Com. v. Chavarria (memorandum)

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J-S76040-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. LAUREANO CHAVARRIA, III, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1703 EDA 2012 Appeal from the Judgment of Sentence Entered February 27, 2012, In the Court of Common Pleas of Delaware County, Criminal Division, at No. CP-23-CR-0003866-2011. BEFORE: FORD ELLIOTT, P.J.E., BENDER and SHOGAN, JJ. MEMORANDUM BY SHOGAN, J.: Filed: February 25, 2013 Appellant, Laureano Chavarria, III, appeals from the judgment of sentence entered following his convictions of possession of a controlled substance with intent to deliver, simple possession of a controlled substance, resisting arrest, and possession of drug paraphernalia. Upon review, we affirm. We summarize the history of this case as follows. On May 25, 2011, at approximately 8:00 p.m., based upon information received from a confidential informant ( the CI ), who was in the presence of police at the time, police conducted a surveillance of the area of 69th and Chestnut Streets in Upper Darby, Pennsylvania. During the surveillance, the CI pointed out Appellant as Appellant arrived at the designated location at the J-S76040-12 time suggested by the CI. When approached by the police, Appellant fled and discarded a cell phone and a white object. The items were recovered and the white object turned out to be a plastic sandwich bag which held smaller sandwich bags containing what appeared to be cocaine. Appellant was charged with possession of a controlled substance with intent to deliver, resisting arrest and related crimes. Appellant filed a motion to suppress evidence. The trial court held a hearing on October 25, 2011, and by order dated November 29, 2011, denied Appellant s motion to suppress. On January 26, 2012, at the conclusion of a jury trial, Appellant was found guilty of the crimes stated above. On February 6, 2012, the Commonwealth served Appellant with notice of its intent to seek mandatory minimum sentences pursuant to 18 Pa.C.S.A. § 7508(a)(3)(ii) (cocaine trafficking) and 18 Pa.C.S.A. § 6317(a) (Drug-Free School Zones). On February 27, 2012, the sentencing court sentenced Appellant to a term of incarceration of six and one-half to thirteen years on the possession with intent to deliver conviction, a consecutive term of incarceration of six months to two years on the resisting arrest conviction, and a consecutive term of probation of twelve months on the possession of drug paraphernalia conviction. The sentencing court did not impose a separate sentence on the simple possession conviction. sentencing court further found that Appellant was not RRRI-eligible. -2- The J-S76040-12 Appellant filed a timely post-sentence motion alleging that: (1) the trial court improperly denied his motion to suppress evidence, (2) the evidence was insufficient to sustain the conviction for resisting arrest, and (3) the conviction for possession with intent to deliver was against the weight of the evidence. By order dated May 9, 2012, the trial court denied Appellant s post-sentence motion. This timely appeal followed. On June 8, 2012, the trial court ordered Appellant to file a statement of errors complained of on appeal, which Appellant filed on June 26, 2012. Appellant presents the following issue for our review: Whether the Lower Court erred when it refused to suppress the fruits of an illegal stop and arrest of Mr. Chavarria that occurred without the requisite probable cause or reasonable suspicion, and which included the contraband he was allegedly forced to abandon during the chase. Appellant s Brief at 4. Thus, the sole issue raised by Appellant challenges the propriety of the trial court s denial of Appellant s motion to suppress. The standard of review we apply in an appeal from the denial of a motion to suppress is set forth below: We determine whether the court s factual findings are supported by the record and whether the legal conclusions drawn from them are correct. Where, as here, it is the defendant who is appealing the ruling of the suppression court, we consider only the evidence of the prosecution and so much of the evidence for the defense which remains uncontradicted when fairly read in the context of the whole record. If, upon our review, we conclude that the record supports the factual findings of the suppression court, we are bound by those facts, and may -3- J-S76040-12 reverse only if the legal conclusions drawn therefrom are in error. Commonwealth v. Daniels, 999 A.2d 590, 596 (Pa. Super. 2010) (citation omitted). With respect to factual findings, we are mindful that it is the sole province of the suppression court to weigh the credibility of the witnesses. Further, the suppression court judge is entitled to believe all, part or none of the evidence presented. However, where the factual determinations made by the suppression court are not supported by the evidence, we may reject those findings. Only factual findings which are supported by the record are binding upon this [C]ourt. Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa. Super. 1995) (citations omitted). In addition, we are aware that questions of the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003). Essentially, Appellant argues that the trial court erred in determining that the police had reasonable suspicion to justify an investigative detention of Appellant when he fled and discarded contraband after police arrived at the scene of the incident. Basically, Appellant argues that the CI s reliability and basis of knowledge were not sufficient to establish the requisite reasonable suspicion. We disagree. To secure the right of citizens to be free from intrusions by police, courts in Pennsylvania require law enforcement officers to demonstrate -4- J-S76040-12 ascending levels of suspicion to justify their interactions with citizens as those interactions become more intrusive. Commonwealth v. Beasley, 761 A.2d 621, 624 (Pa. Super. 2000), appeal denied, 565 Pa. 662, 775 A.2d 801 (2001). Furthermore, we note that: State case law recognizes three categories of interaction between police officers and citizens, which include: (1) a mere encounter, or request for information, which need not be supported by any level of suspicion, but which carries no official compulsion to stop or to respond; (2) an investigative detention, which must be supported by reasonable suspicion as it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest; and (3) arrest or custodial detention, which must be supported by probable cause. Commonwealth v. Bolton, 831 A.2d 734, 735 (Pa. Super. 2003) (citing Commonwealth v. Acosta, 815 A.2d 1078 (Pa. Super. 2003) (en banc), appeal denied, 576 Pa. 710, 839 A.2d 350 (2003)). To effectuate an investigative detention, the officers are required to have reasonable suspicion that unlawful activity was in progress. In order to demonstrate reasonable suspicion of unlawful activity, the police must be able to point to specific facts and reasonable inferences drawn from those facts in light of the officer s experience. Commonwealth v. Cook, 558 Pa. 50, 57, 735 A.2d 673, 677 (1999). The reasonable suspicion upon which an investigative detention is based must be assessed based upon the totality of the circumstances and viewed through the eyes of a trained police -5- J-S76040-12 officer, not an ordinary citizen. Commonwealth v. Johnson, 734 A.2d 864, 869 (Pa. Super. 1999), appeal denied, 560 Pa. 721, 745 A.2d 1219 (1999). Our Supreme Court described reasonable suspicion as follows: A police officer may detain an individual in order to conduct an investigation if that officer reasonably suspects that the individual is engaging in criminal conduct. This standard, less stringent than probable cause, is commonly known as reasonable suspicion. In order to determine whether the police officer had reasonable suspicion, the totality of the circumstances must be considered. In making this determination, we must give due weight . . . to the specific reasonable inferences [the police officer] is entitled to draw from the facts in light of his experience. Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, even a combination of innocent facts, when taken together, may warrant further investigation by the police officer. Commonwealth v. Rogers, 578 Pa. 127, 134, 849 A.2d 1185, 1189 (2004) (citations omitted). Information provided by informants may supply the police with reasonable suspicion to conduct an investigative detention, also known as a Terry stop.1 Commonwealth v. Griffin, 954 A.2d 648, 651 (Pa. Super. 2008) (citations omitted). A reviewing court evaluates whether such information is sufficient to satisfy the requirements for executing such a stop by applying a totality of the circumstances test. Id. Three factors relevant to the analysis are: the veracity of the informant, the reliability of the 1 Terry v. Ohio, 392 U.S. 1 (1968). -6- J-S76040-12 information, and the informant s basis of knowledge. Id. Commonwealth v. Allen, 555 Pa. 522, 725 A.2d 737 (1999)). (citing Though not strict requirements, these factors help determine how much faith law enforcement can place in the information they are given. Id. (citing Commonwealth v. Ruey, 586 Pa. 230, 892 A.2d 802 (2006)). First, the veracity of the informant may be partly assessed by whether the identity of the informant is known to the police or whether the tip is anonymous. Griffin, 954 A.2d at 651 (citation omitted). An anonymous tip is to be treated with particular suspicion, and may not provide a basis for a Terry stop in situations in which information from a known informant would. Id. (citing Commonwealth v. Jackson, 548 Pa. 484, 698 A.2d 571 (1997)). A person whose identity is known to the police is far less likely to provide false information out of fear of reprisal. Id. A known informant places himself or herself at risk of prosecution for filing a false claim if the tip is untrue, whereas an anonymous informant faces no such risk. Id. Secondly, we must look to the reliability of the information. If an informant is able to provide details about future actions not ordinarily easily predicted, then the information is considered to have a higher degree of reliability. Griffin, 954 A.2d at 651 (quoting Commonwealth v. Fell, 901 A.2d 542 (Pa. Super. 2006)). The ability to predict future events is -7- J-S76040-12 relevant because only a small number of people are generally privy to an individual s itinerary, and it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual s illegal activities. Id. (quoting Fell, 901 A.2d at 546). Next, we look to how the informant came to possess his or her knowledge. Griffin, 954 A.2d at 651 (citing In the Interest of O.A., 552 Pa. 666, 717 A.2d 490 (1998)). The more intimate the basis of knowledge, the more likely the information is to be trustworthy. Id. at 651-652. Here, the trial court offered the following discussion concerning Appellant s claim: Pertinent evidence. The Commonwealth submitted the following evidence relevant to defendant s motion to suppress: on the evening of May 25, 2011, Detective Leicht of the Collingdale Borough Police Department and Delaware County CID Drug Task Force was conducting surveillance in the area of 69th and Chestnut Streets in Upper Darby, Pennsylvania along with at least ten other officers. N.T., 10/25/11, p. 20 (suppression hearing); N.T., 1/26/12, p. 35 (trial). Detective Leicht has been a police officer for nineteen years, a detective for four years, and a member of the Delaware County Drug Task Force for thirteen years. N.T., 10/25/11, pp. 5-6. The officers were conducting surveillance at this location based on information from a confidential informant who had provided reliable information in the past about two individuals, who were then arrested and charged with drug-related offenses. N.T., 10/25/11, pp. 8-9. The informant had also provided information in the past concerning drug dealing or the drug traffic in Delaware County that Detective Leicht was able to corroborate. N.T., 10/25/11, p. 9. Detective Leicht knew the informant s identity and where he lived. N.T., 10/25/11, p. 9. -8- J-S76040-12 The officers wore football style jerseys or vests with POLICE on the front in large letters. N.T., 10/25/11, pp. 12, 33. The informant sat with Detective Leicht in an unmarked vehicle at the surveillance location. N.T., 10/25/11, pp. 11-12. While officers set up surveillance, the informant described defendant to Detective Leicht as a black male with a stocky build and beard and a particular height. N.T., 10/25/11, pp. 9-1[0]. The informant also described where the defendant would be and what time he would be there. N.T., 10/25/11, pp. 10-11. Detective Leicht has participated in more than ten drug investigations in this area. N.T., 10/25/11, p. 12. Subsequently, the informant pointed out the defendant as N.T., he walked up 69th Street towards Chestnut Street. 10/25/11, pp. 11, 21-22. Although the defendant was walking at a normal pace, he kept looking behind him. N.T., 1/26/12, p. 37. Detective Leicht radioed a description of the defendant to Detective Sponaugle and Officer Eiserman. N.T., 10/25/11, pp. 12, 38. When the defendant reached the top of the hill, Officer Eiserman pulled his police vehicle onto 69th Street in front of the defendant, and Detective Sponaugle exited the passenger side of the vehicle. N.T., 10/25/11, p. 39. Defendant immediately began running back down the hill towards Detective Leicht s vehicle, and Detective Leicht exited his vehicle to stop the defendant. N.T., 10/25/11, pp. 13, 33-34. All of the officers yelled: Stop, police. N.T., 10/25/11, p. 33. Detective Leicht shouted police, stop but the defendant ran straight towards him and slammed into him, knocking him backwards and breaking a pair of glasses tucked on the detective s t-shirt. N.T., 10/25/11, pp. 13-14; N.T., 1/26/12, p. 41. The detective s shoulder was sore for two or three days after the collision. N.T., 1/26/12, pp. 41-42. Defendant continued running down the street and discarded his cellphone and a white object. N.T., 10/25/11, pp. 14, 40; N.T., 1/26/12, pp. 42, 103, 104. Other officers pursued him, and Detective Sponaugle brought him to a stop by tasing him. N.T, 1/26/12, pp. 87-88, 103. Detective Boudwin found the white object that defendant abandoned during the chase, which turned out to be a sandwich bag containing smaller sandwich bags with what appeared to be cocaine. N.T., 10/25/11, pp. 14-15; N.T., 1/26/12, pp. 45, 104. Detective Boudwin also found a broken cellphone at the corner of 69th and Ludlow Streets. N.T., 10/25/11, p. 15; N.T., 1/26/12, -9- J-S76040-12 p. 104. Officers also recovered two bags of marijuana, another cellphone, and $350.00 from Defendant s person. N.T., 1/26/12, pp. 45, 104-05. * * * Discussion. Based on these precedents, the police officers herein had reasonable suspicion to conduct an investigatory stop. A known informant told Detective Leicht in a face-to-face meeting that defendant would be selling drugs in the area of 69th and Chestnut Streets in Upper Darby on the evening of May 25, 2011. The informant accompanied police officers to the surveillance location and identified defendant as he walked down the street. This alone established reasonable suspicion to stop defendant, since (1) the informant had a reliable track record (two arrests and general information about the drug trade in Delaware County); (2) the face-to-face encounter gave Detective Leicht an excellent opportunity to evaluate the informant s demeanor; (3) he was willing to accompany police officers to the surveillance location, thus further enhancing his credibility; and (4) the informant knew that he could be held accountable if his tip was false. [Commonwealth v. Brown, 606 Pa. 198, 996 A.2d 473 (2010), Alabama v. White, 496 U.S. 325 (1990), Florida v. J.L., 529 U.S. 266 (2000)]. The proverbial icing on the cake for reasonable suspicion was defendant s immediate and desperate flight when Detective Sponaugle and Officer Eiserman exited their vehicle. Since an anonymous tip plus flight creates reasonable suspicion to stop the defendant, [In re D.M., 566 Pa. 445, 781 A.2d 1161 (2001)], the reliable information from the known informant plus defendant s flight furnishes even stronger reasonable suspicion of criminal activity.[] Because reasonable suspicion existed to stop defendant, the officers had the right to seize the cocaine and cellphone that defendant abandoned, [Commonwealth v. Astillero, 39 A.3d 353, 358 (Pa. Super. 2012)], which in turn provided probable cause to search defendant s person and seize the drugs, cellphone and cash on his person and to arrest defendant. Therefore, the Court properly denied defendant s motion to suppress. Trial Court Opinion, 9/18/12, at 3-5, 9-10 (footnote omitted). -10- J-S76040-12 When we evaluate the above stated factors in view of the totality of the circumstances in the instant case, we conclude that the trial court properly held the police possessed the requisite reasonable suspicion when they stopped Appellant. Here, our review of the record reflects that the CI was well known to the police. Detective Daniel Leicht testified at the suppression hearing that he has worked with over 300 confidential informants for drug investigations in his nineteen years of experience in law enforcement. N.T., 10/25/11, at 5-7. Detective Leicht indicated that he knew the CI in this particular case because the CI had provided information on two other individuals in relation to trafficking of cocaine. Id. at 8. The detective testified that both of the other individuals were arrested and charged. Id. at 8-9. The detective further testified that he knew the CI s name and where he lived. Id. at 9. In addition, Detective Leicht indicated that, other than the two individuals that were charged, this particular CI provided overall information about drug dealing or the drug traffic in Delaware County. Id. Also, Detective Leicht indicated that, based upon his contacts with other confidential informants, his experience as a police officer, and his contacts with other law enforcement officers, the CI s information appeared to be valid. Id. established the veracity of the CI. -11- Thus, the testimony cited above J-S76040-12 Regarding the reliability of the information, again, our review of the record reflects that the CI provided the police with sufficient evidence on other occasions to lead to arrests of drug dealers. See N.T., 10/25/11, at 89. The detective specifically stated: This particular informant had provided information on two other individuals in relation to drug trafficking cocaine. Both the other individuals were arrested and charged. N.T., 10/25/11, at 8-9. Detective Leicht then explained the details of the surveillance, and the fact that the CI was physically present with Detective Leicht during the surveillance, as the CI was seated in the front passenger seat of Detective Leicht s vehicle. Detective Leicht information Id. at 9. regarding In addition, the CI offered Appellant s general physical description, his whereabouts and the specifics concerning the timing of Appellant s arrival at the scene. See id. at 9-11. During the surveillance, the CI specifically pointed at Appellant as the individual who was the cocaine dealer. Id. at 10. As the CI was able to provide details about Appellant s actions not ordinarily easily predicted, the police properly considered the CI s information about Appellant s illegal activities to have a higher degree of reliability. Concerning the CI s basis of knowledge, the detective did not provide any specific testimony at the suppression hearing to establish how the CI received his information concerning Appellant. -12- However, Detective Leicht J-S76040-12 indicated that the information that the CI provided beforehand was confirmed when the detective was on the scene and he saw Appellant. N.T., 10/25/11, at 11. Although this information concerning the basis of the CI s knowledge was not testified to at the suppression hearing, the totality of the facts, in light of the knowledge of the police at the time, was sufficient to establish reasonable suspicion of criminal activity necessary to detain Appellant. Thus, because the police articulated facts at the suppression hearing that would give rise to a reasonable suspicion of criminal activity, we conclude that the initial detention of Appellant for investigative purposes was lawful. Accordingly, this issue lacks merit. To the extent that Appellant argues that the police lacked probable cause to arrest Appellant, see Appellant s Brief at 10-12, we observe that the trial court did not err in failing to grant his request to suppress the drugs on the basis that his arrest was illegal. Appellant generally asserts that the police lacked probable cause to make an arrest. It is well settled that the police may make a warrantless arrest if probable cause exists. Commonwealth v. Santiago, 736 A.2d 624, 629630 (Pa. Super. 1999), appeal denied, 561 Pa. 674, 749 A.2d 470 (2000). Probable cause for a warrantless arrest exists if the facts and circumstances within the knowledge of the police officer at the time of the arrest are sufficient to justify a person of reasonable caution in believing the suspect -13- J-S76040-12 has committed or is committing a crime. Id. at 630. Probable cause justifying a warrantless arrest is determined by the totality of the circumstances. Commonwealth v. Colon, 777 A.2d 1097, 1100 (Pa. Super. 2001), appeal denied, 567 Pa. 736, 788 A.2d 372 (2001). Probable cause does not require certainty, but rather exists when criminality is one reasonable inference, not necessarily even the most likely inference. Commonwealth v. Lindblom, 854 A.2d 604, 607 (Pa. Super. 2004), appeal denied, 582 Pa. 672, 868 A.2d 1198 (2005). We have long stated that in determining whether probable cause existed in a particular situation, a court will look not just at one or two individual factors, but will consider the totality of the circumstances as they appeared to the arresting officer. Commonwealth v. Dennis, 612 A.2d 1014, 1016 (Pa. Super. 1992). In addition, we are mindful that [i]dentified citizens who report their observations of criminal activity to police are assumed circumstances. to be trustworthy in the absence of special Commonwealth v. Hayward, 756 A.2d 23, 36 (Pa. Super. 2000) (quoting In the Interest of S.D., 633 A.2d 172 (Pa. Super. 1993)). A determination of probable cause based upon information received from a confidential informant depends upon the informant s reliability and basis of knowledge viewed in a common sense, non-technical manner. -14- J-S76040-12 Commonwealth v. Luv, 557 Pa. 570, 576, 735 A.2d 87, 90 (1999). Information provided by an informant may legitimately form the basis for probable cause where police independently corroborate the tip, or where the informant has provided accurate information of criminal activity in the past, or where the informant himself participated in the criminal activity. Id. The Pennsylvania Supreme Court has also held that [a] police officer s experience may fairly be regarded as a relevant factor in determining probable cause where the officer demonstrates a nexus between his experience and the observation that he made. Commonwealth v. Thompson, 604 Pa. 198, 209, 985 A.2d 928, 935 (2009). Moreover, our Supreme Court has explained that the pursuit of an appellant by police officers amounts to a seizure and, thus, the officer must demonstrate either probable cause to make the seizure or reasonable suspicion to stop and frisk. In the Interest of D.M., 566 Pa. 445, 451, 781 A.2d 1161, 1164 (2001) (citing Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769 (1996)). In addition, our Supreme Court has reiterated that unprovoked flight in a high crime area is sufficient to create a reasonable suspicion to justify a stop by police. Id. Also, we have held that flight of one or more of the parties is relevant when determining probable cause. Commonwealth v. Wells, 916 A.2d at 1192, 1196 1197 (Pa. Super. 2007). -15- J-S76040-12 Applying these standards to the instant case, we conclude that both Detective Leicht and Detective Christopher Sponaugle presented facts at the suppression hearing sufficient to establish probable cause, thereby justifying Appellant s arrest. Our review of the record reflects that Detective Leicht, a law enforcement officer with nineteen years of experience and member of the Delaware County drug task force, was present at the scene with the CI when Appellant arrived. N.T., 10/25/11, at 5-6, 9-10. On the night of the arrest, Detective Leicht was conducting surveillance. Id. Once Appellant arrived in the area on foot, the CI pointed out Appellant to the detective. Id. at 10. The detective indicated that the information provided beforehand by the CI was confirmed when Appellant arrived at the scene. Id. at 11. Detective Leicht then informed the other officers participating in the surveillance that Appellant was the person pointed out by the CI. Id. Detective Leicht testified that when officers pulled their unmarked vehicle over along the sidewalk near Appellant, and exited their vehicle, Appellant started running in the opposite direction. Id. at 12. Detective Leicht testified that Appellant then ran onto the street and directly towards Detective Leicht. Id. at 13. Detective Leicht then announced, police, stop, but Appellant continued to run directly into the detective and knocked the detective back. Id. -16- J-S76040-12 In addition, Detective Sponaugle testified at the suppression hearing that, when Detective Leicht provided information over the police radio concerning Appellant, the vehicle he was riding in pulled over and Appellant took off running as soon as Detective Sponaugle exited the passenger side door. N.T., 10/25/11, at 39, 40-41. Detective Sponaugle also indicated that Appellant veered into the street as he was fleeing and ran directly into Detective Leicht. Id. at 39. Further, Detective Leicht provided testimony that he had participated in over ten investigations involving controlled substances in this particular area.2 N.T., 10/25/11, at 12. Specifically, the following was asked of Detective Leicht during the suppression hearing: 2 We note that the trial court did not make a specific finding regarding whether the area of Appellant s arrest was a high crime area. In fact, in footnote 2 of its opinion, the trial court made the following observation: 2 It is somewhat unclear whether the vicinity of defendant s arrest is a high crime area, a common feature of cases involving controlled substances. Although Detective Leicht testified that he participated in more than ten drug investigations in this area, N.T., 10/25/11, p. 12, it is hard to determine whether more than ten investigations qualify this area as high crime . See The High-Crime Area Question: Requiring Verifiable And Quantifiable Evidence For Fourth Amendment Reasonable Suspicion Analysis, 57 American University Law Review 1587 (discussing difficulties in defining a high crime area ). In the present case, however, this question is purely academic, since the evidence provides reasonable suspicion whether the vicinity was high crime or not. Trial Court Opinion, 9/18/12, at 9, n.2. Thus, we are not obligated to follow the trial court with regard to this particular determination. -17- J-S76040-12 Q. And other than just controlled substances, are you familiar with other crimes that happen in this particular area? A. Yes. Q. And as part of the drug task force is this a particular area that is targeted due to the amount of drug trafficking and other crimes? A. Yes. It is. Id. at 13. Thus, the totality of the facts, in the knowledge of the police at the time, was sufficient to establish probable cause necessary to effectuate a warrantless arrest of Appellant. Hence, this issue lacks merit. For the foregoing reasons, the trial court properly denied Appellant s motion to suppress and his contrary arguments lack merit. Accordingly, we affirm Appellant s judgment of sentence. Judgment of sentence affirmed. -18-

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