J-S45010-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

*
    Former Justice specially assigned to the Superior Court.
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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,4 to 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




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