J-S53004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARCOS RIVERA                              :
                                               :
                       Appellant               :   No. 1283 EDA 2018

             Appeal from the Judgment of Sentence March 19, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0002226-2016,
               CP-51-CR-0013004-2015, CP-51-CR-0013006-015


BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                            FILED NOVEMBER 26, 2019

        Appellant, Marcos Rivera, appeals from the judgment of sentence

entered on March 19, 2018, as made final by the denial of a post-sentence

motion on April 9, 2018, following his jury trial convictions of multiple crimes

arising from the sexual abuse of three juvenile victims. Specifically, regarding

all three victims, D.M.1, D.M.2, and S.C., the jury found Appellant guilty of

indecent assault,1 corruption of minors,2 and unlawful contact with a minor.3

In addition, the jury convicted Appellant for rape of a child4 (S.C.). We affirm.


____________________________________________


1   18 Pa.C.S.A. § 3126(a)(7).

2   18 Pa.C.S.A. § 6301(a)(1)(ii).

3   18 Pa.C.S.A. § 6318(a)(1).

4   18 Pa.C.S.A. § 3121(c).
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     On November 4, 2015, the Philadelphia Police Department filed two

criminal complaints against Appellant arising from his sexual abuse of D.M.1

and D.M.2. Criminal Complaints, 11/4/15, at 1-2. Thereafter, on December

28, 2015, the police filed another criminal complaint against Appellant, this

time relating to his sexual abuse of S.C., his niece.   Criminal Complaint,

12/28/15, at 1-2. The Commonwealth filed separate bills of information on

January 5, 2016, and March 9, 2016.

     In the information docketed at CP-51-CR-0013006-2015 (hereinafter,

Docket Number 3006-2015), the Commonwealth charged Appellant with the

following crimes against D.M.1: (1) unlawful contact with a minor, (2)

corruption of minors, (3) indecent assault of a person less than 13, (4)

indecent exposure, and (5) endangering the welfare of children.     Criminal

Information, 1/5/16, 1-2.

     In the information docketed at CP-51-CR-0013004-2015 (hereinafter,

Docket Number 3004-2015), the Commonwealth charged Appellant with the

following crimes against D.M.2: (1) involuntary deviate sexual intercourse

(“IDSI”) by forcible compulsion, (2) unlawful contact with a minor, (3)

corruption of minors, (4) indecent assault of a person less than 13, (5)

indecent exposure, and (6) endangering the welfare of children.     Criminal

Information, 1/5/16, 1-2.

     In the information docketed at CP-51-CR-0002226-2016 (hereinafter,

Docket Number 2226-2016), the Commonwealth charged Appellant with the

following crimes against S.C.: (1) rape by forcible compulsion, (2) IDSI by

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forcible compulsion, (3) unlawful contact with a minor, (4) endangering the

welfare of children, (5) corruption of minors, (6) indecent assault of a person

less than 13, (7) indecent exposure, (8) rape of a child, (9) IDSI with a person

less than 16, and (10) IDSI with a child. Criminal Information, 3/9/16, 1-2.

The Commonwealth alleged that Appellant committed the above-listed crimes

over the course of ten years, beginning January 1, 2006. Id.

       On August 8, 2016, the Commonwealth filed a motion, pursuant to

Pennsylvania Rule of Criminal Procedure 582, to join the separate informations

for trial.   Within the motion, the Commonwealth claimed that joinder was

proper because “the facts of each case would be introduced at the trial of the

other” and “there is no risk of jury confusion.” Commonwealth’s Motion to

Join Informations, 8/8/16, at 4 and 11; see also Pa.R.Crim.P. 582(A)(1)(a).

Specifically, the Commonwealth argued that Appellant engaged in “striking[ly]

similar” sexual conduct with the three children as to “reveal a common plan,

scheme or design.”     Id. at 4.   The Commonwealth set forth the following

similarities:

       (1) each victim was under [the] age [13]; (2) two of the victims
       were assaulted by [Appellant] during roughly the same time
       period (August 2015 – October 2015); (3) each assault included
       [Appellant] placing his penis on or in some part of the
       complainant’s body and touching the chest of the complainant;
       (4) two of the victims were assaulted in virtually the same way,
       specifically [Appellant] would place his penis on the back of the
       victims; (5) each victim was assaulted at the same location,
       [Appellant’s home]; (6) each victim was alone with [Appellant]
       when he assaulted them; (7) each assault included [Appellant]
       telling the complainants not to tell anyone.



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Id. at 8. In addition, the Commonwealth argued that evidence of the assaults

would be admissible to prove Appellant’s motive, intent, and to “refute any

defense evidence of accident or fabrication by the victims.” Id. at 4 and 8-10.

      On   September    22,   2016,   a   hearing   was   held    regarding   the

Commonwealth’s motion. During the hearing, Appellant argued that joinder

was improper because the alleged criminal conduct was too dissimilar and it

would cause unfair prejudice. N.T. Pre-Trial Hearing, 9/22/16, at 14-18. On

that same day, the trial court granted the Commonwealth’s motion to join all

three informations for trial. Trial Court Order, 9/22/16, at 1.

      Appellant’s jury trial commenced October 4, 2017.           The trial court

separately summarized the testimony of each complainant as follows.

                              Complainant D.M.1

      D.M.1 was born [i]n June [ ], 2006, and the acts alleged by D.M.1
      took place when the minor was around nine[-]years[-]old. D.M.1
      became acquainted with [] Appellant because he lived in [his]
      neighborhood and was best friends with [] Appellant’s son, [J.].
      Between April and October 2015, D.M.1 frequently went to []
      Appellant’s home . . . to play with [J.]. Sometimes, D.M.1’s
      brother, D.M.2, would accompany D.M.1 on his visits to []
      Appellant’s home. D.M.1 testified that during the summer of
      2015, [] Appellant lured D.M.1 into the kitchen, took off his shirt,
      and rubbed his penis on D.M.1’s bare back; D.M.1 reported that
      this behavior happened on more than one occasion. D.M.1 also
      testified that on more than one occasion, [] Appellant forced D.M.1
      to his knees before putting his penis in D.M.1’s mouth. During
      one particular incident, [] Appellant put his penis in D.M.1’s mouth
      and told him to “take his milk out.” During that same incident, []
      Appellant gripped D.M.1’s hand around his penis and moved
      D.M.1’s hand back and forth until he ejaculated. [] Appellant then
      told D.M.1 not to tell anyone. D.M.1 recalled another incident in
      which [] Appellant [removed] D.M.1’s pants and rubbed and



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     squeezed D.M.1’s bare buttocks with his hands. Afterwards, []
     Appellant told D.M.1 not to tell anyone and gave him [$20.00].

                            Complainant D.M.2

     D.M.2 was born [i]n February [ ], 2004 and was [11-years-old]
     when the following incident occurred. Between April and October
     of 2015, D.M.2 became acquainted with [] Appellant because his
     younger brother, D.M.1, was best friends with [] Appellant’s son,
     [J.].   Occasionally, D.M.2 and D.M.1 would both go to []
     Appellant’s home to play with [J.]. At trial, D.M.2 described an
     incident when [] Appellant pulled up D.M.2’s shirt and rubbed his
     hands on the front of D.M.2’s bare chest and on his bare back.
     The incident occurred while D.M.2 and [] Appellant were sitting on
     the couch playing video games. Both [J.] and D.M.1 were present,
     sitting on the floor in front of the couch, when [] Appellant started
     to touch [D.M.2]. D.M.2 testified that [] Appellant groped and
     licked D.M.2’s nipples. Afterwards, [] Appellant pulled D.M.2 into
     the kitchen, where he pulled D.M.2’s pants down and told him to
     pull down his underwear; a command to which D.M.2 complied.
     [] Appellant then took off his pants and underwear and started
     rubbing his penis against D.M.2’s bare back. As [] Appellant
     rubbed himself against the minor, he told D.M.2 not to tell anyone.
     D.M.2 testified that the episode ended abruptly – after D.M.1
     started to walk into the kitchen.

                             Complainant S.C.

     S.C. testified to multiple instances of sexual abuse by [] Appellant,
     spanning over the course of ten years. S.C. was born [i]n January
     [ ], 2000. [] Appellant is her uncle by marriage (he married her
     aunt, [M.R.]). Growing up, S.C. was very close with [] Appellant’s
     stepdaughter and would frequently visit and spend the night at []
     Appellant’s home. S.C. testified that when she was around five or
     six years old, while she was visiting [] Appellant’s home, []
     Appellant touched her breast and rubbed her vagina with his
     hands, both over and under her clothing. She also testified that
     he would often wait for opportunities to be alone with S.C., so he
     could kiss her on her mouth and neck.

     On two separate occasions, when S.C. was six or seven years old,
     [] Appellant tried to force his penis into S.C.’s body, [causing her
     to scream and tell Appellant that it hurt]. During one of the
     incidents, [] Appellant took her into his stepdaughter’s bedroom,
     laid her down on her back, and pulled her pants down. He told
     her she was pretty and tried to force his penis into her vagina.

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      S.C. testified that she screamed, and [] Appellant eventually
      stopped. During a separate incident, [] Appellant, again, took S.C.
      into his stepdaughter’s room, bent her over the bed, and pulled
      her pants down. S.C. testified that she begged [] Appellant to
      stop, to no avail. Despite S.C.’s pleas, [] Appellant tried to anally
      penetrate S.C. with his penis. S.C. testified that she pushed []
      Appellant away multiple times before she could get him away from
      her. S.C. also testified that on a separate occasion, she was
      showering at [] Appellant’s home when [] Appellant entered the
      bathroom, completely undressed, and got into the shower with
      her. [] Appellant rubbed his hands over S.C.’s bare breasts and
      body and rubbed his penis and finger against her vagina.

      Finally, S.C. testified that at some point when S.C. was
      [15-years-old], [] Appellant had a private conversation with S.C.
      in his car. During this conversation, [] Appellant kissed S.C. and
      told her that he missed her and wanted to have a future and kids
      with her. S.C. testified that other instances of abuse occurred
      when she was around [15]. Specifically, S.C. stated that, on
      several occasions, [] Appellant made her “jerk him off with [her]
      hand” and put his penis in her mouth. S.C. recalled a particular
      instance when [] Appellant called S.C. into the kitchen and
      expressly asked her to put her mouth on his penis. S.C. told him,
      “[n]o,” to which he responded, “come on it will be fast,” and forced
      her to put her mouth on his penis until he ejaculated.

      Finally, S.C. testified that she did not immediately disclose []
      Appellant’s abuse because he was like a father figure to her – “he
      was there for [her] when [her] dad was [not]. . . . [and she] loved
      him as [her] dad.” S.C. also viewed [] Appellant as a “fun uncle
      because he would often pick up S.C. and her siblings and take
      them out for the day.” She also testified that she was afraid of []
      Appellant because he threatened to hurt her family if she told
      anyone about the abuse.

Trial Court Opinion, 1/25/19, at 3-6 (internal citations omitted).

      On October 13, 2017, the jury found Appellant guilty of the

above-mentioned crimes.      Id. at 1.    On March 19, 2018, the trial court

sentenced Appellant to an aggregate sentence of 28 to 56 years’ of

incarceration, followed by 21 years’ of reporting probation. Id. On March 20,


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2018, Appellant filed a post-sentence motion to modify his sentence, which

the trial court denied on April 9, 2018. Appellant’s Motion for Modification of

Sentence, 3/20/18, at 1-4; Trial Court’s Order, 4/9/18, at 1.       This timely

appeal followed.5

       Appellant raises the following issue on appeal:

       Did the trial court err in granting the Commonwealth’s September
       5, 2017 motion for joinder of the cases involving S.C. [] with the
       cases involving complainants D.M.1 and D.M.2 under Pa.R.Crim.P.
       582 as the evidence of S.C.’s offenses would not have been
       admissible in a trial on the other offenses and vice versa?

Appellant’s Brief at 3.

       On appeal, Appellant argues that the trial court abused its discretion by

granting the Commonwealth’s motion to join all three informations for trial.

Id. at 16. Specifically, Appellant contends that the cases relating to D.M.1

and D.M.2 were “separate and distinct” from S.C.’s case, such that the



____________________________________________


5 We note that Appellant only filed a single notice of appeal, listing all three
docket numbers: Criminal Information Nos. 3004-2015, 3006-2015, and
2226-2016. In Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018),
our Supreme Court held that, “where a single order resolves issues arising on
more than one docket, separate notices of appeal must be filed for each of
those cases.” Appellant, however, filed his notice of appeal on May 3, 2018.
Because our Supreme Court declared that Walker should apply only
prospectively after June 1, 2018, Appellant’s appeal is not subject to quashal.
On May 14, 2018, the trial court entered an order directing Appellant to file a
concise statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b)(1). Appellant timely complied. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on January 25, 2019.




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“offenses were not part of a common plan, scheme, or design.” 6 Id. We

disagree.

       “Whether or not separate indictments [or informations] should be

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

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

and clear injustice to the defendant.” Commonwealth v. Keaton, 729 A.2d

529, 537 (Pa. 1999) (internal quotations and citations omitted). “An abuse of

discretion is not merely an error of judgment. Rather, discretion is abused

when the law is overridden or misapplied, or the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will,

as shown by the evidence or the record.” Commonwealth v. Flor, 998 A.2d

606, 620 (Pa. 2010) (internal quotations and citations omitted).

       Joinder of criminal informations for trial is governed by Pennsylvania

Rule of Criminal Procedure 582, which provides, in relevant part:

       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 or confusion; or

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

____________________________________________


6 Appellant also argues that the evidence of the sexual assaults was not
admissible to prove motive, intent, or to refute evidence of accident or
fabrication by the victims. See Appellant’s Brief at 31-34. Because we
conclude that joinder was proper in view of the common plan or scheme
provision of the Pennsylvania Rule of Evidence 404(b), we need not address
these alternative arguments on appeal.

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Pa.R.Crim.P. 582 (A)(1). Further, Pennsylvania Rule of Criminal Procedure

583 declares: “[t]he court may order separate trials of offenses or defendants,

or provide other appropriate relief, if it appears that any party may be

prejudiced by offenses or defendants being tried together.” Pa.R.Crim.P. 583.

      In this case, it is undisputed that the crimes against D.M.1, D.M.2, and

S.C. were not based upon the same act or transaction.          Thus, the three

criminal informations could only be joined for trial if the requirements of Rule

582(A)(1)(a) are satisfied.

      We agree with the trial court that the evidence of the respective offenses

would have been admissible in separate trials under Pennsylvania Rule of

Evidence 404(b).    As Rule 404(b) provides, evidence of crimes, wrongs or

other acts, while not admissible to show mere propensity, “may be admissible

for another purpose, such as proving motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of accident. In a

criminal case this evidence is admissible only if the probative value of the

evidence outweighs its potential for unfair prejudice.”     Pa.R.E. 404(b)(2).

Although not included within the enumerated list of permissible uses in Rule

404(b)(2), other acts evidence may be admitted to assist in “proving the

existence of a common scheme[.]” Commonwealth v. Arrington, 86 A.3d

831, 842 (Pa. 2014).

      As this Court has explained:

      When ruling upon the admissibility of evidence under the common
      plan exception, the trial court must first examine the details and
      surrounding circumstances of each criminal incident to assure that

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      the evidence reveals criminal conduct which is distinctive and so
      nearly identical as to become the signature of the same
      perpetrator. Relevant to such a finding will be the habits or
      patterns of action or conduct undertaken by the perpetrator to
      commit crime, as well as the time, place, and types of victims
      typically chosen by the perpetrator.           Given this initial
      determination, the court is bound to engage in a careful balancing
      test to assure that the common plan evidence is not too remote
      in time to be probative. If the evidence reveals that the details of
      each criminal incident are nearly identical, the fact that the
      incidents are separated by a lapse of time will not likely prevent
      the offer of the evidence unless the time lapse is excessive.

                                       ***

      [Moreover, a]lthough remoteness in time is a factor to be
      considered in determining the probative value of other crimes
      evidence under the theory of common scheme, plan or design, the
      importance of the time period is inversely proportional to the
      similarity of the crimes in question.

Commonwealth v. Tyson, 119 A.3d 353, 358–359 (Pa. Super. 2015)

(internal quotations and citations omitted).

      In this case, the trial court addressed the matter of consolidation as

follows:

      From the Commonwealth’s perspective . . . they are seeking to
      join these cases to show common plan, scheme and design[.]

                                       ***

      All three of the children - - all of these allegations concern children
      under the age of 13. Two are very close in age, one is 9 and one
      is 11. I believe those are the brothers[.] And then the niece - -
      the [incidents in her case spanned a] wider range of age from 6
      to 13. But still prepubescent. Certainly 9 and 11 are clearly
      similar in ages for the bothers, and they are related.

      All three children are coming to [Appellant’s] house for the same
      purpose, to play with [Appellant’s children]. I can appreciate what
      the defense is saying he is not in a custodial relationship, but he
      is the adult in charge for that home for all three children, two


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      brothers and the niece, are coming to play with [Appellant’s
      children]. That’s identical.

      The allegations are not identical, but they are similar. They are
      sexual in nature. One isn’t like a sexual abuse and then one is a
      sexual assault. They are all three concerned with sexual assault,
      and indeed with two of the complainant’s the charges of the
      allegations are very similar about [Appellant] placing his private
      parts on the back - - up and down the back of the child. So that’s
      identical.

                                      ***

      [Appellant] gained the trust of these three children and their
      parents who allowed these children to come to the house to play.
      And I appreciate what the defense said the statement of don’t tell
      anyone is very similar in all these cases that are brought before
      [the court]. It is not necessarily in all cases, but in this case all
      three were allegedly told don’t tell anyone.

                                      ***

      The allegations are similar. The cases [do not] require identical
      exact allegations in each case for consolidation to be appropriate.

N.T. Pre-Trial Hearing, 9/22/16, at 19-23.

      Upon review, we agree with the trial court’s determination that the facts

of each case established a common plan, scheme, or design. In particular,

the fact that all three children came into Appellant’s home and custodial care

for a similar purpose – to play with his son and stepdaughter – and the abuse

occurred in the home is sufficient to reveal “criminal conduct which is

distinctive and so nearly identical as to become the signature of the same

perpetrator.” Tyson, 119 A.3d at 358–359. In view of the consistent abuse

pattern that emerges from the evidence in this case, the evidence as to each

victim was admissible to show a common plan or scheme, and we conclude



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that the trial court did not abuse its discretion in finding that the first prong

of Rule 404(b)(2) was satisfied.

      As to the second prong of Rule 404(b)(2), we conclude that the trial

court did not abuse its discretion in finding that the probative value of the

other crimes evidence outweighed any potential for unfair prejudice.

      “Evidence is relevant if it logically tends to establish a material fact in

the case, tends to make a fact at issue more or less probable or supports a

reasonable    inference   or   presumption     regarding    a   material   fact.”

Commonwealth v. Loughnane, 128 A.3d 806, 817–818 (Pa. Super. 2015).

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

outweighed by the danger of unfair prejudice. See id.; Pa.R.E. 403. “Unfair

prejudice” means “a tendency to suggest decision on an improper basis or to

divert the jury's attention away from its duty of weighing the evidence

impartially.” Pa.R.E. 403 cmt. Further, in weighing the probative value of the

evidence against its danger of unfair prejudice, “the court must balance the

potential prejudicial impact of the evidence with such factors as the degree of

similarity established between the incidents of criminal conduct, the

Commonwealth's need to present evidence under the common plan exception,

and the ability of the trial court to caution the jury concerning the proper use

of such evidence by them in their deliberations.” Commonwealth v. Frank,

577 A.2d 609, 614 (Pa. Super. 1990).

      On appeal, Appellant asserts that the joinder resulted in prejudice

because he was “confounded in presenting [inconsistent] defenses” and the

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jury used each case to “corroborate the others and infer guilt in the

aggregate.” Appellant’s Brief at 36.

      In the case at bar, the evidence of Appellant's crimes against each victim

was highly probative in establishing how he came into contact with the

children, the methods he employed to isolate the victims before perpetrating

each assault, and the tactics he employed to conceal his crimes. As noted

above, the facts surrounding Appellant's sexual abuse of D.M.1, D.M.2, and

S.C. were very similar, “distinctive and so nearly identical as to become the

signature of the same perpetrator.” Tyson, 119 A.3d at 358–359. In addition,

the evidence was vital to the Commonwealth since there was no physical

evidence of, or witnesses to, Appellant's sexual abuse.

      Moreover, the danger of unfair prejudice was relatively low in this case,

given that D.M.1, D.M.2, and S.C.’s testimony was easily separable and the

trial court instructed the jury that they were to

      consider the cases as separate individual cases . . . just as you
      would if each case were to be tried alone for you. Once again,
      you are trying three separate cases at one time and, for this
      reason, you have to pay especially close attention to the evidence
      as though to be able to properly segment it. You can consider
      with respect to each offense the evidence presented in support of
      the other [incidents] for the limited purpose of establishing
      [Appellant’s] pattern or scheme, his intent, motive, and state of
      mind, and to rebut any claim of fabrication. You must not regard
      this evidence as showing that [Appellant] is a person of bad
      character or has criminal tendencies on which you might be
      inclined to infer guilt.

N.T. Trial, 10/10/17, at 210-211.




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      We thus conclude that the trial court did not abuse its discretion in

concluding that the probative value of the other crimes evidence would far

outweigh any potential for unfair prejudice. Since evidence relative to each

victim was admissible in separate trials under Rule 404(b), the first prong of

Rule 582(A)(1)(a) is met.

      Finally, the second prong of Rule 582(A)(1)(a) was also satisfied in this

case because “the evidence of each of the offenses ... [wa]s capable of

separation by the jury so that there [wa]s no danger of confusion.”

Pa.R.Crim.P. 582(A)(1)(a). First, both D.M.1 and D.M.2 were young boys at

the time of the assaults, while S.C. is a girl. Second, the sexual assaults,

while there was some overlap, transpired at different times.      Specifically,

Appellant’s sexual assaults against D.M.1 and D.M.2 occurred from April

through October 2015, while Appellant's sexual assault against S.C. occurred

from 2006 through 2015. Lastly, all three victim’s testified separately in the

case and on different days. In particular, S.C. testified on October 4, 2017,

while D.M.1 and D.M.2 testified on October 5, 2017. Thus, there was little to

no danger that the jury would be confused by the joinder of the offenses into

a single trial.

      We, therefore, conclude that the trial court did not abuse its discretion

in consolidating the two criminal informations for trial.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/26/19




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