J-S70012-17


                                   2018 PA Super 51

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    PHILIP LAWRENCE MORIARTY                   :
                                               :
                      Appellant                :       No. 780 MDA 2017

                   Appeal from the PCRA Order April 25, 2017
                 In the Court of Common Pleas of Adams County
              Criminal Division at No(s): CP-01-CR-0000492-2014


BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

OPINION BY GANTMAN, P.J.:                                  MARCH 08, 2018

        Appellant, Philip Lawrence Moriarty, appeals from the order entered in

the Adams County Court of Common Pleas, which denied his first petition

brought pursuant to the Post Conviction Relief Act (“PCRA”).1       We reverse

the order denying PCRA relief and vacate Appellant’s revocation sentence.

        The relevant facts and procedural history of this case are as follows.

On July 21, 2014, Appellant entered a negotiated guilty plea to recklessly

endangering another person (“REAP”) and resisting arrest.            The court

sentenced Appellant that day in accordance with the plea agreement to one

to twenty-three months and twenty-nine days’ imprisonment for REAP and a

consecutive term of twelve months’ probation for resisting arrest. The court
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
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immediately paroled Appellant.          The terms of Appellant’s parole/probation

prohibited Appellant from committing any violation of the law.

       While Appellant was on parole, the Commonwealth charged him at

docket No. CP-01-CR-0000521-2016 (“docket 521-2016”), with aggravated

assault, terroristic threats, simple assault, and harassment.       On March 7,

2016, the Commonwealth filed a motion for revocation of parole/probation

regarding Appellant’s REAP and resisting arrest convictions, based on the

new charges.      The Commonwealth claimed the new charges constituted a

“Rule 1 violation” (prohibition against committing any violation of the law).

The court appointed counsel to represent Appellant for the revocation

proceedings as well as the new charges. Regarding the original REAP and

resisting arrest convictions, on March 15, 2016, Appellant waived his

Gagnon I hearing.2           Regarding the new charges at docket 521-2016,

Appellant waived a preliminary hearing on April 20, 2016.

       Appellant proceeded to a Gagnon II hearing3 on April 28, 2016,

____________________________________________


2 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656
(1973). See also Commonwealth v. Ferguson, 761 A.2d 613 (Pa.Super.
2000) (explaining that when parolee or probationer is detained pending
revocation hearing, due process requires determination at pre-revocation
hearing (Gagnon I hearing) of probable cause to believe violation was
committed; upon finding of probable cause, second, more comprehensive
hearing (Gagnon II hearing) follows before court makes final revocation
decision).

3 Where the court holds a revocation hearing, based on new criminal
charges, before the defendant’s trial on the new charges, the proceeding is
(Footnote Continued Next Page)


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regarding his 2014 REAP and resisting arrest convictions, before his trial on

the new charges. The court had the following exchange with Appellant and

defense counsel:

          [THE COURT]:                   Counsel, anything to say at this
          time?

          [DEFENSE COUNSEL]:        No, Your Honor.        I have
          discussed this matter both with [Appellant] as well as the
          Probation Department. We concur with the action taken
          today.

          [THE COURT]:              [Appellant], have you had a
          chance to see the motion for revocation, sir?

          [APPELLANT]:                   Yes, Your Honor.

          [THE COURT]:              The motion is dated March 7th of
          this year. It alleges a Rule 1 violation pertaining to
          aggravated assault, terroristic threats charges brought by
          the Pennsylvania State Police; do you understand that?

          [APPELLANT]:                   Yes, Your Honor.

          [THE COURT]:              You have the right to a hearing
          in this matter. If you acknowledge the violations, you are
          giving up your right to have that hearing; do you
          understand that?

          [APPELLANT]:                   Yes, Your Honor.

          [THE COURT]:               [Then] if you acknowledge the
          violations on the parole revocation, the [back] time is 22
          months 28 days.       You would be recommitted to that
          subject to future re-parole. On Count 3 [resisting arrest],
(Footnote Continued) _______________________

commonly known as a “Daisey-Kates hearing.” See Commonwealth v.
Kates, 452 Pa. 102, 305 A.2d 701 (1973). Here, the parties and PCRA
court refer to Appellant’s revocation hearing as a Gagnon II hearing, so we
will use that terminology as well.



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        that’s a misdemeanor of the second degree. You could be
        sentenced up to two years in jail on that count; do you
        understand that?

        [APPELLANT]:              Yes, Your Honor.

        [THE COURT]:              Has anyone   promised you
        anything or threatened you in any way to cause you to
        acknowledge the violations?

        [APPELLANT]:              No, Your Honor.

        [THE COURT]:              Are you on any medication or
        under the influence of any substance that affects your
        ability to think clearly?

        [APPELLANT]:              No, Your Honor.

        [THE COURT]:          Are you acknowledging the
        violations because you did in fact commit those
        violations?

        [DEFENSE COUNSEL]:        Because you got arrested on
        new charges.

        [APPELLANT]:              Yes, Your Honor.

        [THE COURT]:              I’ll         accept          the
        acknowledgement.

(N.T. Gagnon II Hearing, 4/28/16, at 2-3) (emphasis added).      The court

subsequently revoked Appellant’s parole for the REAP conviction and

recommitted Appellant to serve the time remaining on that sentence, which

was twenty-two months and twenty-eight days’ imprisonment, with credit

for the time served.   Regarding the resisting arrest conviction, the court

revoked probation and resentenced Appellant to twelve months’ consecutive

probation. Appellant did not file a direct appeal. On December 6, 2016, a


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jury acquitted Appellant of all the new charges at docket 521-2016.

      On December 19, 2016, Appellant timely filed a pro se PCRA petition,

raising claims of revocation counsel’s ineffectiveness.   Appellant also filed,

on December 29, 2016, a pro se “motion to withdraw plea nunc pro tunc and

to vacate sentence, or alternatively, to modify the sentence of 4/28/16, or

release Appellant on immediate parole.”       The court ultimately ordered

Appellant paroled directly to an inpatient facility but denied the December

29, 2016 motion in all other respects.    Regarding Appellant’s pro se PCRA

petition, the court appointed counsel.

      The court held a PCRA hearing on April 20, 2017, centered on

Appellant’s claim that revocation counsel was ineffective for advising

Appellant to acknowledge his new charges at the Gagnon II hearing, which

led to the revocation of his parole and probation, before proceeding to trial

on the new charges. Appellant testified at the PCRA hearing, inter alia: (1)

Appellant told counsel he was innocent of the new charges at docket 521-

2016; (2) counsel did not inform Appellant that he could defer the Gagnon

II hearing until after trial on his new charges; (3) counsel told Appellant to

acknowledge his arrest on the new charges so he could get work release; (4)

Appellant believed he was confirming at the Gagnon II hearing only that he

had been arrested on new charges; and (5) counsel did not inform Appellant

that an arrest on new charges alone was insufficient to justify revocation of

his parole/probation. (N.T. PCRA Hearing, 4/20/17, at 12-26).


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     Revocation counsel testified at the PCRA hearing, inter alia: (1) the

court appointed him to represent Appellant for the revocation proceedings as

well as the new charges at docket 521-2016; (2) counsel spent roughly one

hour talking with Appellant about his revocation proceedings and the new

charges; (3) Appellant was very concerned about his employment and

stressed that he wanted work release; (4) counsel told Appellant that if he

deferred the Gagnon II hearing he would be ineligible for work release, but

if he went ahead with the revocation proceedings and then made bail on the

new charges, he could be eligible for work release; and (5) Appellant

acknowledged his arrest on new charges at the Gagnon II hearing which

was sufficient to revoke his parole/probation when coupled with Appellant’s

waiver of the preliminary hearing on the new charges. (Id. at 27-37).

     At the conclusion of the PCRA hearing, the court took the matter under

advisement.   On April 25, 2017, the court denied relief.    Appellant timely

filed a notice of appeal on May 11, 2017. The next day, the court ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on June 2, 2017.

     Appellant raises the following issues for our review:

        WHETHER THE COURT’S DENIAL OF [APPELLANT’S] PCRA
        PETITION WAS SUPPORTED BY THE EVIDENCE AND FREE
        FROM LEGAL ERROR WHEN:

        1. COUNSEL WAS INEFFECTIVE IN FAILNG TO ADVISE
        [APPELLANT] OF HIS RIGHT TO A FULL HEARING ON APRIL
        28, 2016…AND/OR TO DEFER A HEARING ON THE PAROLE
        REVOCATION UNTIL AFTER A TRIAL ON THE NEW

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         CHARGES WHEN [APPELLANT] INSISTED               ON   HIS
         INNOCENCE RELATED TO THE NEW CHARGES.

         2. COUNSEL WAS INEFFECTIVE IN FAILING TO KNOW THE
         EVIDENTIARY STANDARD FOR A PAROLE REVOCATION
         AND ADVISING [APPELLANT] TO ACKNOWLEDGE THE
         VIOLATION BASED SOLELY ON THE FILING OF NEW
         CHARGES   AND    [APPELLANT’S]  WAIVER    OF  HIS
         PRELIMINARY HEARING.

         3. COUNSEL    WAS    INEFFECTIVE  IN   ADVISING
         [APPELLANT] TO ADMIT A PAROLE VIOLATION WHEN
         [APPELLANT] INSISTED HE WAS INNOCENT OF THE NEW
         CHARGES, [APPELLANT] ONLY ACKNOWLEDGED HE HAD
         BEEN ARRESTED AND CHARGED WITH A CRIME, AND
         THERE WAS NO EVIDENCE PRESENTED AT THE PAROLE
         REVOCATION HEARING THAT WOULD MEET THE
         STANDARD OF PROOF OF A VIOLATION BY A
         PREPONDERANCE OF THE EVIDENCE REQUIRED FOR
         REVOCATION.

         4. THERE WAS NO REASONABLE BASIS FOR COUNSEL TO
         ADVISE [APPELLANT] TO ACKNOWLEDGE THE VIOLATION,
         BE RECOMMITTED TO THE BALANCE OF HIS ORIGINAL
         SENTENCE, AND LOSE ALL OF HIS STREET TIME SO THAT
         HE COULD BE ELIGIBLE FOR WORK RELEASE, WHEN
         [APPELLANT] WAS NOT ELIGIBLE FOR WORK RELEASE
         DUE TO THE PENDING AGGRAVATED ASSAULT CHARGE
         AND OTHER CHARGES.

(Appellant’s Brief at 4-5).

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959

A.2d 319 (2008). This Court grants great deference to the findings of the

PCRA court if     the   record contains any support for    those    findings.


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Commonwealth v. Carr, 768 A.2d 1164 (Pa.Super. 2001). If the record

supports a post-conviction court’s credibility determination, it is binding on

the appellate court. Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297

(2011). “A PCRA court’s legal conclusions, however, are reviewed de novo.”

Commonwealth v. Green, 168 A.3d 173, 175 (Pa.Super. 2017).

      For purposes of disposition, we combine Appellant’s issues. Appellant

argues revocation counsel did not inform Appellant that he could defer the

revocation hearing until after trial on the new charges at docket 521-2016.

Appellant asserts counsel also failed to tell Appellant he was entitled to a full

Gagnon II hearing on April 28, 2016, at which time the Commonwealth was

required to prove by a preponderance of the evidence that Appellant had

violated his parole and that parole was no longer an effective rehabilitation

tool for Appellant.     Appellant maintains he relied on revocation counsel’s

interjection to “acknowledge the violation” to mean Appellant was “arrested”

on new charges.       Appellant claims counsel’s interpretation and advice was

erroneous because an arrest alone is insufficient to warrant revocation of

parole/probation.     Appellant insists his arrest on the new charges, without

more, does not satisfy the “preponderance of the evidence” burden of proof

required at a revocation proceeding.      Appellant contends the fact that he

also waived a preliminary hearing on the new charges is irrelevant to the

burden of proof required at a revocation proceeding because a preliminary




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hearing decides only whether the Commonwealth has established a prima

facie case, which is a lower burden than preponderance of the evidence.

      Appellant highlights that he did not actually acknowledge violating the

law at the revocation hearing; he acknowledged only his arrest on new

charges. Appellant states counsel lacked a reasonable basis for instructing

Appellant to proceed to the revocation hearing before trial on the new

charges, so Appellant could be eligible for work release, because the Adams

County Department of Probation Services Community Reentry Program

policy generally prohibits work release under these circumstances. Appellant

emphasizes a jury ultimately acquitted him of the new charges.       Appellant

submits he suffered prejudice due to counsel’s faulty advice, where the court

revoked Appellant’s parole/probation, resentenced him, and denied him

credit for all of his street time, based on what turned out to be nonexistent

violations. Appellant concludes revocation counsel was ineffective, and this

Court must reverse the order denying PCRA relief, vacate the revocation

sentence, and remand for the court to give him appropriate credit for time

served on the original sentence. We agree Appellant is entitled to relief.

      The   law   presumes   counsel   has   rendered   effective   assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When

asserting a claim of ineffective assistance of counsel, the petitioner is

required to plead and prove: (1) the underlying claim has arguable merit;

(2) counsel had no reasonable strategic basis for his action or inaction; and


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(3) but for the errors and omissions of counsel, there is a reasonable

probability that the outcome of the proceedings would have been different.

Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999).

      Pennsylvania Rule of Criminal Procedure 708 governs violations of

parole/probation, in pertinent part, as follows:

         Rule 708.    Violation of Probation, Intermediate
         Punishment, or Parole; Hearing and Disposition

            (A) A written request for revocation shall be filed with
         the clerk of courts.

            (B) Whenever a defendant has been sentenced to
         probation or intermediate punishment, or placed on parole,
         the judge shall not revoke such probation, intermediate
         punishment, or parole as allowed by law unless there has
         been:

            (1) a hearing held as speedily as possible at which
         the defendant is present and represented by counsel; and

            (2) a finding of record that the defendant violated a
         condition of probation, intermediate punishment, or parole.

Pa.R.Crim.P. 708(A)-(B).      Additionally, with respect to revocation of

probation, Section 9771 of the Sentencing Code provides:

         § 9771.      Modification or revocation of order of
         probation

            (a) General rule.—The court may at any time
         terminate continued supervision or lessen or increase the
         conditions upon which an order of probation has been
         imposed.

            (b) Revocation.—The court may revoke an order of
         probation upon proof of the violation of specified conditions
         of the probation.       Upon revocation the sentencing
         alternatives available to the court shall be the same as

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        were available at the time of initial sentencing, due
        consideration being given to the time spent serving the
        order of probation.

           (c) Limitation       on      sentence        of      total
        confinement.—The court shall not impose a sentence of
        total confinement upon revocation unless it finds that:

           (1) the defendant has been convicted of another
        crime; or

            (2) the conduct of the defendant indicates that it is
        likely that he will commit another crime if he is not
        imprisoned; or

           (3) such a sentence is essential to vindicate the
        authority of the court.

           (d) Hearing required.—There shall be no revocation
        or increase of conditions of sentence under this section
        except after a hearing at which the court shall consider the
        record of the sentencing proceeding together with
        evidence of the conduct of the defendant while on
        probation.    Probation may be eliminated or the term
        decreased without a hearing.

42 Pa.C.S.A. § 9771.

     Regarding Gagnon II hearings:

        The first step in a Gagnon II revocation decision…involves
        a wholly retrospective factual question: whether the
        parolee or probationer has in fact acted in violation of one
        or more conditions of his parole or probation. It is this fact
        that must be demonstrated by evidence containing
        probative value. Only if it is determined that the parolee
        or probationer did violate the conditions does the second
        question arise: should the parolee or probationer be
        recommitted to prison or should other steps be taken to
        protect society and improve chances of rehabilitation?

Commonwealth v. Sims, 770 A.2d 346, 349 (Pa.Super. 2001) (internal

citations and quotation marks omitted).      “Unlike a criminal trial where the

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burden is upon the Commonwealth to establish all of the requisite elements

of the offenses charged beyond a reasonable doubt, at a revocation hearing

the Commonwealth need only prove a violation of [parole or] probation by a

preponderance of the evidence.”         Id. at 350 (internal quotation marks

omitted).

      “The threat of revocation may be executed on the basis of an arrest

and evidence of some facts in addition.”                 Id. (emphasis added).

Significantly, an arrest on new charges coupled with the waiver of a

preliminary hearing on the new charges is insufficient, absent more, to

revoke parole or probation.    Id. (explaining arrest alone, without facts to

support arrest, is insufficient to revoke probation or parole; waiver of

Gagnon I hearing establishes only prima facie show of probable cause to

believe violation occurred; waiver of Gagnon I hearing does not concede

that Commonwealth proved alleged violation by preponderance of evidence;

similarly, defendant who waives preliminary hearing does not concede he is

guilty of new charges; rather, he agrees to be bound over for trial for

presentation   of   evidence   and     rendering   of    verdict).    See    also

Commonwealth        v.   Allshouse,      969    A.2d    1236   (Pa.Super.   2009)

(reiterating well-settled law that probation cannot be revoked solely on basis

of arrest); Commonwealth v. Fleeger, 437 A.2d 60 (Pa.Super. 1981)

(explaining before court revokes probation, Commonwealth must offer more

facts than just defendant’s arrest).


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       Further, our Supreme Court has stated:

         [W]hen the basis for revocation arises from the advent of
         intervening criminal conduct, a [revocation] hearing may
         be held prior to any trial arising from such criminal
         conduct. On the other hand, this Court has recognized
         that it is not unreasonable for a probation revocation
         hearing to be postponed pending adjudication of criminal
         charges which are the basis for the revocation.

Commonwealth v. Infante, 585 Pa. 408, 421, 888 A.2d 783, 791 (2005)

(internal citations and quotation marks omitted).         The rationale and

preference for deferring revocation proceedings is to “avoid the possibly

unjust result of revoking probation, only to find later that the probationer

has been acquitted of the charges that prompted the revocation hearing.”

Id. at 422, 888 A.2d at 792. See also Commonwealth v. Royster, 524

Pa. 333, 572 A.2d 683 (1990) (reversing and vacating revocation sentence

where new charges, which had formed sole basis for revocation of probation,

were ultimately dismissed).

       Instantly, while Appellant was on parole, the Commonwealth brought

new charges of aggravated assault, terroristic threats, simple assault, and

harassment against him at docket 521-2016,            On March 7, 2016, the

Commonwealth filed a motion for revocation of parole/probation, claiming

the new charges constituted a “Rule 1 violation” (prohibition against

committing any violation of the law). The new charges formed the sole basis

for   revocation;   the   Commonwealth   cited   no   technical   violations   of

parole/probation. The court appointed counsel to represent Appellant for the


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revocation proceedings as well as the new charges.        Appellant waived his

Gagnon I hearing on March 15, 2016. Appellant also waived a preliminary

hearing on April 20, 2016, regarding the new charges.

     On the advice of revocation counsel, Appellant proceeded to a Gagnon

II hearing on April 28, 2016, instead of deferring the revocation hearing

until after trial on the new charges.       The notes of testimony from the

Gagnon II hearing make clear the Commonwealth did not present any

factual evidence of Appellant’s parole/probation violation, other than his

arrest on the new charges. The court revoked Appellant’s parole/probation

because Appellant purportedly “acknowledged the violation.”         (See N.T.,

4/28/16, at 2-3.) Nevertheless, the record shows Appellant confirmed only

the fact of his arrest on new charges.       (See id.)   Nothing in the record

indicates Appellant stipulated to or otherwise agreed that he had actually

violated a term of his parole/probation. Rather, the court accepted the mere

acknowledgment of Appellant’s arrest as the basis for revocation.

     Importantly, Appellant’s waiver of a Gagnon I hearing, his arrest on

new charges, and/or his waiver of a preliminary hearing on the new charges,

are individually and cumulatively insufficient to warrant revocation of

parole/probation, under the circumstances of this case.       See Allshouse,

supra; Sims, supra. Therefore, Appellant’s ineffectiveness of counsel claim

has arguable merit.

     Revocation counsel testified at the PCRA hearing that he advised


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Appellant to proceed to the Gagnon II hearing before trial on the new

charges because Appellant would have a better chance at eligibility for work

release, so long as he also made bail on the new charges. According to the

record entries for Appellant’s new charges at docket 521-2016, counsel did

not file a motion for modification of bail until July 25, 2016, nearly three

months later, which the court subsequently denied on August 25, 2016.

Revocation counsel also failed to explain the basis for his belief that

Appellant would have been eligible for work release under the Adams County

work release policy. Notably, the record does not contain the work release

eligibility requirements for Adams County.4        Likewise, the Commonwealth

does not even attempt to refute Appellant’s contention that he was ineligible

for work release due to the new charges.           Thus, the reasonableness of

revocation counsel’s advice on this topic is dubious.

       Further, a jury ultimately acquitted Appellant of all the new charges at

docket 521-2016.         Appellant suffered prejudice due to counsel’s faulty

advice, where the court revoked Appellant’s parole/probation, resentenced

him following that revocation, and denied him credit for all of his street time,

based on what turned out to be nonexistent violations.              Appellant’s

revocation sentence was due to counsel’s flawed advice.         If counsel had

____________________________________________


4The Pennsylvania Administrative Code requires each county to implement
policies specifying the criteria for eligibility for work release. See 37
Pa.Code § 451.124(b)(1).



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advised Appellant to defer his revocation hearing until after trial on the new

charges, Appellant would not have been subject to a revocation sentence.5

See Infante, supra; Royster, supra.                Based on the foregoing, we hold

Appellant has sufficiently demonstrated each prong of the test for ineffective

assistance of counsel.       See Kimball, supra.        Accordingly, we reverse the

order denying PCRA relief, vacate Appellant’s revocation sentence, and

remand for the trial court to recalculate Appellant’s credit for time served on

his original sentence.

       Order reversed; revocation sentence vacated; case remanded for

further proceedings. Jurisdiction is relinquished.




____________________________________________


5  The Commonwealth and trial court opinion state Appellant raises for the
first time on appeal his claims that counsel was ineffective for failing to
advise Appellant that he could defer his revocation hearing until after trial on
the new charges and that counsel gave faulty advice regarding Appellant’s
eligibility for work release. Nevertheless, the record confirms Appellant
adequately pursued and preserved these claims during the PCRA hearing.
(See N.T., 4/20/17, at 13-15; 17-18; 29-31.) In any event, Appellant’s
revocation sentence is infirm, and we can correct the error sua sponte. See
generally Commonwealth v. Randal, 837 A.2d 1211 (Pa.Super. 2003)
(en banc) (explaining illegal sentence is subject to sua sponte review and
correction, assuming proper jurisdiction).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/08/2018




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