J-S49040-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JASON BINGAMAN

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 514 WDA 2020

Appeal from the PCRA Order Entered March 30, 2020

In the Court of Common Pleas of Jefferson County Criminal Division at

No(s): CP-33-CR-0000131-2016

COMMONWEALTH OF PENNSYLVANIA

v.

JASON BINGAMAN

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 515 WDA 2020

Appeal from the PCRA Order Entered March 30, 2020

In the Court of Common Pleas of Jefferson County Criminal Division at

No(s): CP-33-CR-0000236-2016

BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.* MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 11, 2020

Appellant Jason Bingaman appeals the order of the Court of Common

Pleas of Jefferson County denying his petition pursuant to the Post-Conviction

Relief Act (PCRA).1 Appellant claims that his trial counsel was ineffective in

failing to object to the trial court’s failure to give a jury instruction explaining

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* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546.
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the limited purpose for which prior bad act evidence could be considered. After careful review, we affirm.

Appellant was arrested and charged in connection with the operation of

two separate methamphetamine labs in Brookville, Pennsylvania and Glen

Campbell, Pennsylvania. At the conclusion of Appellant’s consolidated trial,

on September 26, 2013, a jury convicted Appellant of multiple drug-related

offenses, including inter alia, operating a methamphetamine lab,

manufacturing a controlled substance, illegal dumping of methamphetamine

waste, and criminal conspiracy (manufacture/possession with intent to deliver

a controlled substance).2

On direct appeal, this Court included the following summary of the

factual background of this case:

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

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2 35 P.S. §§ 780-113.4(a)(1), 780-113(a)(3), 780-113.4(b)(1) and 18

Pa.C.S.A. § 903, respectively.
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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. 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

meth-making materials and associated items were found on a

table in the same room. 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.

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 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
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Appellant and was told that they were not ready to arrest

Appellant at that point. He was released.

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.

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.

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.

Based on these facts, Appellant was charged in the case

docketed at CP-33-CR-0000131-2016 with various offenses

stemming from the methamphetamine-manufacturing operation

(hereinafter, “meth lab”) 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.
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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. Commonwealth v. Bingaman, 51 WDA 2017, 2018 WL 3849866, at *1–2

(Pa.Super. Aug. 14, 2018) (unpublished memorandum) (paragraph spacing

added, citations and brackets omitted).

On direct appeal, Appellant claimed the trial court had erred in

consolidating his two cases for trial, alleging that the evidence in each of his

cases was inadmissible in the other prosecution. Appellant also argued that

the trial court abused its discretion in allowing the Commonwealth to admit

testimony concerning his prior bad acts and in failing to give a cautionary

instruction to the jury regarding the admission of the prior bad act evidence.

On August 24, 2018, this Court affirmed the judgment of sentence. This

Court found that consolidation of the two cases was appropriate as the charges

in each of Appellant’s indictments “flowed from a sequence of events that

formed the history of the case.” Id. at *3. This Court agreed with the

Commonwealth that Appellant’s “production of methamphetamine was

factually, a single continuous enterprise” in which facts in both cases were

“inextricably woven together into one story.” Id. at *4.

In addition, this Court determined that the trial court properly exercised

its discretion in denying Appellant’s motion to preclude the prosecution from
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admitting prior bad act evidence of his shared drug involvement with Kristen

Cook, including how Cook met Appellant and allowed him to move in, observed

him using and making meth, and how Cook and other individuals assisted

Appellant in exchange for meth. This Court noted that Appellant failed to

argue why the trial court erred in finding such testimony was admissible under

the res gestae exception under Pa.R.E. 404(b) “where the evidence became a

part of the history of the case and formed part of the natural development of

the facts.” Id. at *4. Moreover, this Court reasoned that the prejudicial impact

of Cook’s testimony did not outweigh its probative value in explaining the

“context of her relationship with Appellant and the history of his

methamphetamine-making endeavors.” Id. at *6.

Lastly, this Court reasoned that Appellant waived his claim that the trial

court failed to provide an adequate cautionary instruction as defense counsel

did not object when the trial court failed to give a jury instruction pertaining

to the proper consideration of prior bad acts.

On December 26, 2018, the Supreme Court denied Appellant’s petition

for allowance of appeal. Commonwealth v. Bingaman, 650 Pa. 245, 199

A.3d 862 (2018).

On September 6, 2019, Appellant filed a pro se PCRA petition,3in which

he raised, inter alia, various claims of the ineffectiveness of his trial counsel, ____________________________________________

3 Appellant’s PCRA petition was timely filed. See 42 Pa.C.S.A. § 9545(b)(1)

(providing that as a general rule, a PCRA petition “including a second or
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Patrick Lavelle, Esq. The PCRA court appointed Appellant counsel (George N.

Daghir, Esq.) and held an evidentiary hearing on Appellant’s petition.

On March 30, 2020, the PCRA court entered an order denying

Appellant’s petition. On April 16, 2020, Appellant filed separate notices of

appeal at each docket and subsequently complied with the PCRA court’s order

to file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).

Appellant raises one issue for our review on appeal:

Was trial counsel ineffective for failing to object when the trial

court failed to give a previously requested cautionary/limiting jury

instruction regarding the Commonwealth’s introduction at trial of

[Appellant’s] prior criminal conduct and/or bad acts evidence such

that [Appellant] was prejudiced thereby and entitled to a new

trial?

Appellant’s Brief, at 3.

Our standard of review is well-established:

[o]ur review of the grant or denial of PCRA relief is limited to

examining whether the PCRA court's findings of fact are supported

by the record, and whether its conclusions of law are free from

legal error. Commonwealth v. Cox, 636 Pa. 603, 146 A.3d 221,

226 n.9 (2016). The PCRA court's credibility determinations, when

supported by the record, are binding on this Court; however, we

apply a de novo standard of review to the PCRA court's legal

conclusions. Commonwealth v. Burton, 638 Pa. 687, 158 A.3d

618, 627 n.13 (2017). Commonwealth v. Small, 647 Pa. 423, 440–41, 189 A.3d 961, 971 (2018).

____________________________________________ subsequent petition, shall be filed within one year of the date the judgment of

sentence becomes final”).
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In reviewing Appellant’s claim that trial counsel provided ineffective

representation, we are guided by the following principles:

[a]s originally established by the United States Supreme

Court in Strickland v. Washington, 466 U.S. 668, [104

S.Ct. 2052, 80 L.Ed.2d 674] (1984), and adopted by

Pennsylvania appellate courts, counsel is presumed to have

provided effective representation unless a PCRA petitioner

pleads and proves all of the following: (1) the underlying

legal claim is of arguable merit; (2) counsel's action or

inaction lacked any objectively reasonable basis designed to

effectuate his client's interest; and (3) prejudice, to the

effect that there was a reasonable probability of a different

outcome at trial if not for counsel's error.

Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa.Super. 2014)

(citations omitted). “A failure to satisfy any prong of the

ineffectiveness test requires rejection of the claim of

ineffectiveness.” Commonwealth v. Daniels, 600 Pa. 1, 963

A.2d 409, 419 (2009).

Commonwealth v. Selenski, 228 A.3d 8, 15 (Pa.Super. 2020).

In this case, Appellant claims that trial counsel was ineffective in failing

to object when the trial court failed to give the jury a specific instruction

regarding the permissible use of the prior bad act evidence introduced by the

Commonwealth through the testimony of Kristen Cook and then discussed in

the prosecutor’s closing argument. We are cognizant of the following well-established principles that are

applicable to the admission of evidence of prior crimes and bad acts:

While it is true that evidence of prior crimes and bad acts is

generally inadmissible if offered for the sole purpose of

demonstrating the defendant's bad character or criminal

propensity, the same evidence may be admissible where relevant

for another purpose. Examples of other such relevant purposes

include showing the defendant's motive in committing the crime
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on trial, the absence of mistake or accident, a common scheme or

design, or to establish identity.... the evidence may also be

admitted where the acts were part of a chain or sequence of

events that formed the history of the case and were part of its

natural development. Of course, in addition to the relevance

requirement, any ruling on the admissibility of evidence is subject

to the probative value/prejudicial effect balancing that attends all

evidentiary rulings.

Commonwealth v. Hutchinson, 611 Pa. 280, 322, 25 A.3d 277, 300–301

(2011) (quoting Commonwealth v. Powell, 598 Pa. 224, 956 A.2d 406, 419

(2008) (internal citations omitted); Pa.R.E. 404(b)). Our courts have held that “when evidence of a defendant's prior criminal

conduct or bad acts is admitted, the defendant is entitled upon request to a

jury instruction explaining the limited purpose of such evidence.”

Hutchinson, 611 Pa. at 329, 25 A.3d at 305 (citing Commonwealth v.

Tedford, 598 Pa. 639, 960 A.2d 1, 37 (2008) and Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835, 841–42 (1989)).

While Appellant relies on the Supreme Court’s decision in Billa, we find

the facts of that case to be distinguishable. In Billa, the appellant had been

convicted of the first-degree murder of a sixteen-year-old Hispanic female. During the trial, the prosecution was permitted to admit evidence that the

appellant had committed a prior sexual assault of another young Hispanic

female two months earlier, as the trial court found the crimes were similar

enough in modus operandi and to show the appellant’s intent, motive and

absence of accident. Billa, 521 Pa. at 174-75, 555 A.2d at 838-39.
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On appeal, the Supreme Court found the appellant’s trial counsel was

ineffective in failing to request a jury instruction to explain the limited

purposes for which the evidence of the prior assault was relevant and

admissible. The Supreme Court recognized that the extensive testimony of

the appellant’s prior rape victim, which constituted a substantial part of the

prosecution’s case, was highly inflammatory and “created the substantial

danger that the jury could be swayed in its deliberations ... by this evidence

showing [the] appellant’s criminal character and his propensity to sexually

assault young Hispanic females.” Id. at 180, 555 A.2d at 841. As an

appropriate limiting instruction might have brought the “limited legal

significance [of the prior assault] in proper prospective,” the Supreme Court

awarded the appellant a new trial. Id. at 183, 555 A.2d at 843.

In contrast, in this case, we reject Appellant’s claim that trial counsel

was ineffective in failing to request a limiting instruction. The evidence of

Appellant’s illegal activity was not inflammatory, but directly relevant to

explain how an ongoing criminal enterprise developed and ultimately

unraveled upon the discovery of the two meth labs in December 2015. Nearly

all the questioned evidence can be characterized as direct or circumstantial

evidence of Appellant’s participation in a conspiracy to operate a meth lab

rather than prior bad acts or crimes.

In addition, while the trial court did not instruct the jury specifically on

how to view specific instances of res gestae testimony, it emphasized that

Appellant’s charges for the Brookville and Glen Campbell meth labs involved
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separate and distinct matters, which required the jury to consider each offense

and the evidence applicable to each offense separately. Notes of Testimony

(N.T.), 9/23/16, at 206-208. The trial court specifically instructed the jury

that, even if they found the prosecution had proven that Appellant operated

one of the meth labs, the jury still had to find the charges regarding the other

lab were proven beyond a reasonable doubt and could only consider the

evidence connected to each lab as proof of a “common plan, scheme, or

design.” Id. Moreover, Appellant failed to prove that he was prejudiced such that

there was a reasonable probability that the outcome of his trial would have

been different but for counsel’s failure to request the additional limiting

instruction. The prosecution presented overwhelming evidence of Appellant’s

guilt and his direct connection to both labs, offering witness testimony that

was corroborated with physical evidence.

There was compelling evidence that Appellant had been cooking meth

at Kristen Cook’s Brookville home when officers arrived to serve a warrant.

Based on the facts presented, it is reasonable to infer that Appellant fled from

the home to evade the police, exited the door without properly closing it, left

his jacket and his car at Cook’s home, and returned to the scene the following

day, soaking wet and freezing cold as he did not have appropriate clothing for

the weather. These circumstances were explained and corroborated by

Appellant’s admissions to others that, as he had been making meth when the
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police arrived, Appellant fled the home, traveled “through a river,” spent the

night in a tree stand, and was picked up by the police the next day.

In addition, upon discovering the active meth lab at the Brookville home,

officers discovered Appellant’s meth-production notebook which documented

the interworkings of his labs. The notebook contained records of numerous

purchases of Sudafed made by Appellant and various individuals who testified

that they supplied Appellant with this ingredient so that he could manufacture

meth at both the Brookville and Glen Campbell homes. Appellant’s notebook

and Steelers jacket were found next to meth-making paraphernalia.

With respect to the meth lab discovered at the Glen Campbell location,

constables caught Appellant at the scene when serving an arrest warrant for

Jordan Pavlak. The testimony of several witnesses that Appellant was

manufacturing meth in Glen Campbell (Cook, Nolder, and Pavlak) was

corroborated by records that Appellant had arranged for others to purchase

Sudafed on his behalf, but left that location as he was concerned the police

were watching him there. Witness testimony and purchasing records also

showed that Appellant resumed meth production at the Glen Campbell lab

after his Brookville lab was discovered on December 14 and continued until

the Glen Campbell lab was busted on December 31. Officers also recovered

a Coleman Fuel can, an instrument used in the meth-making process; the can

had the name “Jason” written on it.

Given the overwhelming evidence of Appellant’s guilt, we agree with the

PCRA court’s assessment that “it is fanciful to posit that [the jury] members
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would have found [Appellant] not guilty had they been given a 404(b)

instruction.” PCRA Court Opinion, 3/30/20, at 3. See Hutchinson, 611 Pa.

at 330-31, 25 A.3d at 306 (finding that in light of the overwhelming evidence

of the appellant’s guilt, the appellant failed to show how he was prejudiced by

his counsel’s failure to request a jury instruction on the limited purpose of Rule

404(b) evidence). As such, Appellant’s ineffectiveness claim fails.

Accordingly, we affirm the PCRA court’s order denying his petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/11/2020