J-S18044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                                Appellant
                      v.

NORMAN WALKER
                                                      No. 1902 EDA 2016


                      Appeal from the Order June 7, 2016
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s):CP-51-CR-0005780-2013

BEFORE: PANELLA, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED APRIL 27, 2017

        The Commonwealth appeals from the order entered in the Philadelphia

County Court of Common Pleas granting Appellee, Norman Walker’s, motion

for extraordinary relief for judgment of acquittal as to aggravated assault

and criminal conspiracy to commit aggravated assault. The Commonwealth

contends the evidence was sufficient to establish the elements of those

offenses. We reverse and remand for resentencing.

        The Commonwealth alleged that Appellee and a companion assaulted

the complainant, during which Appellee stabbed the complainant on

February 3, 2013.          The Commonwealth’s case was premised on the

complainant’s prior signed statement to the police.            The trial court




*
    Former Justice specially assigned to the Superior Court.
J-S18044-17


summarized the relevant testimony presented at the non-jury trial before

the honorable Chris R. Wogan1

     The trial court summarized the testimony presented at trial as follows:

           The complainant in this matter, Kenyatta Walker
        (hereinafter referred to as “Kenyatta” to avoid confusion
        with [Appellee] also surnamed Walker) refused to appear
        in court and accordingly was unwillingly transported to
        court by the police on March 9, 2015. Kenyatta testified
        that he did not remember the events of February 3, 2013,
        and that he had not made a police report. When asked if
        anything happened in early February 2013 that made him
        go to the 16th police district and make a police report
        Kenyatta replied “No.” but later that something had
        happened to his wife and that he had not made a
        statement to the police. When confronted with his alleged
        statement, he, at first denied it was his signature. At that
        point, the prosecutor read the statement to the witness,
        and when asked to confirm, the witness stated first that he
        had “No comment” and then that he did not recall giving
        the statement.

           Detective [Jeffrey] Gilson testified that he took a
        statement from Kenyatta on February 5, 2013, after
        [Appellee] appeared, on his own, at Southwest Detective
        Division, concerning an alleged assault two days earlier.
        According to that account, [Appellee] and James Roi[st]er
        picked up Kenyatta in a blue Lexus, an argument ensued,
        after which [Appellee] and Roi[st]er exited the vehicle,
        opened Kenyatta’s door and started beating on him.
        Kenyatta alleged in his statement that he thought they
        were playing until he felt [Appellee] stab him at which
        point he jumped out of the car and observed a gun in
        [Appellee’s] other hand.     The narrative declares that
        Kenyatta was stabbed four times in the hand. . . . The
        detective executed a search and seizure warrant of 4239

1
 Judge Wogan had retired and the case was assigned to the Honorable J.
Scott O’Keefe before sentencing. See Trial Ct. Op., 9/9/16, at 2. Judge
O’Keefe presided at the sentencing hearing and authored the trial court’s
Rule 1925(a) opinion.



                                   -2-
J-S18044-17


           West Girard Avenue in Philadelphia and although three
           guns were recovered, it was [Appellee’s] son that was
           arrested, charged and tried for the weapons. No knife was
           recovered.

              Laverne Ruth testified that the Girard Avenue address
           was her residence and that [Appellee] did not live there,
           only visited from time to time, and that the guns were
           hers, inherited from her deceased grandfather, and they
           had been in her closet for thirty-five years.

               James Roister testified that although alleged to have
           been an accomplice in this case, he had never been
           arrested or even questioned about this alleged event, that
           he was indeed driving the car on February 3, 2013, and
           that an argument had started between [Appellee] and
           Kenyatta, that the complainant got out of the car and then
           left in a huff. Mr. Roister was positive that there had been
           no knife, no gun and that Kenyatta was not bleeding.

Trial Ct. Op. at 2-4 (citations omitted).

        Following the non-jury trial,2 Appellee was convicted of aggravated

assault graded as a felony of the second degree,3 conspiracy to commit

aggravated assault,4 possessing an instrument of crime5 and simple assault.6

Prior to sentencing, Appellee made a motion for extraordinary relief7 seeking

2
    The trial was held on March 9, 2015, July 30, 2015 and August 18, 2015.
3
  18 Pa.C.S. § 2702(a). See R.R. at 59a. For the parties’ convenience, we
refer to the reproduced record where applicable.
4
    18 Pa.C.S. § 903.
5
    18 Pa.C.S. § 907(a).
6
    18 Pa.C.S. § 2701(a).
7
    Pennsylvania Rule of Criminal Procedure 704 provides:




                                      -3-
J-S18044-17


judgment of acquittal for aggravated assault and conspiracy to commit

aggravated assault. R.R. at 62a. The sentencing court granted the motion.

Id. at 63a.        This timely appeal followed.8   The Commonwealth filed a

Pa.R.A.P. 1925(b) statement of errors complained of on appeal and the trial

court filed a responsive opinion.

        The Commonwealth raises the following issue for our review:

          Did the lower court err in granting a post-verdict judgment
          of acquittal on the charges of aggravated assault and

          (B) Oral Motion for Extraordinary Relief.

          (1) Under extraordinary circumstances, when the interests
          of justice require, the trial judge may, before sentencing,
          hear an oral motion in arrest of judgment, for a judgment
          of acquittal, or for a new trial.

          (2) The judge shall decide a motion for extraordinary relief
          before imposing sentence, and shall not delay the
          sentencing proceeding in order to decide it.

          (3) A motion for extraordinary relief shall have no effect on
          the preservation or waiver of issues for post-sentence
          consideration or appeal.
8
    We note that

          the government may appeal from a trial court’s post-
          verdict order finding the evidence insufficient to sustain a
          jury’s verdict and entering a judgment of acquittal in favor
          of the defendant. In the event an appellate court finds
          that the jury’s verdict was supported by sufficient
          evidence, it may reverse the trial court’s ruling and
          reinstate the jury’s verdict without remanding for any
          further resolution of factual issues.

Commonwealth v. Feathers, 660 A.2d 90, 93–94 (Pa. Super. 1995) (en
banc).



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J-S18044-17


         criminal conspiracy to commit aggravated assault where
         the Commonwealth’s evidence fully established the
         elements of those offenses, and the lower court’s contrary
         conclusion improperly rested on a credibility assessment of
         evidence it had not heard firsthand?

Commonwealth’s Brief at 3.

      The Commonwealth contends the sentencing court erred in granting

the post-verdict judgment of acquittal on the charges of aggravated assault

and conspiracy to commit aggravated assault by reweighing the evidence.

The Commonwealth contends it “proved the elements of the offenses

through Kenyatta’s signed statement to the detective . . . .” Id. at 13.

            Specifically, Kenyatta told the detective that [Appellee]
         stabbed him four times in the hand with a knife, and only
         stopped the assault when Kenyatta pushed him away and
         ran off.   The stab wounds to Kenyatta’s hand, which
         eventually caused the hand to go numb, constituted bodily
         injury.

                              *   *    *

         The evidence also established the elements of criminal
         conspiracy . . . . [Appellee] and Ro[i]ster conferred with
         one another immediately before [Appellee] went into his
         house to arm himself.       Ro[i]ster then facilitated the
         stabbing by driving [Appellee] and Kenyatta around the
         corner . . . . Ro[i]ster and [Appellee] continued to act in
         concert after the stabbing by getting back into the car to
         either pursue Kenyatta or leave the crime scene.

Id. at 14-15 (citations omitted). Thus, according to the Commonwealth, the

sentencing court vioated the standard of review by reweighing the evidence.

Id. at 18-19. We agree.




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J-S18044-17


        Our review of a ruling granting a motion for judgment of acquittal is

guided by the following principles:

           A motion for judgment of acquittal challenges the
           sufficiency of the evidence to sustain a conviction on a
           particular charge, and is granted only in cases in which the
           Commonwealth has failed to carry its burden regarding
           that charge. As we have stated:

                The standard we apply in reviewing the sufficiency of
                the evidence is whether viewing all the evidence
                admitted at trial in the light most favorable to the
                verdict winner, there is sufficient evidence to enable
                the fact-finder to find every element of the crime
                beyond a reasonable doubt. In applying the above
                test, we may not weigh the evidence and substitute
                our judgment for [that of] the fact-finder.          In
                addition, we note that the facts and circumstances
                established by the Commonwealth need not preclude
                every possibility of innocence. Any doubts regarding
                a defendant’s guilt may be resolved by the fact-
                finder unless the evidence is so weak and
                inconclusive that as a matter of law no probability of
                fact    may    be     drawn    from    the    combined
                circumstances. The Commonwealth may sustain its
                burden of proving every element of the crime beyond
                a    reasonable    doubt    by    means     of   wholly
                circumstantial evidence. Moreover, in applying the
                above test, the entire record must be evaluated and
                all evidence actually received must be considered.
                Finally, the trier of fact while passing upon the
                credibility of witnesses and the weight of the
                evidence produced, is free to believe all, part or none
                of the evidence.

Commonwealth v. Graham, 81 A.3d 137, 142 (Pa. Super. 2013) (citations

and quotation marks omitted).           “Following the rendering of a verdict, the

trial   court    is   limited   to   rectifying   trial   errors   and   cannot   make

redeterminations concerning credibility and the weight of the evidence.”



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Commonwealth v. Johnson, 631 A.2d 639, 643 (Pa. Super. 1993) (en

banc) (citation omitted). Moreover, “a trial judge’s authority over a nonjury

verdict is no greater than the authority of a judge over a jury verdict.” Id.

at 642.

      Aggravated assault graded as a felony of the second degree is defined

as follows:

          (a) Offense defined.─A person is guilty of aggravated
          assault if he:

                                  *    *    *

              (4) attempts to cause or intentionally or knowingly
              causes bodily injury to another with a deadly weapon[.]

18 Pa.C.S. 2702(a)(4).     This Court in Commonwealth v. Magnum, 654

A.2d 1146 (Pa. Super. 1995), opined:        “[A] knife is obviously a deadly

weapon.” Id. at 1150.

      Criminal conspiracy is statutorily defined as follows:

          (a) Definition of conspiracy.─A person is guilty of
          conspiracy with another person or persons to commit a
          crime if with the intent of promoting or facilitating its
          commission he:

              (1) agrees with such other person or persons that they
              or one or more of them will engage in conduct which
              constitutes such crime or an attempt or solicitation to
              commit such crime; or

              (2) agrees to aid such other person or persons in the
              planning or commission of such crime or of an attempt
              or solicitation to commit such crime.

18 Pa.C.S. 903(a).



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J-S18044-17


     It is well-established that

        a prior inconsistent statement may be used as substantive
        evidence only when the statement is given under oath at a
        formal legal proceeding; or the statement had been
        reduced to a writing signed and adopted by the witness; or
        a statement that is a contemporaneous verbatim recording
        of the witness’s statements.

Commonwealth       v.   Lively,    610       A.2d   7,   10   (Pa.   1992);9   accord

Commonwealth v. v. Brown, 52 A.3d 1139, 1154 (Pa. 2012) (recognizing


9
  We note that the Pennsylvania Rule of Evidence 803.1 has been amended,
effective April 1, 2017, and provides, inter alia, as follows:

        Rule 803.1. Exceptions to the Rule Against Hearsay—
        Testimony of Declarant Necessary

        The following statements are not excluded by the rule
        against hearsay if the declarant testifies and is subject to
        cross-examination about the prior statement:

                                   *     *     *

        Prior Statement by a Declarant-Witness Who Claims
        an Inability to Remember the Subject Matter of the
        Statement. A prior statement by a declarant-witness who
        testifies to an inability to remember the subject matter of
        the statement, unless the court finds the claimed inability
        to remember to be credible, and the statement

        (A) was given under oath subject to the penalty of perjury
        at a trial, hearing, or other proceeding, or in a deposition,

        (B) is a writing signed and adopted by the declarant, or

        (C) is a verbatim contemporaneous electronic recording of
        an oral statement.

Pa.R.Evid. 803.1(4).    We note this new rule does not apply to the instant
case.



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J-S18044-17


that under Lively, an out-of-court inconsistent statement is admissible as

substantive evidence); Commonwealth v. Buford, 101 A.3d 1182, 1201

(Pa. Super. 2014) (citing Lively with approval). Furthermore, this Court has

previously held:

        [T]here is no requirement that a witness, at the time of
        trial, adopt his or her prior statement as being truthful in
        order for the statement to be admissible under [Lively].
        If this were so, the statement would not be inconsistent
        with the witness’s trial testimony and there would be no
        need to introduce the prior statement. The requirement of
        Lively is that a prior inconsistent statement, which has
        been reduced to writing, will be admissible as substantive
        evidence if the statement, at the time when it was made,
        was signed and adopted by the witness.

Commonwealth v. Jones, 644 A.2d 177, 180 (Pa. Super. 1994).

     In the case sub judice, the sentencing court opined:

           The prosecution in this case relies solely on the words
        of Kenyatta to prove its case. While disavowing Kenyatta’s
        testimony at trial, the assistant district attorney relies on
        the complainant’s statement to a detective without an iota
        of corroboration. In his account to the police, Kenyatta
        claimed that [Appellee] stabbed him four times and
        threatened him with a gun. When discussing Kenyatta’s
        credibility, Judge Wogan stated, “I completely agree with
        you on that Mr. Walker testified without credibility. I agree
        with you a hundred percent on that.” Judge Wogan then
        dismissed the gun charges, clearly evidencing that he did
        not believe the complainant’s testimony, nor the statement
        he made to the police.       Walker claims to have been
        stabbed four times, yet never sought medical treatment,
        and more important, no one ever saw the alleged stab
        wounds. The detective taking the statement two days
        after the alleged incident did not see the purported stab
        wounds.      The driver of the vehicle, who was never
        questioned or charged, stated unequivocally there was no
        knife and no stabbing.         No medical evidence, no
        photograph, no corroboration of any sort was ever


                                    -9-
J-S18044-17


         produced. In dismissing the gun charges, Judge Wogan
         clearly showed his disbelief of Kenyatta’s statement to the
         police, the only possible substantive evidence that could be
         the basis for any finding of guilt of any charge. During the
         defense attorney’s closing arguments the following
         occurred:

                 [Defense counsel]: When you lack credibility
            under oath, Your Honor, a verdict─

                  The Court: That’s something that should be
            taken into serious consideration, you’re right.

            Moments later, the court added, “That’s troubling to the
         court.” Clearly, the testimony and statement of Kenyatta
         were unworthy of belief by the trier of fact, and as such
         the interests of justice required the granting of the motion
         for extraordinary relief.

Trial Ct. Op., at 5-6 (citations omitted).

      However, Kenyatta Walker testified, inter alia, as follows:

         [The Commonwealth]: Mr. Walker, taking your attention
         back to February 3, 2013. Where were you that day?

         A: I don’t remember.

         Q: You don’t remember where you were?

         A: Not exactly.

         Q: Let me ask you this, back sometime in early February
         2013, did you see anybody out in West Philadelphia that
         you see here in court today?

         A: What do you mean?

         Q: Do you see anybody here in the courtroom that you
         saw back in February 2013?

         A: I thought this was supposed to be over. I said I didn’t
         come here to testify against anybody. I didn’t come here



                                      - 10 -
J-S18044-17


       to put charges on anybody. You had me picked up by a
       Philadelphia police officer and brought here.

                               *     *      *

       Q: Why didn’t you want to come in on your own?

       A: Because I have nothing to say.

       Q: Let’s talk about what you had to say in February 2013.
       Did you speak with the police on February 5, 2013?

       A: I don’t know.

       Q: Did anything happen to you in early February 2013 that
       made you go to the 16th district and make a police report?

       A: No.

       Q: Nothing happened to you.          Do you recall being
       interviewed by a detective in February 2013?

       A: Yeah.

                               *     *      *

       Q: What were you interviewed about by Philadelphia
       detectives on February 5, 2013?

       A: Something happened to my wife at─I don’t know. Like
       I said, I’m not here to press charges. I’m not here to
       make no statement or nothing like that. I don’t wish to be
       on the stand. Last year I was told I didn’t have to be on
       the stand at all.

                               *     *      *

       Q: What did you go speak with the detectives about on
       February 5?

       A: I didn’t speak to them about nothing.

       Q: Do you recall giving a statement to the detectives back
       on February 5?


                                   - 11 -
J-S18044-17



         A: No. . . .

R.R. at 18a-19a.

      The Commonwealth read from the statement and asked Kenyatta if he

remembered the questions and his answers as they appeared in the

statement. He stated that he did not remember giving the answers reflected

in the statement.       See R.R. at 21a-22a.     Kenyatta testified that the

signatures on pages two and three of the statement looked like his

signature. R.R. at 23a.

      The Commonwealth showed Kenyatta a photograph, marked C-3,

which he identified as his hand. Id. He testified as follows:

         [The Commonwealth]: Why was the hand bandaged?

         A: I had a cut on it.

         Q: How did it get cut?

         A: I don’t know offhand.

         Q: You don’t remember how your hand got cut resulted in
         bandages in that photo?

         A: Not offhand I don’t.

         Q: Do you recall being asked a question: “did you seek
         medical treatment as a result of this incident?”

         A: No, I didn’t at the time.

         Q: Do you recall the detective asking you that question?

         A: No. I know I didn’t go to the hospital for my hand until
         six days later.



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        Q: Who put the bandages on that are in C-3, photo?

        A: My wife.

R.R. at 23a-24a.

     Moreover, Kenyatta testified, inter alia, as follows in response to

questions posed by counsel for Appellee:

        [Appellee’s Counsel]: How is it that you said you
        remember part of your statement and you don’t remember
        part of your statement. The signature looks familiar and
        then it doesn’t look familiar. How is it that you went to the
        police station? Did they pick you up or you went yourself?

        A: It was this cop that my wife had knew, that’s how.

                                 *     *      *

        Q: Is it correct to tell the [c]ourt one thing about your
        injuries to your right hand. You never received any type of
        hospital treatment for those injuries, did you?

        A: About four or five days later.

                                 *     *      *

        Q: They were like four or five puncture wounds in your
        hand?

        A: Yes.

                                 *     *      *

        Q: With respect to winding up in the police station, do you
        remember going in there in February 2013?

        A: Going where?

        Q: Police station.

        A: One of them days.



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J-S18044-17


                                 *     *      *

        Q: Were you in this Lexus with this man and Face?

        A: Yeah.

        Q: Was there a beef going on or something like that or a
        fight?

        A: A little altercation or something.

                                 *     *      *

        Q: The bottom line is, again you’re under oath here today
        subject to perjury, this man, [Appellee], never cuts you,
        did he?

        A: No.

R.R. at 25a-26a.

     On redirect, Kenyatta testified as follows:

        [The Commonwealth]: When defense counsel said the
        altercation was a verbal altercation, meaning words back
        and forth, you got out and left, you said yes to defense
        counsel that’s all that happened, correct?

        A: Yeah.

        Q: It was only words, how did your hand get stabbed?

        A: I don’t know.

        Q: Getting stabbed is a pretty significant deal, you went to
        the cops and told them about it, correct?

        A: Yeah, I’m done with answering questions. I don’t have
        to answer no more. That’s it.

R.R. at 26a.




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J-S18044-17


     At trial, Detective Gilson testified as follows with respect to Kenyatta’s

statement:

            I started the interview, My name is Detective Gilson. I
        will be interviewing you concerning a report that you made
        earlier today at the 16th Police District in reference to an
        incident that occurred on 2/3/13, at, approximately, 8:30
        a.m. at Belmont and Girard Avenue.

           The first question I asked was, Would you like to tell me
        what had─would you like to tell me what happened at that
        date and time? He responded, Two guys I grew up with,
        Tinsky (phoenetic), Norman Walker and Face, James
        Roi[st]er, picked me up in Face’s blue Lexus. We were
        coming from a friend’s house, drinking. We stopped by my
        house to check on my kids. We were all inside, had
        another few drinks, and then Tinsky said, let’s go for a
        ride.

           We drove to Tinsky’s house at Belmont and Girard. . . .
        Me and Face got out of the car and said something to each
        other, and then Tinsky went into his house and came back
        out, about three or four minutes later. They got back into
        the car, and were up front talking to each other as I was
        on the phone with my wife.

           They drove around the corner, in front of Lee School,
        right in front of the front. Face got out of the car, Tinsky
        got out of the car. Tinsky opened the door and started
        stabbing me. First I thought that he was playing, but then
        I felt him stab me. I pushed him and jumped out of the
        car. That’s when I could see he had a gun in his other
        hand.

           Face was standing there with his hands in his pockets
        looking at me, like, he was a being a lookout. I pushed off
        of him and ran. I ran straight up Belmont and made a
        right onto Girard Ave. They looked like they were going to
        U-turn and come after me, but there was lot of traffic and
        they just went off.

          I then asked, what did Tinsky stab me with? He said it
        was a knife. The blade was silver. I couldn’t tell what kind


                                   - 15 -
J-S18044-17


       of knife it was, but it was, about, five or six inches long. I
       asked, Can you describe the gun that he had? He replied,
       it looked like a Glock, it was all black, full sized. I asked,
       Did either Tinsky or Face saying anything to you while
       Tinsky assaulted you?         He said, They were saying
       something but it wasn’t registering. I wasn’t sure whether
       they were trying to rob, or were pissed at me, or what.

          Did either Tinsky or Face attempt to take anything from
       you during this incident? I ran. I thought that Tinsky was
       trying to go through my pockets, but I pushed him and
       ran.

          Did either man threaten you before or during this
       incident? He said, No, they just jumped out and started
       getting at me. My chest was pounding and I thought I was
       going to die from a heart attack. I asked, where exactly
       were you when Tinsky began to assault you? He said, I
       was sitting in the back seat of Face’s Lexus. I bled on his
       passenger door and down the side of the seat.

          I asked, How do you know Tinsky? He stated, I grew
       up with him. I’ve known him for about 30 years. His real
       name is Norman Walker.

          I asked, How do you know Face? He said, I grew up
       with him. I’ve known him for about 30 years, too. His
       real name is James Roi[st]er, he lives in Sharon Hill. . . .

                                *     *      *

          I asked, Did you suffer injuries as a result of this
       incident? And he stated to me, He had─I have about four
       stab wounds on my right hand. I asked, Did you seek
       medical treatment as a result of this incident? He stated,
       My wife is a nurse, she cleaned it up and bandaged it for
       me, but I haven’t gone to a hospital, or anything. I may
       go later because my hands are numb.

                                *     *      *

       [The Commonwealth]: Now, after giving that─after giving
       those answers, did you give Mr. Kenyatta Walker the



                                    - 16 -
J-S18044-17


         opportunity to review it and make any corrections,
         revisions or additions?

         A: Yes.

         Q: And did he actually take that opportunity to review it?

         A: Yes.

         Q: Afterwards, did he sign and date the bottom of every
         page.

         A: He did.

R.R. at 31a-32a.

      Instantly, Kenyatta signed and dated the prior inconsistent statement.

See id. at 32a.       Therefore, the statement was properly admitted as

substantive evidence.    See Lively, 610 A.2d at 10; Brown, 52 A.3d at

1154; Jones, 644 A.2d at 180.

      In the case sub judice, the sentencing court erred in reweighing the

evidence and substituting its judgment for that of the fact finder in granting

the motion for judgment of acquittal. See Johnson, 631 A.2d at 642-43. A

motion for judgment of acquittal challenges the sufficiency of the evidence.

See Graham, 81 A.3d at 142. In reviewing the sufficiency of the evidence,

the court may not reweigh the evidence. See id. Therefore, we agree with

the Commonwealth that Appellee was not entitled to relief.

      Order granting the motion for judgment of acquittal reversed.      Case

remanded for resentencing. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/27/2017




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