J-S30002-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

JASON BINGAMAN,

Appellant No. 51 WDA 2017

Appeal from the Judgment of Sentence Entered October 19, 2016

In the Court of Common Pleas of Jefferson County

Criminal Division at No(s): 

CP-33-CR-0000131-2016

CP-33-CR-0000236-2016

BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 14, 2018

Appellant, Jason Bingaman, appeals from the judgment of sentence of 

an aggregate term of 24 to 87 years’ incarceration, imposed after he was 

convicted, in two separate cases, of various drug-related offenses, including 

operating a methamphetamine lab, 35 P.S. § 780-113.4(a)(1), possession 

with intent to deliver a controlled substance, 35 P.S. § 780-113(a)(3), and 

illegal dumping of methamphetamine waste, 35 P.S. § 780-113.4(b)(1). After 

careful review, we affirm.

The facts of Appellant’s case were summarized by the Commonwealth, 

as follows:

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Kristen Cook met Appellant ... at a party on the night of 

Thanksgiving of 2015 that was held at the residence he shared 

with Melissa Nolder in Glen Campbell, PA. Methamphetamine 

(hereinafter “meth”) was at the heart of their relationship from 

the start. At the party, “everybody there was smoking meth” and 

Cook joined in as well as taking pills. [Appellant] and Cook quickly 

formed a relationship and [Appellant] came to stay with her for a 

weekend at her residence in Brookville, PA. Later, around 

December 5, 2015, the day before Cook’s birthday, [Appellant]

came to Cook’s residence and ended up staying until the day that 

his meth lab was discovered by a Brookville Police Officer on

December 14, 2015. At the time that he moved in, [Appellant]

told Cook that he did not want to be at the place in Glen Campbell. 

He specifically told Cook that, in addition to not trusting people 

there ([because he feared they were] stealing from him), he was 

concerned because he was making meth at this residence and he 

had been told that the residence was being “watched” by the 

police. When [Appellant] moved in with Cook, he continued 

making meth and provided some to her for her use. Cook 

observed him making it at another couple’s house and once at her 

residence prior to December 14[, 2015]. Cook would assist him 

by purchasing some of the precursors and Cook was aware that 

others were assisting him in the same way. In a notebook, 

[Appellant] logged people who were helping him[,] which included 

Melissa Nolder ... and Jordan Pavlak. Cook described that 

[Appellant] kept his meth making materials in a plastic tote that 

he normally stored in the trunk of her car. N.T. 9/22/2016, p. 4-

27. A tote containing many meth lab components was found by 

Officer Vince Markle of the Brookville Borough Police in the dining 

room of Cook’s residence on December 14, 2015 when the meth 

lab operation was discovered. At that time, many more methmaking materials and associated items were found on a table in

the same room. Id. at 51, 73-82. Melissa Nolder also confirmed 

that a couple [of] weeks prior to [Appellant’s] contacting her for a 

ride (discussed below), she had seen [Appellant] leave Glen 

Campbell with a clear tote that had camp fuel, lye, measuring 

bowls and cups in it. Id. at 142.

On December 14, 2015, the Jefferson County Probation 

Department, assisted by Officer Markle sought to execute an 

arrest warrant on an unrelated individual at Cook’s residence. 

When they arrived, Markle saw what he suspected to be meth lab 

components. Upon calling Cook at her place of employment, it 

was confirmed that a meth lab was present inside the residence 
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and an active “one-pot” meth lab (chemical reaction was 

occurring) was bubbling in an upstairs bedroom. The area was 

then evacuated and the Pennsylvania State Police clandestine lab

team was activated. The next day, Officer Markle found 

[Appellant] outside of Cook’s residence. It was very cold that day 

and [Appellant] was dressed only in a tee shirt and blue jeans. He

was soaking wet and shivering/shaking. It had been sleeting the 

night before and that morning. Markle put him in the back of his 

patrol car and transported him to the police station. Markle called 

the investigating state trooper on the case and inquired about 

[Appellant] and was told that they were not ready to arrest 

[Appellant] at that point. He was released. N.T. 9/22/2016, p. 

43-58. [Appellant] called Melissa Nolder for a ride from Brookville 

after he had been released by Markle. [Appellant] told Nolder and 

another that the cops had showed up in Brookville and he had to 

go on the run, that he had “went through the river,” slept in a tree 

stand that night and that he had been picked up by the cops and

released. Id. at 140-142, 163.

Nolder also confirmed that [Appellant] was cooking meth 

again in Glen Campbell within the week prior to Christmas. Nolder 

confirmed that she was assisting [Appellant] by buying Sudafed 

for him in December. Also, many people were coming to the 

residence to smoke and shoot meth. [Appellant] would give them 

meth for boxes of Sudafed. Id. at 139-143. Commonwealth 

witness Jordan Pavlak was also familiar with [Appellant’s] making 

meth in Glen Campbell during this November through December 

2015 timeframe. Pavlak had moved into Nolder and [Appellant’s]

residence in Glen Campbell around Thanksgiving of 2015 and was 

there for approximately a month. Pavlak would buy Sudafed for 

him starting in November and bought it for him 6-8 times after 

that. The meth lab was discovered because a state constable had 

a bench warrant for the arrest of Pavlak and she was found at 

Nolder’s Glen Campbell residence on December 31, 2015. Pavlak 

was arrested and ultimately the meth lab was discovered. Id. at 

156-164; N.T. 9/23/2016, p. 3-11, 17-21.

Commonwealth’s Brief at 1-4 (footnote omitted).

Based on these facts, Appellant was charged in the case docketed at CP33-CR-0000131-2016 with various offenses stemming from the

methamphetamine-manufacturing operation (hereinafter, “meth lab”) 
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discovered on December 14, 2015, in Kristin Cook’s home in Brookville 

Borough of Jefferson County (hereinafter, “Brookville case”). In the case 

docketed at CP-33-CR-0000236-2016, he was charged with crimes stemming 

from his operating the meth lab based in Melissa Nolder’s home in Glen 

Campbell Borough of Indiana County (“Glen Campbell case”), which was 

discovered on December 31, 2015. Prior to trial, the Commonwealth moved 

to consolidate the Brookville and Glen Campbell cases. After conducting a 

hearing, the trial court granted that motion. 

Appellant’s consolidated jury trial commenced in September of 2016, 

and at the close thereof, he was convicted of various drug-related crimes, 

including those set forth above. On October 19, 2016, he was sentenced to 

an aggregate term of 24 to 87 years’ incarceration. Appellant filed a timely 

post-sentence motion for reconsideration of his sentence. After conducting a 

hearing on that motion, the court denied it on November 2, 2016. Appellant 

filed a notice of appeal on January 4, 2017. On May 9, 2017, the trial court 

ordered him to file a Pa.R.A.P. 1925(b) concise statement of errors complained 

of on appeal by June 30, 2017, and Appellant timely complied. The court filed 

a Rule 1925(a) opinion on July 13, 2017.

Herein, Appellant presents three issues for our review:

[I.] Whether the trial court erred by granting the 

Commonwealth[’s] Motion for Consolidation and Joinder of 

Informations when the testimony presented at the August 18, 

2016 hearing was insufficient to support the conclusion that the 

evidence of each incident would be admissible in a separate trial 

for the other, for reasons including that the evidence presented 

supported a finding of a common scheme, plan or design[?]
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[II.] Whether [the c]ourt erred by denying [Appellant’s] Motion in 

Limine to prevent the Commonwealth from offering testimony of 

prior bad acts alleged to have been committed by Appellant[?]

[III.] Whether the [c]ourt erred by failing to give a cautionary 

instruction to the jury concerning the admission of prior bad acts 

testimony[?]

Appellant’s Brief at 4.

Before addressing Appellant’s issues, we must determine whether his 

appeal is timely. As stated supra, the trial court denied Appellant’s postsentence motion on November 2, 2016, yet his notice of appeal was not filed 

until January 4, 2017. See Pa.R.Crim.P. 720(A)(2)(a) (stating that if the 

defendant files a timely post-sentence motion, the notice of appeal must be 

filed within 30 days of the entry of the order deciding that motion). We 

recognize that, “[g]enerally, an appellate court cannot extend the time for 

filing an appeal.” Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. 

Super. 2007) (citations omitted). However, “a court can grant relief in cases 

of fraud or a breakdown in the operations of the courts.” Id. 

Here, we conclude that a breakdown in the trial court’s operations 

occurred, such that we may overlook the untimeliness of Appellant’s appeal. 

Specifically, the trial court did not notify Appellant, in the written order 

denying his post-sentence motion, of his right to file a notice of appeal and 

the time within which he was required to do so.1 See Pa.R.Crim.P. 

720(B)(4)(a) (stating “[a]n order denying a post-sentence motion ... shall 

____________________________________________

1 We also point out that the court did not notify Appellant of his appellate 

rights at the hearing on his post-sentence motion. 
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include notice to the defendant of ... the right to appeal and the time limits 

within which the appeal must be filed”). In Patterson, this Court considered 

a trial court’s failure to comply with Rule 720(B)(4)(a)’s notice requirement 

as “a breakdown that excuses the untimely filing of [a] notice of appeal.” 

Patterson, 940 A.2d at 499. We also noted that the trial court’s “partial 

compliance” of informing Patterson of his appellate rights at the sentencing 

hearing was not sufficient to disregard “the mandatory nature of the 

notification” required by Rule 720(B)(4)(a). Following Patterson, we will

overlook the untimeliness of Appellant’s notice of appeal in this case.

In Appellant’s first issue, he contends that the trial court abused its 

discretion by granting the Commonwealth’s motion to consolidate the 

Brookville and Glen Campbell cases for trial. Appellant complains that each 

of his cases constituted ‘prior bad acts’ evidence that would have been 

inadmissible in the trial for the other, had they been tried separately. He 

avers that he was prejudiced by the consolidation of his cases because “the 

jury was convinced of his guilt by sheer volume, removing from each case the 

possibility of reasonable doubt.” Appellant’s Brief at 17. 

We disagree. Initially, “[w]hether or not separate indictments should 

be consolidated for trial is within the sole discretion of the trial court and such 

discretion will be reversed only for a manifest abuse of discretion or prejudice 

and clear injustice to the defendant.” Commonwealth v. Newman, 598 

A.2d 275 (Pa. 1991) (citing Commonwealth v. Lark, 543 A.2d 491 (Pa. 
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1988)). Pennsylvania Rule of Criminal Procedure 582 governs the joinder of 

cases for trial, stating, in pertinent part:

(1) Offenses charged in separate indictments or informations may 

be tried together if:

(a) 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

(b) the offenses charged are based on the same act or 

transaction.

Pa.R.Crim.P. 582(1)(a).

Appellant only challenges the trial court’s determination that the 

evidence of each case would be admissible in a separate trial for the other. 

This Court has stated that, “[c]oncerning the admissibility requirement, 

‘evidence of other crimes may be introduced where such evidence was part of 

the chain or sequence of events which became part of the history of the case 

in question and formed part of the natural development of the facts.’” 

Commonwealth v. Torres, 177 A.3d 263, 277 (Pa. Super. 2017) (quoting 

Commonwealth v. Kunkle, 79 A.3d 1173, 1191 (Pa. Super. 2013) (citation 

omitted)). 

In the case sub judice, we agree with the Commonwealth that the 

charges in each of Appellant’s two indictments flowed from a sequence of

events that formed the history of the case, making the joinder of the Brookville 

and Glen Campbell actions appropriate. As the Commonwealth explains:

The testimony at trial makes two conclusions abundantly clear. 

First, [Appellant] was constantly, throughout the entire month of 

December of 2015, engaged in the production of 
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methamphetamine. His production of methamphetamine was 

factually a single, continuous enterprise. Secondly, the stories of 

[Appellant’s] Glen Campbell meth lab and his Brookville one are

inextricably woven together into one story. Witnesses involved in 

his Glen Campbell meth enterprise had knowledge of and testified 

about his Brookville operation. Conversely, Cook knew about and 

testified to his Glen Campbell operation prior to hi[s] moving in 

with her temporarily. Cook knew about the people who were 

involved with him in Glen Campbell. He used the same tote to

carry his meth making materials around with him in Glen Campbell 

and in Brookville. Nolder saw him take the tote with meth lab 

materials in it when he left for Brookville. Cook saw him in ...

possession of it in Brookville. It was found by police in the dining 

room of Cook’s residence when his Brookville lab was busted[,]

and meth making materials were found inside and on the nearby 

dining room table. His resumption of cooking meth in Glen 

Campbell came about as a result of hi[s] being busted in Brookville 

and coming back to Glen Campbell.... And he resumed 

immediately, it would appear. Thus[,] the reason for [Appellant’s]

movements back and forth between Glen Campbell and Brookville

were entirely related to his meth operation: [Appellant] was 

cooking meth in Glen Campbell and then moved in with Cook in 

Brookville because he feared the police were on to him in Glen 

Campbell. Then, he moved back to Glen Campbell and resumed 

cooking meth there when his operation was busted in Brookville. 

The above truly constitutes one continuous story that needed to 

be told in one trial. It would have been absurd to try these two 

cases in separate trials when it was all one continuous story.

Commonwealth’s Brief at 8-9. The Commonwealth’s argument, and our 

review of the record, convinces us that the trial court did not abuse its 

discretion in consolidating Appellant’s two cases for trial.2

____________________________________________

2 To the extent that the trial court granted the joinder of Appellant’s cases on 

a slightly different basis, we note that this Court is permitted to affirm the trial 

court “on any valid basis, as long as the court came to the correct result....” 

Wilson v. Transport Ins. Co., 889 A.2d 563, 577 n.4 (Pa. Super. 2005) 

(citations omitted). 
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Next, Appellant avers that the trial court erred by denying his pretrial 

motion to exclude the prior bad acts evidence of his “shared drug involvement 

with Kristin [sic] Cook....” Motion In Limine, 9/21/16, at 3 (unnumbered). 

The standard of review employed when faced with a challenge to 

the trial court's decision as to whether or not to admit evidence is 

well settled. Questions concerning the admissibility of evidence 

lie within the sound discretion of the trial court, and a reviewing 

court will not reverse the trial court’s decision absent a clear abuse 

of discretion. Commonwealth v. Hunzer, 868 A.2d 498 (Pa. 

Super. 2005). Abuse of discretion is not merely an error of 

judgment, but rather where the judgment is manifestly 

unreasonable or where the law is not applied or where the record 

shows that the action is a result of partiality, prejudice, bias or ill 

will. Id.

Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citation 

omitted). Additionally, we recognize that,

[g]enerally, evidence of prior bad acts or unrelated criminal 

activity is inadmissible to show that a defendant acted in 

conformity with those past acts or to show criminal propensity. 

Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be 

admissible when offered to prove some other relevant fact, such 

as motive, opportunity, intent, preparation, plan, knowledge, 

identity, and absence of mistake or accident. Pa.R.E. 404(b)(2). 

In determining whether evidence of other prior bad acts is 

admissible, the trial court is obliged to balance the probative value 

of such evidence against its prejudicial impact. Commonwealth 

v. Powell, 598 Pa. 224, 956 A.2d 406, 419 (2008).

Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009).

At the hearing on Appellant’s motion to exclude Cook’s prior bad acts 

testimony, the Commonwealth explained what her testimony would entail, as 

follows:

[The Commonwealth:] She met him Thanksgiving of 2013, the 

night they met, they were making meth and smoking it with him. 
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He told her ... he thought people were after him in Glen Campbell, 

then he went back after this incident and made more meth, so 

there’s -- she’s going to talk about his statements to her about 

who helped him, who would buy Sudafed for him, things of that 

nature.

N.T. Hearing, 9/22/16, at 4. The trial court ruled that Cook’s proposed 

testimony was admissible, reasoning that it was necessary to explain 

Appellant’s relationship with Cook, and to show how Appellant came to be 

making meth in her home. Id. at 5. In other words, the trial court essentially 

deemed Cook’s testimony admissible under the res gestae exception to Rule 

404(b)’s prior-bad-acts exclusion. Our Supreme Court has explained that this

exception applies “where the evidence became part of the history of the case 

and formed part of the natural development of the facts.” Commonwealth 

v. Cousar, 154 A.3d 287, 304 (Pa. 2017).

Now, on appeal, Appellant does not expressly discuss why the trial court 

erred by deeming Cook’s testimony admissible under the res gestae exception. 

Instead, he contends that Cook’s “testimony far exceeded that proposed by 

the Commonwealth or considered by the court.” Appellant’s Brief at 18. 

Appellant then cites to various remarks by Cook that, according to him, 

surpassed the pretrial ruling to admit her testimony. Id. at 18-19. However, 

our review of those portions of Cook’s testimony reveals that Appellant at no 

point objected to those statements by Cook. Accordingly, he has waived his 

argument that the court should have precluded Cook’s testimony as being 

beyond the scope of its pretrial ruling to admit prior bad acts evidence. See 
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Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot 

be raised for the first time on appeal.”).

The remainder of Appellant’s argument focuses on whether Cook’s 

testimony was more prejudicial than probative. See Appellant’s Brief at 19-

22. Relying on the factors set forth by this Court in Commonwealth v. Page, 

965 A.2d 1212 (Pa. Super. 2009), Appellant maintains that Cook’s prejudicial 

testimony should have been excluded. In Page, we explained:

Evidence, even if relevant, may be excluded if its probative 

value is outweighed by the potential prejudice. Pa.R.E. 404(b)(3).

The probative value of the evidence might be outweighed 

by the danger of unfair prejudice, confusion of the issues, 

misleading the jury, undue delay, pointlessness of 

presentation, or unnecessary presentation of cumulative 

evidence. Pa.R.E. 403. The comment to Pa.R.E. 403 

instructs that: “‘Unfair prejudice’ means a tendency to 

suggest decision on an improper basis or to divert the jury’s 

attention away from its duty of weighing the evidence 

impartially.” Pa.R.E. 403 cmt. Additionally, when weighing 

the potential for prejudice, a trial court may consider how a 

cautionary jury instruction might ameliorate the prejudicial 

effect of the proffered evidence. Pa.R.E. 404(b) cmt.

[Commonwealth v.] Dillon, 925 A.2d [131,] 141 [(Pa. 2007)]. 

However, “[e]vidence will not be prohibited merely because it is 

harmful to the defendant.” Id. “[E]xclusion is limited to evidence 

so prejudicial that it would inflame the jury to make a decision 

based upon something other than the legal propositions relevant 

to the case.” Commonwealth v. Owens, 929 A.2d 1187, 1191 

(Pa. Super. 2007), citing Commonwealth v. Broaster, 863 

A.2d 588, 592 (Pa. Super. 2004).

When evaluating whether evidence of prior acts is so prejudicial 

that it should be excluded, we must consider the following as set 

forth in Dillon, 925 A.2d at 141:

Evidence will not be prohibited merely because it is harmful 

to the defendant. This court has stated that it is not 
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“required to sanitize the trial to eliminate all unpleasant 

facts from the jury’s consideration where those facts are 

relevant to the issues at hand and form part of the history 

and natural development of the events and offenses for 

which the defendant is charged.” Lark, 543 A.2d at 501. 

Moreover, we have upheld the admission of other crimes 

evidence, when relevant, even where the details of the other 

crime were extremely grotesque and highly prejudicial. See 

Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835, 841 

(1989) (upholding the trial court’s admission of evidence 

that the defendant had committed a prior rape, including 

testimony from the prior rape victim); see also 

Commonwealth v. Gordon, 543 Pa. 513, 673 A.2d 866, 

870 (1996) (allowing evidence of defendant’s previous 

sexual assaults).

McCormick, Evidence, § 190 (6th ed. 2006), sets forth factors to 

be considered in performing the probative value-prejudice 

balancing test as follows:

[M]ost authority recognizes that the problem is not merely 

one of pigeonholing, but of classifying and the[n] balancing. 

In deciding whether the danger of unfair prejudice and the 

like substantially outweighs the incremental probative 

value, a variety of matters must be considered, including 

the strength of the evidence as to the commission of the 

other crime, the similarities between the crimes, the interval 

of time that has elapsed between the crimes, the need for 

the evidence, the efficacy of alternative proof, and the 

degree to which the evidence probably will rouse the jury to 

overmastering hostility.

See Packel & Poulin, Pennsylvania Evidence, 3rd ed. § 404–9 p. 237.

Page, 965 A.2d at 1220-21.

Contrary to Appellant’s argument on appeal, we conclude that the 

prejudicial impact of Cook’s testimony did not outweigh its probative value. 

Essentially, Cook was permitted to testify that, in the few weeks that she knew 

Appellant, she observed him using and making methamphetamine, that

people assisted him in these endeavors, and that Appellant provided her and 
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other individuals with illegal drugs, namely methamphetamine. See N.T. Trial 

at 8-25. Cook’s testimony was based on her own personal observations, and 

each of the prior bad acts she discussed happened during a short, severalweek span from around November 26 (Thanksgiving) to December 14, 2015. 

Her testimony was relevant and probative in explaining the context of her 

relationship with Appellant and the history of his methamphetamine-making 

endeavors, which culminated in his being caught making methamphetamine 

at her residence on December 14, 2015, after which he then returned to Glen 

Campbell and was discovered making meth there on December 31, 2015. 

Cook’s testimony regarding Appellant’s prior drug activity was not sufficient 

“to rouse a jury to overmastering hostility.” Id. at 1221 (citation omitted). 

Therefore, we find no abuse of discretion by the trial court in admitting it.

In Appellant’s third issue, he asserts that the trial court erred by not 

providing a cautionary instruction regarding Cook’s prior-bad-acts testimony. 

However, our review of the record reveals that Appellant did not lodge an 

objection to this omission by the court. In attempting to avoid waiver, 

Appellant points out that, before the jury charge, defense counsel asked the 

court if it was “going to give the limiting instruction with regard to the prior 

bad acts[.]” See Appellant’s Brief at 22 (quoting N.T. Trial, 9/23/16, at 125). 

However, the court seemed confused about what charge defense counsel was 

requesting, as evidenced by its response: “Yeah. Yeah, they have to consider 

each case separately, and it’s only for common scheme, plan[, or] design.” 

Id. at 125. Defense counsel made no attempt to correct the court or clarify 
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that he sought a jury instruction pertaining to Cook’s testimony. He also 

lodged no objection at the end of the jury charge after realizing that no such 

instruction had been provided. Consequently, Appellant cannot now complain

about the court’s omission of that jury charge. See Pa.R.A.P. 302(a); see 

also Pa.R.Crim.P. 647 (providing that “[n]o portions of the charge nor 

omissions from the charge may be assigned as error, unless specific objections 

are made thereto before the jury retires to deliberate”); Commonwealth v. 

Forbes, 867 A.2d 1268, 1274 (Pa. Super. 2005) (stating that a “specific and 

timely objection must be made to preserve [a] challenge to [a] particular jury 

instruction[, and the] failure to do so results in waiver”) (citation omitted).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/14/2018