]ourt accepted 

the uncorroborated, conclusory receipts as accurate.” Appellant’s Brief, at 

19. In evaluating restitution orders, this Court has articulated the following 

standard of review: 

[O]ne of the purposes of the Juvenile Act is to hold children 

accountable for their behavior. Accordingly, the Juvenile Act 

authorizes the court to “order[ ] payment by the child of 

reasonable amounts of money as fines, costs or restitution as 
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deemed appropriate as part of the plan of rehabilitation 

concerning the nature of the acts committed and the earning 

capacity of the child.” 42 Pa.C.S.A. § 6352, Disposition of 

delinquent child, (a) General rule.-(5). Consistent with the 

protection of the public interest and the community, the 

rehabilitative purpose of the Juvenile Act is attained through 

accountability and the development of personal qualities that will 

enable the juvenile offender to become a responsible and 

productive member of the community. Thus, the policies 

underlying the Juvenile Act and its restitution provision, as well 

as the plain language of Section 6352, serve to invest the 

juvenile court with a broad measure of discretion to apportion 

responsibility for damages based upon the nature of the 

delinquent act and the earning capacity of the juvenile. 

In re M.W., 725 A.2d 729, 732-33 (Pa. 1999). Further, “[i]n reviewing an 

order of restitution, discretion is abused where the order is speculative or 

excessive or lacks support in the record.” Commonwealth v. B.D.G., 959 

A.2d 362, 367 (Pa. Super. 2008). 

 We do not find that the order of restitution constitutes an abuse of 

discretion. Al-Dafaai filled out a restitution claim form, provided his 

accounting, and testified at length as to the various damages he suffered, 

including the repair of: the doors and frame, the ADT alarm, the 

doorknobs, and the broken window. We do not agree, therefore, that the 

lower court’s calculations were based upon speculative information. 

Additionally, the lower court specified that its order was made without 

prejudice, permitting D.G. the opportunity to raise this issue at a restitution 

hearing. D.G. failed to request such a hearing. Our precedent is clear that 

the lower court has broad discretion in awarding restitution. Presently, the 

amount of restitution ordered is supported by evidence and consistent with 
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the testimony of the victim as well as the purposes of the Juvenile Act. As 

such, we do not find an abuse of discretion. 

Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 4/21/2015