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COMMONWEALTH PENNSYLVANIA v. DARRYL ZIGLER (02/24/86)

submitted: February 24, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
DARRYL ZIGLER, A/K/A DARRYL ZIEGLER, A/K/A DARRELL V. ZIGLER, APPELLANT



Appeal from the Judgment of Sentence March 5, 1982 in the Court of Common Pleas of Allegheny County, Criminal No. 8105938A, 8105939A, 8106110A.

COUNSEL

John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Olszewski, Hoffman and Roberts, JJ.

Author: Olszewski

[ 353 Pa. Super. Page 170]

Appellant challenges his jury conviction on charges steming from sexual assaults on three children on the grounds that the trial court abused its discretion by allowing three separate informations charging sex related offenses to be consolidated for trial, and that prejudicial comments in the Commonwealth's closing argument deprived appellant of a fair trial. We find no merit in appellant's arguments and affirm the judgment of sentence of the court below.

On March 24, 1981, a thirteen year old girl was walking to school when a man grabbed her from behind and thrust a knife in front of her face. He dragged her through an alley and into a garage where he forced her to engage in anal intercourse with him. Although her assailant wrapped a towel around her face, the girl was able to "inch" the towel away from her eyes and see her attacker.

On July 10, 1981, a man approached a group of boys who were playing in a local schoolyard, and asked if anyone wanted to make a quick dollar. When the boys did not answer him, the man walked away, but one of the boys, an eleven year old, followed him. The man grabbed the boy and dragged him into a garage where he forced the child to engage in anal intercourse with him.

On August 4, 1981, an eleven year old girl was returning home from a candy store located three blocks away. A man grabbed her from behind and put a gun to her back. He forced her down the street in the direction of a school playground. The man took the girl behind a tree in back of the school where he forced her to engage in anal intercourse and other sexual acts with him. He then laced her vagina with dirt.

All three child-victims identified appellant as their attacker. The younger girl selected appellant in both a photo array and a police lineup. The boy was adamant in his identification of appellant during a photo array and also identified appellant as his assailant during trial.

[ 353 Pa. Super. Page 171]

Appellant claims that the lower court erred in denying his motion for separate trials and consolidating the three criminal informations for trial. We disagree.

At the time of appellant's trial Rule 219(b) of the Pennsylvania Rules of Criminal Procedure was dispositive of this issue.*fn1 That rule provides that "two or more offenses . . . may be charged in the same indictment if they are of the same or similar character . . . ." Pa.R.Crim.P. 219(b). "Although the rule applies specifically to joinder of offenses, (our Supreme Court) has found it equally applicable to the consolidation for trial of separate indictments or informations." Commonwealth v. ...


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