J-S33027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    RYHEEME ROBERT WOOD                        :
                                               :   No. 1929 MDA 2016
                       Appellant

              Appeal from the Judgment of Sentence April 6, 2016
                In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0000994-2015


BEFORE:      BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                               FILED NOVEMBER 21, 2017

        Ryheeme Robert Wood appeals from the judgment of sentence entered

on April 6, 2016, in the Franklin County Court of Common Pleas, made final

by the denial of post-sentence motions on October 24, 2016. On October 22,

2015, a jury found Wood guilty of simple assault,1 but not guilty of recklessly

endangering another person (“REAP”).2 The court sentenced Wood to a term

of 12 to 24 months’ state incarceration. On appeal, Wood raises the following

issues: (1) whether the trial court erred in finding Wood forfeited his right to

counsel; (2) whether there was sufficient evidence to support his simple

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. § 2701(a)(1).

2   18 Pa.C.S. § 2705.
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assault conviction; and (3) whether the verdict is against the weight of the

evidence.   See Wood’s Brief at 4-5.    For the reasons provided below, we

vacate the judgment of sentence and remand for further proceedings.

     The trial court set forth the underlying facts as follows:

            At the October 22, 2015[,] jury trial, this Court heard
     evidence pertaining to the incident giving rise to the charge of
     simple assault against [Wood]. On May 12, 2015, Trooper
     [Joshua] Marsh was dispatched to the scene of an incident where
     an individual had placed a phone call to 911. Upon arrival, Trooper
     Marsh identified the victim – Ashley Denise Long – and [Wood].
     At the scene, the victim informed Trooper Marsh that [Wood]
     struck her. Trooper Marsh testified that he had the victim
     compose a written statement at the scene on May 12, 2015.
     Trooper Marsh also testified that before the victim composed the
     written statement, [Wood] was not allowed any contact with her.
     Trooper Marsh testified that the purpose of a written statement is
     to preserve evidence in the event that a victim may recant their
     original version of what transpired. Trooper Marsh read the
     following at trial from the victim’s written statement: “On May
     12, 2015, me and my boyfriend were driving on Route 11 and got
     into a verbal argument. And while I was driving down Route 11,
     he reached over and punched me in my mouth.” Trooper Marsh
     testified that the victim’s injuries were visible at the scene, and
     that “[i]t looked as if she was struck in the face. Her lip was
     swollen … Underneath the inside lip, there was a small abrasion
     that ran across her front two teeth.” The victim declined medical
     assistance.

            This Court also heard testimony pertaining to the victim’s
     prior testimony at the preliminary hearing.3 During the jury trial,
     Trooper Marsh read the following testimony given by the victim at
     the preliminary hearing[:]

        Q. Okay. So, you mentioned that you were driving along.
        At any point was there a disagreement?

        A. Yes, that I provoked myself. Because, like I told you
        earlier, when I’m not on my medication, I am completely
        irrational, I don’t know what I’m doing, I make poor


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        decisions and I tend to provoke, which is exactly what
        happened that day.

        Q. When you say you provoked him, you provoked him to
        do what?

        A. I made him angry.

        Q. Okay. And as a result of his anger, what happened?

        A. I got punched in my mouth. But, at the end of day, like
        I said –

        [Wood]: Wow!

     _____________________________

        3 Following the incident and the preliminary hearing, the
       victim was killed in an automobile accident, and was
       therefore unable to testify at the jury trial.
     _____________________________

     Trooper Marsh testified that following this initial testimony, the
     victim began to recant her statement. Trooper Marsh also read
     the following testimony provided by the victim at the preliminary
     hearing: “I should not be – I want the charges dropped. I was
     not on my medication. I was the one who ca[u]sed the whole
     thing. I was the one who should not have acted out the way that
     I did.” Trooper Marsh testified that the victim then stated that
     she, not [Wood], punched her in the face.

            Lea Richmond also testified at the jury trial. Ms. Richmond
     testified that she had previously worked with the victim, and that
     they had known each other for six (6) years. Ms. Richmond
     testified that on May 10, 2015, two (2) days before the incident
     in question, she communicated with the victim on Facebook
     instant messenger. Ms. Richmond testified that during their
     conversation, the victim expressed that she was “stressed out” by
     [Wood], and that [he was] “threatening her and cheating.” After
     the conversation on Facebook instant messenger, Ms. Richmond
     testified that she had another conversation with the victim on the
     phone. Ms. Richmond testified that “[o]nce we got on the phone,
     I realized she was actually really worried. I thought it was a joke
     up until then.” [Ms.] Richmond also testified that the victim told

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       her that she was scared, and “that she was letting [her] know if
       anything were to happen it was [Wood].” Ms. Richmond testified
       that the victim told her “she was no longer staying with her
       parents because [Wood] was following her.”               On cross-
       examination, Ms. Richmond testified that while the victim had not
       discussed it herself, she had learned from other individuals of prior
       violent acts committed by [Wood].

Trial Court Opinion, 1/20/2017, at 2-5 (record citations omitted).

       Following the incident, Wood was charged with one count of simple

assault and one count of REAP. A preliminary hearing was held on June 2,

2015. At that time, the court indicated that Wood had forfeited his right to

counsel, even though he disputed that finding. See N.T., 6/2/2015, at 3. On

October 22, 2015, a jury found Wood guilty of simple assault, but not REAP.

On April 6, 2016, the court sentenced him to a term of 12 to 24 months’ state

imprisonment.3

       On April 14, 2016, the court entered an order granting the appointment

of conflict counsel, Kristopher Accardi, Esquire. Additionally, the court issued

two orders granting an extension of time to file a post-sentence motion on

April 19, 2016, and on May 3, 2016. After several continuances, the court

issued an order denying Wood’s post-sentence motions on October 24, 2016.

This appeal followed.4



____________________________________________


3 At both proceedings, Wood represented himself.
4  On November 28, 2016, the trial court ordered Wood to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Wood filed a concise statement on December 12, 2016. The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on January 20, 2017.

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      In his first argument, Wood complains the trial court erred in finding

that he forfeited his right to counsel. See Wood’s Brief at 5.

      Wood’s issue raises “pure questions of law, our standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Henderson,

938 A.2d 1063, 1064-1065 (Pa. Super. 2007), appeal denied, 954 A.2d 575

(Pa. 2008). Additionally, we are guided by the following:

      The Sixth Amendment to the United States Constitution provides
      that in all criminal prosecutions, the accused shall enjoy the right
      to have the assistance of counsel for his or her defense. Similarly,
      Article I, Section 9 of the Constitution of this Commonwealth
      affords to a person accused of a criminal offense the right to
      counsel. However, the constitutional right to counsel of one’s own
      choice is not absolute. Rather, the right of an accused individual
      to choose his or her own counsel, as well as a lawyer’s right to
      choose his or her clients, must be weighed against and may be
      reasonably restricted by the state’s interest in the swift and
      efficient administration of criminal justice. Thus, while defendants
      are entitled to choose their own counsel, they should not be
      permitted to unreasonably clog the machinery of justice or
      hamper and delay the state’s efforts to effectively administer
      justice.

Commonwealth v. Lucarelli, 971 A.2d 1173, 1178-1179 (Pa. 2009)

(citations omitted).

      Moreover, the Pennsylvania Supreme Court in Lucarelli explained the

difference between waiving one’s right to counsel and forfeiting it:

      Like the Superior Court in Commonwealth v. Thomas, 879 A.2d
      246, 257-59 (Pa. Super. 2005), we find persuasive the distinction
      between waiver and forfeiture made by the Third Circuit Court of
      Appeals in United States v. Goldberg, 67 F.3d 1092, 1099-1101
      (3d Cir. 1995).       Waiver is “an intentional and voluntary
      relinquishment of a known right.” Id. at 1099. By contrast,
      forfeiture, as defined by the Third Circuit, does not require that
      the defendant intend to relinquish a right, but rather may be the

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     result of the defendant’s “extremely serious misconduct” or
     “extremely dilatory conduct.” United States v. Thomas, 357
     F.3d 357, 362 (3d Cir. 2004) (quoting Goldberg, supra at 1100-
     02). See also Commonwealth v. Coleman, 905 A.2d 1003,
     1006-08 (Pa. Super. 2006) (affirming a finding of forfeiture where
     defendant, who had the means to retain counsel, appeared
     without counsel or engaged in behavior that forced counsel to
     withdraw).

     The consequences of the distinction between waiver of the right
     to counsel and forfeiture of the right to counsel are significant
     because, we now hold, Pa.R.Crim.P. 121 and its colloquy
     requirements do not apply to situations where forfeiture is found.
     To hold otherwise would permit a recalcitrant defendant to engage
     in the sort of obstructive behavior that mandates the adoption of
     the distinction between forfeiture and waiver in the first instance.
     Should an unrepresented defendant choose not to engage in the
     colloquy process with the trial court, were there no provision for
     forfeiture of counsel, that defendant could impermissibly clog the
     machinery of justice or hamper and delay the state’s efforts to
     effectively administer justice. Such a result would be untenable.
     See United States v. Thomas, supra at 362 (“Forfeiture can
     result regardless of whether the defendant has been warned about
     engaging in misconduct, and regardless of whether the defendant
     has been advised of the risks of proceeding pro se.”) (quoting
     Goldberg, supra at 1101). . . . We hold today that where a
     defendant’s course of conduct demonstrates his or her
     intention not to seek representation by private counsel,
     despite having the opportunity and financial wherewithal
     to do so, a determination that the defendant be required to
     proceed pro se is mandated because that defendant has
     forfeited the right to counsel.

Lucarelli, 971 A.2d at 1179 (emphasis added).

     In Lucarelli, the Court determined the defendant forfeited his right to

counsel, as opposed to waived it, where he

      had more than eight months to prepare for trial; had the financial
      means to retain counsel; did retain counsel on several occasions,
      although the attorneys were permitted to withdraw when the
      attorney-client relationship deteriorated; was given access to
      $20,000 by the trial court some five weeks before the

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      commencement of trial for the purpose of retaining counsel; and
      failed to offer an explanation for not having retained counsel by
      the start of trial.

Id. at 1180. The Court stated the defendant “simply decided not to retain

private counsel because he did not wish to spend the money.” Id. It then

concluded these actions constituted “extremely dilatory conduct” and the trial

court acted properly in directed the defendant to proceed pro se. Id. See

Commonwealth v. Travillion, 17 A.3d 1247, 1248 (Pa. 2011) (per curiam

order) (holding defendant forfeited his right to counsel where he engaged in

behavior that “included, inter alia, firing his original privately retained trial

counsel, who was prepared to proceed to trial; refusing to hire new counsel;

and refusing to meet and cooperate with two court-appointed lawyers.”);

Commonwealth v. Kelly, 5 A.3d 370 (Pa. Super. 2010) (finding the court

did not err by determining defendant forfeited his right to counsel because,

inter alia: (1) he was unwilling to cooperate with all three counsel assigned

to him; (2) he argued that all three counsel were incompetent because they

refused to argue what he believed was the law; (3) his trial had been

postponed because he could not agree with his second assigned counsel; (4)

he wanted to a fourth counsel assigned to him and the postponement of the




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trial instead of trying to cooperate with his third counsel), appeal denied, 32

A.3d 1276 (Pa. 2011).5

       Turning to the present matter, Wood argues his conduct did not amount

to forfeiture based on the following: (1) he did not cause any delay and the

matter was never continued; (2) he was not represented by multiple

attorneys; (3) he did not argue with his counsel or treat them with “disdain;”6

(4) he did not file pro se motions while represented by counsel; (5) he was

never given access to funds to retain counsel; and (6) the court did not

determine his ability to afford counsel. See Wood’s Brief at 7-8.

       As indicated above, the trial court found Wood’s “conduct of missing

intake appointments with the Franklin County Public Defender’s Office

amounted to a forfeiture of his right to counsel.”       Trial Court Opinion,

1/20/2017, at 12. Moreover, at the post-sentence motions hearing, the court

explained its rationale as follows:

       As acknowledged by [Wood’s counsel], [Wood] was combative in
       his numerous appearances before the Court, and he clearly
       seemed to be fixated on his belief that the charge could not
       proceed against him because the alleged victim was deceased.
       And the efforts to educate [Wood] to the contrary was not
       received well by [him]. At each appearance there was round and
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5 See also Commonwealth v. Coleman, 905 A.2d 1003 (Pa. Super. 2006)
(concluding right to counsel was forfeited where defendant: (1) repeatedly
dismissed and replaced counsel or appeared pro se; (2) was financially
capable of retaining counsel for her defense; and (3) refused to listen to
court’s warnings that trial would commence, with or without representation
by counsel), appeal denied, 923 A.2d 409 (Pa. 2007).

6   Wood’s Brief at 8.

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       round conversation about that issue and it lead into whether
       [Wood] was going to seek court-appointed representation. He
       clearly didn’t feel that it could go to trial and that he would not
       need an attorney and he was advised to make an appointment
       with the Public Defender’s office.

       The Court also notes that many times he was late for court
       appearances and it was evident that he was banking on the fact
       that the charge would be dismissed because the victim was
       deceased.

       From the [evidence] presented today … there is support for the
       Commonwealth’s position that [Wood] was afforded the
       opportunity on three occasions, May 26th, July 15th, and July 21,
       2015 to qualify for counsel through appointment at no charge, if
       it was deemed appropriate at the interview process. He failed to
       attend the appointments and the record is clear on each court
       appearance that [Wood] was questioned about the matter and his
       goal was to delay the matter or to have the charges dismissed.
       Again, under his erroneous belief that they could not proceed
       given that the victim was deceased.

N.T., 10/24/2016, at 4-5.

       We are compelled to disagree with the trial court’s determination. Our

review of the record does not clearly support a finding that Wood acted in an

extreme dilatory manner to forfeit his right to counsel.     On June 2, 2015,

Wood refused to sign a waiver of counsel. That same day, at the preliminary

hearing,7 when asked about the waiver, Wood stated, “I refuse.           I want

counsel. I never told you I was under the impression that I did not want to

be represented.       I have a right to be represented diligently, promptly,

zealously and most importantly, effectively.”      N.T., 6/2/2015, at 3.     The



____________________________________________


7   Magisterial District Judge Larry Pentz presided over the matter.

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magisterial    district   judge,    without    any   detailed   recounting   of   prior

conversations, noted that it and the parties “already talked about that” and

proceeded with the matter. The victim, who has since died as noted above,

testified at the hearing. She recanted the statement she made to Trooper

Marsh at the time of the incident, testifying that she had punched herself, and

not Wood. Id. at 6. The victim indicated the story she gave the trooper was

incorrect because she had not taken her medication. Id. at 9.8 The trooper

also testified as to his recitation of what the victim told him following the

assault. Id. at 13-20.

        On July 8, 2015, the court denied Wood’s first motion to continue his

mandatory arraignment. The Commonwealth opposed the motion, arguing

Wood had sufficient time to apply for counsel after the June 2nd preliminary

hearing. See Wood’s Motion to Continue Mandatory Arraignment, 7/8/2015,

at 1.    The court held Wood’s arraignment hearing that same day. 9               Wood

testified that prior to the preliminary hearing, on May 26, 2015, he was

scheduled to have an appointment at the Public Defender’s Office but was late

because he did not have transportation. See N.T., 7/8/2015, at 2-3. Wood

stated that based on the magistrate judge’s statements at the preliminary

hearing, he did not do anything to obtain counsel prior to the arraignment


____________________________________________


8 She also wrote a statement, indicating that she wanted to drop all charges
against Wood. Id. at 25-26.

9   The matter was transferred to President Judge Carol L. Van Horn.

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hearing because he “was under the impression that [he] just wasn’t going to

receive counsel.” Id. at 4. The trial court informed Wood that he had two

options: (1) pay for his own attorney or (2) apply for the appointment of

counsel. Id. at 6-7.

       Subsequently, on August 24, 2015, Wood appeared before the trial court

for a call of the list proceeding without an attorney to represent him. Wood

stated the victim had died in a car accident on July 25, 2015, and that he had

not obtained counsel because “due to [her] death, he hasn’t had any time to

even focus. It hit [him] kind of hard.” Id. at 5. He also testified he missed

a second appointment with the Public Defender’s Office because of “the

situation” with the victim’s death. Id. The court again stated Wood could hire

an attorney, apply for appointment of counsel, or represent himself. Id.10

Additionally, the following discussion took place:

       [Wood]: Your Honor, I fail to comprehend why we’re pursuing
       this issue due to the fact the Commonwealth’s only witness to the
       case sadly died in a car accident.

             And this is torture for me. This is my child’s mother. She
       came with a notarized letter to the District Attorney’s Office telling
       the Commonwealth that she did not wish to pursue this.

             But yet the Commonwealth, who is here to serve and to
       protect people of the Commonwealth, continues to pursue this.
       She’s not a member of the Commonwealth. She’s from the State
       of Maryland. She does not want to go through this. We’re having
       a case with a dead woman. I don’t understand this.
____________________________________________


10 At the hearing, the Commonwealth indicated it had a plea offer for Wood
but that it was uncertain that it had been communicated to him earlier. Id.
at 2-3. Wood rejected this offer. Id. at 4.

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       THE COURT: I understand your position that you don’t think this
       case should move forward. It’s the Commonwealth’s decision to
       make.

                                               …

       Yes. It’s the Commonwealth’s decision to make whether charges
       will be pursued. They have decided that they’re going to pursue
       the charges. It doesn’t always depend on what the victim says
       whether charges are pursued.

Id. at 3-4.

       Thereafter, a pre-trial conference was held on September 3, 2015.

Wood mentioned he had not taken “the initiative to get a lawyer” because he

had “been dealing with a custody battle for [his] son.” N.T., 9/3/2015, at 5.11

       On October 12, 2015, at the beginning of Wood’s jury selection

proceeding, the court indicated to prospective jurors that Wood was choosing

to represent himself. N.T., 10/12/2015, at 4. In response, at a sidebar, Wood

stated that one week earlier, he had attempted to go to the Public Defender’s

Office to make an appointment but got into a verbal dispute with the

receptionist, in which she allegedly slammed the window and said that she

was going to call the sheriffs because he had asked for her name. Id. at 4-6.

The court informed Wood he had forfeited his right to counsel because he did




____________________________________________


11   The baby’s mother is the now-deceased victim in this matter.



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not appear for appointments and stated the parties would proceed with jury

selection. Id. at 7.12

       Lastly, Wood arrived late for the start of his jury trial, on October 22,

2015, missing jury instructions, opening arguments, and the beginning of

Trooper Marsh’s direct examination because he was under the erroneous

impression that trial started at 9:30 a.m. N.T., 10/22/2015, at 4-24. Wood

reasserted his request for counsel and the trial court responded that Wood did

not keep his appointments with the Public Defender’s Office. Id. at 25. During

Wood’s case-in-chief, he requested the prosecutor take the stand because he

was representing the deceased victim. Id. at 100. Wood also made two oral

motions, requesting the court dismiss the charges because: (1) the victim

was deceased and she was not able to be cross-examined; and (2) he did not

have an adequate defense since he did not have counsel.13 Id. at 102-103.

The court denied both motions. Id. at 103-104. It also merits mention that

the Commonwealth introduced the deceased victim’s preliminary hearing

testimony, which included both her initial statements to the investigating

officer and her recantation of the assault. Id. at 32-38.14 Additionally, the


____________________________________________


12  Additionally, when asked if he had any witnesses that he would like to
identify, Wood stated that he wanted “to have a right to face [his] accuser,”
the deceased victim. Id. at 8.

13 Wood stated, “I am extremely, extremely poor. I’m indigent. And I can’t
afford one.” Id. at 103.
14 Wood objected on the basis that “we keep having a trial without a witness”

and he “had a right to face [his] accuser.” Id. at 38.

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Commonwealth called Lea Richmond, a friend of the victim, who testified

regarding her communications with the victim via Facebook Instant Messenger

and phone calls made two days before the incident at issue took place. Id. at

68-80. With respect to the messages, Richmond testified the victim told her

that Wood was threatening the victim. Id. at 77. Richmond stated she spoke

with the victim the same day as the messages were exchanged, and the victim

told her the following: “She told me that she was letting me know if anything

were to happen, it was him because she was from -- I was from out of town.

So she was letting someone else know away from the situation.” Id. at 79.

      In comparison to cases like Lucarelli, Kelly, and Travillion, Wood’s

conduct does not amount to extreme dilatory behavior sufficient to result in

the forfeiture of his right to counsel. First, and of most importance, we note

the record is deficient regarding any inquiry as to Wood’s “opportunity and

financial wherewithal” to obtain representation.       See Lucarelli, 971 A.3d

1179. Wood currently appears to be indigent, as the trial court appointed a

public defender for his post-sentence motions and direct appeal.          Second,

even though the trial court instructed Wood of his right to an attorney and the

possible forfeiture of that right at the arraignment and call of the list

proceedings, only five months had passed from the time of the incident to

when jury selection began without Wood having counsel. Furthermore, each

time he appeared without counsel, Wood provided a reasonable explanation

for his failure to apply for a public defender, including a lack of transportation,


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the mistaken belief that he could not request counsel after a certain

proceeding had taken place, the death of the victim (his girlfriend), and a child

custody dispute. Third, Wood never requested a continuance of trial as delay

tactic, as compared to the other cases cited supra. He only requested a delay

of his arraignment hearing, which was denied by the court.          Additionally,

unlike the cases cited above, here, Wood was not uncooperative or belligerent

with counsel.   In fact, the record demonstrates he never even met with

counsel, court-appointed or otherwise, before he was convicted. Moreover,

the record does not reveal any inquiry with the Public Defender’s Officer

regarding the purported incident between Wood and the receptionist.

      Furthermore, we emphasize several unique facets of this case. First,

the charges Wood faced subjected him to a term of imprisonment, and he

was, in fact, sentenced to a minimum of one year in state incarceration.

Second, even though the facts of this case may be simplistic, the legal issues

are complex in nature, and included the death of the victim who had recanted

her police statement at the preliminary hearing and the introduction of

possible hearsay evidence with respect to Richmond’s testimony. While the

trial court takes issue with Wood’s mistaken belief that the charges and the

trial could not proceed without the victim’s appearance as well her recantation

statements, it is not unreasonable for a lay person to be under the same

misguided impression, and therefore, the need for counsel’s advice would

have been indispensable. Consequently, we conclude the trial court erred in


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finding Wood forfeited his right to counsel. In the interests of justice, and

apparent denial of Wood’s constitutional right to counsel, we are compelled to

vacate the judgment of sentence and remand for further proceedings.15

       Judgment of sentence vacated. Case remanded for further proceedings.

Jurisdiction relinquished.

       President Judge Emeritus Bender joins this memorandum.

       Judge Strassburger files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2017




____________________________________________


15 Based on the nature of our disposition, we need not address Wood’s
remaining claims regarding the sufficiency and weight of the evidence
supporting his conviction.

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