J-A01038-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

ROBERTO R. LAUREANO

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1986 EDA 2017

Appeal from the Order June 9, 2017

In the Court of Common Pleas of Bucks County 

Criminal Division at No(s): CP-09-CR-0000087-2012

BEFORE: LAZARUS, J., OTT, J., and PLATT, J.

MEMORANDUM BY OTT, J.: FILED MAY 14, 2018

The Commonwealth appeals from the order entered in the Bucks County 

Court of Common Pleas granting appellee, Roberto R. Laureano’s, postsentence motion requesting a judgment of acquittal based on the court’s 

legally erroneous ruling permitting the Commonwealth to amend the 

information. The Commonwealth contends the amendment to the criminal 

information was proper. Based on the following, we reverse and remand for 

further proceedings.

The trial court set forth the facts and arduous procedural history as 

follows:

The instant case arises from a motor vehicle accident on 

October 20, 2011. The accident occurred in the area of 2220 

Street Road, Bensalem, PA. The roadway is a four-lane highway 

____________________________________________

 Retired Senior Judge assigned to the Superior Court.
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with a center turning lane, and the accident occurred in the middle 

of the block with no traffic light or pedestrian crossing. When 

police arrived on scene, it was apparent that a pedestrian in a 

motorized wheelchair had been struck by a vehicle and was 

seriously injured. [Laureano] identified himself to police as the 

person driving the vehicle that had struck the pedestrian. The 

pedestrian later died.

Officer Jennifer Stahl (“Officer Stahl”) of the Bensalem 

Township Police Department was the first officer to arrive at the 

scene and explained to [Laureano] that the police would like him 

to take a blood test due to the severity of the accident. [Laureano] 

was told that this was standard procedure, and Officer Stahl asked 

[Laureano] if he would consent to a blood draw. Officer Stahl 

made it clear that there was nothing that caused her to suspect 

that [Laureano] had done anything wrong or was in any way 

impaired. [Laureano] was not provided the standard consent 

form, nor was [Laureano] informed that the results of any test 

could be used against him in a criminal proceeding. [Laureano] 

consented to the blood test, and he was placed in a police car –

without handcuffs – and taken to the local hospital for a blood 

draw.

The blood test came back positive for a metabolite of 

marijuana. [Laureano] was charged with 75 § 3802(d)(1)(i), 

Driving Under the Influence: Controlled Substance – Schedule 1, 

on February 2, 2012. [Laureano] filed an Omnibus Pretrial Motion 

to, in part, suppress the blood test results. A suppression hearing 

was held on May 12, 2012, and after we denied the motion to 

suppress, a waiver trial was held immediately thereafter.

During the waiver trial, all evidence and testimony from the 

suppression hearing was made part of the trial record. The 

Commonwealth also entered the blood results as evidence, but it 

offered no additional testimony. The defense demurred on the 

evidence. During arguments, the defense pointed out that the 

Commonwealth had charged [Laureano] with the incorrect 

statute. Specifically, the Commonwealth charged [Laureano] with

[Section] 3802(d)(1)(i), which requires the active ingredient of 

the controlled substance to be in [Laureano]’s blood. In reality, 

[Section] 3802(d)(1)(iii) would have been the appropriate charge, 

as this section requires only that a metabolite of the controlled 

substance be present in [Laureano]’s blood. The Commonwealth 

requested that we allow them to reopen their case and allow an 
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amendment to the information to correct the charge, which we 

did. We then found [Laureano] guilty and deferred sentencing.

[Laureano] then filed a Post-Trial Motion for Extraordinary 

Relief requesting reconsideration of the motion to suppress the 

blood test results and the ruling to allow the amendment to the 

criminal information. We held a hearing on this Motion, which 

occurred on August 27, 2012. At this hearing, the defense argued 

three issues: (1) the police did not have probable cause to 

request a chemical test pursuant to the implied consent law; (2) 

[Laureano]’s consent was not knowing and voluntary because the 

police did not explain that the blood test results could be used 

against him in criminal charges; and (3) the Commonwealth 

should not have been permitted to amend the criminal information 

after both parties had rested.

We found that [Laureano]’s arguments on the voluntary 

nature of [his] consent had merit, and we reversed our original 

decision of May 15, 2012, thereby granting the motion to 

suppress. Because the Commonwealth could not meet its burden 

of proof without the suppressed evidence, we additionally vacated 

the conviction - also from May 15, 2012 - by an Order dated 

August 30, 2012. We did not reach the implied consent or 

amended criminal information issues at that time.

The Commonwealth appealed our decision to suppress the 

blood test, which led to the Superior Court and the Pennsylvania 

Supreme Court considering this case. The Superior Court initially 

upheld our decision but the Commonwealth’s Petition for 

Allowance of Appeal was granted by the Pennsylvania Supreme 

Court. Following the Pennsylvania Supreme Court’s decision in 

Commonwealth v. Smith, 77 A.3d 562 (Pa. 2013), the 

Pennsylvania Supreme Court remanded the case to the Superior 

Court, which overturned our suppression of the blood test. The 

case was then remanded to us for sentencing.

Sentencing was scheduled for November 19, 2014. 

[Laureano] again offered an oral Motion for Extraordinary Relief, 

arguing that we were incorrect in allowing the Commonwealth to 

amend its criminal information following the close of testimony at 

the trial. We considered argument from both sides on this point 

and consulted case law, after which we determined that it had 

been incorrect to allow the Commonwealth to amend its 

information following the close of testimony. We therefore 
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reversed our original decision in this matter and, since the 

Commonwealth was unable to meet its burden of proof under 

[Section] 3802(d)(1)(i), found [Laureano] not guilty. The 

Commonwealth then filed an appeal on December 18, 2014, and 

timely filed their Statement of Matters Complained of on Appeal 

on January 7, 2015.

Thereafter, we filed our Opinion on January 30, 2015. On 

November 17, 2016, the Superior Court decided that we 

improperly granted [Laureano]’s Motion for Extraordinary Relief 

instead of waiting for a post -sentence motion, and thus, our Order 

of November 19, 2014 was reversed, and the case was remanded 

for sentencing.

On remand, a sentencing hearing was held on March 24, 

2017. At the conclusion of that hearing we sentenced [Laureano] 

to imprisonment in the Bucks County Correctional Facility for not 

less than 90 days nor more than 6 months. [He] was also ordered 

to pay the costs of prosecution, as well as a fine of $1,500.00. 

[Laureano] was released on his own recognizance pending appeal 

or post -sentence motion.

On March 31, 2017, [Laureano] filed a post -sentence 

motion, asking us to arrest judgment or order a judgment of 

acquittal. A hearing was held on June 6, 2017, regarding [his]

post -sentence motion. After the hearing, on June 9, 2017, we 

granted [Laureano’s] motion requesting a judgment of acquittal 

based on our legally erroneous trial ruling permitting the 

Commonwealth to amend the information.

Trial Court Opinion, 7/17/2017, at 1-4 (record citations omitted).1 The 

Commonwealth filed this appeal.2

____________________________________________

1

 The court’s opinion was timestamped the following day.

2

 On June 23, 2017, the trial court ordered the Commonwealth to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

The Commonwealth filed a concise statement on July 10, 2017. The trial court 

issued an opinion pursuant to Pa.R.A.P. 1925(a) on July 17, 2017.
J-A01038-18

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In its sole issue on appeal, the Commonwealth argues the trial court 

erred in granting Laureano’s post-sentence motion for judgment of acquittal 

and determining that its earlier ruling, permitting the Commonwealth to 

amend the criminal information, was legally erroneous under Pennsylvania 

Rule of Criminal Procedure 564, which governs the amendment of criminal 

informations. See Commonwealth’s Brief at 13. The Commonwealth states 

the court also “appears to misapprehend the nature of the amended crime 

charged and the alleged prejudice [Laureano] suffered as a result of the 

amendment.” Id. at 15.

Our review of a ruling granting a motion for judgment of acquittal is 

guided by the following: 

“A motion for judgment of acquittal challenges the sufficiency of 

the evidence to sustain a conviction on a particular charge, and is 

granted only in cases in which the Commonwealth has failed to 

carry its burden regarding that charge.” As we have stated:

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at 

trial in the light most favorable to the verdict winner, there 

is sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In 

applying the above test, we may not weigh the evidence and 

substitute our judgment for [that of] the fact-finder. In 

addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a defendant’s 

guilt may be resolved by the fact-finder unless the evidence 

is so weak and inconclusive that as a matter of law no 

probability of fact may be drawn from the combined 

circumstances. The Commonwealth may sustain its burden 

of proving every element of the crime beyond a reasonable 

doubt by means of wholly circumstantial evidence. 

Moreover, in applying the above test, the entire record must 
J-A01038-18

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be evaluated and all evidence actually received must be 

considered. Finally, the trier of fact while passing upon the 

credibility of witnesses and the weight of the evidence 

produced, is free to believe all, part or none of the evidence. 

“It is well recognized, however, that a criminal conviction cannot 

be based upon mere speculation and conjecture.”

Commonwealth v. Graham, 81 A.3d 137, 142 (Pa. Super. 2013) (citations 

omitted), appeal denied, 93 A.3d 462 (Pa. 2014).

At issue in the present case is Rule 564, which 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.

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. Duda, 2003 PA

Super 315, 831 A.2d 728, 732 (Pa. Super. 2003). The test to be 

applied is:

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

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.
J-A01038-18

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Commonwealth v. Davalos, 2001 PA Super 197, 779 A.2d

1190, 1194 (Pa. Super. 2001)(citation omitted).

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

“‘[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. Mentzer, 18 A.3d 

1200, 1202 (Pa. Super. 2011), quoting Commonwealth v. Grekis, 601 A.2d 

1284, 1288 (Pa. Super. 1992).3

Here, Laureano was charged with the crime of driving under the 

influence of a controlled substance (“DUI”). A DUI offense is defined, in 

relevant part, as follows:

(d) Controlled substances. — An individual may not drive, 

operate or be in actual physical control of the movement of a 

vehicle under any of the following circumstances:

(1) There is in the individual’s blood any amount of a:

____________________________________________

3

 We must consider several factors in determining whether an amendment 

has prejudiced a defendant:

(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.

Sinclair, 897 A.2d at 1223 (citation omitted).
J-A01038-18

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(i) Schedule I controlled substance, as defined in the 

act of April 14, 1972 (P.L.233, No.64), known as The 

Controlled Substance, Drug, Device and Cosmetic Act;

...

(iii) metabolite of a substance under subparagraph 

(i) or (ii).

75 Pa.C.S. § 3802(d).

As indicated above, Laureano was originally charged with Subsection 

3802(d)(1)(i). Following closing arguments, the Commonwealth was 

permitted to amend its criminal information and charge Laureano with 

Subsection 3802(d)(1)(iii), as it was the more appropriate charge based on 

the facts of the case. Laureano was convicted under the latter offense, and 

subsequently sentenced. He then requested, and was granted, extraordinary 

relief regarding the ruling that granted the amendment. The Commonwealth 

now contends:

Here, there can be little doubt that the original charge

[(Subsection 3802(d)(1)(i))] and the amended charge

[(Subsection 3802(d)(1)(iii))] involved the same basic elements 

and evolved from the same factual situation. The Commonwealth 

always alleged that [Laureano] unlawfully operated his vehicle 

while having marijuana in his blood. The basic elements of that 

offense did not change regardless of whether he had marijuana 

constituent or marijuana metabolite in his blood. Nor did the 

requested amendment arise from a new or different factual 

scenario. In addition, not only did the information place 

[Laureano] on notice of the criminal conduct alleged, but 

[Laureano]’s counsel conceded that he had actual notice that 

there was marijuana metabolite, rather than marijuana 

constituent, in [Laureano]’s blood once he received the lab report 

several weeks prior to trial. As such, the trial court had properly 

concluded during trial that it was appropriate to permit the 

Commonwealth to amend the information.
J-A01038-18

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Commonwealth’s Brief at 16-17 (citations omitted). Relying on 

Commonwealth v. Houck, 102 A.3d 443 (Pa. Super. 2014), the 

Commonwealth further asserts:

The trial court states in its Opinion that the latter is not a lesser 

included [offense] of the former, insofar as “a metabolite of a 

controlled substance is separate and distinct from the controlled 

substance itself.” Opinion, July 17, 2017, p. 7. Yet, just as the 

defendant in Houck could not have committed a Section 3802(c) 

offense without committing a Section 3802(b) offense, see 

Houck, 102 A.3d at 453, here [Laureano] could not have had 

committed a [Subs]ection 3802(d)(1)(i) offense without 

committing a [Subs]ection 3802(d)(1)(iii) offense. Put another 

way, [Laureano] could not have had marijuana metabolite in his 

blood if he had not also previously had marijuana constituent in 

his blood. As that is the very conduct prohibited by [Subs]ection 

3802(d)(1), the mere fact that, at the time of his blood draw, the 

marijuana constituent had broken down into a metabolite is legally 

insignificant. Cf. Commonwealth v. Sims, 919 A.2d 931, 938 

(Pa. 2007) (to be a cognate crime, and therefore a lesser included 

crime, it is sufficient that the two offenses have certain elements 

in common, such that the greater offense includes allegations of 

all the elements of the lesser offense); Commonwealth v. 

Sinclair, 897 A.2d [1218,] 1222 [(Pa. Super. 2006)] (“The driving 

under the influence statute proscribes a single harm to the 

Commonwealth.... The fact that the offense may be established 

as a matter of law if the Commonwealth can produce the 

necessary chemical test [as opposed to the “incapable of safe 

driving” element] does not constitute proof of a different offense, 

but merely represents an alternative basis for finding culpability.”) 

(quoting Commonwealth v. McCurdy, 558 Pa. 65, 735 A.2d 681 

(Pa. 1999)).

Commonwealth’s Brief at 18-20 (footnote omitted). Additionally, the 

Commonwealth states Laureano did not suffer any prejudice where: (1) “the 

amended charge arose from the exact factual scenario as the original 
J-A01038-18

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charge;”4 (2) “[t]he amendment did not add any new facts that were 

previously unknown to [Laureano] as he was both aware that the charge 

against him stemmed from marijuana in his blood while operating a vehicle 

and in that he conceded that he was aware of the results of his BAC weeks 

prior to trial;”5 and (3) Laureano “put on no evidence and proffered no defense 

other than to rely on the variance between the results of the lab report and 

the subsection charged.”6 Moreover, the Commonwealth alleges the “trial 

court appears to ignore that it is illegal under [Subs]ection 3802(d)(1) to 

operate a vehicle while having in one’s blood any amount of either a controlled 

substance or a metabolite of a controlled substance, irrespective of whether 

the controlled substance or metabolite thereof affected one’s ability to drive.” 

Id. at 24.

In its Rule 1925(a) opinion, the trial court explained it granted Laureano 

relief for several reasons. First, relying on Commonwealth v. Plybon, 421 

A.2d 224 (Pa. Super. 1980), the court stated, “[I]t had been incorrect to allow 

the Commonwealth to amend its information during closing arguments of the 

waiver trial.” Trial Court Opinion, 7/17/2017, at 4. Specifically, the court 

found: 

____________________________________________

4

 Commonwealth’s Brief at 20.

5

 Id. at 21

6

 Id.
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In the present case, the Commonwealth only moved to 

amend the information following the close of its case and following 

the defense’s demurrer on the evidence. It was not until the 

defense pointed out during its closing arguments that the 

Commonwealth had charged [Laureano] with the wrong statute 

that the Commonwealth requested allowance to amend the 

criminal information.

Additionally, [Laureano] ... was on notice that he would have 

to defend himself under the charge of driving under the influence 

of a controlled substance, but the defenses for the charge of 

having an active ingredient of marijuana in the bloodstream varies 

distinctly from the defenses for the charge of having a metabolite 

or inactive ingredient of marijuana in the bloodstream. Our 

understanding is that a metabolite of marijuana can stay in the 

bloodstream for a much longer period of time than the active 

ingredients. Because of this, and because the defense had access 

to the Commonwealth’s blood test results well before the trial, the 

defense prepared to argue[] that [Laureano] was not actually 

under the influence of marijuana at the time he operated the 

motor vehicle; that is, that the presence of the metabolite did not 

affect his ability to operate the vehicle. Additionally, the defense 

offered some alternative defenses as well, including, for example, 

a chain of custody argument.

Id. at 6.

Second, the court stated it did not “believe that 75 Pa.C.S.A. [§] 

3802(d)(1)(iii) [wa]s a lesser-included offense of 75 Pa.C.S.A. [§] 

3802(d)(1)(i).” Trial Court Opinion, 7/17/2017, at 6. Moreover, the court 

opined:

Just as subsection (ii) of this statute could not be a lesser-included 

offense of subsection (i), as a schedule II or III substance is a 

wholly different drug than a schedule I substance, we do[] not 

believe that subsection (iii) is a lesser-included offense of 

subsection (i), as a metabolite of a controlled substance is 

separate and distinct from the controlled substance itself. 

Accordingly, that, coupled with the timing of the amendment, 

should be sufficient to uphold our determination that the 

amendment to the criminal information was improper in this case.
J-A01038-18

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Id. at 7. Additionally, the court determined “the potential for prejudice is 

especially heightened ... because the Commonwealth did not request leave to 

amend the information until after the close of the Commonwealth’s case and 

after the demurrer of the defense.” Id. 

We are constrained to disagree with the court’s determination. First, 

we conclude that despite the last minute notice of the amendment, the crime

specified in the original information (Subsection 3802(d)(1)(i)) involved the 

same basic elements and evolved out of the same factual situation as the 

crime specified in the amended information (Subsection 3802(d)(1)(iii)). See 

Davolos, supra. In doing so, we disagree with the court’s conclusion that 

Subsection 3802(d)(1)(iii) is not a lesser-included offense of Subsection 

3802(d)(1)(i). It is obvious that one cannot have a metabolite of marijuana 

in one’s system if he has not already ingested the active ingredient, marijuana. 

“A ‘metabolite’ is the substance produced by metabolism or by a metabolic 

process.” Vereen v. Commonwealth of Pennsylvania Bd. of Prob. & 

Parole, 515 A.2d 637, 639 n.4 (Pa. Cmwlth. 1986), citing Dortland’s 

Illustrated Medical Dictionary 803 (26th Ed.1981). Additionally, both 

subsections do not require proof that a specific amount of the drug be in the 

defendant’s system, they only require the presence of the drug or metabolite. 

As such, it is logical to assume that a crime requiring proof of the by-product 

of a controlled substance would fall under a crime requiring evidence of that 
J-A01038-18

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controlled substance. Accordingly, these crimes are not so “separate and 

distinct” as the trial court implies. See Trial Court Opinion, 7/17/2017, at 7.7

Second, we do not find that the defenses for these two subsections were

substantially different because driving under the influence of a controlled 

substance pursuant to Section 3802(d)(1) does not require proof that the 

controlled substance impaired or affected Laureano’s ability to operate the 

vehicle, contrary to the trial court’s conclusion.8 Rather, Section 3802(d)(1) 

only requires presence of the controlled substance in the defendant’s blood. 

See Commonwealth v. Etchison, 916 A.2d 1169, 1174 (Pa. Super. 2007), 

aff’d, 943 A.2d 262 (Pa. 2008) (“[A] conviction under Section 3802(d)(1) does 

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7

 As such, we find the court’s reliance on Plybon, supra, is misplaced. In 

Plybon, a panel of this Court affirmed the trial court’s denial of the 

Commonwealth’s motion to amend an information to remove a charge of 

driving “under the combined influence of alcohol and a controlled substance 

to a degree which renders the person incapable of safe driving” and to add a 

charge of driving “under the influence of alcohol to a degree which renders 

the person incapable of safe driving.” Plybon, 421 A.2d at 225. At the time 

of the case, the pertinent statutory provisions were, respectively, 75 Pa.C.S § 

3731(a)(3) and § 3731(a)(1). These provisions were subsequently repealed 

by P.L. 120, No. 24, § 14, Sept. 30, 2003, effective Feb. 1, 2004, and were 

replaced with similar provisions found at 75 Pa.C.S. § 3802(a)(1) and 

§ 3802(d)(3). Like this case, the Commonwealth sought to amend its 

information after the close of its case and the defendant had demurred to the 

evidence. However, unlike here, the crimes were materially different where 

one crime required the evidence of one being under the influence of alcohol 

and the other demanded proof of one being under the combined influence of 

alcohol and controlled substance. Accordingly, Plybon is distinguishable from 

the present matter because there was a complete change in the evidence 

itself.

8

 See Trial Court Opinion, 7/17/2017, at 6. 
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not require that a driver be impaired; rather, it prohibits the operation of a 

motor vehicle by any driver who has any amount of specifically enumerated 

controlled substances in his blood, regardless of impairment.”) (italics in 

original); see also Commonwealth v. Hutchins, 42 A.3d 302, 311 (Pa. 

Super. 2012) (same), appeal denied, 56 A.3d 396 (Pa. 2012).

9

 Therefore, 

Laureano’s defense for both provisions would be the same – that the controlled 

substance, whether it be the active ingredient of marijuana or the metabolite, 

was not in his system at the time of the incident. 

Lastly, we believe the potential for prejudice was not heightened by the 

Commonwealth’s “11th hour” request to amend. We find: (1) the amendment 

did not change the factual scenario supporting the charges; (2) the 

amendment did not add new facts previously unknown to Laureano; (3) the 

entire factual scenario was developed during the suppression hearing; (4) the 

description of the charges did not substantially change with the amendment; 

(5) a change in defense strategy was not necessitated by the amendment; 

____________________________________________

9

 We note the language in Section 3802(d)(1) is different than in other 

sections of the DUI statute. See 75 Pa.C.S. § 3802(a)(1) (“An individual may 

not drive, operate or be in actual physical control of the movement of a vehicle 

after imbibing a sufficient amount of alcohol such that the individual is 

rendered incapable of safely driving, operating or being in actual physical 

control of the movement of the vehicle.”) (emphasis added); 75 Pa.C.S. § 

3802(d)(2) (“The individual is under the influence of a drug or combination of 

drugs to a degree which impairs the individual’s ability to safely drive, 

operate or be in actual physical control of the movement of the vehicle.”) 

(emphasis added). See also Commonwealth v. Griffith, 32 A.3d 1231 (Pa. 

2011) (comparing the different provisions of Section 3802).
J-A01038-18

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and (6) the timing of the Commonwealth’s request for amendment allowed for 

notice and preparation. Sinclair, 897 A.2d at 1223. With respect to the sixth 

factor, it merits mention that the purpose of Rule 564, “to avoid prejudice by 

prohibiting the last minute addition of alleged criminal acts of which the 

defendant is uninformed,”10 was not defeated where Laureano was put on 

notice regarding the results of that lab report and his blood test came back 

positive for a metabolite of marijuana because defense counsel acknowledged 

that he had obtained the lab report at the time of discovery. See N.T., 

5/12/2012, at 148. As such, this was not surprise information that would 

have required more time to prepare for trial. Additionally, we note this was a 

non-jury trial, therefore, there would have been no confusion on the part of 

the jury regarding the different crimes and a need for an amendment. 

Furthermore, while there are cases, as cited by the trial court,11 that have 

reversed a decision to allow a tardy motion to amend a criminal information, 

there are also cases upholding belated amendments. See i.e., 

Commonwealth v. Mentzer, 18 A.3d 1200, 1201 (Pa. Super. 2011)

(affirming decision to amend information which requested at the time of 

sentencing and concerned the grading of the DUI offense); Commonwealth

v. Roser, 914 A.2d 447, 455 (Pa. Super. 2006) (concluding grant of 

____________________________________________

10

 Sinclair, 897 A.2d at 1221.

11

 Trial Court Opinion, 7/17/2017, at 7-10.
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amendment just before closing arguments was proper, even where the 

elements of the offenses differed, because appellant had prompted the need 

for an amendment by his own inculpatory testimony), appeal denied, 927 A.2d 

624 (Pa. 2007). Therefore, we conclude the trial court erred in granting 

Laureano’s post-sentence motion requesting a judgment of acquittal and 

reversing its prior ruling granting the Commonwealth’s motion to amend the 

criminal information.

Order reversed. Case remanded for further proceedings. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/14/18