J-S06042-17

2017 PA Super 204

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

ADDIE WILLIAMS

 Appellant No. 778 EDA 2016

Appeal from the Judgment of Sentence January 7, 2016

in the Court of Common Pleas of Montgomery County Criminal Division

at No(s): CP-46-CR-0002246-2014

BEFORE: MOULTON, RANSOM, and FITZGERALD,*JJ.

OPINION BY FITZGERALD, J.: FILED JUNE 30, 2017

Appellant, Addie Williams, appeals from her judgment of sentence of 

guilt without further penalty on her conviction for harassment.1 We 

conclude that the Commonwealth’s violation of Appellant’s rights under 

Pa.R.Crim.P. 544 and 564 requires us to reverse her conviction and direct 

the trial court to dismiss the harassment charge with prejudice. 

In the early morning hours of February 5, 2014, Appellant was 

arrested after her daughter called the police and alleged that Appellant 

locked her and her brothers out of their house. Appellant’s daughter 

informed a police officer at the scene that Appellant had hit her in the mouth 

at some point one day earlier. Appellant was charged with multiple counts 

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 2709(a)(1).
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of endangering the welfare of children, one count of simple assault and one 

count of harassment. 

On February 18, 2014, Appellant posted bail and was released from 

jail. On March 24, 2014, all charges except for simple assault were 

dismissed at Appellant’s preliminary hearing. The Commonwealth thereupon 

filed an information charging her only with simple assault.2 

On January 7, 2016, the matter proceeded to trial. At the beginning of 

trial, the Commonwealth orally moved to amend the information to include 

the previously dismissed charge of harassment. The Commonwealth claimed 

that this amendment was proper on the ground that harassment is a lesser 

included offense of simple assault. N.T., 1/7/16, at 9-10. Defense counsel 

responded:

I am going to object to [the] bill of information being 

amended in any way at this point. I think there is a 

process that has to be gone through by the District 

Attorney in order to do that. That hasn’t been done in this 

case. I think a petition has to be filed. In any event, I am 

looking at [Rule 564] right now. [The information] can be 

amended if there is a defect in form, the description of the 

offenses, description of any person or property, date 

charged, as long as they will not charge different 

offense[s]. We have gotten no notice that the bill of 

information was going to be amended. There is nothing in 

writing. I think there is a process that the District 

Attorney is trying to circumvent here. 

Id. at 10-11. 

 

2 18 Pa.C.S. § 2701(a)(1).
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The trial court suggested that Appellant had received notice of the 

harassment charge because the Commonwealth had offered to permit her to 

plead guilty to harassment without further penalty. Id. at 11. The court 

also observed, however, that “generally there has to be a defect in form, 

which, by the way, I didn’t hear any defect in form, description of the 

offenses, description of any person or property.” Id. at 12. The court 

concluded that defense counsel raised an “interesting argument,” and that 

the court would “figure it out.” Id. at 13.

At the close of evidence, defense counsel, in the words of the trial 

court, “tailored [his] closing argument to the simple assault charge.” Trial 

Ct. Op., 5/16/16, at 13. Defense counsel argued that Appellant slapped her 

daughter during a quarrel, and that Appellant’s daughter lied to the police 

that the slap caused a cut on the side of her mouth. N.T., 1/7/16, at 114. 

Counsel contended that slight cuts or bruises were insufficient to establish 

simple assault.3 Id. The Commonwealth countered that Appellant was 

guilty of simple assault or, in the alternative, harassment. The court found 

Appellant not guilty of simple assault, but it granted the Commonwealth’s 

 

3 Earlier in the case, defense counsel cited Commonwealth v. Kirkwood, 

520 A.2d 451 (Pa. Super. 1987), for this proposition. See id. at 275 

(evidence that defendant’s uninvited attention and violent dancing, 

according to victim, caused bruises and slight cuts on her arms, and that her 

right knee and arms hurt as a result of manner in which defendant swung 

her during dance, was insufficient to establish “physical impairment” or 

“substantial pain” elements of simple assault).
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motion to add harassment to the information and subsequently found 

Appellant guilty of harassment. 

Appellant filed timely post-sentence motions, which the court denied, 

and a timely notice of appeal. Both Appellant and the trial court complied 

with Pa.R.A.P. 1925.

Appellant raises two issues in this appeal:

I. Whether the charge of harassment should be dismissed 

due to a variance between the indictment and the crime of 

conviction failing to meet the requirements of Rule of 

[C]riminal [P]rocedure 564 and because the trial court 

committed a procedural error in rendering the verdict 

where summary harassment was dismissed at the 

preliminary hearing and never reinstated and is not a 

lesser included offense of simple assault.

II. Whether the evidence presented by the Commonwealth 

was sufficient to support a conviction for summary 

harassment.

Appellant’s Brief at 7.

In her first argument, Appellant maintains that the charge of 

harassment should be dismissed due to the Commonwealth’s violations of 

Pa.R.Crim.P. 544 and 564. The Commonwealth “concedes, with the benefit 

of hindsight, that the procedure below did not comply with [Rule] 544.” 

Commonwealth’s Brief at 6. We agree with Appellant that dismissal is the 

proper remedy. 

The Commonwealth clearly violated Pa.R.Crim.P. 544(A), which 

provides: “When charges are dismissed or withdrawn at . . . a preliminary 

hearing . . . the attorney for the Commonwealth may reinstitute the charges 
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by approving, in writing, the re-filing of a complaint with the issuing 

authority who dismissed . . . the charges.” Pa.R.Crim.P. 544(A). In this 

case, the harassment charge was dismissed at Appellant’s preliminary 

hearing, but the Commonwealth failed to “approve, in writing, the re-filing of 

a complaint [alleging harassment] with the issuing authority who dismissed . 

. . [this charge].” Id. The Commonwealth also violated Rule 544(B), which 

requires that the defendant receive another preliminary hearing on the 

reinstituted charge before the same issuing authority, or, if need be, before 

a different issuing authority. See Pa.R.Crim.P. 544(B). Here, the 

Commonwealth orally requested that the trial court—not the issuing 

authority—grant the Commonwealth leave to amend its information to add 

the harassment charge back into the case. The court delayed until the 

conclusion of trial before granting the Commonwealth’s motion, thus 

depriving Appellant of her right to a new preliminary hearing on the 

harassment charge and preventing defense counsel from preparing any 

defense to this charge.

In addition, the Commonwealth violated Pa.R.Crim.P. 564, which 

presently provides:

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 is necessary in the interests of 

justice.
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Pa.R.Crim.P. 564.4 When the trial court exercises its discretionary power to 

allow amendment of the information, the defendant can obtain relief if the 

amendment prejudices him. See Commonwealth v. Mentzer, 18 A.3d 

1200, 1203 (Pa. Super. 2011) (citation omitted). Factors for a court to 

consider in determining the existence of prejudice 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. (citation omitted). 

In this case, the Commonwealth waited until the beginning of trial 

before moving to amend the information to add a charge of harassment. 

 

4 This version of Rule 564 is effective until December 21, 2017, when an 

amended version of Rule 564 takes effect. The amended version provides: 

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.

Id. Our Supreme Court amended Rule 564 “to more accurately reflect the 

interpretation of this rule that has developed since it first was adopted in 

1974.” Pa.R.Crim.P. 564, cmt.
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The court took the motion under advisement and did not make its ruling 

until after the close of evidence and after defense counsel had already 

given his closing argument tailored to the only charge in the information at 

that time—simple assault. 

Further, harassment is clearly a “different offense” than simple 

assault. See Pa.R.Crim.P. 564. We have observed: 

To establish harassment, there must be proof the accused 

acted with an intent to harass, annoy, or alarm the other 

person. This unique element of intent is not required for 

simple assault. To prove simple assault, an intentional or 

reckless effort to cause bodily injury must be shown. 

Bodily injury is not a part of harassment. These crimes 

have distinct mental elements, and distinct types of harm 

are addressed.

Commonwealth v. Townley, 722 A.2d 1098, 1099 (Pa. Super. 1998). 

Thus, the Commonwealth’s failure here to request an amendment to the

information until the beginning of trial, and the court’s failure to rule on this 

motion until the end of trial, deprived defense counsel of any realistic 

opportunity to prepare or present a defense to this new and different charge 

during trial. 

The Commonwealth injected a new charge into this case at the 

eleventh hour in clear disregard for rules whose purpose is to give the 

defendant a fair opportunity to prepare and present her defense. We hold 

that the trial court abused its discretion in permitting the Commonwealth to 

amend its information to add the harassment charge. 
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The Commonwealth argues that Appellant cannot obtain relief because 

of mootness. In the context of post-conviction proceedings or direct appeals 

challenging the legality of sentence, Pennsylvania courts have found criminal 

cases moot when the defendant has completed her sentence and does not 

suffer from any collateral civil or criminal consequence of her conviction. 

See Commonwealth v. Rohde, 402 A.2d 1025, 1027 (Pa. 1979); 

Commonwealth v. Doria, 364 A.2d 322, 324 (Pa. 1976); Commonwealth 

v. Sheehan, 285 A.2d 465, 469 (Pa. 1971); Commonwealth v. Schmohl, 

975 A.2d 1144, 1149 (Pa. Super. 2009) (defendant’s appeal not moot based 

on “reasonable assumption” that he remains on parole from his conviction);

Commonwealth v. King, 786 A.2d 993, 996-97 (Pa. Super. 2001); 

Commonwealth v. Kelly, 418 A.2d 387, 388 (Pa. Super. 1980).

Even when a claim becomes moot, however, we may still reach its 

merits if the issue is “capable of repetition yet likely to evade review.” Pub. 

Defender’s Office of Venango Cty. v. Venango Cty. Court of Common 

Pleas, 893 A.2d 1275, 1276, 1279 (Pa. 2006) (citation omitted) (public 

defender challenged order compelling him to serve as standby counsel for 

pro se criminal defendant who previously had been denied public defender 

representation because his annual income exceeded the financial guidelines; 

although matter was moot because defendant had already gone to trial, 

Supreme Court proceeded to merits because issue was capable of repetition 

yet evading review). 
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Arguably, the present case is moot, because the court found Appellant 

guilty without further penalty, and she has not claimed to have suffered any 

collateral consequences from this conviction. Nevertheless, we reach the 

merits of this case because its circumstances are capable of repetition yet 

evading review. Specifically, in future cases, the Commonwealth could 

attempt to rescue prosecutions by adding new charges during or 

immediately before trial. It is unjust to expose defendants to the stigma of 

a criminal record by circumventing the Rules of Criminal Procedure in this 

fashion.5

Judgment of sentence reversed. Case remanded with instructions to 

dismiss harassment charge with prejudice. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/30/2017

 

5 Our decision in Appellant’s favor on her first argument makes it 

unnecessary for us to review her second argument, a challenge to the 

sufficiency of the evidence underlying her harassment conviction.