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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
             v.                         :
                                        :
                                        :
 HENRY CHRISTOPHER MALONEY              :
                                        :
                  Appellant             :   No. 2085 EDA 2019

       Appeal from the Judgment of Sentence Entered May 30, 2019
  In the Court of Common Pleas of Pike County Criminal Division at No(s):
                         CP-52-CR-0000088-2018


COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
HENRY CHRISTOPHER MALONEY               :
                                        :
                  Appellant             :   No. 2086 EDA 2019

       Appeal from the Judgment of Sentence Entered May 30, 2019
  In the Court of Common Pleas of Pike County Criminal Division at No(s):
                         CP-52-CR-0000140-2018


 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
             v.                         :
                                        :
                                        :
 HENRY CHRISTOPHER MALONEY              :
                                        :
                  Appellant             :   No. 2087 EDA 2019

       Appeal from the Judgment of Sentence Entered May 30, 2019
  In the Court of Common Pleas of Pike County Criminal Division at No(s):
                         CP-52-CR-0000228-2018
J-S20033-20; J-S20034-20; J-S20035-20



BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                           Filed: July 30, 2020

       Henry Christopher Maloney appeals from the judgment of sentence

entered following his jury trial convictions for access device fraud (transfer to

another), access device fraud (device issued to another person who has not

authorized use), identity theft, receiving stolen property, flight to avoid

apprehension, possession of a controlled substance, possession of drug

paraphernalia, and possession of a small amount of marijuana.1 Maloney was

charged at three separate docket numbers, and the court granted the

Commonwealth’s motion to join the cases for trial. Maloney challenges the

joinder, and also claims that the court abused its discretion when imposing

sentence and that the verdict was against the weight of the evidence. We

affirm.

       In November 2017, Edward Gavalla reported his wallet and credit cards

stolen from his vehicle. N.T., 3/20/2019, at 45. The police discovered that an

individual had used one of the cards to make unauthorized purchases in at

least one location, a Turkey Hill convenience store. The victim had not

authorized anyone to enter his vehicle, take his credit card, or use his credit

card. Id. 53. The Turkey Hill store, which was located one block from where

the car had been parked, had multiple surveillance cameras and a transaction

journal, which showed the disputed charges. Id. at 58, 65-71. An associate
____________________________________________


1 18 Pa.C.S.A. §§ 4106(a)(2), 4106(a)(1)(ii), 4120, 3925, 5126(a), and 35
P.S. §§ 780-113(a)(16), 780-113(a)(32), and 780-113(a)(31), respectively.

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of Maloney’s, Christine Lee, met Maloney at the Turkey Hill. Id. at 91. She

made purchases in the store with a credit card Maloney provided. Id. at 93-

95.

      Pennsylvania State Police Trooper Ryan Kearney initiated charges

against Maloney related to the stolen credit card and arrested Maloney in

February 2018. Id. at 124. Maloney was released on bail, with a preliminary

hearing set for March 2018. Id. at 129-30, 133. Maloney did not appear, and

the court issued a bench warrant for his arrest. Id. at 130-31, 133-34.

      State police went to Maloney’s residence to execute an arrest warrant

and Maloney’s neighbor, David Goble, Jr., heard a noise and saw Maloney

climb out of a rear window of Maloney’s residence. Id. at 164. Maloney asked

Goble not to tell the police. Id. at 166-67. Goble’s wife yelled toward the police

and pointed the police in Maloney’s direction. Id. at 168. The police, however,

did not apprehend Maloney that day. N.T., 3/21/19, at 23. Maloney called the

police barracks and told them he had fled to New Jersey. Id.

      Trooper Daniel Nilon arrived at Maloney’s home in April 2018 to serve

the arrest warrant, found Maloney in the home, and arrested him. Id. at 50-

53. The troopers searched Maloney and discovered 12 to 13 packets of heroin

and a small bag of marijuana. Id. at 55-56.

      The police charged Maloney in three separate informations. The first

charged Maloney with access device fraud, as both a felony and misdemeanor,

identity theft, and receiving stolen property (“access device fraud docket”).

The second information charged him with flight to avoid apprehension, trial or

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punishment (“flight docket”). A third criminal information charged him with

possession of a controlled substance, possession of a small amount of

marijuana, and possession of drug paraphernalia (“drug possession docket”).

The Commonwealth moved to join the three dockets for trial, and the trial

court granted the motion.

     In March 2019, the court held a jury trial. During its opening statement,

the Commonwealth stated:

        First an arm and then a leg and then [Maloney’s] lean, wiry
        body escaped the window at the back of [his residence]. His
        feet hit the ground. His voice calls out to his back neighbor
        something like ‘Don’t tell the cops. I’ve got warrants.’ And
        with that [Maloney] runs off into the woods of Pike County
        to continue his life of scheming, running and drugging until
        finally the State Police can apprehend him and the gig is up.
        And the next few days we’re here about the path of
        [Maloney] and the maze of illegal behavior of scheming,
        drugging and running from the law.

N.T., 3/20/19, at 30.

     During its closing argument, the Commonwealth argued:

        When I stood before you at the beginning of [t]rial yesterday
        I put up the window and what this case represents is two
        sides. On the one side of that window there was this
        scheme, the drug addict and the runner, and just like in this
        Courtroom here close to you, sitting next to you, testifying
        before you and on the other side of that window back in
        March are law enforcement.

N.T., 3/21/19, at 113. It further argued:

        [W]hen you begin your deliberations . . . work your way
        back because I would suggest to you when you deliberate
        in this case where you begin with the drug possession and
        that the conclusions that you can make based on that which
        I would suggest to is that [Maloney] possessed this Heroin


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         and possessed the packets of paraphernalia which housed
         that powder and possessed the baggie of marijuana . . . .

Id. at 115. In addition, the Commonwealth argued that flight from police:

“shows you more about the nature of that man, the nature of what he’s up to

so he can stay out there, keep using heroin, keep scheming to get by.” Id. at

120.

       The jury found Maloney guilty as above. In May 2019, the trial court

imposed an aggregate sentence of 76 to 176 months’ incarceration. This

sentence included 18 to 36 months’ incarceration for the felony access device

fraud conviction; 18 to 36 months’ incarceration for the identity theft

conviction; 16 to 32 months’ incarceration for the misdemeanor access device

fraud conviction; nine to 18 months’ incarceration for the receiving stolen

property conviction; 18 to 60 months’ incarceration for the flight conviction;

six to 12 months’ incarceration for the possession of a controlled substance

conviction; 15 to 30 days’ incarceration for the possession of a small amount

of marijuana conviction; and six to 12 months’ incarceration for the possession

of drug paraphernalia conviction. The sentences for the receiving stolen

property, possession of a small amount of marijuana, and possession of drug

paraphernalia convictions were to be served concurrently to the other

sentences. The remaining sentences were consecutive.

       Maloney filed a post-sentence motion, seeking reconsideration of the

sentence and arguing the verdict was against the weight of the evidence. The

trial court denied the motion, and Maloney filed a timely notice of appeal.

       Maloney raises the following issues on appeal:

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         1) The trial court erred or otherwise abused its discretion in
         joining the above captioned three matters for trial.

         2) The trial court erred or otherwise abused its discretion in
         granting the Commonwealth’s motion for joinder.

         3) The trial court erred or otherwise abused its discretion in
         denying [Maloney’s] post sentence motion.

         4) The trial court erred or otherwise abused its discretion in
         denying [Maloney’s] motion for reconsideration of sentence.

         5) The trial court erred or otherwise abused its discretion in
         denying [Maloney’s] post sentence motion for a new trial.

         6) The trial court erred or otherwise abused its discretion in
         denying [Maloney’s] post sentence motion as the verdict
         was against the weight of the evidence.

Maloney’s Br. at 10 (unnecessary capitalization omitted).

      In his first two issues, Maloney argues that the trial court erred in

granting the Commonwealth’s motion to join the cases for trial. Maloney

claims that the evidence as to each offense would not have been admissible

in a separate trial and would not be capable of separation by the jury, and

that the November 2017 and April 2018 offenses were not the same act or

transaction. He argues that evidence of one crime is inadmissible against a

defendant being tried for another crime, unless it qualifies for one of a limited

number of exceptions, which do not apply here. He argues that the “case does

not present a set of facts that indicates that no one other than Mr. Maloney

was likely to have committed all three separate instances of crimes.”

Maloney’s Br. at 15. He further argues that there was “no high correlation of

the crimes nor an unusual or distinctive device of crimes as to be like Mr.

Maloney’s signature.” Id. Maloney reasons that the offenses are not the same


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act or transaction, claiming they are “not the same class of crimes nor a string

of the same acts.” Id. at 17.

      Maloney claims he was prejudiced by the joinder, noting the

Commonwealth’s opening statement and closing argument. He claims that the

Commonwealth argued that the jury should look at the cases in reverse

chronological order, and “sought to emphasize this prejudice by stating in

essence that Mr. Maloney is a ‘drugger’ and therefore, schemes and runs from

the law.” Id. at 19. He claims that the jury convicted Maloney of the charges

related to the stolen wallet “because the Commonwealth argued that because

he was found with heroin [in April 2018] he had a propensity to commit

thefts.” Id.

      We review a trial court’s decision to grant a motion to join for trial

offenses charged in separate informations for an abuse of discretion.

Commonwealth v. Thomas, 879 A.2d 246, 260 (Pa.Super. 2005) (citing

Commonwealth v. Collins, 703 A.2d 418, 422 (Pa. 1997)).

      Pennsylvania Rule of Criminal Procedure 582 governs the joinder of

separate informations for trial and provides:

         (1) Offenses  charged     in  separate         indictments    or
         informations may be tried together if:

               (a) the evidence of each of the offenses would be
               admissible in a separate trial for the other and is capable
               of separation by the jury so that there is no danger of
               confusion; or

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



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

      When offenses are not based on the same act or transaction, courts

apply the following test to determine whether joinder is proper:

         [W]hether 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.

Thomas, 879 A.2d at 260 (quoting Commonwealth v. Lark, 543 A.2d 491,

497 (Pa. 1988)).

      Evidence of other crimes or bad acts is not admissible to prove that the

defendant acted “in conformity with those acts or to demonstrate a criminal

propensity.” Commonwealth v. Brown, 52 A.3d 320, 325 (Pa.Super. 2012);

Pa.R.Evid. 404(b). The evidence, however, may be admissible for another

purpose such that an exception to the rule would apply. Brown, 52 A.3d at

325. One exception is that evidence of prior bad acts is admissible to establish

motive. Id. at 326 (citing Commonwealth v. Billa, 555 A.2d 835, 840 (Pa.

1989)). A second exception, sometimes referred as the res gestae exceptions,

permits the admission of bad acts evidence in “situations where the distinct

crimes were part of a chain or sequence of events which formed the history

of the case and were part of its natural development.” Id. (quoting Billa, 555

A.2d at 840). In other words, “admission of distinct crimes may be proper

where it is part of the history or natural development of the case.” Id. (citing

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


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      Here, the trial court concluded that the evidence of each offense would

be admissible in separate trials, and was capable of separation by the jury

without danger of confusion. The court reasoned that the charges on the

access device fraud docket and drug possession docket established motive for

the charges on the flight docket:

         The charges levied against [Maloney on the access device
         fraud docket] provide both motive and insight as to his state
         of mind in regard to his flight from law enforcement as
         charged in [the flight docket]. The charges levied in [the
         drug possession docket] may also tend to show [Maloney’s]
         motive to commit the crimes alleged in both [the access
         fraud and flight dockets].

1925(a) Op. at 6. The court further found that the admission of the evidence

did not prejudice Maloney and that the jury could separate the evidence:

         [T]he benefits of judicial economy far outweighed any
         prejudice endured by [Maloney], since empaneling a jury for
         three separate trials when the evidence in each would be
         admissible in all others represents a paradigm of inefficiency
         and waste of resources. There being no indication that the
         charges levied against [Maloney] in every case would be
         confused by a single jury.

Id.

      The trial court did not abuse its discretion. The evidence of each of the

crimes was admissible in a trial for the other charges. The access device and

drug charges were admissible to establish the motive for the flight charges,

and the flight charges were admissible to show consciousness of guilt of the

prior access device charges. Moreover, the entire series of events was

admissible in a trial on each docket to tell the complete sequence of events or



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chain of actions. Further, the jury could easily separate the evidence. In

addition,    Maloney     was    not   prejudiced   by   the   joinder,   or   by   the

Commonwealth’s reliance on the admissible evidence.

        Maloney next argues that the court abused its discretion when it

imposed sentences at the top end of the standard range and imposed them

consecutively. He maintains the sentence of 76 to 176 months’ incarceration

is excessive in light of the criminal conduct at issue.

        Maloney challenges the discretionary aspects of his sentence. Before

addressing the merits of his claim, we must determine whether (1) the appeal

is timely; (2) the appellant preserved the issue in a post-sentence motion or

at sentencing; (3) the brief includes a concise statement of the reasons relied

upon for allowance of appeal; and (4) the appellant raised a substantial

question. Commonwealth v. Edwards, 194 A.3d 625, 636 (Pa.Super.

2018).

        Maloney filed a timely notice of appeal and preserved the issue in a post-

sentence motion. Maloney, however, failed to include in his brief a concise

statement of the reasons relied upon for allowance of appeal. The

Commonwealth objected to this failure. Therefore, we cannot review this

claim. See Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa.Super. 2004).2

        In his final two claims, Maloney argues that the court erred in denying

his motion for a new trial, allegedly because the verdict was against the weight

____________________________________________


2   The certified record does not contain the transcript of the sentencing hearing.

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of the evidence. He argues that the jury found Maloney not guilty of theft from

a motor vehicle, thereby finding he did not take credit cards from the motor

vehicle, and therefore could not find him guilty of access device fraud, which

required use of the credit cards. Maloney’s Br. at 24.

      Although framed as a claim that the verdict is against the weight of the

evidence, in the argument section of his brief Maloney attempts to challenge

his conviction for access device fraud as inconsistent with his acquittal of theft

of a motor vehicle. This issue presents a question of law, to which we apply a

de novo standard of review. Commonwealth v. Moore, 103 A.3d 1240, 1244

(Pa. 2014).

      “[A] defendant may not challenge his conviction on one count when it is

inconsistent with the jury’s verdict of acquittal on another count.” Id. at 1246.

This is because, in such a case, although a jury conviction establishes that the

jury found each element of a crime beyond a reasonable doubt, no such factual

inference can be made by a jury’s acquittal. Id.; see also id. at 1242, 1250

(affirming conviction of possessing instrument of crime despite jury’s acquittal

of murder following self-defense claim). Thus, here, we cannot infer from the

jury’s acquittal on the theft from a motor vehicle charge that the evidence at

trial failed to meet any element of that offense, or allow such an inference to

undermine the jury’s conclusion that the evidence did meet each element of

access device fraud.

      Maloney does not develop an argument that the verdict was against the

weight of the evidence in his appellate brief, and therefore has waived this

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claim. See Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa.Super.

2015).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/30/20




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