Commonwealth v. Bruce

Opinion Per Curiam,

Appellant was indicted by a Philadelphia County Grand Jury for Forcible Entry and Burglary with the Intent to Commit Larceny. The charges arose from an incident involving appellant and his girlfriend, Juanita Green. They quarrelled over the telephone, and appellant later went to Miss Green’s residence, entering by breaking the glass in the rear door. He was subsequently arrested by the police.

On August 2, 1962, appellant pled guilty to Forcible Entry, and was tried on the charge of Burglary with the Intent to Commit Larceny before a judge, sitting without a jury. The testimony of the parties indicates that appellant entered Miss Green’s residence in the course of a domestic quarrel and that larceny was not involved. *509 However, the trial judge found appellant guilty of burglary, and, following the verdict and over appellant’s objection, permitted the Commonwealth to amend the indictment to allege Burglary with the Intent to Commit Murder.

Appellant received a suspended sentence on the charge of Forcible Entry and was sentenced to a term of sixty-eight days to twenty-three months imprisonment for the charge of burglary with the Intent to Commit Murder. He has served the entire twenty-three months of the sentence. 1

Appellant did not file post-trial motions following his conviction. On May 7, 1970, he filed a Post Conviction Hearing Petition, pursuant to Act of January 25, 1966, P. L. (1965) 1580, §1 et seq. (19 P.S. §1180-1 et seq.) requesting leave to file post-trial motions nunc pro tunc. Following a number of procedural steps, appellant was granted the right to file post-trial motions by the Pennsylvania Supreme Court. This appeal is from the dismissal by the lower court of appellant’s post-trial motions on March 26, 1973.

We find that the lower court erred in allowing the amendment of the indictment. Substantive aspects of an indictment may not be amended once they have been found and presented by a Grand Jury. Commonwealth v. Lawton, 170 Pa. Superior Ct. 9 , 84 A.2d 384 (1951); Commonwealth v. Liebowitz, 143 Pa. Superior Ct. 75 , 17 A.2d 719 (1941). However, if the defect is one of form it can be amended. Act of March 31, 1860, P. L. 427, §13 (19 P.S. §433) (formal statements in the indictment as to time, place, value, and name of the ac *510 cused are open to amendment). In any event, a variance between tbe indictment and tbe proof adduced at tbe trial may be amended even after a verdict only if tbe variance “is not material or substantive and tbe [appellant] is not prejudiced thereby.” Commonwealth v. Syren, 150 Pa. Superior Ct. 32, 41 , 27 A.2d 504, 508 (1942).

In tbe instant appeal tbe variance between tbe original and tbe amended indictments was botb substantive and prejudicial. Here, tbe original indictment charged burglary. 2 Tbe indictment found by tbe Grand Jury, informed appellant that be entered tbe premises of Miss Green with tbe intent to commit a felony, and that tbe Commonwealth was prepared to prove that bis intention at tbe time of tbe entry was to commit larceny therein. Tbe indictment as amended informed appellant that bis intention at tbe time be entered tbe premises was tbe intent to commit tbe murder of Miss Green. While botb offenses are felonies and each satisfies one element of tbe crime of burglary, each felony has a different element and requires tbe proof of different facts. See Pennsylvania Rules of Criminal Procedure, Rule 220 (“. . . court may allow an indictment to be amended . .. provided tbe indictment as amended does not charge an additional or different offense ....”). It must also be noted that defenses to tbe crime of larceny are different from tbe defenses available to tbe crime of intent to commit murder. In essence, appellant was sentenced on an offense construed in tbe courtroom and not upon a bill returned by tbe Grand Jury.

Tbe judgment of sentence is reversed, tbe verdict of guilty of burglary vacated, and tbe appellant discharged.

The completion of a sentence does not render a case moot against miscellaneous grounds of attack where it appears that as a result of the conviction or sentence the accused continues to suffer legal disadvantages, e.g., application of harsher penalty as a result of prior felony conviction. Commonwealth v. Sheehan, 446 Pa. 35 , 285 A.2d 465 (1971). See Annot., 9 A.L.R. 3d 462 (1966).

The original indictment provided: “That, on or about May 25, 1962, in Philadelphia County, Harry L. Bruce wilfully, maliciously, feloniously and burglariously entered the building at 222 North 59th Street of one Juanita Green with intent to commit a felony therein, to wit: larceny.”