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 fo llowing 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 sec urity alarm had gone off at his property located at 928 East Avenue in Erie. A l-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.

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1 18 Pa.C.S. § 903(a).

2 18 Pa.C.S. § 3503(a)(1)(ii).J-A07017-15

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After receiving the call from ADT, Al-Dafaai drove directly to the property, located two blocks from his home. When h e arrived, he saw two juveniles standing outside the property, whom he id entified as D.G. and S.J. Upon arrival, he also observed that the building wa s shaking, consistent with an attempt to kick in the secure door to gain acces s 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 flagge d 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 buil ding’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 Er ie Police Department, having been waived down by Al-Dafaai an d informed of the suspected robbery, approached the scene. Lieutenan t 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 w ay to run. Lieutenant Goozdich, with gun drawn, commanded the juveniles t o stop, but was only able to apprehend Q.M.

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3 While S.J., Q.M., and D.G. were subjects of the s ame adjudication proceeding, S.J. and Q.M. are not parties to this appeal.J-A07017-15

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Al-Dafaai later testified that he was preparing th e apartment to be rented; the barbed wire on the window to the apartm ent had been pulled back; and the ADT security sensors on the window ha d been tripped. Additionally, the door that leads into the upstairs apartment from the first floor had been kicked in. The downstairs landing h ad 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’ de scriptions in a parking lot approximately one block north of the Stop N Go. Se rgeant 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 juv enile matching the description of one of the perpetrators approximatel y one block south of the Stop N Go. Patrolman Russell apprehended the juven ile, later determined to be D.G., observing that he was breathing heavily an d sweating profusely. Al-Dafaai later positively identified D.G. as one o f the individuals he had seen at the Stop N Go.J-A07017-15

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On August 28, 2013, D.G., S.J., and Q.M., were cha rged with criminal conspiracy to commit burglary, 4 and burglary. 5 An arraignment was held on August 30, 2013, at which time each of the juvenile s denied the allegations. On September 19, 2013, Al-Dafaai completed a resti tution claim form for $1,466.00. Attached to that form were copies f rom 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 do or 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 hearing 6 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 conclu ded that the juveniles engaged in a conspiracy. However, the court conclu ded 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.

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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.J-A07017-15

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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 cou rt 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 f rom 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 restitutio n 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 withou t 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 e rrors 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 t he allegations of delinquency to include different all egations, 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 resti tution to be paid without credible evidence substantiating the a mountJ-A07017-15

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ordered, and without taking into account the juveni le’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 cl aim 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 statu te 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 state s in relevant part:

Rule 334. Amendment of Petition

***** (2) The court shall not allow a petition to be amen ded if the petition alleges a different set of events or offen ses, 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 co urt violated his due process rights by amending the charges brought agai nst him and failing to provide adequate notice, thus depriving him of an o pportunity to present aJ-A07017-15

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defense for the separate charge of trespass. In ev aluating 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 determini ng whether the trial court erred in permitting the amendment o f the information. [W]hen presented with a question concerning the pro priety of an amendment, we consider: [w]hether the crimes specified in the original indi ctment or information involve the same basic elements and evo lved 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 provisio n alleges a different set of events, or the elements or defense s to the amended crime are materially different from the ele ments or defenses to the crime originally charged, such that the defendant would be prejudiced by the change, then the amendme nt is not permitted. Additionally, [i]n reviewing a grant to amend an information, the Court will look to whether the app ellant was fully apprised of the factual scenario which suppor ts the charges against him. Where the crimes specified in the ori ginal information involved the same basic elements and ar ose out of the same factual situation as the crime added by th e amendment, the appellant is deemed to have been pla ced on notice regarding his alleged criminal conduct and n o prejudice to defendant results. Further, the factors which the trial court must con sider in determining whether an amendment is prejudicial are : (1) whether the amendment changes the factual scena rio supporting the charges; (2) whether the amendment a dds new facts previously unknown to the defendant; (3) whet her the entire factual scenario was developed during a prel iminary 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 timingJ-A07017-15

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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 agai nst him. Initially, we agree that criminal trespass is not a lesser includ ed 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 wh ich constitute such material differences that the defendant is prejudic ed thereby.” Commonwealth v. Grekis, 601 A.2d 1284, 1288, n.6 (Pa. Super. 1992). Our decision must turn, therefore, on whether, in t his matter, criminal trespass and burglary are materially different. Se ction 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 ther ein, 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 a ny of the following exists at the time of the offense:J-A07017-15

- 9 - (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 t respass, 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 surreptiti ously remains in any building or occupied structure or se parately 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 o f the public and the actor complied with all lawful condi tions 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 acce ss 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 burgl ary and criminal trespass are not materially different, no new facts wereJ-A07017-15

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added by the Court, no change in defense strategy w as precipitated by the amendment, and no prejudice was advanced at any time by the Juveniles other than the Court m ade the amendment sua sponte and ‘too late’. Trial Court Opinion, 4/11/14, at 20. Our Supreme Court considered this question specific ally in Carter , supra , where defendants were charged with burglary but a fter 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 defe nding against a burglary charge would have no reason to e stablish that (albeit falsely) he believed his presence in a building or occupied structure was privileged or licensed. Yet evidence of such a bel ief 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, additio nal due process safeguards were provided in the instant matter. Specifically, the Commonwealth argues that the extensive oral argument at the hearing, an d subsequent motion to reconsider, granted D.G. the opportunity to demonst rate prejudice. We recognize that the Supreme Court’s decision in Carter resulted from a concern for the due process rights of a defe ndant. In fact, Carter held that although there may have been evidence pre sented 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 cha rge.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 p resented. 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 construe d D.G.’s oral objection as a motion to reconsider, and permitted him to brief th e issue. Despite that opportunity, D.G. could not demonstrate any signifi cant prejudice or precluded defense or evidence, other than the fact that he “could not have introduced any additional evidence, or cross-examin ed any of the Commonwealth’s witness on the issue, nor could he h ave asked for a continuance at that time.” Appellant’s Brief, at 1 7. Further, per the factors

laid out in Mentzer , supra , the charge of trespass did not entail the introduction of new facts or any further developmen t of the facts presented. The facts relied upon by the lower court were the s ame 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 crimin al trespass and burglary are materially different. De spite this difference, D.G. was not prejudiced by the lower court’s amendment b ecause he was fully apprised of the facts supporting that charge, see Mentzer , supra , and heJ-A07017-15

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was given the added due process safeguard of the mo tion to reconsider. D.G. simply failed to demonstrate that the amendmen t prejudiced his defense. Furthermore, the statutorily-defined defe nses for burglary and trespass are virtually the same. If D.G. had a goo d 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 st atutory 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; how ever, a mere procedural mistake on the part of the trial court i s not, on its face, enough to support the overturning of the adjudication, especi ally where that court granted the defendant a chance to demonstrate preju dice 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 a mount 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 h as articulated the following

standard of review: [O]ne of the purposes of the Juvenile Act is to hol d children accountable for their behavior. Accordingly, the Ju venile Act authorizes the court to “order[ ] payment by the ch ild of reasonable amounts of money as fines, costs or rest itution asJ-A07017-15

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deemed appropriate as part of the plan of rehabilit ation concerning the nature of the acts committed and the earning capacity of the child.” 42 Pa.C.S.A. § 6352, Dispos ition 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 attai ned through accountability and the development of personal qual ities that will enable the juvenile offender to become a responsibl e and productive member of the community. Thus, the polic ies underlying the Juvenile Act and its restitution pro vision, as well as the plain language of Section 6352, serve to inv est the juvenile court with a broad measure of discretion t o apportion responsibility for damages based upon the nature of the delinquent act and the earning capacity of the juve nile. In re M.W. , 725 A.2d 729, 732-33 (Pa. 1999). Further, “[i]n reviewing an order of restitution, discretion is abused where th e 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 const itutes an abuse of discretion. Al-Dafaai filled out a restitution cla im form, provided his accounting, and testified at length as to the vario us 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 speculat ive information. Additionally, the lower court specified that its or der 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. O ur precedent is clear that the lower court has broad discretion in awarding re stitution. Presently, the amount of restitution ordered is supported by evide nce and consistent withJ-A07017-15

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the testimony of the victim as well as the purposes of th e 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