Com. v. Grekis

• Decision Date: 14 January 1992
• Citation: 601 A.2d 1284,411 Pa.Super. 513
• Parties: COMMONWEALTH of Pennsylvania v. Angelo GREKIS, Appellant.
• Court: Pennsylvania Superior Court

Page 1284

601 A.2d 1284

411 Pa.Super. 513

COMMONWEALTH of Pennsylvania v. Angelo GREKIS, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 11, 1991.

Decided Jan. 14, 1992.

Raymond Radakovich, Pittsburgh, for appellant.

James R. Gilmore, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before CAVANAUGH, BECK and KELLY, JJ.

BECK, Judge:

This is an appeal filed from the judgment of sentence imposed upon Angelo Grekis after a jury convicted him of one count of promoting prostitution ¹, one count of corrupting a minor ², one count of solicitation to commit prostitution ³ and three counts of solicitation to commit involuntary deviate sexual intercourse (IDSI) ⁴. The instant case arose following the arrest of a young girl for soliciting for prostitution. During the course of the post-arrest interview, the girl disclosed that her primary base of operations was Krazi's Bar, an establishment known by the police to be owned and operated by Angelo Grekis. Prompted, in part, by the extreme youth of the girl, who was fourteen (14) at the time of her arrest, the police investigated further.

Appellant Grekis seeks relief on several grounds. He argues that the trial court erred in permitting the Commonwealth to amend the information to add the three counts of solicitation to commit IDSI. Appellant also challenges the sufficiency of the evidence on all the charges of which he was convicted. In addition, in a supplemental brief filed by leave of this court, appellant claims that trial counsel was ineffective for failing to object to the testimony by the victim regarding an uncharged act of oral sex for which she was paid by appellant. Finally, appellant raises numerous complaints regarding the sentences imposed.

The evidence upon which appellant was convicted was as follows. Krazi's Bar and its adjoining establishment, the Quick Stop Restaurant, are located in the business district of downtown Pittsburgh. Detectives from the organized crime, narcotics and intelligence unit testified at trial regarding their familiarity with Krazi's Bar, its clientele and its ownership. On numerous occasions appellant identified himself to the police as the person in charge at Krazi's Bar. Due to what the detectives described as a "high concentration of daylight prostitution" in the area, the police maintained a steady surveillance around and in the bar. One officer who was stationed in the bar several hours a week observed the level of managerial and business involvement appellant exhibited every day. The evidence indisputedly established that appellant was in charge.

Every time the police chased the prostitutes off the street, "invariably" they would go into appellant's bar. Therefore, Detective Lou Garda, a twenty year police veteran, investigated further to discover that Krazi's Bar was sanctuary to numerous "prostitutes and pimps." The detective pointed these clients out to appellant so that appellant could not claim, as previously he had, that he did not know who was in his bar. As a result of recurring incidents of this nature, the police warned appellant on many occasions that he was in danger of losing his liquor license since permitting the use of his establishment for prostitution was in violation of the law. These warnings were repeated but were disregarded by appellant. The detectives described appellant's attitude as indifferent to the type of activity flagrantly occurring on his premises.

S.H., a young girl who frequented Krazi's Bar in order to solicit for prostitution, was arrested on January 23, 1989, when she tried to solicit a police officer. During the course of her interview with police following arrest, she revealed her connection with Krazi's Bar. At appellant's trial, S.H. testified that between August 1988 and January 1989 she was in the bar almost every day, six days a week. At the time, she was fourteen years old. She frankly admitted that she was in Krazi's Bar for purposes of prostitution. She testified that she saw appellant there almost everyday. According to S.H., the fact that she was a prostitute was known to everyone and that, in fact, "the only people that would come down there were prostitutes, pimps, drug dealers, male prostitutes, anything of that sort." Appellant never attempted to stop S.H. or discourage her nor did he ask her to leave. Although an obvious young girl at the time of these events, S.H. had no trouble purchasing drinks at the bar, which she could recall doing at least three times. Moreover, she stated that usually she would take her clients to a nearby motel room but that occasionally she would take them into the ladies' room in the bar. S.H.'s testimony makes it clear that these activities were in no way concealed but, on the contrary, were very conspicuous.

With respect to her direct interactions with appellant, S.H. described them as follows. On December 13, 1988, ⁵ after she had consumed a drink served to her at the bar, appellant approached her and offered her "$35 for head." S.H. interpreted this as a request for oral sex in exchange for money. S.H. agreed and she and appellant went upstairs to the office where the act was performed. Later the same day, appellant again approached S.H. and said "I want your ass." S.H. responded that "you're going to have to pay for that because I'm not willing to give it up." Appellant then said "I'll give you $50." When S.H. declined, the subject was dropped. S.H. explained at trial that appellant's terminology meant that "he wanted to have anal intercourse." A few weeks later, appellant made the same request and again S.H. responded negatively. Sometime after that, also on an unspecified date, the request was repeated and met with the same negative response. S.H. stopped going to Krazi's Bar after her arrest for soliciting and subsequent confinement to a youth development center.

Appellant's defense at trial was three-pronged. First, he presented testimony through his wife and neighbor which sought to establish that on December 13, 1988, the day the first act of solicitation for IDSI was said to have occurred, he was out-of-town. Second, he sought to undermine the credibility of S.H. by characterizing her as untrustworthy and a liar. Finally, he introduced the testimony of a mailman who frequented Krazi's Bar and who testified that he never saw anyone soliciting for prostitution there.

Appellant originally was charged with five offenses: promoting prostitution, corrupting the morals of a minor, and three counts of criminal solicitation to commit prostitution. Specifically, the latter three counts alleged that appellant had offered fifty dollars to S.H. to engage in anal intercourse. A preliminary hearing was held on February 10, 1989 and appellant was held for court on all charges. Thereafter, on July 21, 1989, months before trial was scheduled, the Commonwealth petitioned to amend the information in order to charge three counts of criminal solicitation to commit IDSI. On August 28, 1989, a hearing was held on the Commonwealth's petition to amend. At the hearing, the Commonwealth maintained that the predicate facts for the three additional counts were identical to those facts underlying the solicitation for prostitution counts, i.e., that the defendant had offered S.H. money to engage in an act of anal intercourse. The Commonwealth noted further that S.H.'s age was developed explicitly at the preliminary hearing. When queried by the court about how the amendment would prejudice his client, under these circumstances, defense counsel argued that he was prejudiced by a lack of a preliminary hearing on the amended counts. The trial court found that no prejudice had been shown and permitted the amendment. Trial was held two months later.

On appeal, appellant again asserts that the trial court erred in permitting the amendment discussed above. He contends, but does not demonstrate, that the amendment prejudiced his ability to defend himself at trial. We conclude that, under the circumstances of this case, the trial court properly permitted the amendment of the information. The amendment here worked no prejudice to appellant and in no way diminished his ability to prepare his defense for trial. As such, we find that the amendment did not constitute error.

The courts of this Commonwealth have had numerous opportunities to review challenges to amended informations and have developed a standard by which such claims shall be evaluated. The starting point is Pa.R.Crim.P. 229, which provides:

The court may allow an information to be amended when there is a defect in form, 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 is necessary in the interests of justice.

Appellant argues that by adding the charges of criminal solicitation to commit IDSI the court violated the letter of Rule 229 which disallows amendments which charge an "additional or different offense." To the extent that a substantive change was worked by amending the information to charge an offense carrying a greater potential penalty and whose elements are theoretically different ⁶, a literal reading of Rule 229 would appear to argue in appellant's favor. Rule 229 is a starting point only, however, because our courts apply the rule with an eye toward its underlying purposes and with a commitment to do justice rather than be bound by a literal or narrow reading of procedural rules. Therefore, this court had stressed that "we look more to substantial justice than to technicalities" when reviewing the validity of an amended information. Commonwealth v. Fuller, 396 Pa.Super. 605, 616, 579 A.2d 879, 885 (1990). Furthermore, we have noted that: "The case law sets forth a broader test for propriety of amendments than the plain language of the rule suggests...." Commonwealth v. Mosley, ...