J. S62025/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ALPHONSO VAUGHN, :
:
Appellant : No. 2179 MDA 2015
Appeal from the Judgment of Sentence November 18, 2015
In the Court of Common Pleas of Lackawanna County
Criminal Division at No.: CP-35-CR-0000391-2013
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 28, 2016
Appellant, Alphonso Vaughn, appeals from the Judgment of Sentence
entered by the Lackawanna County Court of Common Pleas following his
conviction by a jury of two counts of Possession of a Controlled Substance
With Intent to Deliver (“PWID”), Simple Possession, Possession of Drug
Paraphernalia, and Resisting Arrest.1 After careful review, we affirm.
The relevant facts, as gleaned from the trial court’s Pa.R.A.P. 1925(a)
Opinion filed on April 13, 2016, and the certified record, are as follows. On
February 12, 2013, a confidential informant (“C.I.”) working with police
purchased three bags of heroin from Appellant in his home at 1201 Capouse
Avenue in Scranton. The police officers then had the C.I. arrange to
1
35 P.S. § 780-113(a)(30); 35 P.S. § 780-113(a)(16); 35 P.S. § 780-
113(a)(32); and 18 Pa.C.S. § 5104, respectively.
J. S62025/16
purchase 50 bags of heroin from Appellant. Appellant scheduled that sale
for the next day.
Based on Appellant’s February 12 sale to the C.I. and the sale
scheduled for the following day, detectives obtained a search warrant for
Appellant’s room inside 1201 Capouse Avenue. During the execution of the
search warrant, Appellant charged at police, who then subdued him with a
Taser. One of the detectives then asked Appellant if he had any drugs on
him, to which he responded that he had heroin in his pocket. Police
recovered 62 bags of heroin and $258 cash from Appellant’s person, $10 of
which was prerecorded buy money used by the C.I. to purchase heroin from
Appellant the previous day.
Appellant was arrested and charged with one count each of PWID,
Conspiracy to commit PWID, Simple Possession, Possession of Drug
Paraphernalia, and Resisting Arrest. At Appellant’s preliminary hearing,
although the C.I. did not testify, one of the investigating detectives testified
about the entire factual scenario that led up to and included Appellant’s
arrest.
On June 5, 2013, Appellant filed a pre-trial Motion to compel the
disclosure of the identity of the C.I. The trial court denied the Motion, noting
that the Commonwealth (1) had not charged Appellant with the February 12,
2013 drug transaction; and (2) was not planning to present the C.I.’s
-2-
J. S62025/16
testimony at trial because she had not been present during the execution of
the search warrant on February 13, 2013.
On June 9, 2014, the Commonwealth altered course and filed a Motion
to Amend the Information seeking to replace the Conspiracy to Commit
PWID charge and instead charge Appellant with one count of PWID in
connection with the February 12, 2013 sale to the CI. In the event the trial
court denied its Motion to Amend, the Commonwealth also filed a Motion in
Limine to admit the C.I.’s testimony about the February 12, 2013 drug
transaction that formed the basis of the search warrant, pursuant to Pa.R.E.
404(b). The trial court granted both Motions, noting that there was “no
difference in the facts . . . in terms of the facts surrounding the search
warrant and the information. . . .” N.T., 6/16/14, at 18.
The trial court also granted Appellant a 21-day continuance in order
to: (1) allow the Commonwealth to provide Appellant with information about
the C.I.’s identity and criminal history; (2) permit Appellant additional time
to investigate the C.I.; and (3) provide ample time for Appellant to
reevaluate his trial strategy “because it changed the whole strategy of [his]
defense.” N.T., 6/16/14, at 24-28.
At his jury trial, Appellant represented himself. The C.I. testified on
behalf of the Commonwealth. On July 8, 2014, the jury convicted Appellant
of all charges. On direct appeal, this Court vacated Appellant’s Judgment of
Sentence and remanded for a new trial after concluding that Appellant’s
-3-
J. S62025/16
Pa.R.Crim.P. 121 waiver colloquy had been deficient. Commonwealth v.
Vaughn, No. 1771 MDA 2014 (Pa. Super. filed August 14, 2015).
On October 15, 2015, a second trial proceeded, with Appellant again
representing himself. The C.I. again testified. The jury again convicted
Appellant of all charges.2 On November 18, 2015, the trial court imposed an
aggregate term of 110 to 300 months’ imprisonment. After the trial court
appointed counsel at Appellant’s request, Appellant filed a timely Notice of
Appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents two issues for our review:
1. Did the trial court err and/or abuse its discretion in allowing
the Commonwealth to amend the Criminal Information where
the Commonwealth previously denied Appellant access to the
identity and/or statements of the confidential information upon
the representation to the trial court that Appellant was not
charged with delivery of a controlled substance thereby
depriving Appellant of adequate time to investigate and prepare
a defense and, then, receive a fair trial?
2. Did the trial court err and/or abuse its discretion in allowing
the testimony of a confidential informant pursuant to Pa.R.E.
404(b), at the time of trial, where the Commonwealth[]
originally deprived Appellant disclosure of the identity and/or
statements of the confidential informant[] so that Appellant
might adequately prepare[] for trial, thereby depriving Appellant
of a fair trial?
Appellant’s Brief at 3.
2
Although Appellant alleges he could not use his original defense strategy—
that he had had the drugs for personal use rather than to sell to others—
Appellant did assert this defense among others during both trials. See N.T.
First Trial, 7/8/14, at 222-23; N.T. Second Trial, 10/15/15, at 21-23, 43.
-4-
J. S62025/16
Appellant first avers that the trial court erred in permitting the
Commonwealth to amend the Information prior to trial to charge him with a
second PWID offense in connection with the February 12, 2013 drug
transaction with the C.I. He contends that he is entitled to a new trial
because, as a result of the amendment, he suffered prejudice.
Our rules of criminal procedure allow a trial court to grant a motion to
amend a criminal information ”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.” Pa.R.Crim.P. 564. After allowing such an
amendment, “the court may grant such postponement of trial or other relief
as is necessary in the interests of justice.” Id.
Our courts have applied amendment rules “with an eye toward [their]
underlying purposes and with a commitment to do justice rather than be
bound by a literal or narrow reading of procedural rules.” Commonwealth
v. Grekis, 601 A.2d 1284, 1289 (Pa. Super. 1992). This Court has
observed that “the purpose of Rule 564 is 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.” Commonwealth v. Mentzer, 18 A.3d 1200, 1202 (Pa.
Super. 2011) (citation and quotation omitted). Thus, our case law “sets
forth a broader test for propriety of amendments than the plain language of
-5-
J. S62025/16
the rule suggests. . . .” Commonwealth v. Mosley, 585 A.2d 1057, 1060
(Pa. Super. 1991) (en banc) (citation omitted).
In reviewing a challenge to the propriety of an amendment, this Court:
will look to whether the appellant was fully apprised of the
factual scenario which supports the charges against him. Where
the crimes specified in the original information involved the same
basic elements and arose out of the same factual situation as the
crime added by the amendment, the appellant is deemed to
have been placed on notice regarding his alleged criminal
conduct and no prejudice to defendant results.
Commonwealth v. Sinclair, 897 A.2d 1218, 1222 (Pa. Super. 2006)
(citations omitted). Relief is proper only where the amendment prejudices a
defendant. Commonwealth v. Veon, 109 A.3d 754, 768 (Pa. Super.
2015).
When determining whether an amendment results in prejudice, this
Court considers:
(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.
Id. See, e.g., Mentzer, 18 A.3d at 1203 (holding appellant not entitled to
relief where he was not prejudiced by amendment).
Appellant argues that changing the charge from Conspiracy to PWID to
PWID “on the eve of trial” violated Pa.R.Crim.P. 564 because the PWID
-6-
J. S62025/16
charge “was based on a different set of facts and required the testimony of
the [C.I.].” Appellant’s Brief at 7. Appellant avers he suffered prejudice by
the amendment because: (1) the amendment changed the factual scenario,
added new, previously unknown facts, changed the description of the
charges, and added a different charge; (2) the amendment required a
change in defense strategy; and (3) the timing of the amendment did not
provide sufficient notice. Id. at 15-19. He asserts that he could not change
his defense strategy because he did not have sufficient time to investigate
the C.I. Appellant’s Brief at 17-18. He further contends that he could not
investigate the C.I. before his second trial, more than one year later,
because he was incarcerated and without resources to do so.
Appellant relies on Commonwealth v. Bricker, 882 A.2d 1008 (Pa.
Super. 2005), and Commonwealth v. DeSumma, 559 A.2d 521 (Pa.
1989). Bricker and DeSumma are inapposite.
In Bricker, supra, the Commonwealth originally charged the
defendant with one count of PWID for 0.37 grams of crack cocaine recovered
from his person. After the Commonwealth’s case-in-chief, the court
permitted the Commonwealth to amend the information to increase the
amount of crack cocaine charged in the information based on trial testimony
about an additional 5.3 grams of the drug that Bricker had allegedly
constructively possessed because the additional drugs had been found on
the floor near Bricker’s co-perpetrator. The jury convicted Bricker. On
-7-
J. S62025/16
appeal, this Court reversed, concluding that it was improper and prejudicial
for the court to allow the amendment because: (1) the amendment occurred
during the trial after the Commonwealth’s case-in-chief; (2) the amendment
rendered the defendant’s sole defense of personal use a nullity; and (3) the
smaller amount of crack cocaine did not qualify for a mandatory minimum
sentence, whereas the 5.3 grams carried a mandatory minimum sentence.
Bricker, 882 A.2d at 1020-21.
In DeSumma, supra, the Commonwealth charged the defendant
driver with assaulting and endangering a fellow driver during a road rage
incident. The Commonwealth did not charge him with assaulting and
endangering the four passengers who were riding in the victim’s car. After
the victim driver failed to appear at trial, and the Commonwealth could only
locate one of the passengers to testify, the trial court permitted the
Commonwealth to amend the information to add the names of the four
passengers as victims of the charged crimes. The jury convicted DeSumma
of all charges and this Court affirmed. However, our Supreme Court
reversed, concluding that the amendment violated the former version of
Pa.R.Crim.P. 524 (Pa.R.Crim.P. 229) because it added previously
unanticipated victims and impermissibly charged “an additional or different
offense.” DeSumma, 559 A.2d at 523. The Court also found that the
amendment had prejudiced the defendant because it vitiated his justification
-8-
J. S62025/16
and consent defenses at the “eleventh hour.” Id. DeSumma and Bricker
are factually and legally distinguishable from the instant case.
Here, the Commonwealth’s amendment did not occur during
Appellant’s trial. Rather, the amendment occurred in advance of both of
Appellant’s trials. As a result, Appellant received a 21-day continuance to
prepare for the first trial, and “had approximately 482 days to prepare” for
his second trial, which is 100 days longer than “most defendants need to
prepare for their entire trials.”3 Trial Court Opinion at 7 (citing Pa.R.Crim.P.
600).
Moreover, unlike DeSumma and Bricker, Appellant cannot
demonstrate that he suffered prejudice as a result of the amendment. The
amended PWID charge arose from Appellant’s sale of heroin to the C.I. on
February 12, 2013. That sale formed the basis for the search warrant that
was executed the next day. At Appellant’s preliminary hearing, the detective
testified as to all of the facts pertaining to that February 12th sale, thus
Appellant was fully apprised of those facts. Contrary to Appellant’s
contention, the amendment of a charge pertaining to that actual sale did not
add any additional facts unknown to him. Rather, it involved the “same
basic elements and arose out of the same factual situation” as set forth in
the original Information. Sinclair, 897 A.2d at 1222.
3
Appellant had 60 days to prepare for his second trial after learning of the
remand.
-9-
J. S62025/16
In addition, substituting the second PWID charge for Conspiracy to
PWID did not render his original defense ineffective. Appellant presented
several defenses at his trials, including personal use, the same defense that
he alleged he could not use after the Commonwealth amended the
information. Thus, contrary to his averment, the addition of the second
PWID charge did not result in a change to Appellant’s defense strategy that
he was unable to utilize at trial.
In his second issue, Appellant “challenges the trial court’s decision to
allow the admission of testimony from the [C.I.], pursuant to Pa.R.E.
404(b), even if the amendment to the Criminal Information had been
denied[,]” because he had not received “reasonable notice” as required by
Pa.R.E. 404(b)(3). Appellant’s Brief at 25, 28.
Pa.R.E. 404(b) prohibits the admission of evidence of other crimes,
wrongs, or acts to prove a person’s character. Pa.R.E. 404(b)(1). See
generally Old Chief v. United States, 519 U.S. 172, 181-82 (1997)
(describing the danger of admitting propensity evidence, i.e., evidence of
prior, unrelated crimes “other than those charged”); Daniel J. Anders,
Ohlbaum on the Pennsylvania Rules of Evidence § 404.15 et seq. (2016 ed.
LexisNexis Matthew Bender). If the Commonwealth intends to introduce
propensity evidence at trial, it must provide “reasonable” notice in advance
of trial. Pa.R.E. 404(b)(3).
- 10 -
J. S62025/16
Appellant’s argument fundamentally rests on two hypothetical
premises: (1) that the trial court denied the Motion to Amend the
information; and (2) that the trial court did not grant Appellant a 21-day
continuance for additional time to prepare for trial. However, as discussed
above, the trial court did properly grant the Motion to Amend, and Appellant
did receive reasonable notice before trial that the C.I. would be testifying.
Thus, contrary to Appellant’s contention, the C.I.’s testimony pertained to a
charged crime and did not constitute improper Pa.R.E. 404(b) propensity
evidence about which he did not receive reasonable notice.
Because each of Appellant’s claims lack merit, we affirm his Judgment
of Sentence.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/2016
- 11 -