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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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