J-S34009-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

IVAN MARSHALL CROCKETT

                         Appellant                  No. 1172 WDA 2013


                Appeal from the PCRA Order June 21, 2013
               In the Court of Common Pleas of Blair County
            Criminal Division at No(s): CP-07-CR-0000895-2008
                          CP-07-CR-0000996-2008
                          CP-07-CR-0000997-2008
                          CP-07-CR-0002284-2008
                          CP-07-CR-0002287-2008


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY OTT, J.:                            FILED JANUARY 14, 2015

      Ivan Marshall Crockett appeals, pro se, from the order entered June

21, 2013, in the Blair County Court of Common Pleas denying his first

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §

9541 et seq.    Crockett seeks relief from the judgment of sentence of an

aggregate nine years, two months’ to 18 years, four months’ imprisonment,

imposed on March 2, 2010, and April 22, 2010, following his guilty pleas to

drug and gun charges at the above-captioned dockets.      On appeal, Crockett

challenges the trial court’s denial of his pretrial motion to suppress a search

warrant, the court’s failure to conduct a hearing on the motion, and prior
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counsel’s failure to obtain all relevant transcripts. For the reasons set forth

below, we affirm.

      The facts underlying Crockett’s arrest and convictions are recited in

detail in the affidavit of probable cause supporting the search warrant issued

for Crockett’s residence on August 6, 2008.       See Application for Search

Warrant and Authorization, 8/6/2008, Affidavit of Probable Cause, at 3-8.

The affidavit detailed Altoona City Police Sergeant Troy Johannides’s

investigation of Crockett for the sale of crack cocaine.        The incidents

described in the affidavit, which related to several controlled buys leading up

to the issuance of the search warrant, supported the charges at Docket

Numbers 895-2008, 996-2008, 997-2008, and 2284-2008. The charges at

Docket Number 2287-2008, resulted from the contraband recovered during

the execution of the warrant. We summarize the relevant facts as follows.

      Sergeant   Johannides    had   learned   through   several   confidential

informants (CI’s) that Crockett was selling drugs.       Sergeant Johannides

conducted two controlled buys, with the assistance of CI #4013-07, on

December 11, 2007, and January 14, 2008, following which Crockett was

arrested and charged with drug offenses. Id. at 3. Those incidents led to

the charges at Docket Numbers 895-2008, 996-2008, and 997-2008.

      The officer conducted another controlled buy, with the assistance of CI

#4068-08, on April 22, 2008. The CI arranged to purchase crack cocaine

from Denise Feather, a co-conspirator of Crockett.       Feather obtained the

cocaine from Crockett before delivering it to the CI. Subsequent to the buy,

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Crockett was arrested on two outstanding drug warrants and found to be in

possession of the buy money from the April 22, 2008, controlled buy. Id.

That incident led to the charges at Docket Number 2284-2008.

       In July of 2008, Sergeant Johannides worked with CI #4107-08 in an

attempt to purchase crack cocaine from Crockett.1      The CI told the officer

that he “re-ups his supply every 5 or 6 days from Crockett and that, he

receives 24 to 28 ½-gram bags of [c]rack from him for $1000.” Id. at 4.

He also stated that the transaction occurs at Crockett’s residence, 1911

West Chestnut Avenue, Altoona, the residence listed in the search warrant.

However, when the CI provided Crockett with $1,000 on July 12, 2008,

Crockett never provided the CI with cocaine.      Crockett explained that he

“would re-up tonight or maybe tomorrow,” but then did not return the CI’s

subsequent phone calls. Id. at 5. Accordingly, no charges arose from this

incident.

       The final incident detailed in the search warrant affidavit occurred on

August 5, 2008. CI #4013-07 contacted Sergeant Johannides to advise him

that she could purchase crack cocaine through Logan D’George.             She

informed the officer that D’George obtains cocaine through George LaMorte,

who, in turn, obtains cocaine directly from Crockett at his residence.    She


____________________________________________


1
   CI #4107-08 was identified as “Andrew Holland” in the affidavit.
Application for Search Warrant and Authorization, 8/6/2008, Affidavit of
Probable Cause, at 3.



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also told the officer that LaMorte knows she is an informant, and will only

sell her cocaine through D’George. Id. at 6.

     On August 5, 2008, at approximately 6:30 p.m., the CI contacted

D’George to set up the purchase. The parties met in a Burger King parking

lot. D’George then called LaMorte to secure the drugs. LaMorte eventually

met up with them at another location, and told D’George that the CI could

not go with him to get the crack cocaine. D’George then took the CI’s buy

money and left with LaMorte to retrieve the drugs. Id.

     Meanwhile, another officer observed Crockett enter his residence at

1911 West Chestnut Avenue.       LaMorte spoke to Crockett and then told

D’George they had to go to a strip mall behind Crockett’s residence. After

they arrived, LaMorte took the buy money from D’George and waited in an

alley behind Crockett’s residence. Approximately 10 minutes later, an officer

observed Crockett leave his residence, enter his car, and drive to the alley

where LaMorte was waiting. The two met for a few minutes, during which

time LaMorte introduced D’George to Crockett. The men then returned to

their respective vehicles and drove away. Once inside the vehicle, LaMorte

handed D’George two baggies of crack cocaine. D’George then met with the

CI to turn over the drugs.   Id. at 6-7.   The charges that arose from this

incident were dismissed at the preliminary hearing.

     Based upon the above incidents detailed in the probable cause

affidavit, a search warrant for Crockett’s residence, 1911 West Chestnut

Avenue in Altoona, was approved on August 6, 2008, and executed on

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August 8, 2008. During the search, officers recovered drugs and firearms,

which resulted in the charges at Docket Number 2287-2008.

       Prior to trial, Crockett filed two motions: (1) on September 10, 2008,

a motion to sever the drug charges; and (2) on March 24, 2009, a motion in

limine, which in reality sought to suppress the evidence recovered during the

execution of the search warrant. In the second motion, Crockett argued the

affidavit of probable cause did not include sufficient facts to justify issuance

of the warrant. See Motion in Limine, 3/24/2009. On September 3, 2009,

the trial court denied both motions. Thereafter, on January 8, 2010, the trial

court granted Crockett’s oral motion to sever the firearm charges from the

drug charges.2

       The cases involving the drug charges were consolidated and proceeded

to a jury trial before the Honorable Elizabeth A. Doyle. However, on Mach 2,

2010, the second day of trial, Crockett elected to enter a guilty plea to the

following charges:

       (1)    Docket Number 895-2008:         Possession of Controlled
              Substances, Duties at Stop Sign, and Driving While
              Operating Privilege is Suspended or Revoked;3


____________________________________________


2
 The only firearm charges pending against Crockett were for guns recovered
during the execution of the search warrant, and were docketed at Number
2287-2008.
3
  35 P.S. § 780-113(a)(16) and 75 Pa.C.S. §§ 3323(b) and 1543(a),
respectively.



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        (2)   Docket Number 996-2008:       Possession with Intent to
              Deliver Controlled Substances (PWID), Possession of
              Controlled Substances, and Criminal Use of Communication
              Facility;4

        (3)   Docket Number 997-2008: Criminal Conspiracy, Criminal
              Use of Communication Facility, PWID, and Possession of
              Controlled Substances;5

        (4)   Docket Number 2284-2008: Criminal Conspiracy, PWID,
              and Possession of Controlled Substances;6 and

        (5)   Docket Number 2287-2008:           PWID, Possession of
              Controlled   Substances, and       Possession of  Drug
                             7
              Paraphrenalia.

        In exchange for the pleas, the Commonwealth withdrew the remaining

charges, and agreed to an aggregate sentence of seven and one-half to 15

years’ imprisonment.        The specific sentences imposed at each count are

listed in the trial court’s written order entered March 2, 2010. See Order,

3/2/2010.

        The severed firearm charges at Docket Number 2287-2008 proceeded

to trial before the Honorable Hiram A. Carpenter, III. Again, after trial had

begun, Crockett elected to enter a guilty plea. On April 21, 2010, he pled

____________________________________________


4
  35 P.S. §§ 780-113(a)(30) and (a)(16), and 18 Pa.C.S. § 7512(a),
respectively.
5
  18 Pa.C.S. §§ 903 and 7512(a), and 35 P.S. §§ 780-113(a)(30) and
(a)(16), respectively.
6
   18 Pa.C.S. § 903, and 35 P.S. §§ 780-113(a)(30) and (a)(16),
respectively.
7
    35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32), respectively.



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guilty to three counts of persons not to possess firearms, 18 Pa.C.S. §

6105(a). The court sentenced Crockett the next day to a term of 10 to 20

months’ imprisonment on each count, with two counts running consecutively

to each other, and consecutively to the previous sentence imposed on March

2, 2010. See Order, 4/22/2010. Crockett did not seek to withdraw either

guilty plea, nor did he file a direct appeal from either judgment of sentence.

      Thereafter, Crockett filed two, pro se, PCRA petitions:        the first, on

September 8, 2010, related to the drug charges; and the second, on October

25, 2010, related to the firearm charges. Both petitions challenged the trial

court’s denial of Crockett’s pretrial suppression motion.            Specifically,

Crockett argued the warrant was invalid because the charges involving the

August 5, 2008, controlled buy were dismissed at a preliminary hearing.

Further,   Crockett   asserted   the   trial   court   improperly   conducted    a

suppression hearing on July 21, 2009, in his absence, and did not require

the Commonwealth to meet its burden of establishing the validity of the

warrant.   He concluded the court’s subsequent erroneous denial of his

suppression motion caused him to enter an involuntary guilty plea.           See

Motion for Post Conviction Collateral Relief, 9/8/2010, at 3; Motion for Post

Conviction Collateral Relief, 10/25/2010, at 3.

      Counsel was appointed and the two PCRA petitions were consolidated

for disposition. At a January 10, 2010, hearing before Judge Doyle, Crockett

requested the trial judge recuse herself because he intended to call her as a




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witness in his PCRA proceeding. Judge Doyle granted Crockett’s request and

the case was reassigned.

      On March 9, 2012, appointed counsel sent a letter to the PCRA court,

indicating that he did not intend to file an amended petition, but outlining

two issues for the court’s review:     (1) prior counsel’s ineffectiveness for

proceeding with a suppression hearing in Crockett’s absence and (2) Judge

Doyle’s lack of a valid bond or oath on file with the Secretary of the

Commonwealth.       See Letter, 3/9/2012.      An initial PCRA hearing was

conducted on June 12, 2012. Thereafter, counsel filed an amended petition

in which he raised three additional claims asserting the ineffectiveness of

prior counsel for (1) failing to advise Crockett of a plea offer, (2) failing to

provide proper trial strategy, and (3) failing to raise a claim of after-

discovered evidence. A second PCRA hearing was conducted on November

16, 2012, at the conclusion of which the PCRA court ordered both parties to

file briefs.   Subsequently, on June 21, 2013, the court entered an order

denying Crockett’s PCRA petition.

      On July 12, 2013, Crockett filed a pro se response to the order, in

which he expressed his desire to “waiv[e] counsel and proceed[] Pro Se[,]”

and set forth three claims PCRA counsel failed to raise before the court.

Petitioner’s Pro Se Response, 7/12/2013, at 1.       Namely, Crockett alleged

that (1) the search warrant “did not contain sufficient probable cause[,]” (2)

he had standing to challenge the search at a suppression hearing, and (3)

after he filed a motion to suppress, the Commonwealth was required to

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“produce real-live witnesses subject to cross examination” at a suppression

hearing.    Id. at 2-3.     On July 16, 2012, Crockett filed a pro se notice of

appeal, and a motion seeking to waive counsel.

       On July 22, 2013, the PCRA court entered an order, noting Crockett’s

“intention to waive his right to counsel and proceed on appeal as Self-

Represented Litigant,” and vacating its prior order appointing PCRA counsel.

Order, 7/22/2013. On November 7, 2013, this Court, sua sponte, remanded

the case for a Grazier8 hearing to determine if Crockett’s “desire to proceed

pro se is knowing, voluntary, and intelligent.”      Order, 11/17/2013.    The

PCRA court conducted a Grazier hearing on December 6, 2013, and entered

an order, that same day, granting Crockett’s petition to proceed pro se. This

timely appeal follows.9

       In his first issue, Crockett contends the search warrant, which led to

the charges at Docket Number 2287-2008, did not contain sufficient

probable cause to justify the search of his residence. Specifically, he argues

the probable cause affidavit included “knowingly deliberate misstatements”

by the affiant, Sergeant Johannides. Crockett’s Brief at 21. Furthermore, he
____________________________________________


8
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
9
  The PCRA court did not direct Crockett to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Therefore, the only
issues addressed in the trial court’s opinion are those that were raised in
counsel’s amended PCRA petition.




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asserts the charges emanating from the purported August 5, 2008,

controlled buy were dismissed at the preliminary level.            Therefore, he

contends the affidavit of probable cause was insufficient to support the

search of his residence.10 Moreover, he summarily argues all prior counsel

were ineffective for failing to properly litigate this claim previously.

       When reviewing an order dismissing a PCRA petition, we must

determine whether the ruling of the PCRA court is supported by record

evidence and is free of legal error.           Commonwealth v. Burkett, 5 A.3d

1260, 1267 (Pa. Super. 2010). “Great deference is granted to the findings

of the PCRA court, and these findings will not be disturbed unless they have

no support in the certified record.”           Commonwealth v. Carter, 21 A.3d

680, 682 (Pa. Super. 2011) (citation omitted).

       Preliminarily, we must consider the procedural posture of Crockett’s

claim. To the extent Crockett challenges the issuance of the search warrant,

such a claim is waived, because Crockett entered a guilty plea.            “[U]pon

entry of a guilty plea, a defendant waives all claims and defenses other than

those sounding in the jurisdiction of the court, the validity of the plea, and …
____________________________________________


10
  He also asserts the warrant “failed to establish a nexus between the place
to be searched and the evidence sought[.]” Crockett’s Brief at 20. This
specific claim, however, was not raised in either of Crockett’s pro se PCRA
petitions, or the amended petition filed by PCRA counsel. Accordingly, it is
waived for our review. Commonwealth v. Albrecht, 720 A.2d 693, 701
(Pa. 1998)




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the legality of the sentence imposed[.]” Commonwealth v. Eisenberg, 98

A.3d 1268, 1275 (Pa. 2014) (internal quotation marks omitted). However, a

claim that the erroneous denial of a suppression motion induced a defendant

to enter an involuntary plea is cognizable on collateral review.      See 42

Pa.C.S. § 9543(a)(2)(iii) (PCRA relief available if a petitioner pleads and

proves that his conviction resulted from a guilty plea “unlawfully induced

where the circumstances make it likely that the inducement caused the

petitioner to plead guilty and the petitioner is innocent.”).   Unfortunately,

Crockett does not raise this specific claim, and he does not assert he is

innocent of the charges.

      Therefore, Crockett’s only avenue for relief is a challenge to counsel’s

ineffectiveness for failing to properly litigate his suppression motion, which

resulted in him entering an involuntary guilty plea. See Commonwealth v.

Barndt, 74 A.3d 185, 192 (Pa. 2013) (noting the requirement, under

unlawfully induced guilty plea section of PCRA, that a petitioner must prove

he is innocent “does not apply to assertions of ineffective assistance of plea

counsel.”).

      Our review of an ineffectiveness claim is well-settled:

      We begin our analysis of ineffectiveness claims with the
      presumption that counsel is effective.       To prevail on his
      ineffectiveness claims, Appellant must plead and prove, by a
      preponderance of the evidence, three elements: (1) the
      underlying legal claim has arguable merit; (2) counsel had no
      reasonable basis for his action or inaction; and (3) Appellant
      suffered prejudice because of counsel’s action or inaction. With
      regard to the second, i.e., the “reasonable basis” prong, we will
      conclude that counsel’s chosen strategy lacked a reasonable

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        basis only if Appellant proves that “an alternative not chosen
        offered a potential for success substantially greater than the
        course actually pursued.”       To establish the third, i.e., the
        prejudice prong, Appellant must show that there is a reasonable
        probability that the outcome of the proceedings would have been
        different but for counsel’s action or inaction.

Commonwealth v. Spotz, 18 A.3d 244, 259-260 (Pa. 2011) (internal

citations omitted and emphasis supplied). “Failure to establish any prong of

the test will defeat an ineffectiveness claim.” Commonwealth v. Keaton,

45 A.3d 1050, 1061 (Pa. 2012) (citations omitted).

        Our review of Crockett’s brief reveals that while he asserts the

ineffectiveness of prior counsel in his statement of questions involved, and

sets forth the relevant standard in his statement of the scope and standard

of review,11 he fails to develop this claim in the argument section of his brief

in any meaningful way.           A petitioner must demonstrate each prong of the

ineffectiveness test in order to obtain relief.          Commonwealth v. Steele,

961 A.2d 786, 800 (Pa. 2008) (finding petitioner failed to meet his burden of

demonstrating        counsel’s    ineffectiveness    when     “[h]is     entire   argument

seem[ed] to be directed towards the arguable merit prong.”).                      Crockett’s

failure    to   do   so   renders    his    ineffectiveness      claim    waived.      See

Commonwealth v. Roney, 79 A.3d 595, 609 (Pa. 2013) (finding

ineffectiveness      claim    waived       when     petitioner    mentioned       counsel’s




____________________________________________


11
     See Crockett’s Brief at 3, 4.



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ineffectiveness only in statement of questions involved), cert denied, 135

S.Ct. 56 (2014).

       Furthermore, we note that even if Crockett’s challenge was not

waived, he would still be entitled to no relief. In his brief, Crockett argues

the probable cause affidavit supporting the search warrant was invalid

because two purported witnesses later denied any knowledge of Crockett’s

drug dealing, and the charges resulting from the August 5, 2008, controlled

buy were dismissed at the preliminary hearing. However, the record reveals

trial counsel raised these same issues in a memorandum of law filed

before the trial court.12 See Defendant’s Memorandum of Law in Support of

Motion in Limine, 8/4/2009, at 2-5.            Counsel asserted that both D’George

and LaMorte had denied purchasing drugs from Crockett, and noted that the

charges from the purported August 5, 2008, controlled buy were dismissed

at the preliminary hearing “due to a lack of competent evidence.” Id. at 4.

Accordingly, no relief is due on this claim.

       Next, in a related issue, Crockett argues he was denied his right to

participate in a suppression hearing, and “‘to test the truthfulness of recitals
____________________________________________


12
   On July 21, 2009, trial counsel and the Commonwealth met with the trial
court concerning Crockett’s suppression motion styled as a “motion in
limine.” N.T., 6/12/2012, at 11. However, there was no hearing conducted.
Rather, the Commonwealth indicated that it would rely on the probable
cause affidavit, and the trial court requested the parties file legal
memoranda. Thereafter, on September 3, 2009, the trial court entered an
order denying Crockett’s motion.




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in [the] search warrant affidavit[.]’” Crockett’s Brief at 23. In addition, he

contends the trial court erred when it denied his suppression motion.13 Id.

at 25.

         To the extent Crockett asserts the trial court erred in failing to conduct

a suppression hearing, that claim is waived as it could have been raised on

direct appeal.14       See 42 Pa.C.S. §§ 9543(a)(3); 9544(b).                     Moreover,

Crockett,     again,   does    not   develop       an   allegation   of   trial   counsel’s

ineffectiveness for failing to raise this claim previously.15 Accordingly, this

issue is waived.

         The same is true of Crockett’s contention that the trial court erred in

denying his suppression motion. The proper time to challenge a trial court’s

denial of a pretrial suppression motion is on direct appeal. Crockett failed to

file a direct appeal, and does not develop an argument that counsel was
____________________________________________


13
    Crockett also claims in his brief that he had standing to challenge the
search via a suppression motion. Crockett’s Brief at 23. Since neither the
trial court, nor the Commonwealth, ever denied Crockett standing, we need
not address this claim on appeal.
14
     Although the trial court did not conduct a suppression hearing as is
required by Pennsylvania Rule of Criminal Procedure 581(E), it merits
mention that the motion was presented to the trial court after the time for
filing a motion to suppress had expired, and in the form of a motion in
limine.
15
  We note that although trial counsel testified at the PCRA hearing, neither
PCRA counsel, nor Crockett himself, questioned counsel about his failure to
request a formal suppression hearing pursuant to Rule 581(E). See N.T.,
11/16/2012, at 2-28.




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ineffective for failing to raise this claim previously, or for failing to file a

direct appeal. Therefore, no relief is warranted.

        In his third issue, Crockett asserts PCRA counsel was ineffective for

failing to “obtain transcripts … essential to [his] case.”   Crockett’s Brief at

28. Moreover, he complains the Commonwealth “did not provide a copy of

[the] sealed search warrant … until well after the arraignment in direct

violation of [Pa.R.Crim.P.] 211(H)(1), (2).”16 Id.

        Although Crockett refers to transcripts requested in an August 12,

2012, motion, he does not specify what transcripts he still has not received.

More importantly, he fails to explain why these missing transcripts are

necessary to his appeal.           Lastly, with respect to the Commonwealth’s
____________________________________________


16
     Pennsylvania Rule of Criminal Procedure 211 provides, in relevant part:

        (H) When criminal proceedings are instituted as a result of the
        search,

        (1) A copy of the sealed affidavit(s) shall be given to the
        defendant at or before the preliminary hearing unless otherwise
        ordered as provided in paragraph (H)(2).

        (2) Upon motion of the attorney for the Commonwealth, the
        justice or judge who issued the warrant, for good cause shown,
        may delay giving the defendant a copy of the sealed affidavit(s)
        for periods of not more than 30 days. In no case shall the delay
        extend beyond the date of the court arraignment.

Pa.R.Crim.P. 211(H)(1)-(2).




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purported failure to provide him with a copy of the sealed search warrant

until “well after arraignment,” Crockett fails to explain how he was

prejudiced by the delay. Crockett’s Brief at 28.

      While we acknowledge Crockett is proceeding pro se, we emphasize

that it was his choice to do so. Indeed,

      [a]lthough this Court is willing to liberally construe materials
      filed by a pro se litigant, pro se status confers no special benefit
      upon the appellant. To the contrary, any person choosing to
      represent himself in a legal proceeding must, to a reasonable
      extent, assume that his lack of expertise and legal training will
      be his undoing.

Commonwealth v. Adams, 882 A.2d 496, 498 (Pa. Super. 2005) (citations

omitted).

      The final issue raised in Crockett’s brief consists of the following one-

sentence argument:

      Appellant specifically asserts and submits that all prior counsel
      provided ineffective assistance by failing to raise and properly
      litigate the issues presented in this Brief.

Crockett’s Brief at 28.    Crockett does not develop an argument regarding

any of the three ineffectiveness prongs, and simply re-states his bald

allegation that prior counsel was ineffective. This claim is, too, waived.

      Order affirmed.     Crockett’s Motion for Post Submission (10/9/2014),

and Application for Leave to File Post Submission (12/8/2014), are denied.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/14/2015




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