J-A02011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RHAMIN A. TURNER                           :
                                               :
                       Appellant               :   No. 726 MDA 2018

             Appeal from the Judgment of Sentence April 19, 2018
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0000496-2017,
              CP-36-CR-0000937-2017, CP-36-CR-0001044-2017


BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY LAZARUS, J.:                              FILED MARCH 01, 2019

       Rhamin A. Turner appeals from his judgment of sentence, 1 entered in

the Court of Common Pleas of Lancaster County, after a jury found him guilty




____________________________________________


1 We note that Turner filed one notice of appeal for three docket numbers.
Our Supreme Court has held that “where a single order resolves issues arising
on more than one docket, separate notices of appeal must be filed for each
case.” Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018). However,
the Court in Walker declined to apply the rule to the case before it, because
to do so would run “contrary to decades of case law from [the Pennsylvania
Supreme Court] and the intermediate appellate courts that, while
disapproving of the practice of failing to file multiple appeals, seldom quashed
appeals as a result.” Id. Although the Court instructed that, prospectively,
a failure to file a notice of appeal for each lower court docket will result in
quashal of the appeal, Turner’s notice of appeal was filed prior to the Walker
ruling. Accordingly, Walker is not controlling, and we decline to quash
Turner’s appeal.
J-A02011-19



of three counts each of possession with intent to deliver cocaine (“PWID”)2

and criminal use of a communication facility.3 Upon careful review, we affirm.

        Turner was convicted of the above offenses after engaging in three

separate drug transactions with a confidential informant (“CI”).              The

transactions were conducted under the auspices of the Selective Enforcement

Unit of the Lancaster City Bureau of Police and were described as “buy-walk”

transactions, in which an undercover officer uses a CI to “go to various areas

in Lancaster to attempt to purchase controlled substances from people. After

the purchase is made, the suspect in the investigation would not be stopped;

rather, the suspect would be allowed to walk away.” Trial Court Opinion, at

12-13 (citations to record omitted). The operation was run by Officer Jared

Snader, with the transactions occurring in April, May, and June of 2016. Three

separate criminal informations were filed against Turner on February 6, 2017,

March 6, 2017 and March 9, 2017.

        On appeal, Turner raises two issues for our review:

        1. Whether the trial court erred when it denied pre-trial the
        production of the confidential [i]nformant. Since identity was the
        defense, the court’s denial was a significant hindrance to
        [Turner’s] defense and denied him his constitutional right to
        confront witnesses against him and to compel witnesses to
        appear[.]

        2. Whether the evidence was insufficient as a matter of law to
        convict [Turner] of the relevant drug sales. There was no
        identification by police, the informant was not produced, there was
____________________________________________


2   35 P.S. § 780-113(a)(30).

3   18 Pa.C.S.A. § 7512(a).

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      no search of [Turner’s] house, no audio/video, no pictures, no
      fingerprints, no DNA and no recovery of prerecorded money[.]

Brief of Appellant, at 5.

      Turner first asserts that the trial court erred in failing to grant his motion

to produce the CI.     Turner argues that, because his defense was one of

mistaken identity, “the identity and credibility of the informant was completely

material to the asserted defense as there was only a single Commonwealth

[eye]witness[.]” Brief of Appellant, at 11. Turner relies upon our Supreme

Court’s decision in Commonwealth v. Payne, 656 A.2d 77 (Pa. 1994), in

which the Court reversed the trial court’s denial of the defendant’s motion to

produce a CI where the sole witness to the sale was an undercover state

trooper. Turner is entitled to no relief.

      We begin by noting that “[o]ur standard of review of claims that a trial

court erred in its disposition of a request for disclosure of an informant’s

identity is confined to abuse of discretion.” Commonwealth v. Watson, 69

A.3d 605, 607 (Pa. Super. 2013) (citation omitted).

      Pennsylvania Rule of Criminal Procedure 305(B) provides as follows:

      (2) Discretionary With the Court.

        (a) In all court cases, except as otherwise provided in Rule 263
        (Disclosure of Testimony Before Investigating Grand Jury), if
        the defendant files a motion for pretrial discovery, the court
        may order the Commonwealth to allow the defendant’s attorney
        to inspect and copy or photograph any of the following
        requested items, upon a showing that they are material to the
        preparation of the defense, and that the request is reasonable:

         (i) the names and addresses of eyewitnesses[.]




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Pa.R.Crim.P. 305(B)(2)(a)(i). The Pennsylvania Supreme Court has adopted

the following guidelines regarding the disclosure of confidential informants:

         We believe that no fixed rule with respect to disclosure [of the
         confidential informant’s identity] is justifiable. The problem is one
         that calls for balancing the public interest in protecting the flow of
         information against the individual’s right to prepare his defense.
         Whether a proper balance renders nondisclosure erroneous must
         depend on the particular circumstances of each case, taking into
         consideration the crime charged, the possible defenses, the
         possible significance of the informer’s testimony, and other
         relevant factors.

Commonwealth v. Carter, 233 A.2d 284, 287 (Pa. 1967), quoting Roviaro

v. United States, 353 U.S. 53, 60-62 (1957).                This balance is initially

weighted toward the Commonwealth, which holds a qualified privilege to

maintain an informant’s confidentiality to preserve the public’s interest in

effective law enforcement. Commonwealth v. Bing, 713 A.2d 56, 58 (Pa.

1998). However, the balance tips in favor of disclosure where guilt is found

solely on police testimony from a single observation and testimony from a

disinterested source, such as the informant, is available.            Id.    However,

“[w]here other corroboration of the officer’s testimony exists, disclosure of the

informant’s identity is, of course, not necessarily required.” Payne, 656 A.2d

at 79.

               [A] defendant seeking production of a confidential
               informant at a suppression hearing must show that
               production is material to his defense, reasonable, and
               in the interest of justice. By this we mean that the
               defendant must demonstrate some good faith basis in
               fact to believe that a police officer-affiant willfully has
               included misstatements of facts in an affidavit of
               probable cause which misrepresents either the

                                          -4-
J-A02011-19


           existence of the informant or the information
           conveyed by the informant; that without the
           informant’s information there would not have been
           probable cause; and that production of the informant
           is the only way in which the defendant can
           substantiate his claim.

Commonwealth v. Bonasorte, 486 A.2d 1361, 1374 (Pa. 1984).

     Here, the trial court summarized the evidence elicited at the evidentiary

hearing on Turner’s motion as follows:

     [T]he instant matters, which were charged by way of three
     separate Criminal Informations, involved three distinct alleged
     drug transactions between [Turner] and a [CI].           The first
     transaction was alleged to have occurred on April 29, 2016 at
     1360 Columbia Avenue, Lancaster City, Lancaster County,
     Pennsylvania.     The second transaction was alleged to have
     occurred on May 12, 2016 in the parking lot of the Edward Hand
     Middle School, located at 431 South Ann Street, Lancaster City,
     Lancaster County, Pennsylvania. The final transaction was alleged
     to have occurred on June 2, 2016 at 653 Columbia Avenue,
     Lancaster City, Lancaster County, Pennsylvania.            At the
     evidentiary    hearing,    [Turner]   acknowledged      that    the
     Commonwealth alleged that an undercover law enforcement
     officer was near the scene of each suspected transaction. As such,
     the matters at bar involve more [of] an isolated incident, or a
     single opportunity for the investigating law enforcement officers
     to view the perpetrator. Rather, the instant matters involve three
     separate criminal transactions occurring over thirty-four days.

     Additionally, at the evidentiary hearing, the Commonwealth
     established the existence of a great deal of circumstantial
     evidence which would corroborate the testimony of the
     investigating law enforcement officers at trial.       Specifically,
     [Turner] acknowledged that he was aware that the [CI] was
     dealing with an individual, who[] was known by the nickname of
     “Pop[.]” The Commonwealth established, by the introduction of
     numerous postings from [Turner’s] Facebook page, that many
     people referred to [Turner] as “Pop[.]” [Turner] also conceded
     that his wife owns a green Nissan Altima automobile and that said
     automobile was alleged to have been used by the suspect in two
     of the instant drug transactions. [Turner], further, acknowledged
     that he resides with his mother-in-law, who owns a Jaguar vehicle,

                                    -5-
J-A02011-19


      and that such automobile was alleged to have been used by the
      suspect in the other alleged drug transaction. Finally, [Turner]
      acknowledged that he was aware that one of the transactions was
      alleged to have occurred in the parking lot of the Edward Hand
      Middle School and that, during such transaction, the suspect
      indicated that he was a coach at the facility. During his testimony,
      [Turner] admitted that he was involved in coaching youth athletics
      at the school. As such, notwithstanding the limited evidence
      presented at the evidentiary hearing, the Commonwealth
      demonstrated the existence of ample evidence to corroborate the
      testimony of any investigating law enforcement officers at trial in
      this matter.

Trial Court Opinion, at 8-9 (citations to record omitted).

      We agree with the trial court that Turner failed to demonstrate that the

testimony of the CI was material to his defense in light of the substantial

evidence corroborating the multiple eyewitness identifications by Officer

Snader. That corroborating evidence distinguishes this matter from Payne.

There,

      an undercover Pennsylvania State Police Officer and a [CI],
      investigating drug activity, saw Appellant and a female standing
      on a corner. The [CI] pointed out or “fingered” Appellant and then
      went to Appellant and spoke to him. On returning to the trooper’s
      vehicle, the [CI] told the trooper that they could make a drug
      purchase from Appellant. Appellant and the woman drove off to
      another location, followed by the police vehicle. A back-up police
      vehicle apparently followed but was not further involved in the
      ensuing drug purchase. After dropping off the Appellant, the
      woman departed in her car. The trooper and the [CI] followed the
      Appellant on foot between two buildings where the trooper in the
      informant’s presence paid the Appellant for 7.4 grams of cocaine.
      The so-called informant was now clearly a witness to the crime as
      well. This transaction took place on May 11, 1990, but the
      Appellant was not arrested until December 10 of that year.
      Neither the officer nor any other police had any contact with the
      Appellant in the interim, although the officer said he saw Appellant
      in the area on several later occasions.



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Payne, 656 A.2d at 77–78. The foregoing scenario represented the totality

of the Commonwealth’s identification evidence.       At trial, Payne raised a

defense of mistaken identity. The trial court denied Payne’s motion, and this

Court affirmed. The Supreme Court reversed. In doing so, it relied upon its

earlier decision in Commonwealth v. Carter, 233 A.2d 284 (Pa. 1967).

There, the Court

      accepted the government’s privilege of non-disclosure but ruled
      that the privilege must give way where disclosure of an
      eyewitness’s identity is relevant and helpful to the defense or is
      necessary to a fair determination of a cause. . . . We further held
      that the proper balance between the prosecution and defense
      necessarily must tip in favor of disclosure where guilt is based
      solely on a single observation by the police but testimony from a
      “more disinterested source is available.”             Where other
      corroboration of the officer’s testimony exists, disclosure of the
      informant's identity is, of course, not necessarily required.

Payne, 656 A.2d at 79. Because the sole evidence of identity in Payne was

the testimony of a single observation by one police officer, and because the

criminal information was not filed for another seven months after the

undercover buy, the Court held that disclosure was warranted in light of the

defendant’s claim of mistaken identity.

      Conversely, here, Officer Snader observed three separate transactions

over a period of more than one month. More significantly, Officer Snader’s

eyewitness identification of Turner was bolstered by substantial corroborative

information, thus minimizing the likelihood that Turner was incorrectly

identified as the person who repeatedly sold drugs to the CI. Specifically, the

CI told Officer Snader he knew Turner as “Pop,” a name by which people


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J-A02011-19



referred to Turner on his own Facebook page and which Turner conceded was

a name by which people called him.4              Additionally, at the first and third
____________________________________________


4 The following exchange took place during Turner’s cross-examination at
the motion hearing:

       Q: Okay. You say your nickname is not Pop?

       A: My name is Rhamin Turner. My grandkids call me Pop-Pop.

       Q: Do you have anyone that calls you Pop?

       A: No.

       Q: Do you have a Facebook page, sir?

       A: Yes, I do.

       Q: And what’s your name on your Facebook page?

       A: Rhamin Turner, Sr.

       Q: And who is Elizabeth Louis?

       A: I don’t know.

       Q: She’s friends with you on Facebook?

       A: Probably, yeah.

       Q: You know her family?

       A: Yes.

       Q: Does she call you Pop?

       A: Probably. I don't know.

       Q: What about Darryl Wiley, who’s Darryl Wiley?

       A: A Facebook friend.

       Q: Does he call you Pop?

       A: Probably.



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transactions, on April 29, 2016, and June 2, 2016, the person who sold drugs

to the CI was driving a green Nissan Altima—the same make, model and color

as a car owned by Turner’s wife. On the date of the third transaction, May

12, 2016, the person who sold the CI drugs was driving a silver Jaguar XJ8,

the same make, model and color as a car owned by Turner’s mother-in-law,

with whom Turner resided. Finally, the May 12, 2016 sale took place in the

parking lot of a middle school where Turner testified that he coached sports.

During that sale, “Pop” mentioned to the CI that he was a coach at that school.

____________________________________________


                                           ...

       Q: Sir, I've handed you what’s been marked Commonwealth’s
       Exhibit 1. Do you recognize that photograph?

       A: Yes, I do.

       Q: And what is that photograph of?

       A: Of me coming out of Planet Fitness like four years ago.

       Q:   Okay.       And are there comments on the side of that
       photograph?

       A: Yes, it is.

       Q: Is there a comment from Elizabeth Louis calling you Pop?

       A: Yeah.

       Q: Is there a comment from Darryl Wiley calling you Pop?

       A: Yes.

       Q: So people do call you Pop?

       A: Yeah, I guess, yes.

N.T. Motion Hearing, 9/14/17, at 14-16 (emphasis added).


                                           -9-
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      In light of the foregoing, we conclude that the information gathered by

police to corroborate Officer Snader’s eyewitness identification of Turner

mitigated the risk of misidentification such that the trial court could reasonably

conclude that production of the CI was not required under Carter and Payne.

Accordingly, we find no abuse of discretion by the trial court.

      Turner also claims that the evidence presented by the Commonwealth

was insufficient to support his convictions.

      The standard we apply in reviewing the sufficiency of the evidence
      is whether viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact-finder to find every element of the crime beyond
      a reasonable doubt. In applying the above test, we may not weigh
      the evidence and substitute our judgment for the fact-finder. In
      addition, we note that the facts and circumstances established by
      the Commonwealth need not preclude every possibility of
      innocence. Any doubts regarding a defendant’s guilt may be
      resolved by the fact-finder unless the evidence is so weak and
      inconclusive that as a matter of law no probability of fact may be
      drawn from the combined circumstances. The Commonwealth
      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial
      evidence. Moreover, in applying the above test, the entire record
      must be evaluated and all evidence actually received must be
      considered. Finally, the finder 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. Matthews, 196 A.3d 242, 249 (Pa. Super. 2018),

quoting Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa. Super. 2010)

(citations omitted).




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       We have reviewed the certified record, the pertinent law, and the

Appellant’s brief5 and conclude that the opinion authored by the Honorable

Merrill M. Spahn, Jr., thoroughly and correctly disposes of Turner’s sufficiency

claim.   Accordingly, we affirm on the basis of Judge Spahn’s opinion and

instruct the parties to attach a copy of that document in the event of further

proceedings in this matter.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/01/2019




____________________________________________


5 The Commonwealth did not submit a brief in this matter, instead opting to
rely on the trial court’s opinion.

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Circulated 02/04/2019 11:21 AM




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1282-83 (Pa. 1996). The privilege is not absolute, however, and must give way under the

appropriate circumstances.

       When moving for disclosure, the defendant must first establish that the identity of the

confidential informant is material to the defense and that such request is reasonable in nature.

Interest of D.B., 820 A.2d 820, 822 (Pa. Super. 2003). If the defendant satisfies this burden, then

the trial court must apply a balancing test, with "the balance initially weigh[ ing] in favor of

maintaining confidentiality of the informant's identity in order to preserve the public's interest in

effective law enforcement." Commonwealth v. McCulligan, 905 A.2d 983,.989 (Pa. Super.

2006). The trial court may not exercise its discretion to determine whether disclosure is required

until the defendant makes the threshold showing of materiality and reasonableness.

Commonwealth v. Jordan, 125 A.3d 55. 63 (Pa. Super. 2015)(en bane).

       Regarding the threshold inquiry of materiality and reasonableness, the Pennsylvania

Superior Court has held,

               ... the defendant need not predict exactly what the informant will
               say, but he must demonstrate a reasonable possibility the informant
               could give evidence that would exonerate him. More than a mere
               assertion that disclosure of the informant's identity might be helpful
               is necessary. Only after this threshold showing that the information
               is material and the request reasonable is the trial court called upon
               to determine whether the information is to be revealed.

Commonwealth v. Belenky, 777 A.2d 483, 488 (Pa. Super. 2001).

       "[T]he defendant must lay an evidentiary basis or foundation that the confidential

informant possesses relevant information that will materially aid the defendant in presenting his

or her defense and that the information is not obtainable from another source." Commonwealth

v. Hritz, 663 A.2d 775, 780 (Pa. Super. 1995). See, Commonwealth v. Eicher, 605 A.2d 337,

348 (Pa. Super. 1992) (appellant seeking disclosure of informant must have "concrete evidence"



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disclosure of the informant's identity was material. It is specifically noted that Defendant, is his

pre-trial motion and testimony at the evidentiaryhearing, made a bare assertion of mistaken

identity. Defendant failed to present any other evidence or argument suggestive of a reasonable

possibility that disclosure of the informant's identity would be helpful. Said bare allegation is

insufficient for Defendant to carry his burden when viewed considering the other evidence

presented by the matters at bar.

       At the evidentiary hearing, the Commonwealth established the instant matters, which

were charged by way of three separate Criminal Informations, involved three distinct alleged

drug transactions between Defendant and a confidential informant. The first transaction was

alleged to have occurred on April 29, 2016 at 1360 Columbia Avenue, Lancaster City, Lancaster

County, Pennsylvania. (N.T. Evid. Hrg., p. 8). The second transaction was alleged to have

occurred on May 12, 2016 in the parking lot of the Edward Hand Middle School, located at 431

South Ann Street, Lancaster City, Lancaster County, Pennsylvania. (N.T. Evid. Hrg., p. 7). The

final transaction was alleged to have occurred on June 2, 2016 at 653 Columbia Avenue,

Lancaster City, Lancaster County, Pennsylvania. (N.T. Evid. Hrg., pgs. 5- 7). At the evidentiary

hearing, Defendant acknowledged that the Commonwealth alleged that an undercover law

enforcement officer was near the scene of each suspected transaction. (N.T. Evid. Hrg., p. 8).

As such, the matters at bar involve more an isolated incident, or a single opportunity for the

investigating law enforcement officers to view the perpetrator. Rather, the instant matters

involve three separate criminal transactions occurring over thirty-four days.

       Additionally, at the evidentiary hearing, the Commonwealth established the existence of

a great deal of circumstantial evidence which would corroborate the testimony of the

investigating law enforcement officers at trial. Specifically, Defendant acknowledged that he



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                                                                                                     2_0pinion




a photograph of Defendant and recognized him as the person who sold the crack cocaine to the

informant on the first, second and third buy. (N.T. October 24, 2017, p. 90).

        The court notes that Officer Snader was present on a subsequent occasion when

Defendant was asked whether he goes by the nickname, "Pop", and he said he did not, but that

his grandchildren referred to him as "Pop Pop." (N.T. October 24, 2017, p. 91). After being

confronted with a Facebook photo where different people called him "Pop", Defendant admitted

that some people do call him "Pop."   ili!J.: Defendant confirmed that the Facebook photo was
from his Facebook page and that it was him. (Id.). Defendant also confirmed that he drives the

car that is registered to his wife. (N.T. October 24, 2017, pp. 92-93). Defendant admitted that he

was a coach at Hand Middle School. (N.T. October 24, 2017, p. 93).

        Andrew Mease has been employed as a police officer with the Lancaster City Bureau of

Police for fifteen years assigned to the Selective Enforcement Unit for the past six years. (N.T.

October 24, 2017, pp. 131-132). Officer Mease was involved in the detail on April 29, 2016 as a

third surveillance officer to observe the undercover officer and possibly the transaction as it

occurs. (N.T. October 24, 2017, p. 132). Officer Mease observed the confidential informant

leave the undercover vehicle and approach a vehicle, interact with a subject in the car and return

to the undercover vehicle. (Id.). Officer Mease recalled that the vehicle was green in color.

(N.T. October 24, 2017., p. 133). Officer Mease also observed Defendant exit the green Nissan

Ultima (sic) and walk toward the Giant Store. (N.T. October 24, 2017, pp. 133-134).

        Christy Bruno is a forensic scientist employed with the Pennsylvania State Police since

2007. (N.T. October 25, 2017, pp. 142-143). She identified the contents of the sealed envelopes

containing the substances purchased in this matter as cocaine. (N.T. October 25, 2017, pp. 146-

152).



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vehicle. (Id.). Officer Hagy field tested the substance and confirmed it was cocaine. (N.T.

October 25, 2017, pp. 172-173).

       Steve Reich has been employed as a police sergeant with the Lancaster City Police for

ten years. (N.T. October 25, 2017, p. 186). He was assigned to the Selective Enforcement Unit

from April through June 2016. (N.T. October 25, 2017, pp. 186-187). Sergeant Reich was the

secondary surveillance on April 29, 2016. (N.T. October 25, 2017, p. 187). He observed

Defendant arrive in a green Nissan Ultima (sic) to the location of the buy. (N.T. October 25,

2017, pp. 187-188). He further observed the confidential informant exit the undercover officer's

vehicle, approach Defendant's vehicle, engage in a short encounter with Defendant, and then

come back to the undercover vehicle. (N. T. October 25, 2017, p. 18 8). Sergeant Reich

described a black male with a bald head and beard exit the vehicle and walk into the Giant Store.

(Id.). Inasmuch as Sergeant Reich already obtained previous information that the subject vehicle

was registered to an owner residing at 1203 Elm A venue, he drove to that location, which was

two blocks from the Giant Store. (N.T. October 25, 2017, p. 189). When Sergeant Reich arrived

at the residence, he observed that the subject vehicle was parked two houses west of the address

and there was no one inside the vehicle. (Id.). Sergeant Reich came into contact with a

Manheim Township police officer who ran the address through a general database and

determined that it was Defendant's residence. (N.T. October 25, 2017, p. 190). Therefore, once

Sergeant Reich obtained Defendant's name and date of birth, he was able to produce a

photograph of Defendant, which he showed to Officer Snader, who was quick to identify

Defendant from the buy.   iliU
       Sergeant Reich was the primary surveillance for the buy-walk detail on May 12, 2016.

(Id.). He searched the confidential informant and traveled separately to the buy location at Hand



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