J-S28045-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LLOYD RICHARD THOMAS
Appellant No. 1751 MDA 2014
Appeal from the Judgment of Sentence March 3, 2014
In the Court of Common Pleas of Susquehanna County
Criminal Division at No(s): CP-58-CR-0000092-2012
BEFORE: BOWES, J., ALLEN, J., and LAZARUS, J.
MEMORANDUM BY LAZARUS, J.: FILED JULY 06, 2015
Lloyd Richard Thomas appeals from the judgment of sentence imposed
by the Court of Common Pleas of Susquehanna County, following his
convictions for two counts of voluntary manslaughter,1 possession of drug
paraphernalia,2 and possession of a small amount of marijuana.3 Upon
review, we affirm.
On February 11, 2012, Thomas shot and killed Gilberto Alvarez and
Joshua Rogers after they came onto Thomas’ father’s property in
Susquehanna County. Alvarez and Rogers had driven by the property earlier
____________________________________________
1
18 Pa.C.S. § 2503(b).
2
35 P.S. § 780-113(a)(32).
3
35 P.S. § 780-113(a)(31).
J-S28045-15
in the day and believed that the Ford Mustang in which they were driving
had been shot. Rogers and Alvarez returned to the area to investigate.
They spoke with a neighbor who told them shots were fired earlier in the day
from the direction of Thomas’ father’s property.
Alvarez and Rogers approached the property through a wooded area.
The two men decided to split up and Alvarez approached the front of the
house while Rogers went around the back. Rogers carried a shotgun, which
he did not fire.
Thomas spotted Alvarez first and shot him while Alavarez was
approximately 61 feet from the house. Thomas then made his way through
the house to the rear deck where he shot several times at Rogers, once
striking Rogers’ gun and subsequently fatally shooting Rogers as he
retreated from the property.
Upon questioning by law enforcement officials, Thomas did not claim
that either victim threatened him in any manner. He simply stated that he
saw Alvarez emerge from the woods and reacted to the situation.
A preliminary hearing was held on February 22, 2012. Two open
counts of criminal homicide were transferred to criminal court. A jury trial
commenced on January 13, 2014. Following jury selection, the court
allowed the amendment of the pending charges to include one count of
possession of drug paraphernalia and one count of possession of a small
amount of marijuana.
-2-
J-S28045-15
On January 16, 2014, the jury found Thomas guilty of the
aforementioned offenses. On March 3, 2014, the court sentenced Thomas to
an aggregate term of 6 to 12 years’ incarceration, followed by 8 years of
probation. Thomas filed a post-sentence motion seeking a new trial, which
the court denied on June 9, 2014. This timely appeal followed.
On appeal, Thomas presents the following issues for our review:
1. Did the trial court err in failing to award [Thomas] a new trial
on the charges of voluntary manslaughter when said verdicts
were against the weight of the evidence?
2. Did the trial court err by allowing the amendment of the
informations after the jury was selected and seated to include
charges of possession of drug paraphernalia and possession
of a small amount of marijuana thereby resulting in prejudice
to [Thomas]?
3. Did the trial court erred [sic] by denying [Thomas] a new trial
where [the] Commonwealth provided information to the
defense after the verdict was rendered when said information
was material to the question of whether the victims were the
aggressors in this instance?
Brief of Appellant, at 7.
In his first issue, Thomas argues that the voluntary manslaughter
verdicts were against the weight of the evidence. Our standard of review of
a weight of the evidence claim is as follows:
The finder of fact is the exclusive judge of the weight of the
evidence, as the fact finder is free to believe all, part, or none of
the evidence presented and determines the credibility of the
witnesses. As an appellate court, we cannot substitute our
judgment for that of the finder of fact. Therefore, we will
reverse a jury’s verdict and grant a new trial only where the
verdict is so contrary to the evidence as to shock one’s sense of
justice. Our appellate courts have repeatedly emphasized that
one of the least assailable reasons for granting or denying a new
-3-
J-S28045-15
trial is the lower court’s conviction that the verdict was or was
not against the weight of the evidence.
Furthermore,
[W]here the trial court has ruled on the weight claim
below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the
weight of the evidence. Rather, appellate review is limited
to whether the trial court palpably abused its discretion in
ruling on the weight claim.
Commonwealth v. Rabold, 920 A.2d 857, 860-61 (Pa. Super. 2007)
(citations and quotations omitted).
Additionally, pursuant to the Pennsylvania Crimes Code, “[a] person
who intentionally or knowingly kills an individual commits voluntary
manslaughter if at the time of the killing he believes the circumstances to be
such that, if they existed, would justify killing . . . but his belief is
unreasonable.” 18 Pa.C.S. § 2503(b).
Thomas claims he shot Alvarez and Rogers in self-defense. At trial, it
was determined that Alvarez and Rogers approached Thomas’ residence in a
non-confrontational manner. While Alvarez was still 61 feet away, Thomas
shot him through the side of the head at a time when the victim was not
even looking at him. Thomas then fired a number of shots at Rogers. One
bullet struck the gun Rogers was holding, which was turned away from
Thomas and pointed at a downward angle. Based upon forensic evidence,
Thomas shot Rogers as he was attempting to retreat from the residence.
The jury concluded that Thomas was in fear for his life, but that his
fear was not reasonable. Based upon the uncontested evidence, we discern
-4-
J-S28045-15
no abuse of discretion by the trial court and do not find the verdict to be so
contrary to the evidence as to shock one’s sense of justice.
In his second issue, Thomas argues that trial court erred when it
added the charges of possession of drug paraphernalia and possession of a
small amount of marijuana to the criminal information after jury selection.
Pennsylvania Rule of Criminal Procedure 564 states:
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.
Pa.R.Crim.P. 564.
We have previously stated that the purpose of Rule 564 is to ensure
that a defendant is fully aware of the charges against him and to avoid
prejudice by prohibiting the last minute addition of alleged criminal acts of
which the defendant is uninformed. We apply the following test:
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.
-5-
J-S28045-15
Commonwealth v. Sinclair, 897 A.2d 1218, 1221 (Pa. Super. 2006), citing
Commonwealth v. Davalos, 779 A.2d 1190, 1194 (Pa. Super. 2001)
(citation omitted).
Here, the trial court permitted different offenses to be charged through
the amendment of the information. The additional charges of possession of
drug paraphernalia and possession of a small of marijuana rely on different
elements than criminal homicide. Based on this, it would appear that the
amendment of the information was improper However, relief may not be
available unless the amendment causes prejudice to the defendant. See
Commonwealth v. Page, 965 A.2d 1212, 1224 (Pa. Super. 2009).
Since the purpose of the information is to apprise the defendant
of the charges against him so that he may have a fair
opportunity to prepare a defense, our Supreme Court has stated
that following an amendment, relief is warranted only when the
variance between the original and the new charges prejudices an
appellant by, for example, rendering defenses which might have
been raised against the original charges ineffective with respect
to the substituted charges. Factors that we must consider in
determining whether a defendant was prejudiced by an
amendment include: (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 (citations omitted).
-6-
J-S28045-15
In this case, Thomas cannot demonstrate prejudice. On March 23,
2013, the Commonwealth filed a pre-trial motion seeking clarification on a
variety of evidentiary issues, in particular, the admissibility of the marijuana
and related paraphernalia in Thomas’ possession at the time of the shooting.
A pre-trial conference took place on July 31, 2013. At the conference, there
was a discussion regarding the admissibility of the marijuana and related
paraphernalia, and the Commonwealth made an oral motion to amend the
information to include those charges. The trial court did not make a ruling
on the Commonwealth’s oral motion at that time.
Thereafter, in preparation for trial, the parties entered into discussions
regarding trial stipulations, which included a stipulation concerning the lab
reports relating to the marijuana. The lab reports were provided to the
defense during discovery. On September 13, 2013, the Commonwealth and
Thomas’s counsel reached an agreement to stipulate to the findings of the
lab reports rather than bring in expert witnesses.
The trial court finally ruled on the Commonwealth’s motion to amend
the information on January 13, 2015, the day trial began. The court
permitted the amendment and allowed the evidence of marijuana and
related paraphernalia to be admitted.
Based on the foregoing, we cannot say that Thomas was prejudiced by
the amendment to the information. Thomas was aware of the existence of
the marijuana and paraphernalia evidence, as well as the Commonwealth’s
intention to amend the information, nine months before trial was scheduled
-7-
J-S28045-15
to commence. There was no surprise for the defense as the Commonwealth
had made it abundantly clear of its intent to introduce the evidence in
question. Both parties proceeded through jury selection and the
commencement of trial without knowing for certain whether the lower court
would allow the drug evidence to be admitted. Accordingly, both sides were
in the same position regarding trial preparation and strategy.
Thomas argues that by the time the court ruled on the amendment,
there was no time to prepare a new defense or hire an expert to testify
regarding the effects of marijuana on decision-making.4 As we previously
explained, both parties were aware of the possibility of the addition of drug
charges and should have prepared accordingly.
Therefore, we discern no error of law or abuse of discretion by the trial
court in its decision to amend the information and admit the drug related
evidence. Commonwealth v. Womack, 453 A.2d 642, 645 (Pa. Super.
1982) (if no showing of prejudice, amendment of information to add
additional charge is proper even on day of trial).
In his third issue, Thomas argues that the trial court erred when it
denied his request for a new trial due to the Commonwealth’s failure to
____________________________________________
4
It is noteworthy that Thomas took the stand in his own defense and
admitted to possessing a small amount of marijuana and related
paraphernalia.
-8-
J-S28045-15
provide evidence of Alvarez’s prior bad acts. The record belies Thomas’
argument.
“[S]uppression by the prosecution of favorable evidence to an accused
upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” Commonwealth v. Brady, 373 U.S. 83, 87 (1963). “To
establish a Brady violation, a defendant must demonstrate that: (1) the
evidence was suppressed by the Commonwealth either willfully or
inadvertently; (2) the evidence was favorable to the defendant; and (3) the
evidence was material, in that its omission resulted in prejudice to the
defendant.” Commonwealth v. Haskins, 60 A.3d 538, 547 (Pa. Super.
2012). Further,
The burden rests with the defendant to prove, by reference to
the record, that evidence was withheld or suppressed by the
prosecution. The withheld evidence must have been in the
exclusive control of the prosecution at the time of trial. No
Brady violation occurs when the defendant knew, or with
reasonable diligence, could have discovered the evidence in
question. Similarly, no violation occurs when the evidence was
available to the defense from a non-governmental source.
Id.
Here, the record indicates that the existence of the Florida 5 records
relating to Alvarez’s prior bad acts was disclosed by the Commonwealth as
____________________________________________
5
Shortly after the shooting, the Susquehanna County District Attorney’s
Office received an unsolicited phone call from a Miami, Florida prosecutor
(Footnote Continued Next Page)
-9-
J-S28045-15
early as March 23, 2013, in its motion for pre-trial conference. At the pre-
trial conference held on July 31, 2013, the defense was again apprised of the
existence of the Florida records relating to Alvarez. Accordingly, Thomas’
argument that the Commonwealth withheld information is meritless.
Furthermore, even if Thomas had Alvarez’s Florida records, the
evidence of Alvarez’s prior bad acts was not relevant under the
circumstances. The evidence was not relevant because Alvarez was
unarmed and Thomas did not know Alvarez, or of his aggressive tendencies,
at the time of the shooting.
Judgment of sentence affirmed.
Judge Allen joins the Memorandum.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2015
_______________________
(Footnote Continued)
relating to Alvarez. The records indicate that Alvarez had previous criminal
convictions for crimes of violence.
- 10 -
Com. v. Thomas, L.
Combined Opinion