J-S28033-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WAYNE O. CRIPPEN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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

v.

WAYNE O. CRIPPEN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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

v.

WAYNE O. CRIPPEN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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

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COMMONWEALTH OF PENNSYLVANIA

v.

WAYNE O. CRIPPEN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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. 

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

sentenced Crippen to an aggregate term of 101⁄2 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 afterdiscovered 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

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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 wellsettled. 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] postsentence motion for a new trial on the ground of after-discovered evidence 

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

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

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

appeal process....”).

____________________________________________

7 Crippen also claims that he “had a front tooth extracted, evidenced by 

dental records.” Brief for Appellant at 25. However, it is unclear how this 

constitutes newly-discovered evidence. 
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To warrant relief, after-discovered evidence must meet a 

four-prong test: (1) the evidence could not have been obtained 

before the conclusion of the trial by reasonable diligence; (2) the 

evidence is not merely corroborative or cumulative; (3) the 

evidence will not be used solely for purposes of impeachment; 

and (4) the evidence is of such a nature and character that a 

different outcome is likely.

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

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

advised police that Hatchett was associated with the phone number in 

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

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

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

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

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

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

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

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

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

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

Crippen relief.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/29/2020
Circulated 08/31/2020 11:06 A 

IN THE COURT OF COMMON PLEAS OF LYCOMING 

COMMONWEALTH OF PENNSYLVANIA 

v. 

WAYNE CRIPPEN, 

COUNTY, PENNSYLVANIA 

CR-161-2017 

CR-411-2017 

CR-580-2017 

CR-597-2017 

POST SENTENCE Mf?Ti 

Defendant 

OPINION AND ORDER 

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

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

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

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

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

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

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

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

For the following reasons Defendant's Motion is denied. 

Background 

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

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

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

I This Court relies on its Opinion and Order dated June 20, 2018, which previously Denied 

Defendant's Omnibus Pretrial Motion, in denying this portion of Defendant's Post -Sentence 

Motion. 2 35 P.S. § 780-113(a)(30). 3 35 P.S. § 780-i 13(a)(30). 
Facility,` four counts of Possession of a Controlled Substances one count of Endangering the 

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

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

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

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

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

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

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

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

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

following. 

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

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

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

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

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

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

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

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

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

18 Pa. C.S. § 7512(a). 

35 P.S. § 780-113(a)(16). 

6 18 Pa. C.S. § 4304( a)(1). 7 35 P.S. § 780-113(a)(31)(i). 

8 35 P.S. § 780-113(a)(32). 
Upon returning to a predetermined location, Day gave Capello eleven bags of suspected heroin 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

bags contained heroin. 

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

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

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

involvement during the controlled buys. They testified to a similar account of events. They - also explained during surveillance that no one individual had a visual of Day the entire time 

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

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

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

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

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

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

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

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

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

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

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

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

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

causing the black gap. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2016 at trial. 

iscussion 

Whether the Evidence was Insufficient to Sustain a Conviction 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

every element of Delivery of a Controlled Substance.9 

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

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

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

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

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

9 This also means enough evidence was submitted to establish the underlying crimes of 

Possession of a Controlled Substance with the Intent to Deliver and Possession of a Controlled 

Substance, as the charges merge. Summarily Possession of Drug Paraphernalia is also satisfied 

by the packaging of the controlled substances alone although the two crimes do not merge for 

sentencing. See Commonwealth v. Pitner, 928 A.2d 1104, 1111 (Pa. Super. 2007). 

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

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

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

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

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

are supported by the evidence submitted at trial. 

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

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

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

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

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

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

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

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

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

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

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

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

Endangering the Welfare of a Child.1° 

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

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

'° Jury's attentiveness is demonstrated in the verdict. They found Defendant guilty of 

Endangering the Welfare of Children, but not the aggravator of a child under six, because the 

only evidence was provided was Miller's description that the child was about five or six. 

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

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

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

paraphernalia, the Ziploc bag. 

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

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

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

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

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

Therefore Defendant's contention has no merit. 

Whether the Verdict was Against the Weight of the Evidence 

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

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

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

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

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

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

546 (Pa. Super. 2006). 

The weight given to trial evidence is a choice for the factfinder. If the factfinder 

returns a guilty verdict, and if a criminal defendant then files a motion for a 

new trial on the basis that the verdict was against the weight of the evidence, a 

trial court is not to grant relief unless the verdict is so contrary to the evidence 

as to shock one's sense of justice. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

weight of the evidence is meritless. 

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

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

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

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

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

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

9 
also consider whether consolidation would unduly prejudice the defendant" Commonwealth v. Knoble, 188 A.3d 1199, 1205 (Pa. Super. 2018). The Commonwealth typically may not 

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

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

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

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

prove the others; or the identity of the person committing the charged crime." Commonwealth v. Taylor, 445 A.2d 174, 177 (Pa. Super. 1982). 

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

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

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

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

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

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

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

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

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

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

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

not unduly prejudiced by the informations consolidation. 

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

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

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

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

Unless opportunity did not exist prior thereto, a challenge to the array shall be 

made not later than 5 days before the first day of the week the case is listed for 

trial of criminal cases for which the jurors have been summoned and not 

thereafter, and shall be in writing, specifying the facts constituting the ground 

for the challenge. 

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

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

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

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

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

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

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

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

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

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

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

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

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

relevant portion from the report at issue reads as follows: 

During the preliminary arraignment on 03/01/17, [Defendant] was very 

adamant that he was not the person that had delivered to my CI. After the 

preliminary hearing, I told him he was in the vehicle and he said that he was 

not. I told him Emily rented the car for him and he said that he did not know 

Emily. I showed him a picture of her and he abruptly stated that that was his 

"'brother's baby mama.- We then went into the holding room at MDJ Fry's 

office. He continued talking that he did not sell drugs to the Cl. He stated that 

he has never sold "dope- but he has sold marijuana. I stopped him and read him 

his Miranda Warnings at 1015 hours. He acknowledged his rights and stated he 

would talk to me. [Defendant] stated that he does know cell phone number 570- 
980-3497. He stated that he never met the CI and the CI was wrong. The owner 

of the cell phone is similar looking to him. He identified the owner of that cell 

phone number as Nadi HACHETT . He stated he would not testify in court 

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

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

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

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

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

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

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

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

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

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

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

Whether the Court's Sentence was Unreasonable and Excessive 

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

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

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

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

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

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

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

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

11 Defendant committed offenses prior to the enactment of current offense gravity score 

section. and therefore Defendant is not affected by the enhancement for fentanyl laced 

controlled substances. 
CR 580-2017 for the delivery of .55 grams of cocaine and fentanyl, .47 grams of heroin and 

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

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

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

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

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

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

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

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

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

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

above counts were ordered to run consecutive to one another. 12 -All numbers in sentence recommendations suggest months of minimum 

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

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

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

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

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

range. Therefore those sentences are not unreasonable and/or excessive. See Commonwealth v. Raven, 97 A.3d 1244, 1254-55 (Pa. Super. 2014) (sentencing a defendant within the standard 

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

C2 Remainder of Defendant's charges either were ordered to run concurrent to one another, 

merged for purposes of sentencing, or Defendant was given a fine, which does not affect the 

aggregate sentence and therefore is not at issue. 

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

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

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

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

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

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

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

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

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

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

sentence. Id. 

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

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

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

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

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

would diminish the seriousness of each offense. 

ORDER 

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

Motion for Post Sentence Relief is hereby DENIED. 

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

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

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

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

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

Pennsylvania Rule of Criminal Procedure 521(B). 

BY THE COURT. 

cc: Ryan Gardner, Esq. 

DA (NI) 

NLB/kp 
Circulated 08/31/2020 11:06 M 

IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA 

COMMONWEALTH OF PENNSYLVANIA V. WAYNE CRIPPEN 

CR-580-17 :.7, : , . 

t.... CR-411-17 ,:-" :::, ="r-7: ..,. CR-597-17 /8 rn ." - CR-161-17 -. .,,f5 Ff. cD 

Omnibus Prablal.,MOttons 

OPINION AND ORDER 

On July 6, 2017, Defendant, Wayne Crippen, filed 

=-7./ ".,71 .< CI -77 %.". Un 

rC) 

sZD 17: 

G7 

c> c. C) -< 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 lineup. Therefore, Morse's actions were not improper. 

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

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

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

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

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

Defendant in the photographic line-up. 

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

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

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

a. The stop of Defendant's vehicle was lawful 

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

December 6, 2016 was illegal. 

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

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

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

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

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

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

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

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

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

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

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

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

maintained surveillance upon Defendant and Defendant's vehicle during and 

following the controlled purchase. During this surveillance, Snyder contacted 

Dammer and supplied him with information about the investigation, including 

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

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

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

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

to facilitate an arrest of Defendant. 

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

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

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

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

9 Pennsylvania courts have cited to Whiteley and Hensley for the notion that an arresting officer, lacking 

sufficient personal knowledge amounting to probable cause, may rely on direction from an officer possessing 

the requisite knowledge without running afoul of the Fourth Amendment. Citing Whiteley v. Warden, 401 

U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), and United States v. Hensley, 469 U.S. 221, 105 

S.Ct. 675, 83 L.Ed.2d 604 (1985), Yong,130 A.3d at 306. 

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

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

not be suppressed. 

b. The pat down of Defendant during the traffic stop was lawful, 

therefore the physical evidence obtained as a result of the search is 

admissible 

Defendant argues that even if the stop of Defendant's vehicle by Dammer was 

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

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

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

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

search was lawful because Defendant consented to the pat down. 

The Fourth Amendment protects against unreasonable searches and 

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

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

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

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

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

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

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

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

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

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

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

to prove voluntary consent. Id. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

is allowed. 

13 
Ill. The Commonwealth has presented sufficient evidence to support the 

charge of Endangering the Welfare of Children 

Defendant argues that the Commonwealth did not provide sufficient evidence 

to sustain the charge of Endangering the Welfare of Children. 

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

The statute states the following: 

A parent, guardian or other person supervising the welfare of a child under 18 

years of age, or a person that employs or supervises such a person, commits 

an offense if he knowingly endangers the welfare of the child by violating a 

duty of care, protection or support. 

18. Pa.C.S.A. § 4304(a)(1). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Court finds that the Commonwealth has provided sufficient evidence to 

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

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

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

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

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

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

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

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

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

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

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

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

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

physically if the purchase did not go as planned. 

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

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

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

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

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

Therefore, the Commonwealth has provided sufficient evidence to support the 

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

to Dismiss shall be denied. 

16 
ORDER 

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

submitted by counsel, the Court makes the following findings: 

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

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

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

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

(3) the traffic stop of Defendant's vehicle by Trooper Dammer was lawful; 

(4) the pat down of Defendant by Trooper Dammer was lawful, thus the physical 

evidence obtained as a result of that search is allowed; and 

(5) the Commonwealth has presented sufficient evidence to support the charge of 

Endangering the Welfare of Children. 

Therefore, Defendant's Omnibus Pretrial Motions are DENIED. 

y The Court, 

Nancy L. Bu 

Cc: Nicole Ippolito, Esq. Assistant District Attorney 

Wayne Crippen, pro se, Lycoming County Prison 

, Pre ident Judge 

17