J-S45010-15

*

 Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 1771 MDA 2014

Appeal from the Judgment of Sentence September 23, 2014

In the Court of Common Pleas of Lackawanna County

Criminal Division at No(s): CP-35-CR-0000391-2013

BEFORE: BOWES, WECHT, AND FITZGERALD * JJ.

MEMORANDUM BY BOWES, J: FILED AUGUST 14, 2015

Alphonso Vaughn appeals from the judgment of sentence of nine years 

and two months to twenty-five years incarceration imposed by the trial court 

after a jury found him guilty of possession with intent to deliver (“PWID”) 

heroin, delivery of heroin, possession of heroin, resisting arrest, and 

possession of drug paraphernalia. We vacate the judgment of sentence and 

remand for a new trial.

The trial court recounted the salient facts as follows.1

____________________________________________

1

 The trial court opinion refers to Appellant as Vaughan rather than Vaughn. 

Appellant in his own pro se filings spelled his last name as Vaughan, 

however, the caption of the case was entitled Commonwealth v. Vaughn. 
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On February 12, 2013, Ami Davis (hereinafter “the C.I.”), a 

third floor resident of 1201 Capouse Avenue in Scranton, met 

with Detectives Harold Zech and John Munley of the Lackawanna 

District Attorney’s Office at a local Wendy’s restaurant to “offer 

information to try and help her boyfriend get out of jail on 

bond.” According to her, this “information” was that somebody 

in the building named “Pee Wee,” identified at trial Defendant 

Vaughan, “was selling heroin.” Based on this information, 

Detectives Zech and Munley “began to initiate what they call a 

controlled purchase where the C.I. would be buying the narcotics 

under their control.” The C.I. testified that she was provided 

with $50 from the detectives “to purchase three bags of heroin.” 

When they arrived at 1201 Capouse Avenue, the C.I. and 

the detectives gained entry due to the fact that she “had a key” 

and “lived there,” so she simply “opened the door and let 

[herself and the detectives] in.” Detective Zech explained that 

his role at that point “was to follow the C.I., to accompany her to 

Room 304 where she explained to me that Mr. Vaughan would 

be waiting for her to sell her the narcotic.” To initiate the buy, 

the C.I. said, “I just told Vaughan that I wanted something and 

then when I went in there, I asked him if he would give me three 

for $50 and he said yes.” She described the controlled buy as 

follows:

We had entered the building and one of the detectives 

followed me up the steps and one of the other detectives 

went up the back stairwell. I had went and knocked on 

the door and one of the detectives were [sic] able to see 

the door when I had knocked on it. He had opened the 

door, he went in. I had given him the money and received 

the three bags of heroin and then I was like in there for 

like maybe two seconds and turned around and went out. 

I handed the detective the heroin and then walked down 

the steps and both detectives—well, the one detective was 

right behind me and we all met out in the hallways and we 

went out together.

Detective Zech corroborated the C.I.’s testimony by stating:

I observed the C.I. began [sic] to walk down the hallway, 

get to Room 304 and knock on the door. Within moments 

I view Mr. Vaughan wearing jeans and a dark colored 
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sweatshirt invite her in. The door closes. I walk down the 

hallway and used my cell phone to snap a photograph of 

the door which is marked in paint 304.

. . .

Within a minute of the C.I. entering this room, 304, she 

then exited and returned to me. We left. When she 

reached me, we began to go down the staircase and she 

surrendered to me three bags, glassine bags, of suspected 

heroin. And the stamp on the bags read Keisha, and it 

was stamped in purple ink. And the stamp is commonly 

used by heroin dealers as a marketing tool for their 

product.

The three bags were then “field tested and gave positive 

indication for heroin or opiates.” 

Upon returning to Wendy’s, the C.I. stated that the 

detectives told her they wanted her “to arrange to buy a large 

amount of heroin off of Vaughan so that when they when they 

[sic] had went back that they can—that he would have a large 

amount of stuff on him.” On February 13, 2013, the C.I. had a 

conversation with Vaughan about the buy and agreed to 

purchase “a brick of heroin, which is 50 bags.” Based on this 

information, Detective Zech “made application for a search 

warrant for Room 304 at 1201 Capouse Avenue.” After the 

search warrant’s approval by the District Magisterial Court and 

confirmation from the C.I. that “there was a brick, 50 bags at 

the very least available,” Detective Zech and a team of officers 

from the Scranton Police Department executed the warrant at 

“approximately 12:30 in the afternoon.” Specifically, Detective 

Zech and the officers “gained access to the building through 

using the C.I.’s key . . . .” Finding that the door to Room 304 

was open, Detective Zech “entered the threshold of the room 

and announced, [‘]Police, search warrant, get on the ground.[’]” 

After doing so, he viewed a white male in the back of the room, 

later identified as Joseph Healey, and “Mr. Vaughan standing 

over him.” He said that when he announced his presence and 

ordered them to get on the ground, “the white male did so, but 

Mr. Vaughan turned and ran toward me in an aggressive 

manner.” In particular, Detective Zech said that Vaughan 

“turned and ran at me with a full head of steam to the point 
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where we’re in such close proximity to one another, if he had a 

weapon or anything on his person, he was going to close the gap 

very fast, so I deployed a taser into his chest.” He further stated 

that a pocketknife was recovered from “a dresser immediately to 

the right of us when we entered the doorway,” and that Vaughan 

was coming “directly at where I was standing and the knife was 

inches away from me.”

These points of testimony given by the C.I. and Detective 

Zech were corroborated by Detective Munley. Detective Munley 

also testified that, following the taser incident, Detective Zech 

“asked Alphonso Vaughan if he had any drugs on him,” to which 

“Vaughan said, Yes, I have heroin on me.” Thereafter, “Vaughan 

motioned to where the heroin was and Detective Munley 

confiscated the heroin out of his pocket.” Detective Munley 

described the search of Vaughan as a ‘joint effort,” which is 

consistent with Detective Zech’s testimony that he found “in 

Vaughan’s left front pants pocket . . . a sandwich baggie” 

containing “a suspected brick of heroin wrapped in magazine 

wrapping,” which is “common for large quantities of heroin . . . 

.” Detective Zech also recovered “12 additional bags rubber 

banded together inside that sandwich baggie,” and “a total of 62 

bags of heroin on Vaughan.” Moreover, all bags “were stamped 

Keisha, which matches the stamp on the bags . . . purchased the 

day before.” Detective Zech further testified that he recovered 

“$258 in currency” from Vaughan, $10 of which was found to be 

part of the prerecorded “$50 that was used the day prior” during 

the C.I.’s controlled buy. Detective Munley noted that “two 

hyp[o]dermic needles, a crack pipe, and a chore boy, which is 

used to ingest crack cocaine,” were also found at the scene.” He 

further testified that “four empty bags of suspected heroin” were 

found on Healey following his arrest, and that “one of them was 

stamped Keisha.”

Trial Court Opinion, 1/27/15, at 2-5 (internal citations and brackets 

omitted). 

The Commonwealth initially charged Appellant with possession with 

intent to deliver heroin, conspiracy to deliver heroin, resisting arrest, 

possession of heroin, and possession of drug paraphernalia. Subsequently, 
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the Commonwealth amended its criminal information to replace the 

conspiracy charge with a count of delivery of heroin. 

At his preliminary hearing, Appellant waived counsel, and apparently 

executed a waiver of counsel form consistent with Pa.R.Crim.P. 121.2 

Formal arraignment and a pretrial conference were conducted on April 5, 

2013, when Appellant was pro se. The court continued the case to permit 

Appellant time to complete and file a waiver of counsel colloquy for purposes 

of trial. The court then conducted a hearing on May 6, 2013, and accepted 

Appellant’s completed written waiver colloquy.3 In addition, the trial court 

____________________________________________

2 The comment to Pa.R.Crim.P. 121, which governs waiver of counsel, sets 

forth, 

It is intended that when the defendant has waived his or her 

right to counsel before the issuing authority for purposes of the 

preliminary hearing, such waiver shall not normally act as a 

waiver of the right to counsel in subsequent critical stages of the 

proceedings. Therefore, under paragraph (C) it is intended that a 

further waiver is subsequently to be taken by a judge of the 

court of common pleas.

Comment to Pa.R.Crim.P. 121; see also Commonwealth v. Payson, 723 

A.2d 695, 704 (Pa.Super. 1999) (completion of a preliminary hearing waiver 

of counsel form does not apply at latter proceedings or demonstrate a later 

knowing, intelligent and voluntary waiver).

3

 Although both parties cite to the transcript from the May 6, 2013 hearing, 

and Appellant quotes from it at length, the certified record does not contain 

this transcript. Nonetheless, there is no dispute that the trial court relied on 

the written colloquy at that hearing and the written colloquy is contained in 

the record. 
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appointed standby counsel. Appellant unsuccessfully litigated a suppression 

motion and a Rule 600 issue.

Thereafter, Appellant proceeded to a jury trial on July 7, 2014. The 

jury found Appellant guilty of each charge. The court sentenced Appellant 

on September 23, 2014. Specifically, the court imposed consecutive three 

year and four month to ten year periods of incarceration for the PWID and 

delivery counts,4to be followed by consecutive sentences of one to two 

years each for resisting arrest and simple assault, as well as a sentence of 

six to twelve months for possession of drug paraphernalia. Appellant filed a 

motion for the appointment of appellate counsel on September 26, 2014, 

and a timely notice of appeal on September 29, 2014. The court appointed 

appellate counsel for purposes of this appeal. Appellant now raises three 

issues for our review. 

1. Whether the trial court erred in allowing the Defendant to 

proceed to trial in a pro se capacity and in otherwise failing to 

conduct a legally sufficient colloquy, pursuant to Pa.R.Crim.P. 

121, with the Defendant such that the Defendant did not 

knowingly, understandingly, voluntarily and intelligently waive 

his right to counsel under the United States and Pennsylvania 

Constitutions, thereby warranting a new trial?

2. Did the trial court err and/or abuse its discretion in allowing 

the Commonwealth, on the eve of trial, to amend the criminal 

information where the Commonwealth previously denied 

Defendant access to the identity and/or statements of the 

____________________________________________

4

PWID and delivery are contained in the same statutory crime. See 35 

Pa.C.S. § 780-113(a)(3). The counts pertained to two separate acts. 
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confidential information [sic] upon the representation to the 

trial court that Defendant was not charged with delivery of a 

controlled substance thereby depriving Defendant of adequate 

time to investigate and prepare a defense and, then, receive 

a fair trial?

3. 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, [sic] 

originally deprived Defendant disclosure of the identity and/or 

statements of the confidential informant, so that Defendant 

might adequately prepared [sic] for trial, thereby depriving 

Defendant of a fair trial?

Appellant’s brief at 5. 

Appellant’s first contention is that the trial court erred in permitting 

him to proceed pro se without conducting an adequate waiver-of-counsel 

colloquy. Appellant begins by pointing out that a defendant’s waiver of his 

federal and state constitutional rights to counsel requires a trial court to 

engage in a probing inquiry to ensure that the individual understands his 

right to counsel and the consequences of waiving counsel. He continues that 

there is a presumption against waiver and that the Pennsylvania Supreme 

Court promulgated Pa.R.Crim.P. 121 to guide trial courts in determining 

whether a defendant was knowingly, voluntarily, and intelligently waiving his 

right to an attorney. That rule provides:

A) Generally.

(1) The defendant may waive the right to be represented by 

counsel.

(2) To ensure that the defendant's waiver of the right to counsel 

is knowing, voluntary, and intelligent, the judge or issuing 
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authority, at a minimum, shall elicit the following information 

from the defendant:

(a) that the defendant understands that he or she has the right 

to be represented by counsel, and the right to have free counsel 

appointed if the defendant is indigent; 

(b) that the defendant understands the nature of the charges 

against the defendant and the elements of each of those 

charges; 

(c) that the defendant is aware of the permissible range of 

sentences and/or fines for the offenses charged; 

(d) that the defendant understands that if he or she waives the 

right to counsel, the defendant will still be bound by all the 

normal rules of procedure and that counsel would be familiar 

with these rules; 

(e) that the defendant understands that there are possible 

defenses to these charges that counsel might be aware of, and if 

these defenses are not raised at trial, they may be lost 

permanently; and 

(f) that the defendant understands that, in addition to defenses, 

the defendant has many rights that, if not timely asserted, may 

be lost permanently; and that if errors occur and are not timely 

objected to, or otherwise timely raised by the defendant, these 

errors may be lost permanently. 

(3) The judge or issuing authority may permit the attorney for 

the Commonwealth or defendant's attorney to conduct the 

examination of the defendant pursuant to paragraph (A)(2). The 

judge or issuing authority shall be present during this 

examination.

(B) Proceedings Before an Issuing Authority. When the 

defendant seeks to waive the right to counsel in a summary case 

or for a preliminary hearing in a court case, the issuing authority 

shall ascertain from the defendant whether this is a knowing, 

voluntary, and intelligent waiver of counsel. In addition, the 

waiver shall be in writing,
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(1) signed by the defendant, with a representation that the 

defendant was told of the right to be represented and to have an 

attorney appointed if the defendant cannot afford one, and that 

the defendant chooses to act as his or her own attorney at the 

hearing or trial; and

(2) signed by the issuing authority, with a certification that the 

defendant's waiver was made knowingly, voluntarily, and 

intelligently.

The waiver shall be made a part of the record.

(C) Proceedings Before a Judge. When the defendant seeks 

to waive the right to counsel after the preliminary hearing, the 

judge shall ascertain from the defendant, on the record, whether 

this is a knowing, voluntary, and intelligent waiver of counsel.

(D) Standby Counsel. When the defendant's waiver of counsel 

is accepted, standby counsel may be appointed for the 

defendant. Standby counsel shall attend the proceedings and 

shall be available to the defendant for consultation and advice.

Pa.R.Crim.P. 121. 

Appellant acknowledges that he completed a written waiver of counsel 

colloquy. However, he contends that the colloquy was deficient because it 

“is devoid of any indication that [he] understood the nature of the charges 

lodged against him, since the colloquy only expressed that the Defendant 

understood that he was charged with ‘PWID’, and makes no mention or 

reference to the other charges or the elements of any of the charges which 

the Defendant faced.” Appellant’s brief at 12-13. Appellant continues by 

highlighting that the written colloquy did not set forth the permissible range 

of sentences that he faced and only included his answer that he was aware 

of what those ranges were. In addition, Appellant asserts that the written 
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colloquy did not include the maximum sentences he faced and what that 

total could be if the sentences were to be imposed consecutively. 

Appellant submits that the trial court, at the May 6, 2013 waiver of 

counsel hearing, did not conduct a colloquy. Rather, the court asked 

Appellant if he had reviewed, completed, and signed the written colloquy. 

The court also noted that Appellant had represented himself successfully in 

the past and appointed stand-by counsel. According to Appellant, the trial 

court failed to “correct any of the deficiencies of the written waiver 

colloquy.” Appellant’s brief at 15.

The Commonwealth reiterates the trial court’s position that Appellant, 

who was never represented by counsel, waived this issue by failing to object 

to the trial court’s inadequate oral and written colloquy. With respect to the 

merits, the Commonwealth highlights that Appellant completed a sixty-four 

question written waiver colloquy. It maintains that the colloquy contained 

all of the information required by Rule 121 as well as additional information. 

It notes that Appellant indicated that he had previously represented himself, 

was familiar with the rules of criminal procedure, and understood that he 

would be bound by the same rules and standards as an attorney. 

Accordingly, the Commonwealth submits that Appellant’s waiver was 

knowing, voluntary, and intelligent.

Initially, we must reject the Commonwealth’s waiver position. In 

Commonwealth v. Monica, 597 A.2d 600 (Pa. 1991), the Pennsylvania 
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Supreme Court ruled that the defendant’s failure to object to the lack of an 

adequate colloquy regarding his waiver of counsel and raise the matter in a 

post-trial motion or his brief in support of his post-trial motion did not result 

in waiver. The burden is on the trial court to ensure that it adequately 

inquires with the defendant regarding his or her waiver of counsel.

 Similarly, in Commonwealth v. Davido, 868 A.2d 431 (Pa. 2005), in 

a PCRA appeal, the Supreme Court held that a trial court has a sua sponte

duty to ensure a proper colloquy is performed when a defendant seeks to 

represent himself. The Davido Court rejected the position that it is 

incumbent upon counsel to object to a colloquy. If an attorney at the 

proceeding is not required to object, it would make little sense to require the 

pro se defendant to object. Here, Appellant was never represented by 

counsel. The trial court and the Commonwealth are mistaken in concluding 

that Appellant waived the issue. 

Having addressed the Commonwealth’s waiver position, we proceed to 

the merits of Appellant’s argument. Based on Commonwealth v. Phillips, 

93 A.3d 847 (Pa.Super. 2014), and case law discussed therein, we are 

constrained to award a new trial. In Phillips, the trial court conducted three 

separate colloquies. First, the defendant, after filing several pro se motions, 

including two motions to suppress, filed a motion to proceed without his 

attorney. The court held a hearing and granted Phillips the right to 

represent himself and appointed standby counsel. Thereafter, at Phillips’ 
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suppression hearing, a different judge also briefly queried him about 

continuing pro se. Thereafter, prior to the start of trial, the initial court 

again asked Phillips about his waiver of counsel. 

In the first colloquy, the trial court asked Phillips about four of the six 

areas under Rule 121(A)(2). It did not ask if he understood that he might 

lose or be unaware of certain defenses or advise him of the elements of each 

offense. Further, the court did not inquire as to Phillips’ age and education. 

During the second colloquy, the court only informed Phillips that he would be 

bound by the normal rules of procedure. In the last colloquy, the court 

largely followed Rule 121. However, it asked standby counsel and not 

Phillips whether he understood the permissible range of sentences. It also 

failed to question Phillips as to whether he understood the questions in the 

colloquy or seek his age, educational background, and comprehension skills. 

This Court determined that, despite the multiple colloquies, the defects in 

each one warranted a new trial.

Instantly, the trial court did not conduct an oral colloquy of Appellant 

pursuant to Rule 121. While Appellant did complete a written colloquy, 

which contained questions covered by Rule 121, as well as additional 

information, that colloquy did not include the elements of the offenses 

levelled against Appellant nor did it include the range of sentences he would 

be subject to or even the maximum sentence possible. Instead, the colloquy 

included generic questions as to whether Appellant understood these facts. 
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While Appellant answered yes, the only crime he included in the colloquy 

was PWID. To the extent that Appellant had represented himself in the past, 

this Court in Commonwealth v. Payson, 723 A.2d 695 (Pa.Super. 1991), 

although sympathetic to the position, rejected the argument that prior 

experience with the court system was sufficient to validly waive counsel. 

See also Commonwealth v. Lloyd, 535 A.2d 1152, 1163 (Pa.Super. 1988) 

abrogated in part on other grounds by Commonwealth v. Brazil, 701 A.2d 

216 (Pa. 1997) (“It is also the law that any shortcoming relative to this 

colloquy cannot be gauged to the quality of an accused’s self-representation 

nor justified on the basis of his prior experience with the system.”). 

In light of the governing case law, and the fact that Appellant’s written 

colloquy did not adequately inform Appellant of the sentencing maximums 

and range of sentences or the elements of the offenses for which he was 

charged, we are constrained to reverse and remand for a new trial. See 

Brazil, supra (rejecting totality of circumstances approach); Phillips, 

supra; Payson, supra. Since precedent results in Appellant being entitled 

to relief based on his initial claim, we need not address his remaining 

substantive trial court error positions. 
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Judgment of sentence vacated. Case remanded for a new trial. 

Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/14/2015