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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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




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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



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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.



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      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



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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



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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



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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




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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.



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      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).




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     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




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