Com. v. Crippen, W.

• Court: Superior Court of Pennsylvania
• Decided: September 29, 2020
• Docket: 1205 MDA 2019
• Status: Unpublished

Opinion

J-S28033-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WAYNE O. CRIPPEN : : Appellant : No. 1205 MDA 2019

Appeal from the Judgment of Sentence Entered March 19, 2019 in the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000161-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WAYNE O. CRIPPEN : : Appellant : No. 1206 MDA 2019

Appeal from the Judgment of Sentence Entered March 19, 2019 in the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000411-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WAYNE O. CRIPPEN : : Appellant : No. 1207 MDA 2019

Appeal from the Judgment of Sentence Entered March 19, 2019 in the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000580-2017 J-S28033-20

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WAYNE O. CRIPPEN : : Appellant : No. 1208 MDA 2019

Appeal from the Judgment of Sentence Entered March 19, 2019 in the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000597-2017

BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 29, 2020

Wayne O. Crippen (“Crippen”) appeals from the judgments of sentence

entered following his convictions of one count each of possession of a small

amount of marihuana, possession of drug paraphernalia, and stop signs and

yield signs1 at Lycoming County docket number CR-161-2017 (“161-2017”);

two counts of delivery of a controlled substance, and one count each of

possession of a controlled substance and criminal use of a communication

facility2 at Lycoming County docket number CR-411-2017 (“411-2017”);

three counts each of delivery of a controlled substance, possession of a

controlled substance with intent to deliver, possession of a controlled

substance, possession of drug paraphernalia, and criminal use of a ____________________________________________

1 35 P.S. § 780-113(a)(31)(i), (a)(32); 75 Pa.C.S.A. § 3323(b).

2 35 P.S. § 780-113(a)(16), (a)(16); 18 Pa.C.S.A. § 7512(a).

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communication facility3 at Lycoming County docket number CR-580-2017

(“580-2017”); and one count each of criminal use of a communication

facility, possession of a controlled substance, and endangering the welfare of

children4 at Lycoming County docket number CR-597-2017 (“597-2017”).

We affirm.

In its Opinion, the trial court set forth the factual background of this

appeal, which we adopt as though fully set forth herein. See Trial Court

Opinion (Post-sentence Motions), 6/25/19, at 1-5.

Crippen was subsequently charged with the above-mentioned

offenses. On July 6, 2017, Crippen filed Omnibus Pretrial Motions, including,

in relevant part, a Motion to Suppress certain out-of-court and in-court

identifications of him as the perpetrator of the charges filed against him, and

a Motion to Suppress physical evidence seized during the December 6, 2016,

traffic stop that is the basis of the charges at 161-2017. Following a hearing

and the submission of briefs by the parties, the trial court denied each of the

Motions. On July 16, 2018, the trial court granted a Motion by the

Commonwealth, over Crippen’s objection, to consolidate the four docket

numbers for trial.

____________________________________________

3 35 P.S. § 780-113(a)(30), (a)(16), (a)(32); 18 Pa.C.S.A. § 7512(a).

4 18 Pa.C.S.A. § 7512(a); 35 P.S. § 780-113(a)(16); 18 Pa.C.S.A. § 4304(a).

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Following a jury trial, Crippen was convicted of the above-mentioned

offenses. The trial court deferred sentencing for the preparation of a pre-

sentence investigation report (“PSI”). The trial court subsequently

sentenced Crippen to an aggregate term of 10½ to 21 years in prison, with

credit for time served. Relevantly, at 411-2017, the trial court sentenced

Crippen to 36 to 72 months in prison for his conviction of delivery of a

controlled substance.

Crippen filed timely post-sentence Motions, in which he (1) challenged

the sufficiency and weight of the evidence underlying his conviction of

delivery of a controlled substance, endangering the welfare of children, and

criminal use of a communication facility; (2) contested the trial court’s denial

of his pre-trial Motion to Suppress, Motion to dismiss the seated jury panel,

and Motion for mistrial; and (3) requested modification of his sentence.

Following a hearing and submission of briefs by the parties, the trial court

denied the Motions. On July 19, 2019, Crippen filed timely Notices of

Appeal,5 and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of

matters complained of on appeal.

On appeal, Crippen raises the following questions for our review: ____________________________________________

5 Crippen filed four Notices of Appeal, one at each docket number and each listing only one docket number. Therefore, Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018) (holding that “where a single order resolves issues arising on more than one docket,” an appellant’s failure to file separate notices of appeal for each case will result in quashal of the appeals) is not implicated.

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I. Whether the [trial c]ourt erred in granting the Commonwealth’s [M]otion to [C]onsolidate?

II. Whether the [trial c]ourt erred in denying the [M]otion to [S]uppress in-court and out-of-court identifications of [Crippen]?

III. Whether the [trial c]ourt erred in failing to grant suppression of physical evidence in [161-2017]?

IV. Whether the [trial c]ourt erred in denying [Crippen]’s Motion for Mistrial based on a Brady6 violation?

V. Whether the verdicts of guilty were against the weight of evidence presented at trial?

VI. Whether the sentence was unreasonable and excessive?

VII. Whether a new trial should be granted based on after- discovered evidence?

Brief for Appellant at 5 (footnote added).

In his first claim, Crippen alleges that the trial court erred in granting

the Commonwealth’s Motion to Consolidate the Criminal Informations filed

against him. Brief for Appellant at 14-15. Crippen argues that (1) evidence

of each offense would not have been admissible in a trial of the other

offenses; (2) there was significant danger of confusion by the jury; and (3)

Crippen was prejudiced as a result of the consolidation of the Informations.

Id. Specifically, Crippen claims that the various purported drug transactions

contained substantial differences, such as the phone number used to

arrange the transaction and the vehicle used to meet at the transaction

location, which may have confused the jury. Id. at 14 ____________________________________________

6 See Brady v. Maryland, 373 U.S. 83 (1963).

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In reviewing a trial court decision to consolidate or to sever offenses for trial, our standard is abuse of discretion. Offenses charged in separate informations may be tried together if they are “based on the same act or transaction” or if “the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion.” Pa.R.Crim.P. 582(A)(1). The court has discretion to order separate trials if “it appears that any party may be prejudiced” by consolidating the charges. Pa.R.Crim.P. 583.

Our Supreme Court has established a three[-]part test, incorporating these two rules, for deciding the issue of joinder versus severance of offenses from different informations. The court must determine

whether the evidence of each of the offenses would be admissible in a separate trial for the other; whether such evidence is capable of separation by the jury so as to avoid danger of confusion; and, if the answers to these inquiries are in the affirmative, whether the defendant will be unduly prejudiced by the consolidation of offenses.

Commonwealth v. Thomas, 879 A.2d 246, 260 (Pa. Super. 2005) (some

citations and quotation marks omitted); see also Commonwealth v.

Ferguson, 107 A.3d 206, 210 (Pa. Super. 2015) (stating that “[t]he

prejudice of which Rule [583] speaks is, rather, that which would occur if the

evidence tended to convict [the] appellant only by showing his propensity to

commit crimes, or because the jury was incapable of separating the

evidence or could not avoid cumulating the evidence.”).

Here, the trial court found that the evidence of each trial would have

been admissible at the other; there was no danger of confusion; and Crippen

was not prejudiced by the consolidation of the offenses. See Trial Court

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Opinion (Post-sentence Motions), 6/25/19, at 9-10. We incorporate herein

the trial court’s analysis. See id. Based upon our review, we conclude that

the trial court did not abuse its discretion in denying Crippen’s claim. See

Thomas, supra; Pa.R.Crim.P. 582(A)(1)(a).

In his second claim, Crippen alleges that the trial court erred in

denying his pre-trial Motion to Suppress certain in-court and out-of-court

identifications of him as the perpetrator of the crimes. See Brief for

Appellant at 15-16. Crippen claims that the identification of him by

confidential informant Autumn Day (“CI Day”) was tainted by a suggestive

photographic lineup. Id. According to Crippen, CI Day gave an out-of-court

identification that missed details regarding Crippen’s appearance, and was

then shown a photograph of Crippen in a suggestive lineup. Id. The

photograph was lost prior to trial, but CI Day was permitted to identify

Crippen in court as the perpetrator. Id. at 16. Crippen argues that CI Day’s

out-of-court identification was not distinguishable enough to purge the taint

of the suggestive photo lineup, and CI Day should not have been permitted

to provide an in-court identification. Id.

An appellate court’s standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court’s factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court’s factual findings are supported by the record, the appellate court

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is bound by those findings and may reverse only if the court’s legal conclusions are erroneous. Where the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court’s legal conclusions are not binding on the appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the trial court are subject to plenary review.

Commonwealth v. Wright, 224 A.3d 1104, 1108 (Pa. Super. 2019)

(brackets and ellipses omitted).

To establish reliability in the wake of a suggestive identification, the Commonwealth must prove, through clear and convincing evidence, the existence of an independent basis for the identification. An independent basis is established when the in-court identification resulted from the criminal act and not the suggestive identification procedure. To determine if an identification resulted from the criminal act (and, therefore, has an independent basis), the trial court must consider the following factors:

The opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Commonwealth v. Davis, 17 A.3d 390, 394 (Pa. Super. 2011) (citations,

quotation marks and brackets omitted).

Here, the trial court cogently and thoroughly addressed Crippen’s

claim, and found that CI Day had an independent basis for her in-court

identification that was separate, and sufficiently distinguishable, from the

tainted out-of-court identification. See Trial Court Opinion (Omnibus Pretrial

Motions), 6/20/18, at 5-7. We incorporate herein the trial court’s analysis.

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See id. Based upon our review, we conclude that the trial court did not

abuse its discretion in denying Crippen’s Motion to Suppress CI Day’s

identifications. See Davis, supra.

In his third claim, Crippen alleges that the trial court erred in denying

his Motion to Suppress certain physical evidence discovered by police during

the December 6, 2016, traffic stop. Brief for Appellant at 17-18. Crippen

claims that the police officer who searched Crippen lacked reasonable

suspicion that he was armed and dangerous. Id. at 17. Crippen argues that

the officer’s sole support for the search was information that Crippen was

involved in the drug trade. Id. Crippen further asserts that the officer

should not have seized the marijuana and U.S. currency that was found in

Crippen’s pocket, since neither “was immediately apparent as contraband.”

Id. at 18.

In its Opinion, the trial court summarized the evidence presented at

the suppression hearing, stated the applicable law, and cogently and

thoroughly addressed Crippen’s claims. See Trial Court Opinion (Omnibus

Pretrial Motions), 6/20/18, at 10-13. We agree with the sound reasoning

and determinations of the trial court, as set forth in its Opinion, and

therefore affirm on this basis with regard to Crippen’s third claim. See id.

In his fourth claim, Crippen alleges the trial court erred in not

declaring a mistrial due to a Brady violation. Brief for Appellant at 19-20.

Crippen claims that near the end of the first day of trial, the Commonwealth

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provided him with a page of a police report that had not previously been

provided in discovery. Id. at 19. According to Crippen, the document

contained potentially exculpatory information, including the name of a

person, provided to the police by Crippen, who may have committed the

crimes with which Crippen was charged; and, the phone number used to

arrange the drug-buys that led to Crippen’s arrest. Id. Crippen argues that

this information was potentially exculpatory, potentially affected the

outcome of the trial, and should have resulted in a mistrial. Id. at 20.

In its Opinion, the trial court summarized the evidence contained

within the previously missing page of the police report, stated the applicable

law, cogently and thoroughly addressed Crippen’s claims, and concluded

they lack merit. See Trial Court Opinion (Post-sentence Motions), 6/25/19,

at 11-12. We agree with the sound reasoning and determinations of the trial

court, as set forth in its Opinion, and therefore affirm on this basis with

regard to Crippen’s claim. See id.

In his fifth claim, Crippen alleges that the verdict was against the

weight of the evidence. Brief for Appellant at 21-22. Crippen claims that

the Commonwealth’s case heavily relied on the incredible testimony of the

confidential informants. Id. Specifically, Crippen states that both

confidential informants provided inaccurate identifications of Crippen. Id.

Accordingly, Crippen argues, the jury’s verdict shocks the conscience, and a

new trial should be ordered. Id. at 22.

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The law pertaining to weight of the evidence claims is well- settled. The weight of the evidence is a matter exclusively for the finder of fact, who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. A new trial is not warranted because of a mere conflict in the testimony and must have a stronger foundation than a reassessment of the credibility of witnesses. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.

On appeal, our purview is extremely limited and is confined to whether the trial court abused its discretion in finding that the jury verdict did not shock its conscience. Thus, appellate review of a weight claim consists of a review of the trial court’s exercise of discretion, not a review of the underlying question of whether the verdict is against the weight of the evidence.

Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015)

(quotation marks and citations omitted).

Here, the jury was free to assess the credibility of the

Commonwealth’s witnesses in rendering the verdict. See Gonzalez, supra.

Based on the record, the jury’s decision is supported by the evidence, and

does not shock one’s sense of justice. See Commonwealth v. Gibbs, 981

A.2d 274, 282 (Pa. Super. 2009) (stating that “[w]hen the challenge to the

weight of the evidence is predicated on the credibility of trial testimony, our

review of the trial court’s decision is extremely limited. Generally, unless

the evidence is so unreliable and/or contradictory as to make any verdict

based thereon pure conjecture, these types of claims are not cognizable on

appellate review.”). Thus, the trial court did not abuse its discretion in

denying Crippen’s weight of the evidence claim.

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In his sixth claim, Crippen alleges that the trial court abused its

discretion in sentencing him in the high end of the aggravated range on his

conviction for delivery of a controlled substance at 411-2017. Brief for

Appellant at 23-24. This claim challenges the discretionary aspects of

Crippen’s sentence.

“An appeal raising the discretionary aspects of sentencing is not

guaranteed as of right; rather, it is considered a petition for permission to

appeal.” Commonwealth v. Mulkin, 228 A.3d 913, 916 (Pa. Super. 2020).

Prior to reaching the merits of a discretionary sentencing issue,

[w]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see [Pa.R.Crim.P. 720]; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Grays, 167 A.3d 793, 815-16 (Pa. Super. 2017).

(citation omitted).

Crippen filed a timely Notice of Appeal, preserved his challenge in a

post-sentence Motion, and included a Rule 2119(f) Statement within his

brief. Further, Crippen’s claim that the sentencing court relied on

impermissible factors when it sentenced him in the aggravated range raises

a substantial question. See Commonwealth v. Shugars, 895 A.2d 1270,

1274 (2006) (stating that a claim that the sentencing court “consider[ed]

factors already included within the sentencing guidelines as the sole reason

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for increasing or decreasing a sentence to the aggravated or mitigated

range” raises a substantial question). Thus, we will review Crippen’s claim.

Our standard of review is as follows:

Sentencing is vested in the discretion of the trial court, and will not be disturbed absent a manifest abuse of that discretion. An abuse of discretion involves a sentence which was manifestly unreasonable, or which resulted from partiality, prejudice, bias, or ill will. It is more than just an error in judgment.

Commonwealth v. Downing, 990 A.2d 788, 792-93 (Pa. Super. 2010)

When imposing a sentence, a court is required to consider the particular circumstances of the offense and the character of the defendant. In considering these factors, the court should refer to the defendant’s prior criminal record, age, personal characteristics and potential for rehabilitation. It must be demonstrated that the court considered the statutory factors enunciated for determination of sentencing alternatives, and the sentencing guidelines. Additionally, the court must impose a sentence which is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and the community, and the rehabilitative needs of the defendant.

Commonwealth v. McClendon, 589 A.2d 706, 712 (Pa. Super. 1991)

(internal citations and quotation marks omitted). Moreover, “where the trial

court is informed by a pre-sentence report, it is presumed that the court is

aware of all appropriate sentencing factors and considerations, and that

where the court has been so informed, its discretion should not be

disturbed.” Downing, 990 A.2d at 794 (quotation marks and citations

omitted).

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Here, the record reflects that the trial court considered the particular

circumstances of the offense (including the fact that the substance Crippen

had been convicted of delivering contained fentanyl), Crippen’s prior criminal

record, education, family background, work history, and potential for

rehabilitation, as well as Crippen’s statement at sentencing, and his general

character. See N.T., 3/19/19, at 2-6, 14-16. Further, the trial court

considered the Sentencing Guidelines, Crippen’s prior record score and

rehabilitative needs, the seriousness of his crimes, and the need to protect

the public. Id. Thus, the trial court properly considered all the statutory

factors before sentencing Crippen. See McClendon, supra.

Moreover, because the trial court had the benefit of a pre-sentence

investigation report (“PSI”), which the trial judge expressly stated that he

had reviewed, see N.T., 3/19/19, at 3, it is presumed that the court was

aware of relevant information regarding Crippen’s character, and weighed

those considerations along with any mitigating factors. See Downing, 990

A.2d at 794; see also Commonwealth v. Ventura, 975 A.2d 1128, 1135

(Pa. Super. 2009) (stating that “[t]he sentencing judge can satisfy the

requirement that reasons for imposing sentence be placed on the record by

indicating that he or she has been informed by the [PSI]; thus properly

considering and weighing all relevant factors.”) (citation omitted).

Accordingly, we conclude that the trial court’s sentence was not improperly

excessive, and Crippen’s discretionary sentencing challenge fails.

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In his seventh claim, Crippen alleges that he should be granted a new

trial because he has discovered new evidence that proves someone else

committed the crimes of which he was convicted. Brief for Appellant at 24-

27. According to Crippen, the missing police report page, which the

Commonwealth disclosed during trial, indicated that a third-party, Nadi

Hatchett (“Hatchett”), was identified by police as being associated with the

phone number used in the drug transactions at issue. Id. at 24. Crippen

states that after trial, he used this information to discover that (1) the

vehicle used during the transactions in question was insured by and titled to

Hatchett; (2) Hatchett has a similar facial appearance and age as Crippen;

and (3) the vehicle used in the December 2, 2016, transaction was rented

by a friend of Hatchett.7 Crippen argues that this evidence was unavailable

at the time of trial, and is potentially exculpatory. Id. at 25-26.

Pennsylvania Rule of Criminal Procedure 720(C) states that “[a] post-

sentence motion for a new trial on the ground of after-discovered evidence

must be filed in writing promptly after such discovery.” Pa.R.Crim.P.

720(C); see also id., Note (stating after-discovered evidence discovered

during the direct appeal process must be raised promptly during the direct

appeal process….”).

7 Crippen also claims that he “had a front tooth extracted, evidenced by dental records.” Brief for Appellant at 25. However, it is unclear how this constitutes newly-discovered evidence.

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To warrant relief, after-discovered evidence must meet a four-prong test: (1) the evidence could not have been obtained before the conclusion of the trial by reasonable diligence; (2) the evidence is not merely corroborative or cumulative; (3) the evidence will not be used solely for purposes of impeachment; and (4) the evidence is of such a nature and character that a different outcome is likely.

Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa. Super. 2007).

Here, by his own admission, Crippen was the individual who had

advised police that Hatchett was associated with the phone number in

question. See Brief for Appellant at 19 (wherein Crippen states that the

missing police report page “indicated that the defendant had reported the

name of a different individual who may have been the perpetrator of these

drug transactions”) (emphasis added); see also “Post Sentence Motion

Claim of After-Discovered Evidence”, 1/16/20, at Exhibit I (wherein the

missing police report page indicates that Crippen had advised police, “[t]he

owner of the [cell phone number in question] is similar looking to him.

[Crippen] identified the owner of that cell phone number as [Hatchett].”

Thus, the record reflects that Crippen possessed this evidence prior to trial.

See Rivera, supra. Accordingly, Crippen’s claim lacks merit, and we deny

Crippen relief.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 09/29/2020

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IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA CR-161-2017 CR-411-2017 CR-580-2017 CR-597-2017 v.

WAYNE CRIPPEN, POST SENTENCE Mf?Ti Defendant

OPINION AND ORDER

Wayne Crippen (Defendant), through Counsel, filed a Post -Sentence Motion Pursuant

to Pa. R. Crim. P. 720 on March 29, 2019. A hearing on the Motion was held on June 6, 2019.

In his Motion, Defendant raised the following issues: The evidence was insufficient to sustain

the verdict; The verdict was against the weight of the evidence; This Court erred when it

denied Defendant's Omnibus Pretrial Motion;' This Court erred when it granted the

Commonwealth's Motion to Consolidate; This Court erred in denying Defendant's pre-trial

motion to dismiss the seated jury panel; This Court erred when it denied Defendant's motion

for a mistrial for an alleged Brady violation: and his sentence was unreasonable and excessive.

For the following reasons Defendant's Motion is denied.

Background

On February 1, 2019, Defendant was convicted on the above docket numbers of four

counts of Delivery of a Controlled Substance,`' four counts of Possession of a Controlled

Substance with the Intent to Delivery four counts of Criminal Use of a Communication

I This Court relies on its Opinion and Order dated June 20, 2018, which previously Denied Defendant's Omnibus Pretrial Motion, in denying this portion of Defendant's Post -Sentence Motion. 2 35 P.S. § 780-113(a)(30).

3 35 P.S. § 780-i 13(a)(30). Facility,` four counts of Possession of a Controlled Substances one count of Endangering the

Welfare of Children,6 one count of Possession of a Small Amount of Marijuana, and four

counts of Possession of Drug Paraphernalia.8 Detective Cassandra McCormack (McCormack)

of the Lycoming County District Attorney's Office Narcotics Enforcement Unit (NEU).

Autumn Day (Day), Officer Matthew Keller (Keller) of the NEU, Former Detective James

Capello (Capello) of the NEU, Officer Jeremy Brown (Brown) of the NEU, Agent Justin

Snyder (Snyder) of the Williamsport Bureau of Police (WBP), Trooper Edward Dammer

(Dammer) of the Pennsylvania State Police (PSP), Kelly Miller (Miller), and Corporal Tyler

Morse (Morse) of the PSP testified on behalf of the Commonwealth, while no testimony was

provided by Defendant. That testimony and the evidence presented at trial established the

following.

On November 16, 2016, McCormack was working with confidential informant (CI).

Day. and conducted a strip search of her person, searched anything she brought with her, and

her vehicle before setting up any controlled buys or giving Day any prerecorded buy money.

This process occurred on November 16, 2016, December 6. 2016, and January 4. 2017. Day

had a number, (570) 980-3497, she associated with an individual named "Mikey," whom she

had bought from heroin from on approximately twelve prior occasions. Day identified

-Mikey- as Defendant at the trial. On November 16, 2016 Day called Defendant, who she

knew as -Mikey,- to buy $100 worth of heroin. Day then met Defendant, got in the back of his

white four-door car, exchanged the money for the suspected heroin, and got out of the vehicle.

18 Pa. C.S. § 7512(a). 35 P.S. § 780-113(a)(16). 6 18 Pa. C.S. § 4304( a)(1). 7 35 P.S. § 780-113(a)(31)(i). 8 35 P.S. § 780-113(a)(32). Upon returning to a predetermined location, Day gave Capello eleven bags of suspected heroin

stamped "First 48." The eleven bags actually contained a mixture of cocaine and fentanyl. On

December 6, 2016 Day again called (570) 980-3497_ but received no answer. Day then called

(267) 778-8088, which she associated with an individual named "Wiz." Day stated that

"Mikey" answered the phone and they had made an arrangement to purchase $100 worth of

heroin. Day meet Defendant, who was driving a tan colored SUV, and they conducted a driver

side to driver side transaction of the prerecorded $100 for the suspected heroin. Upon returning

to a predetermined location, Day gave Capello eleven bags of suspected heroin stamped with a

blue lightbulb. The eleven bags contained a mixture of heroin and fentanyl. On January 4,

2017, Day set up another controlled buy by contacting Defendant through his (570) 980-3497

number. This time they agreed to buy a "bun" or ten bags for $90. Day later contacted

Defendant, who had not yet arrived, and asked for $100 worth of heroin instead. Defendant

gave her a different location and Defendant met her in a blue Honda. Day got in the back

passenger side of the vehicle and exchanged the money for heroin. Upon returning to a

predetermined location, Day gave Capello twelve bags of heroin stamped "SRT 8.- The twelve

bags contained heroin.

At the time of the controlled buys Day only knew Defendant as "Mikey" and on

November 16. 2016 described him as a black male with a medium build, facial hair and

glasses. Keller, Capello, Brown and Snyder all testified regarding their surveillance and

involvement during the controlled buys. They testified to a similar account of events. They -

also explained during surveillance that no one individual had a visual of Day the entire time

and that it is difficult to video and photograph transactions without drawing attention during

surveillance. Following the controlled by that occurred on December 6, 2016, Snyder contacted

Dammer to conducted a vehicle stop of the tan SUV and to get a proper identification of

Defendant. Dammer conducted a stop after the SUV rolled through a stop sign. At that time,

Dammer contacted Snyder to let him know he smelled marijuana and whether he wanted him

with a search to proceed or not. Defendant was then searched and found to have marijuana in

his pocket and the prerecorded money from that day's controlled buy with Day. There was

nothing else in the vehicle. Dammer had both Snyder and the Montoursville Police

Department call (267) 778-8088 that was used in the controlled buy with Day. Both times the

cellphone taken off Defendant began to ring. An issue was raised at trial based on the motion

video recording (MVR) from that day. It appeared the individual stopped was missing a tooth,

but Dammer explained the individual he stopped that day was not missing any teeth, that

Defendant was the person he stopped that day, and it is most likely pixilation from the MVR

causing the black gap.

The last two individuals to testify for the Commonwealth were Miller and Morse

regarding a separate controlled buy that occurred on December 5, 2016. On that date. Miller

met with Morse to conduct a controlled buy. Miller contacted an individual in his phone

known as -D Boy Car Nick- whom he has purchased heroin from approximately a dozen times

in the past. The number for "D Boy Car Nick' was the same (570) 980-3497 number Day used

to make controlled buys on November 16, 2016 and January 4, 2017. Miller asked for a

"brick- or fifty bags of heroin for $400. Morse and Miller rode together to meet "D Boy Car

Nick- to purchase the heroin. Morse gave Miller $400 of prerecorded currency. A vehicle went

by them and honked its horn indicating they should follow. When it stopped Miller got out of

the car and into the back seat of the other vehicle and exchanged the money for the suspected

4 heroin. Miller stated when he got in the vehicle a child of about five or six was sitting in the

back next to him, unrestrained on top of a pile of money. Back at the station Morse looked

over the suspected heroin and found there were forty-six bags, each stamped with either a red

or blue lightbulb. The forty-six bags contained a mixture of heroin and fentanyl. Miller

described "D Boy Car Nick- as a light skinned black male that was stalky with a beard and

glasses. On January 4, 2017 Morse spoke with Snyder and Brown about their ongoing

investigation and had them provide him with a photo of Defendant. On January 5, 2017 Miller

was shown a photo array, which he could not positively identify "D Boy Car Nick- and asked

if he could see pictures of individuals with glasses. Miller than went through a second photo

array of individuals with glasses and positively identified Defendant as the individual that sold

him the suspected heroin on December 5, 2016. Miller also identified Defendant as the

individual he knew as "D Boy Car Nick- who sold him the suspected heroin on December 6.

2016 at trial.

iscussion Whether the Evidence was Insufficient to Sustain a Conviction

Defendant asserts the Commonwealth's evidence presented at trial was insufficient to

justify a verdict of guilty and therefore requests either Judgment of Acquittal, relief in Arrest

of Judgment or a New Trial. When evaluating the sufficiency of the evidence a Court "must

determine whether the evidence admitted at trial. and all reasonable inferences drawn

therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner,

support the conviction beyond a reasonable doubt." Commonwealth v. Brown, 52 A.3d 320,

323 (Pa. Super. 2012). All reasonable inferences are drawn in favor of the verdict winner.

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013). "[Title evidence established at

5 trial need not preclude every possibility of innocence and the fact -finder is free to believe all,

part, or none of the evidence presented.- Brown, 52 A.2d at 323.

An individual commits the crime of Delivery of a Controlled Substance if the person

transfers from one person to another a drug, substance, or immediate precursor, which under

the Controlled Substance, Drug, Device and Cosmetic Act includes cocaine, heroin, and

fentanyl. 35 P.S. §§ 780-102(b), 780-104(1)(ii)(10). (1)(ii)(23). (2)(i)(4), 780-113(a)(30).

Testimony provided by Day established that on November 16, 2017, December 6, 2016, and

January 4, 2017 Defendant sold her what she believed to be heroin. That on those days she

either got in his vehicle or through a driver side window to driver side window exchanged

prerecorded funds for suspected heroin. Lab reports submitted at trial established that the

baggies contained cocaine and heroin, heroin and fentanyl, and heroin. Similarly, Miller

testified that Defendant, on December 5, 2016, exchanged a "brick- of suspected heroin for

prerecorded currency. Lab reports submitted at trial showed the substance in those baggies was

heroin and fentanyl. Therefore evidence was submitted for the jury to find Defendant guilty on

every element of Delivery of a Controlled Substance.9

An individual commits the crime of Criminal Use of a Communication Facility if the

person uses "a communication facility to commit, cause or facilitate the commission or the

attempt thereof of any crime which constitutes a felony under this title or . . The Controlled

Substance. Drug. Device and Cosmetic Act. Every instance where the communication facility

is utilized constitutes a separate offense under this section." 18 Pa. C.S. § 7512(a). Day

9 This also means enough evidence was submitted to establish the underlying crimes of Possession of a Controlled Substance with the Intent to Deliver and Possession of a Controlled Substance, as the charges merge. Summarily Possession of Drug Paraphernalia is also satisfied by the packaging of the controlled substances alone although the two crimes do not merge for sentencing. See Commonwealth v. Pitner, 928 A.2d 1104, 1111 (Pa. Super. 2007).

6 testified that she spoke on the phone with who she knew as "Mikey," then -Mikey" is the

individual that sold her the drugs on all three occasions, and she identified Defendant as

"Mikey.- Similarly Miller testified that he spoke on the phone with -D Boy Car Nick," then

"D Boy Car Nick" is the person who sold him the drugs, and he identified Defendant as "D

Boy Car Nick.'" Therefore the four convictions of Criminal Use of a Communication Facility

are supported by the evidence submitted at trial.

Endangering the Welfare of a Child occurs when an individual knowingly violates a

duty of care. protection. or support and the parent is the person supervising the welfare of the

child and the child is under the age of eighteen. 18 Pa. C.S. 4304(a). Miller testified that a

young child was sitting in the back seat of the vehicle, where he got in, was sitting on a pile of

money. Defendant was conducting hand to hand drug transactions right in front of/over the

head of the child. The evidence was sufficient from Miller's description to establish the child

was under eighteen and Defendant, who was the driver of the vehicle, was supervising the

child. The evidence was also sufficient for a jury to conclude that Defendant was knowingly

endangering the child by having them sit on the back seat on a pile of cash, not properly

restrained, having individuals looking to buy narcotics get in the back seat right next to the

child, and then to be selling fentanyl laced heroin right in front of/over the head of the child.

Therefore there was sufficient evidence presented at trial for a jury to convict Defendant of

Endangering the Welfare of a Child.1°

Lastly, Defendant disputes his charges of Possession of a Small Amount of Marijuana.

and Possession of Drug Paraphernalia, from the traffic stop that occurred on December 6.

'° Jury's attentiveness is demonstrated in the verdict. They found Defendant guilty of Endangering the Welfare of Children, but not the aggravator of a child under six, because the only evidence was provided was Miller's description that the child was about five or six.

7 2016. Dammer testified that after stopping his vehicle and searching Defendant's person on

that date he located a small amount of marijuana in a Ziploc bag in his pocket. Therefore there

is sufficient evidence to establish Defendant possessed a small amount of marijuana and

paraphernalia, the Ziploc bag.

Defendant raises a last issue under this subsection, stating that the Commonwealth did

not provide required discovery including preliminary transcripts. Defense counsel never raised

the issue that discovery was lacking until this Motion. Additionally, this Court would note that

the preliminary hearing transcripts were attached as Exhibits E and G in the Commonwealth"s

Response to Defendant's Post Suppression Hearing Brief, which was available to Defendant.

Therefore Defendant's contention has no merit.

Whether the Verdict was Against the Weight of the Evidence

Defendant contends that the verdict reached by the jury was against the weight of the

evidence provided at trial. More specifically, Defendant argues both Day and Miller failed to

testify credibly and mistakenly identified Defendant. "[T]he trier of fact while passing upon

the credibility of witnesses and the weight of the evidence produced, is free to believe all, part

or none of the evidence." Commonwealth v. Knox, 50 A.3d 749. 754 (Pa. Super. 2012). This

finding rest exclusively with the jury as the trier of fact. Commonwealth v. Rice, 902 A.2d 542,

546 (Pa. Super. 2006).

The weight given to trial evidence is a choice for the factfinder. If the factfinder returns a guilty verdict, and if a criminal defendant then files a motion for a new trial on the basis that the verdict was against the weight of the evidence, a trial court is not to grant relief unless the verdict is so contrary to the evidence as to shock one's sense of justice.

Commonwealth v. West, 937 A.2d 516, 521 (Pa. Super. 2007).

On cross examination Defense Counsel elicited from Day that she was doing this

8 because she had pending charges, she was a past heroin user, she was expecting consideration

in exchange for her testimony, and she was acting as a CI for police with other potential cases.

Defense counsel also brought up that she could not recall the locations of the controlled buys

in past testimony and she described Defendant differently in past testimony. Defense counsel

during cross examination of Miller elicited similar evidence. Miller had pending charges, was

a past heroin user, had conducted multiple controlled buys for Morse. and he was expecting

leniency in exchange for his testimony against Defendant. Additionally, Defense counsel

pointed out on cross examination how Miller had difficulty providing the color of the car in his

past testimony and describing Defendant on prior occasions. Defense counsel on cross

examination revealed enough evidence for the jury to make a proper determination on whether

Day and Miller were fabricating their testimony in exchange for consideration and/or whether

they in fact viewed Defendant or someone else at the time of the controlled buys. The trier of

fact was provided enough information to believe all, part, or none of the testimony provided by

Day and Miller and chose in their sole discretion to believe their testimony. The jury's

determination does not shock one's sense of justice to the extent this Court will overturn their

determination. Therefore the Court finds Defendant's claim that the verdict was against the

weight of the evidence is meritless.

Whether This Court Erred in Granting the Commonwealth's Motion to Consolidate

Defendant next contends this Court erred by granting Commonwealth's Motion to

Consolidate the above informations. Offenses may be tried together if: "the evidence of each

of the offenses would be admissible in a separate trial for the other and is capable of separation

by the jury so that there is no danger of confusion; or the offenses charged are based on the

same act or transaction.- Pa. R. Crim. P. 582(01). After making that evaluation a "court must

9 also consider whether consolidation would unduly prejudice the defendant" Commonwealth v.

Knoble, 188 A.3d 1199, 1205 (Pa. Super. 2018). The Commonwealth typically may not

present evidence that a defendant committed a crime for the purposes of proving they

committed another crime as well, but exceptions exists when the evidence of "the other crimes

tend to prove: motive; intent; absence of mistake or accident; a common scheme, plan, or

design embracing the commission of two or more crimes so related that proof of one tends to

prove the others; or the identity of the person committing the charged crime." Commonwealth

v. Taylor, 445 A.2d 174, 177 (Pa. Super. 1982).

The informations were properly consolidated. Mistake of identity was a large portion

of Defendant's defense. The evidence could be submitted to show this is not a mistake of

identity through a common scheme, plan or design. Both Day and Miller identified Defendant

as the individual that sold them suspected heroin. The two CIs both testified that they both

contacted Defendant on the phone using (570) 980-3497, that they received the suspected

heroin in bags stamped the same way just a day apart, and the manner in meeting Defendant

was similar. Additionally, the stop conducted by Dammer was to retrieve identification of the

individual who just sold suspected heroin to Day and during that stop officers verified (267)

778-8088 as the number of the phone on Defendant, which was the number used to set up the

controlled buy on that day. The informations would have been admissible at separate trials,

there was no danger of jury confusion or failure to separate the charges, and Defendant was

not unduly prejudiced by the informations consolidation.

Whether This Court Erred in Denying Defendant's Motion for New Jury Panel

Defendant orally raised an objection to the jury array on the record following jury

selection and January 16, 2019, and filed a Motion to that effect on January 28, 2019.

10 Defendant contends that this Court erred in not granting his Motion for New Jury Panel.

Unless opportunity did not exist prior thereto, a challenge to the array shall be made not later than 5 days before the first day of the week the case is listed for trial of criminal cases for which the jurors have been summoned and not thereafter, and shall be in writing, specifying the facts constituting the ground for the challenge.

Pa. R. Crim. P. 625(13)(1).

When a defendant fails to raise a timely objection to a jury array that defendant "has waived

any objection he may have had.- Commonwealth v. Jackson, 486 A.2d 431, 436 (Pa. Super.

1984). Courts have found that an objection is not timely if it is not brought within the proper

time period prior to jury selection. See id. (untimely when "several prospective jurors had

already been questioned-): Commonwealth v. Brown, 578 A.2d 461, 467 (Pa. Super. 1990)

(untimely when raised on the third day of jury selection). Defendant raised his objection at the

conclusion of jury selection and it was therefore untimely and deemed waived.

Whether This Court Erred by Denying Defendant's Motion for a Mistrial

Defendant next argues the Court erred in denying his request for a mistrial at the

beginning of the second day of the trial. Defendant did so after the Commonwealth supplied

them with a page of a police report from Morse that morning. The Commonwealth explained

that they were also unaware of the report until Morse provided it to them that morning. The

relevant portion from the report at issue reads as follows:

During the preliminary arraignment on 03/01/17, [Defendant] was very adamant that he was not the person that had delivered to my CI. After the preliminary hearing, I told him he was in the vehicle and he said that he was not. I told him Emily rented the car for him and he said that he did not know Emily. I showed him a picture of her and he abruptly stated that that was his "'brother's baby mama.- We then went into the holding room at MDJ Fry's office. He continued talking that he did not sell drugs to the Cl. He stated that he has never sold "dope- but he has sold marijuana. I stopped him and read him his Miranda Warnings at 1015 hours. He acknowledged his rights and stated he would talk to me. [Defendant] stated that he does know cell phone number 570- 980-3497. He stated that he never met the CI and the CI was wrong. The owner of the cell phone is similar looking to him. He identified the owner of that cell phone number as Nadi HACHETT He stated he would not testify in court .

to that information and wanted it "off the record."

Defendant claims that the above information was crucial in his defense of mistaken identity

and the Commonwealth by not providing it prior to trial committed a Brady violation.

Defendant's claim is meritless. The key issue Defendant alleges would have helped his

case is the identity of this third individual "Nadi Haehett.- "There is no Brady violation when

[a defendant] knew or, with reasonable diligence, could have uncovered the evidence in

question, or when the evidence was available to the defense from non -governmental sources."

Commonwealth v. Paddy. 15 A.3d 431, 451 (Pa. 2011). The information at issue was proffered

by Defendant himself and then put into the police report. Therefore the evidence was clearly

available to Defendant as he is the individual who originally presented the name to police.

Defendant's Post -Sentence Motion is denied for that reason.

Whether the Court's Sentence was Unreasonable and Excessive

Defendant was sentenced on March 19, 2019. Defendant received an aggregate

sentence of ten and a half years to twenty-one years in state prison. Defendant was determined

to have a prior record score (PRS) of five. See 204 N.T. 3/19:19, at 8-9. Under CR 411-2017

for the delivery of 1.42 grams of heroin and fentanyl Defendant was sentenced to thirty-six to

seventy-two months. Delivery of heroin and fentanyl over one gram is an ungraded felony,

which carries an offense gravity score (OGS) of seven. 204 Pa. Code § 303.15.'' Based on

Defendant's OGS and PRS of five the standard range is twenty-four to thirty months with an

aggravated and mitigated range of plus or minus six months. 204 Pa. Code § 303.16(a). Under

11 Defendant committed offenses prior to the enactment of current offense gravity score section. and therefore Defendant is not affected by the enhancement for fentanyl laced controlled substances. CR 580-2017 for the delivery of .55 grams of cocaine and fentanyl, .47 grams of heroin and

fentanyl, and .2 grams of heroin, Defendant was sentenced to twenty-four to forty-eight

months on each count. All three deliveries are an ungraded felonies, which carry an offense

gravity score (OGS) of six. 204 Pa. Code § 303.15. Based on Defendant's OGS and PRS of

five the standard range for each count is twenty-one to twenty-seven months with an

aggravated and mitigated range of plus or minus six months. 204 Pa. Code § 303.16(a). Under

CR 597-2017 for Endangering the Welfare of a Child. Defendant was sentenced to eighteen to

thirty-six months. Endangering the Welfare of a Child is a misdemeanor of the first degree.

which carries an offense gravity score (OGS) of five, 204 Pa. Code § 303.15. Based on

Defendant's OGS and PRS of five the standard range is twelve to eighteen months with an

aggravated and mitigated range of plus or minus three months. 204 Pa. Code § 303.16(a). All

above counts were ordered to run consecutive to one another. 12

-All numbers in sentence recommendations suggest months of minimum

confinement.- 204 Pa. Code § 303.9(e). Sentencing has been found to be within the sound

discretion of the trial court judge. Commonwealth v. Allen, 24 A.3d 1058. 1065 (Pa. Super.

2011). The Court had the benefit of a presentence investigation report prior to sentencing and

considered all relevant factors in fashioning its sentence. With the exception of Defendant's

sentence under CR 411-2017, his minimum sentences are within his recommended standard

range. Therefore those sentences are not unreasonable and/or excessive. See Commonwealth v.

Raven, 97 A.3d 1244, 1254-55 (Pa. Super. 2014) (sentencing a defendant within the standard

range after considering all evidence at sentencing is not unreasonable or excessive). As for

C2 Remainder of Defendant's charges either were ordered to run concurrent to one another, merged for purposes of sentencing, or Defendant was given a fine, which does not affect the aggregate sentence and therefore is not at issue.

13 Defendant's sentence under CR 411-2017, this Court sentenced Defendant to a minimum of

thirty-six months, the permissible aggravated minimum range. "A sentencing court may

consider any legal factor in determining that a sentence in the aggravated range should be

imposed"' and must demonstrate that reason on the record. Commonwealth v. Bowen, 975 A.2d

1120, 1122 (Pa. Super. 2009). This Court on the record stated the reason for its aggravated

sentence. Defendant has refused to be accountable and take responsibility for his actions. N.T.

3'19/19, at 14-15. Defendant has continued this pattern of drug dealing for approximately

twenty years. Id. at 15. Lastly, the Court considered the fact that the heroin delivered was laced

with fentanyl, which although his offenses occurred prior to the enhanced offense gravity

scores, this Court still took into consideration in reaching its conclusion on an appropriate

sentence. Id.

Defendant also challenges this Court's imposition of his sentence consecutively, as

opposed to concurrently. It is well established it is within the sound discretion of the

sentencing court v,hether to make sentences consecutive or concurrent under 42 Pa. C.S. §

9721(a). Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa. Super. 2006). The Court agrees

with the Commonwealth's position that if it were to make Defendant's sentences concurrent it

would diminish the seriousness of each offense.

ORDER

AND NOW, this 25th day of June, 2019, based on the foregoing opinion, Defendant's

Motion for Post Sentence Relief is hereby DENIED.

Pursuant to Pennsylvania Rule of Criminal Procedure 720(B)(4), Defendant is hereby

notified of the following: (a) the right to appeal this Order within thirty (30) days of the date of

entry: (b) the right to assistance of counsel in the preparation of the appeal: (c) if indigent, the

14 right to appeal in ihrma pattperis and to proceed with assigned counsel as provided in

Pennsylvania Rule of Criminal Procedure 122; and (d) the qualified right to bail under

Pennsylvania Rule of Criminal Procedure 521(B).

BY THE COURT.

cc: Ryan Gardner, Esq. DA (NI) NLB/kp Circulated 08/31/2020 11:06 M

IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA CR-580-17 :.7, ,: t.... C) sZD . r-

V. CR-411-17 ,:-" :::, ..,. 17: ="r-7:

CR-597-17 /8- rn WAYNE CRIPPEN CR-161-17."-. .,,f5 Ff. cD G7

Omnibus Prablal.,MOttons c> C) c.

=-7./ ".,71 .< CI -77 OPINION AND ORDER %.". -< Un On July 6, 2017, Defendant, Wayne Crippen, filed an Omnibus Pretrial Motion.

Defendant is seeking to suppress out -of-court and in -court identifications of him

made by two confidential informants. Additionally, Defendant is seeking to suppress

physical evidence seized by Pennsylvania State Police Trooper Edward Demmer.

Finally, Defendant challenges the determination of prima facie on the charge

Endangering the Welfare of Children. Hearings on the motions were held on October

27, 2017 and March 9, 2018. The parties requested the opportunity to brief the

issues with the last brief due May 28, 2018.

At Docket CR-580-17, Defendant is charged with six counts of Possession of

a Controlled Substance with Intent to Deliver: three counts of Criminal Use of a

Communication Facility,2 and three counts of Possession of a Controlled Substance3

and Possession of Drug Paraphernalia.` These charges arise out of the Lycoming

County Narcotic Enforcement Unit's use of a confidential informant to make

controlled purchases of heroin from Defendant on November 16, 2016, December 6,

2016, and January 4, 2017.

135 P.S. §780-113(a)(30) 2 18 Pa. C.S.A. § 7512

3 35 P.S. § 780-113(a)(16)

4 35 P.S. § 780-1131a)(32)

1 At Dockets CR-411-2017 and CR-597-2017, Defendant is charged with one

count of Delivery of a Controlled Substance, Heroin5, one count of Possession with

Intent to Deliver, Heroin, one count of Criminal use of a Communication Facility, one

count of Possession of a Controlled Substance, and one count of Endangering the

Welfare of Children6. These charges arise out of the Pennsylvania State Police's use

of a confidential informant to make a controlled purchase of heroin from Defendant

on December 5, 2016.

At Docket CR-161-2017, Defendant is charged with one count of Possession

of a Small Amount of Marijuana,' one count of Possession of Drug Paraphernalia,

and one summary offense, Duties at Stop Sign.8 These charges arise out of a traffic

stop conducted by the Pennsylvania State Police on December 6, 2016.

Findings of Fact

In November of 2016, Lycoming County Narcotics Enforcement Unit (NEU)

Detective James Capello (Capello) began conducting an investigation of an

individual who had sold drugs to a confidential informant working with the NEU. The

confidential informant, Autumn Day (Day), told Capello that the individual went by the

name "Mikey" and described him as being approximately 5'9" with glasses, a short

beard, and short hair. Day also stated that Mikey conducted business through the

phone number 570-980-3497. Capello utilized Day to conduct three controlled

purchases of heroin for the NEU on November 16, 2016, December 6, 2016, and

5 35 P.S. §780-113(a)(30) 6 18 Pa. C.S.A. § 4304 35 P.S. § 780-113(a)(31) 875 Pa.C.S.A. § 3323 (b)

2 January 4, 2017. On each occasion, Day used her cellular phone to contact Mikey in

order to set up a purchase of heroin. Prior to each controlled buy, Capello searched

Day and her vehicle; Day was then provided with pre-recorded police funds to

conduct the controlled purchases. During each controlled buy, surveillance was

maintained over Day and Capello was in contact with those conducting surveillance.

After the controlled purchases, Day returned to Capello and handed in the

purchases; in each case the controlled substance was field-tested positive for heroin.

On December 6, 2016, Williamsport Bureau of Police Officer Justin Snyder

(Snyder), who was acting in an undercover capacity with the NEU, assisted Capello

and other officers in maintaining surveillance of Day and Mikey. After the controlled

purchase, Snyder enlisted the assistance of Pennsylvania State Police Trooper

Edward Dammer (Dammer) in order to determine Mikey's true identity, providing

Dammer with the information regarding the controlled purchase which had just taken

place. Dammer monitored Mikey's vehicle and observed him violate the motor

vehicle code, Title 75 Pa.C.S.A. § 3323(b), by not stopping his vehicle until he had

driven over a crosswalk after a stop sign. Dammer subsequently conducted a traffic

stop on Mikey's vehicle. As a result, Mikey's identity was determined to be the

Defendant.

During the stop, Dammer smelled marijuana in the vehicle. Dammer asked the

Defendant to step out of the vehicle; Defendant had a passenger who remained in

the vehicle. Defendant did so and stated that he did not have anything on his person.

Defendant then immediately turned around and put his hands in the air without

Dammer requesting him to do so. Dammer then commenced a pat down of

3 Defendant. He asked Defendant what was in his pocket, to which Defendant

responded that it was marijuana. Dammer told Defendant that Defendant did not

have to give him the marijuana, but Defendant elected to do so. Dammer ultimately

seized the marijuana and US currency which was the pre-recorded police funds

which had been used by Day during the controlled purchase of heroin.

Also in December of 2016, Pennsylvania State Police Trooper Tyler Morse

(Morse) was conducting an investigation into an individual who was selling drugs.

Morse utilized a confidential informant, Kelly Miller (Miller) to conduct a controlled

purchase of heroin on December 5, 2016. After this purchase, Miller provided Morse

with a description of the individual from whom he had purchased the heroin. Miller

testified that during the controlled purchase, a young female child was in the back

seat of Defendant's car sitting on a pile of money. Miller further testified that during

the controlled buy, he opened the back passenger door and was partially inside the

car; Defendant then looked back at him and gave him the drugs.

Morse was able to get a positive identification of the individual as Defendant

because the cell phone number which Miller used to contact the individual for the

controlled purchase was the same number that the NEU was using and the NEU had

identified that number as belonging to efendant. After identifying Mikey as

Defendant, the NEU provided Morse with a photograph of Defendant. Morse

indicated that the photograph fit the description that Miller had provided after the

controlled purchase on December 5, 2016. Morse then administered two

photographic line-ups to Miller, who was able to identify Defendant as the individual

whom he had purchased the heroin from during the controlled purchase.

4 Discussion

I. Suppression of Identification Evidence

a. An in -court identification of Defendant by the Confidential Informant is allowed as the Confidential Informant has an independent basis for the identification

Defendant argues that the Court should suppress the proposed in -court

identification of Defendant by the confidential informant conducted at Docket Number

580-17.

The Pennsylvania Supreme Court has ruled that an in-court identification of a

defendant is admissible following a tainted out-of-court identification if, under the

totality of the circumstances, the court determines that the in -court identification has

an independent basis "sufficiently distinguishable to be purged of the primary taint."

Commonwealth v. Abdul-Salaam, 678 A.2d 342, 248 (Pa. 1996). The Court may

consider several factors in determining whether a witness had an independent basis

for the in -court identification. These factors include:

(1) The opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness during the confrontation; and (5) the length of time between the crime and the confrontation. Id.

In this case, Capello utilized a NEU confidential informant, to conduct

controlled purchases of heroin from a drug dealer who sold drugs to the NEU and

went by the name Mikey. Capello utilized the CI to conduct multiple controlled

5 purchases of heroin on November 16, 2016, December 6, 2016, and January 4,

2017. On December 6, 2016, Snyder of the Williamsport Bureau of Police, acting

undercover, maintained surveillance of Mikey's vehicle from the conclusion of the

controlled buy until Dammer conducted a traffic stop on Mikey's vehicle. As a result,

Dammer confirmed that Mikey was the Defendant. Capello then showed his CI a

picture of Defendant, who also positively identified him as Mikey. However, since the

Commonwealth no longer has a copy of the photograph used by Capello in this out-

of -court identification, the Commonwealth has conceded that the out-of-court

photographic identification of Defendant by this CI should be suppressed, thus

compelling the need for a valid in -court identification of Defendant.

CI Day testified that, prior to working with the NEU, she had purchased heroin

from Mikey approximately 12 times, during which she was able to view Mikey either

face-to-face or from the side for approximately one to two minutes. Further, Day

testified that the controlled purchases she conducted for Capello were all during

daylight hours and that she was able to view Mikey for approximately one minute

each time. Moreover, for the first and third controlled buys, Day was in Mikey's car

and during the second controlled buy she did a hand-to-hand transaction through car

windows. Thus, Day had ample opportunity to view Defendant at the time of the

crime.

Additionally, Day's prior description of Defendant was accurate although not

overly detailed. Day initially described Mikey as approximately 5'9" with short hair

and a short beard or scruff, as well as the additional detail that he wore glasses. After

the second controlled buy, she stated that Mikey's glasses were black wire framed,

6 and that he wore a black coat and jeans. During her testimony, Day described

Defendant as approximately 5'10" to 511," of medium build, with dark skin, a unique

face, short hair, and a short beard. While Defendant argues these are purely generic

descriptions, these descriptions accurately describe Defendant and consist of

enough detail to identify Defendant.

Further, during all three controlled purchases, Day confirmed that the person

who sold the heroin to her was Mikey, who was confirmed to be Defendant. Although

Day's interactions with Defendant were approximately two years prior to her

testimony, the Court notes that Defendant was not in the court room during her

testimony. Day was able to describe Defendant accurately and with sufficient detail.

This suggests both that Day's degree of attention to Defendant was high and that the

length of time between the interaction and her testimony was not an issue, as she

was able to accurately give a description both to Capello at the time of the controlled

purchases and in court during her testimony. As Day has not yet made an in -court

identification, the length of time between the crime and the confrontation cannot be

fully taken into account. However, as Day was able to offer a sufficiently detailed

description of Defendant during her testimony, the Court does not anticipate the

delay to present an issue.

Therefore, since the factors concerning Day's in -court identification of

Defendant are satisfied, the Court will allow the proposed in -court identification by

Day during the trial.

7 b. The photographic line-up was not unduly suggestive and the confidential informant's identification of Defendant is allowed Defendant argues that the Court should suppress the out-of-court identification of

Defendant made by the CI Miller at case numbers 411-17 and 597-17.

An identification is admissible if, under the totality of the circumstances, it is

deemed to be reliable. Commonwealth v. Jaynes, 135 A.3d 606, 610 (Pa. Super.

2016). Suggestiveness alone does not warrant the exclusion of an identification. Id.

The identification evidence should not be suppressed unless the facts demonstrate

that the identification procedure was so "impermissibly suggestive as to give rise to a

very substantial likelihood of irreparable misidentification." Commonwealth v.

Fulmore, 25 A.3d 340 (Pa. Super. 2011). The purpose of suppressing identification

evidence is to prevent improper police action; where no such action exists,

suppression is not warranted. Jaynes, supra. at 610.

Further, due process does not require that all pretrial identifications be done

under laboratory conditions. Jaynes, supra. at 610. Photographs used in out -of-court

identifications are not unduly suggestive if the defendant's picture "does not stand

out more than the others" and the people in the pictures depicted "all exhibit similar

facial characteristics." Commonwealth v. Fisher, 769 A.2d 1116 (Pa. 2001).

Differences in the size of pictures used in a photographic line-up is not suggestive if

the differences do not cause a misidentification of the defendant. Commonwealth v.

Wilcox, 392 A.2d 1294, 1297 (Pa. 1978).

Defendant argues that the out -of-court identification by confidential information

Miller should be suppressed because the photographic line-ups conducted by Morse

8 were unduly suggestive. Defendant asserts that the use of only Defendant's picture

in both photographic line-ups, the size differences in the pictures provided in the

second photographic line-up, and the typing on Defendant's picture all render the

procedure unduly suggestive. However, case law does not support Defendant's

reasoning.

Morse administered two photographic line-ups to Miller. In the first line-up,

Morse utilized a picture of Defendant provided by the NEU and prepared a

photographic line-up from the Pennsylvania Justice Network ("JNET") arrest photos

which matched Defendant's description. Miller was unable to identify Defendant in

the first line-up, stating that he needed to see a line-up in which the individuals wore

glasses. Morse then found a different picture of Defendant wearing glasses and

prepared a second line-up from JNET arrest photos of individuals matching

Defendants description and also wearing glasses. As the only available photograph

of Defendant wearing glasses was not from JNET, Morse cut both Defendant's

picture and the JNET photographs out, attempting to make them as uniform as

possible. Morse then shuffled them randomly; unaware that Defendant's photograph

was in the same numbered spot in both line-ups. Morse then administered the

second photo line-up. Miller identified Defendant immediately upon seeing

Defendant's photograph, however, Morse instructed Miller to look through the

remaining pictures to be sure of his identification. Miller did so and confirmed his

identification of Defendant.

The Court finds that Defendant's photograph did not unreasonably stand out

from the other pictures; all of the individuals in both photographic line-ups had similar

9 facial characteristics. Defendant's assertion that the line-ups were suggestive due to

Defendant's picture being the only one used in both line-ups is not supported by the

facts. Morse did not use the same photograph of Defendant in both line-ups.

Additionally, Morse could not reasonably be expected to find photographs of the

same individuals from the first line-up wearing glasses to be used for the second line-

up. Therefore, Morse's actions were not improper.

Further, as stated in Wilcox, a size difference in pictures is not suggestive

unless the difference causes a misidentification of the defendant. Miller testified at

the suppression hearing that the size difference of the photographs as well as any

typing on the photographs did not register as he was focused on the faces and

characteristics of the individuals and therefore had no bearing on his identification of

Defendant in the photographic line-up.

Therefore, the photographic line-up conducted by Morse was not unduly

suggestive and the out-of-court identification of Defendant by Miller is allowed.

II. Traffic stop of Defendant's vehicle by Trooper Dammer

a. The stop of Defendant's vehicle was lawful

Defendant argues that Trooper Dammer's stop of Defendant's vehicle on

December 6, 2016 was illegal.

The Supreme Court of Pennsylvania has held that if an officer with sufficient

probable cause or reasonable suspicion directs another officer to act in his stead,

even if the arresting officer does not have the requisite information, the arrest is

legal. Commonwealth v. Yong, 177 A.3d 876, 889-90 (Pa. 2018). Additionally, a stop

10 of a vehicle is valid if the stop is based on objective facts that create a reasonable

suspicion that the occupant of the vehicle is presently involved in criminal activity.

Commonwealth v. Murray, 331 A.2d 414 (Pa. 1975). Further, an officer has probable

cause to effectuate a traffic stop if the driver violates a section of the Motor Vehicle

Code. Commonwealth v. Gleason, 785 A.2d 983, 989 (Pa. 2001).

The Court finds that the stop of Defendant's vehicle by Dammer was lawful.

Under the collective knowledge doctrineg, Dammer had sufficient probable cause to

stop Defendant's vehicle and to arrest him. On December 6, 2016, Snyder

maintained surveillance upon Defendant and Defendant's vehicle during and

following the controlled purchase. During this surveillance, Snyder contacted

Dammer and supplied him with information about the investigation, including

information about the controlled purchase which had just taken place. Snyder then

requested Dammer to assist with identifying Defendant, but directed Dammer not to

arrest Defendant in doing so. This course of events supports the finding that Dammer

had both probable cause to stop and to arrest Defendant, even if he was directed not

to facilitate an arrest of Defendant.

In the alternative, even had Dammer not had the requisite probable cause to

stop Defendant, he did have the requisite reasonable suspicion to do so. The

suspicion that Defendant had just taken part in the criminal activity of the sale of

drugs would allow for a legal investigative stop of Defendant's vehicle. Also in the

9 Pennsylvania courts have cited to Whiteley and Hensley for the notion that an arresting officer, lacking sufficient personal knowledge amounting to probable cause, may rely on direction from an officer possessing the requisite knowledge without running afoul of the Fourth Amendment. Citing Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), and United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985), Yong,130 A.3d at 306.

11 alternative, because Dammer observed the defendant violate Title 75 Pa.C.S.A. §

3323(b), Therefore, Dammer had probable cause to stop Defendant's vehicle and will

not be suppressed.

b. The pat down of Defendant during the traffic stop was lawful, therefore the physical evidence obtained as a result of the search is admissible Defendant argues that even if the stop of Defendant's vehicle by Dammer was

lawful, the seizure of the U.S. Currency from Defendant during the search was

unlawful. Defendant asserts that the only exception to the warrant requirement which

allows for the seizure of currency is a search incident to arrest. However, Defendant

offers no authority for this assertion. Alternatively, the Commonwealth argues that the

search was lawful because Defendant consented to the pat down.

The Fourth Amendment protects against unreasonable searches and

seizures, including in the case of a brief detention. Commonwealth v. Strickler, 757

A.2d 884, 888 (Pa. 2000) (citing United States v. Mendenhall, 446 U.S. 544, 551.)

One such exception to the requirement of a warrant to conduct a search is voluntarily

given consent. Id. To prove a valid consent search, the Commonwealth must prove

first that the Defendant's interaction with the police was lawful. Commonwealth v.

Reid, 811 A.2d 530, 544 (Pa. 2002). If the Commonwealth overcomes this hurdle,

the Court must then consider whether the Defendant's consent was valid under the

totality of the circumstances. Id. at 548. Consent cannot be the "result of duress or

coercion, express or implied, or a will overborne-under the totality of the

circumstances." Strickler, supra. at 901. Additionally, the Commonwealth is not

12 required to establish that the defendant knew of his right to refuse to consent in order

to prove voluntary consent. Id.

The Court finds that Defendant validly consented to the pat down by Dammer.

In this case, the Court has found that the stop of Defendant's vehicle was lawful,

which satisfies the first element. Next, Dammer's motor vehicle recording ("MVR") of

the stop shows that Dammer did not utilize any weapons, raise his voice, or threaten

Defendant or the passenger. Defendant promptly answered Dammer's questions and

voluntarily exited the vehicle when requested due to the smell of marijuana which

Dammer detected emanating from the vehicle. Dammer did not touch the Defendant

or ask to search him; Defendant put his hands up and turned around without any

instruction from Dammer. Dammer testified that these actions by Defendant led him

to believe that Defendant was volunteering to be searched. Defendant did not exhibit

any signs of mental or emotional distress. When Dammer patted down Defendant

and asked what was in Defendant's pocket, Defendant informed Dammer that it was

marijuana and voluntarily turned it over to Dammer, despite Dammer's statement that

Defendant did not have to do so. In light of these facts, the Court finds that

Defendant's consent was not the result of duress, coercion, or will overborne;

therefore, the consent was valid and the marijuana and currency found on Defendant

is allowed.

13 Ill. The Commonwealth has presented sufficient evidence to support the charge of Endangering the Welfare of Children Defendant argues that the Commonwealth did not provide sufficient evidence

to sustain the charge of Endangering the Welfare of Children.

Endangering the Welfare of Children is a violation of 18 Pa.C.S.A. § 4304.

The statute states the following:

A parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.

18. Pa.C.S.A. § 4304(a)(1).

Additionally, the statute provides that the phrase "other person supervising the

welfare of a child" means a person that provides "care ... or control of a child." 18

Pa.C.S.A. § 4304(a)(3). Pennsylvania courts have long held that a duty of care may

be extended to "non -relatives who exercise some supervisory role over children."

Commonwealth v. Bryant, 57 A.3d 191, 197 (Pa. Super. 2012).

The Supreme Court of Pennsylvania held that this statute is "given meaning

by reference to common sense of the community and the broad protective purposes

for which it was enacted." Commonwealth v. Campbell, 580 A.2d 868, 869 (Pa.

Super. 1990) (citing Commonwealth v. Mack, 359 A.2d 770 (Pa. 1976). The court

further reasoned that the purpose of juvenile statutes is "basically protective in

nature." Commonwealth v. Marlin, 305 A.2d 14, 18 (Pa. 1973). The court explained

that it is impossible to enumerate all of the adult conduct which society wants to

protect children from. Id. This sentiment is why the state legislature attempted to

14 "prohibit a broad range of conduct in order to safeguard the welfare and security" of

children. Commonwealth v. Brown, 721 A.2d 1105, 1106 (Pa. Super. 1998).

In order to establish that Defendant violated the statute for endangering the

welfare of a child, the Commonwealth must prove, either by direct or circumstantial

evidence, that Defendant had the requisite mens rea. Commonwealth v. Winger, 957

A.2d 325, 329 (Pa. Super. 2008). The mens rea for this statute is a "knowing

violation of his duty of care." Id. The statute does not require that Defendant inflicted

a physical injury upon the child or that there was a threat of imminent harm.

Commonwealth v. Wallace, 817 A.2d 485 (Pa. Super. 2002). If Defendant knows that

his actions could endanger the child, putting him or her at risk or in danger, then

Defendant has violated his duty of care. Id. at 491-92. In order for the

Commonwealth to meet its burden of establishing the intent element of the statute for

endangering the welfare of a child, a three -prong test must be satisfied. The test is

as follows: (1) the accused was aware of his/her duty to protect the child; (2) the

accused was aware that the child was in circumstances that could threaten the

child's physical or psychological welfare; and (3) the accused has either failed to act

or has taken action so lame or so meager that such actions cannot reasonably be

expected to protect the child's welfare. Bryant, supra. at 198.

The Court finds that the Commonwealth has provided sufficient evidence to

establish that Defendant had a duty of care to the child in Defendant's car and

knowingly violated that duty. Defendant was the driver of the vehicle with a female

passenger approximately five to seven years of age in the backseat. Common sense

of the community would prescribe that an adult who is driving a motor vehicle would

15 have a duty of care towards a young passenger in the car as the driver, and not the

passenger, can determine the course of the vehicle and the manner of safety in

which it is driven. Defendant therefore should have readily known of the duty to

protect the child who was a passenger in Defendant's car.

Further, on top of dealing drugs with the child in the car, allowing drug users to

have access to the backseat where the child was seated on top of a pile of money

would again go far against the common sense of the community. The possibility of a

drug transaction ending in violence or murder is always possible. Persons involved in

drug activity could easily threaten the welfare of the child, both psychologically and

physically if the purchase did not go as planned.

Moreover, Defendant afforded no protection to the child. Defendant freely

allowed CI Miller, access to the backseat of Defendant's car where the young child

was sitting. Further, Defendant conducted a drug deal with the CI seated next to the

child. Defendant took no action to protect the child, rather concerned only with

getting the Cl's money in exchange for the drugs.

Therefore, the Commonwealth has provided sufficient evidence to support the

charge against Defendant of Endangering the Welfare of Children. Thus, the motion

to Dismiss shall be denied.

16 ORDER

AND NOW, this day of June, 2018, after hearing and reviewing briefs

submitted by counsel, the Court makes the following findings:

(1) CI Day has an independent basis for an in -court identification of Defendant,

therefore an in -court identification of Defendant by Day shall be permitted;

(2) the photographic line-up administered by Trooper Morse was not unduly

suggestive, therefore CI Miller's out -of-court identification is allowed;

(3) the traffic stop of Defendant's vehicle by Trooper Dammer was lawful;

(4) the pat down of Defendant by Trooper Dammer was lawful, thus the physical

evidence obtained as a result of that search is allowed; and

(5) the Commonwealth has presented sufficient evidence to support the charge of

Endangering the Welfare of Children.

Therefore, Defendant's Omnibus Pretrial Motions are DENIED.

y The Court,

Nancy L. Bu , Pre ident Judge

Cc: Nicole Ippolito, Esq. Assistant District Attorney Wayne Crippen, pro se, Lycoming County Prison