J-S06008-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LUIS SERRANO, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 705 EDA 2020

Appeal from the Judgment of Sentence Entered October 3, 2018

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0006365-2014

COMMONWEALTH OF PENNSYLVANIA

v.

LUIS SERRANO, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 706 EDA 2020

Appeal from the Judgment of Sentence Entered October 3, 2018

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0006366-2014

BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.: FILED APRIL 21, 2021

Luis Serrano appeals from his October 3, 2018 judgment of sentence 

for, inter alia, conspiracy to commit murder. Appellant first alleges that the 

trial court improperly permitted the Commonwealth to amend the bills of 

information to include a conspiracy and an attempted murder charge following 

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* Retired Senior Judge assigned to the Superior Court.
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the reconvening of the indicting grand jury. He also claims the evidence was 

insufficient to sustain the conspiracy conviction. Based in large part on the 

opinion of the trial court, we affirm.

Our review of the record supports the trial court’s summary of the 

evidence presented at trial. Nilzon Feliciano Sr. testified that he paid Appellant 

$400 to install a transmission in his car. Feliciano subsequently came to 

believe the transmission was faulty, and sought a refund for his $400 

payment. This dispute festered for several months, culminating in the incident 

that forms the basis of the charges against Appellant.

On February 5, 2014, Nilzon and his son were on the block of Appellant’s 

home when they saw Appellant outside and demanded a refund. Appellant 

responded by retrieving a firearm from his home and telling the Felicianos that 

he was not going to pay them, so they should leave or he would kill them. The 

Felicianos decided to leave, but quickly changed their mind.

As they walked back towards Appellant’s home a few minutes later, they 

saw Appellant’s co-defendant and purported son-in-law, Emmanuel Sanchez, 

standing on Appellant’s front porch brandishing an AK-47 rifle. The Felicianos 

indicated that they simply wanted their money back. Sanchez responded by 

firing the AK-47 at them. The Felicianos ran, and managed to escape without 

being struck by any bullets. See Trial Court Opinion, 3/6/20, at 4-5. 

The Felicianos called the police. They were able to make a positive 

identification of Sanchez at his house later that same day, and Sanchez was 
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arrested. Nilzon subsequently identified Appellant from a photo array. 

Appellant absconded but was eventually arrested on charges of firearm 

violations, possession of an instrument of crime (“PIC”), terroristic threats, 

simple assault and reckless endangerment of a person. 

The Commonwealth sought and obtained indictments against Appellant 

for those charges via an indicting grand jury on May 8, 2014. The 

Commonwealth then filed an information charging Appellant with those 

crimes. A joint trial for Appellant and Sanchez was scheduled for February 17, 

2015. 

On January 10, 2015, Appellant filed a motion to sever his trial from 

Sanchez’s. In response, the Commonwealth filed a motion to consolidate, 

which the trial court ultimately granted. The Commonwealth also filed a 

motion to amend the bills of information against Appellant under Pa.R.Crim.P. 

564, seeking to add the charges of attempted murder and conspiracy to 

commit murder. The trial court denied the motion to amend the bills of 

information,1 but further discussed the amendment at a hearing on February 

9, 2015. At that hearing, the Commonwealth explained:

The charges at the initial [indicting grand jury] were not amended. 

[Appellant] was indicted on the charges as they were. After the 

case came together it was decided by the office that both 

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1 The trial court’s opinion does not state the reasons for the court’s denial of 

the motion. The docket reflects that the motion was denied on January 30, 

2015, but there are no notes of testimony from any hearing held on that date 

in the certified record nor is there an order explaining the reasons for the 

denial in the certified record.
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[Appellant and Sanchez] should have been charged with the 

attempted murder charge.

N.T. Hearing, 2/9/15, at 4. 

The trial court responded that it was not aware of any authority that 

prohibited the Commonwealth from “re-presenting to the grand jury” and 

“having [a] superceding indictment” for the attempted murder and conspiracy 

charges. Id. at 8. Therefore, the trial court continued the matter to give the 

Commonwealth time to reconvene the indicting grand jury in an effort to 

secure indictments against Appellant on charges of conspiracy and attempted 

murder. It also rescheduled the trial date for May 4, 2015. 

The grand jury reconvened on February 17, 2015 and indicted Appellant 

on the charges of conspiracy and attempted murder. The Commonwealth filed 

an information which added those indictments to the charges filed against 

Appellant.

Appellant challenged the new indictments through both a Pa.R.Crim.P. 

600 motion as well as a motion to quash. Following a hearing, the trial court 

denied both of the motions.

The matter proceeded to a joint trial before a jury on May 4, 2015. The 

jury found Appellant guilty of possession of a firearm as a prohibited person, 

carrying a firearm without a license, carrying a firearm in public in 

Philadelphia, PIC and conspiracy to commit murder. It found Appellant not 
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guilty of attempted murder.2 The trial court sentenced Appellant to an 

aggregate term of four and one-half to nine years’ imprisonment. After having 

his direct appeal rights reinstated nunc pro tunc, Appellant filed a timely notice 

of appeal. He presents two issues for our review:

I. Did the lower court err in permitting the Commonwealth to 

add bills of information charging attempted murder and 

conspiracy over one year after the initial grand jury 

proceeding, when the Commonwealth made a conscious 

decision at the initial grand jury proceeding not to proceed 

on a charge of conspiracy and the Commonwealth’s motion 

to amend the original bills of information had been denied?

II. Was the evidence adduced at trial insufficient to establish 

the charge of conspiracy when the evidence showed no 

communication or other indicia of concerted action between 

[Appellant] and [Sanchez]?

Appellant’s Brief at 3. 

In his first issue, Appellant essentially asserts that the trial court erred 

in permitting the Commonwealth to amend the bills of information to add 

charges of attempted murder and conspiracy by reconvening and then 

securing indictments on those charges from the grand jury. Appellant 

acknowledges in his argument section that the determination of whether to 

allow the addition of new charges to a bill of information is guided by the 

standard under Pa.R.Crim.P. 564. See Appellant’s Brief at 11. He appears to 

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2 The charges of simple assault, terroristic threats and reckless endangerment 

of a person were nolle prossed.
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allege, however, that the trial court misapplied that standard to the 

circumstances of his case. This claim merits no relief.

Appellant does not cite to the text of Rule 564. At the time the 

Commonwealth sought to add the charges of attempted murder and 

conspiracy to the bills of information in 2015, Rule 564 provided:

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 necessary in the interests 

of justice.

Commonwealth v. Bricker, 882 A.2d 1008, 1019 (Pa. Super. 2005) 

(quoting the version of Pa.R.Crim.P. 564 then in effect).

In applying this Rule, however, our Court noted that case law had set 

“forth a broader test for [the] propriety of amendments than the plain 

language of the rule suggests.” Commonwealth v. Grekis, 601 A.2d 1284, 

1289 (Pa. Super. 1992) (citation omitted) (discussing Pa.R.Crim.P. 229, which 

was renumbered as Pa.R.Crim.P. 564 in 2000). That broad test, we found, 

was informed by the purpose of Rule 564 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.” 

Bricker, 882 A.2d at 1019 (citation omitted). As such, the test to be used for 

determining the propriety of the amendments to an information was 

articulated as:
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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.

Id. 

Rule 564 was amended in 2016 to reflect this test. The current language 

of Rule 564 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, as amended December 21, 2016 (effective December 21, 

2017). See also Pa.R.Crim.P. 564, Comment (explaining that Rule 564 was 

amended to more accurately reflect the interpretation of this Rule that had 

developed in case law).

Here, the trial court stated that it had found Rule 564 to be instructive 

in permitting the Commonwealth to reconvene the indicting grand jury and 

seek indictments for the additional charges of attempted murder and 

conspiracy. See Trial Court Opinion, 3/6/20, at 14. It explained that:

[B]oth [Rule 564] and case law provide for the liberal amending 

of bills of information when the new charges are not ‘materially 

different’ from the original charge(s); do not stem from a ‘different 
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series of events;’ and where no prejudice would result. This Court 

therefore determined that when presented with a request to 

amend charges brought about by indictments, our Pennsylvania 

appellate courts would similarly permit the liberal amending of 

indictments. Therefore, although denying the Commonwealth’s 

Motion to Amend the Bills of Information, this Court did permit the 

Commonwealth to reconvene the [indicting grand jury] and represent their evidence and seek indictments for those additional 

charges. In doing so, this Court determined that the new 

indictments sought[:] (1) would not be ‘materially different’ from 

the original indictments[;] (2) stemmed entirely from the identical 

series of events as had been initially presented to the [indicting 

grand jury]; and that (3) no unfair prejudice to [Appellant] would 

result.

Although the Commonwealth did not initially seek indictments for 

[A]ppellant’s involvement with [ ] Sanchez, both of the 

supplemental indictments for conspiracy and attempted murder 

stemmed from the same series of events, namely [A]ppellant’s 

threat to kill the complainants if they did not leave his front porch

area of his residence and [Sanchez’s] eventual carrying out of that 

threat by firing his AK-47 at the complainants when they did in 

fact return. Further, these indictments were not materially 

different from those initially presented to the [indicting grand 

jury] in that all charges involved the threat to kill the complainants 

while either brandishing a firearm (by [A]ppellant) or by 

subsequent firing of a firearm upon the complainants (by 

[Sanchez]).

Finally, this Court, by continuing [A]ppellant’s trial for several 

months, made certain that [A]ppellant would not be unfairly 

prejudiced since he would have sufficient time to prepare for trial 

once the new indictments were presented and possibly obtained 

from the [indicting grand jury on February 17, 2015]. Trial was 

then rescheduled to begin on May 4, 2015. 

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[T]his Court properly ruled that this Court was without legal 

justification to preclude the Commonwealth from reconvening the 

Indicting Grand Jury and seeking indictments. The 

Commonwealth’s decision, properly permitted by this Court, to 

consolidate [A]ppellant’s case with that of [Sanchez], resulted in 

the need to seek further indictments against [A]ppellant prior to 
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the commencement of trial. Further, this Court took appropriate 

measures to safeguard against any resulting prejudice by 

rescheduling the trial date so as to provide [A]ppellant with ample 

time to prepare given these new charges. Therefore, Appellant’s 

claim of error in this regard is without merit.

Id. at 15 (citation to notes of testimony omitted).

We see no error in the trial court’s analysis or in its conclusion. 

Appellant, however, attacks the trial court’s findings with several boilerplate 

allegations. First, he maintains in his “question presented” that the trial court 

improperly permitted the Commonwealth to amend the information to include 

a charge of conspiracy when the “Commonwealth made a conscious decision 

in the original grand jury proceeding not to proceed on a charge of 

conspiracy.” Appellant’s Brief at 3. However, Appellant does not even mention, 

much less discuss, this contention in the argument section of his brief and it 

is waived for that reason alone. See Commonwealth v. Johnson, 985 A.2d 

915, 924 (Pa. 2009) (stating that “where an appellate brief fails to provide 

any discussion of a claim with citation to relevant authority or fails to develop 

the issue in any other meaningful fashion capable of review, that claim is 

waived); Pa.R.A.P. 2119(a) (stating that the argument section of the brief 

“shall have at the head of each part” of the argument “the particular point 

treated therein, followed by such discussion and citation of authorities as are 

deemed pertinent”). 

Appellant also baldly alleges that it was improper for the trial court to 

permit the Commonwealth to circumvent the court’s ruling denying the 
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Commonwealth’s motion to amend the bills of information by reconvening the 

indicting grand jury. However, Appellant does not in any way explain how this 

was improper, cite to any authority to support his contention, or develop the 

assertion in any meaningful way. Therefore, it is also waived. See Johnson, 

985 A.2d at 924. 

Lastly, Appellant essentially claims that the trial court should not have 

allowed the Commonwealth to add the conspiracy and attempted murder 

charges to the bills of information because doing so prejudiced him. To that 

end, he asserts the added charges “arose from a different set of events, i.e. 

the second incident involving Sanchez, and contained elements materially 

different from those charged in the original information.” Appellant’s Brief at 

12. He does not, however, in any way flesh out this assertion.3Instead, he 

alleges this case is “controlled by” this Court’s decisions in Bricker and 

Commonwealth v. Williams, 166 A.3d 460 (Pa. Super. 2017). Appellant’s 

Brief at 12. He then offers a very brief summary of those cases, without 

applying either of them to his situation. 

In any event, as the Commonwealth points out, both Bricker and 

Williams are readily distinguishable from this case. Bricker involved a mid-

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It is arguable this claim is waived not only for a failure to properly develop 

it, but also because it is not fairly encompassed by Appellant’s statement of 

the question involved. See Johnson, 985 A.2d at 924; Pa. R.A.P. 2116(a) 

(stating that “no question will be considered unless it is stated in the 

statement of questions involved or is fairly suggested thereby”). Nonetheless, 

as discussed below, the clam lacks merit. 
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trial amendment to the bills of information which resulted in the appellant not 

“hav[ing] knowledge of the alleged criminal conduct prior to trial.” Bricker, 

882 A.2d at 1020-1021. Similarly, in Williams, the Commonwealth did not 

move to amend the information until the beginning of trial and the court did

not rule on the motion until the end of the trial, at which point the court 

granted the motion to amend. See Williams, 166 A.3d at 464.

Unlike both Bricker and Williams, the addition of the attempted 

murder and conspiracy charges here took place months prior to trial. As the 

Commonwealth observes, the indictments were added by the reconvening 

grand jury which necessarily occurred prior to trial. See Commonwealth’s Brief 

at 9, 11. Accordingly, as the trial court explained, Appellant had “sufficient 

time to prepare for trial once the new indictments,” which “were not materially 

different from those initially presented to the [indicting grand jury],” were 

added. Trial Court Opinion, 3/6/20, at 15. The trial court therefore concluded 

that Appellant had not suffered unfair prejudice by the addition of the new 

charges. Appellant has simply not shown how Bricker or Williams compels 

a contrary conclusion or that he is entitled to any relief on the basis of this 

claim.

In his second claim, Appellant argues that the evidence was insufficient 

to support the conspiracy charge. This claim also fails.

Evidence presented at trial is sufficient when, viewed in the light most 

favorable to the Commonwealth as the verdict winner, the evidence and all 
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reasonable inferences derived from the evidence are sufficient to establish all 

elements of the offense beyond a reasonable doubt. See Commonwealth v. 

Blakeney, 946 A.2d 645, 651 (Pa. 2008). The Commonwealth may sustain 

its burden entirely by circumstantial evidence and the fact-finder, which 

passes upon the weight and credibility of each witness’s testimony, is free to 

believe all, part, or none of the evidence. See Commonwealth v. Ramtahal, 

33 A.3d 602, 607 (Pa. 2011).

To sustain a conviction for criminal conspiracy, the Commonwealth must 

prove that the defendant: (1) entered into an agreement to commit or aid in 

an unlawful act with another person; (2) with a shared criminal intent; and 

(3) an overt act was done in furtherance of the conspiracy. See 

Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super. 2000). The 

overt act need not be committed by the defendant but rather, only needs to 

be committed by one of the co-conspirators. See id. “Given the surreptitious 

nature of conspiracy, the existence of a formal agreement is often proven 

circumstantially, such as by the relations, conduct or circumstances of the 

parties.” Commonwealth v. Jacobs, 39 A.3d 977, 985 (Pa. 2012) (citation 

omitted).

Here, we agree with the trial court that the evidence, when viewed in 

the light most favorable to the Commonwealth, was sufficient for the jury to 

find that the Commonwealth had met its burden of proving that Appellant was 

guilty of criminal conspiracy. As explained by the trial court:
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Based on [the Felicianos’] testimony, [A]ppellant and [ ] Sanchez 

were seen standing together on the very porch where [A]ppellant 

had only moments earlier threatened to kill them with a gun that 

he brandished if they did not ‘get out.’ When [the Felicianos] 

returned moments later, again asking for the return of Nilzon’s 

money, [ ] Sanchez opened fire on them with an AK-47. Certainly, 

this evidence supported the Commonwealth’s contention that 

[A]ppellant and [ ] Sanchez conspired to attack [the Felicianos] if 

and/or when they returned.

Trial Court Opinion, 3/6/20, at 19.

Appellant takes issue with the court’s conclusion on the basis that 

neither Feliciano described any verbal or non-verbal interaction between him 

and Sanchez or any other evidence indicating that he and Sanchez agreed to 

act in concert. He contends that the evidence “merely established 

[Appellant’s] presence at the scene and his mere association with Sanchez.” 

Appellant’s Brief at 14. These assertions have no merit.

As noted above, the Commonwealth may prove conspiracy by 

circumstantial evidence alone and need not produce direct evidence of an 

agreement between conspirators in order to establish criminal conspiracy. See 

Jacobs, 39 A.3d at 985. The record here supports the trial court’s conclusion 

that the Commonwealth produced sufficient circumstantial evidence for the 

jury to infer that Appellant and Sanchez conspired to attack the Felicianos. 

That evidence showed that Nilzon confronted Appellant while he was standing 

on his porch, and that Appellant retrieved a gun and threatened to kill Nilzon 

and his son if they did not leave. Minutes later, the Felicianos returned to the 

area. Sanchez, who had a relationship with Appellant that was akin to a son-
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in-law, was standing on Appellant’s porch with Appellant while holding an AK47 rifle, which he then fired at the Felicianos. Contrary to Appellant’s claim, 

we agree with the trial court that this evidence was sufficient for the jury to 

conclude that Appellant and Sanchez had conspired to shoot the Felicianos. 

See Commonwealth v. Poland, 26 A.3d 518, 523 (Pa. Super. 2011) (finding 

evidence was sufficient to support conspiracy conviction where “actors’ 

relationships and their conduct before, during and after the criminal episode 

established a unity of criminal purpose”) (citation omitted).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/21/2021