Com. v. Crippen, W.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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)
(citation omitted).
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….”).
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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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Circulated 08/31/2020 11:06 A
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
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COMMONWEALTH OF PENNSYLVANIA
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OPINION AND ORDER
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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.
Background
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.
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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
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