J-S57040-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. PERRY BRISBON Appellant No. 642 EDA 2014

Appeal from the Judgment of Sentence entered February 4, 2014 In the Court of Common Pleas of Delaware County Criminal Division at No: CP-23-CR-0005269-2013

BEFORE: DONOHUE, MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED OCTOBER 29, 2014 Perry Brisbon was convicted of theft by unlawful taking. He appeals from the judgment of sentence, contending the trial court erred in permitting amendment of the criminal information on the day of trial, changing the charge against him from a first-degree misdemeanor to a third-degree felony. Finding no abuse of discretion, we affirm.

The Commonwealth charged Brisbon and his wife, Marquita Wiley with theft by unlawful taking of movable property1 and related crimes for stealing ____________________________________________

“A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.” 18 Pa.C.S.A. § 3921(a). Theft by unlawful taking is a third-degree felony if the amount involved is over $2,000.00. Id. § 3903(a.1).

Otherwise, and absent exceptions not relevant here, theft by unlawful taking is a first-degree misdemeanor. Id. § 3903(b).

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appliances and fixtures from their former landlord following their eviction.

At the preliminary hearing, the magisterial district judge refused to grade the theft charges as felonies of the third degree, even though the victim testified that the value of the stolen objects was between $3,000.00 and $5,000.00.2 The day before trial, the Commonwealth provided Brisbon and Wiley with a list prepared by the victim stating the value of the objects stolen was $4,505.50. On the morning of trial, the Commonwealth moved to amend the information to change the grading of the theft charges from first-degree misdemeanors to third-degree felonies. Over Brisbon’s and Wiley’s objections, the trial court granted the motion. Following a joint nonjury trial, the court convicted Brisbon of theft, and acquitted Wiley of all charges. On February 4, 2014, the trial court sentenced Brisbon to three to twelve months in jail, followed by two years of probation. This appeal followed.

On appeal, Brisbon raises the following issue: Whether the trial court erred in permitting the Commonwealth to amend the theft by unlawful taking – movable property charge from a misdemeanor (M1) to a felony [of] the third degree (F3) on the day of trial?

Appellant’s Brief at 5 (all-capitalization font removed).

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In their briefs, both parties reference the transcript of the preliminary hearing, but it is not a part of the certified record.

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We review a decision regarding the amendment of an information for an abuse of discretion. See Commonwealth v. Bricker, 882 A.2d 1008, 1021 (Pa. Super. 2005). “An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record.”

Commonwealth v. Williams, 91 A.3d 240, 242 (Pa. Super. 2014) (en banc) (quotation omitted).

Having reviewed the record and relevant legal authority, we hold that the trial court did not abuse its discretion in permitting the Commonwealth to amend the criminal information. Furthermore, we find that the opinion of the Honorable James P. Bradley adequately disposes of this appeal. Briefly, Judge Bradley found that Brisbon was on adequate notice that the value of property taken exceeded $2,000.00, and the amendment did not change the underlying factual scenario. Trial Court Opinion, 4/15/14, at 3-6. Judge Bradley additionally found that Brisbon failed to show that he was prejudiced by the amendment.3 Therefore, we adopt Judge Bradley’s opinion as our own, attach it to our decision, and direct that it be attached to any further filings in this case. The judgment of sentence is affirmed.

Judgment of sentence affirmed. ____________________________________________

We also note that Brisbon did not request a continuance after the trial court granted the motion to amend.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/29/2014

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