J-S42004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
               v.                           :
                                            :
                                            :
    ALPHONSO VAUGHN                         :
                                            :
                     Appellant              :   No. 1855 MDA 2017

                Appeal from the PCRA Order November 16, 2017
    In the Court of Common Pleas of Lackawanna County Criminal Division at
                        No(s): CP-35-CR-0000391-2013

BEFORE:     BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                         FILED SEPTEMBER 19, 2018

       Alphonso Vaughn appeals pro se from the order that denied his petition

for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

       This Court offered the following history of this case in a prior appeal.

       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 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


*    Retired Senior Judge assigned to the Superior Court.
J-S42004-18


       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 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[1] in connection with the February 12,
       2013 sale to the C.I. 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. . . .”

             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.”

              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 Pa.R.Crim.P. 121
       waiver colloquy had been deficient.


____________________________________________


1 As we discuss infra, the amendment actually was to substitute a count of
delivery of a controlled substance for the conspiracy count, not to add a
second PWID count in the place of the conspiracy count.

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            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. 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.

Commonwealth v. Vaughn, 159 A.3d 59 (Pa.Super. 2016) (unpublished

memorandum at 1-3) (citations, footnote, and unnecessary capitalization

omitted).

      On appeal, Appellant contended that the trial court erred in allowing the

Commonwealth to amend the criminal information, as it deprived him of

adequate time to prepare his defense. He also argued that the trial court

erred under Pa.R.E. 404(b) in allowing the C.I. to testify. Id. at 4. This Court

determined that neither issue was meritorious and affirmed his judgment of

sentence. Id.

      On December 16, 2016, Appellant pro se filed the timely PCRA petition

that is the subject of this appeal. The trial court held a hearing regarding the

appointment of counsel at which Appellant again opted to waive his right and

proceed pro se. Order, 4/18/17. Appellant subsequently supplemented his

petition, and the Commonwealth filed a response.          Upon review of the

pleadings, the trial court dismissed Appellant’s petition in part, as two of the

issues raised were previously litigated on direct appeal; Appellant agreed that

dismissal of those claims was proper. See N.T. PCRA Hearing, 8/25/17, at 2.

      A hearing was held on August 25, 2017, with standby counsel present,

to address Appellant’s remaining PCRA claims: (1) direct appeal counsel was

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ineffective in litigating the issue of the amendment of the criminal information;

(2) direct appeal counsel was ineffective in failing to challenge the

Commonwealth’s nolle pros2 of the conspiracy charge without court approval;

and (3) his sentence is illegal because the two counts of PWID based upon the

same criminal act merged. See id. at 15, 18-21, 23-25, 36, 62. By order of

November 16, 2017, the PCRA court denied Appellant’s petition.

       Appellant filed a timely notice of appeal, and both Appellant and the

PCRA court complied with Pa.R.A.P. 1925. In his brief, Appellant poses nine

questions to this Court. Appellant’s brief at iv. However, in the argument

section, Appellant advocates only three: (1) the trial court erred in allowing

the Commonwealth to nolle pros the conspiracy charge without seeking trial

court approval; (2) direct appeal counsel was ineffective in failing to raise the

nolle pros issue; and (3) his sentence is illegal. Id. at 1, 6, 7. We shall limit

our review to the issues for which Appellant has offered developed argument.

See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1262 (Pa.Super. 2014)

(en banc) (“The Pennsylvania Rules of Appellate Procedure require that each

question an appellant raises be supported by discussion and analysis of

pertinent authority, and failure to do so constitutes waiver of the claim.”).


____________________________________________


2  “A nolle prosequi [or “nolle pros”] is a voluntary withdrawal by the
prosecuting attorney of proceedings on a particular bill or information, which
can at anytime be retracted to permit revival of proceedings on the original
bill or information.” Commonwealth v. Rega, 856 A.2d 1242, 1247 n.10
(Pa.Super. 2004) (quoting Commonwealth v. Whiting, 500 A.2d 806, 807
(Pa. 1985)).

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      We begin with legal principles relevant to the issues Appellant argues.

“When reviewing the denial of a PCRA petition, our standard of review is

limited to examining whether the PCRA court’s determination is supported by

evidence of record and whether it is free of legal error.” Commonwealth v.

Jordan, 182 A.3d 1046, 1049 (Pa.Super. 2018).

      “To be entitled to PCRA relief, a petitioner bears the burden of

establishing, by a preponderance of the evidence, that his conviction or

sentence resulted from one or more of the circumstances enumerated in 42

Pa.C.S. § 9543(a)(2)[.]” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.

2015).   Those circumstances include constitutional violations, ineffective

assistance of counsel, and an unlawful sentence. 42 Pa.C.S. § 9543(a)(2)(i),

(ii), (vii). However,

      PCRA relief is not available for alleged errors raised in a PCRA
      petition that have been previously litigated or waived. An issue
      has been previously litigated if the highest appellate court in which
      the petitioner could have had review as a matter of right has ruled
      on the merits of the issue. In addition, a PCRA claim is waived if
      the petitioner could have raised it but failed to do so before trial,
      at trial, during unitary review, on appeal or in a prior state post-
      conviction proceeding.

Jordan, supra at 1049–50 (cleaned up).

      Appellant’s first claim, that the Commonwealth should not have been

able to nolle pros the conspiracy claim without trial court approval, could have

been raised on direct appeal but was not.        Accordingly, the claim is not

reviewable under the PCRA. See id; see also Commonwealth v. Reyes-

Rodriguez, 111 A.3d 775, 780 (Pa.Super. 2015) (en banc) (“At the PCRA

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stage, claims of trial court error are either previously litigated (if raised on

direct appeal) or waived (if not).”).

      However, the issue may be addressed as part of a claim of ineffective

assistance of counsel. Reyes-Rodriguez, supra at 780. With his second

issue, Appellant does contend that his direct appeal counsel was ineffective in

failing to make the nolle-pros argument. We thus address that claim pursuant

to the following legal tenets.

      Counsel is presumed effective, and in order to overcome that
      presumption a PCRA petitioner must plead and prove that: (1) the
      legal claim underlying the ineffectiveness claim has arguable
      merit; (2) counsel’s action or inaction lacked any reasonable basis
      designed to effectuate petitioner’s interest; and (3) counsel’s
      action or inaction resulted in prejudice to petitioner.

Mason, supra at 618. Failure to establish any prong of the test defeats the

claim. Id.

      The underlying claim which Appellant maintains that counsel should

have argued on his appeal is that the dismissal of the conspiracy count

included in the original criminal information was not done by the trial judge in

open court as required by Pa.R.Crim.P. 585(A) (“Upon motion of the attorney

for the Commonwealth, the court may, in open court, order a nolle prosequi

of one or more charges notwithstanding the objection of any person.”).

Appellant’s brief at 1-6.

      The purpose of Rule 585 is to give the defendant notice and an

opportunity to oppose a motion for nolle pros. Commonwealth v. Rega,

856 A.2d 1242, 1247 (Pa.Super. 2004). The        reason   a   defendant     might

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oppose charges against him being withdrawn is that a nolle pros is a

withdrawal of charges without prejudice.     See, e.g., Commonwealth v.

Goldman, 70 A.3d 874, 878 (Pa.Super. 2013) (“A nolle prosequi may be lifted

‘at any time in the future,’ on appropriate motion, to revive the original

charges.”).   Since nolle-prossed counts may be revived in the future, the

following two considerations apply in ruling upon a nolle pros motion: whether

the Commonwealth has a valid and reasonable basis for the request, and

whether the defendant has a valid speedy trial claim. Rega, supra at 1245

(citing Commonwealth v. Reinhart, 353 A.2d 848 (Pa. 1976)).

      Here, the Commonwealth did not file a motion to nolle pros the

conspiracy charge under Rule 585.         Rather, it sought to amend the

information, pursuant to Rule 564, to substitute a delivery count for the

conspiracy count.   See Commonwealth’s Pretrial Motion, 6/9/14, at 5-6.

Appellant had notice of the motion, and opposed the substitution of delivery

for conspiracy in open court. See N.T., 6/16/14, at 17-19. The trial court

granted the motion in open court. Id. at 17. Further, this Court held that the

leave to amend was properly granted.          Vaughn, supra (unpublished

memorandum at 9-10).

      Moreover, the case against Appellant based upon his possession and

sale of heroin in Lackawanna County on February 12-13, 2013 is complete.

Appellant simply does not face revival of the original conspiracy count at a




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later date.3 As such, the record does not support a viable claim based upon

Rule 585, and direct appeal counsel was not ineffective in failing to raise a

Rule 585 claim. Commonwealth v. Koehler, 36 A.3d 121, 144 (Pa. 2012)

(“[C]ounsel cannot be deemed ineffective for failing to pursue a meritless

claim.”). Appellant’s second issue warrants no relief from this Court.

       Appellant’s final argument is that he is serving an illegal sentence.

Specifically, Appellant contends that he was given two sentences for PWID

based upon a single act, in violation of double jeopardy. Appellant’s brief at

8-9.

       Appellant’s claim is factually unsupported.4 It is clear from the record

that it was a charge of delivery, not an instance of PWID, that was substituted

for the conspiracy charge as a result of the Commonwealth’s amendment.


____________________________________________


3 Thus, even if the dismissal of the conspiracy count was a nolle pros in
violation of Rule 585, the issue is moot because Appellant’s judgment of
sentence is final and the Commonwealth never sought to revive that count.

4 Appellant appears to base this line of attack upon this Court’s indication in
the memorandum disposing of his direct appeal that a second PWID count,
rather than a delivery count, was substituted for the conspiracy count when
the information was amended. See N.T. PCRA Hearing, 8/25/17, at 24-31,
36-37. He is correct that this Court misidentified the second count at times
when relaying the facts of the case. See, e.g., Vaughn, supra (unpublished
memorandum at 1) (“Appellant . . . appeals from the judgment of sentence
entered . . . following his conviction by a jury of two counts of possession of
a controlled substance with intent to deliver . . . .”) (unnecessary capitalization
omitted). However, it was clear from this Court’s discussion that the count
added by the grant of the Commonwealth’s motion for leave to amend was for
the actual sale of heroin to the C.I., not the possession of heroin with the
intent to deliver it to someone in the future.              See id. (unpublished
memorandum at 9).

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See Amended Information, 9/17/15, at       1 (listing PWID as count one and

delivery of a controlled substance as count two).     Further, the jury was

instructed on, and found Appellant guilty of delivery.       See N.T. Trial,

10/15/15, at 86-87; Verdict Slip, 10/15/15.

      Based upon the facts indicated by the record, Appellant’s claim lacks

merit.   The Commonwealth’s amendment of the information to add the

delivery count did allege a second violation of the same criminal statute as

the original PWID count, namely 35 P.S. § 780-113(a)(30).         Subsection

(a)(30) prohibits “the manufacture, delivery, or possession with intent to

manufacture or deliver, a controlled substance by a person not registered

under this act. . . .” Id.

      “The crime of possession with the intent to deliver similarly has been

recognized to be a lesser included offense of the crime of delivery of a

controlled substance.”       Commonwealth v. Eicher, 605 A.2d 337, 353

(Pa.Super. 1992).       However, where additional facts demonstrate the

commission of a second crime, the crimes do not merge for sentencing

purposes. The Eicher decision provides an apt illustration of this concept.

      In that case, Eicher was convicted of both delivery and PWID in

connection with 7.1 grams of cocaine sold to an undercover officer on May 17,

1989. Those two convictions merged for sentencing purposes because the

“possession with the intent to deliver and the delivery of the identical

substance arose out of the same transaction and all were premised on the


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same set of facts.” Id. Eicher was also convicted of a second count of PWID

based upon the possession of 74.74 grams of cocaine subsequently found at

Eicher’s residence pursuant to a search warrant. That conviction “arose out

of a completely different set of additional facts which were unrelated to and

which were unnecessary to sustain appellant’s delivery conviction.” Id. Thus,

the PWID conviction based upon the 74.74 grams did not merge with the

conviction for delivery of the initial 7.1 grams to the officer.

      In the instant case, Appellant’s second alleged violation of subsection

(a)(30) was based upon his delivery of three bags of heroin to the C.I. on

February 12, 2013. The original count alleging violation of subsection (a)(30)

related to Appellant’s possession of sixty-two bags of heroin on the following

day when the police executed the warrant obtained as a result of his

interaction with the C.I. Just as in Eicher, Appellant’s conviction for PWID

based upon his possession of sixty-two bags of heroin on February 13, 2013,

arose out of a completely different set of additional facts unnecessary to

sustain his conviction for delivery of three bags of heroin to the C.I. the

previous day. Hence, under Eicher, Appellant’s convictions did not merge for

sentencing purposes and his sentence is not illegal.

      For the reasons stated above, PCRA court properly denied Appellant’s

PCRA petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 09/19/2018




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